BTD v NSW Trustee and Guardian

NCAT Guardianship|2016-11-17|Before: Windeyer J

APPLICATION TO REVIEW AN ENDURING POWER OF ATTORNEY

What the Tribunal decided

The Tribunal declined to conduct a review of the making of the power of attorney made by Mr UNF on 20 March 2008 under which he appointed Mr CVE as his attorney ("the Reviewable Power of Attorney"). The Tribunal decided, however, to conduct a review of the operation and effect of the Reviewable Power of Attorney and it ordered, under s 36(4) of the Powers of Attorney Act 2003 (NSW), that the Reviewable Power of Attorney be varied by adding Mrs ZAG as an attorney, so that the appointed attorneys are Mr CVE and Mrs ZAG jointly.
The Tribunal formally noted the agreement between Mr UNF, Mr CVE, Mrs ZAG, and Mrs UMD ("the relevant parties") that : 1. In the exercise by the attorneys of their powers and authorities under the Reviewable Power of Attorney, Mr CVE will have primary responsibility for decisions and actions relating directly to Mr UNF's daily necessities of life; and 2. that in the event that the appointment of either of the attorneys is terminated or the holding of office of either of them is vacated (including without limitation by resignation or by their becoming incapable of holding office), then any of the relevant parties will be at liberty to apply to the Tribunal for a further review of the operation and effect of the Reviewable Power of Attorney.

Background

Mr UNF is a 71-year-old man who is reported to have mild dementia which is static and to have exhibited some symptoms of depression. Mr UNF lives in an aged care facility in regional NSW. Mr UNF's son is Mr CVE. He lives in regional NSW. Mr UNF's daughter is Mrs UMD. She lives in Switzerland. Mr UNF's sister is Mrs WXE. She lives in regional NSW as well. Mr UNF's wife is Mrs ZAG. Mr UNF and Mrs ZAG live separately but the Tribunal understands that they remain in contact with each other.
On 20 March 2008, Mr UNF executed two instruments. The first of these was the Reviewable Power of Attorney, under which Mr UNF appointed his son, Mr CVE, as his sole attorney. Mr CVE accepted that appointment in writing on 13 November 2012. The Tribunal has been provided with a copy of the Reviewable Power of Attorney. The second instrument was an appointment of enduring guardian, under which Mr UNF appointed Mr CVE as his guardian.
On 11 April 2016, the Guardianship Division Registry received from Mrs UMD an application which sought a review of the Reviewable Power of Attorney.
On 14 July 2016, the hearing of that application was commenced but not completed. The matter was adjourned part-heard for approximately three months to a date to be set by the Registrar. On 14 July 2016, the Tribunal made Directions concerning evidence and a Recommendation, as set out in our Reasons for Decision from that hearing.
On 13 October 2016 and 10 November 2016, Directions Hearings were held. At the first of these Directions Hearings the Tribunal refused leave for Mr CVE to be legally represented in these proceedings. In both Directions Hearings, the Tribunal made directions as to production of evidence.
The purpose of the Tribunal's proceedings in regional NSW on 17 November 2016 was to resume the hearing of Mrs UMD's application which had been adjourned part-heard on 14 July 2016.

Parties and Witnesses

The Appendix to these Reasons for Decision identifies the parties to the application for review and the witnesses who participated in the hearing. [Appendix removed for publication.]

Reasons for Decision from hearing on 14 July 2016

These Reasons for Decision should be read in conjunction with the Reasons from the hearing on 14 July 2016.

Issues for determination by the Tribunal

There were two threshold issues, as follows: 1. Whether the applicant, Mrs UMD, has standing to bring the application. This amounts to determining whether she is an "interested person" under s 35(1) of the Powers of Attorney Act. 2. Whether the Tribunal should exercise its discretion under s 36(1) of the Powers of Attorney Act to decide to conduct : 1. a review of the making of the Reviewable Power of Attorney; or 2. a review of the operation and effect of the Reviewable Power of Attorney; or 3. both.
There were four substantive issues, which would need to be decided if both the threshold issues were determined in the affirmative. These were as follows: 1. In relation to any review of the making of the Reviewable Power of Attorney, whether or not the Tribunal should make an order under s 36(3)(a) of the Powers of Attorney Act declaring that the principal, Mr UNF, did or did not have mental capacity to make a valid power of attorney when he executed the Reviewable Power of Attorney. 2. In relation to any review of the making of the Reviewable Power of Attorney, whether or not the Tribunal should make an order under s 36(3)(b) of that Act declaring that the Reviewable Power of Attorney is invalid, either in whole or in part, because Mr UNF lacked the mental capacity to make it or because the Reviewable Power of Attorney did not comply with other requirements of the Powers of Attorney Act, particularly those providing formal requirements for making an enduring power of attorney. 3. In relation to any review of the operation and effect of the Reviewable Power of Attorney, whether the Tribunal should make any of the orders available under ss 36(4) and 36(5) of that Act. Subsection 36(4) allows the Tribunal to make a wide range of orders including, without limitation, an order removing an attorney from office, an order appointing a substitute attorney or any other order which it thinks fit. Subsection 36(5) allows the Tribunal to declare that the principal (here, Mr UNF) lacked or lacks capacity because of mental incapacity at a specific time, for a specific period, or for the time being. 4. If no orders are to be made under s 36 of the Powers of Attorney Act, whether the Tribunal will treat the application for review of the Reviewable Power of Attorney as an application for a financial management order under the Guardianship Act 1987 (NSW).

The standing of the applicant Mrs UMD

The standing of Mrs UMD was not contested. Although this appears not to have been formally recorded at the first hearing on 14 July 2016, at the present hearing the Tribunal confirmed that it was satisfied that Mrs UMD had standing to bring the application, as an "interested person" in relation to the application within the meaning of s 35(1) of the Powers of Attorney Act, in that she had a proper interest in the proceedings and had a genuine concern for the welfare of her father, Mr UNF.

Should the Tribunal conduct a review of the making of the Reviewable Power of Attorney or of its operation and effect?

In her application, Mrs UMD did not seek a review of the making of the Reviewable Power of Attorney. At the opening of the first hearing, Mrs UMD confirmed that that was her position and that she only sought a review of the operation and effect of the instrument. At that hearing the Tribunal determined that: 1. it would not conduct a review of the making of the Reviewable Power of attorney, because there was no issue between the parties as to the making of the instrument and there was nothing else to indicate to us that such a review was justified and would be in the interests of Mr UNF; 2. it would however conduct a review of the operation and effect of the Reviewable Power of Attorney, because it was clear from the application and the other documents lodged by various parties that this most certainly was in issue and that a review of this question would serve the interests of Mr UNF.

The views of Mr UNF

As we had done in the first hearing, we decided to seek the views of Mr UNF in camera; that is, in the absence of other participants. Such a procedure has been approved by the Supreme Court of NSW in Re SU (Supreme Court (NSW), Windeyer J, 17 September 2001, unrep), and more recently by the Tribunal's Appeal Panel in BTD v NSW Trustee and Guardian [2015] NSWCATAP 87, [18], [19]. However, it is also clear from the authorities that in order for the procedure to be fair and transparent the other participants should receive an adequate summary of the subject person's views when they return to the hearing. That procedure was adopted in the present case.
At Mr UNF's request and with the concurrence of the other participants, we decided to allow his daughter-in-law to be present during this part of the proceedings to support him.
We were, of course, interested to know whether Mr UNF had changed any of his views since the first hearing. We therefore repeated most of the questions we had asked Mr UNF on that occasion and asked a few additional questions.
The following is the summary of the questions and answers involved in that interaction, using words to the effect of those spoken. In some instances we repeated our question and Mr UNF's answer given at the last hearing and Mr UNF affirmed or varied his answer. Q. Are you happy with how Mr CVE is looking after you? A. Yes Q. Do you see Mr CVE frequently? A. Yes, more than once a week. Q. It has been alleged that Mr CVE kept some of the rent which was due to be paid to you. Do you believe that? A. No. Q. How do you know that? A. Mr CVE told me. Q. It has also been alleged that Mr CVE deposited proceeds from a sale on your behalf into his own account. Did you know about that? A. Yes. Q. Was that done with your permission? A. Yes. Q. So you gave that money to him? A. Yes, but only in the short term. Q. Your daughter, Mrs UMD, came out to Australia and saw you before the (last) hearing? A. Yes, she saw me a couple of times over a couple of weeks. Q. Did Mrs UMD express concerns about your power of attorney during that time? A. Not really. The power of attorney was never mentioned. I didn't know this was coming until she went home. Overall, I have more money in the bank now than I originally had. Q. Have you had contact with Mrs UMD since she returned to Switzerland? A. She has phoned. Q. What would you like to see happen as a result of today's hearing? A. Leave things as they are. Mr CVE is fine. He keeps me advised. Q. What do you think of the idea of making Mr CVE and Mrs UMD your joint attorneys? A. No. I don't think it would work. Q. Would you trust Mrs UMD to be your attorney? A. No. She might spend the lot. Q. Do you think it would be a good idea to have the NSW Trustee and Guardian; the Public Trustee, having some role: to have a look at how things are going if necessary? A. No. No way. Q. Do you completely trust Mr CVE and have you ever had any doubts about his trustworthiness? A. No it is all above board. I was a police officer for 25 years and I know and can recognise when a person can't be trusted. Q. If Mr CVE remains as your attorney should he have another person appointed as a joint attorney with him? A. No. Q. Do you think that such a joint appointment might "keep the peace" with family members and be better from that point of view? A. It's none of their business. It's my business only. Q. In looking at the financial statements it appears that there were a number of purchases of alcohol over time. A. These were mine, for me. Q. Even when you were in the nursing home? A. Yes. Even after my operation I was still able to go shopping. Q. What do you say we should do today? A. Leave it as it is. I have put Mrs UMD in the Will. My wife has said… (unclear).

Discussion and agreement between the parties

Upon the resumption of the hearing, after our discussion in camera with Mr UNF and following some discussion with the parties, the parties indicated to us that they wished to engage in private discussion to attempt settlement of outstanding issues between them. We adjourned the hearing to allow this to occur.
Following an adjournment of some 30 minutes, the hearing was resumed and, with the leave of the Tribunal and the consent of the parties, a solicitor explained that the parties were in unanimous agreement that: 1. Mr CVE should remain as an attorney but that Mrs ZAG should be appointed as a joint attorney; 2. Mr CVE would be primarily responsible for decisions and actions relating directly to Mr UNF's daily necessities of life; and 3. that in the event that the appointment of either of the attorneys is terminated or the holding of office by either of them is vacated (including by resignation or incapacity for holding office), then any of the parties or Mrs ZAG would be at liberty to apply to the Tribunal for a further review of the operation and effect of the Reviewable Power of Attorney.

The Tribunal's approval and orders

The Tribunal does not exercise a "consent" jurisdiction. That means that we cannot make particular orders simply because they have been agreed between the parties. Nor can we approve or ratify an agreement between parties to proceedings to resolve them in a particular way. Before we make any orders after an agreement between the parties, we must be satisfied that the proposed or agreed result would be consistent with and would promote the welfare and interests of the person who is the subject of the proceedings, here, Mr UNF. Additionally, as it was contemplated here that we would make particular orders under s 36(4) of the Powers of Attorney Act, we would need to be satisfied that any such orders would be in the best interests of Mr UNF or would better reflect his wishes.
We were satisfied, on the basis of the testimony of family members, that Mrs ZAG maintains contact and some support for her husband, Mr UNF. The Presiding Member emphasised to the parties and to Mrs ZAG the obligations of an appointed attorney to act at all times in the best interests of the principal, here Mr UNF, and to avoid any conflict between their obligation as an attorney and their own personal interest.
There was nothing before us to indicate that Mrs ZAG would be unable to fulfil this basic obligation as an attorney, and nothing to indicate that her appointment as a joint attorney would prejudice the welfare or interests of Mr UNF. It appeared from the comments of the parties and other family members that there was substantial support for the appointment of Mrs ZAG as a joint attorney.
We were satisfied on the basis of the evidence and acknowledgments made by Mr CVE that he now understood more clearly his obligations as an attorney and that a joint appointment of him and Mrs ZAG was appropriate and would be in Mr UNF's best interests.
There is nothing in the wording of paragraphs (a) to (f) of subsection 36(4) of the Powers of Attorney Act which expressly allows a power of attorney to be varied by the Tribunal's order so as to add an attorney to act jointly with an existing attorney. However, paragraph (g) of the subsection allows the Tribunal to make: "such other orders as (it) thinks fit".
The alternative to using paragraph (g) to achieve the desired outcome in this case would be to remove Mr CVE as an attorney under paragraph (b) of the subsection and then to appoint him and Mrs ZAG jointly as substituted attorneys to replace him, using paragraph (c). Although that two-step route clearly allows the Tribunal to achieve the desired result in this case, that appears somewhat artificial and unnecessarily cumbersome. Although "saving" provisions such as paragraph (g) must be applied with some caution, it seems to us that Parliament must have contemplated that where the addition of an attorney in circumstances such as these is the desirable result and would be in the best interests of the principal or would better reflect his or her wishes, the Tribunal could act using paragraph (g) to achieve that result. On that basis, we did so.
We therefore ordered, under s 36(4) of the Powers of Attorney Act, that the Reviewable Power of Attorney be varied by adding Mrs ZAG as an attorney, so that the appointed attorneys are Mr CVE and Mrs ZAG jointly.
At the request of the parties, we formally noted the agreement between Mr UNF, Mr CVE, Mrs ZAG, and Mrs UMD ("the relevant parties") that : 1. in the exercise by the attorneys of their powers and authorities under the Reviewable Power of Attorney, Mr CVE will have primary responsibility for decisions and actions relating directly to Mr UNF's daily necessities of life; and 2. in the event that the appointment of either of the attorneys is terminated or the holding of office of either of them is vacated (including without limitation by resignation or by their becoming incapable of holding office), then any of the relevant parties will be at liberty to apply to the Tribunal for a further review of the operation and effect of the Reviewable Power of Attorney.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 February 2017

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (3)

Cases Cited (1)