KZV [2020] NSWCATGD 45

The hearing

1. 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.]
2. The hearing was conducted by telephone due to restrictions on in-person participation resulting from the COVID-19 virus.
3. KZV participated only briefly in the hearing. In respect of his ability to participate: 1. The Reasons for Decision of the Tribunal upon hearing similar matters on 1 July 2019 indicate that when telephoned by the Tribunal, KZV did not remember having two sons. 2. A Hearing Report prepared by a Tribunal officer indicates the following: 1. A Notice of Hearing was sent to KZV on 22 January 2020. 2. When contacted by telephone by the officer, KZV said that was the first he had heard about the hearing. He did not express any views about the matters at hand and responded positively when asked if he trusted both his sons. 1. EDU expressed the view that if he were in person, KZV would be able to express a view in response to a clear question but would be confused if taking part in the hearing by telephone. 2. HKU expressed the view that KZV would be very stressed if required to participate in the hearing.
4. We spoke briefly to KZV by telephone and his comments were to the following effect: 1. He said words to the effect of "I don't know much about it; I don't know anything about it really; No-one has spoken to me about my finances. 2. When asked, KZV was not able to say where he was living. 3. KZV said words to the effect of "I don't need to stay on the phone".
5. The Tribunal must ensure that it conducts its hearings in such a way as to extend procedural fairness to the parties. This includes a requirement that the parties must be given a reasonable opportunity to be heard, and to present their case.
6. The Tribunal is also required to follow principles set out in s 4 of the Guardianship Act 1987 (NSW). These principles include that paramount importance should be given to the welfare and interests of a person with disabilities.
7. The matters raised in the applications reflect deep discord between EDU and HKU and allegations of actions being taken that have not been in the best interests of KZV. As noted, some matters have been the subject of proceedings at the Supreme Court. In those proceedings HKU has acted as KZV's tutor. We were of the view that raising these matters would be likely to be distressing for KZV. Accordingly we did not seek to discuss in detail the matters raised by the parties. Whilst we left open the possibility of contacting KZV later in the hearing, no party pressed for him to be contacted. In our view KZV had been provided with an opportunity to attend and put his view and his responses indicated that he was unable to effectively participate and to comprehend the matters and there was little value in seeking further comment from him. Under those circumstances we were of the view that to seek further comment would risk causing him distress whilst not providing evidence to assist to determine the real issues before the Tribunal.

Preliminary matter - application for adjournment

1. In an email to the Tribunal dated 19 March 2020, EDU sought an adjournment of the hearing for the following reasons: 1. To allow him to "streamline" the calendars of "other supportive friends and family members" who wish to take part in the hearing. He has asked "various people to attend the hearing to clarify information" provided by HKU and KYU to indicate that it is "false or misleading". 2. He is in receipt of the Disability Support Pension and has recognised conditions that affect his ability to cope with certain situations and has had "supportive networks" available when other hearings have been conducted. 3. He does not believe that the hearing could be conducted or the Tribunal "ascertain a clear picture" in the proposed telephone hearing. 4. He suggested "an adjournment or perhaps the tribunal consider information be directly sent to the tribunal in relation to the financial management of ([KZV]'s) estate".
2. At the commencement of the hearing EDU augmented his request for an adjournment for the following reasons: 1. He received some documents late, including some received at 10:00pm the night before the hearing. The financial documents included material from as far back as 2016 and needed time to examine the documents. 2. He wanted his friend, Ms W, who was assisting him in the capacity of a McKenzie friend, to be physically present with him. She was available only by telephone because of measures she had taken due to COVID-19 virus. 3. He wanted two witnesses, Ms Y and Ms X to give evidence during the hearing.
3. HKU and KYU opposed the adjournment and submitted: 1. They had complied with the Directions issued on 4 December 2019 regarding the submission of accounts. The material HKU provided the day prior to the hearing was additional to the material he was directed to provide and was provided only to assist in understanding the material already provided. 2. HKU had taken time off work to attend the hearing. He is responsible for a large number of staff and contractors and with the COVID-19 effects on work and employment the current environment makes it difficult to take time off work. 3. The financial information was not new to EDU as it had also been discussed in the Supreme Court matters. 4. A Writ of Possession had been issued authorising the sheriff to enter KZV's premises where EDU had been living. The original effective date was 31 January 2020 but that had been extended and the date is now 1 April 2020. 5. KZV's financial reserves are now critically low. He has only $17,000 in his bank account and his aged care fees are $3000 per month. His pension will cease in May 2020 because the value of his home, where EDU has been living, places him above the assets test for the age pension.
4. In response to the submissions of HKU and KYU, EDU questioned that KZV's pension needs to cease as he was of the view that his residency of KZV's home could have been approved as that of a carer remaining in residence and would not have affected KZV's pension.
5. Tribunal records indicate that records relating to KZV's share portfolio and bank accounts were submitted the Tribunal on 18 February 2020 by way of emails also addressed to EDU. A number of documents were submitted after the date specified by the Tribunal by HKU, KYU and EDU. The financial documents provided on the eve of the hearing by HKU and KYU were an excel spreadsheet and pie chart regarding KZV's 2020 expenses, a list of Major Financial Payments/deposits made on behalf of KZV and a Timeline of events.
6. We carefully considered the application for adjournment and reached the following conclusions: 1. In our view EDU's submissions based on the unavailability of an in-person support person lacked weight for the following reasons: 1. The Tribunal's Directions of 4 December 2019 set the hearing down for 26 March 2020 in regional NSW. The change from an in-person hearing to one conducted by telephone did not change the opportunity for EDU to have a friend with him during the hearing. Had the hearing been conducted in person in regional NSW, EDU's friend would have been in regional NSW if she were to provide in-person support. The fact that EDU was appearing by telephone from his location on the Central Coast made little difference to the travel needs of his support person. 2. If the person he initially chose to provide in-person support was unavailable due to the COVID-19 virus issues then it was open to EDU to arrange for an alternative support person. There was no evidence that he had sought to do so. 3. EDU was not prevented from being assisted by his preferred support person by telephone. We were able to include his support person in the conference call by which the hearing would be conducted and to provide opportunities for them to have confidential discussions upon request. 1. In respect of EDU's submission that the hearing should be adjourned to allow other persons to attend and for other witnesses to involved: 1. Section 36 of the Civil and Administrative Tribunal Act 2013 (NSW) establishes that the "guiding principle" for that Act and the Tribunal's procedural rules, in their application to proceedings in in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 2. As noted above applications for summonses in respect of the attendance of Ms Y and Ms X had been refused on the basis of lack of apparent relevance to the matters to be determined by the Tribunal. 3. It was possible for witnesses to give evidence by telephone if that evidence was considered to be relevant to the the matters to be determined by the Tribunal. 4. Whilst hearings are open to the public the Tribunal has an obligation to provide an opportunity for parties to take part and represent their views. Parties were able to participate by telephone. To the extent that it was technically possible, other persons could be included in the hearing by way of a conference call. There were limits to the number of people who could be included in the conference call but had persons arranged to do so, they could have attended with a party and listened to the proceedings on speaker-phone. In our view, taking into account the guiding principle referred to above, the inability to directly include non-parties in the conference call by which the hearing was to be conducted was not a sufficient reason to adjourn the hearing. 1. Whilst it is preferable for parties to attend Tribunal hearings in person it is not unusual for the Tribunal to conduct hearings by telephone, and we were not concerned that we would be unable to deal with the matter in a hearing conducted by telephone, 2. There were a number of late documents submitted to the Tribunal by HKU, KYU and EDU. In our view, the additional material provided by HKU and KYU did not constitute new evidence but collated that evidence in a new format. It was not complex and in our view was readily understood. If EDU wished that specific material to be excluded from the Tribunal's consideration we were in a position to do so as the substantive matters to which the material referred were before the Tribunal. 3. The matters to be determined by the Tribunal have been long standing and the evidence and submissions of HKU and KYU were to the effect that KZV's financial affairs were at serious risk and action was required by the attorneys. Whilst that evidence and those submissions were to be tested in the hearing, it appeared at least on a preliminary view of the material that there was some urgency to determine the matters before the Tribunal. We considered that the potential risk to KZV's financial best interests was such that there needed to be compelling reasons to adjourn the hearing. 4. Having considered the matters raised by EDU and considering the issues raised by HKU and KYU, we were of the view that we were able to fairly and effectively address the real issues before the Tribunal by way of a hearing conducted by telephone and that the hearing needed to proceed in the best interests of KZV. Accordingly we refused the application for an adjournment.
7. The Tribunal notes that at times throughout the hearing EDU and Ms W, the friend who was assisting EDU, again sought the matter to be adjourned for reasons related to EDU's diagnosis of Attention Deficit Hyperactivity Disorder and difficulties for Ms W providing support by telephone. In relation to these matters: 1. We considered it necessary on occasions to guide Ms W as to her role as a support person as she seemed to be coaxing KZV regarding his evidence rather than supporting him through the process of the hearing. 2. We provided opportunities for private discussion between Ms W and EDU. 3. Ms W was unavailable for part of the hearing and we included a substitute support-person, Mr V, in the hearing. 4. In addition to standing down the proceedings to provide an opportunity for EDU to speak privately with his support persons we adapted the conduct of the hearing in consideration of difficulties that he might have been experiencing due to his diagnosed condition. In particular, we provided him with ample opportunity to put his view and guided him as the questions and evidence to the considered by the tribunal and the matters that the Tribunal considered to be important to its deliberations. 5. We had read and considered all the written material put to the Tribunal including that put by EDU. We formed the view that in his oral evidence and submissions EDU was somewhat perseverative in raising matters more than once, and those matters were also comprehensively canvassed in the written material considered by the Tribunal. We also took evidence from Ms Y as requested by EDU. 6. We declined to contact EDU's psychologist, Ms Z, as requested by EDU, because we considered it unlikely that her evidence regarding her assessment of EDU or her observations based on her interactions with him would provide direct evidence of assistance to the Tribunal in addressing the real issues that we needed to determine. 7. We were of the view that EDU had been provided with an adequate opportunity to put his views both in written and oral evidence, and that adjourning the matter on a part-heard basis was not likely to elicit new oral evidence from him. 8. Having decided to proceed with the hearing, adjourning it on part-heard basis would have resulted in a further delay in determining the matters because of the need to reconvene the same panel. Taking into account the evidence and submissions to the effect that KZV's affairs were in a serious situation we were of the view that such action should only be undertaken if necessary to ensure a proper hearing of the matters or if otherwise necessary for the best interests and welfare of KZV. Taking into account the allowances we made for EDU's circumstances we were of the view that the matters could be heard properly and the Tribunal was able to deliberate regarding the real issues without adjourning the hearing and that it was in the best interests of KZV to proceed with the hearing.

THE PREVIOUS DECISION OF THE TRIBUNAL- REVIEW OF ENDURING GUARDIANSHIP AND ENDURING POWER OF ATTORNEY

1. When it reviewed the appointments on 1 July 2019 the Tribunal: 1. Noted the agreement of the enduring guardians to honour the appointment made by KZV and observed that there were no decisions to be made under the enduring guardianship appointment and that the enduring guardians had agreed to communicate with each other about lifestyle decisions to be made for KZV. 2. The Tribunal was of the view that the primary issues in relation to the operation of the appointments were communication difficulties and conflict and that family conflict of itself was insufficient reason to set aside or otherwise review an enduring instrument knowingly made by the principal. 3. The parties had resolved to work together in the best interests of the KZV and the Tribunal was of the view that the instruments were operating effectively in the best interests of KZV and that reviewing or changing the instruments was not in the best interests of KZV.

EVIDENCE REGARDING ENDURING GUARDIANSHIP APPOINTMENT

1. EDU's oral and written submissions were to the following effect: 1. His parents intended that all matters were to be "split 50/50" between him and HKU. He has been excluded from all matters related to the care of KZV. 2. KZV was placed in the aged care facility without discussion with EDU and subsequently the co-enduring guardians have refused to consider his concerns for KZV's welfare or to discuss alternative proposals. He believes that KZV could be housed in a more moderate care facility. He has raised this with a Registered Nurse at the facility who had replied that residents are "all mixed" and that KZV could not be placed in a different section of the facility. He believes that KZV is distressed in his current placement. 3. The decision to place KZV in the aged care facility could not have been made by KYU and HKU in accordance with the agreement of two of the three enduring guardians require by the appointment, because her signature is "only a few months" after she was in a coma. 4. In his view, HKU placed KZV in the aged care facility when there was no need so that he could seize control of KZV's estate and care. 5. In his view false information has been provide to, and then reproduced by, medical practitioners involved in KZV's care including Dr U, a geriatrician. HKU and KYU have instructed Dr U not to talk to him. 6. He wants KZV to be seen by a different geriatrician. 7. He has not made a proposal to the other guardians regarding KZV's placement within the facility or about a second geriatrician assessment because he believes that they are making decisions excluding him and based on the appointment that requires two out of three to agree. He has not attempted further collaboration with the attorneys since the previous Tribunal hearing in July 2019 where, according to the Reasons for Decision of the Tribunal, the parties agreed to communicate more effectively in the best interests of KZV.
2. HKU and KYU made submissions to the following effect: 1. KYU had come out of her inducted coma on 24 April 2018 and was at home and had capacity to make the decision for KZV to enter the aged care facility KZV when he was admitted in May 2018. 2. Prior to KZV being admitted to the aged care facility they had advised him about KZV's appointments with Dr U but he did not attend the appointments. KYU provided a copy of an email dated 27 August 2017 advising EDU of such an appointment. 3. The decision to place KZV into aged care was based on their view that EDU was not able to provide sufficient care for him with the assistance of support from a service provider at home, and since KYU had a brain aneurysm, she and HKU were not able to provide the same level of assistance as previously. Dr U, a geriatrician, saw KZV on 20 March 2018 and recommended that that needed permanent care and KZV's GP, Dr T admitted KZV the facility. 4. EDU is now informed about KZV's medications because he is provided with a copy of the pharmacy account. 5. It is accepted by practitioners working with KZV that he requires placement in an aged care facility. KZV commenced his residency at the aged care facility in the low care section but absconded the next day. He was found by police on the highway. He is now in a more secure, moderate care, section of the aged care facility. They visit him weekly and he does not appear distressed. 6. They have not requested Dr U or KZV's GP not to talk to EDU. He is free to do so. KZV's GP visits him each week and EDU is free to approach him or to make an appointment to see him.
3. When asked what decisions he thought needed to be made by a guardian EDU submitted that there was no decision to be made about KZV's accommodation or services and in his view there is a health care decision to be made because KZV should be assessed by a different geriatrician and he thought that a Public Guardian should be appointed as the guardian.
4. We were provided with a copy of a letter dated 22 May 2018 from Dr U, Consultant Geriatrician addressed "To Whom it may Concern" and with the salutation "Dear Enduring Power of Attorney and Guardian". The letter indicates the following: 1. Dr U had been seeing KZV since 22 March 2016 and had most recently seen him on 20 March 2018. She had spoken with the service provider of in-home services to KZV and to KZV's GP, Dr T and in her view it was in KZV's best interests to move into a residential aged care facility where he could receive 24/7 care 2. Due to KZV's advancing dementia he has no insight into his care needs and could not be involved in the decision making process. 3. In her view it was not safe for KZV to remain at home with support services and his care needs would be best net in a dementia specific aged care facility.

THE TRIBUNAL'S DECISION REGARDING THE REVIEW OF THE ENDURIUNG GUARDIANSHIP APPOINTMENT

What did the Tribunal have to decide?

1. On reviewing the appointment of an enduring guardian, the Tribunal may 1. confirm the appointment of an enduring guardian with or without varying the functions of the appointed enduring guardian; 2. proceed as if an application for guardianship or an application for financial management (or both) had been made; or 3. 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.
2. 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 KZV that the appointment be revoked.
3. 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 KZV to do so.
4. EDU has sought the revocation of the enduring guardianship but the two co-enduring guardians have not sought its revocation. We did not interpret EDU's application as seeking the revocation of his appointment alone.
5. For the following reasons we did not consider it necessary to revoke the enduring guardianship appointment or that to do so would be in the best interests of KZV: 1. In our view EDU's submission that KZV wanted him and HKU to have a 50/50 say in decisions about him is not supported by the nature of the enduring guardianship appointment. In our view, KZV expressed his view about who he wanted to make decisions for him and how those decisions should be made in the appointment of the three enduring guardians and the condition that decisions be made by a simple majority of two out of three enduring guardians. 2. In our view, by making an enduring guardianship appointment, KZV provided for decisions about his lifestyle to be made by family members. We do not consider that the appointment of a Public Guardian, as suggested by EDU, to be in keeping with KZV's appointment of family members to make lifestyle decisions for him. 3. Whilst EDU on the one part and HKU and KYU on the other part, disagree about the appropriateness of KZV's placement in the aged care facility in 2016, there is no dispute now that he needs aged care placement. For this reason, we are of the view that it is not necessary to examine in detail the actions taken by the parties prior to KZV's admission. However to the extent that we have considered the matter, we are satisfied that the admission was based on medical advice. EDU is of the view that the medical advice was based on incorrect or misleading information. However, as an enduring guardian he was at liberty to question and correct the information. He remains at liberty to discuss KZV's health care and medical circumstances with treating personnel and to make any proposals that he wishes to make to his co-enduring guardians. 4. In our view there are no decisions needed to be made by the enduring guardians that cannot be made under the existing appointment. Whilst EDU has indicated he would like KZV to be seen by a different geriatrician and to be accommodated under less restrictive conditions, on his own submissions he has not put his suggestions to his co-enduring guardians and sought their concurrence. In our view, these are matters that can be considered under the existing appointment.
6. As we are satisfied that there are no decisions required for KZV that cannot be made under the enduring guardianship appointment we did not consider it to be in the best interests of KZV to treat the application as an application for a guardianship order.
7. There was no submission to the effect that we should treat the application as one for the making of a financial management order. As we had before us an application to review the enduring power of attorney made by KZV we were of the view that it was not in his best interests to treat the application as one for the making of a financial management order.
8. Having decided that there are no decisions required for KZV that cannot be made under the enduring guardianship appointment, and that it is not in his best interest to revoke the appointment, we confirmed the appointment.

Evidence in relation to review of the enduring power of attorney

1. During the hearing there was extensive reference to the matters determined recently in the Supreme Court. As noted in the Directions made on 4 December 2019 this Tribunal would not seek to re-determine those matters. However they are relevant as background to the submissions and evidence of the parties regarding the operation and effect of the enduring power of attorney. In relation to these matters, we were provided with copies of correspondence regarding KZV's property. These are summarised below: 1. A letter dated 28 May 2018 from a law firm addressed to HKU, KYU and EDU includes the following information: 1. HKU had indicated that there was a Refundable Accommodation Payment (RAD) of between $350,000 and $500,000 payable to the aged care facility. HKU was of the view that the payment of the RAD required the sale of the home with excess funds being invested to meet KZV's ongoing living expenses. 2. HKU would like the attorneys to join in having the property listed for sale. Whilst the power of attorney provided for a simple majority decision, HKU would prefer that each attorney agrees to the proposed action. 3. Attorneys have a duty to use the assets of the estate for the benefit of the principal. This includes maintaining those assets and selling them for KZV's benefit. The property would need to be prepared for sale and HKU would need access and to provide access to workmen to prepare the property for sale. 4. Recipients were requested to advise within seven days as to whether they were prepared to join in the proposal. 1. A letter dated 9 April 2019 from a law firm addressed to EDU and indicating the following: 1. By a resolution of two of the three attorneys, HKU and KYU had resolved to sell or let KZV's property. Vacant possession was required to prepare, market and sell or let the property. 2. EDU had been occupying the property and had failed or refused to leave. It was demanded that EDU vacate the property within 14 days, being 23 April 2019. 3. Given the decision of the attorneys, EDU was trespassing on the property and if he failed to comply with the request to leave they would need to commence proceedings. 1. A letter date 30 April 2019 to Ms TH of Legal Aid in regional NSW referring to a letter received from her on 18 April 2019. The letter includes the following: 1. The resolution of the two attorneys was not dependent on any Centrelink matters. 2. KZV's property was deteriorating due to EDU's misuse of the property and failure to maintain the property. 3. EDU had sought to have the property let, but has no authority to do so under the enduring power of attorney. 4. EDU had been obstructing access to the property. 5. A Statement of Claim had been prepared and instructions taken to file proceedings. 6. If EDU agreed to vacate instructions could be taken on an agreed date to vacate.
2. During the hearing the Tribunal was advised that the following had resulted from the Supreme Court action commenced by HKU as tutor for KZV: 1. A Writ of Possession had been issued authorising the sheriff to enter KZV's premises. The original effective date was 31 January 2020 but that had been extended and the date is now 1 April 2020. 2. EDU had sought a stay of an eviction notice. It was found that no stay was necessary because an eviction notice had not been issued. During the current hearing EDU said that a reason for seeking the stay was that he was homeless and would be seeking public housing. 3. A costs order had been made against EDU. 4. EDU said that he was appealing the decision of the court. EDU was somewhat vague about this matter and it was unclear whether he was appealing the substantive decision of the court or the costs order.
3. EDU made written and oral submissions to the following effect: 1. He has been excluded from decision making in relation to KZV's estate and KZV had intended for him and HKU to make decisions on a 50/50 basis. 2. When he signed the enduring power of attorney in his father's presence in 2010 and had no knowledge about the inclusion of KYU as an attorney. 3. The enduring power of attorney could be invalid on its face because the date of signing by KYU had been changed and the change was not initialled. 4. In his view the actions taken in the Supreme Court by HKU as his father's tutor have drained KZV's estate. 5. In his view he was a "protected person" in KZV's home as a previous carer of two years standing and as a "dependent living at home" and had HKU correctly noted that detail in the finance details provided to Human Services, the home would not have been considered an asset and KZV's fees at the aged care facility would be less than currently assessed. In support of this submission, EDU cited advice from advocacy organisation to the effect that if he was a Protected Person then he could remain in the home indefinitely and it would be an exempt asset for the purposes of the means tested care fee at the aged care facility. If KZV were exempt from the means tested care fee then he may have been overcharged approximately $40,000 in fees. 6. He had sought to let his father's property and had approached a real estate agent, but his attempts had been thwarted by HKU who has since misrepresented this matter to the Tribunal. 7. HKU and KYU had requested that he pay KZV $700 per week rent to be backdated. However he is in receipt of a Disability Support Pension. 8. The cost of nursing home care for KZV has been incurred unnecessarily because at the time he was placed in the facility he did not require placement. 9. Prior to his placement in the aged care facility KZV had a share portfolio valued at more than $315,000 and had substantial savings. EDU had asked for more details about KZV's affairs and had only been provided with details for this hearing. 10. When asked if, as an attorney, he had sought information from banks and financial institutions about KZV's affairs, EDU he said that he had not done so. 11. EDU said in his view the enduring power of attorney was unworkable, in effect because of the discord between him on the one part and HKU and KYU on the other part and because they do not consult with him and they make decisions in accordance with the two of three provisions in the power of attorney.
4. HKU and KYU made oral and written submissions to the following effect: 1. EDU had intermittently been living in a shed on KZV's property since 2016 and has not paid rent. He has been aware for some time that KZV's financial reserves were running low and this matter was canvassed in the letter to him in May 2018 from a law firm. 2. Costs have been incurred for the property whilst EDU has been living there. This includes work that was not approved by HKU or KYU as the two other attorneys. 3. EDU had not offered to pay rent for his use of KZV's property prior to the action being taken in the Supreme Court. KZV's financial affairs are now such that rent will not suffice and it is necessary to sell the property. 4. In June 2018 an assets assessment prepared for Centrelink on KZV's entry to aged care indicated that he had $371,000. They estimate that after paying 50% of the RAD and living expenses, KZV could have had approximately $120,000 in cash assets had he been able to collect rent on his real estate. As he now has less than $20,000 in cash, they estimate that EDU continuing to reside in the home and preventing it from being sold or let had cost KZV approximately $100,000. 5. They have attempted to communicate with EDU by emails. Recent emails including copies of documents and invoices had resulted in EDU objecting to receiving such information. 6. With regard to the assessment of KZV's assets for Centrelink purposes: 1. At the time of completing the assets assessment in 2018 they were not aware that EDU had been claiming a carers allowance for KZV. 2. Advice from Centrelink was the effect that to qualify as protected, a carer needed to be in that role for a minimum of two years. 3. The information available to them is that KZV received a carers allowance from 2 August 2016. Whilst he continued to claim the allowance up until 26 September 2018 KZV entered the aged care facility in May 2018 so EDU is unlikely to be considered a carer after that date. 4. Even if EDU is a protected tenant and the property is not taken into account in respect of KZV's fees, his pension remains at risk and financial affairs remain such that the home needs to be sold. 5. They had received no notification from Centrelink that KZV's situation was being reviewed and expect that his pension would cease in May 2020 due to him being over the assets allowance. 1. Whilst KZV did have a portfolio of managed shares, those shares have been sold to meet his expenses. 2. KZV's current bank balance is approximately $17,000. If KZV's home is not let or sold his funds will be exhausted within 12 to 18 months.
5. In respect of matters raised in submission regarding financial matters, we were provided with the following evidence: 1. extensive financial records in compliance with the directions issued on 4 December 2019, including details of shares and dealings with shares, bank statements and invoices; 2. a copy of correspondence from a commercial bank indicating that KZV had a balance of approximately $5398 in a Reward Saver Account and $11,955 in a bank account; 3. copies of emails from EDU to a solicitor acting for HKU and KYU in which he requests that they stop sending him "random receipts/bills" and similar emails from EDU to HKU and KYU requesting complete and comprehensive bookkeeping" rather than copies of bills and invoices.

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:

• An order declaring that KZV did or did not have mental capacity to make a valid power of attorney;
• An order declaring that the power of attorney is invalid (either in whole or in part) if the Tribunal is satisfied: 1. KZV 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.

1. 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 KZV to make the order; 2. that it would better reflect the wishes of KZV to make the order.
2. 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.
3. 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 EDU have standing to make the application?

1. A person who is appointed as an attorney under an enduring power of attorney may apply for a review of the enduring power of attorney.
2. We were satisfied that as an attorney appointed under the instrument, EDU had standing to apply for its review.

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. We decided not to conduct a review of the making of the enduring power of attorney for the following reasons: 1. EDU submitted that when he signed the enduring power of attorney, KYU was not mentioned as an attorney. He provided no objective evidence in support of that submission. 2. In the absence of further evidence we looked to the document and in our view, in its construction, the enduring power of attorney provides for the appointment of three attorneys in that it includes the clause authorising the attorneys to make decisions by a simple majority where three or more attorneys are appointed. 3. EDU also submits that KYU's acceptance of the appointment may be invalid because the date of her signature is changed from 2010 to 2011 and the change is not initialled. In respect of that matter we note that the same situation occurs in respect of the changed date (2010 to 2011) for the signature of HKU. 4. HKU and KYU accepted their appointments in January 2011 whilst the appointment was made in 2010 and EDU accepted his appointment in 2010. In our view this is the reason for the altered date. The alteration is not initialled but occurs within the same block as the signature. We consider that initials occurring next to the date in the same block as the full signature would add little to the legitimacy of the date change. 5. The enduring power of attorney was registered at the Land Registry Services on 16 May 2018 and the attorneys have been acting in accordance with the appointment. No issue has previously been raised about the validity of KYU's acceptance of the appointment. 6. In our view, further examination of the matters raised by EDU is unlikely to provide a sufficient basis on which to make an order about the making of the enduring power of attorney. For that reason, we declined to embark on a review of the making of the instrument.
3. The Tribunal decided to conduct a review of the enduring power of attorney for the following reasons: 1. The applicant/attorney was of the view that the appointment was unworkable. 2. The evidence and submissions of two of the attorneys was to the effect that the principal's resources were seriously depleted and action was required in respect of management of his estate. 3. The applicant/attorney has been a defendant in a matter successfully brought against him in the name of the principal and has been ordered to pay costs to the principal.

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 the Powers of Attorney Act 2003.

The operation and effect of the enduring power of attorney

1. Whilst EDU sought a review of the enduring power of attorney and has now had access to extensive financial documents relating to KZV's estate, his submissions do not raise allegations about specific financial dealings. We are of the view that the evidence does not support a finding that any specific financial dealings are problematic.
2. EDU has submitted that the enduring power of attorney is unworkable because he has been excluded by the other attorneys and has not been involved in decision making. In respect of that submission: 1. In our view, the letter sent to EDU by a law firm and dated 28 May 2018 invites EDU to liaise with the other two attorneys in making decisions about KZV's estate and detracts from the weight of his claim that he was not consulted by the other attorneys. 2. When submitting that he had not been provided with financial documents by the other attorneys, EDU indicated that he had not sought those documents himself from financial institutions. In our view he was not prevented from doing so by the terms of the enduring power of attorney or by the other attorneys. 3. EDU has submitted that a review of KZV's assets, taking into account what he asserts as his own protected tenant status, would result in an improved financial situation for KZV. EDU has not provided evidence that as an attorney he has caused a review to be commenced or that he has collaborated with the other attorneys to seek such a review. 4. Whilst EDU asserts that he has been excluded from financial decision-making by the other two attorneys, in our view he has not actively pursued a number of matters that it would have been appropriate for him to pursue, either in concert with other attorneys, or alone. We consider that the weight of his claim to have been excluded from financial decision-making is reduced to the extent that he has not of his own initiative, taken steps that were open to him to be involved in understanding and managing KZV's affairs.
3. We are not of the view that the enduring power of attorney is unworkable. To the contrary, we believe that it provides the machinery for it to work by allowing decisions to be made on a simple majority. However we are of the view that due to conflict between the attorneys, the power of attorney is difficult to operate and has resulted in some inefficiencies including the following: 1. Attempts to seek collaborative decision making have delayed decision making. 2. An attempt by EDU to unilaterally make a decision about letting the property has resulted in conflict between the attorneys. 3. Decisions made by two out of three attorneys have been resisted by the third attorney. 4. There have now been a number of Tribunal hearings and a number of Supreme Court hearings regarding the management of the estate and disagreements amongst the attorneys.
4. We are of the view that the enduring power of attorney has proved to be an inefficient means of managing KZV's estate and that as his estate is now in a reduced state, it needs to be managed with efficiency and effectiveness. In our view, KZV's financial best interests would be better served by an instrument that provides for clear authority for financial decision-making without the need consultation between conflicted parties and for establishing a majority vote.

Conflicts of interest

1. The Tribunal considered 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. In our view, it is clear from the evidence that the interests of EDU are in conflict with those of KZV in a number of respects as set out below: 1. There is some difference of opinion amongst EDU on the one part and HKU and KYU about the extent to which EDU provided care for KZV prior to the latter entering into aged care. However it is accepted that after KZV entered aged care, EDU remained in the property without paying rent. EDU indicated that the two other attorneys have asked him to pay rent including back rent and he notes that he is in receipt of a Disability Support Pension. In our view it is reasonable that an attorney would seek payment of rent for any period that EDU was residing in the premises without paying rent and was not providing care for KZV. To this extent there is a conflict between the interests of KZV in receiving rent including back paid rent and those of EDU who asserts difficulty in making those payments due to being in receipt of a pension. 2. EDU was asked to vacate by the other two attorneys so that the asset value of the home could be realised. EDU has continued to reside in the home for some 20 months after being advised by the other attorneys of the need to realise the asset value of the property. EDU indicated that he sought a stay of what was thought to be an eviction order because it would render him homeless. We are of the view that in seeking to remain in the home to prevent him becoming homeless, EDU is asserting an interest that is opposed to the interests of KZV in obtaining access to the property. 3. The Supreme Court has found in favour of the Plaintiff in a matter commenced in the name of KZV in which EDU was the defendant. In our view this signifies a conflict of interests between KZV and EDU. 4. The Supreme Court has ordered that EDU should pay costs to KZV. This places the interest of EDU in retaining his funds in conflict with those of KZV to be paid costs in relation to the proceedings. 5. Whilst somewhat vague about the details, EDU said that he is appealing the decision of the Supreme Court. It was unclear whether he was appealing the substantive decision or the costs order, or both. In any case, in our view, entering an appeal against the decision made in favour of KZV places EDU in a position in which his interests conflict with those of KZV. 6. It may be necessary for the attorneys to take action to enforce any costs order made in favour of KZV and against EDU. To this extent there is a direct conflict between the interests of KZV and those of EDU.
3. In our view there are real conflicts in respect of the role of EDU as KZV's attorney and his own interests. In our view those conflicts are such that it is not possible for EDU to pursue his own interests whilst also pursuing the interests of KZV.
4. The conflict of interests might not be fatal to decision making under the enduring power of attorney because it could operate on the basis of decisions made by two of three attorneys. However, as noted above, even operating alone as an attorney, EDU would have a right to access information about KZV's affairs and to seek collaboration with the other attorneys and in turn this could delay or affect decisions being made in the best interests of KZV.
5. In our view, due to the conflict of interests, it is not in the best interests of KZV that EDU remains appointed as his attorney and it is in his best interests that the appointment of EDU be revoked.
6. EDU has submitted that HKU and KYU have not carried out the functions of their appointment appropriately and have unnecessarily incurred costs by placing KZV in an aged care facility and by commencing action in his name in the Supreme Court. In respect of these matters it is our view that: 1. It is not our role to determine whether or not KZV should have been placed in the aged care facility. However in respect of whether the decision represents a breach of the duties of the attorneys by unnecessarily exposing KZV's estate to costs, we place weight on the letter of Dr U as that of a suitably qualified practitioner with an adequate knowledge of KZV to form a view that he needed to be placed in an aged care facility. We do not consider that acting on her opinion constitutes a poor financial decision by the attorneys. 2. The attorneys commenced action in the Supreme Court to obtain vacant possession of KZV's real estate to realise its asset value. We are of the view that the evidence establishes that they had sought to achieve that result without recourse to the Supreme Court and commenced an action there after unsuccessfully seeking collaboration with EDU. We are not in a position to predict whether an outcome might have been achieved by alternative or additional methods of seeking collaboration. However in respect of whether the decision to take action in the Supreme Court was not in KZV's best interests we are satisfied that: 1. At the time the two attorneys took action in the Supreme Court, they were justified in being concerned about KZV's financial circumstances and validly sought the realisation of the value of his major asset. 2. The attorneys took adequate measures to resolve the matter without the expense of court action and their reasonable attempts to secure the cooperation of EDU had failed. 3. The court has found in favour of the Plaintiff in this matter. 4. We are not of the view that their decision ultimately to seek the assistance of the court was one that reflects poorly on their role as KZV's attorneys. 1. EDU has said that he is appealing the decision of the Supreme Court. In our view this is likely to increase the cost to the estate of KZV. As costs have been awarded against EDU it may be possible for some costs incurred by KZV to be recouped
7. Extensive financial documents have been provided to the Tribunal and to EDU. There is no submission of misfeasance in relation to those accounts and we make no finding of such in relation to management of the estate by HKU and KYU.
8. In our view the evidence fails to establish that HKU and KYU have acted other than in the best interests if KZV as his attorneys.
9. Taking into account the evidence and our views set out above we have reached the following conclusions: 1. KZV made an enduring power of attorney appointing three family members and allowing for decisions to be made by a simple majority. In our view it is in the best interests of KZV that the appointment be varied to remove EDU as an attorney. We consider this is in the best interests of KZV for the following reasons: 1. EDU has real conflicts of interest in respect of his role as KZV's attorney. These conflicts are such that it is not in KZV's best interests that he remains an attorney with authority to intervene in KZV's affairs. 2. In our view the actions of HKU and KYU as attorneys do not warrant their removal as attorneys. Nor do we accept that their decisions and actions are such that there needs to be an alternative management strategy established by way of a financial management order. 3. Retaining two of three attorneys: 1. gives some expression to KZV's expressed wish that decisions about his estate be made by two out of the three named family members; 2. renders decision making authority and responsibility be more clearly defined and more easily implemented and therefore more efficient.
10. Having considered the evidence and reached the conclusion noted in the body of these Reasons, it was our decision that the power of attorney should be varied so that the EDU is removed as an attorney and, for the purposes of clarity, the clause referring to a decision being made by a simple majority in the event of three or more attorneys should be removed, leaving the clause requiring unanimity in decision making by the remaining attorneys.

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: 26 March 2021