SM – Application to review an enduring guardianship by FBM and KDO
[2014] TASGAB 22
•5 December 2014
GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART
SM – Application to review an enduring guardianship by FBM and KDO
REASONS FOR DECISION
Anita Smith (President)
Catherine Gavan (Member)
Carolyn Wallace (Member)
Date of hearing: 5 December 2014
Review of enduring guardianship – enduring guardian seeking revocation
Guardianship – family conflict created the need for a guardian – suitability of proposed guardian – assertions that the proposed guardian was neutral in the family conflict were not supported by the evidence
Guardianship and Administration Act 1995 s. 20, 21, 34
On 17 August 2013 SM (“the appointor”) appointed her daughter FBM as her enduring guardian. The Board received an application to review the instrument from the enduring guardian on 23 September 2014. A further application for such a review was made by SM’s son, KDO, and was received by the Board on 13 November 2014.
The Instrument:
The instrument appears on its face to be properly witnessed and was registered in January 2014 as instrument number xxxxx. The validity of the instrument was not challenged.
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. One condition states: “If I require long term care in a facility outside my home, I would prefer to live close to my daughter.”
The appointor sent a hand-written letter to the Board dated 12 January 2014 explaining that she had initially selected her son, KDO, as her alternative enduring guardian but since he had moved to Melbourne she had changed her mind and that she had altered the document accordingly. This is evident on the instrument as she has crossed out KDO’s name and details and has written “See letter”. The letter is in a different handwriting to the instrument but the signature on both is consistent, leading to the presumption that someone else (possibly FBM) prepared the instrument for the appointor to sign and that SM wrote the letter independently. In any event, KDO had not accepted appointment as an enduring guardian. Section 32(2)(b) of the Act provides that:
“An instrument is not effective to appoint an enduring guardian unless – (b) there is endorsed on it an acceptance in the form or to the effect of the acceptance specified in Form 1 signed by each person appointed as an enduring guardian.”
Therefore, KDO was not appointed as an enduring guardian and the letter sent by SM with respect to that notation was superfluous.
The Applications:
As the enduring guardian, FBM application is deemed appropriate by section 34(3)(b) of the Guardianship and Administration Act 1995 (“the Act”). Pursuant to section 34(3)(e) the Board is satisfied that KDO is a person with a proper interest in the matter, being the appointor’s son and a person that she had, at some point, considered for appointment as an alternative enduring guardian.
Form 6 (a pro forma application published by the Board) meets the regulatory requirements for both an application to review an enduring guardian pursuant to section 34 of the Act and an application for appointment of a guardian pursuant to section 20. Both FBM and KDO completed Form 6. Both applicants noted conflict between the enduring guardian and other family members and that such conflict had undermined the role of the enduring guardian, prompting the need for review. In the part of the application which relates to the appointment of a guardian, FBM proposed the appointment of the Public Guardian. KDO proposed himself for appointment as a guardian.
As FBM’s application had commenced proceedings in September, the second application by KDO in November was probably unnecessary, but in any event, the Board determined to hear all applications together.
The Hearing:
On 17 November 2014, notice of a hearing was sent to the appointor, her daughter KDO, her sons KDO and NM and the Public Guardian. All of those persons attended the hearing on 5 December 2014 as well as the enduring guardian’s husband, Mr. TM. The Public Guardian was represented by Ms. Anne Perks at the hearing.
Grounds of Review of the Instrument:
Section 34 of the Act states:
“34. Revocation or amendment of appointment by Board
(1) The Board may, on an application under this section and after a hearing, revoke or amend the instrument of appointment of an enduring guardian if–
(a) the enduring guardian seeks revocation of the appointment; or
(b) the Board is satisfied that the enduring guardian–(i) is not willing or able to act in that capacity; …”
At the hearing, FBM confirmed the statements made in her application and during the investigation to the effect that she sought revocation of the appointment or that she is no longer willing to act in that capacity.
The Board considered these statements by the enduring guardian to be sufficient basis upon which to exercise its powers to revoke the instrument. Accordingly, the instrument was revoked.
The Guardianship Applications:
SM has been assessed by the Aged Care Assessment Team (ACAT) and by Dr. E. Both assessments resulted in a diagnosis of dementia. Dr. E described this as a significant dementia and noted that at times SM is lacking insight into her circumstances. The ACAT assessment recorded SM as eligible to receive permanent residential care, high level respite care and a support package which included case management and supervision with personal care, household and garden maintenance. The Board was satisfied that SM is a person with a disability and that, by reason of her disability, she is incapable of making reasonable judgments about her person and circumstances.
The Board was also satisfied that SM is in need of a guardian but only in respect of decisions about where she is to live temporarily or permanently. In September 2014 the enduring guardian emailed her two brothers indicating that she had cancelled respite that had been booked by NM and had arranged alternate respite at two other facilities with a view to SM taking up residence in one of those facilities. She indicated that she had done this as the enduring guardian and that she required the assistance of KDO as his mother’s enduring power of attorney to facilitate the transactions. Prior to this, NM and his wife had provided daily assistance to SM.
Receiving the email, prompted NM to review the level of support he provided to his mother. According to Mr. Newlands, there has been tension between him and his sister for over 12 years which they generally manage by avoiding contact with each other. The occasion of making decisions about SM’s future accommodation inflamed that underlying tension to such an extent that FBM lawyer threatened a restraint order against KDO.
The Board received voluminous papers with respect to the conflict between siblings. Many of these papers did not directly relate to SM’s best interests but related to the authors’ issues rather than SM’s. Accordingly much of the material before the Board was irrelevant to the questions that the Board had to determine.
SM expressed a wish, at the hearing, to live in residential aged care. However the Public Guardian’s delegate had reported that her views about staying at home or moving to residential care tend to vacillate. At the time of the hearing she was still living at home with additional services having been provided and she had been using respite facilities. According to the Public Guardian, all family members were content with these arrangements for the time being.
SM has been assessed as eligible for residential care. At times she has expressed a wish to live in an Aged Care facility because she gets lonely and depressed living at home. She experiences anxiety about going home when she leaves respite care. Her offspring have experienced significant tension as a result of them exploring temporary and permanent accommodation options. According to KDO there was no dispute about where she might live (as he would abide by any choices she made) but the question was about when she will move permanently. Both of SM’s sons considered that the ‘conflict’ within the family had been overstated and that cordial relations could be reinstated sufficient to decide where she might live. However, the Board noted a deep and longstanding rift between NM and FBM which has flared up in the context of their mother’s care needs and is very likely to do so again. The Board makes no findings as to the fault of any party in contributing to that conflict, but notes that these proceedings have had a detrimental effect on family relationships and at times persons have become very emotional.
The Board is satisfied that because decisions about her future accommodation are under active consideration SM is in need of a guardian to decide where she is to live temporarily or permanently. The Board is satisfied that SM’s needs could not be met by other means less restrictive of her freedom of decision and action.
KDO’s Eligibility for Appointment as Guardian:
Section 21 of the Act provides:
“21. Persons eligible as guardians
(1) The Board may appoint as a full guardian or limited guardian any person who is of or over the age of 18 years and consents to act as guardian if the Board is satisfied that that person –
(a) will act in the best interests of the proposed represented person; and
(b) is not in a position where the person's interests conflict or may conflict with the interests of the proposed represented person; and
(c) is a suitable person to act as guardian of the proposed represented person.(2) In determining whether a person is suitable to act as a guardian of a represented person, the Board must take into account –
(a) the wishes of the proposed represented person so far as they can be ascertained; and
(b) the desirability of preserving existing family relationships; and
(c) the compatibility of the person proposed as guardian with the proposed represented person and with the administrator (if any) of his or her estate; and
(d) whether the person proposed as guardian will be available and accessible to the proposed represented person so as to fulfil the requirements of guardianship of that person.”The Board considers that it is in SM’s best interests that decisions about her future accommodation are made by a person who is independent of the conflict between her offspring. KDO considers that he is such a person. However, FBM did not consider that he was neutral to the issues. While the Board did not consider that KDO is a party to the sibling conflict, he did appear to favour his brother’s view of circumstances and did not countenance his sister’s opposition to his appointment.
When questioned by the Board, KDO stated that, if appointed as guardian, he would make the decision about where his mother should live by arranging for her to have respite in a range of facilities and then selecting her preference. As noted above, SM had already expressed a preference, having had respite in two facilities. The Board did not consider that having further respite in multiple facilities was SM’s best interests. The Board also noted that KDO’s view was that SM is not yet ready for permanent aged care, even though SM has expressed fears about being home alone. Actions that KDO described as a potential guardian did not reflect the actual availability of respite or permanent aged care places.
The Board is concerned that KDO may delay a decision about permanent aged care for SM which is not in her best interests and does not reflect her wishes. The Board also notes that at an earlier time SM withdrew from appointing him as her guardian and (even though her reasons for withdrawing were because of geographical distance, which is not a factor that the Board would contemplate) that demonstrated her wishes at that time.
As sibling conflict has been inflamed by these proceedings, the Board will treat the factor of ‘preserving existing family relationships’ as meaning, in these circumstances, ‘not allowing family relationships to deteriorate any further.’ The Board considered that KDO was unreceptive to his sister’s concerns about sibling conflict and during the hearing he introduced irrelevant past issues (such as a failure by the enduring guardian to adhere to a condition of the instrument) that inflamed rather than resolved tension between siblings.
The Board considers that NM is not suitable because he does not satisfy the criteria in section 21(2)(a) and (b) of the Act. The Board considers that he is ineligible for appointment because he does not satisfy the criteria in section 21(1)(a) or (c).
For the forgoing reasons, the Board prefers the appointment of an independent guardian, in this case the Public Guardian. Both KDO and NM expressed concerns that the Public Guardian had been more attentive to FBM’s views than to theirs. The Board is confident that the Public Guardian will canvas views of all family members but ultimately make a decision that reflects Mrs. Newlands’ best interests, her wishes and the alternative that is least restrictive of her freedom of decision and action as is required by the Act.
Conclusion:
After hearing an application in relation to an Enduring Guardian dated 17 August 2013 made by SM (hereinafter the donor) appointing FBM as her guardian the Board was satisfied that it is not in the donor’s best interests for the Enduring Guardian to continue
THE BOARD ORDERS that Enduring Guardian is revoked.
AND FURTHER
After hearing an application for a guardianship order in respect of SM (hereinafter called the ‘represented person’)
The Board was satisfied that the represented person
• is a person with a disability, and
• is unable by reason of the disability to make reasonable judgements in respect of her person and circumstances; and
• is in need of a limited guardian;
THE BOARD ORDERS
That the Public Guardian be appointed as the represented person’s guardian.
That the powers and duties of the guardian are limited to decisions concerning where the represented person is to live either permanently or temporarily.
That the order remains in effect to 4 December 2015.
Anita Smith Catherine Gavan Carolyn Wallace
PRESIDENT MEMBER MEMBER
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