TKH on the application of the Legal Aid Commission of Tasmania and on the application of SM and on the application of WC for Baptcare

[2013] TASGAB 13

GUARDIANSHIP AND ADMINISTRATION BOARD
LAUNCESTON

TKH on the application of the Legal Aid Commission of Tasmania and on the application of SM and on the application of WC for Baptcare.

TKH (Review of Enduring Power of Attorney, Guardianship and Administration) [2013] TASGAB 13

REASONS FOR DECISION

Rowena Holder (Chair)
Sue Hill (Member)
Ken Stanton (Member)

Enduring power of attorney – incapacity to execute

Guardianship – “in need of a guardian” - decisions about future accommodation and day care since the death of the proposed represented person’s father and carer – family’s preferences may conflict with proposed represented person’s wishes – greater expertise and independence in Public Guardian

Administration – reliance on deceased father for support – possible claim under Testator’s Family Maintenance Act 1912 – family conflict and conflicts of interest, preference for appointment of Public Trustee

Guardianship and Administration Act 1995 s. 3, 6, 20, 21, 33, 51, 54
Powers of Attorney Act 2000 s. 33

BND (Review of Administration) [2012] TASGAB 3
HFO (Review of Administration) [2012] TASGAB 6

1. TKH (the represented person) is a 43 year old single man whose parents are deceased. TKH’s late father was his primary carer and informally looked after TKH’s finances until his death on the 15^th December 2012.  On the 15th December 2012 TKH executed a power of attorney (EPA) in favour of his sister MH (the Attorney).  An Application for Review of the EPA dated 30/04/2013 was received by the Board from the Legal Aid Commission of Tasmania (LACT) on behalf of TKH. The Board also received an application for the appointment of a guardian and administrator from WC, Baptcare dated 06/03/2013.  A further application for the appointment of a guardian and administrator was received from TKH’s paternal uncle SM dated the 01/02/2013

2. A hearing was held in Launceston on the 21^st June 2013.  It was attended by TKH, Sasha Wong (Legal Aid Commission), MH (sister), WH (paternal Aunt), SM (maternal Uncle), WC (Baptcare), Patricia Clarke (Office of the Public Guardian), David Symons and Michelle Knowles (Tasmanian Public Trustee) and John Gilpin (CEO St Michaels). 

3. The information and reports that were available to the Board, in addition to the three Applications received were:

·     Health Care Professional Report dated 15/04/2013 and Report dated  26/03/2013, both from Dr Matthew Summers

·     Health Care Professional Report dated 22/02/2013 from Dr Andrew Jackson

·     Letter and emails from  Mr S Wong Legal Aid Commission of Tasmania

·     LIST search

·     CBA Bank statement

·     Enduring Power of Attorney

·     Probate of WDH with Will annexed.

·     Report by GAB Investigator dated 07/06/2013

·     Case Plan and Profile from Baptcare

·     Occupational Therapy Report from Rose Hennelly Occupational Therapist, Disability Assessment and Advisory Team, North

·     Letter from Gail O’Connor Coordinator of Able Australia, Lifestyle Choices North and notes of a meeting with Vivian Gatti 31/05/2012

·     Letter of Report Nicole Marquis Advocate, Advocacy Tasmania

·     National Police Check for SM

·     Emails and other correspondence from interested parties

4. It was evident from the documentary evidence before the Board, that at least initially in this process there had been conflict between a number of TKH's relatives over the decisions that were being made on TKHs's behalf and suggestions of various forms of abuse. Family members at the hearing indicated that those issues had now been resolved.

Review of the Enduring Power of Attorney

5. A review of an EPA is conducted pursuant to section 33 of the Powers of Attorney Act 2000. Section 33(2) of the Powers of Attorney Act 2000 affords the Board the following powers after a review of an EPA, the Board may:

(2)(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.
(3) An appointment of a person as administrator under subsection (2)(f) has the same effect as if it had been made under Part 7 of the Guardianship and Administration Act 1995.

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6. On the 15th December 2012 TKH executed an EPA registered number XXXX appointing MH as his attorney.  The EPA was witnessed by CBT and WH. WH subsequently took TKH to the LACT to obtain advice as to whether the EPA was valid or could be revoked.  The LACT organised an appointment for TKH to be reviewed by Dr Matthew Summers as to whether he had capacity to enter into an EPA.   A medical report from Dr Summers was obtained which stated that "I am of the opinion that TKH does not have, nor did ever have, sufficient mental capacity to execute an enduring power of attorney."  There was no evidence introduced at the hearing that challenged this opinion. 
7. The Board was satisfied that the power does not comply with section 30(2)(a) of the Powers of Attorney Act 2000 (the Act) in that TKH did not understand the nature and effect of the documentation. The Board declared the EPA invalid.

8. Under section 33(2)(c) of the Powers of Attorney Act 2000 the Board has the power to appoint an administrator. That section does not specify a test for such an appointment. However it would be appropriate to consider similar matters those which would apply under Part 7 of the Act. In any event the Board has also received two applications for the appointment of a guardian and administrator under the Act which the Board was now able to determine.

Administration and Guardianship

9. Before appointing an administrator, the Board must be satisfied that the proposed represented person has a disability which results in an inability to make  reasonable judgments about their estate, and that they are in need of an administrator (section 51 the Guardianship and Administration Act). If satisfied of each of these matters, the Board can appoint an administrator according to the criteria in section 54 of that Act.

10. Before appointing a guardian, the Board must be satisfied that TKH has a disability that renders him incapable of making reasonable judgments about his person and circumstances and is in need of a guardian (section 20 of the Act). If satisfied of these criteria, the Board must assess the eligibility of any proposed guardians according to criteria in section 21 of the Act.
11. The Board must also balance the principles in section 6 of the Act:

A function or power conferred, or duty imposed, by the Act is to be performed so that:

(a) the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted and
(b) the best interests of a person with a disability or in respect of whom an application is made under this Act are promoted; and
(c) the wishes of a person with a disability or in respect of whom an application is made under this Act are, if possible, carried into effect.

Disability

12. The Board had a Health Care Professional Report from Dr Andrew Jackson which reported that TKH has the following diagnoses: neurofibromatosis; hydrocephalus; simple partial epilepsy and left blindness with left optic nerve neurofibrom. A further Health Care Professional Report and Medical Report from Dr Mathew Summers, Consultant Neuropsychologist reported that TKH has a mild intellectual disability, learning disability, language disability and executive dysfunction.

13. Accordingly, the Board was satisfied that TKH is a person with a disability within the meaning in section 3(1) of the Act and for the purposes of sections 20 and 51 of the Act.

Incapacity

14. Dr Jackson reported that TKH could only appreciate the simple matters in relation to his property, both real and personal and was only capable of making reasonable decisions concerning his property if they were simple matters. Dr Jackson reported that TKH would be unable to budget and manage accounts and had limited ability in making major financial decisions.

15. Dr Jackson indicated that TKH could understand basic accommodation matters such as a “Group Home” concept, providing it was not too complex and to some extent was able to understand the nature and effect of medical treatment.

16. Dr Summers stated that TKH displays a clinically significant impairment to decision making. Dr Summers stated that TKH can express a preference, but his ability to formulate and act on a reasoned and informed decision is impaired by his ability to remember and comprehend the information relevant to the decision to be made.

17. There was no evidence introduced at the hearing that challenged the opinion that TKH lacked capacity.  Accordingly the Board was satisfied that TKH is incapable by reason of his disability of making reasonable judgements about his person and circumstances and his estate.

Need for an Administrator

18. The Board heard evidence that TKH has all his life been in need of assistance from someone to manage his finances.  This assistance was given by his father and then for a short time from his sister and then his aunt, WH.  TKH’s Disability Support pension used to go into a joint account with his father’s pension and from this household accounts would be paid and basic commodities purchased.

19. The Board received evidence that TKH is a beneficiary of the estate of the late WDH.  Probate indicates the Estate is worth approximately $312,134, though the Board notes there was reference at the hearing to superannuation of over $100,000 which has not been included in this figure. TKH and MH are entitled to half of the estate each.  The estate, which has not yet been distributed, includes a property at XXXX, shares and a motor vehicle.  TKH also inherited $17,000 from his maternal grandmother’s estate which is in a bank account managed by WH.

20. The Board heard that TKH’s share of the estate would need to be applied to the purchase or lease of suitable accommodation for him. SM and WH indicated that they were considering the purchase of a unit for TKH at St Michaels Association once TKH received funds.

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21. The Board heard evidence that WH had consulted a solicitor in respect of a potential Testators Family Maintenance Claim against the Estate of WDH.  WH gave little detail about the advice received and indicated that “she was a little bit concerned about it at the time” but since then TKH has expressed a wish that he does not want to pursue this matter.  WH indicated that she has not proceeded any further with this advice.

22. The Board received evidence, which was confirmed at the hearing, that MH had made unauthorised withdrawals from TKH’s bank accounts.  MH acknowledged she had made some withdrawals to pay for a laptop for her daughter and that TKH had agreed to provide these funds.  At the hearing MH stated that she had repaid the sum “she borrowed” from TKH in full and provided a handwritten letter setting out the amounts, but no independent verification of this was received.  The Board notes there were a number of other withdrawals from TKH’s account between January 2013 and the 1^st March 2013 which were highlighted in correspondence from Mr Wong of the LACT, which require further investigation by an administrator.

23. The Board was satisfied that TKH was in need of an administrator to ensure proper management of his finances, including payment of his accounts and the management of invested funds. The Board also believes an administrator was needed to ensure TKH gets all his entitlement under his late father’s estate and to consider whether a Testators Family Maintenance action should be commenced.   An administrator would also need to ensure all money taken from TKH’s account from MH had been repaid in full and if this had not occurred then recovery action would need to be considered. Finally an administrator would be required to manage payments in respect of accommodation for TKH, particularly when the house in which he is living is sold.

Need for a Guardian

24. Evidence was received from MH, that as executor of her father's estate, it was her intention to sell her late father's house. MH stated that after her father’s death it was initially her intention to keep the property as this was her father’s wishes and would that enable TKH to return to the family home for weekends and holidays. However MH indicated that the property was in a serious state of disrepair and that she no longer wanted to keep the property.  As executor of her father’s estate she is entitled to sell the property.

25. TKH is currently living in his late father's house with his Aunt WH.  WH's permanent place of residence is in Melbourne and she indicated that she will need to return to Melbourne once accommodation matters for TKH are resolved.  WH indicated that it has been a very busy and difficult time over the last 7 months. WH indicated that she had commenced searching for appropriate accommodation for TKH. WH indicated she had made a few calls and looked at a few accommodation options on the internet. She stated she had been to St Michaels Association on 3 occasions and 2 of these occasions were with TKH. WH stated “I really liked what I saw. I liked the programs they were offering. I believe this would be a good place for TKH.” It did not appear that any other accommodation options had been fully considered and that WH had determined that a unit at St Michaels would be the most appropriate accommodation for TKH.  WH and SM had invited Mr Gilpin, the CEO of St Michaels to the hearing and Mr Gilpin went through the type of accommodation that was available at St Michaels. Mr Gilpin indicated that St Michaels did not currently have an available placement for TKH.

26. The Board heard differing opinions as to the type of accommodation TKH had allegedly stated he wanted to live in and the type of accommodation that was suitable to meet TKH's needs.  Evidence was received by the Board that TKH had expressed a wish to live with other people. WC indicated that TKH had expressed that “I don’t want to live on my own” and this conversation which occurred on the 01/02/2013 was confirmed in her background notes provided to the Board.  Further WC had indicated that in discussion with WDH he had expressed a wish that TKH would be able to be placed in a group home. Family members present at the hearing disagreed with this and stated that TKH was a very private person and liked to be by himself at night. WC also questioned the suitability of some of the accommodation options at St Michaels Association and outlined her concerns. 

27. The Board also heard evidence that recent changes had been made to TKH’s day programs. TKH has 2 days with Able Australia, 1 day with Ability ( though this was previously 2 days) and 1 day with Wattle Group. At his aunt's initiative, TKH has also recently changed where he attends church and has joined the Choir of High Hopes. WH indicated that the day services are not helping TKH progress with his life, are boring and that TKH is fed up with what he is doing. She indicated her interest in the day services offered by St Michaels Association and believed these would be more appropriate for TKH.  Evidence was received from WC that TKH has friends at the existing day programs. This was verified by the discussion Nicole Marquis Advocacy Tasmania had with TKH on the 17^th June 2013. 

28. WC also indicated that the day programs were block funded and this funding was not transferable to other day services. This was disputed by Mr Gilpin. WC also raised the issue that there were no current vacancies in the day programs and further expressed her concern that TKH had not seen the day serviced offered by St Michaels Association. WC stated a “guardian would need knowledge of the disability system and how it all works because for clients and their families if is a nightmare, a bureaucratic nightmare.”

29. The Board received correspondence from Nicole Marquis outlining her discussions with TKH about where he would like to live in the future and what activities he would like to participate in, and currently participates in. TKH identified that he makes decisions based on what his family thinks he should do   TKH also stated that he has always done this even when his father was alive. Nicole stated she is unsure whether or not TKH would consider his own opinion matters.  Nicole also stated that TKH seemed unable to consider what alternatives there may be if one of the current future lifestyle decisions that are being considered did not work out. For example she asked TKH what he would do if he didn’t like it at St Michaels. His response was “I will like it.”  TKH also mentioned that he was going to participate in the day programs being offered at the St Michaels site rather than attend the day programs he is currently participating in. When asked why he was considering changing, TKH's response was “I will be attending day programs at St Michaels.”  TKH appeared to be very fond of a close friend that attends one of his day support program, and when asked whether or not he would miss spending time with her, his response was “no, I will be attending day programs at St Michaels.” The Board was concerned that TKH was not being given proper opportunity to state his wishes.

30. The Board concluded that there was a need for the appointment of a guardian limited to decisions concerning where TKH is to live either permanently or temporarily, and provision of appropriate day services for TKH. Both matters are matters that promote and protect TKH’s best interests.  In the interests of adopting the less restrictive alternative, the Board determined in this case to allow WH to continue to provide substitute consent to medical care and treatment decisions as “person responsible”.   Also the least restrictive alternative in this matter is to make only a 12 months order. This will allow a review in 12 months in the event that there is an ongoing need for a guardian and, if so, will also enable a family member the opportunity to seek appointment in the place of the Public Guardian if the circumstances and decisions to be made at that time are different.

Appropriateness of appointee – Administration

31. In respect of administration the Board was presented with two alternatives: appointment of the applicant SM or the Tasmanian Public Trustee. Section 54(1) of the Act provides that the Board may appoint as an administrator of the estate of a proposed represented person, the Tasmanian Public Trustee or any other person who consents to act as administrator. Section 54 sets out what matters a Board must take into account when considering the appointment of a private administrator. The Board observed the requirements in section 54 of the Act.

32. The Board was concerned as to SM's ability to make decisions in TKH's best interests that might be contrary to MH’s wishes.  This is a common and understandable pitfall for family members taking on this role. It would seem that it was with this in mind and because of  the family conflict that had previously existed  that the Applicant WC expressed a clear preference that a third party be appointed in both the administrator and guardian roles.

33. The Public Trustee has a statutory advantage over private individuals seeking appointment as administrator. This is discussed in the following decisions of the Board: BND (Review of Administration) [2012] TASGAB 3 and HFO (Review of Administration) [2012] TASGAB 6. The Board adopts that reasoning in this case. Accordingly the Board appoints the Public Trustee as administrator for three years.

Appropriateness of appointee – Guardianship

34. In respect of guardianship the Board was presented with two alternatives: appointment of WH or the Public Guardian. Section 21 of the Act provides for the eligibility of persons as guardians. The Board observed the requirements in Section 21 of the Act.

35. The Board acknowledges that WH has TKH’s best interests at heart and it is evident that she is clearly concerned for his well- being and has undertaken a significant caring role over a long period of time. The Board is concerned however that WH, with the best of intentions, will make decisions that she believes are best for TKH rather than what is in fact TKH's best interests.  While at the hearing TKH said he did not enjoy some of the day activities he had been attending because they were mostly attended by females and he wanted some male company, the Board gives significant weight to the evidence from TKH's Advocate and believes it is important to independently ascertain what TKH’s wishes in respect of accommodation and day services are rather than what TKH believes his family want to hear.

36. The Board notes that if a person is appointed as a guardian it is incumbent on them to act in the best interests of the person.  Section 28 of the Act provides that a guardian acts in the best interests of a person under guardianship if the guardian acts as far as possible:

(a) in consultation with that person, taking into account, as far as possible, his or her wishes; and

(b) as an advocate for that person; and

(c) in such a way as to encourage that person to participate as much as possible in the life of the community; and
(d) in such a way as to encourage and assist that person to become capable of caring for himself or herself and of making reasonable judgements relating to his or her person; and

(e) in such a way as to protect that person from neglect, abuse or exploitation.

37. Ms Patricia Clarke, on behalf of the Public Guardian indicated that she did not believe the Public Guardian needed to be appointed and that she would not do anything different to what was being done by the family.  However because it appears the family have only actively considered one accommodation option, because there was conflicting evidence at the hearing as to TKH's wishes and because of  the concerns expressed generally by WC about the suitability of some of the accommodation at St Michaels Association the Board considers it appropriate to appoint a guardian outside of the family. 

38. The Board believes TKH’s interest is best served by the appointment of the independent Public Guardian.  The Public Guardian’s appointment is made with the expectation that they will make objective and considered decisions regarding both where TKH should live and the provision of day services for TKH.  The Board's expectation is that the Public Guardian will consider all appropriate accommodation and day service options for TKH, not just the option of St Michaels Association, their availability and funding requirements.  It is important that TKH be consulted to find out what his independent wishes are, and consideration given to what is in TKHs' best interests and what best meets his individual care needs. That does not prevent family involvement in the decision making but it ensures that TKH’s best interests are objectively determined.

39. Further the Board believes the Public Guardian has the benefit of greater knowledge of disability funding requirements, local disability services and the disability accommodation providers, than family members.

40. The Board also took into account the history of conflict or disagreement between family members and the differing views from family members and service providers as to where TKH should live and what day services he should attend. The Board believes the appointment of an independent guardian is likely to avoid any further conflict between family members and/or family members and service providers.

THE BOARD ORDERS

1. That The Public Trustee be appointed as administrator of the estate of the represented person.

2. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

3. That the administrator is to report to the Board on receipt of the distribution from the estate of WDH to the represented person detailing how the funds will be applied or invested.

4. That the Public Guardian be appointed as guardian of the represented person

5. That the powers and duties of the guardian are limited to decisions concerning:

   i.where the represented person is to live either permanently or temporarily, and

   ii.provision of appropriate day services for represented person.

6. That the order remains in effect until 20 June 2016.

Rowena Holder  Sue Hill   Ken Stanton

23/07/2013