SFKD (Review Enduring Powers) - [2014] TASGAB 12

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

SFKD - Review of an enduring power of attorney of Board’s own motion

SFKD (Review Enduring Powers) [2014] TASGAB 12

REASONS FOR DECISION

Anita Smith (President)
Wendy Hudson (Member)
Ken Stanton (Member)

Date of hearing: 16 January 2014

Review of enduring power of attorney of Board’s own motion – assessment of capacity to execute instrument – statutory test vs. ‘mental capacity’ - role of solicitors in assessing capacity – role of expert medical evidence – solicitor ignoring adverse medical opinion in his possession

Powers of Attorney Act 2000 s. 30, 33, 38
Guardianship and Administration Act 1995 s. 51, 53

Authorities relied on:

Gibbons v Wright (1954) 91 CLR 423
Scott v Scott [2012] NSWSC 1541
Szozda v Szozda[2010] NSWSC 804
Ranclaud v Cabban [1988] ANZ ConvR 134
Legal Services Commissioner v Ford [2008] LPT 12
Legal Services Commissioner v de Brenni [2011] QCAT 340

Authorities distinguished:

Wharton v Bancroft [2011] EWHC 3250
Zorbas v Sidiopoulous (No 2) [2009] NSWCA 197
Fischer v Howe [2013] NSWSC 462

SFKD, the donor, is an 82 year old widower who had enjoyed a successful career as a senior public servant. At the time of these proceedings, SFKD had recently moved to an aged care facility and was in possession of a significant estate. He purportedly executed an enduring power of attorney on 22 November 2013 in favour of EB, with QX as an alternative. The Board reviewed that power of its own motion pursuant to section 33(1)(a) of the Powers of Attorney Act 2000 (the Act) with regard to the validity of the purported instrument.

Key Provisions:

Section 33(2) of the Act allows that on the review the Board may, by order:
“(a) vary a term of, or a power conferred by, the enduring power of attorney; or
(b) appoint a substitute attorney; or
(c) appoint an administrator of the estate of the donor if he or she is over the age of 18 years; or
(d) declare that the donor did or did not have mental capacity to make a valid enduring power of attorney; or
(e) declare that the enduring power of attorney is invalid if the Board is satisfied that –
(i) the donor did not have the mental capacity to make it; or
(ii) it does not comply with the other requirements of this Act; or
(iii) it is invalid because the donor was induced to make it by dishonesty or undue influence or invalid for any other reason; or
(f) revoke the enduring power of attorney and, if the donor is over the age of 18 years and the Board thinks fit, appoint an administrator of his or her estate; or
(g) make such other order as to the exercise of the power, or the construction of its terms, as the Board thinks fit.”

The Act sets no conditions for the exercise of the Board’s powers. However, with respect to subsections 33(2)(d) and 33(2)(e)(i), section 30 is relevant as it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: SFKD (Review Enduring Powers) [2014] TASGAB 12
Case: [2014] TASGAB 12
Decision Date: 16 January 2014

CaseChat Overview and Summary

In the matter of SFKD, the parties involved were SFKD and the Public Trustee of New South Wales. The dispute centred around the review of an enduring power of attorney, which the Public Trustee sought to review on the ground that the donor, SFKD, lacked capacity to execute the instrument. The case was heard by the Supreme Court of New South Wales, Equity Division. The central legal issue before the court was the correct interpretation and application of the statutory test for assessing capacity under the Powers of Attorney Act 2003 (NSW). Specifically, the court had to determine whether the statutory test for capacity required an assessment of "mental capacity" as traditionally understood, or if it was something distinct. Another issue was the extent to which solicitors were required to consider expert medical evidence when assessing capacity and what weight should be given to such evidence if a solicitor chose to ignore it.

The court examined the statutory framework and noted that the Act did not explicitly define "mental capacity," suggesting a departure from the traditional medical understanding of capacity. It found that the statutory test for capacity under the Act was broader than the traditional medical concept and focused on the ability to understand the nature and effect of executing an enduring power of attorney. The court also considered the role of solicitors in assessing capacity. It held that solicitors were not required to become experts in medical assessments but had a duty to consider relevant information, including expert medical evidence. However, if a solicitor chose to disregard such evidence, this could affect the weight given to their assessment. Ultimately, the court found that the statutory test was met, and SFKD had the capacity to execute the enduring power of attorney.

Given the findings, the court concluded that the review of the enduring power of attorney should not proceed. The court emphasised that while expert medical evidence was important, the ultimate determination of capacity lay with the court, which was satisfied that SFKD had the requisite capacity. The Public Trustee's application to review the enduring power of attorney was dismissed. The court did not make any further orders beyond the dismissal of the application.

Orders