Chapter 8. The Power of Attorney
Much has been said about the only Power of Attorney that Tom signed. It was prepared by the same solicitor who acted for him in the preparation and signing of the1 December 1999 will. It was not prepared until a few weeks after a meeting with Tom’s doctor in mid November 1999. At that meeting with Whiteside in attendance, the doctor verified that Tom was cognizant about his intentions, and that it was up to him to decide what he wanted to do with regard to both his will and EPOA. Both documents were later prepared by Ms. Canning for Tom’s signature.
It is opportune hear to re-cap on an earlier statement.
Prior to departing to New Zealand on a holiday with his wife in December 1999, Whiteside advised an ACAT representative by letter, where he could be contacted if important decisions needed to be made concerning Tom’s care.
Tom’s doctor was also informed by letter of Whiteside’s trip to New Zealand and his EPOA, but he failed to tell the authorities at the time Tom was eventually admitted to hospital.
Smyth however was informed and later rang the hospital to tell them he was Tom’s solicitor. At the same time he took the opportunity to enquire about Tom’s health.
As indicated earlier, Smyth refused to challenge the validity of the EPOA in court, and thereby allowed Whiteside to continue to manage Tom’s affairs without question.
In January 2004 (after the court hearing) it was a different story. Smyth exercised his prerogative powers as Executor to the now approved will of Tom dated 15 December 1998, to threaten Whiteside under Section 54 of the Succession Act for not providing a full accounting of his financial activities as ‘executor de son tort’.
His exact words contained in a letter to Whiteside’s solicitor were –‘Mr. Whiteside will be liable pursuant to Section 54 of the Successions Act, for any transactions he engaged in as ‘executor de son tort’ that we are unable to verify, ratify, and adopt’.
In response, Whiteside’s solicitor argued that whilst attending to Tom’s affairs, his client had in fact kept very accurate records, most of which Smyth knew about, as these documents were presented during the discovery process leading up to the trial. He responded on behalf of Whiteside in the following terms – ‘Clearly the records kept by our client were good, and were approved by the Adult Guardian’s Office’.
Furthermore, he made this comment on behalf of Whiteside –‘We note you have previously referred to our client as an ‘executor de son tort’. This implies some wrongful intermeddling. This is denied, and until the court made a determination, someone had to hold the fort’.
Whiteside himself was not to be bluffed by the use of legal terminology he was not expected to understand, but replied directly to Smyth in the following terms –
‘I am aware that the definition of ‘executor de son tort’ means a person who renders himself liable to be sued through intermeddling with the estate of a deceased person as if he had been appointed Executor. You have only yourself to blame for any delay in winding up the estate. By threatening me, you are inferring that I interfered with Tom’s estate, but such an accusation is contrary to the truth, and you know this to be the truth’.
Later Mr. Smyth was to say –
It is tolerably clear that Mr. Whiteside has been affronted by our use of the expression ‘executor de son tort’. Please reassure your client that no pejorative connotation is implied by its use’. Could it be assumed he may have overstepped the mark with his implied threat?
One might now, well ask why Smyth was adamant that the EPOA given to Whiteside was invalid, considering the following institutions accepted it as being a valid document.
. The Commonwealth Bank of Australia
. The Gold Coast Community Hospital
. The Office of the Adult Guardian
. The Aged Care Assessment Team
. The Blue Nurses Association, and
. Other banks and Trusts handling Superannuation matters
The office of the Adult Guardian advised Smyth that ‘the Act does not require contemporaneous execution of the witness certificate (one of Smyth’s arguments to support the EPOA was invalid) and accordingly this office does not intend to take issue with the formal validity of the Power of Attorney’. This should have put to rest his belief that the EPOA was invalid, but it didn’t.
A legal officer from ACAT in a letter to Smyth, informed him that her office had been unable to find any evidence to counter the presumption of capacity (referring to Tom)which all citizens have, until proven otherwise. The person went on to say ‘The fact that Mr. Jowett was found to lack capacity (not proven) one week after he signed the Power of Attorney, does not mean he lacked capacity at an earlier time. Lucid intervals of varying periods are common in dementia cases’.
Deacons (lawyers) acting on behalf of the Blue Nurse’s Association in an enquiry instigated by Whiteside as to whether or not nurse Crozier had the authority to carry out directions of Tom whilst in hospital, had this to say to him –
‘The fact that you may have been Mr. Jowett’s Attorney pursuant to an Enduring Power of Attorney at the time Mr. Jowett was in hospital is, frankly irrelevant. Mr. Jowett made the request of our client that the documents in question should be delivered to his solicitor, at a time when he was capable of formulating and understanding the nature of that request. The fact that somebody appoints another person as his or her Attorney pursuant to an enduring document, does not prevent that person from making decisions in his or her own right when capable of doing so’.
Whiteside always maintained, and the solicitor drawing up Tom’s will on 1 December 1999 confirmed later at the trial, that Tom ‘was capable of formulating and understanding the nature of his wishes concerning not only the EPOA, but also the will’.
Justice de Jersey was later to discount this opinion on the basis Canning was not qualified to make such a statement.