CQH (No 2) [2023] NSWCATGD 23

PROCEDURAL HISTORY

1. Due to the serious allegations of financial elder abuse made in the applications, a hearing was listed on 27 September 2023, approximately two weeks after the first application was lodged.
2. CQH participated throughout the hearing on 27 September by videoconference in the company of the Attorney. The Applicant and her husband, Mr Y, attended in person. Ms Z took part by telephone.
3. As a consequence of the decision to list the hearing of the applications with urgency, there was limited evidence before us as to CQH's financial situation. The applicant made numerous serious assertions about the conduct of the attorney (set out in more detail below), in particular, that he was misappropriating the sale proceeds of the regional NSW property. She had not provided any documentary evidence to corroborate her assertions.
4. During the course of the hearing on 27 September 2023, at our request, the Attorney emailed to the Tribunal registry copies of transaction statements in relation to his father's two bank accounts (Bank Account 2 and Bank Account 1). The copies emailed to us, however, were transaction accounts provided to TNH in his role as attorney (with notations on both accounts that "You have third party access"). The transaction statements did not have CQH's name on them or any other identifying information on them as to whose account they belonged to.
5. The transaction statements did record, however, a deposit of funds into Bank Account 2 on 15 September 2023 of $1,231,545. The Attorney had made a handwritten notation on the statement, and confirmed orally, that this amount was the balance of the settlement sum for the sale of the regional NSW property. A deposit of $22,100 was also recorded on the same day. According to the Attorney, this was the remainder of the deposit held by the managing agent in relation to the sale of the regional NSW property.
6. The transaction statement also showed deposits into Bank Account 2 of other significant sums, noted by the Attorney as being the sale proceeds of CQH's motor vehicle (8 September 2023 - $18,000), farming equipment (5 September 2023 - $32,041) and livestock (28 July 2023 - $8,100).
7. On 19 September 2023, an amount of $1,253,645 (the total sum of the deposited sums relating to the sale of the regional NSW property) was debited from Bank Account 2. On the same date, the same amount was credited to CQH's Bank Account 1. The Bank Account 1 statement had an opening balance (as at 31 March 2023) of $960,260. No withdrawals are shown during the entirety of the statement period. The balance of this account (as at 19 September 2023) was $2,262,530.
8. We gave the Applicant an opportunity to view a copy of these transaction accounts during the course of the first hearing on 27 September 2023 and drew her attention to the entries in the transaction accounts noted above. The Applicant submitted that we should not be satisfied that these were her father's accounts as they did not have any identifying information on them.
9. We did not provide the Applicant with a copy of these transaction statements to keep, and she returned the copies to us at the conclusion of the first hearing. We decided not to give a copy of this material to the applicant to keep in her possession taking into account that we had yet to decide whether or not we would review the operation and effect of the 2009 enduring power of attorney: Powers of Attorney Act 2003 (NSW) (POA Act), s 36(1). In our view, it was not necessarily in CQH's interests to have copies of his personal financial information provided to anyone other than the Attorney or CQH when, on the face of the two bank transaction accounts provided to us, the sale proceeds of CQH's property were accounted for. On balance we decided that it would not have been in CQH's interests, nor is it likely to have reflected his wishes, to provide copies of this personal financial material to the applicant in those circumstances (Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 ("Susan Elizabeth Parker") at [110]).
10. Although there was a basis on which to form a preliminary view that these transaction statements were in fact statements in relation to accounts held by CQH, we nevertheless decided that it was appropriate to adjourn the hearing. We made directions at the conclusion of the hearing on 27 September 2023 that required the Attorney to provide copies of the transaction statements for the two bank accounts that would clearly show (or not) that they were held by CQH and whether they reflected the same information as contained in the statements shown to us. We did so to give effect to s 4(a) of the Guardianship Act 1987 (NSW) (the Act) and to ensure that the best evidence was available to us, namely, evidence that would confirm whether or not the accounts were held by CQH.
11. The evidence before us at the 27 September 2023 hearing also indicated that by the time of the lodgement of the guardianship application, CQH was living in Queensland. The directions we made on 27 September 2023 also required the provision of documentary material in relation to this issue. As was explained to the parties, this was relevant as to whether we had jurisdiction to consider the application for guardianship.
12. Material was provided by the Attorney in accordance with the directions (as well as additional material not mentioned in the directions).
13. On 13 October 2023, the Attorney lodged an application seeking orders that financial material (that had been provided in accordance with directions made on 27 September 2023) not be disclosed to the Applicant (application for non- disclosure).
14. On 16 October 2023, the Tribunal (constituted only by the presiding member in these substantive proceedings) convened an interlocutory hearing to consider the application for non-disclosure. The following parties participated in the interlocutory hearing and made submissions about the application: CQH, the Attorney and the Applicant.
15. On the same date, the Tribunal made orders pursuant to s 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) prohibiting disclosure to the applicant of the following documents (non-disclosure order): "1. Copies of [Bank Account 1] transaction accounts in name of [CQH] (ending in account no. [removed for publication.]) for period 31 March 2023 - 30 June 2023 and 30 June 2023 - 29 September 2023, including third party access transaction accounts provided on 27 September 2023 2. Copy of [Bank Account 2] transaction account in name of [CQH] (ending in account no. [removed for publication]) for period 30 June 2023 - 29 September 2023 including third party access transaction accounts provided on 27 September 2023 3. Copy of [Bank Account 3] transaction account in name of [TNH] (ending in account no. [removed for publication.]) for period 31 July 2023 - 1 August 2023 and related "EPOA" account from 2 August 2023 - 2 October 2023 4. List of reimbursements for [CQH] private care and expenses and associated receipts 5. Covering letter from [TNH] dated 7 October 2023 date stamped as received on 9 October 2023"
16. Written reasons for decision in relation to the making of the non-disclosure orders have been provided to the parties.
17. At the resumed hearing on 18 October 2023, CQH again participated throughout the hearing by videoconference in the company of the Attorney. The Applicant and Mr Y participated by videoconference from Victoria. Ms Z was unable to take part in the second hearing date due to work commitments.
18. At the conclusion of the resumed hearing on 18 October 2023, we reserved our decision. Later that same day we issued orders:

• Deciding not to conduct a review of the 2009 enduring power of attorney
• Dismissing the financial management application, and
• Dismissing the guardianship application

ADJOURNMENT REQUEST

1. Near to the conclusion of the resumed hearing on 18 October 2023, the Applicant requested an adjournment of the hearing. The Applicant did not want these proceedings to go ahead unless she had a copy of material that was the subject of the non-disclosure order. The applicant requested an adjournment so that she could lodge appeal proceedings against the non-disclosure order.
2. The Attorney opposed an adjournment. He wanted to have the proceedings finalised. He said that he had done nothing wrong, had provided everything that had been asked of him by the Tribunal and did not agree that the Attorney should be able to draw things out.
3. CQH told us that he would like to finish things so that he would not have to come back.

Decision to refuse adjournment request

1. The Tribunal may adjourn proceedings to any time and place: NCAT Act, s 51.
2. Adjournment applications should be considered in light of the guiding principle which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36. Such applications should also be considered in view of the following obligations placed upon the Tribunal pursuant to s 38 of the NCAT Act: 1. to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: NCAT Act, s 38(5)(c); and 2. to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings: NCAT Act, s 38(6)(a).
3. The Tribunal may require evidence or argument to be presented orally or in writing: NCAT Act, s 38(6)(b).
4. The principles concerning adjournment requests were set out in the decision of the NCAT Internal Appeal Panel in the decision of Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95, at [55]-[56]: "[55] In O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22], the Appeal Panel identified the following principles governing applications for an adjournment: (1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2) an application for an adjournment should be seen as the exceptional rather than the ordinary course; (3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment. [56] Refusing an adjournment may be inappropriate if it has the effect of depriving a party from adequately presenting the parties case: Armee v Brearley [2017] NSWCATAP 141 at [121] and [135]. However, in considering an adjournment application, the Appeal Panel must take into account all the relevant facts and circumstances of the matter, in the context of its guiding principle under s 36 of the Civil and Administrative Tribunal Act 2013."
5. When exercising functions in the Guardianship Division, including requests for adjournment, the Tribunal is under a duty to observe the principles in s 4 of the Act and that paramount consideration is to be given to the welfare and interests of persons who have disabilities under s 4(a) of that Act (NCAT Act, cl 5(1) of Sch 6).
6. Having regard to all of the relevant facts and circumstances in this case and applying these principles, we decided not to adjourn the hearing for the following reasons. 1. We accepted that it was the Applicant's position that the Attorney had misused his authority as their father's attorney and enduring guardian and had misappropriated CQH's funds. We also accepted that the Applicant had opposed the confidentiality order made on 17 October 2023 and felt unable to properly present her case about this issue without access to the material that is the subject of the non-disclosure orders. 2. We understood that the applicant requested an adjournment so that she could not only lodge an appeal against the confidentiality order but also so that the appeal could be heard and presumably determined in her favour such that the Applicant would have access to the material that is the subject of the confidentiality order. Adjourning the proceedings to allow time for these steps to be taken would, we understood from the Applicant's point of view although not expressed in these precise terms, be a reasonably practicable measure to ensure that she had a reasonable opportunity to be heard or otherwise have her submissions considered in the proceedings (NCAT Act, s 38(5)(c)) and would ensure that the proceedings were procedurally fair to her (NCAT Act, s 38(2)). 3. We considered whether, taking into account all the relevant facts and circumstances of the matter, and in the context of its guiding principle under s 36 of the NCAT Act, the Applicant had already had a reasonable opportunity to be heard and have her submissions considered in the proceedings (although perhaps not in the precise manner she wished). 4. The primary issue that prompted the applications was the Applicant's belief that the Attorney was misappropriating CQH's funds from the sale of the regional NSW property. At the first hearing, as previously noted, the Applicant was shown the Bank Account 2 transaction statement and the Bank Account 1 transaction statement that indicated the location of the funds. The Applicant did not accept that the transaction statements were from her father's accounts, and we made directions for the transaction statements from CQH's two accounts to be produced. Whilst these transaction statements became the subject of the non-disclosure order, during the course of the second hearing day the contents of these transaction statements were dealt with orally (they could not be shown to the Applicant, even had a variation been made to the non-disclosure orders, as she was participating remotely from Victoria). The transaction statements mirrored the statements that were shown to the Applicant on the first hearing day. 5. During the course of the second hearing day, the Tribunal asked questions of the Attorney about the material he had produced in accordance with the directions. This included not only the two bank transaction statements, but also the EPOA transaction statement held in the Attorney's name, as well as copies of receipts and records kept by the Attorney of spending on behalf of CQH since his move to Queensland. The Applicant was present throughout the hearing, heard the questions asked of the Attorney and his responses and had the opportunity to ask questions and make submissions about the evidence. 6. As explained by French CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37], the concern of the law in terms of procedural fairness, is to "avoid practical injustice". We formed the view that having the content of the material dealt with in this manner did not deprive the Applicant from adequately presenting her case. It allowed her a reasonable opportunity to be heard or otherwise have her submissions considered in the proceedings (NCAT Act, s 38(5)(c)) and avoided practical injustice. 7. We also had regard to the reality that the adjournment sought by the Applicant was to some extent unknown given the matters set out in sub- para (2) above. 8. We decided that adjourning the hearing for an as yet unknown, but potentially lengthy, period was not consistent with the guiding principle in s 36(1) of the NCAT Act. Importantly, it would not promote CQH's welfare and interests to adjourn the proceedings in all of these circumstances as clarity and certainty about the decisions to be made on his behalf, and who should make them, were in our view critical matters at this time in his life.

CQH'S VIEWS

1. We heard from CQH on both hearing days by way of videoconference.
2. CQH presented to us as engaged in the proceedings although he tired towards the conclusion of the first hearing and fell asleep. Prior to that occurring, we were able to speak with him directly.
3. CQH told us that he was aware of the applications made by his daughter and had read some of the material but that he "can't see any need for it". He told us that "they want what I've got" and "it's an old story". When we asked to whom he was referring, he told us "they are there with you now". We understood this to be a reference to the Applicant and Mr Y who were in the hearing room with the Tribunal members.
4. CQH explained to us the circumstances that led to his move to Queensland. He said that he had had his own place in regional NSW in another suburb in regional NSW but that he was having "some difficulties". He thought that his son's home "was the best place to go". He spoke positively of his experience living with TNH and TNH's family. He described it as "great", that things had improved for him and that he was being treated very well. The family helps him, including his grandchildren, but he doesn't need much help and can do most things for himself. CQH said that his son's wife treats him well, but he could not recall her name at the moment. CQH said that he has made a few friends, he goes out for coffee and will be going to bowls in the next couple of weeks.
5. In relation to his future plans and the possibility of residential aged care, CQH said that he has looked at some facilities but doesn't feel ready for it yet.
6. CQH was able to give a fairly limited account of his current financial situation. He told us that he has two properties in regional NSW, that there could be another one somewhere but that he doesn't know if it is sold yet. He probably will sell the properties at some time, but it depends on how things go. CQH explained that his family and grandkids help him with that sort of thing, that TNH helps him out and that CQH tells TNH what he wants. He said that he would put money from the sale of property into the bank for the time being.
7. He told us that "FZG" (the Applicant) may be entitled to something, but that Ms Z is "well off with what I've given her" and has "already got something from me".
8. CQH stated that he is still happy with the 2009 enduring power of attorney and having TNH help him especially as he is living with TNH. When asked if he wanted his daughters to help take care of his money he said that it would be hopeless trying to do things with his daughters as he was now living in Queensland.
9. CQH also said that he is happy with the 2009 enduring guardianship appointment that appointed his son as guardian. He told us that it has been a long time since he has seen his daughters and feels sad about that.

Applicant

1. In a written statement to the Tribunal provided on 22 September 2023, the Applicant explained that after her father's move to Queensland, she was unable to contact him on his mobile phone later finding out that he was "not capable to answer the mobile phone". In July 2023, she was contacted by the Attorney and between then and early September 2023, she was able to call her father who could answer the telephone on those occasions with help from her brother. She also spoke with her brother, in addition to her father, on those occasions.
2. During one of those conversations, the Attorney told the Applicant that "he was selling all dad's properties". The Applicant queried this "when there was clearly enough money just in dad's bank account to keep dad for the rest of his life". This led to conflict and the Applicant was told not to contact the Attorney again. As this also meant that, practically, the Applicant would be unable to contact her father, she contacted police who in turn contacted the Attorney. The Attorney then "unblocked all the phones" but the Applicant said that it was still difficult for her to contact her father because the Attorney would not pick up the phone when she tried to call her father. She said that Ms Z has also been unable to contact their father.
3. After lodging documents in relation to these proceedings, the Applicant sent a copy of the material to the Attorney. She then received a call from her father on 19 September 2023. She "had a good talk with dad and he knew nothing about the financial events that have occurred with the sale of [the regional NSW property]".
4. In the same document, the applicant stated: 1. She had made a decision that the best outcome for the family would be to put all of her father's money into the public trustee 2. This will "stop dad from being isolated from his daughters as we are the other two inheritors" 3. The guardianship arrangements she wants are to "share dad with my brother and have dad here in Victoria for the summer as the summer in Victoria is good weather for dad and [TNH] to have dad in the winter when the weather is at its best in Qld" 4. TNH as guardian and attorney is not working
5. In her evidence at the hearings, the Applicant confirmed the difficulties she had had in being able to speak with and see her father since his move to Queensland. She believes her brother is preventing this contact and this has increased her suspicion about her brother's actions as attorney. She was concerned that when she has been able to speak with her father, he would forget that they had spoken only days before, forgets that the applicant has called him and did not appear to be aware of the details of the sale of the regional NSW property.
6. We drew the Applicant's attention to the professional reports (summarised later in these reasons) and queried whether the comments made about CQH's memory problems resulting from his diagnosis of Vascular Dementia may provide an explanation for her father's apparent lack of awareness around the sale of the regional NSW property, rather than being actively deceived by her brother as attorney. It was not clear to us whether the Applicant accepted this possibility and remained focussed on her allegations against the Attorney of impropriety.
7. The Applicant had also been told by her brother that she could come and stay in a hotel and see CQH in Queensland. However she objected to this and said that she could not see why her father couldn't come to stay with her in Victoria.
8. The Applicant's principal concerns relevant to the operation and effect of the 2009 enduring power of attorney were as follows: 1. She does not believe that her father knows that his property at regional NSW has been sold 2. She does not believe that the sale proceeds from the regional NSW property are in her father's bank account 3. She has been given no access to her father's financial records. If her brother had nothing to hide, then he should have no problem with giving her and her sister access to these records 4. TNH has misused his power as attorney by: 1. Changing the conveyancer for the sale of the regional NSW property from her father's conveyancer to a different one 2. Changing the sales agent from one agency to another 3. Selling the regional NSW property below market value. CQH wanted $1.5M but it was sold for $1.3M 1. She alleges that the Attorney is being "dishonest", said on more than one occasion that she believes he is taking her father's money, is "embezzling" his money and using it for his own purposes.
9. In relation to the sale price for the regional NSW property, the Applicant did not provide evidence to support her assertion that it was sold for less than its market value and that this was as a result of the poor performance of her brother as attorney. She did, however, provide a copy of email correspondence between herself and the real estate agent who was originally engaged by CQH to sell the property. In a reply email dated 8 September 2023 in response to three emails sent to him by the Applicant (we were only provided with one of these emails dated 8 September 2023), the original real estate agent states in relation to the regional NSW property that: "I had been working a young family on [CQH]'s farm and we had had several inspections and significant interest expressed. The wife and kids had even met [TNH] and [Ms X] in my office due to a co-incidence in timing, and whilst not the normal procedure, the impression I got was that there was mutual goodwill on both sides. [TNH] had signed an agency agreement with me, then within a day he informed me that [CQH] had wanted to re-list the property with [a new real estate agency]. As it eventuated, [the new real estate agency] picked up the buyers and the eventual result was a sale to the young family. (I feel that the deal is a good one for both sides)." (Our emphasis)
10. We drew the Applicant's attention to the statement by the original real estate agent that "I feel that the deal is a good one for both sides" in the context of her assertion that the property was sold for less than market value and that this reflected poorly on the Attorney's actions. She did not, however, engage with this issue or acknowledge what was stated by the original real estate agent.
11. The Applicant attributed her brother's actions as attorney to the influence of his wife. The Applicant told us that TNH has been married for over 20 years. In that time there has been "a lot of talk within the family", including by her parents, about Ms X's family; that they are bad with finances; Ms X's father had been bankrupt on two occasions; and they have a bad reputation. The applicant then went on to say that she doesn't think that her brother is dishonest, but that Ms X and her family are dishonest and TNH will go with whatever Ms X says.
12. According to the Applicant, both CQH and his deceased wife knew of what she described as the bad reputation of Ms X's family. She said that her parents knew that Ms X's family would try to embezzle their money.
13. The Applicant told us that her parents did not like her. She said that her father wanted his money to go to Ms X and "not me or [Ms Z] and be swindled", that "he believes females are zeros of the earth we are nothing"; and that "[TNH] is the king here, my sister and I have been treated as zeros and it shows on paper". The applicant told us that she is the executor of her father's will. She described this as being the "joke at the end". We understood the Applicant to be saying that her father intended that there would be no money left in his estate when he passed away and she would have nothing to administer as executor.

Attorney

1. The Attorney denied all of the allegations made by his sister concerning the exercise of his power as attorney and said they were completely untrue.
2. His evidence is that he commenced to exercise functions under the 2009 enduring power of attorney on 27 July 2023.
3. In a written document dated 7 October 2023 (provided to the parties) he states: 1. Apart from the two bank accounts in his father's name (Bank Account 2 and Bank Account 1), to his knowledge there are no other bank accounts in his father's name 2. To his knowledge there are no joint bank accounts in his father's name 3. As the attorney he was advised of the appropriate procedures by a bank manager to ensure that he fulfilled his duties "judiciously". This required opening a separate account in the Attorney's name to clearly document the distribution of funds on behalf of CQH. 4. No family members have received any payments for care or services provided to CQH since his move to Queensland 5. CQH has not made any financial contribution to household expenses at the family home in Queensland. The cost of meals outside of the standard (five days per week) deliveries of a charitable organisation, his coffee and/or lunch outings are met by the Attorney. All homemade and dining out meals are borne by the Attorney 6. No-one has claimed a carers payment from Centrelink 7. The Attorney has encouraged his father to use his bank debit transaction card to ensure that there is evidence of where and what he spends his money on 8. All matters pertaining to the enduring power of attorney and CQH's financial circumstances have been provided for consideration and review to his pre-existing long-term solicitor.
4. In oral evidence, the Attorney explained the reason for the change of agent for the sale of the regional NSW property. Shortly after signing the agency agreement with the original real estate agency, he decided to make a change to the agent. This was because the original real estate agent had by that time had already the property on his books for around five months and the property was advertised at $900,000 - $1M. He suggested to CQH that they make a change to a new real estate agency and his father agreed. The Attorney feels that this was a good decision as the property was sold for $1.3M.
5. The Attorney advised that, contrary to the Applicants assertion, his father's long-term solicitor continues to be the solicitor for his father and there has never been a change since he commenced acting as attorney.
6. When the regional NSW property settled, the sale proceeds were deposited automatically (by way of PEXA) into his father's Bank Account 2. This account is in CQH's name alone and has an ATM card attached to it which CQH uses. The Attorney subsequently transferred the total sale sum to CQH's Bank Account 1. This account is also in CQH's name alone. The Attorney did this as he described Bank Account 1 as a high performance account and had a better cash interest rate.
7. According to the Attorney, it was his father's wish to sell all three of his properties and had been moving to sell them all at different times. CQH already had the regional NSW property on the market before he moved to Queensland. The Attorney has finalised the sale on his father's behalf. He is also acting in accordance with his father's wishes in relation to the sale of the other two properties. The Attorney produced a financial advice report (referred to in more detail below) which set out options for the funding of CQH's future care and accommodation in residential aged care when that decision is made. The sale of the two properties is included in those options.
8. The Attorney told us that his wife's father went bankrupt in 2013. He "has come back from that and is now doing well". Ms X has not worked in her father's former business since that time. The Attorney's evidence was that this has nothing to do with his role as his father's attorney.

Other evidence

1. Mr Y supported his wife's applications. He said that he and his wife were worried about how it will go for CQH if all of his property and money is hidden or gone, that is, taken by the Attorney.
2. Ms Z told us that her father had signed different enduring documents in 2007 and all three children had been appointed under these arrangements. She only became aware of the 2009 enduring power of attorney and 2009 enduring guardianship appointment in 2023.
3. The last time that Ms Z saw her father was just prior to his move to Queensland. She lived not far from her father's home in regional NSW. She told us that her father only went to Queensland to try it out but not to stay. She thought that her father was coming to live with her but that her brother "took" her father with no discussion.
4. Ms Z shared her sister's concerns about their lack of contact with CQH and concerns about the Attorney's actions concerning their father's property and money.
5. Ms Z supported the applications made by her sister and the outcomes sought in those applications.

CQH'S PERSONAL CIRCUMSTANCES (HEALTH AND ACCOMMODATION)

1. It is convenient here to summarise the documentary evidence provided to the Tribunal concerning CQH's personal circumstances including assessments of his health and support needs. Much of this material was produced by the Attorney in response to the directions made on 27 September 2023 and some by the Applicant in correspondence provided to the Tribunal. The information provided in the reports summarised below did not appear to be in dispute.
2. We deal later with the documentary and oral evidence concerning CQH's financial circumstances when setting out our consideration of the Applicant's request for review of the 2009 enduring power of attorney.

CQH's personal circumstances

1. A Patient Health Summary report recorded by Dr W on 28 December 2022 at a medical centre in another suburb in regional NSW (provided to all parties) notes the following: 1. At the time of this appointment CQH was still living at his property in regional NSW 2. CQH attended the appointment with Dr W in the company of TNH and Ms X 3. They had been contacted by CQH's solicitor who in turn had been contacted by Ms Z expressing concern about a decline in her father's mental health, that he "needed attention" and that TNH as attorney and enduring guardian needed "to take care of him" 4. TNH and Ms X brought CQH to the appointment to get a check-up, to assess whether CQH can manage himself and "to ensure they had done the right thing" 5. CQH's views are recorded as follows: he has a large property with cattle and is able to look after them but finds it a bit difficult as he is getting older and is downsizing; he feels that he can manage well at the moment; he was thinking of selling his property and moving to a smaller place in another suburb in regional NSW 6. CQH "doesn't get much assistance from his daughter, she lives 200m away from [CQH], states he is quite weary (sic) of her as his daughter and son-in-law have ulterior motives and can be quite controlling and hence states that moving away from them would be better" 7. TNH and Ms X have asked CQH to move to Queensland and live with them. However, CQH "states that he does not want to be a burden and while he has his independence would like to transition to the smaller home and then if need be in the future could move in with them" 8. CQH's memory was "not as good as it used to be but thinks its okay" (we presume this is a reference to CQH's self-report to the GP). Ms X is recorded as stating that "his memory has been quite good, discussion about stories from way long ago very clear" 9. A recent health assessment recorded a mini-mental state examination result of 26 out of a possible 30.
2. Dr W's report concluded with the following plan:

• Patient to sell large property and move into smaller home
• Can consider [an aged care assessment] once in smaller home - patient states is quite independent and if needs he will ask for assistance

1. In June 2023, CQH's driver's licence was suspended by the police in regional NSW. In the same month, the Attorney was contacted by police who were concerned for CQH's welfare. The Attorney travelled with Ms X to regional NSW. Later that month, CQH drove back to Queensland with his son and has remained there since.
2. CQH attended the Emergency Department of a public hospital in Queensland as his family were concerned about his "appetite, hydration and care needs". A discharge letter dated 20 June 2023 from the ED (provided to the parties) noted that CQH had not previously been formally investigated or diagnosed with dementia and the emergency doctor requested that this occur. He was also referred for assessment by an Aged Care Assessment Team (ACAT) and discharged into the care of his family who were "happy to care for him in the interim".
3. CQH attended the Memory Clinic of the public hospital on 27 July 2023 and was assessed by Dr V, Staff Geriatrician, and Dr U, Registrar in General Medicine for Dr V. He was with the Attorney and Ms X. The report (provided to the parties) records that CQH:

• Has three children but only recalled two of them. He could not tell the doctor whether he had any grandchildren (he has seven)
• Became "incredibly emotional" when talking about his deceased wife
• Relies on his family to do most of his occupational activities of daily living for him
• Informed the doctor that he was still driving prior to moving to Queensland, did not believe that his driving was of any concern, but did not mention that his licence had been removed by NSW Police
• Was assessed by an ACAT team in the week prior and had been approved for a level 4 package (high-level home care), but a service provider was yet to be identified
• Completed a mini-mental state examination and scored 18 out of a possible 30 losing the most points in orientation for which he scored 2 out of a possible 10

1. Dr V and Dr U conclude that CQH has: "… a moderate vascular dementia with a possible alcohol component to this given his long history of heavy drinking. We note [CQH]'s significant and progressive functional impairment and a failure to live independently… … We spent a long time discussing future planning and the need for [CQH] to consider nursing home placement. [CQH] was somewhat agreeable to this but was hoping to delay as long as possible. However given the significant risk to himself and decline to date, [CQH] likely needs aged care placement sooner rather than later."
2. The report also notes that the Attorney was having difficulty accessing and paying bills for the farm, many of which were overdue. Dr U wrote a letter dated 27 July 2023 (provided to the parties) stating that as a result of vascular dementia, CQH has been assessed to lack the cognitive capacity to understand, retain or communicate complex decisions and that his enduring power of attorney should be enacted.
3. As enduring powers of attorney under equivalent legislation in Queensland encompass both financial and personal decision making, and noting that Dr U confirmed that CQH requires enactment of his enduring power for "financial and accommodation decisions", we understood his letter to "require enactment" of the two NSW documents, that is, the 2009 enduring power of attorney as well as the 2009 enduring guardianship appointment.
4. Accordingly, from 27 July 2023, TNH had the formal authority to act on his father's behalf as attorney and enduring guardian.
5. On 15 September 2023, CQH was visited in his home by Dr S following a referral from the Post Acute Care Team. Dr S is a Registrar in Medicine for Dr T, Geriatrician, with the Chronic Complex Disease Team.
6. Based on this home visit, Dr S wrote a report of the same date (provided to the parties) and noted as follows:

• CQH remains confused and sometimes needs continuous redirection. He has minimal safety awareness and there are concerns for his safety especially if he is home alone
• He receives care from My Aged Care from 8am to 10am on most weekdays and then from a private carer from 10am to 6pm until his son and daughter-in-law return from work
• CQH is still struggling with significant grief over the death of his wife and he was very teary when discussing this with Dr S. He admitted to being depressed and sometimes has very little will to live, but has no thoughts of self-harm. CQH scored six out of a possible 15 on a Geriatric depression scale indicating possible depression
• He finds enjoyment spending time with his grandchildren. He feels very well looked after by his family and repeatedly expressed his gratitude and appreciation for what they are doing for him
• Dr S observed that CQH appears to be doing well since he has moved in with TNH and Ms X. He is eating and drinking well and has put on weight. He has not had any falls, is sleeping well and is drinking only zero alcohol beer
• CQH was friendly and open, cooperative and his speech was fluent with slightly reduced volume and slowed rate. There was slight slowing with regard to his thought processes which is in keeping with his diagnosis of Vascular Dementia.
• CQH's insight into his current care needs is impaired.
• Given the recent cognitive testing carried out by Dr U, Dr S decided not to repeat this testing. He noted that the long-term plan is to find CQH a suitable aged care facility that he feels comfortable in with a plan to transition from respite into permanent care
• Dr S decided to discharge CQH from the Chronic Complex Disease Team. He recommended to CQH's GP a trial of anti-depressant medication and bone mineral density testing to check for osteoporosis. Dr S also noted that CQH has atrial fibrillation for which he is not on any medication and which requires monitoring

CQH's new address

1. Pursuant to the directions made on 27 September 2023, the Attorney provided copies of the following material that recorded his father's residential address in regional Queensland. The other parties were also provided with copies of this material: 1. Queensland Government photo identification card, card expiry date [date removed for publication.] 2. Letter from Medicare received 20 July 2023 attaching new Medicare card address with the regional Queensland address 3. Australia Post redirection confirmation letter dated 11 July 2023 redirecting post from regional NSW to the regional Queensland address
2. The Attorney told us that all of his father's personal effects from the regional NSW property have been transported to Queensland.

Advice concerning funding of residential aged care

1. The Attorney sought advice concerning his father's capacity to fund a move into residential aged care. A Statement of Advice dated 7 August 2023, prepared by Ms R, an Aged Care Accredited Financial Adviser employed by an aged care financial services provider, was provided to us and the other parties. The Statement of Advice was prepared following a meeting with CQH and TNH and information provided to the adviser as to CQH's financial circumstances.
2. The Statement of Advice provides five different options for rearranging CQH's assets and structuring his fee payments were he to move into residential care. Each option was "reviewed against your objectives and needs and the resulting impact on your eligibility for Centrelink age pension benefits, aged care fees, taxation liability, immediate and projected cashflow and change to asset values over time" (page 12). These five options move from Financial Strategy 1 to Financial Strategy 5 with options for retaining or selling CQH's three properties with estimates of the resulting impact on CQH's yearly net cash flow position. For example, Financial Strategy 1 (involving retention of all three properties) provides an estimate of a negative net cash flow position of $84,810 per year. Financial Strategy 5 (involving sale of all three properties) provides an estimate of a positive net cash flow of $90,213 per year.

GUARDIANSHIP APPLICATION

1. Given CQH's move to Queensland, we had to consider whether the Tribunal has power to make a guardianship order under the Act.
2. A useful summary of the relevant issues for consideration is set out in MGV [2017] NSWCATGD 40 at [9]-[11]: "[9] NCAT is a creature of statute. Its powers are conferred by the legalisation which created it, the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and any enabling legislation, relevantly the Guardianship Act 1987 (NSW). [10] Neither the Guardianship Act nor the NCAT Act expressly address whether the person the subject of an application made under the Guardianship Act, must be in NSW at the time the application is made or be a resident or domiciled in NSW. However, being legislation enacted by a State Parliament, at common law the Guardianship Act is presumed not to have extraterritorial operation: Jumbunna Coal Mine NL v the Victorian Coal Miners' Association (1908) 6 CLR 309; [1908] HCA 95 at [363]. [11] The presumption against extraterritorial operation will generally only be displaced where there is some clear connection or nexus between the enacting state and the extraterritorial, thing, person or event: Pearce v Florence (1976) 135 CLR 507; [1976] HCA 26; Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1; [1988] HCA 55. (See, also JAK [2007] NSWGT 23 at [26]-[33].) If the application of the presumption against extra-territoriality would defeat the purpose of the legislation, then it can be assumed that it was the intention of the legislature to override the presumption: Kumagai Gumi Co Ltd v FCT [1999] FCA 235; (1999) 161 ALR 699 at [707]."
3. Based on the summary of evidence concerning CQH's personal circumstances, it was uncontested that until late June 2023 he lived in his regional NSW property; that in late June he travelled to Queensland; and he has lived in his son's family home since that time.
4. The documents listed above at [83] record CQH's new address in Queensland. This includes a new Queensland Government identity document, confirmation that his mail would be redirected from regional NSW to a regional Queensland address and a change of address for his Medicare card.
5. All of his personal effects have been transported to Queensland.
6. CQH told us that he was happy with the decision to move, feels well taken care of and does not intend returning to live in NSW.
7. The Attorney has obtained financial advice from the aged care financial service provider in relation to the funding of residential aged care when that becomes necessary. We accept that it is intended that residential care will be sought in Queensland. The advice document provided by aged care financial service provider suggests five different options for the structuring of CQH's affairs, predicated on the sale of one or both of CQH's remaining two properties to fund CQH's future accommodation and care. We understood that the Applicant may have taken action to prevent the sale of at least one of these properties by way of lodgement of a caveat, and that there may be ongoing dispute regarding the two properties.

Conclusion - no jurisdiction

1. We find that although CQH lived his life up until June 2023 in NSW, he is no longer physically present in NSW, is no longer a resident of NSW and he intends to reside indefinitely in Queensland. While he owns two properties in NSW, we are not persuaded that the fact of this ownership displaces the presumption against extraterritoriality. Subject to the success or otherwise of any legal action taken by the Applicant in relation to the sale of the properties, it is the intention of the Attorney to deal with the properties in whichever way maximises CQH's ability to fund his own residential care. Based on the options suggested by the aged care financial service provider, this clearly includes the prospect of the sale of the properties.
2. We took into account the evidence given by Ms Z that, from her perspective, the move to Queensland was not meant to be permanent and that there was conflict between her and her brother surrounding her father's departure from NSW in the company of the Attorney. We accepted that relations between the three siblings have been difficult for some time and that both Ms Z and the Applicant have had difficulty maintaining contact with their father since relations deteriorated further in September 2023. Nevertheless, these factors, whilst important as they are within the family, are not sufficient in our view to displace the presumption against extraterritoriality.
3. We conclude that the connection between NSW and CQH is now sufficiently remote that the presumption against the extraterritorial operation of the Act is not rebutted. For the sake of completeness, we also find that it could not be reasonably argued that the presumption against the extraterritorial operation of the Act would defeat the purpose of the Act in this matter.
4. It follows that we do not have jurisdiction to make an order under the Act for CQH and the application is dismissed.

APPLICATION TO REVIEW 2009 ENDURING POWER OF ATTORNEY

Statutory framework

1. On the application of an "interested person", a review tribunal (the Supreme Court or NCAT) may decide to review the operation and effect of a "reviewable power of attorney", or to not carry out such a review: POA Act, s 36(1). In that Act, a "reviewable power of attorney" includes an "enduring power of attorney": POA Act, ss 33(1)-(2). An enduring power of attorney is an instrument, "expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument": POA Act, s 19(1).
2. Section 36 of the POA Act provides: 36 Interested persons may apply for review (1) Tribunal may review making or operation and effect of power A review tribunal may, on the application of an interested person, decide to review the making, revocation or the operation and effect of a reviewable power of attorney or not to carry out such a review. (2) As a consequence of reviewing the making, revocation or operation and effect of a reviewable power of attorney, a review tribunal may decide whether or not to make an order under this section. … (4) Orders relating to operation and effect of power A review tribunal may, if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal, make any one or more of the following orders relating to the operation and effect of a power of attorney: (a) an order varying a term of, or a power conferred by, the power of attorney, (b) an order removing a person from office as an attorney, (c) an order appointing a substitute attorney to replace an attorney who has been removed from office by a review tribunal or who otherwise vacates the office, (d) an order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of an attorney and appointing a substitute attorney to replace the attorney who vacated office, (e) an order directing or requiring any one or more of the following: (i) that an attorney furnish accounts and other information to the tribunal or to a person nominated by the tribunal, (ii) that an attorney lodge with the tribunal a copy of all records and accounts kept by the attorney of dealings and transactions made by the attorney under the power, (iii) that those records and accounts be audited by an auditor appointed by the tribunal and that a copy of the report of the auditor be furnished to the tribunal, (iv) that the attorney submit a plan of financial management to the tribunal for approval, (f) an order revoking all or part of the power of attorney, (g) such other orders as the review tribunal thinks fit. …

Should we review the 2009 enduring power of attorney?

1. The focus of the Applicant's application for review was the conduct of the attorney and she requested a review of the operation and effect of the 2009 EPOA. The Applicant did not seek a review of the making of the enduring power of attorney by her father in 2009.
2. As explained by Slattery J in Susan Elizabeth Parker at [42], ss 36(1) and 36(2) of the POA Act give the review tribunal, here NCAT, a two-step discretion. The review tribunal may first exercise a discretion to "decide to review" the operation and effect of a reviewable power of attorney or "not to carry out such a review": POA Act, s 36(1). If the review tribunal decides to exercise that discretion, it may exercise a further discretion "whether or not to make an order" under [s 36]": POA Act, s 36(2).
3. The POA Act does not expressly state the considerations relevant to the exercise of the discretions conferred by ss 36(1)-(2) of that Act. However, as pointed out by Slattery J in Susan Elizabeth Parker at [110], where, as here, the review relates to the operation and effect of a reviewable power of attorney, s 36(4) of the POA Act gives guidance as to the exercise of these "two successive discretions". The preamble to that sub-section requires the review tribunal to be satisfied that "it would be in the best interests of the principal to do so" or that "it would better reflect the wishes of the principal", before making any one or more of the orders listed in that sub-section. His Honour commented at [110]: "[T]hese types of consideration are particularly apposite to a situation where the principal has lost capacity and cannot assist the Court with information about the principal's own interests or wishes, a situation which Courts will often face in the exercise of s 36 powers."
4. In the same decision (at [80]), His Honour noted that the Court did not have to consider the detail of every request that the Applicant had made. This was because, in part, when exercising the first discretion under s 36(1) of the POA Act to decide whether or not to conduct a s 36 review: "the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what [the attorney in that case] has produced."
5. In order to decide whether or not to conduct a review of the 2009 enduring power of attorney, we considered the oral evidence provided on both hearing dates and undertook a "general survey" of the written material which was provided in large part by the Attorney in response to the directions made on 27 September 2023 and also by the applicant in correspondence provided to the Tribunal.

General survey of documentary evidence provided by attorney

1. By the time of the first hearing day of these proceedings on 27 September 2023, the regional NSW property had been sold as well as the farm vehicle, farm equipment and livestock.
2. CQH still owns the following two properties located in NSW: 1. Regional NSW Property 1 2. Regional NSW Property 2
3. We understood from the evidence that the Applicant intends to lodge caveats on the titles of these two properties. We were not informed of the progress, if any, of these matters.
4. CQH has two bank accounts. They are held in his name alone. We were provided with transaction statements for these accounts as follows: 1. Bank Account 1, ending with account no's [removed for publication] (Bank Account 1) 1. 31 March 2023 - 30 June 2023 2. 30 June 2023 - 29 September 2023 1. Bank Account 2, ending with account no's [removed for publication.] (Bank Account 2) 1. 30 June 2023 - 29 September 2023

Bank Account 2 account

1. In relation to Bank Account 2, for the transaction period 30 June 2023 - 29 September 2023, the opening balance is recorded as $84,635. At the close of that period, the closing balance is $68,528.
2. In relation to this account the following credit transactions are recorded: 1. 28 July 2023 - credit of $8,100 (the Attorney advised this was a payment into CQH's account for the sale of livestock) 2. 5 September 2023 - credit of $32,041 (the Attorney advised this was a payment into CQH's account for the sale of farm equipment) 3. 8 September 2023 - credit of $18,000 (TNH advised this was a payment into CQH's account for the sale of his father's motor vehicle) 4. 15 September 2023 - credit of $1,231,545 (TNH advised this was the balance of the settlement sum for the sale of the regional NSW property (described in the transaction account as "Electronic Property Settlement Monies Pexa [reference no.]" (We note that PEXA is an online conveyancing platform) 5. 15 September 2023 - credit of $22,100 (TNH advised this was the remainder of the deposit held by CQH's agent (the new real estate agency) (described in the transaction account as "new real estate agency regional NSW").
3. In relation to Bank Account 2, the following debit transactions are recorded (not every individual debit is listed, but a number are grouped as indicated): 1. 19 July 2023 - debit of $30,000 (TNH advised that this amount was transferred to Bank Account 1 on the same date. The Bank Account 1 transaction statement provided to us records that this amount was deposited on the same date) 2. 31 July 2023 - debit of $20,000 (with a reference to "withdrawal/cheque [removed for publication]"). The "EPOA Account" held in the name of TNH (see below) records that $20,000 was credited to that account on the same date) 3. 9 August 2023 - debit of $20,000 (with a reference to "withdrawal/cheque [removed for publication.]"). The "EPOA Account" held in the name of TNH (see below) records that $20,000 was credited to that account of on the same date) 4. 19 September 2023 - debit of $1,253,645 (TNH advised that this amount was the total sum of the two payments for the regional NSW property referred to above. On the same date, this exact amount was credited to CQH's Bank Account 1). 5. Over the transaction period - numerous amounts are debited for purchases/payments for good and services including a private health cover, a law firm in regional NSW (Invoice related to the regional NSW property), grocery shop, café, another grocery shop, a shop, a chemist, a charitable organisation, and a private in home care provider, etc.

Bank Account 1 account

1. In relation to Bank Account 1: 1. For the transaction period 31 March 2023 to 30 June 2023, the opening balance is recorded as $960,260. No debits are recorded for the entirety of the statement. At the close of that period (30 June 2023) due to interest paid, the closing balance is $970,864 2. For the transaction period 30 June 2023 to 29 September 2023, the opening balance is recorded as $970,864. No debits are recorded for the entirety of the statement. Apart from interest paid there are two other "Transfer deposits": on 19 July 2023 a deposit of $30,000 and on 19 September 2023 a deposit of $1,253,645. The closing balance (as at 29 September 2023) is $2,267,969.

EPOA account in name of TNH

1. The Attorney has a bank account that he opened following advice from staff of that bank that he needed this account to undertake transactions of his father's behalf as his attorney. This account is in TNH's name alone and is entitled on the transaction account "EPOA Account", with account no. [removed for publication.]. We were provided with transaction statements for this account as follows: 1. 31 July 2023 - 1 August 2023 2. 31 July 2023 - 2 October 2023
2. As noted previously, two amounts of $20,000 each were deposited into the EPOA Account on 31 July 2023 and 9 August 2023 respectively. Over the transaction periods, numerous amounts are debited for payments for services (all noted as related to CQH) including preparation of tax returns for FY 2022 and FY2023, payment to the aged care financial service provider for advice provided, electrical works for the regional NSW property, marketing deposit to the new real estate agency, mowing service at the Regional NSW Property 1, payment to a law firm in regional NSW, removal and storage costs for the Regional NSW Property 1.
3. The EPOA account also records funds reimbursed to the Attorney for expenses he had incurred on his father's behalf from June 2023 to October 2023. The Attorney provided a copy of a spreadsheet that itemises each of the expenses incurred and copies of receipts and invoices.
4. During the course of the second hearing day, we asked the Attorney about many of these itemised expenses, a large proportion of the itemised expenses relate to private care costs for CQH. The other "group" of out-of-pocket expenses paid for by the Attorney and then reimbursed included costs associated with moving his father out of the regional NSW property and getting it ready for sale (flights, accommodation, furniture removalists, cleaners, etc.).
5. The total amount reimbursed to the Attorney, as reflected in the EPOA account, is $21,668. The receipts and invoices provided amount to approximately $21,700.

Conclusions

1. We decided, under s 36(1) of the POA Act, not to review the 2009 enduring power of attorney.
2. Before setting out our reasons for exercising our discretion in this manner, we note that the relationship between the Attorney on the one part and his sisters on the other, is clearly fraught. This was evident not only in the written material before us but more especially in statements made at the hearing about each other and about matters long in the past. However, when giving evidence about his father's financial affairs and his role as attorney, we found TNH to be a credible and truthful witness. His evidence about these matters was given in a measured manner and was consistent with the documentary evidence contained in the various bank transaction statements.
3. The Applicant asserted that the Attorney accepted a sale price for the regional NSW property that was less than market value. The Applicant did not provide any evidence, other than her allegation, to support this assertion. The only other evidence provided by the applicant that was relevant to this issue was an email from the original real estate agent dated 8 September 2023, the original sales agent, who described the sale as a deal that was "a good one for both sides". This statement, on its face, supports the sale price as being a good price for CQH. When given the opportunity to explain why we should not view the original real estate agent's statement in this light, the Applicant was unable to do so. We concluded that there was nothing in the evidence before us to support the Applicant's view that the property was sold for less than market value.
4. The Applicant asserted that the Attorney has misused his power by changing conveyancing solicitors in relation to the sale as well as changing the sales agent to a new real estate agency. The evidence however indicates that the Attorney has continued to utilise CQH's long-term solicitor. The Attorney also provided an explanation, which we accept, for the change of sales agent for the sale of the regional NSW property. In essence the Attorney felt that a new sales agent may be able to achieve a speedier sale and a higher sale price. This proved to be the case and the evidence does not support the Applicant's assertions.
5. The primary issue of concern raised by the Applicant was the location of the sale proceeds of the sale of the regional NSW property. The Applicant made the serious allegation that the Attorney is being dishonest, is taking her father's money and is embezzling it and using it for his own purposes. She did not believe that the sale proceeds for the regional NSW property were in her father's bank account. However, based on our general survey of the evidence, we are satisfied of the following: 1. CQH has two bank accounts (Bank Account 1 and Bank Account 2) which are in his name alone. On the first hearing date the applicant was shown a copy of these transaction statements. She did not however accept that they represented accounts held by her father as they were transaction statements sent to her brother as CQH's attorney. By the time of the second hearing day, copies of these transaction statements, in CQH's name, had been provided by the Attorney. Although the applicant was not provided with a copy of these statements because of the non-disclosure orders made on 16 October 2023, at the hearing we identified the entries in the transaction statements in relation to the proceeds of sale relating to the regional NSW property. These mirrored the transaction statements viewed by the applicant on the first hearing day. 2. The Bank Account 2 transaction statement records that on 15 September 2023, the amounts of $1,231,545 and $22,100 were credited to Bank Account 2. These amounts represented the balance of the settlement sum for the sale of the regional NSW property and the deposit held by the sales agent. On 19 September 2023, these two amounts totalling $1,253,645 were transferred to Bank Account 1. The Attorney's evidence, which we accept, is that the funds were transferred because Bank Account 1 attracts a higher interest rate than the other account and cannot be accessed without a personal visit to the bank. 3. The Bank Account 1 transaction statement records that as at 29 September 2023 (the end date for the transaction period recorded in the statement), these sale proceeds remained in CQH's account. 4. We note that the same Bank Account 1 transaction statement records an opening balance as at 31 March 2023 of $960,260 (before the attorney commenced acting in that role). Another amount of $30,000 was deposited on 19 July 2023 (from Bank Account 2). The sale funds of the regional NSW property were transferred into the account on 19 September 2023. No withdrawals are recorded on this account for the entirety of the period of 31 March 2023 to 29 September 2023. As at 29 September 2023, the closing balance of the account is recorded as $2,267,969. 5. Having viewed these statements, we found no basis for the Applicant's allegations that the sale proceeds of the regional NSW property have been misappropriated by the Attorney. The sale proceeds remained in CQH's account as at the date that the applications were lodged by the applicant and remained there as reflected in the transaction account ending on 29 September 2023.
6. Although the applicant's concerns about the location of the sale proceeds of the regional NSW property were the main reason for her application seeking review of the 2009 enduring power of attorney (and the financial management application), we nevertheless undertook a general survey of the other documentary material provided to us concerning CQH's financial affairs. This included the EPOA account established in TNH's name; Bank Account 2; and the receipts and invoices provided by the Attorney for amounts spent by him on his father's behalf and reimbursements for those payments.
7. We accept the Attorney's evidence that he established the EPOA account in his name on the advice of the bank. This is a common course of action taken by an attorney under an enduring power of attorney. It not only enhances transparency around the transactions taken by an attorney but also makes a clear delineation between the principal's funds and those of the attorney.
8. We accepted the Attorney's evidence that some of his father's funds from Bank Account 2 were transferred to the EPOA account to meet ongoing costs. This is consistent with the transaction account for Bank Account 2 which records that two amounts of $20,000 were debited from this account on 31 July 2023 and 9 August 2023 respectively. On the same dates, amounts of $20,000 each were credited to the EPOA account.
9. The transaction statement for the EPOA account record transactions from 31 July 2023 to 2 October 2023. As previously noted, these included transactions concerning the preparation of the 2022 and 2023 tax returns, costs associated with the sale of the regional NSW property, payment of legal services provided by a law firm in regional NSW, etc. As at 2 October 2023, this account showed an overall balance of $1,439. We accept from the transaction statements, and the Attorney's explanation as to the usage of this account, that it has been used in a regular, reasonable manner and does not disclose anything untoward in terms of the use of CQH's funds.
10. The Attorney gave evidence that Bank Account 2 is used as a daily transaction account and a debit card is attached to it that remains in the possession of CQH. The Attorney encourages his father to continue to use the debit card for day-to-day expenses. We accepted that this was so that CQH can continue to have access to his own funds, and maintain some independence, within reasonable limits. The transaction statements for this account support the evidence about the use of the account for these purposes with many of the transactions showing debits for relatively small payments to retail outlets such as a bake shop, grocery shop, a retail shop and the chemist. These debits are in the vicinity of $6 at a time up to $40.
11. The transaction statement for Bank Account 2 also records regular, larger debits for items such as private health insurance, a charitable organisation, and a private care provider.
12. Our general survey of the transaction statements for this account does not indicate anything untoward in terms of the use of CQH's funds.
13. Finally, although not directed to do so, TNH provided information and receipts in relation to expenditure by him:

• TNH financial reimbursements (26 September 2023 $3,625; 5 September 2023 $7,043; 22 August 2023 $9,000; 2 August 2023 $2000) total of $21,668.
• The receipts and invoices paid on CQH's behalf amounted to approx. $21,726.

1. When these records in these statements were brought to the attention of the Applicant in the hearing, she made an assertion to the effect that the attorney was still likely to misappropriate CQH's funds in the future. She did not, however, provide any evidence in support of this accusation other than her own belief that this would occur. There was nothing in the documentary material provided to support a finding of a likely risk to CQH's estate as a result of the Attorney's actions. There was nothing in the evidence to indicate that the Attorney has acted contrary to his father's interests or in breach of his fiduciary obligations as attorney: POA Act, s 12(1).
2. For these reasons we decided not to carry out a review of the operation and effect of the 2009 enduring power of attorney as we were not satisfied that it would be in CQH's best interests or would better reflect his wishes to conduct a review under s 36(1) of the POA Act.

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: 24 May 2024