TZD (Guardianship)

[2010] TASGAB 5

GUARDIANSHIP AND ADMINISTRATION BOARD
HOBART      

TZD:

• Application for guardianship by MS

• Application for review of administration by KD

• Review of enduring power of attorney of Board’s own motion

Neutral citation: TZD (Guardianship) [2010] TASGAB5

REASONS FOR DECISION

Anita Smith (President)
Catherine Gavan (Member)
Andrea Schiwy (Member)

Hearing - 15 April 2010

Review of enduring power of attorney – power executed while administration order in effect – donor’s lack of capacity
Review of administration order – change in family dynamics since appointment of administrator – concern about administrator’s understanding of the role
Guardianship – need for review of accommodation facilities
Costs – former administrator had sought legal representation in best interests of the represented person

Powers of Attorney Act 2000 s 30(2), 33(1)
Guardianship and Administration Act 1995 s 20, 21, 54, 67, 80

1. On 13 August 2009 the Board appointed MS as administrator for her mother TZD (‘the represented person’) according to certain conditions. 

2. On 1 March 2010, the Board received an application from MS seeking appointment as the represented person’s guardian.  The applicant stated that the application was made at the represented person’s request because she was concerned that ‘another party’ would convince her to ‘sign things.’ 

3. On 18 February 2010, the Board received an application from KD to review the administration order.  That application expressed concern about the represented person’s placement at the nursing home and other aspects of financial management by the administrator. 

4. As a result of KD’s application, staff of the Board conducted a search of the registry of enduring powers of attorney and found that the administrator had been appointed under registered instrument number PAxxxxx as attorney for the represented person on 22 February 2010. This was brought to the attention of the President of the Board who initiated an application to review that enduring power of attorney pursuant to section 33(1) of the Powers of Attorney Act 2000 of the Board’s own motion specifically to review whether the donor of the power had the requisite mental capacity to make a valid enduring power of attorney.

5. By letter dated 9 March 2010, the applicants, the represented person and the represented person’s other daughter, BD, were sent copies of the applications and invited to comment upon the materials in the applications.  All parties except the represented person provided responses in writing to the Board prior to the hearing. 

The hearing:

1. The hearing was convened on 15 April 2010.  In attendance was:

   TZD

   MS (applicant for guardianship)

   KD (applicant for review of administration)

   BD (KD’s wife)

   Alison Wells (solicitor for MS)

   Valerie Hannon (GAB officer)

   MS2 (MS’ daughter)

   Justin Clifford (Public Trustee)

   Mandy (an interpreter)

   Dr Conroy, BD and CS were also given notice but did not attend.

2. An interpreter was retained to interpret [a particular] dialect for the represented person during the hearing.  However when interpreting commenced in this language, it was apparent that the represented person did not understand that language and apparently speaks a different type of that dialect.  The interpreter then interpreted in [a broader language group] which she appeared to comprehend better but it was also clear that the represented person’s disability, the concepts discussed, the speed of the conversation and the level of tension between the parties all contributed to the represented person having very little understanding of the events whether interpreted or not.  This was complicated by the represented person’s offspring using alternate languages from time to time in the hearing and attempting to assist in interpretation.  In addition, at times the represented person appeared to understand some English words and respond with some English words. 

3. The Board has encountered this difficulty before when a person with dementia is offered an interpreting service.  Therefore the Board elected to change the interpreting style to one where key concepts were summarised from time to time during the hearing for the represented person’s benefit, but the entire conversation was not interpreted to save the represented person from becoming overwhelmed by the conflict and the concepts discussed.  The Board acknowledges that this is less than ideal, however it appeared to be the only workable solution to a difficult language problem in a difficult hearing. 

4. Because the applications related to similar facts and the same parties, the Board heard all 3 applications consecutively, commencing with the Board’s application to review the enduring power of attorney, followed by KD’s application to review the administration order and finally the guardianship application. 

5. KD sought information relating to previous applications and particularly wanted copies of financial information supplied to the Board. Most of the correspondence between parties had been exchanged between the two applicants and KD had also been supplied with medical information that he had requested.  The administrator, through counsel, objected to KD being presented with the financial documents stating that they are the personal financial records of the represented person.  The Board decided that KD was capable of presenting his case without access to the financial records he sought or the previous application (where he consented to his sister’s appointment as administrator). 

The application to review the enduring power of attorney:

1. Neither BD, KD, nor MS supported the continuation of the enduring power of attorney. When asked, the represented person had no recollection of having signed it and did not appear to understand what it was. Prior medical reports established that the represented person lacked capacity to make reasonable judgments at the time that the administration order was made on 13 August 2009 and there was no medical evidence to suggest that she had made any recovery of capacity since that time. Therefore the Board declared the power to be invalid because it did not comply with section 30(2)(a) of the Power of Attorney Act 2000 in that the donor did not understand the nature and effect of that instrument at the time of execution.  Such order appeared to be consistent with the views of all of the parties.

   THE BOARD DECLARES that pursuant to s33(2)(e)(i) of the Act the power is invalid

The review of the administration order:

1. KD and BD submitted that the represented person has the capacity to make reasonable financial judgments.  However, they were not able to produce any supporting medical opinion to that effect.  The Board was satisfied on the basis of reports by Dr Skelton (22 March 2010 and 1 April 2010) and Dr Conroy (5 July 2009) that the represented person is a person with a disability and is incapable by reason of that disability of making reasonable financial judgments.  The Board was also satisfied that the represented person, who has a significant estate comprised of real estate and investments, is in need of an administrator.

2. Prior to the hearing KD made extensive written submissions to the Board alleging mismanagement by the administrator.  The administrator responded to those allegations supplying the Board with extensive copies of accounts and transactions. However it was clear (and it was consistent with the Board’s expectations at the time of the first hearing) that the administrator had not made any significant changes to the represented person’s estate since her appointment.  The allegations of mismanagement were not made out to any extent, because the administrator provided proof that all of the significant assets in the estate were largely untouched.  KD might argue that with access to financial details, he might have been able to establish his case more fully.  However the Board explained to the parties that having read the papers prior to the hearing the allegations of mismanagement were secondary to the main issues of concern. 

3. The main issues of concern to the Board were:

   (i)Could the Board have confidence in MS’ skill and understanding of her role as an administrator when she had proceeded to obtain an invalid enduring power of attorney after she had been validly appointed by the Board?

   (ii)Did the conflict between the represented person’s adult children about the management of finances affect the represented person’s best interests to the extent that no family member would be suitable for appointment?

4. In addressing the issues of concern to the Board, the administrator explained that it was as a result of pressure from KD that she sought enduring power of attorney as she believed that it might provide her with some level of comfort from his attempts to undermine her management of the estate and her decisions to place the represented person at the Nursing Home.  It is clear that, whether or not he intended this result, MS feels significantly bullied and undermined by KD’s actions. 

5. At times an administrator will need to stand up to scrutiny and stand up to challenges to their decision making.  At the time that MS was appointed, she had the acquiescence of her siblings for that appointment.  Indeed the Board adjourned its decision in the matter so that her siblings might be consulted about that appointment and both acceded to the proposed appointment.  However, that situation had changed with the allegations by KD.  It was clear that MS was significantly distressed by those allegations. 

6. MS’ initial response to the challenges to her authority was to seek the additional (but invalid) authority of an enduring power of attorney.  The fact that she was so easily undermined by KD’s efforts showed to the Board that she was no longer suitable as an administrator because she lacked the ability to withstand scrutiny and opposition from another family member. 

7. The Board was not satisfied that transfer of administration from MS to KD (which he sought) would be in the best interests of the represented person because it was unlikely to resolve the conflict between the two siblings and her estate would remain the source of great tension in her family.  Neither MS nor KD could offer the Board examples of any strategies that they might employ to reduce the level of conflict between themselves.  The represented person’s wishes were quite clear and she repeated them on a number of occasions in the hearing.  She wanted MS to continue to provide her with support.  While she stated that KD was also a good person, she still preferred MS to conduct her affairs. 

8. KD asked the Board to consider the appointment of the represented person’s longstanding accountant, Mr Bernard Leung, as the administrator for the estate. The Board was not able to give consideration to that suggestion because it did not have evidence of his consent to appointment as required pursuant to section 54(1)(d) of the Act, neither did he indicate whether Mr Leung’s appointment might be voluntary or if he would be seeking remuneration pursuant to section 55. If so, the Board would need more evidence to address the question of whether Mr Leung was a person who “who carries on a business of, or including, the administration of estates”. MS stated that such an appointment would be contrary to the represented person’s wishes and her views about Mr Leung in any event.

9. The Board determined that it was appropriate to substitute the appointment of the Public Trustee for the appointment of MS as administrator.  While this is not in accordance with her wishes, it is in the represented person’s best interests as the Public Trustee is in a better position to withstand challenges to their authority and allegations of mismanagement.  The Public Trustee is not vulnerable to being ‘flustered’ by internal family conflict and will provide an independent assessment for financial decision making.  MS can still continue to provide day to day support such as purchasing necessary items for the represented person and therefore reflect the represented person’s wishes. 

10. The substitution of administrator does not mean that KD’s allegations of mismanagement were proven.  The Board had no evidence, other than mere assertion, that there had been any mismanagement at all.  The substitution of appointment merely reflects the level of conflict that had arisen between the represented person’s adult children following the initial appointment.

    THE BOARD ORDERS

    1.    That the administration order continue in force.

    2.    That The Public Trustee be appointed as the represented person’s administrator in place of MS.

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

    4.    That the order remains in effect to 14 April 2013.

The application for guardianship:

1. As with the administration application, the application for guardianship was supported by the reports of Dr Skelton and Dr Conroy with regard to the represented person’s disability and incapacity to make reasonable personal judgments.  The issue of a need for a guardian was restricted to the issue of where the represented person shall live.  Although MS, KD and the represented person all wish that the represented person could move from her present placement at the Nursing Home, there was significant disagreement between KD and MS about which home would be more appropriate.

2. MS alleged, although KD disputed, that KD in his visits to his mother deliberately makes statements to her that motivate her to leave the Nursing Home and return to her house living independently.  MS confirmed that at times her mother wishes to return to her home, but the report by Dr Skelton confirmed that this is impossible and nursing home care is the only viable option for the represented person.   MS believed that KD might undermine any placement that she arranges.  MS believes that it is important that a new placement should be in the Hobart area where the represented person is known and where she has familiar surroundings and is also close to MS who provides a significant level of personal support.  It was of particular importance to MS that the next placement has private bathroom space because of the represented person’s continence difficulties, where the current Nursing Home has shared bathrooms.

3. KD presented a different view, to the effect that he wanted only the best care for his mother that money could buy and this he saw as another Nursing Home in the Hobart region. 

4. MS has provided one to one personal care to her mother for many years. Her mother is clearly reliant upon her for a significant level of support which she considers it is her duty and privilege to provide.  KD appears to have had some level of estrangement from his mother in recent years and it is evident that his mother is not as dependent upon him or their sister BD as she is upon MS.

5. The represented person, MS and KD had different views about where the represented person should live, but all three agreed that the current Nursing Home is no longer appropriate for her.   The Board believed that MS’ criteria in selecting a nursing home were sound in that they showed respect for the represented person’s dignity and personhood in a way that is not reflected in simply selecting the most expensive option available. 

6. Given that the siblings again could not work together about this decision, it was necessary to imbue one or the other with authority to make a binding decision on the represented person’s behalf. The Board was impressed with MS’ long term commitment to her mother’s welfare and her reasoning in discerning between prospective nursing home options. The Board was satisfied that MS met the tests in section 21 of the Act for eligibility for appointment as a guardian. Such appointment also clearly met with the represented person’s stated wishes.

THE BOARD ORDERS

1.   That MS be appointed as guardian of the represented person.

2.   That the powers and duties of the guardian are limited to decision concerning where the represented person is to live either permanently or temporarily.

3.   That the order remains in effect until 14 April 2013.

Costs:

1. MS had consulted a solicitor in preparation for the hearing. In doing so she was seeking appointment as a guardian and confirmation of her appointment as an administrator. The Board was satisfied that she sought legal representation only to advance her mother’s best interests and it was appropriate to acknowledge this expense as an expense on the represented person’s behalf rather than a personal expense of MS. Accordingly, the Board thought it appropriate to award costs pursuant to section 80 against the represented person’s estate. In doing so the Board dismissed an application by MS’ solicitor to award costs against KD. As the Board has noted in previous decisions:

   “These proceedings do not take on the character of ‘public interest’ or ‘private (competing) interest’ proceedings, but they primarily involve the interests of an absent and incapacitated party, not the particular interests of any person who attended the hearing.” 

   THE BOARD ORDERS that the estate of the represented person shall pay the costs of MS. Such costs shall be calculated on a party and party basis at 80% of the scale of fees presently allowed to practitioners and counsel under Part 1 of Schedule 1 of the Supreme Court Rules 2000. If costs have not been agreed within 28 days of delivery, the question of the quantum of costs may be referred to the Board for assessment

Anita Smith

PRESIDENT