SM (Advice and Direction)

[2014] TASGAB 17

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART

SM – Advice and Direction to her Enduing Guardian, FBM

SM (Advice and Direction) [2014] TASGAB 17

REASONS FOR DECISION

Anita Smith – President
Date of decision: 30 September 2014

Enduring guardianship – enduring guardian seeking substitution prior to a review hearing – nature of advice and direction

Macedonian Orthodox Community Church (2008) 237 CLR 66
Re Centro Retail Australia Ltd [2012] VSC 240
BN (Advice and Direction) [2014] TASGAB 16

1. On 2 January 2014 the Board registered an instrument appointing an enduring guardian in which SM (the appointor) appointed her daughter, FBM (the enduring guardian), as her enduring guardian, being registered instrument number XXXX.  The instrument includes seven conditions which the guardian must observe in relation to the exercise of her powers, mostly – but not all -related to end-of-life treatments.  The Board makes no findings about the validity of that instrument. 

2. In August 2014 the enduring guardian wrote to the Registrar of the Board indicating her concerns about the appointor’s cognitive decline.  According to that letter, the enduring guardian has contacted the appointor’s geriatrician and general practitioner to consider her long term care needs.  She had also arranged an assessment by the Aged Care Assessment Team.  That assessment was conducted on 21 August 2014 and the appointor was assessed as eligible for permanent residential care, high level respite care and a HCP 3-4 package of assistance.

3. On 23 September 2014, the enduring guardian made an application to review the enduring guardianship.  That application was made on the grounds that internal family conflict has made it untenable for her to continue as enduring guardian.  It appears that the family conflict relates to disputes about the appointor’s future accommodation.  The applicant also noted that concerns about this family conflict were detrimental to the appointor’s health and wellbeing.  The Board makes no findings about the cause of that conflict or any findings about the contribution of any party to that dispute.  It is only relevant to this decision to the extent that it explains the enduring guardian’s motivation for seeking substitution as an enduring guardian. 

1. After discussions with the Board’s investigator, the enduring guardian sought advice and direction from the Board to the effect that the instrument will be varied until it is reviewed at a hearing.  The effect of the variation that she seeks is that the Public Guardian be substituted as enduring guardian in the interim. 

2. The Board’s investigator contacted the appointor on 26 September to discuss the possible variation of the instrument and to ascertain her wishes.  While the appointor expressed no objection, it was not clear that she understood the import of the conversation.  The enduring guardian attempted a similar conversation on 29 September 2014 and received equally ambiguous results. 

1. In Macedonian Orthodox Community Church (2008) 237 CLR 66, the majority of the High Court made some general points about the role of a Court in giving advice to a trustee, including that there is no implied limitation on the power to give advice; that there are no implied limitations on discretionary factors;[at 90] that the procedure is summary in character;[at 90] and that the advice is private because its function is to give personal protection to the trustee and operates as an exception to the court’s ordinary function of deciding disputes between litigants.[at 91][1]   The Board adopted that characterisation in relation to the role of the Board giving advice and direction to a guardian in BN (Advice and Direction) [2014] TASGAB 16 and it is appropriate to also do so in this case.

   [1] As summarised in Re Centro Retail Australia Ltd [2012] VSC 240 by Almond J.

1. Given that there is a hearing pending with respect to the instrument appointing an enduring guardian where each of the above issues will be aired in full, it is appropriate this advice and direction shall remain private to the applicant, the appointor and the future enduring guardian. 

1. The Board will give the advice and direction as sought.  The instrument shall be varied to the extent that the Public Guardian shall be substituted for FBM until such time as the instrument is reviewed at a hearing of the application made 23 September 2014.

Anita Smith
PRESIDENT