The Victorian Civil and Administrative Tribunal (VCAT) is providing these reasons on a confidential basis. Clause 51AJ of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 provides that, unless VCAT orders otherwise, a person must not publish or broadcast any report of a proceeding under the Powers of Attorney Act 2014 that identifies or could lead to the identification of a party to the proceeding.**

1. In June 2017, IKD filed an application with the Tribunal seeking orders in relation to an Enduring Power of Attorney (2016 EPA) (Personal and Financial Matters) created by his mother, EML, on 24 February 2016. EML was 88 at the time she executed the 2016 EPA.
2. IKD stated in the annexure to his application that he had no problem with the fact that his mother had executed the 2016 EPA in favour of his brother, LUS, as principal attorney and FNP, LUS wife, as alternate attorney.
3. IKD stated in his application that he was however concerned about the conduct of the attorneys and in particular:
   • (a) the transfer of the former family home of EML to LUS and FNP;
   • (b) whether the family home had been transferred for less than its value and whether any payment had been made by the attorneys for the transfer; and
   • (c) potential breaches of sections 64, 72 and 135 of the Powers of Attorney Act 2014.
4. IKD initially sought a declaration about the validity of the transfer of the family home and accounts.
5. At the first hearing, Member A. Kominos adjourned the proceedings to enable the Public Advocate time to complete an investigation and report to the Tribunal. The matter was to be relisted before the Tribunal on completion of the Public Advocate's investigation report.
6. I heard this matter over two days being 2 November 2017 and 28 February 2018 and also met privately with EML on 20 March 2018 at her aged care home. I also received a number of written submissions and affidavits from parties and the investigative report from the Office of the Public Advocate.
7. Mr Allan Elliott, an investigator with the Office of the Public Advocate, provided his report to the Tribunal on 21 September 2017. The matter was listed for hearing before me on 2 November 2017 and a substantial argument was undertaken before me that day. Both the applicant, IKD, and his mother, EML, were represented by counsel. LUS and FNP appeared in person. Mr Elliott also attended the hearing. The solicitor who took instructions for the creation of the 2016 EPA was also present and instructing EML's counsel.
8. Immediately prior to the 2 November hearing, IKD indicated in writing to the Tribunal that he now sought to overturn the transfer of the family home to LUS and FNP, and to have a guardian and administrator appointed to manage his mother's financial and personal affairs.
9. In effect this meant that the applicant sought to have the 2016 EPA revoked and a guardian and administrator appointed to care for his mother, EML.
10. Quite early in the 2 November 2017 hearing, I indicated to the applicant that the Tribunal has no jurisdiction to revoke an Enduring Power of Attorney made under the Powers of Attorney Act 2014 unless the Tribunal is satisfied that the principal has no decision-making capacity at the time of the hearing.
11. Evidence before the Tribunal on 2 November 2017 about EML's capacity had been provided in a number of ways. There was the investigative report to the Tribunal from Mr Elliott dated 21 September 2017 (OPA Report). There was an affidavit from IQN (the solicitor for EML both at the time of the hearings and at the time of creating various powers of attorney for EML). There was also a corroborating affidavit about the capacity of EML at the time of execution of the 2016 EPA from another solicitor from IQN's office.

1. Mr Elliott listed the questions asked by the Tribunal at the commencement of his report. These included:
   • (a) What are EML's wishes so far as can be ascertained?
   • (b) What was EML's capacity at the time to execute the EPA?
   • (c) Was there any undue influence with the execution of the EPA?
   • (d) The wishes of EML as to who should look after her financial and personal affairs?
2. Mr Elliott's report summarised his investigations with each person he met. He also set out his views regarding EML's capacity.

1. Mr Elliott set out a summary of his discussions with EML. This included some history about the applicant son IKD having made clear by letter to EML, 30 years earlier, that IKD did not want contact with EML. EML advised Mr Elliott to get a copy of the letter from her other son LUS as she had not kept a copy of it. EML believed her home was waiting for her to return to, that she had sold her other assets on the advice of her financial planner and said that she did not want her son IKD to inherit anything under her estate. EML stated that she did not believe LUS had exercised his powers under the 2016 EPA as attorney as she had made her own decisions based on the advice of her financial adviser and signed documents herself. She wants LUS to look after her affairs when she loses capacity.

1. Mr Elliott refers to the existence of four medical reports as to EML's capacity. Three reports are by QED (EML's family doctor of ten years). One psychiatric report is by KRJ, about which Mr Elliott states that KRJ states in conclusion that EML "does not demonstrate testamentary incapacity".
2. Mr Elliott states that determining whether EML had testamentary capacity in February 2016 from investigations now is difficult as EML suffered a stroke and significant health issues between the time of creating her 2016 EPA and 21 September 2017 when he met with her. In Point 12 of his report, Mr Elliott states that on seeking advice from a neuropsychologist, he was advised that it is not possible to conduct a neuropsychological assessment retrospectively, particularly where there had been intervening health events and a lack of significant evidence of a present disability that is impacting EML's capacity to make decisions for herself.
3. Further, the neuropsychologist is reported as stating to Mr Elliott that EML's ten-year general practitioner would be better placed to make an assessment of capacity than a neuropsychologist trying to determine the level of capacity eighteen months after the event in question.

1. IKD advised him of his concerns about LUS's actions in respect to the 2016 EPA and the transactions carried out under it. Further, that IKD believed the 2016 EPA was a forgery.

1. At this meeting, Mr Elliott was advised that LUS understands that the breakdown of relations between IKD and ELM went back to an incident some 30 years earlier regarding the christening of one of IKD's children and a letter written after that event by IKD to EML.
2. He was further advised by LUS that all transactions by EML in disposing of assets were carried out by EML in accordance with the advice of Mr Arthur Koo, her financial adviser. LUS understood that EML's primary objective was to transfer as much of her assets as possible to LUS now and to eventually provide EML with an income and in due course eligibility for a pension.
3. In accordance with EML's instructions, her family home was transferred to LUS and FNP and the proceeds of sale of other assets transferred to a family trust of which the primary beneficiaries are LUS and FNP. The trust has $443,513.95 in assets and an equivalent liability. The liability being loans to LUS and FNP in the same amount.
4. All of EML's expenses are paid out of the family trust as she has no income.
5. LUS and FNP advised that all the financial transactions undertaken by EML have been done at her request and pursuant to the advice given to EML by Mr Koo.
6. LUS stated that he has never used the 2016 EPA as he has not needed to. EML has had full capacity to make the decisions herself and did so freely and without coercion by either LUS or FNP.
7. A number of the documents of relevance to IKD's claims were provided to Mr Elliott by LUS and exhibited to his report to the Tribunal.

1. IQN advised that he had taken his instructions from EML and that he always believed EML had capacity to provide him with instructions for her Will, her Enduring Powers of Attorney and her transfer of her home to LUS and FNP.

Instructions for Bendigo and Heathcote Property Sales

1. The information obtained from the solicitor for those transactions indicated that the 2016 EPA was not used for the transactions, although some instructions originally came from EML via her son LUS.

Conveyancer (IFH) Engaged for Transfer of Home by EML to LUS and FNP

1. IFH stated that her instructions came from EML, that EML executed documents herself, did not use the 2016 EPA for the transaction and that the transaction was a gift.

1. Mr Elliott reported to the Tribunal that the evidence presented to him and information gathered by him in preparation of the report supports findings that:
   • (a) in February 2016 when the 2016 EPA was executed and on 21 September 2017, EML has and had capacity;
   • (b) LUS is a suitable attorney and there is no reason he should not be looking after EML's legal and financial affairs;
   • (c) LUS has not used the 2016 EPA at any time up to the writing of the report;
   • (d) LUS is an appropriate person to manage EML's affairs if she loses capacity;
   • (e) the allegations that LUS and FNP had taken financial advantage of EML by use of the 2016 EPA cannot be sustained because there is no evidence that the EPA was used for any transaction under attack; and
   • (f) EML set out to divest herself of her assets and did so without any coercion by any person.
2. IKD's allegations of fraud in the creation of the 2016 EPA were withdrawn at the hearing on 28 February 2018 and accordingly, I will not refer to this part of Mr Elliott's report further.

1. IQN, the primary solicitor for EML, deposed by affidavit sworn 25 October 2017, to having known EML since 2011 when he acted for her in the administration of the probate of her late husband and took instructions for EML's Will and Enduring Powers of Attorney. The affidavit deposed to the following matters:
   • (a) In 2011, EML had instructed him that she intended to benefit her son LUS to the exclusion of her son IKD. EML then proceeded to appoint her son LUS as her attorney for financial and medical affairs. She also appointed LUS wife, FNP, as her alternate attorney.
   • (b) In June 2015, he received a telephone call from LUS advising that EML had obtained financial advice which she wished to follow in dealing with her assets.
   • (c) IQN's affidavit states that he was provided with a medical certificate "dated 25 January 2015" from EML's general practitioner, QED, and exhibited a copy of that medical certificate to his affidavit. The medical certificate is in fact dated 25 June 2015 and states "This is to certify that [EML] is in her sound state of mind. In my professional she has the necessary testamentary capacity."
   • (d) On 7 July 2015, IQN received telephone instructions from EML. EML stated that the instructions were by phone because she had a leg infirmity that did not allow her to meet at his office. He stated that EML "demonstrated a very precise knowledge of her assets" and "that she also appeared to have a clear understanding of the action she was taking to dispose of the assets in accordance with the advice of her financial planner, Mr Arthur Koo".[1]
   • (e) In that same conversation, EML advised IQN that she wished to review her Will to reinforce her desire to make no provision for IKD and that she would make an appointment to do so when she could travel to his office.
   • (f) On 10 February 2016, EML instructed him that she wished to review her Will as she had been disposing of her assets in accordance with Mr Koo's advice and she also wished to expressly exclude IKD as a beneficiary. After being advised of the new Powers of Attorney for Personal and Financial Matters that could be created under the Powers of Attorney Act 2014 (Vic), she instructed IQN to prepare the 2016 EPA.
   • (g) In paragraph 8 of his affidavit, IQN specifically stated:

[EML] was very clear in her instructions and I was satisfied that she had the capacity to understand the nature and effect of the variation to her Will and of the new Power of Attorney. However I recommended that a certificate be obtained from [QED] to further confirm this fact.

(h) The 2016 EPA was executed on 24 February 2016 before IQN and another solicitor from his practice. On that date a further medical certificate as to capacity was provided to IQN from the general practitioner, QED. The medical certificate stated that having examined EML on 24 February 2016_:_

In my opinion she has full mental capacity to revise her Will and is capable of understanding the matters which go to the nature and effect of an Enduring Power of Attorney (Financial and Personal).

This certificate was again exhibited to the affidavit.

(i) He believes that EML "understood the nature and effect of her revised Will and Power of Attorney" and "We were also satisfied that she was making the changes and signing the documents of her own free will."

(j) On 5 May 2016, he was advised by EML by telephone that she was implementing the transfer of her property to LUS and FNP and the sale of various assets. He did not act in those transactions as he was overseas, but understood that the transfer of the home proceeded by way of a gift.[2]

(k) He sought a further medical report from EML's general practitioner, QED, after being advised that IKD was questioning the transfer of the home. The medical report from QED, dated 26 April 2017, was far more detailed than the previous certificates and provides quite a lot of detail as to QED's knowledge and understanding of his patient EML.[3]

(l) QED states in this report:

I have known [EML] over last 10 years. As you know she has been admitted to a Nursing home now."

I have been and am visiting her regularly to take medical care for her at Nursing home as her GP. Over the period under my care I have always seen [EML] as a capable women of strong will. She doesn't have a history of any issues with her cognition (orientation, memory and ability to make decisions for her own welfare). She in her full mental capacity appointed her son [LUS] as her attorney,----.

Further to mention I have particularly seen her during end of July, beginning of August 2016, to be specific on 19/07/2016 and 01/08/2016, and without a doubt I can say she was in her full mental capacity to make informed and rational decisions concerning her financial matters during this period.

Further I have examined her today (26/04/2017). She suffered a mild stroke in February 2017 which initially affected her speech but now her speech his comprehensible. On examination today I found her to be oriented to person, place and time. In my medical opinion she possesses full mental capacity to make informed and rational decisions concerning her financial matters. I have also questioned her particularly in reference to her son [IKD]. She made this very clear that [IKD] not be involved in any of her affairs (about her care and finances) and no information of such nature be shared with [IKD]. In my opinion she is capable of making informed and rational decisions without [LUS] assistance and she understands that upon her being unable to make decisions about her financial matters herself that [LUS] will have sole authority as her Attorney to make all necessary decisions concerning her financial matters.

(m) EML has instructed IQN on a number of occasions that all the transactions she has made were made in accordance with the financial advice she received from Mr Koo and with her knowledge and consent. She reiterated her wish to benefit LUS and FNP and reduce the assets that would fall into her estate after she died. In particular, she wanted LUS and FNP to have her Burwood property. She wanted to minimise her assets that might be the subject of a claim from IKD.

(n) IQN does not believe EML is being unduly influenced by another person in making her financial decisions.

(o) Also exhibited to IQN's affidavit were copies of:

1. a hand-written letter of instructions from EML to LUS to take steps to implement her instructions for selling and transferring assets;
2. the agreement between EML, as transferor, and LUS and FNP, as transferees, confirming that the home was to be a gift from EML to LUS and FNP; and
3. a letter from the conveyancer for EML stating that the conveyancer had taken steps before completing the conveyance of the home, to satisfy herself that EML:
   1. realised what would occur on the execution of the transfer of the home;
   2. understood the purpose of the transfer;
   3. executed the documents of her own free will; and
   4. was under no pressure when signing documents.

AFFIDAVIT OF SECOND SOLICITOR, OXS, FROM IQN'S OFFICE

1. This affidavit dated 25 October 2017 attested to the fact that OXS was present when IQN advised EML of the nature of the documents she was signing on 24 February 2016, being the 2016 EPA and her Will and that the second solicitor, OXS, believed EML understood the nature and effect of the provisions in the Will and the nature and effect of the 2016 EPA (Financial) and that EML did so voluntarily and of her own free will.
2. Both solicitors' affidavits indicated to the Tribunal that the solicitors and conveyancer involved in preparation of the 2016 EPA, the Will and the transfer of the home as a gift to LUS and FNP were concerned to take all usual recommended investigative steps to ensure that EML was doing so in full knowledge of the effect of her actions and with capacity and of her own free will. These steps included taking instructions away from the beneficiaries of the transactions, speaking with EML about her understanding of the effect of the steps she was taking and obtaining medical reports confirming capacity.

1. On the first day of hearing before me, there was a substantial amount of argument about:
   • (a) the allegations of fraud in the execution of the 2016 EPA; and
   • (b) the applicant's request for the revocation of the 2016 EPA, either because of defects in its creation or because of wrongdoing by the attorneys in their use of the powers in the 2016 EPA.

1. The Powers of Attorney Act 2014 (POA Act) provides the Tribunal with fewer powers to set aside or revoke Enduring Powers of Attorney made under the POA Act than are available in relation to an Enduring Power of Attorney created prior to the commencement of the POA Act.
2. Under the POA Act, the Tribunal has the power to declare an Enduring Power of Attorney invalid under section 116(1)(c) or revoke an Enduring Power of Attorney under section 120(1).

INVALIDITY IN THE CREATION OF AN ENDURING POWER OF ATTORNEY: SECTION 116(1)(C)

1. Section 118 prohibits the Tribunal declaring an Enduring Power of Attorney invalid using the power available under section 116(1)(c) unless the Tribunal is satisfied that either:
   • (a) the principal did not have decision making capacity in relation to making the enduring power of attorney at the time the enduring power of attorney was made; or
   • (b) at the time the enduring power of attorney was made it did not comply with the requirements of the Act; or
   • (c) dishonesty or under influence was used on the principal to make the enduring power of attorney;
2. At the hearing on 2 November 2016, counsel for IKD was instructed to allege that the signature of EML was a forgery. This submission was withdrawn by IKD at the hearing on 28 February 2018. Accordingly, only sub-sections 118(a) and (c) need to be considered by the Tribunal in relation to the claimed invalidity in the creation of the 2016 EPA. These issues are dealt with later in these reasons.

TRIBUNAL'S POWERS TO REVOKE AN ENDURING POWER OF ATTORNEY WHEN THE POWER OF ATTORNEY HAS BEEN VALIDLY CREATED

1. Section 120(1)(b) allows the Tribunal to revoke the appointment of an attorney appointed under a validly created Enduring Power of Attorney. There is again a substantial hurdle that must be crossed by the applicant before the Tribunal has any jurisdiction to revoke the Power of Attorney under section 120(1)(b).
2. Section 120(2) states that:

Before making an order under subsection (1)(b) to revoke the appointment of an attorney under an enduring power of attorney VCAT must be satisfied that-

(a) The attorney is not complying with provisions of this Act that relate to enduring powers of attorney; and [emphasis added]

(b) The principal does not have decision making capacity in relation to making an enduring power of attorney giving the same power.

1. At the end of the first day's hearing before me, I drew to all parties' attention that as at that date the medical evidence before me was presented on behalf of EML, together with the report of the investigator, had not satisfied me that EML lacked capacity at either of the times under attack by IKD. Further, that I had difficulty with the claim that the 2016 EPA was a forgery given the strength of the affidavits from the solicitors discussed above.
2. Counsel for IKD indicated that his client had not had sufficient time to review the report of the investigator in detail regarding the medical evidence as to capacity and accordingly, I adjourned the hearing to allow IKD the time to study Mr Elliott's report in detail and make written submissions to me before 2 December 2017. I advised that on 2 December 2017, after consideration of any further material placed before me by the applicant, I would consider whether a further hearing was required before I made my decision.
3. IKD requested a further hearing and provided the Tribunal with additional material. Accordingly, I listed the matter for a further hearing before me in 2018.

1. The Tribunal received this affidavit before the second hearing. IKD's affidavit sought to respond to issues in Mr Elliott's report that IKD disagreed with and provide information to the Tribunal which he believed supported his case seeking to have the 2016 EPA revoked and the transfer of his mother's family home overturned.
2. The affidavit of IKD contained a substantial amount of detail regarding IKD's historical relationship with his mother, EML. As I stated at the second hearing on 2 March 2018, the history of the relationship between IKD, LUS and EML described in his affidavit did not particularly impact on the legal issues in question before me even when they pointed to some alleged factual inaccuracies in the OPA Report, EML's solicitors' affidavits or the psychiatric report obtained by EML's solicitors.[4]
3. IKD's affidavit also pursued his claims that LUS had acted under the Power of Attorney, had exercised undue influence over EML and was conflicted in his actions in accepting the gift of the home.
4. All of these issues were followed up further by GXA (IKD's new counsel) on the second day of hearing and in the 28 February 2018 Outline of Submissions of IKD (IKD 28 February Submissions).
5. At the hearing on 28 February 2018, IKD sought the following orders from the Tribunal in lieu of the orders sought in his 2017 application:
   • (a) Revocation of the 2016 EPA (Financial);
   • (b) Appointment of an independent administrator to, inter alia, investigate and act in relation to the transactions referred to below; and
   • (c) Appointment of an independent guardian.

1. Paragraph 4 of IKD's 28 February Submissions relied on pages 5-8 (inclusive) of the KRJ psychiatrist's report. He also suggested that the QED general practitioner's reports were cursory and almost a year old.
2. KRJ's report (11 August 2017) makes it clear that EML's present recall of factual events at the time of testing by the psychiatrist was not complete, but his concluding "Recommendation" on page 8 does not assist the Tribunal to make a finding under section 120(2)(b) which could lead to revocation of the revoke the 2016 EPA.[5]
3. KRJ states:

In this examiner's opinion, the totality of the information available does not demonstrate a testamentary incapacity [emphasis added], particularly given the limited number of potential beneficiaries and [EML's] age and medical situation.

1. Although IKD attacks the reports of the general practitioner, QED, as being almost a year old and cursory in nature, the investigator's report[6] also supports QED reports' usefulness in commenting on EML's capacity at the time of creation of the 2016 EPA[7], the disposition of assets and gifting and transfer of the home in July/August 2016.[8]

MEMBER'S VISIT TO EML ON 20 MARCH 2018 AT AGED CARE RESIDENCE

1. As EML was not physically able to attend the hearing, but had indicated through her counsel that she would be pleased for me to meet with her to obtain advice about her position from her personally, I took the opportunity to meet with EML in person and without other persons present on 20 March 2018. I had indicated to the parties at the hearing on 28 February 2018 that it was my intention to do so and that it was quite common for the Tribunal to meet privately with the principal/proposed represented person during a hearing.
2. My meeting with EML demonstrated to me that EML had a strong recall of the majority of facts the subject of this dispute, although her memory of fine detail was not unimpeachable. I came away from my meeting with the clear impression that EML had personally driven the process of obtaining financial and legal advice about how to minimise the ability of her son IKD to be able to attack her intended disposition of most of her assets to her son LUS at the expense of IKD. Further, I was satisfied that EML trusted LUS absolutely and had no doubt that although he now owned almost all of her assets, he would pay all her bills and ensure that her home was available for her to return to and live in, if the upcoming operation she described to me allowed her the option of returning home.
3. As a result of my visit to EML, I could not be sure that EML recalled the fine detail of her financial meeting with Mr Koo, financial adviser, but she certainly recalled meeting with him and that she took and acted on his advice. I note that I would not expect any elderly person, other than one with a highly sophisticated financial history, to remember the fine detail of a financial planner's advice obtained some year's earlier. I am satisfied that her lack of detailed recall is not evidence that she did not receive such advice. I am satisfied that she intended to and did act in accordance with the advice.
4. I was satisfied that EML had a strong desire to control the disposition of her assets away from one of her children, obtained financial advice and then took steps with her solicitor and trusted family members to see that the financial adviser's recommendations were implemented. I was not concerned about EML's inability, post a substantial period of time after receipt of the advice, to recall all the fine details of the financial adviser's report without having that report directly in front of her. I would expect most people to consult the actual document when asked detailed questions as to the particulars of what was fully recommended.
5. I particularly questioned EML about her trust in her son LUS and was satisfied from her answers that she reposed absolute faith in the integrity of his actions on her behalf and his intention to care for her going forward. In particular, I satisfied myself that EML would reappoint LUS and FNP as her attorneys today if she needed to appoint attorneys in the future.
6. Nothing in my conversation with EML suggested to me that she lacked capacity to make an Enduring Power of Attorney, or doubted the trustworthiness of LUS and FNP.
7. Taking into account all of the evidence before me described above, and my own discussions with EML, I am not satisfied that EML "does not have decision making capacity in relation to making an Enduring Power of Attorney giving the same power".

1. Accordingly, the Tribunal cannot make an order revoking the appointment of the attorneys under the 2016 EPA under section 120(1)(b).

1. Again, for the reasons stated above, I was not satisfied that section 118(a) applies to EML. Accordingly, section 116(1)(c) is not available to IKD to impugn the validity of the 2016 EPA.
2. There was no evidence to suggest that section 118(b) or (d) was available to the applicant to attack the validity of the 2016 EPA.
3. The balance of my reasons will deal with the allegations of undue influence being exercised by LUS over EML in the transfer of the home, the sale of various assets and the transfer of the proceeds of those assets to the discretionary trust.[9] I accept the statements in the affidavit of IQN, the reports of QED and my own discussions with EML as demonstrating that there is no evidence to support a claim that IKD used "dishonesty or undue influence" in getting EML to create the 2016 EPA.[10]
4. I am not prepared to revoke 2016 EPA under section 118(1)(c).

NO JURISDICTION TO APPOINT AN ADMINISTRATOR OR GUARDIAN

1. The Guardianship and Administration Act 1986 only empowers the Tribunal to appoint an administrator or guardian to a proposed represented person if the Tribunal is satisfied that the person is a person with a disability.[11]
2. "Disability" is defined in section 3 to mean "intellectual impairment, mental disorder, brain injury, physical disability or dementia". Whilst EML has a physical disability requiring her to reside in supported accommodation, I am not satisfied that her disability is of a nature that impacts on her capacity to make decisions about her financial affairs. I certainly do not believe that the disability is of a nature that would require me to appoint either a guardian or administrator to manage her affairs. In reaching this conclusion, I rely on the recommendation of KRJ.[12]
3. I also rely on section 4(2)(a) of the Guardianship and Administration Act 1986 which requires the Tribunal to make orders which create the least restriction on EML's freedom of decision and actions.
4. I am satisfied that it is not appropriate to appoint either a guardian or administrator to EML.
5. The application for appointment of a guardian and administrator is dismissed.

CONFLICT OF INTEREST IN THE ACTIONS OF LUS BASED ON HIS DUTY TO ACT AS A FIDUCIARY

1. Counsel for IKD claimed that even if the Tribunal found that EML had capacity and that the 2016 EPA was valid, LUS and FNP were still estopped from accepting the gift of the home because they were fiduciaries and prohibited from accepting the gift because of that status.

1. Counsel for IKD made the following arguments in support IKD's claim that the attorneys LUS and FNP were prohibited from accepting the gift of the home:
   • (a) A fiduciary is prohibited from taking a benefit where:
     1. There is a conflict (or a significant possibility) of personal interest and duty; or
     2. A benefit arises by use of the fiduciary position.
   • (b) LUS and FNP being attorneys are burdened with fiduciary obligations and these are not limited to times when the attorneys are exercising their powers under the 2016 EPA.
   • (c) As EML is elderly, suffering declining health and wanted to delegate authority to manage her affairs to someone she could trust, the fiduciary duties of LUS and FNP must extend to all transactions between EML and her attorneys.[13]
   • (d) Breaches of a fiduciary's duties to the principal are voidable at the principal's election.[14]
   • (e) A claim in undue influence must first show the establishment of a special relationship of reliance and inequality which is exploited by the stronger party to the detriment of the weaker party. A person holding those powers over the less dominant party is subject to fiduciary duties which require him to use the position of influence in the interest only of the person who is governed by his judgment. The dominant party cannot maintain beneficial title to gifts made over to him unless he satisfies a court that he:
     1. took no advantage of the principal; and
     2. the gift was the independent and a well understood act of a person in a position to exercise free judgment based on information as good as that of the dominant recipient of the gift.[15]
   • (f) Allegations of breach of fiduciary duty can be overcome by demonstrating that the principal gave informed consent to the gift.
   • (g) There was no informed consent (required to validate the gift) because the advice from the financial adviser was defective because it left EML with no assets or income, or guarantee of security of EML's position once those assets were in LUS hands;
   • (h) The financial advice did not contemplate the transfer of the home to LUS and FNP;
   • (i) EML did not know her property had been sold; and
   • (j) No funds were paid for the home by LUS and FNP.

1. There were also some paragraphs in the submissions referring to a court's power to set aside transactions where the transaction arose out of unconscionable conduct by the recipient of a gift or payment.[16]
2. IKD alleged that the issues summarised in paragraph 71 above necessitated the Tribunal appointing an independent administrator.
3. As stated in paragraphs 64-68 of these reasons, the Tribunal does not have jurisdiction to appoint an administrator even if the transactions above did allow or require the Tribunal to revoke the 2016 EPA.
4. IKD states that the 28 February 2018 submissions provide a basis for requiring the Tribunal to find a fundamental conflict between the interests of EML, on the one hand, and LUS and FNP on the other hand and that accordingly the Tribunal should revoke the 2016 EPA pursuant to section 120(1)(a). I reiterate that the Tribunal's powers under section 120 must be founded, in the circumstances before the Tribunal in this case, under a power given to the Tribunal under section 116(1).
5. I have stated earlier in these reasons that I am satisfied that LUS has not used his powers as EML's attorney to execute and carry out on her behalf any of the transactions complained of by IKD. Further, I have not found that the EPA is invalid and I am satisfied it was properly executed.
6. The only potential basis for the Tribunal to make an order under section 120(1)(a) must be founded under section 116(1)(d).
7. Section 116(1)(d) allows the Tribunal to make an order about:
   • (d) the validity of a transaction by an attorney under the enduring power of attorney if VCAT is satisfied there has been a failure to comply with Part 6 or for any other reason.

HAVE THE ATTORNEYS BREACHED PART 6 OF THE POWERS OF ATTORNEY ACT 2014

1. The applicant's original claim alleged a breach of section 64 of the POA Act.
2. Sections 63 and 64, insofar as they are relevant to IKD's claims to overturn the transfer of the home state that:
   • (a) Section 63 states that:

(1) An attorney under an enduring power of attorney-

(a) must act honestly, diligently and in good faith; and

(d) must avoid acting where there is or may be a conflict of interest unless the attorney is authorised by the power, the principal or VCAT;

(1) An attorney for financial matters under an enduring power of attorney has a duty not to enter into a transaction in that capacity [emphasis added] if the transaction is one in which there is or may be a conflict between-

(a) The duty of the attorney to the principal; and

(b) The interests of the attorney, or a relative, business associate or close friend of the attorney.

1. I am satisfied for the reasons set out earlier that LUS and FNP did not execute the transfer of land or deal with other assets of EML "in their capacity" as attorneys which means that the attorneys have not breached section 64 in any way.
2. I have formed the view that the prohibitions on attorney's behaviour contained in Part 6 of the POA Act apply to actions undertaken by the attorneys "in their capacity as attorneys" only.
3. However, for completeness I also state that I am satisfied that the attorneys have acted honestly, diligently and in good faith, in accordance with the directions and wishes of EML. As I view the actions of the attorneys as demonstrating good faith, this is inconsistent with there being any possibility of finding that the attorneys have acted unconscionably.
4. I also find that in acting in accordance with EML's wishes and accepting the gift of the home that this does not constitute a "conflict of interest" where they have not used the 2016 EPA to make or accept the gift.
5. The applicant must therefore rely on the words "or for any other reason" in section 116(1)(d) to found a power for the Tribunal to set aside the transfer of the home.
6. At the further hearing on 28 February 2018, it became clear that IKD and the Tribunal had not received a full copy of the financial adviser's report. The Tribunal and IKD were advised at the hearing that the financial adviser's report had in fact made a number of independent recommendations to EML about the proposed course of action.
7. IKD had complained in his submissions that there were no such independent recommendations. However, this was in part because he had been provided with an incomplete report.
8. The absence of a full copy of the financial adviser's report prior to the preparation of the applicant's submissions, dated 28 February 2018, necessitated my giving the applicant the opportunity to file very limited submissions, after the hearing, about anything relevant to the "missing" extract of the financial adviser's report.
9. Similarly, I gave EML the right to file very limited submissions on the undue influence claim raised by the applicant on the second day of hearing about which EML had not been given prior notice.
10. Both EML and IKD took the opportunity to file further submissions with the Tribunal on their respective issues.
11. The full financial report was made available to IKD immediately after the second day of hearing.

1. These submissions respond to IKD's claims that EML was not in a position to give informed consent because she had not received independent advice about the risks of her leaving herself:
   • (a) with no assets and income; and
   • (b) reliant on LUS and FNP for income and financial assistance.
2. EML's submissions direct the Tribunal to various recommendations in the financial adviser's report that she believes demonstrate that the financial adviser provided independent advice about the proposed scheme to EML. The report was directed both to removing assets from EML's name so that they did not form part of her estate on her death and to assisting EML to potentially place herself in a position to receive a pension, whilst relying on the good faith of LUS and FNP to protect her financially. I was directed to EML's consistent instructions to her lawyers to transfer assets out of her name by way of gift over a number of years seeking to ensure that her son IKD was not in a position to potentially benefit from her estate.
3. Having read the independent financial adviser's report to EML and seen the consistent actions she has taken to put it into place, I am satisfied that EML fully understood that she was getting rid of her assets and that she was reliant on the good will of her son LUS and her daughter-in-law FNP to care for her from the assets she was transferring under their control. Both then and now, she has indicated that she has absolute faith in LUS and FNP to act in her best interests financially.
4. There are further submissions as to EML's capacity which I do not propose to deal with as I have already found that EML has capacity earlier in these reasons.
5. A further submission from EML is to the effect that even if the Tribunal did find that LUS and FNP were breaching a fiduciary duty because of undue influence in accepting the gift of assets from EML; that acting to set aside the Power of Attorney is beyond the power of the Tribunal. Claims to set aside the transactions would need to be raised by IKD in another jurisdiction.

1. Submissions reliant on EML being found to have a disability fail for the reasons set out earlier.
2. Paragraph 3(a) of the submissions pursues the claim that the financial advice did not contemplate EML being left with no assets because she gifted the home to LUS and FNP and she did not receive independent advice of the risks of this.
3. I prefer the position put by EML that the primary motivations of EML were to divest herself of assets that could be the subject of a claim by IKD on her death and to potentially seek a pension when her assets had dissipated sufficiently and for a long enough period of time to provide her with eligibility for the pension.
4. From my perusal of the materials provided to me, including the financial adviser's report and my discussions with EML in person, I am satisfied that the position that EML is in currently where she does not own her home has been part of a scheme led and implemented by EML with the assistance of advisers attempting to put into effect her wishes.
5. Any lack of understanding by EML that she no longer owns the home personally is of less importance to her than ensuring that IKD cannot make claims against her estate in the future. I am satisfied that she has been properly advised by her financial adviser of the risk that she is reliant on her son LUS to support her after transferring the home to him together with the proceeds of sale of other assets.
6. I am also satisfied that she deliberately and knowingly chose to place her absolute reliance on the fidelity of her son LUS and her daughter-in-law FNP, in caring for her from the assets transferred to their control.
7. I am also satisfied that there is no indication that this reliance is misplaced at this time.
8. As stated above, the only source of power left to the Tribunal to make any orders sought by IKD is under the power to "make an order about---- the validity of a transaction by an attorney under the enduring power of attorney "for any other reason".[17]
9. I accept that it is not necessary for the applicant to prove that EML had no capacity to found power under section 116(1)(d).
10. However, there is insufficient evidence before the Tribunal to show that there has been a breach of fiduciary duty by the attorneys. Even if there was an argument available that being an attorney prohibits you from ever accepting gifts from the principal whilst that principal is fully capable and wishes to benefit you to the exclusion of others.
11. I do not accept that the wording of section 116(1)(d) extends to allow the Tribunal to overturn actions of the principal where the attorneys were not acting in their role as attorneys, but rather were beneficiaries of the principal's generosity when the principal's intention was to deliberately take actions to disinherit another child and to assist herself in obtaining pension benefits in due course.
12. Accordingly, I am not prepared to make any orders overturning the transfer of the home under section 116(1)(d).
13. Generally, the purpose of the POA Act was not to increase the ability of the Tribunal to set aside appointments of persons chosen to be attorneys. As discussed earlier, the power to remove an attorney because the Tribunal believed it was in the best interests of the principal to do so, has been removed in respect to appointments of enduring attorneys under this Act.
14. It does not seem consistent with Parliament's intentions to seek to broaden the Tribunal's powers and my reasons take account of that parliamentary intention.
15. Further, even if the Tribunal were now to set aside the transaction(s) in question because the attorneys might have some potential risks of breaching their duties as "fiduciaries", this could immediately be countered by EML herself taking the following actions:
    • (a) revoking the existing Power of Attorney;
    • (b) repeating the "disputed" actions to transfer the home to LUS and FNP and repaying the funds to the family trust; and
    • (c) executing a further EPA (Personal and Financial) in favour of LUS and FNP.
16. For these reasons, the above orders are made.

[1] Affidavit of IQN sworn 25 October 2017 at paragraph 6.

[2]Affidavit of IQN sworn 25 October 2017 (paragraph 13) and Exhibit 6.

[4] IKD's affidavit at paragraphs 38 (s)-(u) (inclusive), 41-43 (inclusive) and 44 to mention some of the alleged inaccuracies drawn to my attention.

[6] Investigator's report dated 21 September 2017 at paragraph 12.

[8] QED reports of 24 February 2016 and 26 April 2017.

[9] Discretionary Trust created 29 November 2005 pursuant to which the primary beneficiaries were named as LUS and FNP and the secondary beneficiaries class included EML.

[10] POA Act section 118(c) "dishonesty or undue influence was used on the principal to make the enduring power of attorney".

[11] Guardianship and Administration Act 1986 sections 22(1) and 46(1)(a)(i).

[12] See paragraph 50 of these reasons.

[13] Paragraphs 7-16 of GXA submissions dated 28 February 2018.

[14] Paragraph 12 of GXA submissions dated 28 February 2018.

[15] Paragraph 13 of GXA submissions dated 28 February 2018.

[16] Paragraphs 14-16 of GXA submissions dated 28 February 2018.