ICW [2017] NSWCATGD 43

HEALTH AND MEDICAL EVIDENCE

1. The Tribunal had regard to the views of a number of health and medical professionals regarding Mrs ICW's cognitive capacity. These views are summarised in this section of these Reasons.
2. A letter dated 26 February 2007 addressed to Dr Y in regional NSW from Dr X, a Specialist in Geriatric Medicine at Public Hospital A indicates that she had seen Mrs ICW on 26 February 2007. She provided a prescription for Mrs ICW's second six-month supply of Aricept as she had previously fulfilled the criteria for ongoing supply with a Mini Mental State Examination (MMSE) score of 18/28 in November 2006. Further prescriptions for the medication could be supplied by the general practitioner (GP).
3. A letter dated 26 November 2007 addressed to Dr W in regional NSW from Dr X refers to Mrs ICW's ongoing use of Aricept and to issues regarding the authority of the GP to prescribe that medication.
4. An Assessment Summary prepared in respect of Mrs ICW by the Aged Care Assessment Team (ACAT) at Public Hospital B and dated 11 June 2014 indicates the following: 1. Mrs ICW had a history of dementia that was diagnosed by Dr X. 2. She was living at home alone and was supported by her son Mr KYW and his wife Ms NGW. The team was advised that Mr KYW and Mr BDW were appointed as her attorneys. 3. Mrs ICW had a care package that provided for five hours per week of assistance in respect of medications, personal care, and weekly cleaning and the Multicultural Service assisted with shopping and weekly respite care. 4. Mr KYW and Ms NGW were unsure about Mrs ICW's ongoing ability to manage at home alone and had sought access to a package of care, respite approval and permanent care if needed in the future. 5. Mrs ICW was approved for low-level care respite and permanent care with a home care package level 2 to assist with medications, cleaning, personal care, and laundry. 6. An attached copy of the Rowland Universal Dementia Assessment Scale (RUDAS) - a multicultural mini mental state examination indicates that when tested on 2 June 2014 Mrs ICW scored 11/30.
5. In a Medical Certificate dated 20 October 2014, Dr V of Eastern Sydney states that in his view Mrs ICW had mild dementia but was "generally very lucid and her mind and cognition is normal. She is certainly capable of making proper rational decisions".
6. In a Medical Certificate dated 11 February 2015, Dr V states that Mrs ICW has been his patient since October 2014 and had been referred to a Dementia Aged Care specialist as well as other medical practitioners.
7. In another Medical Certificate dated 11 February 2015, Dr V states that Mrs ICW had "mild dementia" but was "generally very lucid and her memory and cognition is normal. She is certainly capable of making proper rational decisions".
8. In a letter dated 29 October 2014 addressed "To Whom it May Concern, [Dr U] of [a medical centre in regional NSW] provides information and opinion to the following effect: 1. Mrs ICW had been a patient of the practice since 2007. She had previously been the patient of two other doctors in the practice and in August 2013 she became his patient. 2. In November 2006, Mrs ICW was diagnosed with dementia by Dr X, a Specialist in Geriatric Medicine at pubic hospital A. At that time she was commenced on Aricept as she fulfilled the PBS Guidelines required for that drug as she scored 18/30 on the Mini Mental State Examination (MMSE). She had been on Aricept since then. 3. Mrs ICW was followed up by Dr X and the last appointment with her was 1 September 2009. Dr X had since left Public Hospital A and Mrs ICW's medication was prescribed by the medical practice in regional NSW. 4. On 5 May 2014, Mrs ICW was brought to the surgery by Ms NGW, her daughter-in-law, who said that Mrs ICW's memory had deteriorated, she was often forgetting to shower and to take her medications and had become aggressive to her sister with whom she lived and was tending to wander. Mrs ICW was not able to recollect the events of the previous day when asked about them by Dr U. 5. Mrs ICW was not able to recollect questions asked minutes before and in his view her dementia had worsened. 6. Mrs ICW's presentation triggered an assessment by the ACAT that was conducted at Mrs ICW's home. She had scored 11/30 on the Rowland Universal Dementia Assessment Scale (RUDAS), which indicated a marked decline from the MMSE score of 18/30. As a result of the assessment Mrs ICW's care package was increased.
9. In a letter dated 23 February 2015 addressed to P. Woods, solicitor, Dr U comments to the following effect: 1. He had been Mrs ICW's doctor since September 2013. He had seen Mrs ICW with Mr KYW and his wife and also with her late-sister, Ms HPW. 2. Mrs ICW attended his surgery on 24 October 2014 with Mr BDW. 3. He explained to Mr BDW that Mrs ICW had dementia and was extremely forgetful. She was on Aricept that had been commenced by a dementia specialist. 4. He was unable to locate records that indicated when Mrs ICW's dementia was first diagnosed. 5. Mr BDW asked Dr U's views about Mrs ICW's mental capacity. Dr U responded that mental capacity requires the ability to understand, retain and reproduce information and said that in his view, due to her dementia, Mrs ICW lacked the ability to retain and reproduce information. 6. Mr BDW "kept insisting" that he provide a letter stating that Mrs ICW had capacity to decide her own affairs but he (Dr U) said he was unable to provide such a letter. 7. Mr BDW asked Mrs ICW whether she would prefer to live with him or in a nursing home and she responded that she would prefer to live with Mr BDW. When Dr U asked a similar question about where she would prefer to live she said that she would prefer to live in her own house supported by Mr KYW. Dr U commented to Mr BDW that Mrs ICW's memory was very "short lived" and that was why she had been diagnosed with dementia and why he was not able to provide the letter requested by Mr BDW.
10. Mr BDW contended that Dr U's account of the consultation on 24 October 2014 was incorrect. He also noted that according to Mr KYW, around this time Mrs ICW also saw Dr T.
11. In an undated letter addressed "To Whom it May Concern", Ms FXW makes statements to the following effect regarding Dr U's letter dated 23 February 2015: 1. The letter was written some four months after the meeting which was of five minutes duration. 2. In his account he "does not recall" that she was also present. 3. Her recollection of the meeting is "significantly different" from that of Dr U. 4. She states that Mr BDW asked questions about Mrs ICW's "treatment plan" and questions Dr U's professionalism in describing the questions as "very awkward" and "quite uncomfortable".
12. In a letter to the Tribunal dated 11 February 2015, a coordinator of the Dementia Support team in regional NSW indicates that Mrs ICW had attended Friday activities at the Dementia Day Care centre on 16 May 2014 and her last attendance was on 3 October 2015.
13. In a letter dated 5 April 2015 to Dr S in Eastern Sydney, Dr Z, comments to the following effect: 1. There had been a "mild progression" in Mrs ICW's short-term memory loss and orientation. 2. She would benefit from hydrotherapy but he was unsure whether she would "be able to go through with the required attentions and follow commands".
14. In a letter dated 7 April 2015 addressed to the Principal Guardian, Dr Z comments to the following effect: 1. Mrs ICW was referred to him by Dr V with a request for review regarding her dementia. 2. She has a history of dementia diagnosed some years earlier. 3. For some years she had been on Aricept, a commonly used cognitive enhancing agent used for patients with dementia. 4. "She has deteriorated from a cognitive perspective slowly but steadily over the past few years. She requires some supervision and prompting with regards to ADLs including showering, dressing, toileting, and routine day to day tasks." 5. "There are increasing problems with short-term memory loss, increasing vagueness, poor concentration and poor focus. She asks recurrent questions about the same issues and can be regularly confused." 6. She "requires the family to supervise all medications, she cannot cook for herself". 7. Her RUDAS baseline was 13/30 on an assessment conducted in the Greek language. 8. She was "intermittently aware" that she was living in Eastern Sydney with her family. She realised that she had left her previous place of living and there was "a tinge of sadness…especially with not seeing her son Mr KYW". She brought up "issues of monetary mismanagement and Mr KYW and his wife talking about her and also bringing up the issue of putting her away in a nursing home". 9. "From a [medico legal] perspective [Mrs ICW] is suffering from a moderate mixed dementia. She does not have the capacity to make appropriate decisions with regards to financial, residential or medical matters".
15. In a letter dated 21 July 2015 addressed to the Principal Guardian, Dr Z comments to the following effect: 1. Mrs ICW had returned from a holiday in Greece and was a "little bit more confused than usual" as was to be expected. 2. Mrs ICW should remain on Aricept to continue whatever cognitive therapy possible and he had prescribed another medication to help to maintain "some of her cognitive function". He hoped to see some improvement regarding motivation and decreased apathy and had talked to her family about side effects of confusion, disorientation, and agitation. 3. He had asked the family to keep all "legal matters and affairs away from her" as he didn't think "she has the cognitive ability to be able to deal with these".
16. In a letter dated 22 September 2015 to Dr S in Eastern Sydney, Dr Z comments to the following effect: 1. He had taken care of Mrs ICW since April 2015 and had most recently seen her on 22 September 2015. 2. From a dementia perspective Mrs ICW was "relatively stable". She had no insight or ability to make appropriate decisions but was quite comfortable and well looked after.
17. In a letter dated 17 November 2015 addressed to the Principal Guardian, Dr Z notes that he reviewed Mrs ICW that day and comments that "from a dementia perspective she appears to be quite stable".
18. In a letter dated 15 February 2016 Dr S of Eastern Sydney states that Mrs ICW appeared well and happy and answered an emphatic "no" when asked if she would like to receive visits from other family members.
19. In a letter dated 5 March 2016 addressed to the Tribunal, Dr Z comments that in respect of Mrs ICW's dementia there had been "minimal deterioration" since the previous review. Her short-term memory was still poor.
20. In a letter dated 20 April 2016, Dr S, states that he saw Mrs ICW on the date of the letter and she said that she is "very happy" where she resides and in respect of other family members she said "I don't like them, they've done too many things." She did not want to go to regional NSW and did not want "visitation rights" at her current residence.
21. In a letter dated 2 May 2017 addressed to Dr S, Dr Z states that Mrs ICW had been relatively stable since the last review and had "poor short term memory".
22. In a letter dated 2 May 2017 and addressed "To Whom it may Concern", Dr Z comments that when he first met Mrs ICW in April 2015 it was "obvious" that she had dementia, but: "after an "initial review and extensive questioning in Greek" he could state that she had "quite a reasonable understand (sic) and ability to make a decision with regards to where she wanted to reside and who she wanted to be in charge of her financial and medical decisions. She understood quite clearly in Greek what a Power of Attorney was and was able to nominate [Mr BDW] as the son she wanted responsible for her ongoing needs, financial needs and residential needs".
23. In a letter dated 5 May 2017 addressed "Dear Sir or Madam", Dr S states that he had been caring for Mrs ICW since 2015 at which time: "She presented in the early stages of dementia, background hypertension. At the time she was fully oriented in time, person and place. She was fully capable of understanding commands, instruction and be able to address any legal decision making. Currently her dementia has progressed where she remains oriented to person only and in my opinion, cannot follow any complex instruction"
24. During the hearing Mr BDW said, in effect, that Mrs ICW commenced living with him around 16 October 2017.
25. The Tribunal asked Mr BDW how many times Dr V had seen Mrs ICW prior to issuing the certificate on 20 October 2014 to the effect that she was "lucid" and that her "mind and cognition" were normal. Mr BDW replied that he could "not tell exactly" but that Dr V had seen Mrs ICW "a fair bit" before 20 October 2014. He said that Dr V had "definitely" seen Mrs ICW prior to writing the certificate on 20 October 2014, and that to the best of his recollection he had taken Mrs ICW to Dr V "many times" before 20 October 2014.
26. The Tribunal contacted the surgery of Dr V and was advised by a receptionist that according to the practice records, the first time Dr V saw Mrs ICW was on 20 October 2014 and the last time was on 16 July 2015. Mr BDW disagreed with that date and said that Mrs ICW had seen Dr V "a few times" before 20 October 2014.

REVIEW OF ENDURING POWER OF ATTORNEY MADE ON 28 OCTOBER 2014

What did the Tribunal have to consider?

1. The Tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney, or not to carry out such a review (Powers of Attorney Act 2003 (NSW), s 36(1)). As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act (s 36(2)).
2. The Tribunal may make a number of orders relating to the making of a power of attorney including the following: 1. An order declaring that Mrs ICW did or did not have mental capacity to make a valid power of attorney 2. An order declaring that the power of attorney is invalid (either in whole or in part) if the Tribunal is satisfied: 1. Mrs ICW did not have the capacity necessary to make a valid enduring power of attorney; 2. The enduring power of attorney did not comply with the requirements of the Powers of Attorney Act; 3. the enduring power of attorney is invalid for any other reason, for example, dishonesty or undue influence.
3. The Tribunal may make a number of orders relating to the operation and effect of a power of attorney if it is satisfied: 1. that it would be in the best interests of Mrs ICW to make the order; 2. that it would better reflect the wishes of Mrs ICW to make the order.
4. These orders include: 1. An order varying a term of, or a power conferred by, the power of attorney; 2. An order removing a person from office as attorney; 3. An order appointing a substitute attorney to replace an attorney who has been removed from office or who otherwise vacates the office; 4. An order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of power of attorney and appointing a substitute attorney to replace the attorney who vacated office; 5. An order directing the attorney to: 1. Furnish accounts [to] the Tribunal or someone nominated by the Tribunal; 2. Lodge a copy of all records and accounts of dealings and transactions made under the power; 3. Requiring that the records and accounts be audited and that a copy of the report of the auditor be furnished to the Tribunal; 4. Submit a plan of financial management for approval; 1. An order revoking all or part of the power of attorney; 2. Such other orders as the Tribunal thinks fit.
5. If on a review of the enduring power of attorney, the Tribunal decides not to make an order under s 36 of the Powers of Attorney Act, it may, if it considers it appropriate in all of the circumstances to do so, decide to treat the application for review as an application for a financial management order under pt 3A of the Guardianship Act.

Does Mr KYW have standing to make the application?

1. A person may apply for an enduring power of attorney to be reviewed if he/she is: 1. an attorney (including an attorney whose appointment has been purportedly revoked), 2. the principal, 3. any person who is: 1. a guardian of the principal (whether under the Guardianship Act or any other Act or law), or 2. an enduring guardian of the principal under the Guardianship Act, 1. any other person who, in the opinion of the review Tribunal, has a proper interest in the proceedings or a genuine concern for the welfare of the principal.
2. The Tribunal has previously considered the meaning of "a genuine concern for the welfare of the person". In two cases where that phrase was examined in the context of the Guardianship Act (ACJ [2007] NSWGT 15; QAG [2007] NSWGT 12) the Tribunal decided that the term requires the following: 1. that the applicant is bringing to the attention of the Tribunal a fact situation in which the subject person's interests may call for intervention by the Tribunal; 2. that the applicant is sincere in seeing the situation as one that may call for the intervention of the Tribunal in the interests of the person; and 3. that the application is motivated by a desire to advance the welfare of the person. The interests of the person must be the primary motivation for the application.
3. In KTC [2011] NSWGT 23, the Tribunal decided that the genuine concern test has the same meaning in the Powers of Attorney Act.
4. In support of his right to bring the matter to the Tribunal, Mr KYW made statements to the following effect: 1. His application resulted from his love for Mrs ICW and his desire to ensure that Mrs ICW's financial affairs would be protected into the future. 2. When he and Mrs ICW lived in the same street he would see her two to three times a day. 3. Mr BDW had taken Mrs ICW away from where she was living near Mr KYW and had arranged for her to live with him. 4. Mrs ICW is being charged $900 per fortnight to reside with Mr BDW and Mr BDW is interested in Mrs ICW's money. 5. There was a previous power of attorney that appointed him and Mr BDW as attorneys. 6. In his view Mrs ICW lacked capacity to make the power of attorney in 2014 and its making resulted from arrangements made by Mr BDW.
5. Mr BDW submitted that Mr KYW did not have a genuine concern for the welfare of Mrs ICW and had taken $300,000 from her. In particular: 1. He alleged that Mr KYW was disputing the validity of the power of attorney for his own purposes so that he (Mr BDW) would not have the management of Mrs ICW's affairs because he would pursue Mr KYW's misappropriation more effectively than the NSW Trustee and Guardian had done. 2. Mr BDW provided copies of Mrs ICW's bank accounts and financial documents which he had prepared which he asserted evidenced Mr KYW's misappropriation of Mrs ICW's funds. 3. Mr BDW alleged that Mr KYW had made fictitious claims about Mrs ICW's affairs and had refused to accept documents to be served on him regarding legal matters and had refused to pay Mrs ICW costs awarded to her regarding those matters. 4. Mr BDW alleged that Mr KYW had failed to participate appropriately in Tribunal hearings, including false claims that he had not received documents provided for the hearing, thus delaying the finalisation of the matters.
6. In a report to the Tribunal dated 6 September 2017, Rozario Fernando, an Acting Senior Client Services Officer, indicates that the NSW Trustee and Guardian is pursuing recovery of funds from Mr KYW and his wife, Ms NGW. During the hearing the Tribunal was advised that the matter has been referred to a legal firm and no details were available regarding its progress.
7. Ms Kaiti said that she believed that Mr KYW had a genuine concern for Mrs ICW's welfare, evidenced by his long history of involvement in affairs related to her guardianship and financial matters and his seeking of access to Mrs ICW after she had gone to live with Mr BDW.
8. Taking into account the evidence and submissions including conflicting evidence of health and medical practitioners regarding Mrs ICW's capacity around October 2014, the Tribunal is satisfied that there was a question about Mrs ICW's mental capacity to make the enduring power of attorney and that Mr KYW was bringing to the Tribunal a matter in which Mrs ICW's interests might call for intervention by the Tribunal as it was possible that she lacked capacity to make the appointment.
9. In respect of whether Mr KYW is sincere in bringing the matter before the Tribunal the Tribunal is satisfied of the following matters: 1. Contact between Mr KYW and Mrs ICW is now infrequent but the Tribunal accepts that this is in the context of the conflict between Mr BDW and Mr KYW as well as accusations made against Mr KYW and his wife. The Tribunal accepts the evidence of Mr KYW that he saw his mother frequently before she moved to live with Mr BDW and is satisfied that Mr KYW retains a genuine concern for Mrs ICW's welfare and lifestyle. 2. Dr U's letters record that Mr KYW and his wife took Mrs ICW to medical appointments. The ACAT report indicates that Mr KYW and his wife supported Mrs ICW. The Tribunal accepts that at the time Mrs ICW was living near Mr KYW they had a close and supportive relationship. 3. It has been alleged that Mr KYW inappropriately accessed Mrs ICW's assets and in its report to the Tribunal, the NSW Trustee and Guardian indicates that it commenced action to recoup funds. However, as far as the Tribunal is aware, this matter has not progressed beyond a referral to a firm of solicitors. 4. Mr BDW provided documents that he asserts support his claim that Mr KYW has misappropriated Mrs ICW's funds. However on the available evidence, the Tribunal is not in a position to conduct an audit of Mrs ICW's affairs which is likely to form a part of any action undertaken on behalf of the NSW Trustee and Guardian. 5. Whilst Mr BDW claims that Mr KYW has not behaved appropriately regarding other matters and in the conduct of the current matter, the Tribunal is not aware that any adverse finding has been made against him in that respect. 6. Mr KYW has been involved in all hearings had by the Tribunal regarding Mrs ICW. He was the applicant in the matters heard by the Tribunal on 5 March 2015 at which time the Tribunal made a guardianship order appointing the Public Guardian as Mrs ICW's guardian and committed her affairs to management by the NSW Trustee and Guardian.
10. Taking into account the matters set out in the preceding paragraph, the Tribunal is satisfied that Mr KYW has demonstrated an ongoing concern for the welfare of Mrs ICW. Whilst action might be taken in the future regarding his management of Mrs ICW's funds, at the current time those allegations do not outweigh the evidence of his care and concern about his mother that has been demonstrated throughout the hearings before this Tribunal and the assistance he provided to her when she was residing near to him. The Tribunal is of the view, on balance, that Mr KYW is sincere in seeing the situation regarding the making of the power of attorney in 2014 as one that might call for the intervention of the Tribunal in the interests of Mrs ICW.
11. The Tribunal was not provided with any direct evidence to support the assertion made by Mr BDW that Mr KYW's motivation for bringing the matter before the Tribunal was, in part, to prevent Mr BDW managing Mrs ICW affairs as her attorney because he would be more efficient than the NSW Trustee and Guardian in pursuing the matter of funds removed from Mrs ICW's account by Mr KYW.
12. In considering Mr BDW's assertion the Tribunal reviewed the sequence of applications in respect of the current matters: 1. Mr KYW made his application seeking the review of the enduring power of attorney on 8 December 2016 at which time the power of attorney was suspended because of the financial management order made on 5 March 2015 and confirmed on 2 November 2016. 2. As matters stood at the time Mr KYW made his application, Mr BDW had no authority to act under the power of attorney and at that stage there was no application to revoke the financial management order. 3. The application to revoke the financial management order and thereby reactivate the power of attorney was submitted by Mr BDW on 16 January 2017. 4. On 8 December 2017, Mr KYW also made an application seeking a review of the revocation of the enduring power of attorney made in 2007, which, on its face, appoints Mr KYW and Mr BDW jointly and severally as Ms FXW attorneys. Mr BDW denies that what purports to be his signature on this document is in fact his signature. However, if, on the application of Mr KYW, the Tribunal found that Mrs ICW lacked the capacity to revoke the 2007 power of attorney, and declared that instrument valid, then on its face, that power of attorney would provide Mr BDW with authority to manage Mrs ICW affairs independently of Mr KYW. On 16 January 2017, Mr BDW applied for the 2007 enduring power of attorney to be reviewed.
13. Taking into account the matters set out in the preceding paragraph, the Tribunal is of the view that at the time Mr KYW made the application there was no indication that the 2014 power of attorney might become active and thus provide an opportunity for Mr BDW to manage Mrs ICW's affairs as her attorney and conversely, Mr KYW's application regarding the 2007 power of attorney could have resulted in Mr BDW having a right to manage Mrs ICW's affairs as her attorney separately from Mr KYW. The Tribunal is not satisfied, on balance, that the evidence establishes that Mr KYW was motivated to bring the application to prevent Mr BDW managing Mrs ICW's affairs as her attorney.
14. Taking into account the matters set out in this section of these Reasons, the Tribunal is satisfied that Mr KYW is a person with a genuine concern for the welfare of Mrs ICW and has standing to seek the review of the enduring power of attorney made on 28 October 2014.

The evidence regarding the circumstances of the making of the power of attorney made on 28 October 2014

1. In a letter dated 28 April 2015 addressed to the Office of the Legal Services Commissioner, Peter Woods, a solicitor, states amongst other matters that he saw Mrs ICW in September 2013 and at that time she lacked capacity to provide instructions for the appointment of an enduring guardian.
2. On 24 October 2014, Mrs ICW attended the offices of DGN Lawyers in the company of Mr BDW and Ms FXW and to take instructions for the preparation of an enduring power of attorney.
3. On 28 October 2014, Mrs ICW executed a power of attorney appointing Mr BDW as her attorney and her granddaughter, Ms FXW, as her substitute attorney under an enduring power of attorney.
4. Ms Claire Stenos, a solicitor, made the requisite certification to the effect that she explained the power of attorney to Mrs ICW who appeared to understand its effect.
5. Mr BDW accepted the appointment as Mrs ICW's attorney on 28 October 2014 and Ms FXW accepted the appointment on 28 November 2014.
6. In his application Mr KYW submitted that at its hearing on 5 March 2015, the Tribunal determined that Mrs ICW "lacked the capacity" to give instructions in October 2014 when the power of attorney was executed and the 2007 power of attorney was revoked.
7. On 5 March 2015, the Tribunal made a guardianship order appointing the Public Guardian as Mrs ICW's guardian and made a financial management order committing Mrs ICW's affairs to management by the NSW Trustee and Guardian.
8. In respect of Mrs ICW's capacity, the Reasons for Decision of the Tribunal on 5 March 2015 indicated the following: 1. There was conflicting evidence regarding Mrs ICW's capacity in the form of a certificate from Dr V dated 11 February 2015 and reports from Dr U dated 23 February 2015 and 29 October 2015 (sic). Ultimately it was agreed by the parties that at the time of the hearing, Mrs ICW was a person with a disability as that is defined in the Guardianship Act in respect of a person in need of a guardian, and the Tribunal was satisfied that was the case. 2. During the hearing, the Tribunal asked Mrs ICW a number of questions regarding her financial affairs and about the power of attorney. She was not able to answer a number of questions regarding her financial affairs, though she knew that Mr BDW looked after her finances. She did not know what a power of attorney was and could not remember signing a power of attorney in October 2014 and described her signature on that document as a bit "funny". The Tribunal was satisfied that Mrs ICW could not manage her affairs and that there was a need to appoint a financial manager. 3. At the hearing the parties agreed that Mrs ICW was a person with a disability and incapacity within the meaning of the Guardianship Act and there was no need to consider in depth the competing evidence of Dr V and Dr U. However, the Tribunal "would have considerable reservation in accepting the certification of Dr V that Mrs ICW's memory and cognition were 'normal' bearing in mind that she has had recognised dementia since 2006, has been treated with Aricept and that her MMSE in June 2014 was 11/30".
9. The Tribunal is of the view that in context the reference in the Reasons for Decision to a report of Dr U dated 29 October 2015 is a reference to his letter dated 29 October 2014.
10. A typed file note dated 24 October 2014 prepared by Ms Stenos includes comments to the following effect: 1. Ms Stenos had been provided with a letter from Mrs ICW's doctor indicating that she had mild dementia but was generally lucid with normal memory and cognition. Ms Stenos states: I first of all asked [Mrs ICW] if she knew why she was here and said it was to discuss Wills, Powers of Attorney and enduring guardianship. [Mrs ICW] indicated yes. I then asked [Mrs ICW] to provide me with instructions in relation to first of all her address. [Mrs ICW] struggled initially to remember her address. [Mr BDW] and [Ms FXW] told me that they had rushed [Mrs ICW] to get there and that she was a little bit flustered. After some prompting she remember (sic) that she lived in [XY Street] but she could not remember the suburb. I then asked [Mrs ICW] about her assets such as bank accounts and she told me that she banked with [Bank A] in [regional NSW] and this reminded her of the fact that she lived in [regional NSW]. I asked [Mrs ICW] if she had any other monies which she said she could not remember and [Mr BDW] provided me with the information that she had the [Investment Z] which he had set up when he returned monies loaned to him by his parents. [Mr BDW] said she would not necessarily know about these monies as it was not something that she operated herself. [Mr BDW] indicated that his brother [Mr KYW] had been operating all of his mum's bank accounts and investment paying all of their bills, etc. I asked whether this was under a power of attorney, however [Mr BDW] does not believe that it is rather he believes he was just doing it as a signatory to the [investment in Bank A] and the [Investment Z]. 1. Ms Stenos also states: I asked [Mrs ICW] if she understood that a power of attorney meant that [Mr BDW] or someone else who she appointed could act on her behalf in relation to things like the bank, Centrelink, [Investment Z], etc. [Mrs ICW] indicated yes. I asked [Mrs ICW] whether she was okay with someone doing those jobs for her and she said she was and that [Mr BDW] could do the job because he was her big son. … I asked [Mrs ICW] when she would like the Power of Attorney to start and she said that it can start straight away. 1. Ms Stenos also notes that at the conference on 24 October 2014 there was a discussion about Mrs ICW's will during which: [Mr BDW] reminded her that [Mr KYW] had received the house and monies from [Mrs ICW]'s sister who had recently died. [Mrs ICW] asked how this had happened as [Mr KYW] did not speak to her about it. [Mr BDW] said that they had tried to keep information from [Mrs ICW] to avoid upsetting her about the fact that [Mr KYW] was the sole beneficiary of the estate, as well as the fact that they have now discovered that [Mr KYW] has withdrawn several large sums from his late aunt's account over a period of time 1. Ms Stenos comments: I found it difficult to obtain instructions from [Mrs ICW] partly due to her language barrier as she, although quite clearly understands English, when spoken to in Greek she found it difficult to then repeat back to me in English her instructions. I intend on seeing [Mrs ICW] alone on the next occasion and again testing her capacity to enter into a Power of Attorney, Will and Appointment of Enduring Guardian.
11. In a document dated 16 February 2015, Mr KYW complained to the Legal Services Commissioner about Ms Stenos witnessing the Power of Attorney in October 2014 when in his opinion, Mrs ICW lacked the capacity to make the appointment.
12. In a letter dated 16 March 2015, a Mediation and Investigation officer from the Legal Services Commissioner advised amongst other matters that Ms Stenos had confirmed that she was aware of the Law Society Guidelines for solicitors preparing an enduring power of attorney and acknowledged that she did not specifically refer to them prior to the appointment with Mrs ICW but that she generally adopted the principles in questions to Mrs ICW.
13. When questioned by the Tribunal, Ms Stenos said that she does not recall being told about Dr U's view when she interviewed Mrs ICW on 24 October 2014. She said that the first she knew about Dr U was when she received a letter from Peter Woods, solicitor, dated 5 November 2014.
14. When asked by the Tribunal, in effect, whether he had brought Dr U's view to the notice of Ms Stenos, Mr BDW said words to the effect of "I think we saw him after we saw Claire (Ms Stenos), not to get a certificate but to get medical records".
15. In a hand written record of the conference held on 28 October 2014, Ms Stenos notes that "[Mr BDW] left the room. Went to waiting room". Her record of her conversation with Mrs ICW in relation to the meaning of the power of attorney is set out below: Ms Stenos: [Mrs ICW] do you remember meeting me last week? [Mrs ICW]: Yes I do Ms Stenos: Do you remember what we spoke about? [Mrs ICW]: I remember, [Mr BDW] can help me out Ms Stenos: yes that's right, what do you want [Mr BDW] to help you out with? [Mrs ICW]: shopping Ms Stenos: What else? [Mrs ICW]: Bills, pay for things Ms Stenos: Yes that's right, we are going to go through a document to sign to give [Mr BDW] the authority to help you to pay for shopping, bills, go to the bank, talk to Centrelink. Is that OK with you? [Mrs ICW]: Yes, he is my big boy
16. Following the exchange set out above, Mrs ICW signed the power of attorney.
17. Ms Stenos's notes also indicate that on 28 October 2014 after Mrs ICW had signed the power of attorney and enduring guardianship, Ms Stenos had a conversation with Mrs ICW about her will. That conversation included the following exchanges: Ms Stenos: So those documents are for whilst you are alive to help you. What about when you die, you need a will, do you remember we spoke about that last time? [Mrs ICW]: I remember but I don't remember what I said. … … Ms Stenos: …is up to you if [Mr KYW] gets some of the house or not. You told me last time he wasn't to get house, do you remember why? [Mrs ICW]: No I don't remember Ms Stenos: Do you remember what happened to your sister's house? … … Ms Stenos: She died? Yes? Do you remember who got her house? [Mrs ICW]: No, who? Ms Stenos: [Mr KYW] did, not [Mr BDW] [Mrs ICW] (rolled her eyes): Oh, I didn't know Ms Stenos: Well he did, we spoke about it last time [Mrs ICW]: I don't remember.
18. The Office of the Legal Services Commissioner wrote to Ms Stenos in a letter dated 9 June 2015 which includes comments to the following effect: (The references in that letter to the Tribunal are references to the Tribunal as convened on 5 March 2015): 1. The Legal Services Commissioner refers to the certificates submitted by Dr V and states: [Dr V]'s note was manifestly inadequate and was disregarded by the Tribunal. The Doctor did not appear to have asked any questions about [Ms ICW]'s prior medical history. I note that [Dr V] was not [Mrs ICW]'s regular doctor. In fact [Dr V]'s surgery is a considerable distance from [Ms FXW]'s [regional NSW] home but very close to that of [Mr BDW] 1. The Legal Services Commissioner refers to the letter of Dr U dated 23 February 2015 about his meeting with Mrs ICW and Mr BDW on 24 October 2014, the same day as the power of attorney was discussed and four days before it was executed, and notes that the Law Society Guidelines suggest that if there is a doubt about the client's capacity, then an appropriate medical professional should be approached and other professionals should be asked for a report that includes, inter alia, how long the client has been their patient, how frequently and how recently the patient has been seen by the doctor. 2. The letter also notes that the Law Society Guidelines state that the donor should provide instructions and that the donor should be advised in the absence of the proposed attorney. However, Ms Stenos took instructions in the presence of Mr BDW. 3. The letter notes that Mrs ICW was not able to provide her address, then gave a regional NSW address but she was at that time living in Eastern Sydney. The Commissioner opines that this should have been the subject of further inquiry. 4. The letter also notes that it appears that Mrs Stenos asked no questions about Mrs ICW's family and there is no acknowledgment of any family dispute. 5. The Commissioner opines that Ms Stenos' question to Mrs ICW on 24 October 2014 about if she knew she was there to discuss wills, powers of attorney and guardianship facilitated an answer whereas the Law Society Guidelines emphasise the importance of asking open ended questions and that asking yes/no answers may be inadequate for the purpose of assessing a donor client's capacity. 6. The letter notes that when asked about her financial affairs Mrs ICW said she could not remember and Mr BDW said that Mr KYW had been managing Mrs ICW funds. The Commissioner asks, "Did this not raise alarm bells?" 7. The letter also comments that during a discussion about a will, Mr BDW reminded his mother that Mr KYW had "received the house and moneys from [Mrs ICW]'s sister who had recently died". 8. The Commissioner notes that Ms Stenos acknowledges the difficulty of obtaining instructions from Mrs ICW due partly to a language barrier and comments that at the Tribunal hearing a Greek interpreter was utilised to assist Mrs ICW. 9. The Commissioner notes that he "seriously considered" a determination of unprofessional conduct but dismissed the application. He trusts that in future matters, Ms Stenos would: 1. refresh her memory regarding the Law Society Guidelines; 2. consider carefully family dynamics when revoking existing documents and drafting new documents; 3. ensure that she is confident that the client has the capacity to give instructions by following the guidelines and obtaining reports from medical practitioners who provide a more detailed report than that provided by Dr V.

Submissions of Mr KYW

1. In support of his view that Mrs ICW lacked the capacity to make the power of attorney in 2014, Mr KYW made submissions to the following effect: 1. When she had been living near him prior to October 2014, she had severe memory problems as is recorded by Dr U who was her GP at that time and as indicated in the ACAT report dated 11 June 2014. 2. In 2013, Peter Woods, a solicitor, had decided that Mrs ICW lacked capacity to make an enduring guardianship appointment.

Submissions of Mr BDW

1. In respect of Mrs ICW's capacity to make the power of attorney Mr BDW submitted that: 1. Ms Stenos was satisfied that Mrs ICW had the capacity to make the appointment and it was not possible to re-determine that matter some years after the event. 2. Peter Woods was not Mrs ICW's solicitor. Her solicitor was Mr Budd at the same firm as Ms Stenos. 3. He does not know if it is true that in 2013, Mr Peter Woods assessed Mrs ICW as being unable to appoint an enduring guardian and he would not trust Peter Woods as the 2007 Power of Attorney drawn up by him includes a clause allowing the attorneys to benefit themselves. 4. Mrs ICW had been consistent in her view that she wanted him to manage her affairs. 5. Mrs ICW was "disgusted" that Mr KYW had taken her money, arranged for the will of his aunt to benefit him and had arranged for Mrs ICW to be placed in a nursing home. 6. Mrs ICW's capacity fluctuates and if she is tired her capacity is reduced. 7. He does not agree with Dr U's account of the conversation on 28 October 2014. The letter was written some time after the consultation. In his opinion, Mrs ICW would not have said that she preferred to live with Mr KYW. The account is incomplete in that it does not refer to the presence of Ms FXW at the consultation.

The view of the separate representative

1. In respect of Mrs ICW's capacity to make the enduring power of attorney, Ms Kaiti said that whilst not qualified to express a medical opinion, in her view the following matters suggested that Mrs ICW might have lacked capacity to make the appointment: 1. Dr X's diagnosis that Mrs ICW had dementia in 2007, some seven years prior to executing the 2014 power of attorney. 2. Medical reports indicating that whilst in 2006 Mrs ICW scored 18/28 on the MMSE by June 2014 she scored only 11/30 on the RUDAS. 3. In his report dated 7 April 2015, Dr Z describes Mrs ICW as having dementia and needing assistance. Whilst in a later letter, written on 2 May 2017, Dr Z says that when he first met her Mrs ICW understood issues related to her finances and accommodation, his earlier letter is inconsistent with that claim.

Should the Tribunal conduct the review?

1. In Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, Slattery J stated [at 80]: On an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what... (a party )...has produced.
2. The Tribunal decided to conduct a review of the enduring power of attorney because there was conflicting evidence in the form of the health and medical reports regarding Mrs ICW's capacity to make the power of attorney such that this is an issue that it is proper for the Tribunal to review.

Should the Tribunal make any orders under section 36?

1. The Tribunal then proceeded, pursuant to s 36(2) of the Powers of Attorney Act, to consider whether or not to make an order under s 36 [of that Act].

The legal tests for capacity to make an enduring power of attorney

1. The issue of capacity to make an enduring power of attorney was discussed in detail by Justice Barrett in the matter of Szozda v Szozda [2010] NSWSC 804 (Szoda).
2. His Honour notes that the starting point in considering the matter is the "presumption of sanity" that is well established in law and as a result of which it assumed that a person has capacity and that assumption must be displaced.
3. In respect of the capacity required to make an enduring power of attorney, Justice Barrett examines the precedent cases and opines that: 28 According to these principles, the inquiry in the present case must be directed towards the ability to understand the creation of a general and enduring power of attorney, that is, an instrument empowering the attorney or attorneys to do for the donor anything and everything that the donor may lawfully do and creating an authority that continues even if the donor comes to lack capacity. 1. Specifically in relation to the making of an enduring power of attorney, Justice Barrett concludes: 34 The central concept is thus one of complete and lasting delegation to a particular person, albeit with the ability to put an end to the delegation while capacity to do so remains. That concept of empowering another person to act generally in relation to one's affairs raises two basic questions. First, is it to my benefit and in my interests to allow another person to have control over the whole of my affairs so that they can act in those affairs in any way in which I could myself act - but with no duty to seek my permission in advance or to tell me after the event, so that they can, if they so decide, do things in my affairs that I would myself wish to do (such as pay my bills and make sure that cheques arriving in the post are put safely into the bank) and also things that I would not choose to do and would not wish to see done - sell my treasured stamp collection; stop the monthly allowance I pay to my grandson; exercise my power as appointor under the family trust and thereby change the children and grandchildren who are to be income beneficiaries; instruct my financial adviser to sell all my blue chip shares and to buy instead collateralised debt obligations in New York; have my dog put down; sell my house; buy a place for me in a nursing home? Second, is it to my benefit and in my interests that all these things - indeed, everything that I can myself lawfully do - can be done by the particular person who is to be my attorney? Is that person someone who is trustworthy and sufficiently responsible and wise to deal prudently with my affairs and to judge when to seek assistance and advice? The decision is one in which considerations of surrender of personal independence and considerations of trust and confidence play an overwhelmingly predominant role: am I satisfied that I want someone else to be in a position to dictate what happens at all levels of my affairs and in relation to each and every item of my property and that the particular person concerned will act justly and wisely in making decisions? 1. In respect of the effect of incapacity to make the enduring power of attorney, Justice Barrett states: 36 If capacity, in the relevant sense, is absent when a power of attorney is granted, the general law position is that the power of attorney is void: McLaughlin v Daily Telegraph Newspaper Co Ltd (No 2) [1904] HCA 51; (1904) 1 CLR 243.
4. A recent matter decided in this Tribunal, HZC (No 2) [2016] NSWCATGD 62 followed the decision of Justice Barrett and added: 1. That approach is reflected in the Powers of Attorney Act itself. Sub-s 19(1)(c) [of that Act] requires that a valid enduring power of attorney must include a certification by the person who witnessed the execution of the power of attorney indicating (amongst other things) that: 1. "the person explained the effect of the instrument to the principal before it was signed; and 2. the principal appeared to understand the effect of the power of attorney." (Emphasis added.)

Did Mrs ICW have the mental capacity to make the enduring power of attorney?

1. In assessing the health and medical information available the Tribunal is of the view that despite Mr BDW's evidence that Mrs ICW had seen Dr V "a fair bit" or "many times" before 20 October 2014, his evidence on this matter is unreliable and it is likely that Dr V saw Mrs ICW for the first time on 20 October 2014. In reaching this conclusion, the Tribunal: 1. was of the view that Mr BDW's evidence on this matter was equivocal and inconclusive; 2. prefers the clear evidence provided by way of Dr V's clinical records that the first time he saw Mrs ICW was on 20 October 2014 and the certificate dated 11 February 2015 in which Dr V states that Mrs ICW had been his patient since October 2014.
2. The Tribunal reached the following conclusions regarding the health and medical evidence set out previously in Reasons: 1. Records from 2007 establish that Mrs ICW has been diagnosed with dementia since 2006 at which time her dementia was sufficiently advanced for her to be prescribed medication for dementia. 2. Notwithstanding that Mrs ICW might have also seen Dr T, Dr U had been seeing her since August 2013 and she had been a patient of his practice since 2007. The Tribunal is satisfied that Dr U was in a position to make informed observations of her functioning. He indicates that in May 2014 Mrs ICW was demonstrating quite severe memory loss including an inability to remember questions asked minutes previously and an inability to recall the events of the previous day. 3. From 16 May 2014, Mrs ICW was attending a day program for people with dementia. 4. By June 2014, Mrs ICW had scored of 11/30 on the RUDAS, which is well below the cut-off score for dementia. 5. Limited weight can be placed on the certificate provided by Dr V on 20 October 2014 to the effect that Mrs ICW was "lucid" and able to capable of making "proper rational decisions", for the following reasons: 1. Dr V was not Mrs ICW's usual doctor and the extent of his association with her was such that he is unlikely to have been able to make an informed assessment of her testamentary capacity in the absence of detailed questioning or the administration of objective testing instruments. 2. There is no evidence regarding how Dr V reached his conclusion recorded in the certificate. 3. The certificate does not explain how it was determined that Mrs ICW had "mild dementia" and what that would mean in terms of her capacity to make legal decisions. Likewise there is no indication of the nature or complexity of issues about which Dr V thought Mrs ICW could make rational decisions. 4. There is no evidence that Dr V sought information from Mrs ICW's usual doctor or called for her medical records prior to issuing the certificate. 5. Dr V's view is at variance with descriptions of Mrs ICW's functioning in other health and medical reports and her score on the RUDAS. 1. When Dr U saw Mrs ICW on 24 October 2014 he was of the view that Mrs ICW was not able to retain and reproduce information and had short-term memory problems. He considered that her presentation was such that he could not provide a certificate of mental capacity. The Tribunal prefers the account of Dr U over that of Mr BDW regarding this consultation for the following reasons: 1. Dr U's account of the conversation is detailed and internally consistent. He provides context to his comments regarding Mrs ICW's memory difficulties and dementia. 2. The Tribunal accepts that Dr U's account is not in the nature of minutes of the meeting and could lack some details, including that Ms FXW was present. However, the Tribunal is of the view that the omission of that detail does not indicate that Dr U's account is incorrect. 3. The Tribunal was not provided with any evidence as to why Dr U would provide a fictitious account of the conversation with Mr BDW. 4. Mr BDW said that he saw Dr U to obtain Mrs ICW's medical records, whilst Ms FXW says the visit was to obtain details of Mrs ICW's treatment plan. Dr U's practice is a considerable distance from the home of Mr BDW. Mrs ICW's medical records and any treatment plan details could have been transferred to her new medical practitioners in a more efficient manner than a visit in person by Mr BDW and Ms FXW.
3. The Tribunal considers the following additional evidence relevant to assessing Mrs ICW's mental capacity to make the enduring power of attorney: 1. The evidence of Peter Woods is that in 2013 he judged Mrs ICW to lack capacity to make an enduring guardianship appointment. Whilst Mr BDW questioned this evidence there was no evidence to the contrary. The Tribunal is of the view that Mr Woods would not have made this claim lightly to the Legal Services Commissioner and accepts that evidence. 2. On 24 October 2014, Mrs ICW required reminding that Mr KYW had inherited the estate of her sister. 3. In October 2014, Mrs ICW could not remember the discussion [she] had four days earlier in which she was told that Mr KYW had inherited her sister's house. 4. On 7 November 2014, she could not remember that, when reminded of that matter on 28 November 2014, she had said that she did not want Mr KYW to inherit her house. 5. The presentation of Mrs ICW as described in the Reasons for Decision of the Tribunal as convened on 5 March 2015 indicates that at that time she had no memory of having made an enduring power of attorney less than six months previously and was not able to state what a power of attorney is. 6. When he saw Mrs ICW on 7 April 2015 Dr Z opined, amongst other matters, that Mrs ICW had increasing problems with vagueness, and concentration, asked recurrent questions about the same matter and was regularly confused and that her medications required supervision. She was only intermittently aware of where she was living and in his opinion, from a medico legal perspective she had moderate dementia and lacked the capacity to make decisions about her financial, residential and medical matters. 7. The Tribunal places more weight on Dr Z's views expressed in the April 2015 letter than on the statements in his letter dated 2 May 2017 to the effect that in April 2015 Mrs ICW had reasonable understanding and ability to make a decision about where she wanted to live and who she wanted to be in charge of her financial affairs. The Tribunal reaches this conclusion for the following reasons: 1. April letter was contemporaneous with the assessment. 2. In his letter dated 2 May 2017, Dr Z also states that in April 2015 Mrs ICW understood what a Power of Attorney was. However in his April 2015 letter, Dr Z does not mention any discussion about a power of attorney. 3. The view expressed in the April 2015 letter is consistent with Mrs ICW's presentation at the Tribunal hearing in March 2015.
4. In a letter written in 5 May 2017, Dr S states that when he saw Mrs ICW in 2015, she was "fully able to address any legal decision making". The Tribunal places less weight on the assessment of Mrs ICW's functioning than on that of Dr Z expressed in April 2015 for the following reasons: 1. Dr S is expressing views about Mrs ICW's presentation some two years previously. The Tribunal places more weight on views expressed closer to the time of consultation. 2. In a letter to Dr S dated 5 April 2015, Dr Z voices doubt as to whether Mrs ICW would be able to "go through with the required attentions and follow commands" as would be required in hydrotherapy. The Tribunal is of the view that: 1. Dr Z's doubts indicate that in his view, at that time, Mrs ICW was significantly cognitively impaired; and 2. Dr S was on notice of Dr Z's doubts. 1. Dr S's view is not consistent with that of Dr Z as expressed in the latter's letter dated 7 April 2015. 2. In his letter dated 7 April 2015, Dr Z details Mrs ICW's presentation which is consistent with his conclusion that she is not able to make decisions about "financial, residential or medical matters". In his letter, Dr S provides little detail to support his view that in 2015 Mrs ICW was able to attend to legal matters.
5. The certificates of Dr V and Dr U's account written in February 2015 of his consultation with Mrs ICW and Mr BDW on 24 October 2014 form the most contemporaneous views of Mrs ICW's mental capacity at the time she executed the power of attorney. For reasons set out above, the Tribunal places weight on the view of Dr U, and on his view that at that time he was not able to provide a letter saying that Mrs ICW had the capacity to manage her affairs because he thought she lacked capacity.
6. The Tribunal notes that the March 2015 Tribunal hearing and the April 2015 letter of Dr Z postdate the execution of the enduring power of attorney and that dementia is a condition in which deterioration is to be expected. However, the Tribunal considers these assessments of her mental capacity are of relevance because they are within six months of the execution of the power of attorney and are consistent with each other, and with the observations of Dr U regarding Mrs ICW's memory difficulties and lack of mental capacity.
7. According to Ms Stenos, prior to the power of attorney being executed, she had no knowledge of Dr U or his reservations about Mrs ICW's ability to retain and reproduce information.
8. The Tribunal is satisfied that Ms Stenos's notes and her evidence to the Tribunal establish that: 1. No interpreter was used during the conferences even though Ms Stenos acknowledges that Mrs ICW had limited understanding of the English language. 2. Ms Stenos used simplified language that, in the tribunal's view, failed to convey the full effect of the power of attorney. 3. Mr BDW made the initial contact with Ms Stenos's firm regarding the power of attorney. 4. Mr BDW and his daughter, Ms FXW, were present at the conference on 24 October 2014 when initial instructions were provided regarding the power of attorney. 5. Ms Stenos's question to Mrs ICW about the purpose of the first conference on 24 October 2014 implied a response. Accordingly, there is no evidence of weight that Mrs ICW understood why she was attending the conference. This is particularly significant taking into account that the appointment for the conference had been made by Mr BDW and not Mrs ICW. 6. Mr BDW actively participated in the initial conference, including reminding Mrs ICW about Mr KYW inheriting under the will of Ms FXW's late sister and alleging that Mr KYW had taken funds from the account of Mrs ICW's late sister. 7. Mrs ICW was unable to remember her financial affairs at the conference on 24 October 2014 and it was said by Mr BDW that Mr KYW had been managing her affairs. 8. Dr V was geographically close to the Mr BDW who had made the appointment for the making of the power of attorney, and was distant from where Mrs ICW had lived until recently. There is no indication that Mrs ICW had a view about why she had seen a doctor who was not her usual doctor. 9. Despite the matters noted in the preceding sub-paragraph, there was no inquiry made as to other medical practitioners who might have known Mrs ICW and no other opinion was sought. 10. Ms Stenos's notes regarding the first conference indicated that she pointed out to Mrs ICW that an attorney would be able to act "on her behalf" in relation to "the bank, Centrelink" and her investments and that she asked her whether she was "Okay with someone doing those jobs for her." 11. There is no indication that Mrs ICW understood that her attorney could act without, or contrary to, her instructions if he was of the view that she lacked capacity, nor that she was told that the attorney could sign contracts, including to sell her house and place her in a nursing home. Mrs ICW was not advised that the attorney could do things that she would not choose to do and would not wish to see done (see Barrett J in Szoda v Szoda, above). 12. There is no indication that the matters canvassed in the preceding subparagraph were explained to Mrs ICW, and then that her understanding of those matters was tested. 13. At the conference on 24 October 2014, there was discussion about the fact that Mr KYW had inherited under the will of Ms FXW's late sister, with whom she had lived. Mrs ICW had no knowledge of this matter at the time and there is no indication that she understood that an attorney could take legal action on her behalf about the will, or that the possibility was explained to her and her understanding tested. 14. Whilst Ms Stenos's noted on 24 October 2014 that she intended to test Mrs ICW's capacity to enter into the power of attorney on the next occasion, her notes indicate that on 28 October 2014, Mrs ICW's understanding was the enduring power of attorney would allow the attorney to help her out and there was no indication that she understood that if the attorney was of the view that she lacked capacity he could act without seeking her views or against her wishes or that the attorney could take total control of her affairs. 15. On 28 October 2014, Mrs ICW was not able to recall the previous discussion about Mr KYW inheriting her sister's house or that she had instructed that Mr KYW should not inherit her house.
9. Ms Stenos certified that in her view Mrs ICW appeared to understand the effect of the power of attorney. However, the Tribunal is unable to place weight on that certification for the following reasons: 1. Ms Stenos did not have access to, or knowledge of, all relevant health and medical assessments. 2. The notes of the conferences on 24 October 2014 and 28 October 2014 do not support the conclusion reached by Ms Stenos as they are silent as to important aspects of an enduring power of attorney. There is no evidence that Mrs ICW understood those matters or that there was any effort to explain them to her.
10. Taking into account the matters set out above, the Tribunal is of the view that when Mrs ICW made the enduring power of attorney: 1. Mrs ICW had dementia which caused her to have memory loss and vagueness. She did not recall details of her financial affairs and was unclear about where she was living. Her impairments were such that her ability to retain information was compromised to such an extent that she would be unable to retain any complex information sufficiently to process it to make decisions. 2. There is no indication that Mrs ICW understood the nature of the enduring power of attorney without it being explained to her. 3. There was no discussion or explanation about the effect of the enduring power of attorney as an instrument that went beyond appointing someone to assist her. 4. Whilst Mrs ICW indicated that she wanted Mr BDW to be the person who assisted her with some financial matters she could not have formed the view that she wanted him (and Ms FXW in the alternative) to have all of the power vested in an attorney under an enduring power of attorney, because she did not know what that power was.

Conclusion regarding Mrs ICW's mental capacity to make the enduring power of attorney

1. The Tribunal is satisfied that at the time she executed the enduring power of attorney Mrs ICW lacked an understanding of her own financial affairs.
2. There is nothing in the evidence that shows that Mrs ICW understood the full meaning of the instrument that she was about to sign or understood that it was other than an appointment which would allow the attorney to help her out. This falls well short of an understanding of the effects of enduring power of attorney including that the attorney could do things that she would not choose including, as pointed out by Barrett J, (above) sell her house and buy a place for her in a nursing home, and also including taking legal action on her behalf in the context of issues about her sister's will.
3. Mrs ICW's statements and conduct at the conferences on 24 October 2014 and 28 October 2014 and on 7 November 2014, as described in the file notes of Ms Stenos, do not indicate that she understood the nature, implications and possible far reaching consequences of the power of attorney.
4. Mrs ICW's cognitive impairment at the time was such that she could not have retained information sufficiently to evaluate it to enable her to make a decision regarding whether to execute the enduring power of attorney given its far reaching ramifications and taking into account all of her circumstances, important aspects of which she could not recall.
5. Taking these matters into account, the Tribunal is satisfied that the evidence is of sufficient strength to rebut the presumption of capacity and finds that Mrs ICW did not possess the mental capacity necessary to make the enduring power of attorney on 28 October 2014.
6. Having reached the conclusion that Mrs ICW lacked the mental capacity to make the enduring power of attorney and consistently with the view of Justice Barrett that, if capacity is absent when a power of attorney is granted, the general law position is that the power of attorney is void, and in accordance with s 36(3)(b)(i) [of the Powers of Attorney Act] the Tribunal declared that the power of attorney made by Mrs ICW on 28 October 2014 is invalid.

REVIEW OF REVOCATION OF ENDURING POWER OF ATTORNEY MADE ON 5 MARCH 2007

Does Mr KYW have standing to make the application?

1. A person may apply for the review of a revocation of an enduring power of attorney if he/she is an attorney (including an attorney whose appointment has been purportedly revoked). The Tribunal was satisfied that Mr KYW had standing to make the application as an attorney whose appointment had been purportedly revoked.

What did the Tribunal have to consider?

1. The Tribunal may, on the application of an interested person, decide to review the revocation of a reviewable power of attorney, or not to carry out such a review (Powers of Attorney Act, s 36(1)). As a consequence of reviewing the revocation of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act (s 36(2)).
2. The Tribunal may make a number of orders relating to the revocation of a power of attorney including the following: 1. An order declaring that Mrs ICW did or did not have mental capacity to revoke a power of attorney 2. An order declaring that the power of attorney remains valid (either in whole or in part) if the Tribunal is satisfied: 1. Mrs ICW did not have the capacity necessary to revoke it; or 2. the revocation is invalid for any other reason, for example, Mrs ICW was induced to make the revocation by dishonesty or undue influence.
3. To make an order relating to the revocation of the enduring power of attorney made by Mrs ICW the following questions may be considered: 1. Should the Tribunal conduct a review of the revocation of the enduring power of attorney? 2. On 7 November 2014, did Mrs ICW have the mental capacity necessary to revoke the enduring power of attorney? 3. Is the revocation of the enduring power of attorney invalid for any other reason (e.g. dishonesty or undue influence)? 4. If the revocation is invalid, should the Tribunal declare that the enduring power of attorney remains valid? 5. Should the Tribunal make any orders in relation to the enduring power of attorney? If no, should the Tribunal consider treating the application as an application for a financial management order?

Circumstances of the revocation of the power of attorney

1. On 7 November 2014, Mrs ICW revoked the enduring power of attorney dated 5 March 2007 (the 2007 power of attorney) which purports to appoint Mr KYW and Mr BDW jointly and severally as her attorneys. In addition to the matters outlined in the Health and Medical Evidence section of these Reasons, the Tribunal took into account additional evidence regarding the revocation as set out in this section of these Reasons.
2. In a letter to a law firm dated 5 November 2014, Peter Woods, a solicitor: 1. advises that he was acting for Mr KYW in relation to the execution of his aunt's will; 2. advises that Mrs ICW made a power of attorney dated 5 March 2007 a copy of which was enclosed; 3. advises that Mrs ICW had been diagnosed with "Advanced dementia", and encloses copies of the ACAT assessment dated 16 June 2014 and the letter of Dr U dated 29 October 2014; 4. asserts that Mr BDW was aware of Mrs ICW's dementia; 5. asserts that there had been a discussion between Mr KYW and Mr BDW in which Mr KYW had said that Mrs ICW's home would need to be sold to pay an accommodation bond at a nursing home and that a particular nursing home had been suggested; 6. asserts that Mrs ICW lacked the capacity to make the enduring power of attorney on 28 October 2014 and that the 2007 power of attorney remained on foot.
3. Ms Stenos's written notes of the conference on 7 November 2007 regarding the revocation of the 2007 power of attorney state the following: [Mr BDW] asked me to tell his mother about the content of the letter from [Mr KYW]'s solicitor. I read out that he wants her to go into a home. [Mrs ICW] looked very shocked and said that she did not want to go into a home. I explained to her that to pay for the home [Mr KYW] wanted to sell her home- again she looked very shocked and said she did not agree to this. I asked her if she wanted this to happen - she said he didn't'. I showed her the POA 5 March 2007 -she said she could not read it. I said it means [Mr KYW] had the authority to sell her house-she said how could this happen. [Mr BDW] also asked me to explain about the effect of the POA in terms of [Mr KYW] being able to benefit himself. I said to [Mrs ICW], [Mr KYW] could and it appears had been taking money from her account. She said why? I said I didn't know what for but the POA allowed him to. She again seemed surprised and said she didn't want that. I explained that she could cancel the POA 2007 if she wanted to say this couldn't happen again nor could he sell the house to fund a retirement home. She said yes could she cancel she wanted me to put a line through I said I had to prepare another document called a revocation of POA to cancel it - want me to? Yes-did it on spot and she's signed- served a copy on [Mr BDW] will serve on [Mr KYW].
4. Ms Stenos gave oral evidence to the following effect: 1. Mr BDW and Ms FXW were present when the revocation of the 2007 power of attorney was discussed and executed. 2. There was no interpreter used during the conference. 3. At the time of the revocation she had received a copy of the letter written by Dr U dated 29 October 2014 but nevertheless, on the basis of her conversation with Mrs ICW, she formed the view that [Mrs ICW] had the capacity to revoke the 2007 power of attorney. 4. When she told Mrs ICW that it appeared that Mr KYW had been taking money from her account, she had not seen the bank accounts and based that view on the advice of Mr BDW who had accessed the account and prepared spreadsheets regarding dealings with the account. 5. When talking to Mrs ICW about the power of attorney and Mr KYW's actions, she tried to simplify her expressions because of Mrs ICW's limited ability with the English language. She agreed that her use of language in saying that Mr KYW had been taking money from Mrs ICW's account might have influenced her decision to revoke the power of attorney.
5. Despite the references in Ms Stenos's notes to comments made by Mr BDW during the conference, he asserted during the hearing that he was not present when the revocation was signed.
6. Mr BDW said that he had good evidence based on his analysis of Mrs ICW's bank accounts that Mr KYW had been taking money from Mrs ICW's account. When asked by the Tribunal whether he had enquired of Mr KYW as to why the withdrawals had been made and had been satisfied that they were not made in Mrs ICW's best interests, he said, in effect, that he asked Mrs ICW about some of the money withdrawn and she responded to the effect that she had not used that money.
7. Mr BDW said that in his opinion Mrs ICW had the capacity to revoke the 2007 power of attorney and that she trusted him as her eldest son and was very distressed that Mr KYW had considered a nursing home placement without her consent and she had strong opinions about what she wanted. He said that whilst he agrees that Mrs ICW had dementia, it was not "advanced" dementia.
8. Ms Kaiti expressed the view that Mrs ICW lacked the capacity to revoke the 2007 power of attorney. She raised the following matters of concern regarding the revocation: 1. Dr U's letter dated 29 October 2014 raised significant doubts as to Mrs ICW's capacity to understand the issues relevant to the revocation. 2. At the time of the revocation, it was clear that there was significant discord between Mr BDW and Mr KYW regarding the management of Mrs ICW affairs. 3. Mr BDW and Ms FXW were present in the room during the conference about the revocation and when the revocation was signed. 4. There was no interpreter used during the conference despite Mrs ICW limited ability with English and the importance of the matters being discussed.

Should the Tribunal conduct a review?

1. The Tribunal was of the view that taking into account the health and medical reports regarding Mrs ICW's capacity around the time of the revocation, it was appropriate to review the revocation.

Should the Tribunal make any orders?

1. The Tribunal is of the view that under the circumstances, including Mrs ICW's impaired cognitive condition, the family conflict, and the serious allegations made by Mr BDW against Mr KYW, there was a need to assess Mrs ICW's understanding of the issues and to assist Mrs ICW to properly understand the nature and effect of the revocation of the enduring power of attorney and to evaluate her understanding. The Tribunal is of the view that the circumstances of the revocation were not sufficient to assess and evaluate her understanding or to assist her to understand the issues. In reaching that view the Tribunal takes into account the following: 1. The Tribunal considered Mr BDW's assertion that he was not in the room when the revocation was executed. However we are of the view that if Ms Stenos had asked Mr BDW to leave the room and had she had a private conversation with Mrs ICW regarding the revocation of the 2007 enduring power of attorney, her notes would be expected to reflect this important precaution. There is no mention in the notes that this was the case and the Tribunal is of the view that in the absence of this being noted in the contemporaneous notes, limited weight can be placed on Mr BDW's recollection in relation to this matter. 2. The 2007 power of attorney appoints Mr BDW jointly and severally with Mr KYW. Mr BDW denies that the signature purporting to be his, is his. There is no evidence that Mrs ICW understood that Mr BDW was appointed under the power of attorney or that [it] was explained to her. 3. The allegedly forged signature on the document is an important matter. There is no indication that Mrs ICW understood this allegation or was asked her view about the signature. 4. There is no indication that Mrs ICW understood her financial affairs when she revoked the power of attorney. In explaining her affairs and the effect of the power of attorney, Ms Stenos used words that could have suggested to Mrs ICW that she was satisfied that Mr KYW had been taking her money even though evidence was lacking about that matter. 5. There is no evidence that Mrs ICW was provided with an opportunity to examine her affairs in light of the allegations, or that she was able to do so. She was provided with a version of her affairs and that version was in accordance with the views of Mr BDW who was present during the revocation of the 2007 power of attorney. 6. Mrs ICW was told that the 2007 power of attorney could be used to sell her house. However, as noted in the section of these Reasons dealing with the review of the 2014 power of attorney she was not advised that the power of attorney she had just signed some ten days previously also allowed an attorney to sell her house. 7. There is no evidence that Mrs ICW understood the similarity or difference between the power of attorney she revoked and the one she had made some ten days earlier or that those matters were explained to her. 8. There is no evidence that Mrs ICW was given advice that there was medical opinion raising doubts about her capacity to make decisions about the power of attorney or that her dealings might be challenged on that basis. 9. Despite the issues raised by Dr U in his letter of 28 October 2014 there was no attempt to seek another view, other than the 20 October 2014 certificate provided by Dr V who was not her regular doctor and which contained no details to support its conclusions.
2. The Tribunal is of the view that at the time she revoked the 2007 power of attorney, Mrs ICW had significant cognitive impairment. In the context of her impaired cognition, her difficulties with the English language, and the conflict between the attorneys named in the 2007 power of attorney, if she were to be brought to a situation where she was properly able to revoke the power of attorney, she required independent, clear, and factual advice about the power of attorney and the effect of the revocation, given in a language that she properly understood. Taking into account her difficulties in retaining and recalling information the Tribunal is of the view that even under these circumstances it is unlikely that Mrs ICW would have retained any complex information sufficiently to utilise it to make an informed decision regarding the revocation of the power of attorney. However, it is not necessary to decide that matter because the necessary advice was not provided.
3. The Tribunal is satisfied that: 1. Nothing in the evidence shows that Mrs ICW was provided with objective evidence about the operation of the 2007 power of attorney when its revocation was discussed. 2. Mrs ICW's statements and conduct indicate that she did not properly understand the nature of the instrument she was revoking and why it should be revoked, or what had been done under the power of attorney to manage her affairs. 3. Her cognitive capacity was such that she could not have understood the reasons for the revocation compared with the relatively recent appointment unless those matters were clearly put to her and her understanding assessed. The matters put to her were from a limited perspective and her comments indicated a lack of understanding of those matters, including a lack of understanding that some of the powers of the enduring attorney about which she was concerned were powers she had recently given under an enduring power of attorney.
4. The Tribunal is satisfied that the evidence is of sufficient strength to rebut the presumption of capacity and, taking into account Mrs ICW's cognitive impairment and the circumstances surrounding the revocation of the 2007 power of attorney, the Tribunal concludes that Mrs ICW lacked the capacity to revoke the 2007 power of attorney.

Should the Tribunal make and order regarding the revocation of the 2007 power of attorney.

1. The Tribunal was of the view that it was appropriate to record its decision that Mrs ICW lacked the capacity to revoke the 2007 enduring power of attorney. As the Tribunal had an application before it seeking a review of the 2007 power of attorney it was of the view that it was unnecessary to make any other order relating to the revocation of that power of attorney.

REVIEW OF THE OPERATION AND EFFECT OF THE 2007 POWER OF ATTORNEY

Does Mr BDW have standing to make the application?

1. A person appointed as an enduring guardian of the principal has standing to make an application to review the enduring power of attorney.
2. On 28 October 2014, Mrs ICW appointed Mr BDW as her enduring guardian. That appointment has not been reviewed or revoked and accordingly the Tribunal accepts that Mr BDW is Mrs ICW's enduring guardian and as such is a person with standing to seek the review of the 2007 power of attorney.

Should the Tribunal conduct the review?

1. As noted previously in these Reasons, in Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, Slattery J stated [at 80] that: Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what...(a party)...has produced.
2. In a submission to the Tribunal dated 30 August 2017 Mr BDW denies that he signed the power of attorney and asserts that it was "falsely… constructed" and that it "was not put together for Mum's benefit but was put together for Mr KYW and Ms NGW".
3. The Tribunal took into account claims made by Mr BDW to the effect that the signature purporting to be his on the 2007 Power of Attorney is not his signature and that he has never accepted the appointment as Mrs ICW's attorney. The Tribunal also took into account that the NSW Trustee and Guardian advised that it has commenced action to recover monies from Mr KYW and Ms NGW.
4. On the basis of the evidence of Mr BDW and the NSW Trustee and Guardian, the Tribunal was satisfied that there are issues that properly invoke the jurisdiction of the Tribunal and that it should conduct a review of the operation and effect of the 2007 power of attorney.

Should the Tribunal make any orders under section 36?

1. The Tribunal then proceeded, pursuant to s 36(2) of the Powers of Attorney Act, to consider whether or not to make an order under s 36 [of that Act].

The making of the power of attorney

1. The 2007 enduring power of attorney appears to have been signed by Mr KYW on 5 March 2007 on a dotted line designated "Attorney's signature". On the dotted line below, which is designated "Attorney's name" there is a signature that appears to be that of Mr BDW.
2. As noted above, Mr BDW denied that the signature purporting to be his accepting the appointment as attorney, was his signature, though he agreed that the signature appears very similar to his signature.
3. The Tribunal was provided with a copy of a complaint made by Mr BDW to the Legal Services Commissioner in which he states, amongst other matters, that it was not until November 2014 that he became aware of the enduring power of attorney under which he was purportedly appointed and he had not signed the document. His complaint is in respect of Peter Woods's conduct in drawing up the power of attorney and he claims that in doing so Mr Woods was not acting in the best interests of Mrs ICW. In support of his claims he asserts: 1. that he could provide an account of his movements the day he was said to have signed the power of attorney; 2. he has never used the power of attorney and has used his own funds to make purchases for Mrs ICW; 3. he would never have agreed to a power of attorney with the gifting clause that is contained in the 2007 instrument; 4. he has never discussed the existence of a power of attorney with his wife and family; 5. his address as stated on the power of attorney is incorrect and his street name is misspelt.
4. During the hearing Mr BDW added submissions to the following effect: 1. Had he been given a copy of the 2007 power of attorney he would have corrected the errors regarding his address. 2. There was no need for a power of attorney in 2007 because he provided Mrs ICW with any funds that she needed and therefore there was no need to deal with bank accounts.
5. In his response to the Legal Services Commissioner, Peter Woods states amongst other matters, that he prepared the power of attorney that was accepted by Mr BDW.
6. As noted above, the signature purporting to be that of Mr BDW appears above a line designated "Attorney's name" which appears to refer to the name of the attorney whose signature appears above. That signature appears to be that of Mr KYW. In terms of the formatting of the document the Tribunal is of the view that there appears to be just one "signature block" formatted for the signature and then the name of one attorney, and not two signature blocks as would be expected where two attorneys are appointed. Immediately below the signature block is the stamp indicating that the power of attorney had been lodged for registration with the (then) Department of Lands, Land and Property Information Division. There is no space for the provision of a second signature block.
7. The Tribunal asked Mr Woods about the formatting peculiarity described above but he was unable to explain the matter and agreed that it would be usual for there to be two signature blocks providing for the signature and name of the two attorneys.
8. Mr Woods said that he was unable to locate his records relating to the making of the power of attorney in 2007. He was also unable to recall on what specific information he based his 2015 response to the Legal Services Commissioner.
9. The Tribunal was unable to reach a final conclusion as to whether or not the signature purporting to be that of Mr BDW was his signature.

The Operation and effect of the 2007 power of attorney

Fiduciary duty

1. An attorney is in a fiduciary relationship with the person whose affairs they manage. An attorney must act in the best interests of the principal and must not obtain a personal benefit other than specifically provided for in the executed enduring power of attorney (Powers of Attorney Act, s 12(1)).

Duty to keep records and to account

1. There is no statutory requirement that the attorney keep records and accounts. However, a general law obligation exists. This was considered by Slattery J in Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 as follows: The attorney's obligation is really one to keep accurate primary accounting records, for which the principal can call, if necessary, for the principal's examination. If the principal then wishes to produce secondary accounts, or full financial accounts, that is a matter for the principal" [at 64].

Conflicts of interest

1. The Tribunal was required to consider all relevant circumstances, including whether there was evidence of any conflict of interest facing the attorney. As noted in Re R [2000] NSWSC 886, to allow an attorney: With conflicts of interest to continue is something that…has to be watched carefully. If it has to be watched carefully, then it seems to me that it is just a question of fact and degree as to whether in all the circumstances it is in the best interests of the incapable person that that situation continues.
2. Mr BDW asserts that Mr KYW has misappropriated Mrs ICW's funds when acting as her attorney. He provided copies of Mrs ICW's bank statement and in particular referred to the following transactions: 1. On 16 September 2013, $13,000 had been withdrawn from Mrs ICW's Bank A account. 2. On 29 October 2013, $8,000 was withdrawn from Mrs ICW Bank A account.
3. Mr BDW asserted, in effect, that the size of these cash withdrawals was such that they would not have been for expenses incurred by Mrs ICW because she had a modest lifestyle and had no need for expending such large sums.
4. Mr KYW said that he used Mrs ICW's funds to pay for her needs and that the withdrawal on 29 October 2013 was to pay for a pergola. He said that he used other monies to pay other outgoings including rates and utilities bills.
5. Mr KYW said that he had receipts to explain his use of Mrs ICW's funds and some of those had been provided to the NSW Trustee and Guardian. He said that he had searched for the other receipts but had not provided them to the Tribunal because he had been unable to locate them.
6. Mr KYW said, in effect, that there were no documents to show that he had used the power of attorney when dealing with Mrs ICW's funds. When asked by the Tribunal whether he had used the power of attorney his reply was to the effect that he "was not aware that he had used it". He gave evidence to the following effect: 1. He had dealt with Ms FXW's affairs by being a signatory on her bank account in accordance with arrangements she had made with her bank. 2. At the time he [did] not understand that a power of attorney could have been used to deal with Mrs ICW's bank account.
7. Mr BDW challenged the claim that Mr KYW had not used the power of attorney and said that he has been told by Investment Z and by Bank B with whom Mrs ICW has shares that Mr KYW had produced a power of attorney to authorise his dealings with Mrs ICW's affairs.
8. After hearing the evidence of Mr BDW, Mr KYW conceded that he might have used the power of attorney in dealings with Mrs ICW.
9. In respect of this matter the Tribunal is of the view that Mr KYW's evidence as to whether or not he acted under the power of attorney is unreliable for the following reasons: 1. His evidence was equivocal and when asked directly if he had used the power of attorney he failed to provide a direct answer. 2. Mr KYW modified his evidence after hearing evidence from Mr BDW that challenged his assertions. 3. If Mr KYW were able to manage Mrs ICW's affairs without a power of attorney there would have been less need for one to have been drawn up. 4. The Tribunal considers it unlikely that as Mrs ICW's attorney, Mr KYW would not have realised that he could use the power of attorney to access Mrs ICW's bank account. 5. The power of attorney was registered with the Land and Property Information Division on 1 February 2008. This suggests that there was a view at that time that the instrument might be used to effect dealings with property.
10. On the available evidence the Tribunal is satisfied that Mr KYW did operate Mrs ICW's financial affairs under the 2007 power of attorney.
11. In a report to the Tribunal dated 14 February 2017, Roselyn Nash, senior Client Services Officer for the NSW Trustee and Guardian, states that the NSW Trustee and Guardian Legal Services Division was following up two matters for Mrs ICW, being: 1. "Recovery of misappropriated funds being $183,505 withdrawn from her [Bank A] Account by her daughter in law, [Ms NGW]; and 2. "Entitlements in her late sister, [Ms HPW]'s estate"
12. In a report to the Tribunal dated 6 September 2017, Ms Rozario Fernando, an acting Senior Client Services Officer with the NSW Trustee and Guardian, indicates that the NSW Trustee and Guardian was pursuing recovery of funds from Mr KYW and his wife, Ms NGW.
13. The Tribunal spoke to Rozario Fernando and Rachel Sutton of the NSW Trustee and Guardian regarding these matters and was advised that the recovery of funds has been referred to a firm of solicitors for follow up. They could not advise of progress in the matter.
14. Taking into account all of the evidence, the Tribunal is satisfied that while Mr KYW was acting as Mrs ICW's attorney, significant unexplained withdrawals were made from her account. Whilst Mr KYW claims to have receipts to explain some of these withdrawals the Tribunal is unable to place weight on that claim because despite the hearings of these matters extending over a very long period, Mr KYW has not provided the receipts.
15. The power of attorney purports to appoint Mr KYW and Mr BDW jointly and severally. The Tribunal discussed with the parties if the power of attorney could operate effectively. In respect of this matter: 1. Mr KYW said in effect that he did not believe the 2007 power of attorney could operate. He said that in his view, because of conflict between them, he and Mr BDW were not able to act jointly and that if they acted severally Mrs ICW's affairs could become a "mess" because they could not communicate adequately to keep each other informed about the status of her affairs. 2. Mr KYW was also of the view that it was not workable to remove Mr BDW as the attorney with the effect that only Mr KYW was the attorney because he would not be effective as an attorney as long as Mrs ICW continued to live with Mr BDW as Mr KYW would not be in a position to understand, and act in accordance with, her needs. 3. Mr BDW said that he would only act as Mrs ICW's attorney if he were the only attorney. In respect of that possibility: 1. There was no option of removing Mr KYW as an attorney and leaving Mr BDW as the sole attorney because Mr BDW denied that the signature purporting to be his accepting the appointment was in fact his. 2. The Tribunal considered the possibility of removing Mr KYW as the attorney and replacing him with the appointment of Mr BDW. However, Mr BDW had questioned the validity of the document claiming it to have been "falsely…constructed". The Tribunal was of the view that it would not be in the best interests of Mrs ICW to appoint Mr BDW as the sole attorney under an instrument, the validity of which he denied.
16. The Tribunal reached the following conclusions regarding the 2007 power of attorney: 1. Mr KYW has acted under the power of attorney. It is not in Mrs ICW's best interests for him to continue to do so for the following reasons: 1. The conflict between him and Mr BDW is such that they would not be able to act jointly under the appointment. 2. There would also be a real risk that if they acted severally because due to the conflict between them, they would not communicate sufficiently to ensure effective management of Mrs ICW affairs. 3. Despite his evidence that he has records to justify withdrawals from Mrs ICW account over the period since the power of attorney was executed, he did not provide them to the Tribunal and a number of large withdrawals made over that time are unexplained. The Tribunal is unable to conclude that he has kept appropriate records as Mrs ICW's attorney. 4. The NSW Trustee and Guardian has advised that they are pursuing legal action regarding dealings with Mrs ICW's estate by Mr KYW and his wife. The Tribunal is of the view that there is a serious question as to whether or not Mr KYW has fulfilled his fiduciary duty as Mrs ICW's attorney. 5. Taking into account that the NSW Trustee and Guardian has advised of legal action in respect of recouping Mrs ICW's funds from Mr KYW, he would have a conflict of interest in remaining as her attorney. 1. On the available evidence the Tribunal was unable to conclude whether or not the signature purporting to be that of Mr BDW was his. In any case, he was of the view that he had never accepted the appointment under the power of attorney. 2. The Tribunal is satisfied that it is not in Mrs ICW's best interests for Mr BDW to operate under the 2007 power of attorney as the sole attorney for the following reasons: 1. Mr BDW has stated that he would not wish to be appointed under an instrument that provides for the attorney to make gifts, including to himself, under the power of attorney. 2. Mr BDW has alleged that the Power of Attorney was drawn up fraudulently and it is not in the best interests of Mrs ICW.
17. Taking all of these matters into account, the Tribunal is satisfied that the enduring power of attorney is not able to operate in the best interests of Mrs ICW. Accordingly, the Tribunal is satisfied that it is in the best interests of Mrs ICW for the enduring power of attorney made in March 2007 be revoked.

REVIEW OF FINANCIAL MANAGEMENT ORDER

1. Mr BDW sought to withdraw his application to revoke the financial management order because in the absence of the financial management order, Mrs ICW's affairs would not be managed since the Tribunal had revoked the 2007 and 2014 powers of attorney.
2. The Tribunal consented to the withdrawal of the application to revoke the financial management order for the reasons set out in the preceding paragraph.
3. The Tribunal was out of time to fully consider Mr BDW's application to review the financial management order with a view to revoking the appointment of the NSW Trustee and Guardian and appointing him as the manager. Accordingly, the Tribunal decided to adjourn the consideration of that matter.
4. As indicated in preceding sections of these Reasons, the NSW Trustee and Guardian has indicated that it is proceeding with legal action aimed at recovering funds from Mr KYW and his wife. The Tribunal was of the view that its review of the financial management order would be assisted by a report of the NSW Trustee and Guardian providing further detail about that matter.
5. The Tribunal was advised that there have been some legal proceedings regarding the estate of the late-Ms HPW and the interests of Mrs ICW and Mr BDW in that estate and costs involved in pursuing those claims. The Tribunal was of the view that it would benefit from further information regarding those matters and therefore issued the following directions: 1. The NSW Trustee and Guardian is to provide a report detailing any actions it has taken on behalf of Mrs ICW regarding the estate of the late-Ms HPW; 2. Mr BDW is to provide details regarding any actions taken in respect of the estate of the late-Ms HPW.

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: 05 July 2018