Chapter Thirteen ...A Tough Call


In February 1999 Iris asked her husband where he would like to be for the millennium. She was not at all surprised when he said 'Standing in Cathedral Square Christchurch'. In twenty years he was one of the few people she knew who did not relish the idea of living in Australia. He was a New Zealander and Christchurch was still his mental home. Iris would continue to tell him that he was never better off. It was a losing battle.

On March 19th Iris presented him with tickets to Christchurch and apart from from fulfilling this wish he had not seen his family for some years. At the time there was no reason why he should not go. Two days later Tom and Bruce renewed their broken friendship.

Toward the middle of July Bruce had mentioned that he was going overseas to see his family and Tom became a little anxious.

'How long are you going to be away', Tom asked

'About five weeks Tom'.

At the time nothing was said but Bruce had not given thought to Tom's situation. He decided to have a talk with Dr Ian Clark about where to place Tom while he was away. Under normal conditions that would not have been a problem, but over the Christmas New Year period, staffing was at a premium and Meals on Wheels did not operate. The Blue Care people spent in the vicinity of nine hours a week in his presence and that was never going to fill the requirements. Ian Clark gave Bruce a brochure and said that he didn't have much call for that information, but he urged him to give them a call. Dr Clark and Bruce Whiteside went back seventeen years and this was not a case of fobbing off, but he simply did not have any great knowledge of accommodation for the aged.

The phone call to the 'home' only complicated matters. Bruce, who knew absolutely nothing about aged care, soon found out that it was not simply a matter of Tom being able to pay his way, but as to whether he qualified for respite care, which was another hand-grenade tossed at him. He was told to contact ACAP and given a phone number. Who and what ACAP  was remained a mystery. He has no idea as to whom they were and what their role was.

When he contacted the phone number given to him, he was informed the name was ACAT or Aged Care Assessment Team, not ACAP as he had understood due to a mishearing. When he explained what he had rung for there seemed to be some confusion. Such request unbeknown to him usually came through either general practitioner or caring agencies, not ordinary members of the public. Both parties in truth were not terribly enlightened to the specific situation and so he was asked to contact a Monica Barrett. When he did Barrett explained that Tom would have to be 'assessed' to see if he qualified for the sort of accommodation he was looking for. Barrett undertook to send out a team to assess Tom, in a 'week or two'. To Bruce this was terribly open-ended and so he then set out to place someone in his own home who could keep an eye on Tom and cook his meals. The timing could not have been worse. Many who he approached would have gladly have done the job, except like himself had made other plans, this being the millennium year.

In the meantime Tom was counting down the days, which at first Bruce had not noticed. Even Carole was surprised when Tom told her that Bruce was 'going away'. Carole had left either Iris or Bruce to contact her if Tom took ill during the night. Her phone number lay on their dresser, just in case. When that need arose as it did in late October, she said that Tom would be Ok and that she would call in the morning. The upshot of that did not endear Carole to him and he subsequently spent the night at Tom's. At nine the next morning Carole cruised in and told Bruce straight. " you won't do Tom an ounce of good staying with him like that. One of these mornings you'll come in and he will have died. That is the way of it'. This soulless attitude seemed callous particularly as it was in front of the old man. There were many times that Tom called Bruce at all hours of the night. There were times when neighbours would complain to him about Tom knocking on their doors and said he was looking for Sheila. When this happened and it certainly did, they would report the matter to Carole. This in turn upset Tom because there had been a determined push to 'get Tom into nursing home. Tom often asked Bruce 'not to tell the nurses', as Tom used to call them. Whilst he never made a point of doing so, if the matter was discussed about Tom's nocturnal roaming, he did confirm that which happened. There was a growing anxiety about Tom and those closest to him noticed the morose cloud that hung over him. The truth was although it was not realised at the time, was that he was growing more anxious as the days wore on. He had had an argument in front of Bruce with Carole when she pleaded, with him to consider going into a nursing home. 'I can't force him to go Bruce'.

That night Iris had taken his meal over and was worried when she returned.

'Tom's going on about burying Shelia's ashes. I didn't understand what he was saying. You had better go over and talk to him'.

What happened in the minutes ahead set in motion a terrible traumatic cycle for the man whose only interest in Tom was to 'look after a man who had gone to war, fought in the Battle of Britain and in doing so preserved the peace and harmony that we had been bequeathed by him and his kind'. There was no thought of what's in it for me as promoted by Andrew Smyth, Tom's then solicitor, but only compassion, misplaced or not for an old veteran who was being left to die.

Bruce had heard the story before. It was not new to him, but unlike the others who ignored these outbursts, he knew what the background of these fantasies were.

Walking in to the dining area Bruce saw that Tom was in what might be called a trance. If he saw Bruce he did not recognise him but carried on as he had done with Iris.

'They buried her'. he said

'Who Tom'.

'Sheila'. These young couple were burying their baby and I asked if they would bury Sheila's ashes with her'.

Bruce stood there allowing Tom room to go on without interruption.

Then as he had witnessed on other occasions Tom snapped out of his stupor. He was wringing wet.

Although Bruce had been in Tom's home many times he had never seen behind the door that had been their bedroom. Few knew and Iris was one, that Tom had erected a shrine in memory of his late wife. Knowing this he took a gamble.

'Tom, if I were to show you that this did not happen would you believe me'.

'I trust you, you know that'.

'O.K. Now I want you to take your cap off (it was seldom off his head) and show a sense of reverence. What I am about to show you is something I have no knowledge of, but I understand that what I have been told is true. I want you to take you into that room.' pointing as he spoke

Tom followed him in.

'I know its here, I built it myself.

What Bruce was counting on was finding an oblong blue foil covered box. It sat there on the dresser beside a photo and unlit candles.

"Tom there are Sheila's ashes'.

With that Tom grabbed the box and tipped it on the bed. Bruce nearly took a fit, never having seen ashes before and not knowing that they would not spill out. He was horrified and admonished Tom.

'There not ashes' he yelled 'that is all my jewellery'.

Picking the box up he noted on the end of the plastic container, the name of Tweed Heads Funeral Directors.

He showed Tom.

'I am sorry, you were right'.

Closing the door, Tom turned 'What else aren't I being told?' Everybody knows my own business better than I do. I've had enough.'

At first Bruce's immediate reaction to Tom's outburst was that he had over-stepped the mark, but earlier in the day he had been given some urgent overdue accounts that had gone unpaid including the Council rates. He had been upset because he never allowed the rates to go overdue. Tom looked at his mortified friend and placed his extended arms on his shoulders. 'Bruce will you look after my affairs?'

'Oh Tom why?

With that he went into his bedroom.

The trouble as Bruce saw it, was that everybody and nobody was looking after his accounts; there were ad hoc trips to the bank and occasionally shops. The accounts would often be misplaced and either go unnoticed or simply left unpaid. Yet both the Blue Care people and his own solicitor claimed to be 'looking after his best interests'. This was nonsense but the claims looked good on paper, particularly legal documents to the Law Society.

Tom stormed into the dining area and demanded that Bruce read what was in his hands. He threw them on the table. "Read them', he said in a state of anger.

'Tom I can't and you know that. These are Wills; they are nothing to do with me.

"Read them', he yelled as he gripped the chair as he stood behind it

Bruce stood there, not knowing how to extricate himself from the tenuous situation. "Read them or I'll hit you with this chair'. The situation might have been laughable had it not been serious. Whilst Tom was capable of attempting to do just that, Bruce knew that something was driving him to this extreme.

'O.K., but I do so under duress.

What he read and he only read one of the two wills shocked him. It was not the names of the beneficiaries that alerted his attention but the number of charities on the bottom of the Will.

"Tom, I thought that you refused to give money to the charities'.

'I  did. Here let me look'. He grabbed it and studied it for a moment. 'The bastard he included them after all'.

For a man who only moments before was 'away with the fairies', he was now  remarkably alert, even  ropeable.

'Tom, if you make this legal and above board I'll consider it'.

Good. we'll see a lawyer in the morning'.

He told Iris what Tom had asked and assured her that by morning, 'he'll have forgotten all about it.'

'You think so'? she sounded cynical.

'Bloody well hope so. I don't want to get involved, but he's been 'got at'.

'I wish you would stop your swearing', and with that Iris went to bed.



The next day dawned early for both of us. At six thirty Tom was at our back-door. '

'Come in Tom,'

'It's alright Iris. I have just come to see if Bruce is going to see a lawyer for me this morning.'

'I don't know Tom, you had better ask him. I'll make a cup of tea and you can wait for Bruce. He's up the shop and should be home soon'

Bruce spent a busy day trying to track down a lawyer's premises with no stairs. This was to prove most disadvantageous to Tom in the long run, for it unwittingly was to lead to an avenue of incompetent legal practitioners who didn't care a damn for their clients. The need to find an independent lawyer was brought about because Tom wanted nothing more to do with Andrew Smyth. He was emphatic about that and in fact he refused to ever visit him again. He was convinced that he was being bled and suggested to Whiteside that he engager his lawyer. This he refused to do for fear that doing so would imply some sort of manipulation.

 In reconnoitring the business area of Burleigh Heads he opted to approach a small family business of G McCracken and Co, whose entry was at ground level..

Whiteside was apprehensive in approaching anyone at all let alone a lawyer, but as Tom had lain awake all night thinking that his friend would probably go back on his word, he felt that his anxiety deserved some attention and if he didn't do it, then he would probably be taken advantage of, particularly that he had already been taken for a ride to the tune of $38,000.

He approached the reception area and was greeted by a friendly 'everybody's grandmother'. Mrs McCracken was the sort of person who listened, reassured and understood the situation that Bruce put before her. He explained the desire of Tom Jowett to place all his affairs in his hand, the mixed feelings he had about that and the added responsibility of having to perhaps having to accept the challenge of taking on a Power of Attorney, to which he freely admitted he knew nothing. After a half hour discussion Bruce left to pass on to Tom what the options were. Tom was happy with the idea of going to McCracken and ask Whiteside to make him an appointment. Mrs McCracken duly made the appointment and she told me to bring the car up to the door, to save Tom having to mount the high concrete slab.

With the appointment made Tom was happy, so on November 17 1999 at 2.30pm, Bruce drove him to the premises of Geoff McCracken. Pulling up as previously directed Tom made his way into the reception and Bruce went off to park the car. When he returned he found Tom sitting down waiting for the solicitor. Mrs McCracken advised her husband of their arrival and came back and advised that he would not be long.

When the solicitor came out he acknowledged both men and invited Tom Jowett into his office. What took place between Tom Jowett and Geoff McCracken was never discussed, nor did Whiteside concern himself to find out.

As married couples are wont to do at times, Bruce and Iris had crossed swords over a message that had been left by the solicitor. Bruce had a message that prompted advise from Iris . He responded by telling her to keep out of Tom's affairs. This alienation was exacerbated when Iris advised him that Tom had to go into the solicitors office to sign the new Will and implement the Enduring Power of Attorney to which Whiteside at that stage had no knowledge or details of what his entire responsibility was.

Iris told Bruce an hour before Tom's appointment. He retaliated by saying ' If you want to be Tom's keeper then go ahead. You take him, I will not.'

This was and extraordinary response for a man to whom Tom's present Solicitor Andrew Smyth informed the Adult Guardian, "He (AS) feels that Mr Whiteside may take advantage of Mr Jowett financially, but has no evidence or proof'.(see document below)
 


Andrew Smyth would have been a little more diligent had he not employed his own moral values to judge Whiteside, but to explain what happened to the $38,000 that vanished on 'his watch'. It was the same Andrew Smyth who claimed that 'the writer was seeking to assist one of his long standing clients'. What he conveniently neglected to add was that his entry into 'his clients', home was done without the knowledge of Mr Jowett's legal Enduring Power of Attorney. This action alone condemns Andrew Smyth professional credibility and ignores the fact that whatever he may have said to justify his illegal action was paramount to 'break and enter'. That he entered with another to look for a lost Will, of course was irrelevant.

The end result was that Iris did not take him, nor did Bruce. When another message came to the Whiteside residence, Bruce took the call from Geoff McCracken who had advised that Tom had not kept his appointment. Whiteside curtly referred him to Tom Jowett. Unfortunately McCracken received a blunt knock back advising him that he did not need two solicitors. McCracken then terminated the call as he believed and rightly so that he was bearing the brunt of Tom Jowett's displeasure. This was a costly error, for in referring to not needing two solicitors, Tom Jowett through a messy contact believed that it was Andrew Smyth he was talking to.

Tom's anger was not altogether about his dislike and distrust of Andrew Smyth, but by the fact that his wife Sheila, who was a friend of her then neighbour Kathy Woods had persuaded Tom to have her buried from a Catholic Church. As Anglicans this did not go down well with this old Liverpudlian and to have the suggestion put to him to leave money to the Catholic Priest was the last straw. Tom for some reason or other always called certain lawyers 'Mickey-do's.

A few days later Tom approached Bruce and asked him to apologise for his mistake. Although he did this he was not able to contact Geoff McCracken before the weekend, by which time he had to act quickly if he was to address Tom's anxiety about going away a few days later.

Whiteside contacted a solicitor in Robina who was recommended, one who would complete the EPoA in time. However they contracted cold feet when the situation was fully explained and opted out.

Finally in desperation he rang Whitehead Payne in Burleigh who said that they could do the job and have it delivered to Mr Jowett before the Whiteside's flew out to Christchurch. The appointment was made and Bruce took Tom Jowett in to be interviewed by Phil Whitehead.

Whitehead handed the client over to Debra Canning and she made the appointment for the day after, December 1 1999.

Before Whiteside ever ventured down the path of assisting Tom, he had concerns that Tom was lucid enough. What worried him was the fact that in a period of thirty months Tom Jowett had frivolously made out ten wills. Was this a sane man's action? Apparently it was for Andrew Smyth implemented nine separate requests without ever questioning his testamentary capacity . Testamentary capacity only became an issue when Tom Jowett took his business away from Smyth to another lawyer. However during the course of those ten Wills Smyth noted on two or three occasions that Tom was sort of losing it, but he deemed him well enough mentally to proceed with yet another Will And why wouldn't he; there was no relative to look over his shoulder, nobody to call him to task. All the while he was feasting in fees upon an old war veteran. Whilst the old man did not uplift his files, he Smyth controlled his estate and he certainly had no intention of relinquishing it. The question that begged an answer was why was he so implacably opposed to handing over that which was not his to hold. The answer is simple, he wanted to make a killing out of the old defenceless war veteran.

So it was that Bruce Whiteside went to Dr Ian Clark and arranged a meeting between four people at Tom Jowett's home. He had told the doctor, who knew Tom for many years and Bruce Whiteside even longer what he had proposed and explained that before he undertook to commit himself, that he wanted the whole matter discussed openly between Tom, Bruce and Iris Whiteside and the doctor himself. The house call was a charge against Medicare as other medical matters were dealt with on the visit.

Once again here was the actions of a man who a calculating lawyer had targeted as a 'scheming and opportunistic individual['.. Given the nature of the task, it is surprising that Whiteside went to so many avenues that could have impeded this lawyer driven suggestion that he was only interested in fleecing his old friend. Altruism is not a gift of lawyers of Smyth's ilk, but to suggest that others are inoculated with 'lawyer graft ' is when all said and done only an extension of the thinking mentality of the utterer

The Whiteside's, Dr Clark and Tom Jowett discussed the details as they had been suggested. Dr Clark posed several hypothesis , to which Tom replied to with a fair degree of understanding. Tom stated that he did not want ever to go into a nursing home and the doctor told the group that this had been his greatest fear for years. The doctor pointed out that in accepting the responsibility of what amounted to an unselfish commitment, that he should realise the sacrifice that the Whiteside's were making. Bruce impressed upon Dr Clark to whom he had known for close on 20 years that whether Tom made him sole beneficiary or not that he viewed the proposition as a poisoned chalice, and that his commitment to keep Tom out of a nursing home was driven by the misery and loneliness that his own father had to endure in his final years. Tom like Bruce's  own father was an intelligent man, who was condemned by the system to suffer the pain of slowly dying whilst being deprived of stimulating conversation and social intercourse.
 

Dr Clark then asked Tom why he wanted to make changes to his Will. Tom pointed out that unlike the 'grouters', who swarmed around after Sheila had died, the Whiteside's had been very helpful, had included him among their own family, taken him out and cooked all of his meals for the last nine months, never taking a penny for it. It is my wish that I remake my Will. You know me well enough doctor to realise that I don't do things unless I want to. The doctor laughed and said that he would drink to that.

Dr Clark then told the three that as far as he could advise there was 'no reason why Tom should be not be allowed to do as he wanted and if he chooses a certain action, then I would not oppose it'.



 
Dr Ian Clark's testimony, that was dismissed by the presiding Chief Justice Paul de Jersey

When Tom through no great fault of his own confused McCracken, Bruce spoke with Dr Clark again, only to be told that Tom's erratic behaviour would always pose problems if he was upset or interpreted a remark that he saw as  personal. I suggest that you wait for a window of opportunity.



It was shortly after this meeting and the aborted appointment to sign his Will at McCracken's, that Tom, Iris and Tom met the new appointment at Whitehead, Payne, with Debra Canning being the acting solicitor.

It must be understood and accepted that Bruce Whiteside spoke to Phil Whitehead and explained the position why he was essentially doing the groundwork. This involved taking instructions from Mr Jowett, relaying them to Phil Whitehead and then on that schedule presenting Mr Jowett to Whitehead, without Whiteside's presence and drawing his own conclusions. This was the basis of the presentation of Mr Jowett to solicitor Debra Canning.

The three were ushered into M/s Canning's office. The Whiteside's were not asked to leave but retired to the far end of the large office and sat down on a sofa. What transpired was a conversation to which the two were not privy and the only time that M/s Canning called Mr Whiteside forward was to explain that she had suggested to Mr Jowett that instead of a Power of Attorney, she recommended that he should look seriously ;look at an Enduring Power of Attorney. Whether Mr Jowett agreed or not all  Whiteside was told was the responsibilities that went with accepting the greater burden. He agreed with the explicit understanding that all matters that she dealt with would be water-tight in law. The matter of a Will was never spoken of other than the request to 'go to a lawyer to whom I can trust'.

That evening a great load was lifted from Tom's shoulders.

In the few days remaining before the Whiteside's set out for Christchurch, Bruce was franticly still looking for a person to live in their home whilst they were away for the following five weeks. It was a matter that rested heavily on his mind.

Eventually they manage to find a friend who was prepared to move in and look after Tom. Arrangements were made for meals to be delivered each night, because Meals on Wheels were on vocation for the festive season. This was fully paid up and so were all outstanding accounts.

At the last minute that friend has slipped at home and hurt herself to the point where moving around had to be facilitated by the use of crutches. Daphne a fried of some twenty years rang her daughter who instructed her mother to stay at home. This she did but it was only three days before the Whiteside's were due to fly out to New Zealand

Tom being Tom would not budge; he would look after himself. He would not go into a nursing home, believing that if he did he would never come out. Sadly this was to be a fear well grounded.

Unbeknown to the Whiteside's plans were afoot to abuse the law. These plans embraced those whose position in the community commands respect based not on individual improprieties but through a long history of service and trust. In this case the two individuals flouted their positions and compromised the integrity of the innocent party.

The penultimate day was December 7th 1999.
 

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