H v H

NCAT Guardianship|2015-04-14

REASONS FOR DECISION

These Reasons for Decision are for the orders of the Tribunal made on 14 April 2015 concerning Mrs WBN.

What the Tribunal decided

The Tribunal reviewed the enduring guardianship appointment made on 14 February 2005 where Mrs WBN appointed Ms FDK to be her enduring guardian and dismissed the application.
The Tribunal did not review the power of attorney made on 6 October 2004 and dismissed the application on the basis that the Tribunal did not have jurisdiction to review this instrument.
The Tribunal reviewed the enduring power of attorney made on 1 August 2006 where Mrs WBN appointed Ms FDK to be her enduring attorney but made no order and treated the application as a financial management order.
The Tribunal appointed Mr HXT as financial manager for Mrs WBN.

The Conduct of the Hearing

A list of parties to the reviews and the witnesses at the hearing is attached as an appendix to these Reasons for Decision [appendix removed for publication].
The first hearing was conducted on 11 December 2014. Mrs WBN was represented by a lawyer, Mr QAN. Ms TRN attended the hearing in person and was assisted by her husband, Mr HST. Ms FDK also attended the hearing in person and was assisted by her lawyer, Mr NKN. Mr NKN was present during the December 2014 hearing as an observer but did not advocate on Ms FDK's behalf because he had not been given leave to appear. He participated as a 'McKenzie friend' for Ms FDK and from time to time Ms FDK consulted with Mr NKN about the conduct of the hearing. Mrs WBN participated in the hearing by telephone. A number of Mrs WBN's extended family also participated but did not give evidence at the December 2014 hearing. Those parties were Mr HXT (nephew), Ms NCL (niece), Ms LPW (niece) and Mr SPW (Ms LPW's husband).
Mrs WBN gave evidence and was questioned by her lawyer, the Tribunal, Ms TRN and Ms FDK. Ms TRN and Ms FDK also gave evidence and both were questioned by the Tribunal and Mr QAN. The Tribunal was provided with submissions and copies of documents prior to the hearing. Much of this material comprised financial records for Mrs WBN, provided by Ms FDK and by Mrs WBN.
There was insufficient opportunity at the end of the December 2014 hearing for the parties to provide oral submissions and, with the consent of the parties, the Tribunal made directions setting a timetable for the filing of written submissions.
As already noted, in written submissions provided by Mrs WBN, the Tribunal and the parties were notified that Mrs WBN had revoked Ms FDK's appointment as enduring guardian and attorney, effective from 23 December 2014. As this raised a significant change in circumstances, the Tribunal reconvened the proceedings for further hearing for consideration and oral submissions by the parties in respect of these revocations.
The matter was listed for hearing on 14 April 2015. Mrs WBN was represented by her lawyer, Mr QAN. Ms TRN attended the hearing, again assisted by Mr HST. Ms FDK did not attend the hearing and prior to the hearing notified the Tribunal officer that she did not propose to participate. The Tribunal telephoned Ms FDK at the appointed time of the hearing, but was unable to contact her on the telephone numbers nominated. Mr HXT and Ms NCL attended the hearing.

Statutory framework

The Tribunal's jurisdiction in relation to the review of the making and operation and effect of powers of attorney is set out in Division 4, Part 3 of the Powers of Attorney Act 2003 (POA Act).
The Tribunal may, on the application of an interested person, decide to review the making, revocation or operation and effect of a reviewable power of attorney (s 36(1) of the POA Act).
When reviewing the making of a power of attorney, the Tribunal may make an order declaring that the principal either did or did not have the mental capacity to make a valid power of attorney at the relevant time. If the Tribunal is satisfied the principal did not have the capacity necessary to make the power of attorney, the Tribunal may declare the power of attorney to be invalid. The Tribunal may also make an order that the power of attorney is invalid for some other reason, such as where the principal was induced to make the power of attorney by dishonesty or undue influence.
When reviewing the operation and effect of a power of attorney, the Tribunal has a broad discretion to make orders in the terms of those set out in ss 36(3) to (9) of the POA Act if it is satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal. For instance, the Tribunal may remove a person from office, vary a term or power, revoke all or part of the power of attorney and direct an attorney to lodge accounts.
In the alternative, the Tribunal may decide not to make any orders in respect of the review and, if so, may treat the application as an application for a financial management order under Part 3A of the Guardianship Act "if it considers it appropriate in all the circumstances to do so" (refer s 37(1) of the POA Act). This may be appropriate if there are concerns about the making and/or operation and effect of a power of attorney but to revoke the instrument would leave the principal without a financial manager.
The Tribunal's jurisdiction in relation to the review of an enduring guardian appointment is set out in ss 6K to 6MA of the Guardianship Act. Section 6J provides that the Tribunal may, on its own motion, and must at the request of any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the appointor, review the appointment of an enduring guardian.
On reviewing the appointment of an enduring guardian, the Tribunal may revoke the appointment or confirm the appointment, with or without varying the functions of the guardian (s 6K(1) of the Guardianship Act). The Tribunal must not revoke the appointment unless the enduring guardian requested the revocation or it is satisfied that it is in the best interests of the appointor that the appointment be revoked (s 6K(2) of the Guardianship Act). If the Tribunal revokes the appointment, it may proceed as if an application for guardianship, financial management or both has been made (s 6K(3) of the Guardianship Act).

Issues for determination

One of the issues for consideration by the Tribunal at the December 2014 hearing was whether it would be in the best interests of Mrs WBN for the appointment of Ms FDK as enduring guardian to be revoked.
However, by the time of the April 2015 hearing, Mrs WBN had revoked this appointment. There was evidence Ms FDK had accepted the revocation. On questioning of Mrs WBN, the Tribunal was satisfied that the revocation was valid. Mrs WBN gave evidence that she had decided to revoke the appointment because Ms FDK told her she no longer wished to act as her guardian. While there was conflict in the evidence as to whether Mrs WBN had decided to revoke the appointment for other reasons, the Tribunal was satisfied she had freely revoked the appointment and understood the nature and effect of the revocation. Mr QAN told the Tribunal he had prepared the revocation on instructions from Mrs WBN and he was satisfied about the validity of the revocation. The basis for his instructions and the conflict in the evidence is relevant to the Tribunal's review of the August 2006 power of attorney, which is referred to later in these reasons for decision.
Given the appointment of enduring guardian dated 14 February 2005 had been revoked prior to the determination of the application, there was no utility in proceeding to determine the application as there was no order that could be made.
When reviewing the appointment of an enduring guardian, the Tribunal may only revoke or confirm the appointment, with or without varying the functions of the enduring guardian under the appointment (s 6K(1) of the Guardianship Act). The Tribunal does not have the same wide ranging powers that it has in respect of the review of an enduring power of attorney. For instance, the Tribunal cannot appoint another person to act as guardian under the instrument of it determines this would be in the principal's best interests. The only circumstance in which the Tribunal could appoint another guardian is through making a guardianship order but this is only available under s 6K(3) where the Tribunal decides to revoke an appointment. Where an appointment has already been revoked and the Tribunal is satisfied about the validity of the revocation, there is no order that can be made on the application for review.
Accordingly, the application for review of the appointment of enduring guardian made on 14 February 2005 was dismissed. It was common ground that this was the appropriate outcome in the circumstances of the case. This, of course, would not preclude any subsequent application for guardianship under s 14 of the Guardianship Act in the event it was established Mrs WBN could not manage her person and there was a need for a substitute decision-maker.
Prior to the hearing, the Tribunal directed that submissions be made about whether it had jurisdiction to review the power of attorney made by Mrs WBN on 6 October 2004. This power of attorney was not witnessed by a prescribed witness nor was there certification by a prescribed witness as required by s 19 of the POA Act.
Mr QAN made submissions that the Tribunal did not have the power to review this instrument. As noted by Mr QAN, the Tribunal's jurisdiction is contained in s 36(1) of the POA Act, which empowers the Tribunal to review "a reviewable power of attorney." Section 33(1) provides that a power of attorney is a reviewable power of attorney "if the review Tribunal to which the application is to be made has jurisdiction to deal with the application as provided by this section." Both the Tribunal and Supreme Court of New South Wales have jurisdiction to deal with applications in respect of an enduring power of attorney (refer ss 26(1) and 33(2) of the POA Act) [emphasis added]. Mr QAN submitted that the October 2004 is not an enduring power of attorney because it did not comply with the provisions set out in s 19 of the POA Act. Therefore, the Tribunal has no power to review the October 2004 power of attorney because it was not an enduring power of attorney for the purposes of Division 4, Part 5 of the POA Act.
The submission is clearly correct. The Tribunal has no power to review the October 2004 power of attorney and as such the application for review must fail. Accordingly, the Tribunal dismissed the application for review of the October 2004 power of attorney. However, the August 2006 power of attorney meets the requirements of s 19 and is therefore an enduring power of attorney, susceptible to review by this Tribunal under s 36(1) of the POA Act.
At the commencement of the hearing Ms TRN clarified that while she was concerned about Mrs WBN's capacity to execute the enduring power of attorney in August 2006, the key focus of her application was that she wanted the Tribunal to review the operation and effect of this power of attorney. In particular, Ms TRN alleged that Ms FDK had undertaken transactions as attorney that were against her mother's best interests and/or to Ms FDK's benefit. Ms TRN sought an accounting from Ms FDK and an order that she be replaced as attorney with Mr HXT or Ms NCL.
Having regard to these matters, the questions for determination by the Tribunal were: 1. Should the Tribunal undertake a review of the power of attorney dated 1 August 2006? 2. If so, should the Tribunal make any orders in respect of the review and if so, what orders should be made? 3. If the Tribunal determines that it is not appropriate to make orders, should it treat the application for review as an application for a financial management order?
If the Tribunal treats any of the application as an application for a financial management order, the following further questions arise: 1. Is Mrs WBN not capable of managing her affairs? 2. Is there is a need for another person to manage the affairs of Mr Mrs WBN on her behalf? 3. Is it in the best interests of Mrs WBN that a financial management order be made? 4. If, so, who should be appointed to manage her finances?

Background facts and evidence

The Tribunal was provided with a large number of statements and documents, including the following: 1. Extensive statements of facts issues and contentions from each of the parties; 2. Statement of Mrs WBN filed 1 December 2014; 3. Statements of Ms FDK dated 12 June 2014 and 1 December 2014; 4. Statements from witnesses in support of Ms FDK dated 10 October 2014; 5. Numerous submissions from the parties, with documents attached; 6. Medical reports from various doctors, specialists and a discharge summary from a public hospital; 7. Documents provided by Ms FDK and/or Mrs WBN relating to Mrs WBN's financial affairs, including invoices from Company Z, another aged care service provider, and Company Y, receipts from several retailers, bank statements and miscellaneous receipts; 8. Letter of valuation from Mr Z dated 6 April 2014 in respect of Property A; 9. Valuation from a property valuation company dated 30 October 2014 in respect of Property B: 10. Mortgage dated 5 April 2007 signed by Ms FDK as attorney for Mrs WBN; 11. Report from a financial planning company dated 28 November 2014.
Ms TRN provided extensive submissions which were a combination of contentions and statements of fact alleged by Ms TRN about her relationship with Mrs WBN and events or conversations said to have taken place between her and Mrs WBN or involving Ms FDK.
Mrs WBN was asked questions about her written statement by the Tribunal, Ms FDK, Ms TRN and Mr QAN. Ms FDK was also asked questions about her statements, documents filed by Ms TRN and Mrs WBN's evidence to clarify certain aspects of the evidence.
While there was significant dispute between the parties about Mrs WBN's capacity and whether there had been mismanagement of her financial affairs by her or Ms FDK, the following matters were either not in dispute or there was documentary evidence evidencing the matter and no evidence to the contrary: 1. Mrs WBN and her late husband lived in Property A until they separated in about 1983. Thereafter Mrs WBN continued to live in the house until she moved into an aged care facility in December 2013. 2. When Mr and Mrs WBN separated, Mrs WBN's husband gifted his 50% share in Property A to Ms TRN. 3. Mrs WBN's husband died on 14 October 2003. 4. Mrs WBN's late sister owned a home at Property B which Mrs WBN inherited in 2002 on the death of her sister. She sold the property in October 2003 to a real estate company for $550,000. Mr DJS, a former business partner of Ms FDK, introduced Mrs WBN to that real estate company. [Mrs WBN also alleges that the sale price was actually $800,000 and that Mrs WBN received $250,000 in cash. This was said to be based on conversations with Mrs WBN but there was no independent documentary evidence to support this allegation]. 5. Ms TRN and Mrs WBN have had limited contact in recent years but have had a difficult relationship for many years because of clashes in personality and disagreements about the management of Mrs WBN's financial affairs. This escalated in 2003. In November 2003, Mrs WBN paid Ms TRN $250,000 to acquire the half interest in Property A. 6. Ms FDK was a neighbour of Mrs WBN. She and her mother, Mrs EDL, became friendly with Mrs WBN in about 2002 or 2003 although they had known each other before this as neighbours. In October 2004 Mrs WBN appointed Ms FDK as her attorney. The instrument was witnessed by a tax agent and, for reasons previously explained, was not an enduring power of attorney. On 15 February 2005, Mrs WBN appointed Ms FDK as her enduring guardian and on 1 August 2006 she appointed her as enduring attorney. 7. Mrs WBN was admitted to hospital on 11 August 2006 with confusion, fluctuating levels of consciousness and a urinary tract infection. She was discharged on 10 October 2006. 8. On 5 April 2007, Ms FDK, as attorney for Mrs WBN, executed a reverse mortgage in favour of Bank A to secure an advance of $86,000. Property A was used as security for the advance. 9. After Mrs WBN's discharge from hospital, Ms FDK arrange for paid carers to look after Mrs WBN in her home. The carers were neighbours of Mrs WBN. Company Z, a company in respect of which Ms FDK was a director and shareholder, issued invoices for carers who were paid using Mrs WBN's funds. This company went into liquidation and was deregistered on 7 April 2012. 10. Mrs WBN's Property A was sold on 2 June 2014 for $686,000 to neighbours. It was not advertised on the open market.
Ms TRN submitted that she became estranged from her mother when Mrs WBN resiled from an arrangement for Ms TRN to purchase Property B for $700,000. According to Ms TRN, she did not "harass" her mother about this (as alleged by Ms FDK in her statements) but decided to limit her contact to particular events such as Mother's Day, Mrs WBN's birthday and Christmas. She stated that she wanted to release her 50% interest in Property A and gave her mother three options, one of which was that Mrs WBN should pay out her interest. This is what Mrs WBN ultimately did for $250,000. It is apparent that Mrs WBN used part of the proceeds of sale of Property B to pay Ms TRN.
Ms TRN stated she was concerned Ms FDK was taking advantage of Mrs WBN and produced documents which she contended evidenced this. These documents are referred to in more detail below. Ms TRN further submitted that while she and her mother did not agree on many things, she was concerned for her welfare and health and Ms FDK had failed to provide her with updated information about her mother when necessary. According to Ms TRN, Ms FDK had unduly influenced her mother against her.
At the December 2014 hearing, Mrs WBN gave evidence that she wanted Ms FDK to remain her guardian and attorney. Ms FDK had supported her to stay in her home as long as possible and had assisted her in managing her finances. According to Mrs WBN, she did not need any one to make decisions for her as she was well able to make those decisions herself. It was particularly important to her that Ms FDK had facilitated her returned home after her hospitalisation in 2006. Mrs WBN had a number of admissions to hospital between 2008 and 2013 as a result of a fall and infections but had returned to live at home on each occasion with services being provided. After a fall in late 2013, when she broke her ankle and elbow, Mrs WBN decided to move into the aged care facility. Mrs WBN decided to sell Property A to fund her accommodation in the aged care facility and any bond payable. Mrs WBN said she had made these decisions herself.
Mrs WBN stated that she "currently had difficulty in my relationship with Ms TRN in the main as a result of Ms TRN's initiating of these proceedings and the assertions she has made against Ms FDK in these proceedings."
Because of Mrs WBN's physical disabilities, she participated in the hearing by telephone. She participated actively and answered most questions asked. Mrs WBN was an impressive witness. She was very supportive of Ms FDK and expressed disappointment in the apparent breakdown in her relationship with Ms TRN, which she attributed mainly to the clash in their personalities and Ms TRN "wanting to tell her what to do all the time and not listening to her."
While Mrs WBN knew certain information, mainly about her assets and events, she was not able to give the Tribunal a detailed account of her finances. Mrs WBN was, on occasion, confused about a number of transactions which had taken place since 2003. She did not know how much money she had in the bank and could not remember what the reverse mortgage was for. When asked how the proceeds were used, Mrs WBN said "knowing me I might have lent it to Ms FDK - I would lend her anything."
Mrs WBN said that she had not seen a bank statement for over 12 months. She said that Ms FDK tells her what money she has in the bank and writes it down for her. Mrs WBN said that she had no difficulty with this because she trusts Ms FDK.
When asked what had happened with the net proceeds of sale of Property B after she paid out Ms TRN (which would have been in the vicinity of $300,000), Mrs WBN said she went out a lot and often paid for her friends. She spent the money as she pleased.
Ms FDK gave evidence that, apart from a short period during 2006 and 2007, Mrs WBN had managed her own finances. Ms FDK said that by the time Mrs WBN was discharged from hospital in 2006, she had about $200,000 available to pay for her care but Mrs WBN did not want her to use these funds. The loan of $86,000 was used to pay private carers.
Ms TRN raised numerous concerns about payments made and transactions incurred in respect of Mrs WBN, some of which were as follows: 1. Mrs WBN incurred interest charges on the reverse mortgage over a seven-year period which was unnecessary given she should have had sufficient money from the sale of Property B to fund her care. This was an example of mismanagement that could not be explained. 2. Mrs WBN's funds had been used to pay a traffic infringement of $231 when Mrs WBN did not have a car. [Ms FDK confirmed that this was the case but stated that she paid the fine from Mrs WBN's funds because she was travelling for the benefit of Mrs WBN on that day] 3. The supply and installation of two air-conditioning units totalling $1460 in the home of Ms FDK's mother was paid for from Mrs WBN's account in September 2006. 4. Company Z issued invoices which were paid from Mrs WBN's account in the sum of $17,860. 5. There was evidence Mrs WBN was paying some of Ms FDK's expenses in her weekly shopping bill because there were items and receipts that were unlikely to be attributed to Mrs WBN, such as cat food and excessive amounts for groceries (for example, four litres of milk in one week which was unlikely to be consumed by Mrs WBN). 6. Ms FDK had received benefits from a gentleman called MR SNJ, who lived in Regional NSW by way of a transfer of his property before his death. She was the guardian and attorney for MR SNJ. Mrs WBN would be concerned about this as Ms FDK had assured her mother she had received nothing from MR SNJ. 7. There were "unsubstantiated" handwritten post-it notes purporting to be receipts for Mrs WBN's expenditure totalling $55,038.99. 8. According to receipts provided by Ms FDK, Mrs WBN's funds had been used to purchase a bed and lifter for $26,110 when there was no evidence the lifter had been provided. The bed should have cost in the vicinity of $2000 to $3000. The invoices were from Company Y, which was a company associated with MR SNJ.
In answer to these various allegations, Ms FDK: 1. Denied she had used Mrs WBN's money for her own benefit; 2. Stated she paid the carers cash in hand but because Centrelink advised there needed to be invoices, she issued invoices through Company Z but agreed Company Z did not employ Mrs WBN's carers; 3. Stated that she knew property owned by MR SNJ was to be transferred to Mr DJS but could not recall property being transferred to her or signing any transfer. 4. Stated she had obtained the bed and hoist from a private hospital for $15,000 and paid a donation.
The Tribunal was provided with letters and reports relevant to Mrs WBN's capacity.
According to an aged care discharge referral dated 10 October 2006, Mrs WBN was admitted to a public hospital about two months earlier with confusion. She was diagnosed as having a urinary tract infection. The report noted that an MRI showed "small vessel ischaemic disease" and a CT brain scanned showed "vascular dementia." It was noted "gradually patient has improved but has episodes of paranoia."
Ms FDK provided a letter from Dr Y, staff specialist at the public hospital. The letter was undated but given the terms of the letter it is apparent it was prepared about the time of Mrs WBN's discharge. The letter refers to the fact that Mrs WBN had been under Dr Y's care in hospital and there is a reference to Dr Y as Mrs WBN's attending physician in the discharge report of 10 October 2006.
Dr Y reported that Mrs WBN was diagnosed with vascular dementia on the basis of clinical findings and brain imaging investigations. He noted as follows: I feel she has diminished mental capacity and requires 24-hour supervision for her own safety.
Against this, there was a letter provided by Mrs WBN from general practitioner, Dr X, dated 16 June 2014, to the effect that Mrs WBN was "cognitively intact, able to discuss her medical history and medications in detail and perfectly capable of managing her own affairs." Dr X had been treating Mrs WBN for about 6 months at the time of this letter.
Dr W, geriatrician and rehabilitation physician, provided a report to the Tribunal dated 6 August 2014. He opined as follows: Throughout my assessment [Mrs WBN] was able to provide a consistent and detailed history of events leading up to the issue with her daughter, her medical admissions, her physical and functional deterioration (at [the public hospital]), events surrounding the circumstances of the sale of the [Southwest Sydney house]. She also clearly stated her financial situation, the number of accounts and the bank she banks with, the exact transaction numbers with the sale of the property, that her daughter is a major beneficiary in her will etc. She did not appear to have any anxious/depressed mood and did not appear to be thought disordered. Dr W further opined: It is my opinion that this lady has sufficient mental capacity to make your own decisions, personal including financial matters the present time.
Dr W provided a further report dated 9 October 2014 in similar terms.
The Tribunal was provided with a report from psychologist, Ms U, dated 18 November 2014 which was said to have been prepared on instructions from Mrs WBN's lawyer. The stated purpose of the assessment was "to ascertain whether Mrs WBN feels she is under the influence of her acting Guardian, Ms FDK when making important decisions about her emotional/financial well-being and future."
Ms U interviewed Mrs WBN and administered two assessment tools, being the Depression Anxiety Stress Scale tool and the Brief Abuse Screen for the Elderly tool (BASE). It was recorded that Ms FDK was present at the interview at Mrs WBN's request. Relevantly, Ms U opined as follows:

[Ms TRN] presents to have no mental health difficulties that maybe impacting on her decision-making
[Ms TRN] has the capacity to recall her own recollection of facts, and past and current events.
[Ms TRN] presents to have full control of her financial dealings and makes her own decisions.
[Ms TRN] does not present to be under the influences or pressure of [Ms FDK].

There were other earlier reports but given they were several years old and did not disclose the basis of the opinion stated in the report, these documents were of limited utility in determining the key issues in dispute in the proceedings about Mrs WBN's capacity.
Apart from the report of Ms U, the most detailed report was a report from the Aged Care Assessment Team (ACAT) dated 16 December 2013. The report noted that Mrs WBN occasionally had short term memory problems, hallucinations or delusions and depressive symptoms but never had long term memory problems, confusion, disorientation or at risk behaviour. Residential care was recommended because of Mrs WBN's physical disabilities.
We have not referred in detail to all of the financial material provided because it was not necessary for the Tribunal in determining the key issues in dispute to make findings about particular transactions. However, the nature and scope of Mrs WBN's financial affairs were relevant and, in particular, whether there was evidence of mismanagement sufficient to warrant the Tribunal reviewing the operation and effect of the enduring power of attorney, making orders under s 36(4) of the POA Act or alternatively, declining to make an order so as to treat the application for review as an application for financial management.
Mrs WBN's lawyer provided a report from a financial planning company dated 28 November 2014, which noted that Mrs WBN has several term deposits with the Bank B for $250,000, $200,000 and three term deposits each of $10,000. She has a pensioner account with a balance of $27,000 and a funeral savings account of about $20,000. According to the author of the report, in his opinion Mrs WBN is of "sound mind and judgement, fully understands her current financial position and is able to manage her finances accordingly with assistance of Ms FDK as her guardian."

Events after the December 2014 hearing

During the December 2014 hearing, there was evidence that Ms FDK had been guardian and power of attorney for MR SNJ. Ms FDK asserted that she had received nothing from MR SNJ. However, in her written submissions following the hearing Ms TRN provided a copy of a document evidencing a transfer of a property from Mr MR SNJ to Ms FDK, as to two thirds, and Mr DJS, as to one third, on 1 March 2000. There was no consideration referred to on the transfer. On 31 August 2001, Ms FDK and Mr DJS then transferred to Mr DJS their interest the property for $110,000. The dutiable amount recorded on the transfer was $165,000.
Ms FDK did not respond to the submissions filed by Ms TRN or this additional evidence other than as detailed below.
Mrs WBN submitted, through her solicitor, as follows: It is conceded that the material before the Tribunal did raise concerns in relation to the manner in which [Ms FDK] had carried out her roles, in particular as [Mrs WBN]'s Attorney/Financial manager. In particular, the evidence by [Ms FDK] to the Tribunal in relation to the payment of carers, acquisition of hospital bed and hoist and in relation to the person [MR SNJ] were less than satisfactory. It is conceded that on the basis of the evidence before the Tribunal, it would be open to the Tribunal to find that [Mrs WBN] was overly trusting of [Ms FDK] and that she failed to properly supervise the manner in which [Ms FDK] carried out these roles. Mr QAN further submitted as follows: There were matters raised in the course of the hearing and that in my view meant that there was a prospect that there may have been a change in my instructions in relation to [Mrs WBN]'s attitude to retaining [Ms FDK] as her attorney and guardian. Contrary to [Ms TRN]'s assertion, this was an acknowledgement that I have made in the course of the hearing, without any prompting from any member of the Tribunal. Following the hearing I consulted by phone with [Mrs WBN] on 17 December 2014 and received her instructions that she was desirous of revoking her appointment of [Ms FDK] as her attorney and guardian.
Accompanying the submission were revocations of the appointment of Ms FDK as enduring guardian and revocation of her appointments as attorney. These revocations were witnessed by Mr QAN.
And as already noted, the Tribunal directed that the matter be relisted for hearing for submissions from the parties about the new material.
Ms FDK did not participate but provided a submission in the following terms: I [Ms FDK] declare that during my time of enactment as guardianship and power of attorney for [Mrs WBN], I performed the role with Fiduciary Responsiblity and carried out the wishes/actions that [Mrs WBN] had instructed me with prior to her time of serious illness. I proudly state that my actions on her behalf created the opportunity for her to stay in her home for six - seven years longer than deemed possible by the aged care team in [the public hospital]. In relation to the expenditure actioned to keep [Mrs WBN] at home, this expenditure was considered before being spent in comparison to [Mrs WBN]'s wishes and I determined that no matter what it was to be, that [Mrs WBN]'s benefit of being brought home (to her own home) over an admission to a nursing home was worth it. The fact is that my decisions and actions taken in this context were towards [Mrs WBN]'s best interests for she regained capacity over time and lived happily in her own home until physical limitations necessitated permanent residency into [the aged care facility]. Expenditure(s) were detailed to [Mrs WBN] at the time and witnessed at the time by her carers - reference is corrected to prior evidence in this matter on this matter. Expenditure following [Mrs WBN]'s return to capacity were via [Mrs WBN]'s instructions (not as power of attorney) I therefore cannot and will not accept responsibility in this context. In summary, I have no regrets of what actions I undertook to help [Mrs WBN], and [Mrs WBN] equally satisfied that my actions gave her the wish of staying at home as long as possible before entering a nursing home. And I am pleased that [Mrs WBN] is of capacity and comfortable in [the aged care facility]. I will continue to support her as a family friend as she needs me to without the continuation as her Guardian and Power of Attorney.
At the April 2015 hearing Mr QAN confirmed his submissions and stated that, based on his advice to Mrs WBN, Mrs WBN had said she wished to revoke the enduring the powers of attorney and appointment of enduring guardian. He therefore prepared documents and they were executed on 23 December 2014. Mr QAN was satisfied that these were executed by Mrs WBN fully understanding the nature and effect of the revocations.
Mrs WBN was questioned about her instructions. She said the reason the instruments were revoked was because Ms FDK had said she wanted to resign because of the allegations made against her. Mrs WBN did not wish to revoke the powers of attorney even though her lawyer had expressed to her the view that Ms FDK had "not done a good job." Mrs WBN said she did not really agree. Mrs WBN also said that she did not know how much money was in her bank accounts, she had not seen her bank accounts for about two years but was "quite sure it was all there." If Ms FDK did things incorrectly she was happy to "let it go" because Ms FDK had done so many good things for her - "the good outweighed the bad."
Mrs WBN said she had paid legal fees to Mr NKN, who was Ms FDK's lawyer. She was not sure what the legal fees were for.
Mrs WBN said that she could manage her own finances but if the Tribunal did not accept this and Ms FDK would not manage her finances she would accept Mr HXT as her financial manager. According to Mrs WBN she considered Mr HXT "to be a fine man."
Ms TRN supported the appointment of Mr HXT as financial manager.
Mr HXT attended the hearing and stated he was willing to manage Mrs WBN's finances. He gave evidence that he had been a chartered practising accountant since 1984, he worked for 15 years as a manager of a large public company and was the chief financial officer of an RSL for a number of years.

Should the Tribunal undertake a review of the power of attorney dated 1 August 2006?

The Tribunal has a discretion as to whether it to conduct a review under s 36(1) of the POA Act. Ms TRN has raised a number of serious allegations about the management of Mrs WBN's financial affairs from about 2003. She has provided documents to substantiate the claims. This is not a case where an applicant has made allegations without providing particulars or substantiation. Ms TRN has particularised her claims in her submissions and in the documentary evidence provided. If the claims are established they would warrant intervention by the Tribunal.
In these circumstances, the Tribunal was satisfied it was appropriate to review the enduring power of attorney dated 1 August 2006.

If so, should the Tribunal make any orders?

As already noted, the Tribunal was provided with detailed submissions from the parties and Ms TRN provided documentary evidence to support her contentions. Ms FDK also provided documents.
Having regard to the evidence, submissions and documents provided, the Tribunal summarises its key findings as follows: 1. Mrs WBN and Ms TRN became estranged from about 2003. The impetus for this was their disagreement about Property B. In addition to this Ms TRN wanted to release her interest in Property A and this added to the tension between them. 2. Mrs WBN started to rely on Ms FDK after this and appointed Ms FDK her attorney and guardian in October 2004 and February 2005 respectively. 3. Mrs WBN sold Property B in 2003 for $550,000 to a real estate company. There is no documentary evidence to support the contention made by Ms TRN that Mrs WBN was paid an extra $250,000 for the sale. The only evidence is hearsay evidence provided by Ms TRN about conversations that she said she had with her mother over the years. Mrs WBN denies this. 4. Based on the available evidence it is apparent that Mrs WBN herself made the decision to sell Property B for $550,000. We are not satisfied Ms FDK unduly influenced Mrs WBN to sell this property, although there is evidence to suggest the property was sold under its market value. The property was not sold on the open market and there is evidence from a valuer (obtained by Ms TRN in October 2014) that the property would have been worth $700,000 as at October 2003. When questioned about this Mrs WBN said she was happy with the price. She did not make other enquiries about the value of the property or the adequacy of the offer made by the real estate company (apart from discussions with her brother). She did not want to incur the expense of auctioning the property. Mrs WBN said that she never had a lot of money and thought that the price offered to her was "good enough." 5. Mrs WBN made savings because she did not need to retain a real estate agent or advertise the property for sale but based on the material provided it seems likely she could have obtained about $100,000 more if she had sold the property on the open market using an agent. 6. The Tribunal is satisfied, again based on the evidence available at the hearing, that this was Mrs WBN's choice and was not a decision that could be attributed to Ms FDK. Moreover, the sale was not pursuant to the powers of attorney, neither of which had been executed at the time of the sale. Even if Mrs WBN sold Property B at an undervalue, this does not, of itself, evidence that she was not capable of managing her finances at this time. Imprudent decisions may be made by people who do not have cognitive impairment. In any event, whether or not Mrs WBN lacked capacity at this time is not a material issue in dispute in the proceedings as it predates the relevant instrument the Tribunal is reviewing. 7. Mrs WBN became ill in 2006 and was hospitalised on 11 August 2006. She signed an enduring power of attorney on 1 August 2006. There was a certificate from a solicitor, Mr JCD, to the effect that the power of attorney was explained to Mrs WBN and that she appeared to understand the effect of the instrument. While it is clear Mrs WBN was confused at the time of her admission to hospital, there is no evidence about when this confusion first occurred. There is a reference to confusion made by Ms FDK a letter in July 2006 to Dr V, Mrs WBN's general practitioner at that time, but it is possible Mrs WBN's confusion fluctuated. In the absence of compelling evidence to contradict the certification made by Mr JCD, the Tribunal could not be satisfied Mrs WBN did not have the capacity to make the power of attorney on 1 August 2006. 8. There was no dispute that Ms FDK operated the power of attorney from the time of Mrs WBN's admission to hospital in August 2006 until sometime in 2007. The reverse mortgage was executed by Ms FDK and carers were paid by her during 2007 from Mrs WBN's accounts. Ms FDK asserts that after 2007 Mrs WBN regained capacity and made financial decisions for herself. Based on the available evidence, the Tribunal is satisfied that Ms FDK was managing Mrs WBN's finances from about 11 August 2006 until sometime in late 2007 on a formal basis and thereafter on an informal basis. Ms FDK remained a signatory on Mrs WBN's accounts and paid bills for her. It is clear from Mrs WBN's evidence that she allowed Ms FDK to continue to manage her finances. We accept that Ms FDK discussed financial management issues with Mrs WBN and that Mrs WBN no doubt had considerable input in relation to those matters but we are also satisfied (based on the evidence of Mrs WBN) that she was content to have her day to day finances managed by Ms FDK. She said she trusted Ms FDK and had not looked at her bank statements for the past two years. 9. There is evidence of unusual transactions that Ms FDK was unable to satisfactorily explain. It is difficult to understand why Mrs WBN would agree to a reverse mortgage to fund her care when she had about $200,000 available. While the Tribunal accepts Mrs WBN's care would have been expensive, it is apparent that nearly $400,000 was expended from Mrs WBN's estate from over a ten-year period until her admission to an aged care facility and the sale of Property A. This does not include the interest that would have been incurred on the reverse mortgage. This is an average expenditure of about $40,000 per year, excluding Mrs WBN's pension [emphasis added]. Mrs WBN's explanation for this was that she liked to spend her money and was generous with her friends. There were examples of expensive gifts and dinners said to have been paid from Mrs WBN's accounts. Ms FDK explanation was that care was expensive. Notwithstanding this, the expenditure appears to be excessive, particularly having regard to the fact that Mrs WBN apparently spent extended periods in hospital over this time. 10. The explanation by Ms FDK for the expenditure and the invoice from Synergy for the bed and hoist was not convincing. It was also apparent from consideration of the receipts provided that a number of the expenses paid from Mrs WBN's accounts were unlikely to be attributable to her living expenses. There was no satisfactory explanation provided about the air-conditioning units that were purchased for the property of Ms FDK's mother. Ms FDK agreed during her evidence that she created invoices to evidence payments to carers to satisfy Centrelink. This was irregular. Furthermore, Ms FDK's explanation of her dealings with MR SNJ were unclear and incomplete. 11. There was no evidence that the sale of Property A was undervalue or improper. Mrs WBN believed she would need to pay a bond for the aged care facility and even though this is now apparently not the case, it was reasonable to liquidate this asset rather than rent it out. 12. There is evidence Mrs WBN was overly trusting of Ms FDK and has therefore failed to adequately supervise the management of her finances. This was conceded in the closing submissions of her lawyer. Mrs WBN is clearly very grateful to Ms FDK for facilitating her return to her home after her hospital admission in 2006 and since that time. She has changed her will to include Ms FDK as a residuary beneficiary after making specific bequests to other relatives, a friend and a significant bequest to Ms TRN. However, Mrs WBN has not questioned Ms FDK about certain payments from her accounts, she does not know how much money is in her accounts, she has suggested she may have, and would have if asked, loaned money to Ms FDK and, despite being surprised about the evidence that Ms FDK may have received property from MR SNJ, she was not prepared to question Ms FDK about this. 13. Despite the advice from her lawyer, Mrs WBN does not accept that Ms FDK should not be her attorney and gave evidence in April 2015 that the only reason she revoked the power of attorney and appointment of enduring guardian was because Ms FDK wanted to resign. This is either because Mrs WBN does not have sufficient insight or cognitive capacity to assess the evidence provided and advice given or because she is vulnerable to Ms FDK and her sense of gratitude for the previous assistance given by Ms FDK. 14. Mrs WBN has freely revoked the enduring powers of attorney but is still vulnerable given her evidence that, after these revocations, she paid an invoice from Mr NKN at Ms FDK's requests without understanding the basis for the payment.
Given Mrs WBN has revoked the power of attorney of 1 August 2006, the only orders available to the Tribunal under s 36 of the POA Act would be to make an order under s 36(4)(e), for instance, directing Ms FDK furnish accounts with the Tribunal or a specified person about Mrs WBN's estate. The difficulty with making such an order is the utility is questionable in the circumstances, it is possible Ms FDK may be able to make a claim on Mrs WBN's estate for indemnity against the costs incurred as attorney and, in the absence of another financial manager or attorney, Mrs WBN will have no one to scrutinise the transactions or to assist her in management.
Under s 37 of the POA Act, the Tribunal may decide not to make an order under s 36 and treat the application for review as a financial management application.
Having regard to the potential limited utility of orders under s 36(4)(e) and the Tribunal's concern, as explained in more detail later in the reasons that Mrs WBN may be vulnerable to exploitation in the future if her estate was not managed by another person, the Tribunal determined not to make an order and decided to treat the application as an application for financial management.

Is Mrs WBN not capable of managing her finances?

A material matter for consideration under s 25G of the Guardianship Act, which sets out the grounds on which a financial management order can be made, is whether the Tribunal is satisfied that the person is not capable of managing their finances.
A person's capability to manage his or her affairs was discussed by Campbell J in the NSW Supreme Court in Re GHI (a protected person) [2005] NSWSC 581. The approach enunciated by Powell J in PY v RJS [1982] 2 NSWLR 70 and applied on many occasions was affirmed. Powell J said: It is my view that a person is not shown to be incapable of managing his own financial affairs unless, at the least, it appears: (a) that he is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and (b) that by reason of that lack of competence there is shown to be a real risk that either; (i) he may be disadvantaged in the conduct of such affairs; or (ii) that such moneys or property that he 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.
However, Young J in H v H (unreported NSW Supreme Court Equity Division Protective List 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.
In Re D [2012] NSWSC 1006, White J considered the relevant authorities and adopted the formulation of Barrett J in P v R [2003] NSWSC 819, namely that the capacity of a person to cope with the "ordinary routine of living" needed to be assessed by reference to the person's assets and the objective facts about how the person is able to look after these assets.
Barrett J described the task of determining whether a person was incapable of managing his or her financial affairs in P v R at [25] as follows: The task of the court upon an application such as this, is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property. This is a somewhat shorthand version of the tests laid down by the authorities to which I have already referred. The point to be emphasised is that the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them.
More recently in P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J observed that the expression "capability to manage his or her own affairs" should be accorded "its ordinary meaning" but in operation, this expression "takes colour" from both ss 3(2) and section 4 of the Guardianship Act (at [304]). His Honour further noted at [309] as follows (citing his earlier decision): In considering whether the person is "able" in this sense, attention may be given to: (a) past and present experience as a predictor of the future course of events; (b) support systems available to the person; and (c) the extent to which the person, placed as he or she is, can be relied upon to make sound judgements about his or her welfare and interests: CJ v AKJ [2015] NSWSC 498 at [38].
It 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). This has been followed in subsequent cases and was endorsed by Lindsay J in P v NSW Trustee and Guardian at [311].
In summary, while the test for capacity as set out in PY v RJS has been an oft quoted formulation, it has been recognised that the application of the test for capacity is complicated and should not be approached as a generalised "gloss" based on the "ordinary affairs of man" (Lindsay J at [306]). The more recent cases have taken into account the circumstances of the case and the nature and extent of management involved. The following observation of Lindsay J in P v NSW Trustee and Guardian at [313] is apt: It is inevitable that, in discussion of particular cases, insightful statements will be found, like those made in EB and Ors v Guardianship Tribunal and Ors [2011] NSWSC 767 at [134], to the effect that a person can be characterised as incapable of managing his or her affairs if his or her financial affairs are of such a nature that action is required to be taken, or a decision is required to be made, which action or decision the person is unable to undertake personally, and which will not otherwise be able to be made unless another person is given the authority to take the action or make the decision.
In the present case there was evidence from Dr W, Dr X and Ms U that Mrs WBN was able to make decisions for herself and manage her finances. The Tribunal observed that Mrs WBN was high functioning during the hearing and, despite being on the telephone, appeared to have a good grasp of the nature of the proceedings.
On the other hand, she did not have a good understanding of the detail of her finances. Dr W observed that Mrs WBN clearly stated her financial situation, the number of her accounts, the name of her bank and the exact transaction numbers for the sale of her properties. In her evidence to the Tribunal, Mrs WBN was able to tell the Tribunal the name of her bank and the sale price of the each of her properties. However, she was not able to recount the number of her accounts and the balances in those accounts. Nor was she able to explain a number of the transactions on her accounts. It is unclear on what basis Dr W concluded Mrs WBN was able to provide details of those accounts. For instance, he does not set out how he was able to test the accuracy of any information Mrs WBN gave him in relation to her financial affairs.
Ms U concluded that Mrs WBN "presents to have full control of her financial dealings and makes her own decisions" [emphasis added]. The Tribunal accepts that Mrs WBN indeed presents very well. However, it is relevant to note that Ms U does not conclude that Mrs WBN has in fact full control of her financial dealings. Nor could she do so. Ms U did not make any assessment about how Mrs WBN was dealing with her financial affairs.
Dr X concluded that Mrs WBN was cognitively intact and "perfectly capable of managing her own affairs." However, his letter is of limited utility because Dr X did not set out the basis on which he has formed this view. It is unclear whether he has asked Mrs WBN questions about her finances and has assessed her answers by reference to knowledge about those financial affairs.
The Tribunal was also provided with a report from a financial adviser. The adviser concluded Mrs WBN fully understands her current financial position. Relevantly, the adviser also concluded that Mrs WBN "understands her instructions to Ms FDK for managing the payment of on-going expenses on her behalf, including past, current and anticipated future expenses." However, the report does not set out the basis for this opinion. Nor is the financial adviser qualified as an expert to make such an assessment.
In summary, while the Tribunal had regard to the reports provided by Mrs WBN and Ms FDK, the Tribunal gave the conclusions in those reports limited weight, particularly given the conclusions were inconsistent with the Tribunal's own findings based on careful questioning of Mrs WBN.
The Tribunal questioned Mrs WBN about her financial affairs having the benefit of detailed information about the facts of those affairs. Based on Mrs WBN's responses (as detailed earlier in our reasons), the Tribunal formed the view that Mrs WBN was not capable of managing her financial affairs. In particular, the Tribunal was satisfied that Mrs WBN was vulnerable to potential financial abuse and had little insight or understanding of the potential risks or disadvantage in having her finances managed by Ms FDK unsupervised. Her responses to the Tribunal's questioning at the April 2015 hearing made it clear she was unwilling to accept the advice of her lawyer. For instance, it is likely Mrs WBN would be unable, and probably unwilling, to question Ms FDK about the previous management of her financial affairs or to refuse making payments for expenses that Ms FDK advises are payable by her.
In other words, the Tribunal was not satisfied that Mrs WBN could adequately supervise the management of her finances and concluded that there would be a real risk she would fall back on informal management by Ms FDK. While the Tribunal has not made specific findings of misuse or mismanagement by Ms FDK, there are significant unanswered questions about the management of Mrs WBN's financial affairs to warrant supervision and management by another person.

Is there a need for another person to manage and is it in her best interests for an order to be made?

For the reasons set out above, and based on Mrs WBN's vulnerability and the fact she has not managed her finances without assistance for many years, the Tribunal is satisfied there is a need for another person to manage her financial affairs and that it is in her best interests that an order be made.

If so, who should be appointed?

Mr HXT put himself forward as a person who would be prepared to manage Mrs WBN's finances. There was evidence that Mr HXT regularly visits Mrs WBN, is apparently compatible with her and understands her need for independence. Importantly, Mrs WBN said that if she could not manage her own finances or her finances could not be managed by Ms FDK, she would accept management by Mr HXT.
Based on the evidence of Mr HXT's previous financial management experience, his presentation at the hearing and Mrs WBN's acceptance of Mr HXT, the Tribunal concluded that Mr HXT was suitable to be appointed as financial manager under the orders and directions of the NSW Trustee and 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: 30 June 2015

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (7)