We decided under s 36(1) of the Powers of Attorney Act 2003 (NSW) to carry out a review of the enduring power of attorney made by KBS on 20 June 2011 appointing LZN and FAV as her attorneys.
As a consequence of reviewing the enduring power of attorney, we decided under s 36(2) of the Powers of Attorney Act to make the following order under s 36(4) of that Act.
We ordered that TNS be appointed to replace FAV as attorney for KBS under the enduring power of attorney.
We reviewed the enduring guardianship appointment made by KBS on 20 June 2011 appointing LZN and FAV her enduring guardian and decided to replace FAV with TNS as enduring guardian.
[2]
Background
KBS is an 81-year-old woman. She is a retired high school principal. KBS previously lived in in her own apartment at East Sydney.
On 20 June 2011, KBS made an enduring power of attorney appointment, appointing her friends, LZN and FAV jointly and severally as her attorneys.
On 20 June 2011 KBS made an enduring guardianship appointment, appointing LZN and FAV jointly and severally as her enduring guardians.
KBS is reported to have advanced dementia. In March 2018, KBS moved to an aged care facility in regional NSW. KBS still owns her apartment in East Sydney and stays there from time to time with FAV.
LZN is living overseas. FAV lives in regional NSW.
KBS has a nephew, TNS who lives in regional NSW.
On 18 February 2018 FAV resigned her appointment under the enduring power of attorney made by KBS on 20 June 2011.
On 19 February 2019 the Tribunal received an application from LZN for review of the enduring power of attorney appointment made by KBS on 20 June 2011.
On 8 April 2019 the Tribunal received an application from LZN for review of the enduring guardianship appointment made by KBS on 20 June 2011.
In issue in the applications is whether TNS should be appointed to replace FAV under the enduring power of attorney appointment.
Further in issue is whether FAV should continue as enduring guardian for KBS or TNS should be appointed to replace her.
[3]
The hearing
At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]
[4]
What did the Tribunal have to consider?
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: Power of Attorney Act, 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).
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 KBS to make the order;
2. that it would better reflect the wishes of KBS to make the order.
These orders include but are not limited to:
An order varying a term of, or a power conferred by, the power of attorney
An order removing a person from office as attorney
An order appointing a substitute attorney to replace an attorney who has been removed from office or who otherwise vacates the office
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
An order revoking all or part of the power of attorney
Such other orders as the Tribunal thinks fit
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 1987 (NSW).
[5]
Should the Tribunal conduct the review?
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."
We decided to conduct a review of the enduring power of attorney in view of the evidence indicating KBS's dementia and need for an attorney, FAV's resignation from the role and proposal that TNS replace her.
[6]
Should the Tribunal make any orders under s 36 of the Powers of Attorney Act?
It was not in issue that KBS has advanced dementia of the Alzheimer's type associated with heavy alcohol use. This was confirmed in reports provided to us from Dr Z, Geriatrician, dated 8 May 2018 and Dr Y, General Practitioner, dated 1 April 2019.
Consistent with these reports, KBS was repetitive in conversation with us indicting significant memory difficulties. She was unable to provide us with clear details of her living arrangements.
Consistent with the other evidence before us, it was apparent that KBS is strongly attached to her apartment and her cat and has a longstanding love of red wine. KBS's cat now lives with FAV however visits KBS and also comes back for visits with them to East Sydney.
Further it was apparent to us that KBS is fond of and trusts LZN, FAV and TNS. She has longstanding relationships with them all.
As detailed in LZN's application, FAV's written submission and in oral evidence from all participating, FAV has been integral in supporting KBS with both lifestyle and financial decisions. This has taken significant time and effort on the part of FAV. KBS indicated that she is grateful for all her help.
It was not in issue that FAV has resigned her position as enduring power of attorney. This has arisen at least partly in the context of FAV borrowing money from KBS for an overseas business venture. FAV states that she borrowed $24,000 from KBS. LZN expresses concern about FAV's role as attorney for KBS and her conflict of interest, leading to FAV's resignation from the role.
All those participating, supported TNS being appointed to replace FAV under the enduring power of attorney appointment.
On the basis of the evidence of LZN, FAV and TNS, it appeared to us that he has already been working with FAV in relation to decisions being made about KBS's apartment in East Sydney along with LZN. They have sought detailed financial advice about aged care costs and future planning. KBS's apartment has been set up as an Airbnb. This has the advantage of the apartment being available for KBS to stay in from time to time. All agree that KBS enjoys being in her apartment.
We were provided with information regarding KBS's financial affairs. LZN indicates that KBS has a healthy recurring income. LZN appeared to us to have a have a good grasp of her financial position. LZN sees benefit in TNS replacing FAV as attorney rather than him continuing on in the role alone. This was particularly given that TNS has the advantage of physical proximity as LZN lives overseas.
FAV proposes that she take on the role of a paid carer for KBS. The evidence indicated that FAV has spent a lot of time supporting KBS with her health, medical care and other aspects of her lifestyle, including outings and visits to the apartment in East Sydney. All agreed this has been beneficial for KBS and should continue if possible. FAV is not in a position to continue to commit the time on an unpaid basis however.
We spoke with TNS about how he would approach the role of attorney and factors he would take into account in making financial decisions. His evidence emphasised the importance of consultation with KBS, LZN and FAV. On the basis of his evidence we accept he has the necessary skills for the role. KBS supported him being an attorney
Taking these matters into consideration we were satisfied that it is in KBS's best interests to make an order appointing TNS to replace FAV under the enduring power of attorney dated 20 June 2011.
[7]
What did the Tribunal have to decide?
On reviewing the appointment of an enduring guardian, the Tribunal may
confirm the appointment of an enduring guardian with or without varying the functions of the appointed enduring guardian
proceed as if an application for guardianship or an application for financial management (or both) had been made or
revoke the appointment, with or without then proceeding as if an application for guardianship or an application for financial management (or both) had been made.
The Tribunal must not revoke the appointment of an enduring guardian unless:
1. the enduring guardian requests the revocation; or
2. the Tribunal is satisfied it is in the best interests of KBS that the appointment be revoked.
The Tribunal may only proceed as if an application for guardianship or an application for financial management (or both) had been made if it considers it is in the best interests of KBS to do so.
The Tribunal may appoint a substitute enduring guardian to replace an enduring guardian who has died, resigned or become incapacitated. The Tribunal may appoint a substitute enduring guardian only if:
1. the person is eligible to be appointed as an enduring guardian under Pt 2 of the Guardianship Act, and
2. the Tribunal is satisfied that:
1. KBS is in need of an enduring guardian;
2. the person has a close personal relationship with KBS; and
3. the person is capable of carrying out the functions of an enduring guardian.
A 'person in need of a guardian' is a person who because of a disability is totally or partially incapable of managing his or her person: Guardianship Act, s 3(1). A 'person with a disability' is a someone who is:
1. intellectually, physically, psychologically or sensorily disabled;
2. of advanced age;
3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or
4. otherwise disabled
and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: Guardianship Act, s 3(2).
[8]
Should the Tribunal make an order replacing FAV as enduring guardian?
We were satisfied on the basis of the reports of Dr Z, Dr Y that KBS has advanced dementia. This was consistent with own interactions with KBS indicating, in particular significant difficulties with memory.
We were satisfied that KBS has a disability and is a person in need of a guardian within the meaning of the Guardianship Act. This was not in issue. KBS requires a lot of support with her health and lifestyle decisions.
As indicated in the application for review of the enduring power of attorney, FAV proposes that she take on the role of a paid carer for KBS.
A copy of the enduring guardianship appointment is before us. The decision-making functions authorised include, but are not limited to, decisions about what personal services KBS should receive. This is an important issue for KBS as she greatly enjoys her outings and visits to her apartment. In the words of KBS, "time spent in her flat, with her cat" is important.
We canvassed with FAV issues in relation to a conflict of interest arising for her if she continues on as enduring guardian and is a paid carer also.
In the circumstances, FAV did not press that she should continue on as enduring guardian. FAV sought to resign and supported TNS being appointed to replace her. LZN and KBS supported this.
On the basis of TNS's evidence and KBS's interactions with him during the hearing, we were satisfied they have a close personal relationship.
We formed the view from all the evidence that TNS is capable of carrying out the functions of an enduring guardian. In particular, his evidence demonstrated commitment to working with LZN and FAV and ensuring that decisions made promote KBS's welfare and interests.
Taking these matters into consideration we decided to make an order appointing TNS to replace FAV as enduring guardian.
[9]
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
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Decision last updated: 23 August 2022