McD v McD

The hearing

1. At the end of these Reasons for Decision is a list of the parties to the application and the witnesses who attended the hearing.

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: s 36(1), the Act. 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 Act: s 36(2).
2. The Tribunal may make a number of orders relating to the revocation of a power of attorney including, but not limited to, the following:

• An order declaring that the father did or did not have mental capacity to revoke a power of attorney;
• An order declaring that the power of attorney remains valid (either in whole or in part) if the Tribunal is satisfied: 1. the father did not have the capacity necessary to revoke it; or 2. the revocation is invalid for any other reason, for example, the father was induced to make the revocation by dishonesty or undue influence.

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 to conduct a review of the enduring power of attorney in view of the conflicting views between family members regarding the father's capacity to execute the revocation and the evidence of the health professionals regarding his dysphasia and cognitive impairment.
3. We then proceeded, pursuant to s 36(2) of the Act, to consider whether or not to make an order under section 36.

Summary of Issues

1. The basis of TZG's application is that the father did not have mental capacity to revoke the enduring power of attorney on 23 October 2018. She is supported in her application by the mother and QSU. They state that he did not have capacity due to his severe aphasia and dementia.
2. It is apparent that there is significant conflict between the mother, TZG and QSU on the one hand and NZL on the other about the circumstances of the father's move to the nursing home. They all agree there are longstanding family dynamics which contribute to the conflict.
3. There appears to be agreement between them regarding the following:

• The father's stroke in 1996 impacted significantly on him. He has receptive and expressive aphasia which significantly impacts on his ability to communicate;
• Whilst there are differing views as to the extent to which the father has cognitive impairment from vascular dementia, he has cognitive impairment to some degree. It is difficult to assess this due to the impact of his aphasia which makes cognitive assessment difficult;
• The father's ability to communicate fluctuates within the course of a day and from day to day. His capacity fluctuates in this way also;
• The father was an accountant prior to becoming a minister and previously managed all aspects of the father and the mother's financial affairs. The couple's finances have always been held jointly;
• By June 2018, the father was not managing any aspect of his financial affairs. The mother was managing his financial affairs with some assistance provided by QSU;
• Following his move to the nursing home in June 2018, the father consistently expressed unhappiness and a desire to leave the facility;
• There is disagreement between the mother, TZG and QSU and NZL on the other about whether the father should remain living at the nursing home and what is in his best interests;
• The revocation of the enduring power of attorney arose within the context of the father's unhappiness at the nursing home and the disagreement within the family about whether he should remain there;
• Revocation of the enduring power of attorney was regarded by NZL as being necessary to enable the father to move from the nursing home;
• NZL arranged the father's appointment with the solicitor on 23 October 2018 and transported him to the appointment.

1. The mother, TZG, NZL and QSU have provided us with written statements and gave oral evidence at the hearing. Key issues of dispute on the issue of capacity to revoke the enduring power of attorney include the following:

• The extent to which the father had experienced cognitive and functional decline as at June 2018 when he entered the nursing home and by 23 October 2018 when he revoked the enduring power of attorney;
• Linked into this, are differing views as to whether the father had experienced behavioural and psychological symptoms of dementia such as delusions and hallucinations and disturbance in his mood;
• The extent to which health professionals assessing the father have been provided with accurate information by family members on which the they have based their opinion;
• The extent to which the father was able to communicate with the solicitor and understand the nature and effect of the revocation.

The solicitor

1. The solicitor's evidence was to the following effect:

• The father attended the appointment with NZL. He had not previously met the father. The solicitor did not have contact with any other of members of the father's family other than NZL;
• The length of the solicitor's appointment was 89 minutes. NZL remained present throughout the appointment. Consistent with Law Society's Guidelines, the solicitor's preference was to meet with the father alone, however the father seemed nervous about NZL not being present and wanted her to remain with him;
• The solicitor was aware that the father had aphasia from a previous stroke and probable mild vascular dementia. This was because he had a copy of the report from Professor E dated 21 September 2018 which states this. The solicitor was not sure if he had any other reports from health professionals. In any event he relied on Professor E's report. The solicitor relied on Professor E's opinion as stated in his report that the father "does have capacity to express an opinion about where he is to live".
• In view of Professor E's opinion regarding dementia, the solicitor asked some further questions to test the father's capacity. He asked him his identity, date of birth and address. No other questions were identified by the solicitor. The solicitor was not really concerned about capacity because Professor E stated that the father had capacity to express an opinion about where he is to live. He understood that if the father had dementia it was at an early stage only;
• The solicitor did not consider seeking the opinion of Professor E or other health professional more specifically on the issue of whether the father had capacity to revoke the enduring power of attorney. He was content to rely on the report from Professor E before him;
• The solicitor communicated with the father verbally and through written communication. The father also used gestures to communicate, for example, nodding. The solicitor did not consider that he had difficulty communicating with the father. He also states however that the father's aphasia impacted on his ability to communicate. He could not get out words that he wanted and this was frustrating for him;
• The advice provided by the solicitor to the father about the revocation of the enduring power of attorney was that "so long as he had the mental capacity he could revoke the appointment". The solicitor did not provide details of any other advice provided about the revocation;
• The solicitor sought written confirmation from the father regarding his instructions for the revocation. He asked the father in writing whether he wanted to revoke (cancel) the power of attorney dated 10 June 2013 to the mother and TZG, this document relating to financial affairs. The father ticked yes and crossed out no. The solicitor asked him a number of times to make sure that this is what he wanted to do;
• The father wanted to revoke the appointment because he wanted to move from his current nursing home. He was particularly unhappy there and wanted to move. He was in a shared room. The father indicated he wanted to take back control of his own financial affairs;
• There was not really any discussion between the solicitor and the father about any other aspects the father's financial affairs. This was apart from the father not having a bank account solely in his name, but a joint account which was being administered by his wife;
• To the extent that the solicitor was able to have the father relay back to him his understanding of the revocation of enduring power of attorney, this focused on his apparent understanding of what "cancelled" meant;
• The father did not appear to have any difficulty concentrating during the appointment, nor did he show signs of fatigue or agitation;
• Whilst present throughout the interview, NZL did not influence the father's answers and there was no duress;
• The solicitor's assessment was that the father understood what he was doing and was certain that he wanted to do it. The appointment was lengthy because the solicitor wanted to make sure that this was the case;
• It is the solicitor's opinion that the father understood the nature and effect of the revocation of the enduring power of attorney.

1. We asked the solicitor about whether consideration was given to the impact of revoking the enduring power of attorney, if the father was unable to manage his financial affairs. The solicitor did not see this as an issue on the basis that if the father had capacity to revoke an enduring power of attorney he had capacity to make another one. The focus of the solicitor's discussion with the father appeared to be on making sure he knew what revoking and cancelling meant as opposed to discussion more generally about the broader implications of the revocation.
2. The solicitor agrees that capacity is task specific. When we asked him whether there was a difference between capacity to revoke an enduring power of attorney and capacity to express an opinion about where to live, he indicated that this was a possibility but that he did not consider that issue on that basis.

Health Professionals

1. We were provided with a number of reports from health professionals relevant to the issue of the extent of the father's aphasia and cognitive impairment.

Dr D

1. Dr D was the father's treating doctor at the local health district. Dr D is a Senior Staff Specialist. Dr D saw the father in March 2018.
2. Dr D in his reports dated 26 March 2018 and 19 April 2018, indicates that he has known the father for several years and from when he presented with the possibility of dementia. Dr D states that he has no doubt that the father has vascular disease and that if tested, would have mild to moderate dementia.
3. Dr D's reports arise in the context of him having consulted with the father because there were issues with psychogeriatric changes that had occurred. Dr D notes that the father recently had two weeks in respite care and had become quite delirious with significant agitation and had developed visual hallucinations and well-formed delusions. Dr D states that the father's delusions have included that other women are getting into his bed, though it is actually his wife.
4. It is Dr D's opinion that the father's hallucinations and delusions were secondary to his cerebrovascular disease. Dr D states that the father responds very badly to separation with his wife. Following consultation with Dr X, an Old Age Psychiatrist, a recommendation was made that he take Citalopram.

Professor E

1. Professor E is a Senior Staff Specialist at the local health district. Professor E reviewed the father on 27 August 2018 at the nursing home and again on 13 September 2018 at the outpatient clinic at a public hospital. We have before us a copy of his Professor E's reports dated 31 August 2018 and 21 September 2018.
2. Prior to the reviews Professor E had access to the father's existing hospital file.
3. Professor E notes that the father had previously been reviewed by his colleague, Dr D who felt that he had developed dementia. Professor E's reviews occurred in the context of NZL having raising the issue about whether the father had capacity to make a decision about where he lives, noting that he was unsettled at the nursing home.
4. Professor E reports that the father has severe dysphasia resulting from his stroke. On assessment on 27 August 2018, Professor E considered that the father had some limitations with concentration and fluent dysphasia with poor comprehension. He could follow some simple commands.
5. Professor E states that it was not possible to formally test cognition due to the father's dysphasia. It was Professor E's view that the father has dementia probably vascular in nature on the background of longstanding severe communication disability related to his stroke. Professor E states that given the father's severe communication problem it was difficult to assess his capacity with reference to deciding where to live.
6. When subsequently reviewed on 21 September 2018, Professor E reported ongoing disagreement within the father's family about where he should live. Professor E states that the father seemed more alert and able to communicate. It was Professor E's view that the father continued to have significant disability related to aphasia and probably mild vascular dementia. Professor E notes that he the father was stressed and objecting to his current accommodation.
7. In conclusion, Professor E's opinion is that the father "does have capacity to express an opinion about where he is to live".

Dr Y

1. Before us is a report from Dr Y, dated 24 January 2017. Dr Y reports the mother was having difficulty coping with the father's worsening cognitive function. At the consultation, Dr Y states the father was unable to complete even the first part of the Mini-Mental State Examination (MMSE). He notes that the father is able to obey simple commands if they are written. Dr Y states that at moments during the consultation, the father was able to speak fluently and respond, but at other times his speech is fragmented and non-coherent.
2. In conclusion, Dr Y indicates he suspects that the father has a combination of both speech and cognitive pathology. It is Dr Y' view that the father may benefit from pharmacological support.

The psychiatrist

1. Dr Z is a psychiatrist. She saw the father on 19 October 2018 following referral by another general practitioner. NZL attended the appointment.
2. The psychiatrist's assessment arose in the context of the disagreement arising within the father's family about where he should live and the issue of his capacity.
3. By way of background the psychiatrist notes and apparently on the basis of information provided by NZL:

• It was unclear if there had been any actual deterioration in the father's cognition prior to placement at the nursing home;
• Despite his aphasia, the father is reported to have functioned independently in his activities of daily living and have no significant behavioural symptoms or personality disturbance prior to placement;
• The father is unhappy at the nursing home and keeps asking to come home. He is able to express his desire to go home;
• There was no evidence of affective disturbance. However he had been commenced on Citalopram which was making him tired and drowsy;
• Since August 2018, the father had had a few neurofeedback sessions with reported good effect;
• The psychiatrist was shown a video of the father with "very little of the fluent aphasia which is so evident now".

1. On assessment by the psychiatrist, she notes that the father's "speech was fluent, coherent but mostly irrelevant, although he was able to give some relevant answers". The psychiatrist states that although "it was difficult to ascertain thought content due to aphasia, he visibly perked up when Michelle mentioned the possibility of moving into their home".
2. The psychiatrist states that she was only able to test the father's cognition briefly due to his fatigue, however his presentation was more consistent with aphasia rather than dementia. The psychiatrist states that she would suspect any dementia to be mild at best without any evidence of behavioural and psychological symptoms of dementia. Formal capacity assessment is stated to not be possible due to aphasia, however in the psychiatrist's view, the father "was able to comprehend questions related to accommodation and able to communicate non-verbally that he did not want to be in the nursing home".
3. In conclusion, the psychiatrist states she believes that the father has the capacity to make decisions based on her entire assessment and it is clear that he does not want to be placed in a nursing home.

The physician

1. Dr O is a consultant physician in geriatric medicine and stroke medicine ("the physician"). We have his report dated 19 November 2018. The physician's assessment arose following referral from Dr S, general practitioner and the appointment was attended by the mother and TZG.
2. The GP's letter to the physician provides background information including reference to the assessments of Dr D, Professor E and the psychiatrist and conflicting opinions within the father's family about his capacity and accommodation. By way of background, the physician notes:

• Over the last two to three years the father has started deteriorating in his cognitive function. He has had labile mood;
• Diagnosis include possible mild to moderate vascular dementia, significant expressive and receptive dysphasia and intermittent delusional behaviour, seizure disorder and other conditions;
• The father's prescription of Citalopram had been stopped. He was reported to have become more labile and tearful following this.

1. In the physician's opinion it is difficult (if not impossible) to do a formal cognitive screening on the father due to his significant expressive and receptive dysphasia. He considered it was also difficult to assess his mood for this reason, although he probably has depression. The physician notes that whilst the father wears hearing aids, his progressive deafness also makes communication more difficult. His neurodegenerative disorder is progressive.
2. The physician states the father probably has progressive vascular dementia in addition to dysphasia and some frontal lobe dysfunction.
3. In relation to capacity, the physician considers that "it would be hard to assess his capacity to understand power of attorneys and the legal documents etc".

The general practitioner

1. The GP is the father's general practitioner ("the GP"). In evidence before us are her letters sent to the physician and Professor E dated 19 October 2018 and 16 November 2018 respectively.
2. These note a history of the father experiencing hallucinations whilst in respite care which continued after he went home. These included seeing people that were not there and accusing his wife of seeing other men. One night he thought his wife had left him and there were two other women in his bed.
3. The GP details increasing difficulties experienced by the mother caring for the father at home and her "love and grief for her husband's situation and not being able to care for him anymore at home".

The speech pathologist

1. Ms M is a speech pathologist ("the speech pathologist"). At the request of NZL, the speech pathologist assessed the father on five occasions and she has provided a report dated 28 November 2018.
2. The speech pathologist states in her summary: [The father] presents with severe predominantly expressive fluent aphasia initially sustained following a stroke, 23 years ago. The deterioration in his language abilities are likely a reflection of his diminished cognitive capacity affecting his ability to manage his aphasia (though may also associated with a progressive aphasia. Either way there is no doubt that [the father] is experiencing severe communication issues and at least mildly impaired cognition.
3. Further the speech pathologist indicates:

• There were incidences of perseveration which appeared to be more cognitive than apraxia or agnosia;
• He shows some confusion in interpreting events and conversations at times consistent with cognitive impairment;
• His verbal output was fluent but often ungrammatical, slightly off topic and difficult to follow. He uses gestures to communicate;
• He was not able to reliability verbalise "yes" or "no" to identify object names;
• It is unclear how much detail he understands and how much he retains, though he certainly recalled visiting her office from week to week;
• He was better at following non-verbal comments and understanding tasks though still had challenges. This was indicative of underlying cognitive impairment and could not be attributed solely to aphasia;
• Whilst having a definite opinion about his living arrangements, the father had some confusion about events and people about this.

1. The speech pathologist's impression is that the father "possesses the cognitive ability to form and express an opinion of where he would prefer to live given a limited choice".
2. The speech pathologist states that she "does not believe that [the father] has the capacity to make financial decisions and trying to involve him in these at this point may just cause unnecessary stress".

The psychologist

1. Mr C is a psychologist ("the psychologist") and before us is his Neurofeedback Evaluation Report relating to the father's program of neurofeedback undertaken with the assistance of NZL following him moving to the nursing home from September 2018. The psychologist states he saw improvements in the father's general mental health and stamina and speech with the program. The use of Citalopram was identified by the psychologist as having an adverse effect on the father's ability to participate in the programme due to resulting fatigue.

The physiotherapist

1. Ms A is a physiotherapist ("the physiotherapist"). In her report dated 7 November 2018 she states she has been seeing the father weekly over four weeks.
2. The physiotherapist notes the father's altered gait pattern and decreased balance. She notes that has great difficulties with communication and becomes very distressed when left alone. He greatly enjoys the company of his family.

Aged Care Assessment Team (ACAT) Assessment Report

1. The father was assessed by an ACAT assessor on 3 November 2017 in the company of the mother. The assessor notes that the father has a receptive and expressive language disorder along with declining cognition and physical health. The mother reported that the father was experiencing anxiety, verbal agitation and episodes of sun downing of an evening.

Dr T

1. Dr T's report dated 14 March 2018 notes referral for CT scan of the brain in the context of the father having confusion and hallucinations and on a background of prostate cancer. In addition to the extensive old infarct the CT scan showed changes consistent with chronic small vessel ischemia.

The father

1. With a view to assisting the father's participation in the hearing and with the agreement of the parties, we provided him with questions in writing. The parties indicated that this would assist the father in providing his evidence.
2. The written questions were shown sequentially to the father and read to him. The father was assisted by the use of a hearing loop.
3. We asked the father questions in relation to the enduring power of attorney dated 10 June 2013, revocation and other related questions. It was readily apparent that he was unable to provide responsive answers. His evidence was a jumble of words and phrases without coherent meaning. It was consistent with the other evidence before us that he has severe aphasia. It was unclear as to the extent to which his cognitive impairment was a contributing factor.
4. NZL emphasised that the father's presentation at hearing was different to when he attended the solicitor's office and revoked the enduring power of attorney. NZL emphasised that the father's capacity to engage in conversation fluctuated and had deteriorated since October 2018.

The mother

1. The mother considers that the father did not have the understanding needed to sign the revocation of enduring power of attorney. In a written statement to the Tribunal and her oral evidence, she described a deterioration in the father's cognition. She states that about two years ago, the father began to lose interest in daily activities, stopped using the computer and became more dependent on her for initiating any activities. The father's anxiety increased, particularly if she was absent for any period of time and he became less able to attend to his own personal care. The mother details steps taken by her and TZG to support the father with activities and therapies and support services enlisted. The mother states that the father began to show signs of being delusional and having hallucinations. She states that was particularly evidence in around March 2018 when the father went to respite care when the mother required a medical procedure. She states the father became aggressive towards his family.
2. The mother states the father's hallucinations and delusions continued after he returned home. For example, she states the father came to her one night and said there were three men in their bed. On another occasion, the father stated that the mother was leaving at night and other women were sleeping in their bed. In March 2018, he was diagnosed with dementia.
3. The mother outlines increasing difficulties experienced managing the father's care at home leading to the difficult decision that he move to an aged care facility. The mother agrees that the father was expressing opposition to living at the nursing home as at October 2018. She states that their separation after so many years of marriage has been difficult for them both.

TZG

1. TZG states that the father did not have capacity to understand the revocation of enduring power of attorney that he signed on 23 October 2018. TZG states that the father had experienced progressive cognitive decline following up to and subsequent to his diagnosis with dementia in March 2018. TZG states that the father ceased using his computer and had difficulties using his mobile phone and iPad. She states that by October 2018, he was not really using these devices except to look at photos.
2. TZG concurs that by March 2018, the father was experiencing behaviours which had progressed to hallucinations and delusions. The father is said to have had increasing difficulty with daily activities and care.
3. Around 18 months ago TZG took leave from her work, two days per week to assist the mother in caring for the father due to his decline.
4. Consistent with the evidence of the mother and QSU, TZG states that the father had ceased managing his finances at all well before June 20`18. The mother generally managed their finances for them with some assistance from QSU. TZG notes that this arose within the context of the father's deterioration for example, he was unable to work out paying for goods using his credit card without assistance.
5. TZG states that when she showed the father the revocation of the enduring power of attorney two days after he had signed it, he had no recollection of the document and was unable to say what the document was.
6. It is TZG's view that the father was unable to comprehend the revocation or the ramifications of signing the document.
7. TZG states that the father has an inconsistent memory. She agrees that his capacity to engage in conversation generally fluctuates. It is TZG's belief that the father was solely focused on leaving the nursing home when he signed the revocation document. She equated the revocation in the father's mind as a "get out of gaol card" which would enable him to return home to be with the mother. TZG states that the father's distress will not be ameliorated by moving him to another aged care facility because he wants to return home. This however is not viable due to his care needs.
8. TZG states that the father was influenced by NZL who is opposed to him living at the nursing home and who was the driving influence behind the decision to meet with the solicitor and the revocation of the enduring power of attorney. She states NZL saw this as instrumental to arranging the father's move from the nursing home.

QSU

1. It is QSU's view that the father did not have the mental capacity to understand the nature and effect of the revocation of enduring power of attorney. QSU states that in view of the father's severe dysphasia and dementia he could not understand the document nor the wide-ranging ramifications of signing the document. QSU considers that NZL was the driving influence behind the revocation.
2. QSU agrees that the father expressed opposition to living at the nursing home, wanting to be at home with the mother. He considers that the father's unhappiness at the nursing home was manipulated by NZL and was behind him signing the revocation.
3. Consistent with the evidence of the mother and TZG, QSU details the father's decline in the period leading to him moving to the nursing home and difficulties being experienced by the mother in caring for him. He details delusions and hallucinations being experienced by the father. QSU also stresses that the father's opposition is to being in an aged care facility as opposed to the choice of aged care facility.

NZL

1. NZL's view is the father had capacity to understand the nature and effect of the revocation of enduring power of attorney. She states that the decision to revoke it was his decision and his alone and arose after months of agonising over his situation at the nursing home, his loneliness, sense of abandonment, an environment lacking in stimulation. NZL states the father was well aware of the ramifications of his decision and that it grieved him to revoke the revocation. She agrees that she spoke with the father on the issue and provided him with support. She, however, stresses that the father made his own decision about the revocation.
2. NZL states in discussions with the father, he has recalled meeting with the solicitor and the revocation of enduring power of attorney and has stated "forced to do" when talking about him having no option but to cancel it.
3. NZL states that the father had positively responded to neurofeedback undertaken prior to the revocation which had enhanced his capacity and ability to communicate.
4. NZL states she was not sure if she provided the solicitor with a copy of the report from the psychiatrist. She was not sure if she had any other reports.
5. NZL takes issue with the evidence of the mother, TZG and QSU regarding the father's capacity and behaviour. She states that for family members to report to Dr D and others that he has had hallucinations and delusions with the inference that he has severe dementia, is to perpetuate a lie with significant consequences for how people react to him. NZL stresses the father has capacity to communicate and be involved in decisions if care and time is taken to communicate with him.
6. NZL's evidence is that there has been a decline in the mother's relationship with the father. She states that the mother, TZG and the father treat him with dismissiveness and disrespect stemming from outmoded notions of dementia. NZL queries the level of support provided by the mother both prior to and after the father's move to the nursing home. She states the mother has had difficulty coping herself. NZL is critical of the decision to move the father to the nursing home which she states was done with deceit and without due respect to his own rights.
7. NZL stresses that the father's views about wanting to leave the nursing home should be respected. She states that he should move to alternative accommodation. She has raised residential facility A and residential facility B as possible alternatives. She states the father expressed that he wanted to move to residential facility A.
8. NZL sought to play a video at the hearing of the father which she took on a date following the revocation. She indicated that this was relevant to the father expressing his views about the nursing home leading to his decision to revoke the enduring power of attorney and ability to engage in conversation more fluently. We decided not to have the video played the hearing. There were practical considerations relating to how this evidence was to be adduced, issues about whether there had been compliance with directions by the Tribunal, fairness between the parties as TZG also indicated she would have sought to adduce video evidence and time factors at the hearing.
9. Whilst we took these matters into consideration, primarily our decision was based on the issue of relevance and whether the video would add anything further. This was because it was not in issue that the revocation arose in the context of his expressed opposition to living at the nursing home and that he felt forced to revoke it to leave the nursing home. Further it was not in issue that the father's capacity and ability to engage in conversation fluctuated at around the time of the revocation and has deteriorated since that time.

Statements from family friends / colleagues

1. We were provided with statements from:

• Ms V, dated 3 September 2018;
• Mr R, dated 10 January 2019;
• Reverend E, dated 15 January 2019.

1. This material is consistent with the other evidence before us regarding the father's unhappiness and opposition to living at the nursing home and differences in opinion on issues relating to his care and more generally.

Did the father have the mental capacity to revoke the enduring power of attorney?

1. It is not in issue that the father has aphasia impacting on his ability to communicate and had cognitive impairment, to some degree, at the time he revoked the enduring power of attorney. NZL contends that any cognitive impairment arising from dementia was mild and did not adversely impact on the father's capacity to understand the nature and effect of the revocation. She stresses his capacity to make decisions and express himself.
2. In evidence before us are many reports from health professionals on issues relating to the father's capacity generally. None of the health professionals expressly comment on the father's capacity to revoke an enduring power of attorney. A consistent theme in the evidence of the health professionals is the difficulty presented in assessing the father's capacity due to his aphasia. It is the physician's opinion that it would be hard to assess his capacity to understand power of attorney and legal documents.
3. At the highest, the psychiatrist considered that the father had capacity to make decisions, noting that he had made it clear that he does not want to be in a nursing home. Professor E's opinion was more qualified, stating that the father had capacity to express an opinion about where he is to live. Professor E also notes that the father continued to be intermittently stressed at being at the nursing home and objected to his accommodation there.
4. Professor E does not state that the father had capacity to make the decision about his accommodation but rather states he has capacity to express an opinion about where he is to live. There is a difference.
5. We prefer the evidence of Professor E over that of the psychiatrist. Significantly Professor E had access to the hospital file at the time he assessed the father. The father had been a patient of that service for many years. Professor E assessed the father on two occasions. In contrast, the psychiatrist states she was only able to test the father's cognition briefly due to fatigue. She appears not to have had information from any treating doctors.
6. Significantly the psychiatrist based her opinion on the assumption that the father was functionally independent prior to placement in the nursing home. She states that it was unclear whether there was any actual deterioration in cognition prior to placement. Further the psychiatrist proceeds on the assumption that there was no evidence of behavioural or psychological symptoms of dementia. These assumptions appear based on information provided by NZL to the psychiatrist. The focus of the psychiatrist's interactions with the father appears based on expressions of his opinions about his accommodation and his opposition to being in a nursing home.
7. We prefer the evidence of the mother, TZG and QSU over that of NZL on the issue of whether the father was experiencing behavioural and psychological symptoms of dementia including hallucinations and delusions. NZL's contention that their detailed evidence about this could be explained through relationship breakdown, problems in communication or a manifestation of the mother's inability to cope was not persuasive. Their evidence is supported by contemporaneous evidence from Dr D who was the father's treating doctor at the time and other health professionals. As indicated in the report from Dr T, investigations were being done in March 2018 on a background of the father's confusion and hallucinations. Similarly, the ACAT assessor in November 2017 notes the father's declining cognition, anxiety, agitation and episodes of sun downing.
8. Further we prefer the evidence of the mother, TZG and QSU over that of NZL about the extent otherwise of the father's cognitive and functional decline prior to the revocation. Their evidence is detailed and again supported by the reports from the health professionals. The father's worsening cognition is noted by Dr Y as early as January 2017. The ACAT assessor notes the father's declining cognition and physical health in November 2017.
9. Whilst we accept that the solicitor took care to ensure that the father understood the revocation, his evidence focused on ensuring that the father understood what "cancelled" and "revoked" meant and that the revocation accorded with his expressed wishes. The solicitor was unable to detail to us what steps otherwise he took to ensure the father's comprehension.
10. It is apparent from the evidence of the health professionals that the father's aphasia impacts on his ability to communicate. Whilst NZL downplays the significance of his aphasia, the weight of the evidence is that his aphasia is severe. It is difficult to see how this did not impact substantially on the communication between the father and the solicitor. This is particularly given the evidence regarding the father having dementia also. This is even taking into account the evidence from NZL and the psychologist regarding the father's positive response to neurofeedback sessions.
11. Of significance is the evidence from the speech pathologist. The speech pathologist assessed the father during five weekly sessions prior to November 2018. NZL speaks highly of the speech pathologist's assessment, stating that she "is the one person who has spent a concentrated amount of time getting to know my father, his personal communication style and abilities".
12. The speech pathologist is supportive of the father being able to express an opinion about his accommodation however considers that he does not have capacity for financial decisions. The speech pathologist's assessment is consistent with the father having cognitive impairment significantly impacting on his capacity and reliability which cannot just be attributed to aphasia. The speech pathologist states that it is unclear how much information the father retains and that he shows confusion in interpreting events and conversation at times. Even on the issue of his living arrangements, on which the father is noted to have a definite view, she thought he showed confusion about events and people.
13. Whilst the solicitor turned his mind to the issue of capacity, we consider that he placed undue reliance on the report of Professor E that the father had capacity to express an opinion about where he is to live. Insufficient regard was given to capacity being task specific and whether he actually had capacity to revoke an enduring power of attorney.
14. We were not persuaded by the solicitor's evidence that the father understood the nature and effect of the revocation in view of the evidence from the health professionals in its entirety. The weight of the evidence supports a finding that the father was just focused on leaving the nursing home and this is why he signed it and that he did not understand the ramifications of the revocation. This is supported by the solicitor's evidence that there was really no discussion about the father's financial affairs beyond that he did not have a bank account solely in his name but a joint bank account being administered by the mother. The solicitor states that the father wanted to take back control over his finances, a contention that belied the reality that he had not managed his finances for some time and was incapable of managing them currently.
15. We accept that the father's ability fluctuates within the course of a day and from day to day. Whilst he has a diminished capacity to retain information, we accept NZL's evidence that he recalled meeting with the solicitor and spoke of having been "forced to do" in reference to the revocation as outlined by her. We also accept TZG's evidence that when she spoke with the father two days afterwards; he was unable to recall or explain the document. Both are consistent with his fluctuating memory and capacity.
16. NZL's evidence regarding the father's capacity to revoke the enduring power of attorney, in our view, focuses on his ability to express a preference about his accommodation as opposed to detailing any broader understanding of the revocation or impact more generally of the document.
17. In reaching our conclusion, we have not placed weight on the father's presentation at the hearing on 27 March 2018 taking into account the passage of time since the revocation and NZL's concerns regarding his deterioration since 23 October 2018 and fluctuating presentation.
18. Overall, we considered that the weight of the evidence supported a finding that the father did not have mental capacity to revoke the enduring power of attorney. Due to the combined effects of aphasia and cognitive impairment, our view is that he did not understand the nature and effect of the document.

Should the Tribunal make any orders?

1. In view of the conclusion that we have reached as outlined above, we make an order declaring that the father did not have mental capacity on 23 October 2018 to revoke the enduring power of attorney dated 10 June 2013.

What did the Tribunal have to decide?

1. The questions to be considered by the Tribunal are:

• Is the father incapable of managing his affairs?
• Is there a need for another person to manage the father's affairs and is it in his best interests for a financial management order to be made?
• If so, who should be appointed financial manager?

Is the father incapable of managing his affairs?

1. In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person's own capacity to do what they are proposing to do [58]. White J used a "rational appreciation" of assets test to determine a person's capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances: … is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter [26].
2. In PB v BB [2013] NSWSC 1223, Justice Lindsay confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]: Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack "mental capacity" or be "mentally ill"; or (b) particular reasons for an incapacity for self-management.
3. The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]): Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests? … [A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
4. In considering whether the person is "able" in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events;
• support systems available to the person; and
• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498 at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579 at [309].

1. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20].

The father's views

1. We did not seek to adduce evidence from the father regarding the application in view of his presentation when giving evidence in relation to the review of the enduring power of attorney. When giving evidence in relation to that application, the father's answers were non responsive. He was unable to provide coherent evidence to us.
2. We canvased with the mother, NZL, TZG and QSU whether they agreed with this approach. They did not propose that we ask the father any further questions in the circumstances.

Views of other family members

1. The mother, NZL, TZG and QSU all submitted that the father was incapable of managing his financial affairs.
2. The uncontroverted evidence was that the mother has been managing the father's financial affairs for some time with some assistance from QSU. His financial affairs will be detailed later in these reasons.

Health Professionals' evidence

1. The evidence of the health professionals was discussed in detail in relation to the review of the revocation of enduring power of attorney.
2. We do not propose to repeat it here except to say that it establishes that the father has severe communication difficulties arising from aphasia and has cognitive impairment, consistent with vascular dementia.

Tribunal's finding

1. Taking the above matters into consideration, we were satisfied that the father is incapable of managing his financial affairs.

Is there a need for a financial management order and is it in the father's best interests that an order be made?

1. Mr and the mother have been married for 61 years and their finances are joint. QSU's application to the Tribunal sets out in detail their income, assets and liabilities. They receive income by way of an annuity and an aged pension along with some interest from term deposits. Their monthly income is approximately $5000. They have paid $380,000 for the retirement village unit and $375,000 to the nursing home for the father's residential accommodation deposit. The value of the annuity and savings are in the vicinity of $225,000. Their fixed major monthly expenses are approximately $2800. A significant portion of their expenses are medical expenses.
2. The father was an accountant prior to becoming a minister and previously managed all aspects of the father and the mother's financial affairs. As the father became incapable of managing his financial affairs, the mother began to manage the couple's finances with assistance being from QSU. He has assisted them in obtaining financial planning advice and overseen their financial affairs. The father and the mother have generally managed within their budget.
3. NZL's concerns about financial decisions for the father have arisen following his move to the nursing home in June 2018.

Accommodation

1. In issue is whether the nursing home was selected for the father essentially for financial reasons. NZL states that the mother chose the nursing home because it is "cheap" and that she refuses the father moving to alternative accommodation on the basis that it is too expensive. NZL states that alternative accommodation such as residential facility A and residential facility B have been rejected on this basis. NZL is highly critical of the nursing home stating that it is an "outdated, old fashioned and inadequate" facility for the father's needs and wants. NZL is critical of the father being in a shared room at the nursing home.
2. NZL states that there has been a breakdown in the mother's relationship with the father. She states that she has difficulty coping with him and does not adequately communicate with him or understand his needs. NZL states she is disinterested and is not visiting the father often.
3. The mother provided a detailed explanation as to why she chose the nursing home. She denies that the primary consideration has been financial. She details the steps that she took to investigate options and the information available to her at the time she chose the nursing home. She states that she chose the nursing home on the basis that it would provide good care and that it was close-by to the retirement village to facilitate her visiting the father regularly. This is important as the father experiences difficulty arising from their separation.
4. The mother states that she sought financial advice from Mr M ("the financial advisor") prior to making the decision about the nursing home. The mother said that following this she was aware of a budget figure for aged care for the father that she needed to work around in making a decision.
5. The mother accepts that the nursing home is an older style facility however insists that it provides good care for the mother and speaks highly of staff there.
6. She describes the father's move as being a difficult time for them both, having been separated after 61 years of marriage.
7. The mother remains strongly committed to her husband and loves him deeply. Her evidence is that she remains integrally involved in his care.
8. Consistent with the mother's evidence, the evidence of TZG and QSU is that the nursing home was not chosen because of financial reasons but because it was considered to be the most suitable facility. They stress the importance of the nursing home being close by to the mother. QSU states that this is particularly important as it is likely the mother will not be driving for much longer because of her advancing age.
9. The father states that alternative options such as residential facility A and residential facility B have been costed by the financial advisor. He costed them as NZL was proposing them as alternatives. Whilst they have been identified as more expensive options, he stresses that this is not the basis for the decision that the father should live at the nursing home. Both QSU and TZG stress the importance of the father and the mother's marital relationship and that the proximity of their respective accommodation will facilitate their ongoing relationship. They agree with the mother's assessment that the facility provides good care.

Therapy and other interventions

1. NZL states that her family "has kept tight reigns on the purse strings in relation to her father's needs". She states that it has been necessary for her to fund services and other interventions to support the father's needs. For example, NZL states that she has paid for speech pathology, neurophysio and neurofeedback/intranasal light therapy. NZL states that she paid for a more robust walker to assist his mobility. NZL states that she has paid approximately $10,000 from her own money to support him.
2. The mother, TZG and QSU deny that the father's needs have been neglected in any way. The mother and TZG in particular detail support provided for the father including a physiotherapist and diversional therapist. TZG is paying for a physiotherapist. Their evidence is that they are open to suggestions made by NZL regarding expenditure for the father for therapies and otherwise. QSU states that NZL does not consult but simply goes ahead herself.
3. QSU also notes that the mother has paid for items at NZL's request, for example, a new hearing aid.

Clothing

1. NZL states that the father has not had adequate clothing since moving to the nursing home. The mother and TZG explained that there has been a problem with clothes shrinking in the industrial dryer used at the nursing home. They state they have replaced clothes and the mother keeps some of his good clothes at home and takes them in when he needs them.

Family dynamics and financial decisions

1. NZL, the mother, TZG and QSU agree that there are family dynamics and conflict regarding decisions for the father.
2. According to NZL, the mother, TZG and QSU "do not want to give up their positions and control and unilateral decision making particularly with a focus on excluding me". NZL states that this is to the detriment of the father and they lack insight into his needs and wants.
3. QSU and TZG contend that there are longstanding difficulties in NZL's relationship with the mother. They say NZL fails to adequately respect the mother's role in decision making and that her short and long terms needs should also be taken into consideration. They are critical of what they regard as NZL's manipulation of the father's distress arising from his move to aged care. They say that the father's distress will not be ameliorated by moving to another aged care facility.
4. NZL sought to be appointed either solely or jointly as financial manager with QSU. Alternatively, she sought that the NSW Trustee and Guardian be appointed as an independent decision-maker about his finances NZL accepted that whilst this will mean that her parents' finances are separated, she considers this to be necessary to protect the father's interests and welfare. NZL considers that this is a better way forward to ensure her views will be taken into account. Alternatively, NZL is keen on the family pursuing family mediation.
5. NZL states she is motivated to promote the father's interests and welfare, particularly with regard to therapies and support. In her view it is crucial that more suitable accommodation be obtained for him.
6. Whilst clearly there are difficulties in communication between NZL and the mother, TZG and QSU it appeared to us that they do take into account her views and were prepared to continue to do this. They do not accept however her proposal that he move to alternative accommodation.
7. NZL said that if she is appointed she will need to get all of the details of the father's finances and likely seek further financial planning advice. NZL accepts that this would involve duplication as financial advice has already been obtained from the financial advisor.
8. The mother, TZG and QSU's primary position was that a financial management order should not be made. They sought that the arrangements already in place to support the father in the management of his finances continue and with the existing enduring power of attorney in place. They dispute that his accommodation is unsuitable or that his unhappiness will be remedied by changing this or that his needs are unmet.

Tribunal's finding

1. We decided that a financial management order was neither necessary nor in the father's best interests. We do not accept that the nursing home was chosen because it was "cheap", nor that that there is "too tight a hold on the purse strings" such that the father's needs are not being met. The evidence of the mother and TZG demonstrates a lot of concern over an extended period to ensure that he receives the necessary medical and other allied health therapy and support. TZG along with NZL has arranged therapies and other interventions for him. We accept the mother and TZG's detailed and reasonable explanation regarding his clothing.
2. We accept that there is a close and continuing relationship between the father and the mother. This is consistent with observations of health professionals, such as the father's general practitioner, the GP and the speech pathologist, and our own observations during the hearing. There was clear affection expressed between them at the hearing. We do not accept NZL's evidence on this issue arguing the contrary position.
3. We accept the evidence of the mother, TZG and QSU regarding the reasons why the nursing home was chosen and the importance of this facility being located close by to the retirement village where the mother lives.
4. We gave consideration as to whether a financial management order was necessary and in the father's best interests to provide NZL with a "greater voice" in decision making about the father's financial affairs. She clearly seeks to support and promote the father's rights and ensure that his views are properly taken into account. She is concerned that he receives a high level of support to promote his care and overall quality of life. In the event that the NSW Trustee and Guardian was appointed or alternatively, a private manager under the directions and authorities of the NSW Trustee and Guardian, there would be scope for the involvement of an independent decisionmaker.
5. In our view any potential benefit of this was outweighed by a number of countervailing considerations pointing to their being no need for an order and that an order was not in the father's best interests. These considerations include:

• The father previously chose to appoint the mother and TZG under an enduring power of attorney in 2013;
• As the father's cognitive and functional capacity declined, the mother assumed responsibility for their joint finances which we accept accorded with the father's wishes. This is consistent with their long and close marriage and support shown for one another;
• We were not persuaded that financial decisions were being made contrary to the father's best interests. The weight of the evidence is that the mother has acted reasonably and sought advice on financial matters. She has sought financial advice from an aged care specialist organisation. She is well supported by QSU who has substantial professional experience in financial administration and management;
• Whilst there is family conflict, we accept that the mother, TZG and QSU have and will take NZL's views into consideration, despite difficulties with communication. We were not persuaded that the father's needs are being neglected currently;
• There is an enduring power of attorney already in place to support the father if and as required;
• The making of an order will result in fees being incurred and the imposition of an additional administrative burden.

1. In reaching our conclusion, we took into account the principles outlined in s 4 of the Guardianship Act 1987 (NSW). Of particular relevance is NZL's focus on promoting and respecting the father's rights and decision-making capacity and ensuring that his views are taken into account. Whilst we placed some weight on this consideration, we were not persuaded this outweighed the other considerations as outlined against making an order.
2. There is already family conflict which we considered would not be lessened by the making of an order. Further as outlined above we were not persuaded that current arrangements for decision making are contrary to promoting the father's interests and welfare or that his needs are not being met. In our view his welfare and interests are better promoted by not making an order.
3. Taking these matters into consideration we decided to dismiss the applications for a financial management order for the father.

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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 September 2019