ZNU (Application for Review of Enduring Power of Attorney and Guardianship and Administration)
[2019] TASGAB 33
•19 November, 2019
FILE: | ZNU (Application for Review of Enduring Power of Attorney and Guardianship and Administration) [2019] TASGAB 33 |
HEARING DATE(S): | 19 November, 2019 |
DATE OF ORDERS: | 19 November, 2019 |
DATE OF STATEMENT OF REASONS: | 21 November, 2019 |
BOARD: | Ms V Jones, Member Mr S Roberts, Member Mr R Lester, Member |
APPLICATION: | Application for Review of Enduring Power of Attorney Application for Administration Application for Guardianship |
CATCHWORDS: | Board’s own motion application to review enduring power of attorney – Evidence of disability – At time of execution of instrument donor understood nature and effect of it – Application to review EPA dismissed – Consequent applications for administration and guardianship dismissed. |
LEGISLATION CITED: | Powers of Attorney Act 2000 (Tas), ss 30, 33, 53 Guardianship and Administration Act 1995 (Tas), ss 20, 51 |
PUBLICATION RESTRICTION: | The decision has been anonymised for the purpose of publication |
Statement of Reasons
Background
On 19 November 2019 the Guardianship and Administration Board (‘the Board’) conducted a hearing for the Review of Enduring Power of Attorney PAXXXXX (‘the EPA’), in relation to ZNU. The hearing was of the Board’s own motion.
The Board found that at the time of making the EPA, ZNU had capacity to understand the nature and effect of the instrument creating the power, and dismissed the application to review.
The Board also heard Applications for Administration and Guardianship in relation to ZNU. Those applications were made by Mrs BM (‘the Applicant’).
Consequent upon the making of the Order dismissing the Application to Review the EPA, the Applications for Administration and Guardianship were dismissed.
The Applicant has requested a statement of reasons in relation to the Board’s decisions.
Hearing
The Board heard the Applications for Review of the EPA, Administration and Guardianship on 19 November 2019.
In attendance at the hearing were;
a.ZNU, the donor and proposed represented person (‘PRP’);
b.Ms Claire White, solicitor for the donor and PRP;
c.Mr OL, attorney and son of the PRP;
d.Mr TM, son of the PRP;
e.Mrs BM, the Applicant;
f.Mrs DQ, daughter of the PRP;
g.Ms EF, grand-daughter of the PRP;
h.Ms Kylie Hillier, Deputy Guardian, Office of the Public Guardian; and
i.Mrs Emma Curbishley, from the Public Trustee (Tas).
The Board had before it the following documents:
a.Board’s Own Motion Application to Review the EPA dated 4 November 2019;
b.Health Care Professional Report (‘HCPR’) of Dr M Kulinski dated 17 September 2019;
c.Medical Certificate of Dr M Kulinski dated 17 October 2019;
d.Medical Certificate of Dr M Kulinski dated 12 November 2019;
e.The EPA executed by ZNU dated 20 September 2019;
f.Submission of Mrs DQ undated;
g.Submission of Mrs BM dated 30 October 2019;
h.Statutory declaration of Ms SKC dated 15 November 2019;
i.Application for Guardianship and Administration of Mrs BM dated 16 September 2019;
j.Aged Care Assessment Notes of Ms Lorraine Taylor dated 16 April 2015;
k.The List Property Report dated 20 September 2019;
l.Submission of Mrs BM dated 10 October 2019;
m.Interim Restraint Orders dated 2 October 2019 and 7 October 2019;
n.Adjournment Orders of the Board dated 18 October 2019;
o.Letter from Ms SKC to Mrs DQ dated 19 September 2019;
p.Letter from Ms SKC to ZNU dated 14 October 2019;
q.Applications for restraint orders against Mrs BM, and Mrs DQ;
r.Letter from Ms SKC to ZNU, Mr TM and Mr OL dated 24 October 2019;
s.Letter from Ms SKC to Ms DH dated 24 October 2019;
t.Emails from Mr TM to the Board dated 6 November 2019;
u.Email from Ms DM to the Board dated 6 November 2019;
v.Submission of Mrs DQ dated 25 October 2019;
w.Letter of Mr MF and Mrs BH undated;
x.Letter of Mr TM undated;
y.Letter of Ms BK dated 6 November 2019;
z.Letter of Ms NT dated 7 November 2019;
aa.Letter of Ms OC dated 25 September 2019;
bb.Statement of Assets of Mrs BM; and
cc.Letter of Ms EF.
Application for Review of the EPA
Legislation
Pursuant to section 30(1) of the Powers of Attorney Act 2000 (‘the POA Act’), a power of attorney is an enduring power of attorney for the purposes of the POA Act if it is created –
(a) by deed containing words indicating an intention that the authority conferred is to be exercisable notwithstanding the donor's subsequent mental incapacity or in the event of the donor's subsequent mental incapacity; or
(b) by an instrument in accordance with form 3 , conferring on the attorney particular powers specified in it; or
(c) by an instrument in accordance with form 4 , conferring on the attorney powers to do all things that the donor may lawfully authorise an attorney to do.
Pursuant to section 30(2) of the POA Act, a deed or instrument is not effective to create an enduring power of attorney unless –
(a) the donor understands the nature and effect of the deed or instrument; and
(b) . . . . . . . .
(c) the deed or instrument has endorsed on it, or annexed to it, a statement of acceptance in accordance with form 3 or 4 , or in a form to the same effect, executed by the person appointed to be the attorney.
Evidence
The evidence before the Board was that the instrument was in accordance with the appropriate form, and had a statement of acceptance, in accordance with section 30(1) and section 30(2)(c) of the POA Act.
The issue at the hearing was whether ZNU understood the nature and effect of the instrument at the time of execution (section 30(2)(a) of the POA Act).
Evidence before the Board included two HCPR’s and a Medical Certificate of Dr M Kulinski (17 September 2019, 17 October 2019 and 12 November 2019). In these documents Dr Kulinski stated ZNU had a mild/moderate cognitive impairment.
It was accepted by all members of ZNU’s family that were present at the hearing, except Mr TM, that ZNU did have a cognitive impairment. Mr TM did not produce any medical evidence.
The Board was satisfied ZNU had a disability.
In issue was the extent to which ZNU’s mild/moderate cognitive impairment impacted on her capacity to understand the nature and effect of the instrument at the time of execution.
17.Evidence of ZNU’s capacity came from a number of sources including the reports and certificate of Dr Kulinski referred to above, statutory declaration of Ms SKC, and family members of ZNU that were present.
It was clear there was division between family members of ZNU - between her sons on the one hand and her daughter and grand-daughters on the other. Mr TM and Mr OL stated they believed ZNU had capacity when she executed the instrument, and her daughter and grand-daughters stated they believed she did not.
Given the conflicting views of family members, evidence of those witnesses who had dealt with ZNU, independently of her family, was given greater weight in determining the issue of ZNU’s capacity.
The HCPR of Dr Kulinski dated 17 September 2019 stated that ZNU had a moderate cognitive impairment which had been evident for months and was deteriorating and fluctuating. Dr Kulinski noted in that report that ZNU was not able to make reasonable decisions in relation to her real or personal property, but able to make reasonable decisions about personal decisions.
In the Medical Certificate of 10 October 2019 Dr Kulinski noted ZNU had a mild/moderate cognitive impairment but did not comment on her capacity to make reasonable decisions about her real or personal property, nor about personal decisions.
In the further HCPR prepared to address past capacity, or capacity as at the date of the execution of the EPA, Dr Kulinski confirmed a moderate cognitive impairment. That report was dated 12 November 2019, and it was ascertained at the hearing it was prepared following an appointment ZNU had with Dr Kulinski on 11 November 2019. In that HCPR where the question ‘[i]n your opinion did the donor have the capacity to make reasonable decisions or judgments in relation to his or her property at the date of execution?’ was asked, Dr Kulinski ticked the ‘yes’ box.
Further, in that HCPR Dr Kulinski stated ‘she has good understanding of her belonging and property’, and in answer to the question ‘[t]o what extent is the person capable of making reasonable decisions in relation to his or her real or personal property?’ answered ‘[y]es she can’.
Further evidence of ZNU’s capacity before the Board was a statutory declaration of Ms SKC.
Ms SKC acts on behalf of ZNU in relation to a number of legal matters. Ms SKC stated she has spoken to ZNU ‘independently from her family and through the course of our interactions have no concerns in relation to ZNU’s capacity’.
Ms SKC noted that aside from some hearing difficulties, on each occasion she has met with ZNU she has clearly articulated her concerns and wishes.
In relation to the Power of Attorney Ms SKC stated:
‘I explained in detail to ZNU the implications of a Power of Attorney. ZNU clearly understood that her Attorney would step into her legal shoes and would be able to sign documents on her behalf, sell property, withdraw money and the like. ZNU was accepting and trusting of her son in that regard’.
That ZNU was satisfied with the management of her finances and personal affairs by her son who is living with her – was also an opinion ZNU expressed to Dr Kulinksi on 11 November 2019. It is recorded in his HCPR of 12 November 2019.
The Board was satisfied that ZNU understood the nature and effect of the EPA at the time of execution.
The application to review the EPA was therefore dismissed.
Application for Administration and Guardianship
Legislation
When the Board assesses an Application for the appointment of a guardian it needs to be satisfied of the matters in section 20 of the Guardianship and Administration Act 1995 (‘the Act’). They are, that the PRP (who is ZNU):
(a) is a person with a disability, and
(b) is unable by reason of the disability to make reasonable judgements in respect of all or any matters relating to his or her person or circumstances; and
(c) is in need of a guardian.
The same considerations of disability, inability by reason of the disability to make reasonable judgements, and need, apply when the Board assesses an Application for the appointment of an administrator, but the inability is to make reasonable judgments in respect of matters relating to all or any part of the PRP’s estate (section 51(1)(b) of the Act).
Evidence
As noted and discussed above the Board had evidence before it including two HCPRs and Medical Certificate of Dr Kulinski, and statutory declaration of Ms SKC. The evidence will not be repeated.
Consequent upon the finding that ZNU understood the nature and effect of the instrument creating the EPA, the EPA was valid.
Section 53(1) of the POA Act provides:
Where a proposed represented person has granted an enduring power of attorney under section 11A of the Powers of Attorney Act 1934 or under section 30 of the Powers of Attorney Act 2000, it is not competent for the Board to make an administration order in respect of his or her estate so long as the enduring power of attorney is in force unless the order is made under Part 8.
The Board therefore dismissed the Application for Administration.
In relation to the Application for Guardianship, there was no evidence before the Board that ZNU was unable to make reasonable decisions about personal matters.
In the HCPR of Dr Kulinski dated 17 September 2019 in response to the question ‘[c]an the person make reasonable decisions about where they should live – permanently or temporarily’ he answered ‘[y]es’. In response to the question ‘[c]an the person understand the nature and effect of medical treatment’, he answered ‘yes’. In response to the question ‘Can the person make reasonable decisions about other matters e.g. relationships, visits by friends or relatives, employment’, he answered ‘yes’.
The Board was satisfied ZNU could make reasonable decisions relating to her person or circumstances.
Decision
The Board was satisfied that ZNU had capacity to make reasonable decisions in relation to her property at the date of execution, and therefore understood the nature and effect of the document creating the EPA.
Given that the EPA is valid, the Application for Administration was dismissed.
The Board was not satisfied that ZNU was unable by reason of disability to make reasonable judgements in relation to matters relating to her person or circumstances.
Accordingly, the Board Orders that:
(a) Pursuant to section 33 of the Powers of Attorney Act 2000 the
Application for Review of an Enduring Power of Attorney is dismissed;
(b) The Application for Administration is dismissed; and
(c) The Application for Guardianship is dismissed.
0
0
2