Powers of Attorney Act 2000, ss 30, 32, 32AC, 33, 38;

Tasmanian Civil and Administrative Tribunal Act 2020, s 10.

CX (Federal Jurisdiction Issue) [2025] TASCAT 158;

JK (Request to Withdraw Application) [2022] TASCAT 21;

Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51;

Scott v Scott [2012] NSWSC 1541;

SFKD (Review Enduring Powers) [2014] TASGAB 12;

Szozda v Szozda [2010] NSWSC 804.

The decision has been anonymised for the purpose of publication

1. On 9 July 2025, we reserved our decision (subject to the provision by the parties of final written submissions) in respect of an application made by HI (the applicant) seeking review of the enduring power of attorney (EPOA) made by his father, KI (the donor) on 11 October 2024.
2. The final written submission was received on 22 July 2025.
3. On 18 August 2025, we determined that the application should be dismissed. These are our reasons for that determination.

1. The donor is a 90-year-old man who has lived in a residential aged care facility in regional Tasmania since late October 2024. The donor's wife of 51 years passed away in early October 2024 following a fall at their home.
2. In addition to HI, the donor and his late wife have another child, KFI, who was appointed as attorney under the EPOA (the attorney).
3. The donor was admitted to a public hospital on 1 October 2024, being the same date of his wife's accident at the family home. Tragically, the donor's wife passed away on 5 October 2024.
4. The donor was transferred to a private hospital on 4 October. On 11 October 2024, the donor made the EPOA that appointed KFI as his attorney.
5. The EPOA was prepared and witnessed by XK, solicitor. The attorney asserts that she was asked by her father to arrange for the EPOA to be prepared and she contacted XK who was known to her professionally. XK attended with a draft of the EPOA at the private hospital on 11 October 2024 and met privately with the donor. A summary of XK's evidence about this event is set out later in these Reasons. Suffice to say as part of this background that XK formed the opinion that the donor understood the nature and effect of the EPOA. The donor signed the document and XK and an employee of his firm witnessed the donor's signature.
6. The attorney accepted her appointment on the same date. The enduring power of attorney was registered on 21 October 2024.
7. Also on 11 October 2024, the donor made an enduring guardianship appointment that appointed KFI as his enduring guardian. KFI also accepted this appointment on the same date. There was no application before us concerning the enduring guardianship appointment. We therefore made no findings about the making or operation of this appointment other than to note that the applicant expressed the view that he had no reservations about the personal care that his sister had provided to their father since moving to the regional city and aged care facility in which he continues to live.
8. The donor was discharged from hospital on 29 October 2024 and, on the same date, was transported by the attorney's partner to the aged care facility where he continues to live and which is close to where the attorney and her family live. From his date of admission to the end of December 2024, the donor was in respite care at the aged care facility. In early January 2025, he became a permanent resident.
9. At the request of the attorney, on 17 January 2025 an assessment of the donor was undertaken by Dr FS, Consultant Psychiatrist. The attorney arranged for the assessment "for the purpose of determining [the donor's] capacity to make decisions concerning his remaining in residential care, the location of the place of care and the disposal of his residential property..." The Consultant Psychiatrist's report of his assessment of the donor states that:

A Mini Mental State Examination (MMSE) was administered as a standardised brief approximate measure of dysmnesia and dementia... His MMSE score was 16/30. > > [The donor] has a general understanding of his right to decide where he is to live, but appears to have already delegated that decision and accepted the status quo. He would prefer a placement in or near [redacted] but that is a matter of long-term familiarity, and he recognises the value of proximity to his daughter in [regional Tasmania]. He does not understand why he cannot practically return home and live with his son. > > [The donor] displayed evident difficulties retaining information, perseverating on issues that had engaged his attention or emerged saliently from his long-term memory. He could express general preferences regarding his placement and the competing advantages and disadvantages of the alternatives, but he has no strong emotional commitment to any of the alternatives and could announce no substantive decision. He appears to have already delegated the decision. > > It is my opinion that his decision-making capacity is substantially impaired and effectively lacking for the matters under consideration. His evident incapacity for decision-making is a product of an undoubted dementia and the lacunar rather than continuous memory impairment is consistent with a vascular component or a recent unrecalled systemic illness with delirium.

10. The attorney engaged the Consultant Psychiatrist again in May 2025 to provide an updated assessment. In a report dated 22 May 2025, the Consultant Psychiatrist noted that the donor scored significantly lower on a MMSE than his score on the same test in January 2025 (11-12 out of 30 in May 2025 compared with 16/30 in January 2025). The Consultant Psychiatrist expressed the opinion that by reason of dementia, the donor lacks capacity to make decisions concerning his care and place of residence. He also lacks capacity to make a decision concerning his property.

1. On 1 May 2025, the applicant lodged an application to review the EPOA. The application challenged both the donor's capacity to make the EPOA and also the manner in which the attorney had exercised her authority as attorney.
2. The orders sought by the applicant include:
   • A declaration that the donor did not, at the relevant time, have mental capacity to make a valid EPOA
   • The appointment of a new attorney
   • A determination about the operation of the EPOA
3. We understood the applicant's primary position to be that his father did not have the capacity to make the EPOA, the EPOA should be revoked and an administration order should be made that appoints the applicant as his father's administrator. Alternatively, if the EPOA is not revoked, then the applicant should replace his sister as attorney.
4. The applicant believes that a review of the EPOA is necessary as all attempts to discuss the situation as a family have failed. He believes that he can act in his father's best interests and in accordance with his father's true wishes and preferences if given the opportunity to be a decision maker.

Statutory framework - Review of enduring powers of attorney

1. Part 4 of the Powers of Attorney Act 2000 (Tas) (POA Act) contains the provisions relating to enduring powers of attorney.
2. The degree of understanding a donor requires to create a valid EPOA is set out in s 30 of the POA Act.
3. Section 30(2)(a) and (3) provide as follows:

(2) A deed or instrument is not effective to create an enduring power of attorney unless - > > (a) the donor understands the nature and effect of the deed or instrument; and... > > (3) For the purposes of subsection (2)(a) , a donor is taken to understand the nature and effect of a deed or instrument only if he or she understands the following matters: > > (a) that the donor may, in the enduring power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power; > > (b) when the power begins; > > (c) that, once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the enduring power of attorney; > > (d) that the donor may revoke the enduring power of attorney at any time when he or she has the mental capacity to do so; > > (e) that the power the donor has given continues even if the donor subsequently loses his or her mental capacity; > > (f) that the donor is unable to oversee the use of the power if he or she subsequently loses mental capacity.

4. Section 32 of the POA Act sets out the duties of an attorney:

32. Duties of attorney under enduring power of attorney > > (1) An attorney under an enduring power of attorney, during any period of mental incapacity of the donor - > > (a) is taken to be a trustee of the property and affairs of the donor according to the tenor of the power; and > > (b) must exercise his or her powers as attorney to protect the interests of the donor - > > and, if he or she fails to do so, is liable to compensate the donor for any loss occasioned by the failure. > > (1A) An attorney, in so far as doing so will not conflict with the attorney's duty under subsection (1) to protect the interests of the donor, must at all times exercise his or her powers under an enduring power of attorney as far as is possible and reasonable in the circumstances - > > (a) in the best interests of the donor; and > > (b) in consultation with the donor; and > > (c) taking into account - > > (i) the wishes of the donor, in so far as those wishes have been, or can be, ascertained; and > > (ii) what would be reasonably likely to be the wishes of the donor, if he or she were not subject to a mental incapacity. > > (1B) For the purposes of this section, an exercise of a power under an enduring power of attorney is not to be taken to constitute a failure to protect the interests of the donor, and is to be taken to be in the best interests of the donor, if - > > (a) it is an exercise of a power that the donor would have been likely to make if he or she were not subject to a mental incapacity; or > > (b) the exercise of the power consists of providing for those persons who the donor would expect to provide for, if he or she were not subject to a mental incapacity. > > (2) An attorney under an enduring power of attorney is not competent to appoint another person to perform any functions or exercise any powers in his or her capacity as such. > > (3) An attorney under an enduring power of attorney must keep any property of the donor (apart from property held by the attorney and the donor as tenants in common or joint tenants) separate from property of the attorney.

5. Section 33 of the POA Act sets out the power of the Tribunal to make orders in respect of enduring powers of attorney:

33. Power of Tribunal to make orders in respect of enduring power of attorney > > (1AA) In this section, a reference to an enduring power of attorney includes a reference to a purported enduring power of attorney. > > (1) The Tribunal may - > > (a) of its own motion; or > > (b) on application by an attorney; or > > (c) on application by or on behalf of a donor; or > > (d) on application by any other person who the Tribunal believes has a proper interest in the matter - > > hold a hearing in accordance with the Tasmanian Civil and Administrative Tribunal Act 2020 to review an enduring power of attorney. > > (1A) The Tribunal may dismiss an application for review if it is of the opinion that the application is frivolous, vexatious or lacking in substance. > > (1B) Without limiting the matters to which the Tribunal may have regard in relation to a review in respect of a donor, the Tribunal may open and read any paper or writing which purports to be, or is alleged to be, the will of the donor. > > (2) On the review, the Tribunal may, by order - > > (a) vary a term of, or a power conferred by, the enduring power of attorney; or > > (b) appoint a substitute attorney; or > > (c) appoint an administrator of the estate of the donor if he or she is over the age of 18 years; or > > (d) declare that the donor did or did not have mental capacity to make a valid enduring power of attorney or to revoke an enduring power of attorney; or > > (e) declare that the enduring power of attorney or the revocation of it by the donor is invalid if the Tribunal is satisfied that - > > (i) the donor did not have the mental capacity to make the power or the revocation, respectively; or > > (ii) the power or the revocation, respectively, does not comply with the other requirements of this Act; or > > (iii) the power or the revocation, respectively, is invalid because the donor was induced to make it by dishonesty or undue influence or invalid for any other reason; or > > (f) revoke the enduring power of attorney and, if the donor is over the age of 18 years and the Tribunal thinks fit, appoint an administrator of his or her estate; or > > (g) make such other order as to the exercise of the power, or the construction of its terms, as the Tribunal thinks fit.

6. In relation to the Tribunal's power under s 33(2)(f) to revoke an EPOA and appoint an administrator of the estate, s 33(3) provides as follows:

(3) An appointment of a person as administrator under subsection (2)(f) has the same effect as if it had been made under Part 7 of the Guardianship and Administration Act 1995.

38 Saving provision > > Except as provided by this Part, nothing in this Part is taken to derogate from the law relating to powers of attorney.

1. The Tribunal appointed a separate representative for the donor on 9 May 2025 and Ms Dalgleish participated in the hearing in this capacity. Ms Dalgleish visited the donor on 29 May 2025. She had not informed anyone that she was coming to visit the donor.
2. The separate representative recounted the conversation she had with the donor during her visit. Our understanding of the salient parts of that conversation is summarised as follows:
   • The donor has a close relationship with his daughter and they get on very well
   • His son does not like what has happened in terms of the donor being moved to regional Tasmania
   • The donor would go back to the area in which he had lived if he could live at home but does not want to go to a nursing home in that area
   • It's "not too bad" where he is living
   • The donor did not remember making the EPOA that is the subject of these proceedings. He did not remember that a lawyer had visited him in the hospital
   • In response to the separate representative asking him who he would appoint as his attorney if he could appoint someone now, the donor responded that he would appoint his daughter
   • The donor said that "he wished that both [the applicant] and [the attorney] would get on better but he thought that [the attorney] would be best to manage his finances"
   • Prior to the donor going into hospital, the applicant had been contributing approximately $80.00 per month to household expenses
   • In response to the separate representative asking the donor what would happen if he returned to live in his home, the donor responded that the applicant works full time and when he went to work there would be no-one with the donor; the donor "wasn't sure" if the applicant would do a good job of looking after him
3. The separate representative noted that based on her discussion with the donor, her observation was that the donor had no insight into his dementia nor his need for care. He was "fairly clear that he was very close to [the attorney] and she does a lot for him and he's close to her and was happy for her to be doing this".
4. The separate representative had a subsequent conversation with the donor by telephone. She called him on the day before the hearing to ask whether he wished to attend the hearing. The donor told the separate representative that he did not wish to take part in the hearing. During that conversation, he also repeated that he would prefer to be living in his home but not in a nursing home in the area in which he had previously lived.
5. Given that the donor had told the separate representative that he did not wish to take part in the hearing, we did not attempt to contact him during the hearing. None of the donor's family members opposed this course of action. We were satisfied that we were able to understand his views as provided to the separate representative.

Challenge to donor's capacity to make EPOA on 11 October 2024

1. In the statement attached to his application, the applicant outlined the basis for his application challenging his father's capacity to make the EPOA:
   1. the EPOA was signed when the donor was sick and unwell in hospital
   2. the donor had little or no understanding of what a power of attorney even was. This was based on what the applicant describes as questioning of his father in early January 2025. The applicant "was surprised that his father had no recollection of signing the relevant legal document and did not even know what a power of attorney was"
   3. the donor had no understanding of what decisions he was delegating to the attorney
   4. the donor's mental capacity was questionable considering that a medical report prepared by the Consultant Psychiatrist three months after the EPOA was made determined that he had lost capacity to make decisions
   5. asserts that the document was signed under undue influence
2. According to the applicant, the Consultant Psychiatrist's assessment of the donor on 17 January 2025 is relevant to the donor's capacity to have made the EPOA three months earlier as, in the applicant's words, "I don't think dementia appears overnight ... it's a process."
3. The applicant also asserted that the timing and circumstances surrounding his father's signing of the EPOA on 11 October 2024 are also questionable given the donor is an elderly man who had just lost his wife.
4. In the week following the death of the donor's wife, the donor was "receiving strong medications due to a urinary tract infection and experiencing nightmares due to being witness to his wife's fall on 1 October".
5. The applicant said that he was at the hospital visiting his father nearly every day and that his father "was in a pretty bad way. He just lost his wife of 51 years" and "was in no situation for something as complex as an EPOA". According to the applicant, his father was "never really the same" after what happened to his wife and he "really went downhill" after that happened.
6. In his oral evidence, the applicant stated that, on 11 October 2024, he arrived early in the morning to visit his father and left for 60 to 90 minutes for lunch and to visit the church not far from the hospital. He was not present when XK met with his father. He does not recall seeing his sister at the hospital on that date.
7. As a consequence of reviewing his 2024 text messages and a text he sent to the attorney on 22 October 2024, the applicant recalled that, on that date, the donor underwent a "generic thirty-question Cognitive Screening Test with an occupational therapist" at the private hospital. According to the applicant, who was in the hospital room when the testing took place, his memory is that "[the donor] scored poorly and the visiting doctor informed [the applicant] that [the donor] was showing clear signs of dementia". Also, according to the applicant, he sent a text message to his sister on 22 October to the effect of telling her that their father had a screening test that day and that he did not do very well.
8. Neither a record of the text message to the attorney nor a record of the assessment said to have been conducted on 22 October 2024 was submitted in evidence before the Tribunal.
9. According to the applicant, when visiting his father at the aged care facility on 15 May 2025, after a brief discussion about the matter, the donor became "quite upset when he said he had no recollection of signing the [EPOA]".
10. The separate representative questioned the applicant as to whether he had any concerns about the donor's capacity prior to the events that led to the donor's hospitalisation. The applicant's response was that his father "was forgetful at the best of times", he was paying household bills jointly with his wife, noting "probably mum gave him a little bit of help", but that he didn't remember "anything concrete" and there were never "huge concerns". The applicant answered in the negative when asked whether there had ever been a suggestion that the donor see a GP or geriatrician because of concerns about his memory or decision-making.

1. A written, signed but unsworn statement by LX was filed with the Tribunal on 30 June 2025. LX states that she was one of the best friends of the donor's late wife for over 30 years, has known the donor for that same length of time and, in the 12 months prior to the death of the donor's wife, had visited their home on almost a daily basis. LX states that she had been invited to make "a late witness statement" at the request of the applicant. The statement also notes that LX did not wish to get involved in any family dispute and did not intend to attend the hearing on 8 July.
2. LX's statement sets out the visits she made to the donor in hospital and her observations of his demeanour. She describes a visit she made with the applicant on 11 October 2024. LX expressed an opinion about the donor's "mental and physical state" on that date. LX also expressed opinions about the applicant's suitability to have decision-making authority about his father's financial needs.
3. LX did not participate in the hearing and according to a Registry file note dated 1 July 2025, in a telephone conversation with a Registry officer asked that her details be removed from the Tribunal notification system and that she "does not wish to be involved at all in this hearing".

1. The attorney explained that her father was hospitalised on 1 October 2024 because the paramedics who attended at the family home to transport his wife to hospital after her accident would not leave him alone at home due to his age and shock. The donor was reviewed on arrival and was treated for a urinary tract infection (UTI). He is at high risk of experiencing UTI's as he has a supra-pubic catheter in place as a consequence of chronic renal disease. The donor was admitted to a medical ward on 2 October 2024. The attorney was told that the donor could not return home later in the week as there would not be sufficient supports in place in relation to his physical care and that there would need to be a referral for an ACAT assessment and catheter management assessment. He was transferred to a private hospital on 4 October 2024 as he was awaiting a bed in respite care, and remained there until 29 October 2024.
2. The attorney acknowledged that she did not seek a medical report or assessment of the donor prior to the signing of the EPOA on 11 October 2024. She stated "I had several conversations with Dad about this between 3 and 11 October 2024 where he presented as lucid and was direct in relation to his wishes. The conversation whereby I be appointed was consistent with discussions over the last year I had with mum and dad where we discussed the appointment of my mother and me as the attorney for dad."
3. According to the attorney, over a period from October 2023 onwards, she had had discussions with her parents to try and assist them to each make an EPOA as well as a will for her mother. In November 2023, according to the attorney, the donor told her that he wanted his wife and the attorney appointed as his attorneys. According to the attorney, her mother put off making arrangements to make the appointments and they did not eventuate.
4. The attorney stated that at the hospital, "Dad gave me clear instructions about selling some of his Wesfarmers shares to pay for mum's funeral and raised concerns about not being able to get to the bank while in hospital, so he asked me to investigate bills such as the home and contents insurance which was due for payment. Dad also had clear views around my mother's funeral and sound reasoning for it."
5. The attorney noted that upon checking, her dad was correct about outstanding bills. She believed that he understood what needed to happen for his finances to be placed in order especially whilst he was unable to leave the hospital.
6. The attorney gave evidence that following a discussion with her father on 3 October she contacted XK at a law firm as her father had requested that a power of attorney be prepared. The attorney contacted this firm as she "was looking for a reputable firm" and, had no-one been available to assist then, she would have contacted another firm. The attorney knew XK as they had had professional dealings in the past and her cousin is a good friend of XK. The attorney thought that that personal relationship "might be something dad would be comfortable with". The attorney advises that, in the initial telephone conversation between the attorney and XK, XK asked her whether or not the donor would have capacity to make the EPOA. The attorney said that she told him, "based on my interactions with him I think he does but ultimately that will be a matter for you".
7. The attorney told XK what her father's wishes were for the EPOA. In response to the Tribunal's query whether she thought it might be advisable for instructions about the content of the EPOA to be given directly by her father, rather than by her, the attorney responded that she did not have that discussion with XK. She told us that "Dad asked me to organise it for him which I did". The draft EPOA was prepared on the basis of the information provided by the attorney to XK.
8. The attorney stated that she was aware that concerns were raised around her father showing signs of dementia over the last couple of years. When he lived at home he had support from his wife and the district nurses. Since 2019, he had been in receipt of a level 3 In Home Care Package. He was seen weekly in relation to management of his catheter and paid care workers came three times a week to assist the donor with showering. The attorney's day-to-day functioning was nevertheless largely unaffected and he was otherwise independent and active. The attorney stated that "he still attended all medical appointments without mum. He's come up on the bus to [a regional location] and stayed with me. He did his own tax return. He was still an active volunteer at St Vincent De Paul."
9. The attorney said that "I saw and spoke to him on a regular basis. I had no reason to believe that my father no longer had decision-making capacity on 11 October 2024."
10. The donor was discharged from the private hospital on 29 October and was transported to the regional aged care facility where he continues to live.
11. According to the attorney, her father experienced a decline in his mental state over the period of November and December 2024. He experienced delirium over this time and, at times, was confused and disoriented.
12. The attorney provided an assessment form dated 16 November 2024 setting out the results of a Mini Mental State Examination (MMSE) completed by an enrolled nurse at the regional residential aged care facility. This assessment recorded the donor scoring 12 out of a possible 30 which was described in the document as indicating "moderate cognitive impairment".
13. He became very unwell on 17 November 2024 and, over the next month, was unwell with a UTI, sepsis, bladder infection and had a fall. The donor had four admissions to a regional hospital during this period.
14. The attorney's evidence is that she engaged the Consultant Psychiatrist in December 2024 to undertake an assessment of the donor when it became clear that the donor's high level care needs meant that he could not return home. The attorney was concerned as to whether the donor had the capacity to make a fully informed decision about becoming a permanent resident and with managing his finances. The attorney said that she funded the assessment by the Consultant Psychiatrist to ensure that she had all of the necessary information.
15. A summary of the Consultant Psychiatrist's conclusions based on an assessment conducted on 17 January 2025 is set out at [12] above. A further assessment was carried out by the Consultant Psychiatrist at the request of the attorney in May 2025. A summary of his conclusions set out in a report dated 22 May 2025 is set out at [13] above.

1. XK gave written evidence in the form of a sworn affidavit dated 4 June 2025 and oral evidence at the hearing.
2. XK's evidence can be summarised as follows.
3. XK is a Principal and Senior Partner of a law firm. He was admitted to practice in the Supreme Court of Tasmania in November 1995. For the vast majority of that time, his practice has included advising and drawing wills and powers of attorney.
4. On 11 October 2024, he attended the hospital to visit the donor and to witness him executing an EPOA in favour of his daughter.
5. XK had not previously met the donor but had known the attorney professionally for a number of years. One of the donor's nephews is an old and close friend of XK.
6. The attorney had contacted XK several days before to arrange the appointment. She had spoken to him about preparing the document and the donor was expecting XK on the day of the signing.
7. XK was aware when he spoke with the donor that the donor had wanted to appoint an attorney for some time and that he and his late wife had previously discussed signing a power of attorney.
8. The attorney waited outside the room when XK attended the donor.
9. XK checked to make sure there was no coercion or undue influence. The donor was able to explain why he wanted an attorney (because he was "getting older and it would help") and that the attorney was a logical choice as she was very well organised and a professional person.
10. In relation to the signing of the EPOA, XK states in his affidavit:

I saw no indication whatsoever that [the donor] did not understand the document he was signing nor any evidence of cognitive decline. I understand that he was in hospital at the time for shock as his wife had very recently died. He was certainly aware of his surrounds, who his family was and discussed my friend [the nephew of the donor] and that his sister had passed away as well not long before our meeting. > > I advised him that, prior to signing the document, that it was a General Enduring Power of Attorney that would allow [the attorney] to administer his financial matters, real property and the like. I also advised him the nature of it being a General Enduring Power of Attorney, in that it endured beyond him losing mental capacity but he wished for the Power of Attorney to be registered immediately. I advised him that once registered he would not be able to revoke that if he lost subsequent capacity. He understood that. I know that he understood as he was able to explain in his own words what I had said and had stated what the purpose of the Enduring Power of Attorney was when I asked him at the beginning of our meeting. We also discussed limiting powers contained in the Power of Attorney and that he wanted to I could redraw the document but he did not wish to do so and told me that he wanted [the attorney] to do what he could. > > He was aware that he had two children but was very clear that he only wished [the attorney] to be his attorney.

11. In response to the Tribunal's question as to why he took instructions from the attorney to prepare the draft EPOA and not from the donor, XK responded that it was a matter of convenience and that his understanding was that the information given by the attorney was in accordance with the donor's instructions. However, "I was not going to sign it unless I went through it with [the donor] and asked him whether that was in accordance with the instructions that have been relayed to me". XK said that it did not occur to him to have a telephone conversation with the donor before attending at the hospital and that "if his instructions were different from the instructions that I had received from the phone from [the attorney] at the time I would go back to my office and redraft or not sign".
12. In relation to the issue of the donor's capacity to make the EPOA, XK said that he "certainly ... addressed [his] mind to it". XK stated:

It's not my first time going to a hospital to have a will or a power of attorney signed. And I always address my mind to that and those in any circumstance, but in particular those circumstances. That's why I asked him at the first (sic) what is it that you're signing, what is your understanding? So he could provide it in his own terms about what he's doing. And also I asked him whether he had considered making anybody else his attorney or just [the attorney] and he told me in no uncertain terms that he wants [the attorney] to be able to sign what he could and be able to make those decisions and the reason was as put in my affidavit because she's a professional person, that she's capable of doing it.

If I had any doubts at all, and certainly there have been circumstances where I've been where I've gone down to a hospital or I've even seen people in my office and I've said no, we're not doing this... I'm very conservative about it. If people seem even a little bit shaky then I ask for ... someone to provide me with some sort of medical evidence that they are actually capable but there was nothing that gave me any indication at all that he couldn't understand or that he was incapable or even impaired.

14. In response to questions from the applicant's legal representative, XK said that he was in the room alone with the donor (along with his law clerk) for about 10 minutes. He makes the decision about whether a capacity assessment is necessary on a case-by-case basis. In the donor's case, they had had a conversation about the donor's broader family and he was "sharp as a tack" on that. In response to a question as to whether they had a broader conversation about capacity and why XK was asking the donor these questions, XK responded that they did and that the donor told him he wanted to make the EPOA as he was getting older, that it was something he had thought about doing for some time and he wanted somebody to be able to take care of his affairs.
15. XK said he did not believe the donor was under any coercion or undue influence. He said he asked the donor some questions to which XK already knew the answer, and the donor answered accurately. In answer to a direct question from the Tribunal about what he would have done had the donor objected to the terms of the EPOA as drafted, XK said that he would have taken it away to amend and would not have discussed it with the attorney.

Law Society of Tasmania- Important considerations for solicitors preparing an enduring power of attorney

1. The Law Society of Tasmania issued guidelines in 2019 ("Important considerations for solicitors preparing an enduring power of attorney") intended to assist solicitors in advising clients who wish to draw up an enduring power of attorney. It sets out "general points for consideration which may or may not be relevant according to the individual circumstances of the donor".
2. Whilst this document does not reflect legislative changes brought about by the Tasmanian Civil and Administrative Tribunal Act 2020 (TASCAT Act), its references to the relevant provisions POA Act remain current.
3. Relevantly, the guidelines state:

A solicitor taking instructions for the preparation of an enduring power of attorney must be satisfied that the client (potential donor) has the mental capacity to execute that instrument. > > Circumstances that might cause a solicitor to question the potential donor's capacity to execute the instrument might be that the client:

a) is currently a patient in a hospital, aged care facility or supported accommodation facility (group home or boarding house);

b) is highly supported in interviews by a family member or friend but is not as competent in giving instructions or understanding advice in the absence of that family member or friend;

c) frequently changes his or her instructions;

d) behaves in a highly unusual manner, makes bizarre statements during interviews or is excessively forgetful and disorganised.

If a solicitor has any doubts about the client's capacity to understand the nature and effect of the document, the solicitor should obtain a report from a medical practitioner, geriatrician, Occupational Therapist or a psychologist with relevant professional experience.

1. We were satisfied that, as the son of the donor and someone who is concerned for his father's welfare, the applicant had a proper interest in the matter pursuant to s 33(1)(d) of the POA Act to make an application to the Tribunal to hold a hearing to review the EPOA.
2. When conducting a review of an enduring power of attorney pursuant to s 33(2) of the POA Act, the Tribunal commences on the basis of a presumption that the donor possessed the "mental capacity" to make a valid EPOA. This is consistent with the wording of the statute. For example, the Tribunal may declare under s 33(2)(e)(i) that an EPOA "is invalid if the [Tribunal] is satisfied that ... the donor did not have the mental capacity to make it" (emphasis added)). It also accords with the common law principle that a person of full age is capable of managing his or her affairs unless the presumption is rebutted (Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 at [34]-[36]). More specifically, it is consistent with authorities that confirm that, in relation to the test for capacity to perform legally valid acts, such as making an enduring power of attorney, the starting point is the "presumption of sanity" (Szozda v Szozda [2010] NSWSC 804 at [20]-[26]).
3. The term "mental capacity" is not defined in the POA Act but is informed by the concept of "mental capacity" under the general law (Scott v Scott [2012] NSWSC 1541 at [173]; POA Act, s 38). The Tribunal will consider evidence as to a donor's understanding of the "nature and effect" of an EPOA at the time of execution of the deed or instrument. However, an assessment of "mental capacity" will involve consideration of broader parameters (SFKD (Review Enduring Powers) [2014] TASGAB 12 at [20]). There is no rule of general application without regard to particular facts, and attention must be focussed on all the circumstances of the case (Scott v Scott at [199]).
4. In particular, an exploration of all of the circumstances of a case:

... will, not uncommonly, call for consideration of events leading up to and beyond, the time of execution of the disputed power of attorney, as well as on the focal point of the time of execution itself. A longitudinal assessment of mental capacity along a timeline extending either side of the focal point, may be necessary, or at least permissible, in order to examine the subject's mental capacity in context (Scott v Scott at [200]).

5. We first considered the evidence in relation to the period leading up to the making of the EPOA.
6. The attorney stated that she was "aware that concerns were raised around my father showing signs of dementia over the last couple of years" although no formal assessment had been undertaken by a geriatrician. We note the support services provided for the donor since 2019 in relation to catheter management and assistance with some personal activities of daily living. We also note the evidence that he was otherwise independent and active.
7. The applicant's evidence was not inconsistent with these observations. He stated that, whilst his father could be forgetful and his mother probably gave him some help with the payment of household bills, the applicant did not "recall anything concrete" and "there were never huge concerns".
8. In relation to the donor's admission to hospital on 1 October 2024, we accept that he remained in hospital for an extended period as he was waiting on a bed in respite care. This was because there were insufficient supports in place in relation to his physical care were he to return home.
9. The applicant described his father being in a "pretty bad way" when in hospital. He was visiting his father nearly every day. He told us that his father was receiving medications for a UTI and that he "was in no situation for something as complex as an EPOA".
10. The applicant also relied on the statement of LX to support his contention that his father lacked the capacity to make the enduring power of attorney on 11 October. Whilst proceedings conducted in the Protective Division of the Tribunal, including under the POA Act, are inquisitorial and not adversarial in nature focussed as they are "on the donor and the protection of the donor's interests under the instrument" (CX (Federal Jurisdiction Issue [2025] TASCAT 158, [48]), the rules of natural justice still apply (TASCAT Act_,_ s 10(1)(a)(ii)). We did not place any weight on the matters set out in LX's statement. Whilst signed, the statement was not a sworn statement and, as LX did not participate in the hearing, her views as a lay witness about the critical and contested issue of the donor's capacity could not be tested by any of the other parties or the Tribunal.
11. That the donor was being treated for a UTI upon admission to hospital was not in dispute and no doubt contributed to the effects of the shock the donor experienced after witnessing his wife's accident.
12. There was, however, no documentary evidence given to us of clinical assessments undertaken of the donor's cognition either prior to the making of the EPOA on 11 October 2024 or at any time during his hospital stay from 1 to 29 October 2024.
13. At a preliminary hearing conducted on 9 May 2025, a direction was made that any party seeking to have a summons issued by the Tribunal was to file an application for summons no later than 23 May 2025. This was a mechanism by which the applicant could have sought to place such evidence, if it existed, before the Tribunal. He was legally represented at all relevant times. However, the applicant did not make any application for the issuing of a summons.
14. In the time leading up to the making of the EPOA, the attorney gave evidence about discussions between her and her father about the management of his finances. The applicant was not privy to these discussions. This was consistent, according to the attorney's evidence, with long-standing family dynamics of the donor discussing matters relating to financial and legal matters with the attorney given her professional qualifications. He did not have these conversations with the applicant. In these discussions, according to the attorney, the donor wanted to ensure that his bills were taken care of and that the costs related to his wife's funeral were met. The donor did not have any way of addressing these matters whilst he was in hospital and, according to the applicant, it was at his instigation that the attorney made contact with a lawyer to prepare an EPOA.
15. We accept the attorney's evidence that this was the not the first time the making of an EPOA had been discussed. Her evidence was that the making of enduring powers of attorney had been a matter discussed with both of her parents over a lengthy period but this had not eventuated. She described her father as being "lucid and direct in relation to his wishes". She did not consider seeking a medical report concerning her father's cognition in respect of his ability to make an enduring power of attorney because she did not consider it necessary given the clarity with which he expressed his wishes.
16. We note that, in his final written submissions, the applicant submitted that there is no evidence to corroborate that the attorney had any prior conversation with the donor about being appointed sole attorney. We accept the submission about a lack of corroborating evidence about this issue. It did not, however, detract from the weight we placed on the attorney's evidence about this issue which was detailed. Her evidence was given in a clear and cogent manner and her honesty concerning her recollections of these discussions was not undermined by the applicant's submission. We also note the affidavit evidence of XK, discussed below, to the effect that the donor told him that he only wished his daughter to be his attorney.
17. Placing weight on the attorney's evidence about these matters does not mean we diminish the applicant's concerns about his father's condition in hospital. Nor does it mean that the trauma and stress of his wife's accident and death were not having an effect on the donor. Nevertheless, we found the attorney's evidence concerning her father's request for an EPOA to be prepared and her observations of the clarity with which he made these requests to be persuasive.
18. We also considered the evidence given by XK in his sworn statement and oral evidence. The circumstances in which the EPOA was prepared by XK and his views about the donor's capacity to make the EPOA are critical aspects of our consideration. We note some potentially concerning aspects of the circumstances leading up to the making of the EPOA and as put to us by the applicant.
19. XK took instructions about the content of the EPOA from the proposed attorney, rather than directly from the donor. We note that direct instructions could, for example, have been obtained by way of a telephone conversation with the donor prior to XK attending in person at the hospital. However, we also take account of XK's response to this issue that he checked the accuracy of the information he had been given directly with the donor. Had anything in the draft EPOA needed to be changed, then he would have done so.
20. The donor was in hospital at the time. A prudent course in such circumstances may have been to seek the opinion of the donor's treating team as to whether there were concerns about the donor's cognition at the relevant time. Indeed, the Law Society of Tasmania guidelines issued in 2019 on this topic explicitly state that a client who is hospitalised at the relevant time "might cause a solicitor to question the potential donor's capacity to execute the instrument". The guidelines also state, however, that if a solicitor "has any doubts about the client's capacity to understand the nature and effect of the document, the solicitor should obtain a report" from an appropriately qualified health professional. We took account of XK's response to this issue that he did not consider it necessary to obtain a report from a health professional because he did not have any doubts about the donor's capacity to understand the document he was signing.
21. We note in particular the following aspects of XK's evidence: he saw no indication of any cognitive decline or that the donor did not understand the document; the donor was able to explain in his own words the information XK provided to him concerning the nature and effect of the EPOA; after discussing the ability of the donor to limit the powers of the proposed attorney within the instrument, the donor responded that he did not wish to do so, wanting the attorney to do what he could; and that the donor was aware that he had two children but was clear that he only wished his daughter to be his attorney. According to XK, the donor told him he "wanted to make the EPOA as he was getting older, that it was something he had thought about doing for some time and he wanted someone to be able to take care of his affairs".
22. Criticism was made in the applicant's final submissions that XK did not previously know the donor, that he has a professional history with the attorney and, on XK's evidence, that he spent about 10 minutes in which time he confirmed the donor's capacity and his instructions which matched the pre-drawn document that XK had taken with him. The applicant's submission was that XK should have been concerned about the donor's decision-making capacity and he should have obtained a medical assessment before finalising the EPOA which, if done, is likely to have led to an assessment similar to that of the Consultant Psychiatrist three months later.
23. We do not accept the applicant's submission in this regard. Whilst there may be concerning aspects of the manner in which instructions were taken and the brevity of XK's meeting with the donor, we have noted XK's evidence as to the basis on which he determined, in his professional view, that he did not require medical evidence as to the donor's capacity to make the EPOA. We had regard to XK's longstanding experience in the area of estate planning involving the drafting of wills and appointments of attorneys and enduring guardians. He gave cogent evidence of the steps he took to satisfy himself that the donor had the requisite capacity to make the EPOA and we find his evidence persuasive.
24. We also considered events beyond the execution of the EPOA on 11 October.
25. The applicant made reference to an assessment of the donor undertaken on 22 October 2024 by a health professional at the private hospital. According to the applicant, his father "scored poorly" and according to a "visiting doctor", the donor "was showing clear signs of dementia". The attorney stated that the applicant notified her via text on 22 October that the donor had undergone a cognitive screen. The attorney's evidence is that the applicant texted that the screen "did not go well as, according to [the applicant] dad did not understand the questions well. [The applicant] was concerned that the nurse was abrupt and rushed dad with the questions".
26. As previously noted, there was no documentary evidence provided to us concerning this assessment. While we can accept that an assessment of some sort took place on 22 October, and may not have "gone well", without being provided any independent evidence to confirm the type of assessment, the results of the assessment and conclusions that could be drawn from the results, we place limited, if any, weight on this matter.
27. After moving to the regional aged care facility on 29 October 2024, the evidence is that the donor's health deteriorated. Over November and December 2024, he experienced a UTI, sepsis, a bladder infection and delirium. He was admitted to hospital on four occasions over this period.
28. As previously noted, an MMSE was conducted on 16 November 2024 in relation to which he scored 12 out of a possible 30 which was described in the document as indicating "moderate cognitive impairment".
29. In January 2025, the attorney arranged an assessment by the Consultant Psychiatrist of her father's decision-making ability about long-term living and care arrangements. The Consultant Psychiatrist concluded that:

It is my opinion that his decision-making capacity is substantially impaired and effectively lacking for the matters under consideration. His evident incapacity for decision-making is a product of undoubted dementia and the lacunar rather than continuous memory impairment is consistent with a vascular component or a recent unrecalled systemic illness with delirium.

30. The Consultant Psychiatrist also noted that his score on a MMSE conduct in January 2025 was 16/20. This indicates a fluctuation in his cognition over the period.
31. In his final written submissions, the applicant notes that the MMSE conducted on 16 November was prior to the donor's major health issues in late November. He submitted that it is not plausible to score as low as twelve in a MMSE test and have the mental capacity to understand an EPOA only one month earlier.
32. The applicant also relies on the Consultant Psychiatrist's January 2025 assessment to support his contention that the donor did not have the capacity to make the EPOA approximately three months prior.
33. The applicant's submission concerning the implausibility of the donor having the requisite capacity to make the EPOA in circumstances where a month later he scored 12 out of a possible 30 is not the supported by any expert evidence. The applicant makes a similar submission in relation to the Consultant Psychiatrist's assessment in January 2025. From the point of view of conducting a longitudinal assessment of the donor's mental capacity, the results of the screening tool a month after the making of the EPOA and then the Consultant Psychiatrist's assessment three months later are not irrelevant. They clearly indicate that the donor experienced fluctuations in his cognitive capacity and a significant decline in his mental and physical state over this period. The assessments are certainly relevant to the donor's cognitive state at the time that the assessments were conducted. However, they do not seek to comment on the donor's cognitive state or capacity in mid-October 2024. As a consequence, we are unable to place the weight on these assessments that the applicant asks us to concerning the donor's capacity to make the EPOA at that time.

1. For the reasons outlined, having undertaken a longitudinal assessment of the evidence concerning the donor's mental capacity along a timeline both sides of the making of the EPOA on 11 October 2024, we determined that the presumption that the donor had the requisite capacity to make the EPOA had not been rebutted. Accordingly, we did not make any of the orders sought by the applicant under s 33(2) of the POA Act in respect of the donor's mental capacity to make the power.

1. The applicant's challenge to the manner in which his sister has acted in her role as attorney focused largely on the actions taken by the attorney in respect of meeting the costs of the donor's residential care fees. The applicant asserted that the attorney demonstrated serious financial irresponsibility by entering into an aged care residential agreement on behalf of the donor without doing proper research or consulting specialised Centrelink staff and by not co-operating with lodging the correct financial hardship application form with Centrelink for assessment. According to the applicant, the attorney is not acting in the donor's best interests as she "does not wish to submit the required Centrelink form as she does not believe that [the applicant] meets the criteria".
2. According to the applicant, the attorney is motivated by spite rather than any genuine concern that the relevant Commonwealth provision was met for the donor's aged care costs to be subsidised by the Commonwealth government.
3. The applicant also asserts that the attorney is unwilling to reach agreement with the applicant about meeting the costs of the upkeep of the family home including house rates, insurance and general maintenance. The applicant has proposed renting out one of bedrooms in the house to produce income, but funds are needed for carpet replacement and painting and no agreement has been reached about who is responsible for maintenance.
4. The attorney entered into a residential accommodation agreement on the donor's behalf on 18 February 2025. A Refundable Accommodation Deposit is payable of $500,000.00. Until payment is made for that amount, the donor incurs fees of $115.00 per day on top of his care and service fees.
5. The attorney advises that the donor's fees at the residential aged care facility are up to date. However, there is a shortfall between the donor's pension income and his fees, and the attorney has been meeting this shortfall from her own funds. The shortfall exists because Centrelink currently regard the donor's home as part of the assets upon which his fees are calculated. The attorney believes that the donor's home needs to be sold to address this issue.
6. Copies of correspondence sent between the solicitors acting on behalf of the applicant and attorney for the period January to March 2025 were provided to the Tribunal and indicate that this issue has been the subject of significant contention.
7. By letter dated 28 January 2025 from the attorney's solicitor, the applicant was asked whether he wished to purchase the donor's property rather than the property being listed for sale on the open market
8. By letter dated 3 February 2025, the applicant's solicitor indicated that, in the applicant's view, the donor would qualify for exemption from means testing and he was compiling the information which is required in support of such an application. If the property was exempted from means testing, the applicant's preference would be for the property to remain in the donor's name with the applicant remaining in occupation.
9. In order to make a successful financial hardship application and have the home exempted from means testing, Centrelink would need to be satisfied that an immediate family member has lived in the property for at least 10 years and that the property is an unrealisable asset.
10. The attorney believes that it is unlikely that a financial hardship application could successfully be made on her father's behalf. She has sought as much information as possible about the aged care framework including getting advice from a financial adviser who specialises in aged care and attending a seminar on the aged care sector. Her understanding is that, whilst the applicant has lived in the property for more than 10 years, the property would not qualify as an unrealisable asset. The donor is the sole registered proprietor of the property and there would be no impediment to a sale on this basis. In addition, whilst the applicant has lived in the property for the requisite period, he holds a full-time position with a federal government agency and would not appear to have any entitlement to any Centrelink income support payments
11. Nevertheless, the attorney confirmed that in February 2025 she submitted a hardship application on behalf of her father. She had been contacted by Centrelink in April 2025 asking for a copy of other expenditure and sent that back to the agency. In May and June 2025, she requested updates from Centrelink as to the progress of the application. In May 2025, she was informed that the application was still being processed. She has not yet had a response to the June request for an update.
12. In correspondence dated 10 February 2025 and 19 March 2025 from the attorney's solicitor to the applicant's solicitor, the applicant was requested to provide evidence necessary to support the application.
13. As at the date of the hearing, the applicant had not yet provided to the attorney or her solicitor the information requested by the applicant's solicitor. The applicant said that he had left some documentation in the donor's room at the residential aged care facility during one of his visits to his father. It did not appear that the attorney had been informed of this but, in any event, the applicant had not provided a copy of the documentation to the attorney's solicitor.
14. As far as the attorney is concerned, she has provided everything to Centrelink that she is able to in order to support the application. Centrelink has not yet requested additional information in relation to the applicant's occupancy of the donor's property.
15. The correspondence between the solicitors for the attorney and applicant also indicates that a number of requests have been made for the applicant to pay for board and expenses from October 2024. In oral evidence at the hearing, the applicant said that he had not paid the requested board as his father's pension entitlement and application for financial hardship would be affected if the donor received payments of anything over a minimal amount. The same difficulty would arise if the donor's home was sub-let. The applicant said that he does lots of things around the house including taking care of pets, carrying out general maintenance and paying some bills. We understood from this evidence that the applicant does not intend to make any payments to the donor for board at least until the issue of the donor's application for financial hardship is resolved.
16. Given the protective nature of the jurisdiction exercised by the Tribunal when conducting a review of an EPOA, with the focus being on the donor and the protection of the donor's interests, we also undertook a general survey of the other documentary material provided by the attorney.
17. Statements were provided from the donor's bank account with the Commonwealth Bank for the period October 2024 to June 2025. Nothing untoward was evident in the statements. The attorney has explained she was unable to access the account until 27 November 2024 and amounts that have been withdrawn were to reimburse her for payments she had made on donor's behalf before gaining access to the account
18. The donor held shares with Wesfarmers, Coles Myer and AMP. The attorney acted in accordance with the donor's direction in October 2024 to sell some of his shares and for $10,000.00 to be set aside to cover funeral costs. The attorney has engaged TG financial to assist with this process. The funds from the sale will go into donor's account.
19. After the death of her mother, the attorney took steps to transfer all jointly held property, accounts, health insurances, etc, into the donor's name
20. The attorney has also attended to the donor's other financial needs. For example, she has arranged for the payment of bills and will organise preparation of his 2025 tax return. The cost of clothing and her father's day-to-day needs are met personally by the attorney.

1. The attorney is required to act in accordance with the duties set out in s 32 of the POA Act.
2. As outlined in JK (Request to Withdraw Application) [2022] TASCAT 21:

[26] ... when considering whether to exercise the discretion to make an order under s 33 of the POA Act in relation to the operation of an instrument... the Tribunal is examining the evidence to decide whether an attorney has in any way breached their duty as an attorney, or has otherwise not acted, or will not be able to act in future, in a manner which protects the interests of the donor, promotes their best interests, and where possible and appropriate, reflects any known wishes or likely wishes of the donor as codified in s 32 of the POA Act... > > [27] The statutory decree that the attorney is taken to be a trustee of the property and affairs of the donor also means that the standard of care applicable to trustees as defined by general law clearly apply to attorneys appointed under an enduring power of attorney: See G Dal Pont, Powers of Attorney (3rd ed, 2020, LexisNexis Butterworths) at [8.27]. > > [28] For example, evidence may lead the Tribunal to conclude that an attorney has breached their duty by failing to keep property of the donor separate from the property of the attorney (s 32(3)), or by engaging in gifting of the donor's estate outside of the parameters permitted by s 31(3), or has entered into a transaction that results in a conflict of interest (s 32AC), or has failed to keep accurate records of transactions as required by s 32AD. In addition, the acts of an attorney, or perhaps even a failure to act (see Dal Pont, ibid at [8.23]), may amount to a breach of the fiduciary duty owed by the attorney to the donor.

3. We have set out the matters raised by the applicant that he asserts demonstrate that the attorney has not performed her duties in a manner that promotes the donor's best interests.
4. Having carefully considered the written and oral evidence provided in these proceedings, there was nothing in that evidence to support a conclusion that the attorney had breached her duties as attorney. There was no evidence of any intermingling of her finances with those of the donor that might suggest closer consideration of any conflict of interest under s 32AC of the POA Act is warranted. If anything, the attorney has borne a financial cost as she has met a number of her father's financial needs from her own funds.
5. We find that the attorney has taken steps to protect the interests of donor. As previously noted, after the death of her mother, the attorney ensured that jointly held assets were transferred into the donor's name alone, his bills were paid, and the donor's day-to-day financial needs were met. The attorney also undertook self-education as to the donor's liabilities for residential aged care in the context of his broader financial situation and sought independent financial advice about these issues.
6. Having reviewed all of the evidence, we are also satisfied that the attorney will act in a manner that promotes the donor's best interests. The donor's interests will be met by ensuring that his care and accommodation needs are met to the highest possible standard within his financial circumstances. The security of the donor's financial future is currently being addressed by the attorney, albeit in the context of a difficult family relationship that is long standing but appears to have come to a head as a consequence of the events since October 2024. We understand from the applicant's evidence that he feels excluded from decision-making about the home in which he has lived his entire life. He also feels that the professional knowledge he has acquired as a long-term employee of a federal government agency has not been acknowledged. However, we are satisfied that the attorney has approached decision-making in respect of the management of her father's financial affairs in a careful and measured manner. Despite the attorney being of the opinion that the financial hardship application for her father will be unsuccessful, she has nevertheless lodged the application with Centrelink and has provided all of the information she has available to her in respect of this application. It appears that it is now a matter for the applicant to provide information when requested to do so by Centrelink. Should this application be unsuccessful, we were satisfied that the attorney will take action in her father's best interests. This is likely to necessitate the sale of the donor's home in a timely manner as the donor is unable to meet his financial commitments to the residential aged care facility. It would clearly not be in his best interests to continue to accrue a debt to the attorney who is currently meeting the shortfall.
7. We also accept that the attorney has sought to make decisions as attorney in accordance with her father's wishes where that has been possible and he has been able to articulate those wishes. Less clear are the donor's wishes, now that he is subject to a "mental incapacity" (POA Act, s 32(1A)(c)(ii)), concerning the complex issues around the funding of his care needs. It seems clear that the donor's wish had been to return to live in his home and were that still a realistic option then the attorney has indicated she would have acted in accordance with these wishes. The reality of the donor's financial situation, however, is that in order to meet his needs at this point in his life, decisions will need to be made about how best to utilise his major asset. What seems apparent from the material before us is that it is unlikely that the donor would wish to continue in a situation where he is unable to meet his financial commitments and is reliant his daughter to meet not-insignificant costs in relation to his aged care fees. Whilst the applicant has submitted that it is his father's wish that the applicant continue to live in the family home, we do not accept that this would necessarily be the donor's wish if it meant that the donor could not meet his own financial needs and placed his own welfare at risk.

1. Given the conclusions we have reached on each of these matters, we find that there is no basis for a finding that the attorney has acted in breach of her duties under s 32 of the POA Act. Accordingly, we did not make any of the orders sought by the applicant under s 33(2) of the POA Act in respect of the manner in which the attorney has conducted her role as attorney.
2. The application to review the enduring power of attorney registered on 21 October 2024 made by the donor is dismissed.