FFJ [2014] NSWCATGD 22

NCAT Guardianship|2014-04-11|Before: Moir J, Williams P, Young J, Windeyer J

What the Tribunal decided 1The Tribunal declared that Mrs FFJ did not have mental capacity on 31 December 2013 to revoke the enduring power of attorney dated 27 September 2011 which appointed Ms BBM as attorney. 2The Tribunal declared that the enduring power of attorney made by Mrs FFJ on 27 September 2011, appointing Ms BBM as attorney is wholly valid. 3The Tribunal appointed Ms BBM as Mrs FFJ's guardian and Mr KAJ as her alternate guardian for a period of six months to make decisions on her behalf about her accommodation, health care and medical and dental treatment as set out in the Tribunal's Order. 4The Tribunal also appointed the NSW Public Guardian as Mrs FFJ's guardian for a period of six months to make decisions on her behalf about the people with whom she has access and the conditions of that access, as set out in the Tribunal's Order. 5The Tribunal also appointed Ms BBM as Mrs FFJ's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian. The Tribunal will review this order after six months.

Background 6Mrs FFJ is an 89-year old widowed woman who, at the time of the hearing, lived in a self care unit at a retirement village in West Sydney. Mrs FFJ has been diagnosed with mixed dementia (Alzheimer's and Vascular). Mrs FFJ has four children, Ms BBM, Mr QBJ, Mr KAJ and Ms DCT. Mrs FFJ has a relationship with each of her children, but there is considerable conflict between the siblings. Mr QBJ lives in Queensland and the others live in NSW. 7On 27 September 2011 Mrs FFJ executed an enduring power of attorney and an Enduring Guardianship, appointing Ms BBM as her Attorney and her Enduring Guardian. 8On 31 December 2013, whilst visiting her son Mr QBJ in Queensland, Mrs FFJ signed a "Revocation of Power of Attorney" stating that she revokes "...all Powers of Attorney made by me prior to today's date appointing [Ms BBM]." This revocation was made on "Form 6 Queensland Powers of Attorney Act 1998." 9On 2 January 2014 Mrs FFJ signed a new enduring power of attorney using Form 2 Queensland Powers of Attorney Act 1998 (QLD). In this instrument Mrs FFJ purported to appoint Mr QBJ, Ms BBM and Mr BDD from a law firm as her attorneys. She authorized them to make decisions regarding financial and personal/health matters and to make decisions as a majority. Mr QBJ accepted his appointment, but neither Ms BBM nor Mr BDD accepted their appointment. 10On 10 January 2014 the Tribunal received an application from Ms BBM to review the revocation of the enduring power of attorney of 27 September 2011. On 23 January 2014 the Tribunal received applications from Ms BBM for the appointment of a guardian and a financial manager for Mrs FFJ. 11A hearing was conducted on 11 February 2014, at which the Tribunal considered a request from Mr QBJ to be joined as a party to the proceedings, and to have the matter adjourned. The Tribunal joined Mr QBJ, adjourned the proceedings for a period of two months and made an interim financial management order for two months, appointing the NSW Trustee and Guardian. 12A directions hearing was conducted on 30 March 2014 at which the Tribunal decided to join Mr KAJ as a party to the proceedings. A request from Ms DCT to have documents she had sent to the Tribunal excluded from the evidence was adjourned to the date of the substantive hearing, scheduled for 11 April 2014. The parties were directed to serve any submissions and other evidence on which they sought to rely on each other and provide to the Tribunal by 4 April 2014. The parties confirmed at the hearing that they had received documents from each other, although some material provided by Mr QBJ was in a format which could not be accessed by the others. After some discussion it was ascertained that this material was not directly relevant to the matters under consideration. 13Shortly before the hearing Mrs FFJ had a fall and broke her wrist, and was admitted to hospital for treatment. She had not yet been discharged back to the retirement village as at the date of the hearing but was having six weeks respite at a nursing home.

Conduct of the Hearing 14The substantive hearing was conducted on 11 April 2014. The participants all attended in person and spoke to the Tribunal. The participants were Mrs FFJ, Ms BBM, Mr QBJ, Mr KAJ, Mr HEM (Ms BBM's husband), and Ms Z and Ms Y, both from an aged care service provider. Ms DCT advised the Tribunal that she did not wish to participate in the hearing either in person or by telephone.

Procedural matters 15At the commencement of the hearing the Tribunal considered the request from Ms DCT to have the documents that she had submitted on 27 February 2014 excluded from the evidence in the proceedings. Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) provides as follows: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:... (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings... 16The Tribunal noted that Ms DCT had written "Private and Confidential" on the documents prior to submitting them and when she was advised that the Tribunal's usual process would require that they be provided to other parties, she asked to withdraw them from evidence. The Tribunal sought the views of the parties regarding this request, noting that the material had not yet been provided to the parties. Mr QBJ said that he felt at a disadvantage because he did not know what was in the evidence from Ms DCT, but he did not ultimately object to the material being excluded from the evidence before the Tribunal. The other parties had no objection to Ms DCT's documents being excluded. 17In addition to there being no objection from the other parties, the Tribunal noted that Ms DCT is reported to have a mental illness and is herself subject to a financial management order, indicating some impairment in capability in managing her own affairs. The Tribunal also considered the material she had provided and decided that it was not directly relevant to the applications currently before the Tribunal. On the basis of all of these considerations the Tribunal decided that it was desirable to prohibit the disclosure of the evidence submitted by Ms DCT on 27 February 2014 to all of the parties to the proceedings in relation to Mrs FFJ.

Review Revocation Enduring Power Of Attorney 18When dealing with an application to review the revocation of the enduring power of attorney made by Mrs FFJ, the Tribunal must consider the following: (1)Whether or not to conduct a review and if so, whether to make any order in relation to that review (sub-section 36(1) of the Powers of Attorney Act); (2)Whether the applicant is an interested person within the terms of the Powers of Attorney Act 2003 (section 35 of the Powers of Attorney Act); and (3)Whether Mrs FFJ did or did not have the mental capacity to revoke the enduring power of attorney (sub-section 36(3A)(a) of the Powers of Attorney Act) or (4)Whether the revocation of the enduring power of attorney made by Mrs FFJ is invalid for other reasons (for example, the principal was induced to make the revocation by dishonesty or undue influence) (sub-section 36(3A)(b) of the Powers of Attorney Act); (5)If the Tribunal determines that the revocation is invalid due to lack of mental capacity or for other reasons, then the Tribunal may order that the enduring power of attorney remains valid, either wholly or in part.

Financial Management 19The questions which had to be decided by the Tribunal in relation to financial management were: (1)Is Mrs FFJ incapable of managing her affairs? (2)Is there a need for another person to manage Mrs FFJ's affairs and is it in her best interests for a financial management order to be made? (3)If so, who should be appointed financial manager?

Guardianship 20The questions which had to be decided by the Tribunal in relation to guardianship were: (1)Is Mrs FFJ someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions? (2)Should the Tribunal make a guardianship order and if so, what order should be made? (3)Who should be the guardian? (4)How long should the order last?

Should the Tribunal conduct a review (section 36(1) of the Powers of Attorney Act 2003?) 21Section 36(1) of the Powers of Attorney Act gives the Tribunal a discretion whether or not to conduct a review of the revocation of an enduring power of attorney, and if a review is conducted. The Principles of the Guardianship Act 1987 (NSW) must be considered in relation to all actions taken by the Tribunal. These principles include that the welfare and interests of the person should be given paramount consideration and that the person's autonomy be restricted as little as possible, but balanced with the need to protect them from risk or disadvantage. In this case, the Tribunal was satisfied that it was entirely consistent with the principles of the Guardianship Act to conduct a review of the purported revocation of the enduring power of attorney, as this provided the only option to preserve the arrangements which Mrs FFJ had put in place some years earlier for the management of her affairs, thereby reflecting her intentions at a time when her capacity was not in question. On this basis the Tribunal determined to conduct a review, as requested.

Is the applicant an interested person within the terms of the Powers of Attorney Act 2003 (section 35)? 22Section 36 of the Powers of Attorney Act provides that an "interested person" may request a review. Section 35 provides that an attorney or a person appointed as an enduring guardian is an "interested person" for this purpose. The Tribunal notes Ms BBM's appointment as attorney and enduring guardian for her mother under the instruments executed in September 2011 and accepts that she is an interested person, who can validly request a review.

Did Mrs FFJ have the mental capacity to revoke the enduring power of attorney on 31 December 2013 (section 36(3A)(a), Powers of Attorney Act 2003)?

Relevant evidence 23In each of her applications Ms BBM expresses concern about the interactions between her brother Mr QBJ and Mrs FFJ and specifically his apparent disregard for her health needs, his lack of awareness and acknowledgement of her increasing dementia, his intentions towards her financially, and his lack of co-operation with her when making plans for Mrs FFJ. She asserts that her mother lacked the ability to understand what she was doing when Mr QBJ arranged for her to revoke the enduring power of attorney when she was visiting him in Queensland. These concerns prompted her applications. 24In response, Mr QBJ submitted that Mrs FFJ was able to make decisions for herself in every regard, that other people overstated the impact of her dementia, that she enjoyed her times with him and that Ms BBM was overly controlling of Mrs FFJ, particularly in regard to money. He asserted that Mrs FFJ was upset that Ms BBM had limited her access to money whilst she was with him in Queensland and this was why she chose to revoke the enduring power of attorney. He disputed that she was not capable of making this revocation and did not consider that she required a guardian or financial manager. 25Prior to the hearing the Tribunal was provided with copies of the enduring power of attorney and Enduring Guardianship instruments executed by Mrs FFJ in September 2011, appointing Ms BBM. The Tribunal was also provided with copies of the Revocation of the enduring power of attorney signed by Mrs FFJ and dated 31 December 2013 and the enduring power of attorney signed by Mrs FFJ and dated 2 January 2014, purporting to appoint Mr QBJ, Ms BBM, and Mr BDD. 26Prior to the hearing the Tribunal was provided with the following medical reports regarding Mrs FFJ's health and cognitive capacity: (1)From Dr X, Senior Staff Specialist, Neurology, of a public hospital: (2)Letter to NCAT, dated 27 March 2014 (3)Health Professional Report Form, dated 14 January 2014; (4)Letter to Dr W dated 3 September 2013; (5)Letter To Whom it May Concern dated 21 June 2013; (6)From Dr W, GP: (7)Health Professional Report dated 14 January 2014; (8)Letter to Mrs FFJ's family members dated 16 May 2013; (9)Letter To Whom It May Concern from Ms V, Registered Psychologist, dated 10 January 2014. (10)Aged Care Service Provider Consumer Care Plan for Mrs FFJ, dated 4 April 2014, prepared by Ms Z, Program Coordinator. 27Dr X's letters which span a period of around nine months, provide a useful picture regarding Mrs FFJ's cognitive capacity at the times relevant to these applications. In her letter of 21 June 2013 Dr X states "This is to certify that [Mrs FFJ] has dementia of Alzheimer-type. Her dementia is at a level where she needs significant assistance with decision making and financial management. The enduring Power of Attorney held by her daughter, [Ms BBM] and guardianship should be activated." 28In her letter of 3 September 2013 Dr X reports that there has been a degree of deterioration in Mrs FFJ's performance and that she scored 24/30 on the mini mental state examination on that day. Dr X states that given her dementia, Mrs FFJ may not be able to live alone much longer, and may need hostel care within the year. 29In the Health Professional form from February 2014, Dr X confirms that Mrs FFJ has moderate, progressive, mixed dementia which has been present for three years. She reported a Montreal cognitive assessment score of 16/30 on 2 September 2012. She confirms that Mrs FFJ's dementia affects her capacity to make decisions across all areas, because of lack of insight into her care needs. Dr X states that this makes Mrs FFJ a vulnerable person in relation to her financial affairs. She also observes that there is family conflict and that Mrs FFJ may not be able to understand whether people are acting in her best interests. 30In her letter of 27 March 2014, Dr X states that she first saw Mrs FFJ in 2012, and at that time she had reported increasing difficulties with memory over the previous 12 months. The condition is progressing. Dr X reported that when she saw Mrs FFJ in February 2014, she scored just 12/30 on the Montreal Cognitive Assessment. The cut off score for "normal" in this test is 26/30. Her memory was substantially impaired. She states again that the degree of Mrs FFJ's cognitive impairment due to her mixed dementia now affect her to the extent that she "would not be able to manage her life decisions or financial affairs in a reliable manner and judge what would be in her own best interests." 31The information in Dr W's reports is consistent with the above. He has been Mrs FFJ's GP since mid-2012 and has seen her on around 18 occasions. In his letter of 16 May 2013, to Mrs FFJ's family members, he states that she has dementia and that for this reason her memory and insight are not intact and that it would be "deleterious" for her to travel by herself, or not take her medications. He states that she has a history of transient ischemic attack. This letter was apparently written because Dr W became aware that Mrs FFJ had recently gone on a cruise (with Mr QBJ), and that she did not take any of her medications with her, as she does not recall that she takes any medications. Dr W reports that her medications at that time were Actonel 150mg, once a month, Aricept 10mg daily, Asasantin SR 200mg once daily, Azopt 1% eye drops twice daily, Pariet 20mg daily, and Xalatan eye drops once daily. 32In her letter of 10 January 2014, Ms V states that she saw Mrs FFJ once, and that she reported feeling "quite low and demotivated." Ms V asks that a mental health treatment plan be prepared so Mrs FFJ can continue to have psychological treatment, and also asks that various tests be conducted to check Mrs FFJ's general heath. Mrs FFJ had reportedly told her that she had not had a medical examination "for many years." The Tribunal understands that the appointment to see Ms V was organised by Mr QBJ without reference to Ms BBM. 33The Care plan indicates that Mrs FFJ requires a considerable degree of assistance in care, including administering medications. 34At the hearing the Tribunal spoke briefly to Mrs FFJ without the other participants present, and asked her what she recalled about the events giving rise to these applications. Mrs FFJ said that she did not recall what happened over Christmas/New Year in Queensland and had no recollection of signing any documents. She repeated a number of times that she has a "shocking memory," and that she just "goes with the flow" rather than worrying about what has happened. In response to a question, she said that she takes no medications. She loves and trusts all of her children. 35The Tribunal provided the other hearing participants with a summary of this evidence when they returned to the hearing. 36Ms BBM and Mr KAJ were in agreement with Dr X's assessment that for some time Mrs FFJ has been impaired by her dementia and is not able to understand her situation well enough to make decisions on her own behalf. On this basis they expressed that she did not have the capacity to understand what she was doing when signing the document to revoke the enduring power of attorney in December 2013. 37Ms BBM said that she has been looking after Mrs FFJ's money for some time because Mrs FFJ is not able to manage it herself, and because there have been problems in the past "protecting" her assets from Mr QBJ. She said that her mother has always done whatever Mr QBJ has asked her to do, and no doubt she always will. 38In relation to the circumstances around the revocation of the enduring power of attorney in December 2013, she said that Mr QBJ arranged directly with Mrs FFJ for her to spend Christmas in Queensland with him. He did not discuss this with her or Mr KAJ. She said that Mr QBJ has accessed Mrs FFJ's money for his own use in the past, and she did not want this to happen again. Her mother does not recall the problems that have arisen in the past. Ms BBM said that her mother had some spending money with her when she travelled to Queensland and should not have needed much more than this. There were also small balances in the accounts she could access. Somehow Mr QBJ was able to access an internet bank account from Bank A that she had set up with Mrs FFJ on the advice that it was secure. 39Mr QBJ agreed that his mother has short term memory problems, but disputed that this means that she does not have the capacity to understand what she wants to do or that she did not understand what she was doing when she revoked the enduring power of attorney. He does not accept Dr X's assessment of his mother's capacity, but presented no alternative assessment from a qualified health professional. Prior to the hearing he provided a statement from himself and statements from other people who spent time with Mrs FFJ whilst she was in Queensland over Christmas. This included a letter dated 28 January 2014 from the Justice of the Peace, Mr U, who witnessed the revocation of the enduring power of attorney and the new enduring power of attorney. 40Mr QBJ denied that he has ever "taken" money from his mother, but agreed that she has "freely assisted" him in the past when his business has not been going so well. This assistance may have been in the form of loans or gifts. 41Mr QBJ explained the circumstances which led to his mother's decision to revoke the enduring power of attorney in December 2013. In summary he said that whilst she was with him in Queensland, she tried on a number of occasions to access money from her accounts, only to find that the money had been transferred from the accounts, leaving her without spending money for her holiday. She was angry and embarrassed about this and did not understand why it had happened. She was also upset when she found out that she had a bank account from Bank A opened by Ms BBM that she was not aware of. Mr QBJ identified that Ms BBM had moved the money from Mrs FFJ's accounts under her authority from the enduring power of attorney, and asked Mrs FFJ if she wanted to revoke this, which she said she did. Mr QBJ arranged for this to happen. He agreed that he didn't talk with Ms BBM about the problem because she would not have listened to him anyway. 42Ms BBM said the only way she could contact her mother whilst she was in Queensland was via Mr QBJ's phone, and when she did this, no one said anything to her about her mother revoking the enduring power of attorney. She was not aware of this until after the bank stopped her access to her mother's accounts. She said that her mother was aware of the internet bank account from Bank A as she was with her when they opened it, but she has forgotten this.

Application of the law 43The Powers of Attorney Act was amended with effect from September 2013 to allow the Tribunal (and the Supreme Court) to review the revocation of enduring powers of attorney. Prior to this, only the making or operation of an enduring power of attorney could be reviewed. The legislation requires consideration of whether a person had the "mental capacity" to revoke the Power of Attorney. "Mental capacity" is not defined in the legislation, however the concept of decision making capacity has been considered in many cases in many contexts. Because of the relatively new jurisdiction, there are only a small number of cases which deal with the mental capacity required to revoke an enduring power of attorney, as opposed to executing one, however general principles from other cases can be applied. For example, it is a long standing principle that the starting point for any consideration of decision making capacity is that the person is fully capable. A finding that a person lacks capacity can therefore only be made after satisfactory evidence has been provided to disprove the presumption of capacity. 44It is also well accepted that capacity is specific to the particular decision being made. In Gibbons v Wright (1954) 91 CLR 423, the High Court (at 437 per Dixon CJ, Kitto and Taylor JJ) defined a decision-specific test for capacity to enter into a contract: "The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he [or she] is doing by his [or her] participation." 45Applied to this case, this means that the Tribunal needs to consider whether or not Mrs FFJ had the mental capacity to decide, in December 2013, to "undo" the arrangements that she had put in place in September 2011 for the management of her financial affairs when she was no longer able to attend to these for herself. There is no submission or evidence that Mrs FFJ did not understand in September 2011 that this was what she was doing when she appointed Ms BBM as her enduring power of attorney. 46It is also well accepted that a person's capacity to make a decision will be impaired if: (1)That person is unable to comprehend and retain the information which is material to the decision, in particular of the consequences of the decision; or (2)The person is unable to use and weigh the information that is part of the process of making the decision. 47In Scott v Scott [2012] NSWSC 1541 the Court considered the making of an enduring power of attorney. Lindsay J held that each case must be considered on its own facts and that: Attention must be focused on all the circumstances of the case, including the identities of the donor and donee of a disputed power of attorney; their relationship; the terms of the instrument; the nature of the business that might be conducted pursuant to the power; the extent to which the donor might be affected in his or her person or property by an exercise of the power; the circumstances in which the instrument came to be prepared for execution, including any particular purpose for which it may ostensibly have been prepared; and the circumstances in which it was executed [199]. An exploration of all the circumstances of the case will, not uncommonly, call for consideration of events leading up to, and beyond, the time of execution of the disputed power of attorney, as well as on the focal point of the time of execution itself. A longitudinal assessment of mental capacity, along a time line extending either side of the focal point, may be necessary, or at least permissible, in order to examine the subject's mental capacity in context [200]. 48The reports from Dr X and Dr W both predate and post-date the revocation in December 2013. There is clear evidence from Dr X that in her view Mrs FFJ required significant assistance with decision making and financial affairs as early as June 2013, and that her memory in September 2013 had further deteriorated. Although Dr X does not specifically consider whether Mrs FFJ had the capacity to revoke an enduring power of attorney, this evidence does, however, support the view that Mrs FFJ was markedly impaired by her dementia at the time, with significant memory deficit. 49Mr QBJ's account of the events that led his mother to want to revoke the enduring power of attorney is not disputed by Ms BBM. She agrees that she transferred money from her mother's accounts, although she denies that she did this to disadvantage her mother in some way. Instead she maintains that this was necessary to protect her mother from financial exploitation by her brother, of which she asserts, there is a long history. Whether or not Ms BBM's assertions about Mr QBJ are correct, it was clear to the Tribunal that her concerns were genuinely held, and shared by others including Mr KAJ. It was also apparent that Mrs FFJ's memory deficit meant that she did not recall these concerns and so could not make sense of her daughter's actions in moving her money from her accounts. It is of some significance that the revocation document seeks to revoke "all Powers of Attorney made by me prior to today's date appointing [Ms BBM]." There is no evidence that Mrs FFJ had executed more than one Power of Attorney at that time, and the very broad terms of the revocation supports the conclusion that Mrs FFJ could not recall the details of what she had done. 50The letter from Mr U (who is Mr QBJ's neighbour) states that Mr QBJ asked him to come to his residence to witness a document on 31 December 2013. He says that when he arrived Mrs FFJ told him that she wanted to revoke her existing power of attorney. He states that "he advised her that she needed to prove to me that she was of "capable mind" and "understanding" of such a request - which she did." Mr U gives no detail and no explanation of how Mrs FFJ satisfied him of this, or of his qualifications to make such an assessment. It would be difficult therefore to prefer this evidence to the evidence of the medical professionals who have assessed Mrs FFJ over a period of time, and had more than a single acquaintance with her. 51Similarly the Tribunal notes the statements Mr QBJ provided from his friends giving their impression of Mrs FFJ's capacity and functional ability. The Tribunal appreciates that these are the genuine observations and beliefs of these people. However no one is suggesting that Mrs FFJ was functionally incapable or incapable of engaging in a pleasant social interaction at the time in question, and this is all that these statements can attest to. Again, they do not carry the evidentiary value of the reports from Mrs FFJ's treating doctors, who have known her over an extended period of time, and have made professional assessments of her capacity. 52The letter from Ms V, a registered psychologist from 10 January 2014 is of significance because it states that Mrs FFJ advised her that she had not had a medical examination for "many years." However it is apparent that Mrs FFJ has consulted with Dr W on many occasions in the eighteen months prior to this, and also has seen Dr X on at least three occasions prior to this. She takes medication for a number of medical conditions. The Tribunal consider that this provides further clear evidence of the extent of Mrs FFJ's memory impairment within two weeks of her decision to revoke the enduring power of attorney. 53Mrs FFJ's own evidence to the Tribunal was that she has no memory of what she signed, or why, that her memory is generally very poor and that she just "goes with the flow." There is clear evidence, referred to earlier, that her memory loss is not a recent feature, although it may have worsened this year. It is undisputed that Ms BBM and Mr QBJ were not communicating with each other about the situation. The very obvious (and undisputed) conflict and distrust between them meant that instead of reassuring his mother that the situation could be resolved with Ms BBM, Mr QBJ facilitated the revocation of the enduring power of attorney. 54After considering all of the evidence, it seemed to the Tribunal very likely that Mrs FFJ decided to revoke the enduring power of attorney because of the embarrassment and frustration she felt when she found herself unable to freely access money whilst on holidays with Mr QBJ. However, as the evidence indicates, given she was unable to recall any reasons why her daughter may have moved her money, nor recall or understand the reasons why she had an enduring power of attorney in operation, the Tribunal is reasonably satisfied that Mrs FFJ did not have the mental capacity to make the decision to revoke this instrument.

Was the revocation of the enduring power of attorney made by Mrs FFJ invalid for other reasons (for example, the principal was induced to make the revocation by dishonesty or undue influence) (section 36(3A)(b), Powers of Attorney Act 2003)? 55As the Tribunal has determined that the revocation was invalid due to a lack of capacity, the Tribunal does not need to make a determination on this issue.

Should the Tribunal make an order that the enduring power of attorney remains valid, either wholly or in part (section 36(1))? 56As stated earlier, section 36(1) of the Powers of Attorney Act gives the Tribunal a discretion having conducted a review of a revocation of an enduring power of attorney, whether or not to make orders. In this case, the Tribunal was satisfied that it was entirely consistent with the principles of the Guardianship Act to make orders. A declaration that there is a valid Power of Attorney in place potentially provides a less restrictive outcome for Mrs FFJ than the making of a financial management order. On this basis the Tribunal determined to make an order that the enduring power of attorney executed by Mrs FFJ on 27 September 2011 appointing Ms BBM remains wholly valid.

Is Mrs FFJ incapable of managing her affairs? 57A person's capability to manage his or her affairs was considered by Campbell J in the NSW Supreme Court in Re GHI (a protected person) [2005] NSWSC 581. Campbell J affirmed the approach enunciated in PY v RJS [1982] 2 NSWLR 700 by Powell J, at paragraph 7: "It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears: that he or she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and that by reason of that lack of competence there is shown to be a real risk that either he or she may be disadvantaged in the conduct of such affairs; or that such moneys or property that he or she may possess may be dissipated or lost ... it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner..." 58Young J in H v H (unreported) NSW Supreme Court 20 March 2000, in dealing with the capacity test as it has been enunciated in NSW, said that dealing with the "ordinary affairs of man" does not simply mean being able to go to the bank and draw out housekeeping money. Most people's affairs, his Honour said, "are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills." 59It should be noted that the relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86). 60The evidence regarding Mrs FFJ's cognitive capacity has been detailed earlier in this decision and does not need to be restated here. The Tribunal is satisfied from this evidence that Mrs FFJ's memory is significantly impaired and that this makes her incapable of managing her own financial affairs, and puts her at risk of loss of her financial means.

Is there a need for another person to manage Mrs FFJ's affairs and is it in her best interests for a financial management order to be made? 61The Tribunal was advised that Mrs FFJ's financial affairs are not complex. She receives an age pension of $813.45 a fortnight, as well as income from an annuity of $224.75 a month. Her assets are her interest in her unit, estimated to be around $130,000, and a term deposit of around $124,000. In addition to usual living expenses, she has strata expenses of $1,103.30 per quarter, and an annual fee to the aged care service provider of $3,400. 62The Tribunal has already found that Mrs FFJ has a valid enduring power of attorney. The Tribunal is satisfied that as Mrs FFJ is not capable for managing her own financial affairs, she does need someone else to manage her financial affairs on her behalf. There is no practical reason why this cannot be done by Ms BBM as her mother's attorney, however two issues of concern have been raised regarding this. The first of these is that there may be another enduring power of attorney in place, given that Mrs FFJ signed such a document in Queensland on 2 January 2014. This instrument purported to appoint Mr QBJ, Ms BBM and Mr BDD as her attorneys, but only Mr QBJ has accepted this appointment. Ms BBM has refused to accept the appointment, and it appears that Mr BDD has as well. It is unclear from the form whether the instrument is effective if only one attorney has accepted their appointment. Mr QBJ told the Tribunal that he has been advised that it is not valid. The Tribunal has no other source of information which could confirm or refute this. 63The instrument was made in Queensland, under the legislation of that State, and as such this Tribunal, established under NSW state legislation, is unable to review the validity of this instrument. Although Mrs FFJ does not have any assets in Queensland, it is possible to have interstate enduring powers of attorney recognised in NSW to the extent that they are consistent with NSW law. This raises the potential that Mrs FFJ may have two enduring powers of attorney in place at the same time, with two different attorneys who do not communicate effectively with each other. The potential for this to cause problems for Mrs FFJ is clear. 64A financial management order has the effect of suspending any enduring powers of attorney for whatever period the financial management order is in place. 65The second issue which was raised in relation to the current arrangement with Ms BBM as attorney, was that Mr QBJ considers that Ms BBM imposes her views on Mrs FFJ and does not recognise the fiduciary duty implicit in acting as another person's attorney. In addition to the incident of withholding money from her, he said that Ms BBM withholds bank statements from Mrs FFJ so she is unaware of her financial situation, and she does not assist Mrs FFJ to live the life she wants to live. Instead she restricts her life. By raising these issues Mr QBJ questioned whether the existing management of Mrs FFJ's affairs under a power of attorney was operating in his mother's best interests. 66Ms BBM denied that she does not act in her mother's best interests as attorney. She said that she keeps her mother's affairs separate from her own, she ensures that her mother's bills are paid, that her accommodation is secure and suitable and that she gets what she wants and needs. She provided a detailed spreadsheet with a month by month personal budget for Mrs FFJ from 2013. 67Ms BBM said that she has a very positive relationship with her mother, who feels free to let her know when she wants anything, and she has never denied her mother anything she has asked for. She denied that she is overly controlling of her mother or her mother's money, stating that she makes her decisions depending on her mother's state of health and her capacity. She has made financial decisions to enable her mother to remain living independently in her own unit which is what her mother wanted. She denied that she has ever withheld information or bank statements from her mother, but agreed that she does not give her bank statements to keep because she does not want her mother's financial situation to become widely known because of past exploitation by Mr QBJ. Her mother withdraws money for herself from her account from Bank B and so can see the balance of this whenever she likes. Ms BBM said that she communicates with the rest of the family (except Mr QBJ) about any significant financial decisions. 68Ms BBM said that she has repeatedly had to change her mother's banking arrangements to prevent Mr QBJ from accessing her money. In her application to the Tribunal she described that he takes her into banks and together they withdraw her money which he then uses. She claimed that her mother has been giving/loaning Mr QBJ money for over 20 years, as she is unable to decline his requests. Ms BBM estimated that these sums exceed $90,000, which is the amount that is documented. This is the reason why she is committed to protecting Mrs FFJ's money. 69Mr KAJ was very supportive of his sister's role as their mother's attorney. His only concern was the toll it takes on her given the ongoing conflict with Mr QBJ. He does not doubt that she acts in their mother's best interests, properly manages the money and uses it for their mother's benefit alone. He feels that she is "appropriately assertive" in protecting Mrs FFJ's assets given a history of exploitation by Mr QBJ. 70Mrs FFJ expressed no concerns to the Tribunal about Ms BBM's management of her affairs. 71The Tribunal found Ms BBM to be a credible witness, and did not doubt that she acts in her mother's best interests in managing her money. Mr KAJ's support of her was consistent with this conclusion. It is, however, obvious that the history of exploitation that Ms BBM and Mr KAJ assert against Mr QBJ makes her reluctant to share information about her mother's affairs. 72The Tribunal found Mr QBJ to be less straightforward in his evidence than Ms BBM. When discussing his proposal that he might be appointed as his mother's financial manager, he minimised the money his mother had provided to him and his company, Company A, and stated, when asked, that he could not recall how much this was, nor whether this money was provided as gifts or loans. He queried if it really mattered which they were because he felt he was under no legal obligation to repay any money to her either way. This somewhat self serving attitude was inconsistent with the very high standard that he was expecting his sister to be held to in her dealings with their mother's finances. The Tribunal was not persuaded that the concerns raised by Mr QBJ regarding Ms BBM's conduct as attorney provided a basis to conclude that she was not acting in her mother's best interests, or that a financial management order should be made to suspend the effect of this instrument on this basis alone. 73However, given the conflict between the parties, and the consequent potential for problems for Mrs FFJ if there are two valid enduring powers of attorney in force, the Tribunal decided that it was in Mrs FFJ's best interests to make a financial management order. The Tribunal decided that the order should be reviewed in six months' time, noting that during this period, the financial manager could obtain legal advice about the validity of the enduring power of attorney from January 2014. Depending on that advice, the financial manager could consider whether to request a review of the making of that instrument by the Queensland Civil and Administrative Tribunal (QCAT) or take whatever action was appropriate to clarify this issue. 74On this basis, the Tribunal was satisfied that there is a need to appoint a financial manager to manage Mrs FFJ's affairs and it is in her best interests that an order be made.

Who should be appointed financial manager? 75In appointing a financial manager, as in making all other orders under the Guardianship Act 1987 (NSW), the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in section 4 of the Guardianship Act. 76Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian. 77In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the Protective Commissioner and a family member as the manager of an estate. 78The NSW Trustee and Guardian now exercises the role of the Protective Commissioner. 79On the side of the Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage. 80The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers. 81The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be "more apparent than real," should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family. 82Ms BBM proposed herself as financial manager for her mother, noting that this was consistent with her appointment as attorney, and so reflected her mother's wishes at a time when her capacity was intact. In addition to the evidence detailed above about how she has managed her mother's affairs to date, Ms BBM confirmed that she has never been bankrupt, nor convicted of any offence of dishonesty, and that she is willing to comply with the requirements of the NSW Trustee and Guardian. 83Mr QBJ proposed that he be jointly appointed with Ms BBM as their mother's financial manager, even though he considered that his sister was not a suitable appointment for the reasons detailed earlier, or appointed as the sole financial manager. He acknowledged that given their relationship, the communication between himself and his sister would not be effective if they were jointly appointed although he considered that he did not contribute to any communication difficulties. 84As stated earlier there was considerable concern expressed about the financial relationship between Mr QBJ, his company, Company A and Mrs FFJ over the years. The Tribunal was not able, and saw no purpose, in conducting a detailed investigation of this. However, given Mr QBJ's statements detailed earlier that he did not distinguish between loans and gifts from his mother, as he considered there was no legal obligation to repay her, the Tribunal considered and invited Mr QBJ to comment on the following; 85A letter to Mrs FFJ from Company A dated 25 August 2011 thanking her for "including our up and coming Australian brand in [her] investment portfolio," and acknowledging receipt of $5,000, which is "invested" over a period of 10 years, at 7% per annum, with quarterly interest payments. There is nothing to suggest that any interest payments have been made to Mrs FFJ. 86A document entitled "Proof of Debt" dated 18 August 2005, naming Mr QBJ as the debtor, and Mrs FFJ as the creditor, which showed a debt from "several loans" totalling $187,400. 87An attachment to a document dated 1 September 2005 entitled "Notice of Intention to Declare First and Final Dividend, Bankruptcy Act Part X, Personal Insolvency Agreement of [Mr QBJ]," which showed Mrs FFJ as a non-claiming creditor to the value of $87,400. 88Whilst there is no suggestion that in 2005 Mrs FFJ was impaired by the dementia which now affects her capacity to manage her affairs, Mr QBJ was unable to clarify which of the $87,400 or $187,400 figures was correct. He conceded that he was unable to recall the extent of the financial assistance his mother had given to him and his company over the years. He conceded that this could lead to a perception of a conflict of interest were he to be appointed as his mother's financial manager. He confirmed that whilst he had been insolvent, he had not been declared bankrupt. 89On balance, given the evidence of considerable sums of money loaned to Mr QBJ (and his company) by his mother, given that he could not accurately quantify, and saw no commitment to repay any money to her, the Tribunal considers that there is a clear conflict of interest, and an intermingling of his financial affairs with hers to an unacceptable degree. On this basis the Tribunal was not satisfied that Mr QBJ could be considered as a suitable person to be appointed as Mrs FFJ's financial manager either jointly or on his own. 90For the reasons already explained above in relation to her conduct as attorney, the Tribunal was satisfied that Ms BBM is a suitable person to be appointed as financial manager for Mrs FFJ subject to the authorities and directions of the NSW Trustee and Guardian, and so appoints her in this role.

Order with a Specified Review Period 91The Tribunal decided to review this order in six months' time, given that the reason for making the order is to avoid the risk of disadvantage to Mrs FFJ because of the possibility that there are two enduring powers of attorney. Depending on the action taken by the financial manager in this regard, it may, at the end of six months, be apparent that there is no continuing need for a financial management order, in which case it could be revoked if this is considered to be in Mrs FFJ's best interests.

Is Mrs FFJ someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions? 92Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that they are "a person in need of a guardian." A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person" (section 3(1), Guardianship Act). A person with a disability is a person who is: (a)intellectually, physically, psychologically or sensorily disabled; (b)of advanced age; (c)a mentally ill person within the meaning of the Mental Health Act 2007 (NSW);or (d)otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (section 3(2), Guardianship Act). 93The evidence regarding Mrs FFJ's cognitive capacity has been detailed earlier in this decision and does not need to be restated here. 94On the basis of this evidence, the Tribunal is satisfied that Mrs FFJ has dementia, which at least partially prevents her from making important life decisions. She is a person for whom the Tribunal could make a guardianship order if necessary.

Should the Tribunal make a guardianship order and what order should be made? 95In considering whether to make a guardianship order, the Tribunal must take account the matters set out in section 14(2) of the Guardianship Act. These include the views of the person who is the subject of the application, the views of the person's spouse and carers, if any, and the effect of an order on the person's family relationships and cultural or linguistic environment. As set out below, where relevant, the Tribunal had regard to these matters in considering this application. 96The Tribunal must also take into account the principles set out in section 4 of the Guardianship Act and have regard to the practicability of services being provided to the person without the need for a guardianship order. 97Mrs FFJ was not able to express her views to the Tribunal in great detail. Apart from the time when the Tribunal spoke to her on her own, she did not contribute, and appeared overwhelmed by the process and discussion going on around her. She indicated that she was happy with her current situation, living at the retirement village and having contact with her family. She clearly values her relationship with each of her children. 98The Tribunal was satisfied that Ms BBM has been appointed as Enduring Guardian for Mrs FFJ and may make decisions on her behalf in accordance with that appointment. This gives her the authority to make decisions regarding her mother's accommodation, the services and health care she should receive and to consent on her behalf to medical and dental treatment. There is no dispute that Ms BBM has taken the primary role in coordinating her mother's care, and liaising with her health care providers, including her doctors. 99Mr QBJ expressed that he is concerned that Mrs FFJ does not have enough stimulation and company. He referred to the great pleasure she has had from travelling on a number of cruises with him, and having holidays to Queensland to see him. Mr QBJ believed that Ms BBM does not support Mrs FFJ having these holidays, as she resents her spending time with him. 100Whilst the other participants agreed that Mrs FFJ does enjoy these occasions, Ms BBM submitted that the lack of communication from Mr QBJ prior to these holidays puts their mother at risk, and causes her stress. She said that she has asked that her brother give her two weeks' notice if he is planning a holiday with Mrs FFJ, but that he does not do so. Ms BBM referred to number of examples where because of no communication with Ms BBM, Mrs FFJ has been required to pack for herself for a holiday. On several occasions she has forgotten her medications because she does not recall that she takes any. The letter from Dr W in May 2013 followed one of these occasions, when Mrs FFJ went on a cruise with Mr QBJ without any medications. The letter was an attempt to encourage the family members to understand Mrs FFJ's increasing needs. However it appears that the same problem arose on her trip to Queensland in December 2013. 101Mr QBJ agreed that he does not communicate with his sister about his plans with Mrs FFJ, because he believes that she will interfere and try and prevent her mother from going. He therefore makes his own arrangements for his mother to travel to meet him, and does not rely on Ms BBM. He sees no difficulty with this and does not accept that it causes problems for his mother. 102The Tribunal heard that poor communication has also affected the healthcare Mrs FFJ receives at times. An example was given that in mid-2013 Mrs FFJ needed to have a tooth extracted as she was experiencing some pain. Because she takes medications to thin her blood, there was a period during which she went without this medication before she could have the extraction. The appointment for the extraction was booked, but Mr QBJ advised that he was planning to go on a cruise with Mrs FFJ at a time which clashed with this appointment. This caused conflict between himself and Ms BBM, and Mr QBJ then called the dentist which also caused confusion which needed to be resolved. Ms BBM saw this as an example that Mr QBJ put his own interests ahead of his mother's needs, however Mr QBJ saw this as an example of Ms BBM being inflexible because she did not want Mrs FFJ to go on a cruise with him. Although Ms BBM is Mrs FFJ's enduring guardian, it is apparent that Mr QBJ does not consider that she is able to dictate to him when and how he spends time with their mother. Indeed, the enduring guardianship appointment does not give her any authority to determine the people with whom Mrs FFJ has contact, or the circumstances under which they have this contact. 103The Tribunal heard that there are likely to be decisions which need to be made in the near future regarding Mrs FFJ's accommodation and/or the services she requires to remain living independently. As she broke her wrist, and her dementia is deteriorating, she may need a higher level of care than she has had to date and an ACAT assessment may be needed at the end of her six weeks of respite care. It may be that the level of care she requires cannot be provided via a care package from the aged care service provider and this may mean that a decision needs to be made about where she lives. 104The Tribunal recognised that there is a real need for decisions to be made for Mrs FFJ regarding her accommodation, services and possibly her health care in the near future. The Tribunal accepted that there is a real possibility that conflict between the siblings may interfere with these decisions, despite the enduring guardianship appointment. 105The Tribunal also accepted that there is a real issue about the contact that Mrs FFJ has with each of her children. It is very clear that Mrs FFJ values the relationship she has with each of her children, and that it is in her best interests that she is able to have contact and involvement from each of them in her life. However, without attributing blame to anyone in particular, it was clear to the Tribunal that the three siblings are not able to coordinate between themselves to ensure that Mrs FFJ is able to have good quality contact with each of them. The Tribunal considered that, particularly during this period which may be a difficult transition for Mrs FFJ and her family, it is Mrs FFJ's best interests that a guardian be appointed to make decisions on her behalf about the contact that she has with the people who are most important to her. The aim of this is to ensure that Mrs FFJ has good access with each of her children, and other family members and friends, and that this causes the minimum of stress and risk to her because negotiations about this access will occur through someone other than her. 106Any guardianship order serves to suspend an enduring guardianship appointment, even if the order includes different functions to the enduring guardianship appointment. In Mrs FFJ's case this means that if a guardianship order is made appointing a guardian with the authority to make decisions about the access that she has with people who are important to her, the enduring guardianship instrument she made in 2011 is suspended, even though this was not a function covered in that instrument. 107On this basis, the Tribunal considered that it is in Mrs FFJ's best interests to make a guardianship order and appoint a guardian to make decisions regarding her accommodation, services she should receive, her healthcare, and to consent to her medical and dental treatment, as well as to decide on the access she has with people and the circumstance under which that access occurs.

Who should be the guardian? 108The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with section 17 of the Guardianship Act. They must: (a)have a personality generally compatible with the personality of the person under guardianship; (b)have no undue conflict of interest (particularly financial) with those of the person; and (c)be able and willing to exercise the functions of the order. 109In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in section 4 of the Guardianship Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999). 110The Tribunal heard that Ms BBM and Mr QBJ were both willing to be appointed as Mrs FFJ's guardian. Mr QBJ said he would be willing to appointed jointly with his sister or his brother and denied that he has any problems communicating with them though he agreed that communication is problematic - which he attributed to them. Mr KAJ said that he would be willing to be appointed jointly with Ms BBM or as an alternate guardian but that he could not work with Mr QBJ. Ms BBM said she could not work jointly with Mr QBJ. 111The Tribunal does not doubt that Mr QBJ cares deeply for his mother, and acknowledges that they both greatly value their relationship. However the Tribunal's concerns about Mr QBJ's conflict of interest with his mother are relevant to his proposal that he could be appointed as guardian, as is his difficulty in communicating with both of his siblings. The Tribunal is also concerned that Mr QBJ does not acknowledge the extent of his mother's disability and so may not be able to make decisions based on an accurate understanding of her situation. On balance, the Tribunal is not satisfied that Mr QBJ can be appointed as a guardian for his mother, either jointly or independently. 112However, the Tribunal is satisfied that Ms BBM and Mr KAJ do meet the requirements to be guardians for Mrs FFJ as they both have a good relationship with her, accept the nature and extent of her disability, have no conflict of interest and are able to communicate with her, each other and her health carers to make decisions on her behalf. The Tribunal is satisfied that they should be appointed with the authority to make decisions about her accommodation, services, health care and to consent to her medical and dental treatment. 113However the Tribunal is not satisfied that Ms BBM and Mr KAJ are able to make decisions about Mrs FFJ's access to people, in particular, her access with Mr QBJ, and that the Public Guardian would be best placed to make decision about this issue objectively.

How long should the order last? 114An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, an order of up to three years can be made, if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. The Tribunal decided to make an order for six months because it is likely that a number of significant decisions may be made on Mrs FFJ's behalf during this period, and that this time may lead to a clearer understanding of whether Mrs FFJ continues to need a guardian.

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: 21 October 2014

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Judgment (23 paragraphs)

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