NFM [2018] NSWCATGD 14

NFM [2018] NSWCATGD 14 | Case summary | Zoe

[27]

Background

Mrs NFM is 92-years-old and lives in her own home in Southern Sydney. She is widowed, and has four daughters: Ms EZO, Ms DAT and Ms BYW, all of whom live in Sydney, and Ms NXQ, who lives in the United States of America. For much of her life, Mrs NFM and her late husband ran a successful milk bar business in Inner West Sydney, where they also acquired certain retail and residential property. As with other property in Sydney, this appreciated greatly in value and Mrs NFM is now in a comfortable financial position following the sale of the properties and the purchase of her home in Southern Sydney.
Over recent years Mrs NFM has established and varied arrangements for substitute decision-making on her behalf: 1. On 2 April 2014, she executed an enduring power of attorney (the 2014 EPA) appointing Ms EZO and Ms BYW as her enduring attorneys; 2. On 2 April 2014, she executed an enduring guardianship appointment (the 2014 EGA) appointing Ms EZO and Ms BYW as her enduring guardians; 3. On 30 July 2014, she executed a second enduring power of attorney (the Second 2014 EPA) appointing her solicitor, Mr XZ, and her accountant, Mr YZ, as her enduring attorneys; on 5 April 3017, however, Mr XZ and Mr YZ executed a Deed of Renunciation, under which they resigned their respective appointments as Mrs NFM's attorneys; 4. On 2 September 2015, she executed a further enduring power of attorney (the 2015 EPA) appointing Ms EZO and Ms BYW as her enduring attorneys; 5. On 5 January 2017, she executed an instrument of revocation of the 2014 EPA (the First EPA Revocation); 6. On 6 January 2017, she executed an instrument of revocation of the 2015 EPA (the Second EPA Revocation); 7. On 6 January 2017, she executed an instrument of revocation of the 2014 EGA (the EGA Revocation); 8. On 9 January 2017, she executed an enduring guardianship appointment (the 2017 EGA) appointing Ms DAT as her enduring guardian; and 9. On 17 January 2017, she executed a further enduring power of attorney (the 2017 EPA) appointing Ms DAT as her enduring attorney.
On 6 February 2017, the Tribunal received an application from Ms EZO and Ms BYW to review the Second EPA Revocation.
On 28 February 2017, the Tribunal received applications from Ms EZO and Ms BYW to review: 1. the 2017 EPA; and 2. the 2017 EGA.
On 1 March 2017, the Tribunal received an application from Ms EZO and Ms BYW to review the First EPA Revocation.
Mrs NFM, her family and her affairs have been before the Tribunal on a previous occasion, when on 15 October 2015 the Tribunal dismissed guardianship and financial management applications brought in respect of Mrs NFM by Ms NXQ.
The purpose of today's hearing is to decide the four applications which are currently on foot, being those referred to in [3], [4] and [5] above.

[28]

Procedural history and decisions

These applications have been the subject of several interlocutory hearings and applications, and of an earlier hearing which was adjourned. Relevantly: 1. On 23 March 2017, the Tribunal made certain directions as to the provision of evidence, and ordered that Mrs NFM be separately represented; Ms Linda Rogers, solicitor, was subsequently appointed, and appeared, as her separate representative; 2. On 15 August 2017, the Tribunal made certain further orders, of which the relevant ones for present purposes were as follows: 1. At Ms BYW's request, it removed her as an Applicant from all applications; 2. It joined Ms BYW as a party to all applications, and joined Ms DAT as a party to the reviews of the First EPA Revocation and the Second EPA Revocation; 3. It made further orders as to the provision of evidence, including notably that a report as to Mrs NFM's historical and current decision-making capacity be obtained from Professor Z, an expert who was acceptable to all parties; and 4. Fixed 17 November 2017 as the hearing date; 1. On 17 November 2017, the Tribunal: 1. Adjourned the hearing of the applications until today, to allow for the evidence to be obtained from Professor Z; 2. Gave leave for Ms EZO to be represented by Mr Julian Svehla of counsel, and for Ms DAT to be represented by Mr DBL, solicitor, and Ms DZQ, solicitor; 3. Upheld a claim for legal professional privilege made by Ms Rogers on behalf of Mrs NFM concerning certain notes of, and communications by, Mrs NFM's then legal advisers relevant to the execution of the 2017 EPA, the 2017 EGA, the First EPA Revocation and the Second EPA Revocation; and 4. Made certain orders as to the provision of evidence and arguments, notably that: 1. Subject to (ii), all parties' written evidence and submission were to be served on the Tribunal and all other parties by 4 April 2018; and 2. Professor Z's report be served on the Tribunal and all parties by 16 April 2018.
At the hearing: 1. Mr Svehla sought to tender a bundle of documentary evidence on which his client proposed to rely, and his written arguments. Mr DBL objected. The Tribunal agreed with Mr DBL's objection to the tender of new documentary evidence, and dismissed Mr Svehla's request. It did so because to allow new evidence at this stage would place all other parties at a disadvantage in circumstances where clear orders, which allowed a generous period for the provision of evidence, had been made but not complied with by the Applicant. As to the late submission of Mr Svehla's written arguments, the Tribunal took the view that it was in all parties' interests (and that of their representatives and the Tribunal itself) for a concise - albeit belated - summary of Mr Svehla's arguments, which in any event he would be making orally, to be available and accordingly allowed the summary to be provided. 2. Mr DBL raised a concern that information provided by the Applicant in purported response to a summons for the delivery of financial information concerning the management of Mrs NFM's affairs was not fully responsive to the summons. The Tribunal noted his concern, and that the logical consequence of acting on them would be to further adjourn the hearing. In view of the history of the matter it was disinclined to do so except for very good reason. The Tribunal was not convinced that the material sought by the summons and - in Mr DBL's submission - not provided was of such centrality to the principal consideration in the hearings as to justify a further adjournment, and dismissed Mr DBL's objection. The material in question went to various historical financial dealings involving Mrs NFM's property and finances, which were of indirect relevance at most to the matters to be decided at the hearing.
At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

[32]

Dr Y's views

The starting point for the present hearing is Dr Y's report dated 22 March 2016, addressed to Mr T of a law firm in Southern Sydney. In this report, Dr Y notes Mrs NFM's mild dementia, while stating that in his view her condition "…does not impair her or stop her from making any changes she may want to her will".
There follows Dr Y's letter dated 4 November 2016 to another law firm in Southern Sydney. It was a partner in this firm who witnessed the 2015 EPA. Dr Y observes that he is Mrs NFM's treating geriatrician at Public hospital B, where she has been an in-patient for a week and a half. He says that: 1. "…certainly her cognitive function from earlier this year has declined…"; 2. "There is no evidence of any reversibility present currently…"; 3. "I don't believe that [Mrs NFM] has the capacity from the cognitive perspective to make appropriate decisions with regards to residential, medical and financial issues…"; and 4. "…any pre-existing Power of Attorney or Enduring Guardianship paperwork should be immediately engaged…".
Dr Y's subsequent letter dated 15 March 2017 to a solicitor of the law firm of Mr XZ, adds nothing of relevance. This is because, as Dr Y himself notes, he had not had any further contact with Mrs NFM since November 2016, despite attempts to do so in order to ensure appropriate medical follow-up.
Dr Y kindly made himself available to provide oral evidence by telephone. In his oral evidence, he said that: 1. He had not seen Mrs NFM since the consultation on which he based his November 2016 opinion, and was concerned that she might not be receiving appropriate medical care. 2. He was entirely confident as to the correctness of his November 2016 opinion. At the relevant time Mrs NFM's cognition was not affected by temporary factors, such as delirium, and her cognitive decline was irreversible. Dementia is not a fixed state, but rather is a process of decline, although the decline itself may not occur in a consistent way. It may well manifest itself as a relatively swift decline in functioning after quite a long static period at a higher functional level. This in his view is what occurred with Mrs NFM in 2016. 3. In making his assessment he looked not merely to test results, but also to behavioural and psychiatric symptoms of dementia. These were not apparent in Mrs NFM when he examined her in March 2016; by late- 2017, however, they had manifested themselves to a degree which in his professional assessment indicated that her decision-making capacity was impaired as outlined in his November 2017 report. 4. When questioned by Mr DBL, Dr Y was adamant that there were no factors temporarily present at the relevant time in November 2016 which might make Mrs NFM's cognition appear worse than in fact it was. The statement in his report that there "…is no evidence of any reversibility present…" meant that there were no temporary factors adversely affecting Mrs NFM's cognition which could be expected to disappear and in doing so resolve (or at least reduce) her cognitive difficulties. It was incorrect to read it as a qualification to the views which he expressed. "No geriatrician worthy of the name", he said, would express the views which he did in the November 2016 report without having satisfied himself that there were not temporary factors in play whose effect was to make Mrs NFM's cognition temporarily appear worse than it was.
When Dr Y was questioned by the Tribunal, Mr Svehla, Mr DBL and Ms Rogers, his evidence was clear, confident and consistent. He placed emphasis on the progressive nature of dementia, its typically non-linear progress, and the consistency of Mrs NFM's illness with these typical features of dementia. Because his professional association with Mrs NFM had been over a relatively extended period, his views as to the progressive decline of Mrs NFM's cognition were particularly informative. The Tribunal considered Dr Y to be an honest, truthful and reliable witness, and believed that his views should be given considerable weight.

[33]

Dr X's views

The Tribunal was provided with Dr X's neuropsychological assessment of Mrs NFM dated 3 November 2016. The testing and interview on which it was based occurred on 1 November 2016, during Mrs NFM's admission to Public hospital B. In making his assessment, Dr X was aware of his August 2015 report and the conclusions which he reached in it.
In his report Dr X: 1. Outlines the circumstances in which the interview and testing occurred, being at Mrs NFM's hospital bedside; 2. Records the results of certain tests administered to Mrs NFM during her consultation with him; 3. Sets out Dr X's conclusions, which were relevantly as follows: "Compared to baseline testing in August 2015, there is evidence of decline in tests of arithmetic, verbal memory, word generation, reasoning and flexibility of thinking. There is evidence of decline in tests of higher cognitive functioning (frontal- and temporal-lobe functioning) that may be associated with a cortical dementia and/or high alcohol consumption"; and 4. Makes certain recommendations as follows: "[Mrs NFM]'s impaired memory and executive functioning would significantly undermine her ability to engage in an informed decision-making procedure involving full or partial consideration of alternative options. It is recommended that any pre-existing Enduring POA and Guardianship forms be brought into effect immediately."
Dr X also gave oral evidence: 1. When he interviewed and tested Mrs NFM for purposes of his November 2016 report, she had been an in-patient for about two weeks; she had been treated for the delirium from which she suffered at the time of her admission, and at the time of his interview and testing of her she showed no symptoms of delirium; he was therefore confident that his assessment of her cognition was a correct one; 2. His clear recollection was that Mrs NFM's cognition had declined significantly since his earlier assessment of her in August 2015; 3. He undertook with her in-depth testing which took approximately two hours to do. It tested several important cognitive skills, using methods designed both to test in-depth the relevant cognitive skills and to minimise the risk of a person under assessment manipulating the process or results; 4. In his professional judgment, the results of the November 2016 testing would be highly predictive of Mrs NFM's cognition two months later in January 2016; in order to avoid the risk of persons under testing learning the questions through recurrent testing and manipulating the results - what he described as "practice effect" - it is good practice not to administer the relevant tests less than six months after the same tests have been administered, and in this case he would not have done otherwise.
As with Dr Y, when questioned by the Tribunal, Mr Svehla, Mr DBL and Ms Rogers, Dr X's evidence was clear, confident and consistent. His evidence as to the depth of testing undertaken and as to the particular characteristics which it was designed to assess was particularly helpful, as was evidence as to the progressive decline in Mrs NFM's test results since August 2015, and the conclusions to be drawn from it as to her increasing cognitive impairment. The Tribunal considered Dr X to be an honest, truthful and reliable witness, and believed that his views should be given considerable weight.

[34]

Dr S's views

The next relevant report is from Dr S, a neurologist, and is dated 18 January 2017: 1. Dr S records the result of his physical examination and interview with Mrs NFM, and of a cognitive screening which he undertook with Mrs NFM, being the Montreal Cognitive Assessment. In this test, she scored 20/30 which, Dr S notes, is "…in the impaired range". 2. He notes that: 1. Mrs NFM "…had difficulty across the range of cognitive domains, and in particular delayed recall, but also with tasks assessing working memory and executive function…"; 2. "It seems clear that [Mrs NFM] has a degree of cognitive impairment. I have limited corroborative history from the family, though it does appear that there is some disagreement amongst family members as to what that history actually is, therefore I'm not sure how reliable further corroborative history would be..." ; and 3. "Notwithstanding the fact that [Mrs NFM] does have a degree of cognitive impairment, she may still be capable of making decisions for herself. Unfortunately, the only way to know this sure [sic] is to subject Mrs NFM to a formal neuropsychological assessment…"
There are two aspects of Dr S's report which require comment: 1. His report confirms what was already known at the time of the 2015 Tribunal hearing, that Mrs NFM has a degree of cognitive impairment. His description of the range of her difficulties adds some detail. 2. He does not appear either to have had any detailed history of Mrs NFM's condition, or to have been briefed with the results of earlier medical or psychological assessments. Had he been provided with Dr X's November 2016 neuropsychological assessment (which had been made just over two months previously) then presumably he would have been able to draw relevant conclusions from it rather than to recommend that such an assessment be made. 3. In reality, Dr S's report says that without Mrs NFM's undertaking precisely the sort of testing and assessment process which she had recently undertaken with Dr X he was not in a position to express any definitive view as to her capacity.
In the Tribunal's view, Dr S's report is not inconsistent with the evidence provided by Dr Y and Dr X and does not cast any doubt on their assessments as to Mrs NFM's cognition in November 2016.

[35]

Professor R's views

The next major report is from Professor R, a Senior Specialist Neurologist at Public hospital C. It is dated 12 April 2017, and in it Professor R: 1. Outlines a brief personal and medical history of Mrs NFM; 2. Indicates that he conducted a mini-mental state examination, in which Mrs NFM scored 26/30; and 3. Records: 1. his impression, that Mrs NFM "…does not suffer dementia but has mild cognitive impairment…"; and 2. his opinion, that Mrs NFM "…has the capacity to make decisions regarding…the use and disposition of her assets".
Professor R's report is something of an outlier, in that: 1. all the other specialist reports at or about that time are consistent in their view that Mrs NFM has dementia; and 2. they conclude either that further investigation as to her capacity to make financial and property decisions is required, or that she lacks the necessary capacity to do so.
The Tribunal is disinclined to treat Professor R's report as outweighing the earlier ones described above, for several reasons: 1. He had when making it only brief acquaintance with Mrs NFM, unlike Dr Y and Dr X. His views were, therefore, more likely to be coloured by her presentation for a relatively brief period on the day, rather than by observation of Mrs NFM's cognitive capacities on several occasions over an extended period. 2. He does not refer to (and presumably was not briefed with) any of the other relevant reports concerning Mrs NFM's cognition. His familiarity with her cognitive history was therefore limited. 3. Moreover, his report was made on a referral from Mrs NFM's general practitioner, Dr Q, who according to other evidence (to which these reasons will return below) had only been her doctor since 16 January 2017. Dr Q's relatively recent involvement in Mrs NFM's medical care raises doubts as to whether he himself had a sufficiently intimate familiarity with her medical history to ensure that Professor R's views were based on a full understanding of Mrs NFM's relevant medical history. 4. As outlined below, as Professor Z states, the mini-mental state examination test on which Professor R in part based his views is not a test which is able to identify the fronto-temporal pattern of deficit which affected Mrs NFM. While it is a perfectly appropriate screening test to administer, it is not one which is calculated to reveal Mrs NFM's particular cognitive deficits.

[36]

General practitioners' views

Mrs NFM had from mid-January 2016 two general practitioners: Dr V, of Inner West Sydney, who had been her regular doctor there for some years and Dr Q, of Eastern Sydney, whom she first consulted on 16 January 2017.
Both Dr V and Dr Q issued brief reports of consultations with Mrs NFM on that day: 1. Dr V's report refers to Mrs NFM being well and her vital signs being within normal limits; this self-evidently provides little guidance concerning her cognitive capacity in early to mid-January 2017. 2. Dr Q's report states that: 1. He saw Mrs NFM for the first time on that day; and 2. on examination he "…could not find any evidence of a dementia process…".
There are further brief reports from Dr Q dated 14 March 2017, 14 August 2017 and 19 October 2017, all of which are to similar effect, consistently remarking on Mrs NFM's relatively robust physical health and mental acuity.
A later report from Dr Q, dated 26 March 2018, agrees that Mrs NFM has mild vascular dementia, while raising questions as to the extent to which her memory difficulties were attributable to physical causes (such as infection or thyroid disease) or depression.
The opinions of Dr Q, at least in relation to Mrs NFM's cognition in early-2017, are not in the Tribunal's view sufficient to outweigh the evidence of Dr Y and Dr X from late-2016. This is for several reasons: 1. Dr Y and Dr X had a long-standing familiarity with Mrs NFM's cognition. Their opinions are underpinned by a direct observation of her cognitive decline which Dr Q simply could not have had at the relevant time, and can therefore be considered as representing more informed assessments than Dr Q's. 2. Dr Y and Dr X reach their views on the basis of specialised testing and specialist expertise, while Dr Q's report does not disclose what (if any) testing methods he adopted. Moreover, Dr Q is not a specialist in the area, a statement of the obvious which should not be taken as implying any criticism. What it does indicate, however, is that in any conflict between his views and those of a specialist such as Dr Y, the specialist's views should be given more weight. 3. Moreover, as discussed below in comparing Dr P's and Professor Z's reports, the test of capacity which Dr Q subsequently indicated that he applied goes to the grantor's general understanding of the relevant documents. This is not consistent with the test which emerges from various NSW Supreme Court cases as being the correct one.

[37]

Carer evidence

Amongst the material submitted on behalf of Ms EZO was a letter dated 18 January 2017 and prepared at Ms EZO's request by Ms O, clinical director of the healthcare service provider. The letter states that this organisation had been attending Mrs NFM at home daily since 2014, as a Department of Veterans' Affairs patient, to provide "…medication prompting and vital signs monitoring...".
The letter states that the last visit by the healthcare service provider nurses to Mrs NFM occurred on 3 January 2017. It can usefully be quoted at length: "In late 2016 [Mrs NFM] was placed in respite care but was evidently removed before the booked respite period ended as she was crying all day. Since her return home, the Nurses have reported declining mobility and increased oppositional and paranoid behaviours and resistance/refusal of treatment. The situation can been [sic] quite volatile and unpredictable. On 29/12/16 [Mrs NFM] was found by the nurse from [the healthcare service provider] to be confused and disorientated and there was evidence of her combining alcohol and medications. The Geriatrician was consulted and requested that [Mrs NFM] be taken to Hospital. The ambulance was called, but [Mrs NFM] refused to go and paramedics stated that they could not take her against her will. [A] community geriatrician is understood to have conducted a home visit that afternoon, following a request from [Dr Y]. Mrs NFM has repeatedly stated that she thinks people are listening/watching her. On 5th January 2017 [Dr Y], Geriatrician, instructed the [healthcare service provider nurse] to arrange hospital admission for [Mrs NFM]. A next of Kin took her to [Public hospital A] but [Mrs NFM] refused to stay and returned home with her daughter [Ms DAT] who is not included in the Guardianship Order, without the knowledge of the Hospital or the guardians. Her whereabouts is [sic] still unknown to the guardians and a missing person report was filed with the Police by the [Public hospital A] and the joint guardians...".
Although this communication is both anecdotal in nature and hear-say (and should therefore be treated with a degree of reserve), it does - subject to those reservations - record observational evidence as to Mrs NFM's mental condition at the relevant time from third parties who have relevant professional training appropriate to make them informed observers. This observational evidence is not inconsistent with the views expressed by Dr Y and Dr X.

[38]

Dr P's views

The next major report is dated 2 April 2018 and was prepared by Dr P, a clinical neuropsychologist with a particular academic background and professional experience in the cognitive functioning of persons with dementia, as summarised in her report.
Dr P was briefed with relevant reports and records, including Professor R's report and Dr X's 2015 report. She also reviewed Mrs NFM's clinical notes from her admission to Public hospital B between 18 October 2016 and 3 November 2016, together with reports of MRI scans of her brain in August 2015 and January 217. She does not record having seen any of Dr Y's reports, or Dr X's November 2016 report. Dr P administered a battery of psychological tests, and interviewed Mrs NFM at length. She also interviewed Ms DAT and Ms NXQ.
Dr P voices several conclusions: 1. Mrs NFM's general level of cognitive functioning is consistent with the early-moderately advanced stages of dementia, and her cognitive function appears to have declined progressively since 2015. She displays cognitive deficits in the areas of memory/new learning, insight, working memory capacity, inhibition, abstract reasoning, set shifting/mental flexibility and visuospatial function. 2. Although Mrs NFM remains capable of handling small amounts of money, she requires oversight and assistance with higher-level financial matters, and is vulnerable to financial exploitation as a result of factors including her limited education and financial experience, trust in others, social isolation, dependence on others, cognitive impairment and lack of insight. 3. She currently demonstrates the ability to understand the broad concepts of an enduring power of attorney and an enduring guardianship "…in so far as she is able to comprehend the fact that their combined roles are to look after her financial, health and care needs…". Dr P further says that Mrs NFM "…demonstrates an awareness in a broad sense, of the powers an attorney would have, however she becomes a little confused when she is asked more specific questions around the powers an attorney would assume in relation to her specific assets". [Emphasis added] The underlined passage appears to refer back to paragraphs 78 and 79 of Dr P's report, which summarise a conversation between her and Mrs NFM concerning the functions of an attorney, in which Mrs NFM suggested that an attorney's powers were effectively limited to dealing with "…mainly the money and my books and things like that". 4. Dr P expresses the view that, assuming the functions of an enduring attorney and an enduring guardian were explained to her at the time she executed the relevant documents in early-2017, there is no reason to suspect that her understanding at that time was in any way inferior to her understanding at the time of her consultation with Dr P in April 2018, as summarised above. 5. There is no reason to doubt her capacity in early-2017 to communicate her wish for Ms DAT to look after her finances and person.

[39]

Professor Z's views

The last major report is dated 11 April 2018, by Professor Z (FRANZCP). Professor Z is a practising psychiatrist with, as her report indicates, a particular focus on old age, palliative and human rights psychiatry. She holds professorial appointments at universities in Sydney and has a vast record of academic publication and research in these areas. Her report was obtained by Mrs NFM's separate representative at the request of the Tribunal and with the concurrence of the parties and their representatives. The Tribunal's purpose in doing so was to have a psychiatrist of acknowledged expertise in the area and of unquestioned independence provide the Tribunal with: 1. To the extent practicable in 2018, an assessment of Mrs NFM's capacity as at early-2017; 2. An assessment of Mrs NFM's current cognitive position; and 3. Expert guidance in assessing and reconciling the apparently inconsistent medical and psychological opinions in late-2016 and early-2017, concerning Mrs NFM's capacity.
Professor Z was briefed with, amongst other reports, those referred to above of Dr Y, Dr X, Professor R, Dr S, Dr Q and Ms O. She examined Mrs NFM for 1.5 hours on 5 April 2018 and administered a Mini Mental State Examination (in which Mrs NFM scored 20/30) and an Addenbrooke's Cognitive Examination (in which she scored 62/100). Subsequently, after formulating her opinion, Professor Z read Dr P's report.
In summary, Professor Z's conclusions are that: 1. Mrs NFM has an early to moderately advanced dementia complicated at times by behavioural and psychiatric symptoms of dementia; 2. It is more probable than not that she lacked the capacity to revoke and appoint an enduring guardian in January/February 2017; 3. It is more probable than not that she lacked the capacity to revoke and appoint an enduring attorney in January/February 2017; 4. Mrs NFM currently lacks capacity to appoint or revoke enduring powers of attorney or guardianship documents; 5. Mrs NFM requires the appointment of a guardian; and 6. Mrs NFM requires the appointment of a financial manager.
In undertaking her assessment of capacity early in 2017, Professor Z outlines at some length in her report the methodology which she adopts. This is to assess the circumstances by reference of four broad categories of criteria which she describes as the "why" of the appointment, the "what" of the appointment, the "who" of the appointment, and finally the "freedom" of the appointment.
In assessing the various medical and psychological opinions expressed in late-2016 and early-2017, Professor Z makes two particularly salient observations: 1. To the extent any assessment of Mrs NFM's capacity was based on a mini-mental state examination without either additional detailed testing or corroborative evidence as to Mrs NFM's psychiatric condition and behaviour, it depended on the results of a test which was not able to identify the pattern of deficit which affected Mrs NFM - being fronto-temporal in focus. This, Professor Z suggests, explains the divergence between medical opinions in late-2016 and early-2017, which has caused the Tribunal some difficulty to reconcile. 2. She disagreed with the test applied by Dr Q in his opinions as to what was sufficient knowledge on Mrs NFM's part concerning the purpose and effect of the 2017 EPA and the 2017 EGA in assessing her capacity to grant them. Dr Q states in his letter of August 2017 that Mrs NFM "…may not be able to explain in depth what a Power of Attorney or Guardian is, but she does have suitable knowledge of their meaning". Professor Z disagrees; the rudimentary understanding which Mrs NFM displayed to Dr Q was not sufficient, especially in the context of family conflict and the risk of undue influence, to demonstrate a proper comprehension of the purpose and effect of the 2017 EPA or EGA, the EGA Revocation, the First EPA Revocation or the Second EPA Revocation.

[40]

A comparison of Dr P's and Professor Z's reports

At the outset, it must be noted that both Dr P and Professor Z were called upon to express views in 2018 as to Mrs NFM's capacity at a time more than 12 months earlier without having examined Mrs NFM at or about the relevant time. Both expressed their views with appropriate qualifications.
Their approaches to the question were quite different: 1. Dr P reached the conclusion that Mrs NFM currently has capacity to understand the concepts of enduring guardianship and enduring powers of attorney, assumed that her cognition was unlikely to have improved between January 2017 and April 2018, and logically deduced that "…there is no reason to suspect that her current [sic] understanding of these legal concepts was any less good in the early part of 2017 than it is currently…". 2. Professor Z, however, applies the methodology briefly summarised above to form an independent assessment based on the evidence available in April 2018 of: 1. Mrs NFM's current cognition, and 2. her capacity at the relevant time to enter into the various instruments in question, which she concludes was more probably than not inadequate for that purpose.
Also different are their respective conceptions of capacity: 1. Dr P's test of capacity (from which she draws her conclusion) is a relatively generous one. This is that since Mrs NFM "…demonstrates the ability to understand the broad concepts of an enduring power of attorney and enduring guardians…" and "…demonstrates an awareness, in a broad sense of the powers an attorney would have…" she has the necessary capacity, even though "…she becomes a little confused when she is asked more specific questions around the powers an attorney would assume in relation to her specific assets...". 2. Professor Z, however, applies a narrower approach. This is that a more detailed understanding of the nature and effect of the instruments (and in particular of the specific powers and authorities of the appointee) is required in order to demonstrate capacity, particularly in the context of long-standing conflict and dispute within the family. Referring to Dr Q's description in August 2017 of Mrs NFM's understanding of the authorities of attorneys, as being that Mrs NFM "…may not be able to explain in depth what a Power of Attorney or Guardian is, but she does have suitable knowledge of their meaning..", Professor Z takes issue, on the basis that a more detailed understanding is required in order to demonstrate capacity.
The Tribunal prefers Professor Z's conclusion, not because of any particular preference as between their respective methodologies, but rather because it considers that Dr P's starting point - that an understanding of "…the broad concepts of an enduring power of attorney and enduring guardians…" is a sufficient basis for identifying capacity to grant such an instrument - is not consistent with the relevant legal tests and therefore flaws her conclusion.
The High Court of Australia describes in Gibbons v Wright (1954) 91 CLR 423, at 437 and 428, the general test of capacity: "[T]he mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained", and in doing so emphasises that capacity is determined by reference to criteria which depend, to a significant degree, on the nature of the transaction effected by means of the relevant instrument.
Several New South Wales cases have applied this general test in the context of questions as to the capacity of a donor to grant an enduring power of attorney, including by Young CJ in Eq in Ranclaud v Cabban [1988] ANZ ConvR 134, by Barrett J in Szoda v Szoda [2010] NSWSC 804, and by Lindsay J in Scott v Scott [2012] NSWSC 1541. All these cases proceed on the basis that since in granting an enduring power of attorney a donor confers on his or her attorney extremely wide powers for an indefinite period, the donor's capacity to do so should be assessed by reference not to a general understanding that the attorney can in consequence perform acts or enter into transactions on the donor's behalf, but rather to whether the donor had a detailed understanding of specific types of acts and transactions which the attorney was authorised to undertake. Because an enduring guardianship appointment is similarly wide in scope (within the limits of the particular functions conferred on the enduring guardian) and indefinite in duration, it follows in the Tribunal's view that a similarly granular understanding of its effect should be expected of a person who grants such an enduring guardianship.
The Tribunal's concern with Dr P's opinion is that it assesses capacity by reference to an understanding of the broad concepts of both types of instrument, rather than an appreciation of specific types of decision that may be made under them. This is clear from Dr P's observation that Mrs NFM "…becomes a little confused when she is asked more specific questions around the powers an attorney would assume in relation to her specific assets...". Professor Z's approach is, in the Tribunal's view, more in line with these authorities, by looking to a more granular understanding of the authorities conferred under the relevant instrument than does Dr P's more general test. The Tribunal, therefore, prefers Professor Z's assessment.

[41]

Family relationships

Relationships between Mrs NFM and her daughters have been changeable and at times tense, as they have been between the daughters themselves. These tensions have brought Mrs NFM, her family and her affairs before the Tribunal on a previous occasion, when on 15 October 2015 the Tribunal dismissed guardianship and financial management applications brought in respect of Mrs NFM by Ms NXQ. It did so because at the relevant time, although the medical evidence was that Mrs NFM had mild dementia: 1. She remained capable of making all decisions which might be conferred on a guardian; and 2. She was not incapable of managing her affairs.
A succession of documents (including what is possibly either a will or a draft will) record the evolution of Mrs NFM's views of her daughters over the past four years: 1. Her will of 23 July 2014 leaves her estate in equal shares to Ms EZO, Ms BYW and Ms NXQ in equal shares, and specifically excludes Ms DAT from any inheritance because of previous financial provision made for her by Mrs NFM. 2. Her will of 21 December 2015 maintains Ms DAT's exclusion for the same reason, but limits Ms NXQ's participation to a modest share in any bank accounts. It explains this decision by reference both to a breakdown in their relationship attributable to the guardianship application made by Ms NXQ in 2015 and prior financial provision made for Ms NXQ. Ms EZO and Ms BYW are beneficiaries in equal shares, and Mrs NFM refers specifically to the 20 years of care she has received from them "…personally, financially and emotionally". The copy provided to the Tribunal is unsigned and may merely be a draft. 3. This approach is consistent, in any event, with a handwritten letter signed by Mrs NFM, apparently addressed to Ms NXQ, in which Mrs NFM expresses disappointment at what she considers to be Ms DAT's neglect of her, hostility towards Ms NXQ for making the 2015 guardianship application ("She thinks every-one loves her, But she has another think coming") and satisfaction with Ms EZO and Ms BYW: "I have [Ms EZO] & [Ms BYW] here to look after me, and that is all I want." 4. Her will of 1 April 2016 limits Ms NXQ's inheritance to $15,000, similarly makes no provision for Ms DAT, and leaves her estate in equal shares to Ms EZO and Ms BYW, who are also her executors. This will, however, does not include explanatory commentary. 5. A handwritten submission by Mrs NFM which she delivered to the Tribunal at its hearing on 17 November 2017 records a radical change in relationships. In it Mrs NFM now: 1. expresses fear and mistrust of Ms EZO, accusing her of financially abusing her, over-medicating her, financially exploiting her and isolating her from other family members; and 2. expresses confidence in and reliance on Ms DAT.
Mrs NFM's oral evidence was consistent with her handwritten submission.
Several factors appear to underlie these shifts: 1. Ms NXQ's disfavour followed, and from the handwritten letter to Ms NXQ appeared to some degree to be in reaction to, her making of the 2015 guardianship application. 2. Ms EZO's disfavour followed, and again to some degree appeared to be in response to, her decision to hospitalise Mrs NFM in late-2016 and to admit her to an aged care facility for respite care following her discharge from hospital. This is set out in Mrs NFM's written submission, and was a point made by her on several occasions during her oral evidence. 3. It is compounded by a perception on Mrs NFM's part that her Southern Sydney property and certain at least of her holdings of cash have been put in Ms EZO's name (albeit as co-owner with Ms BYW, but it is Ms EZO not Ms BYW who is the object of her mother's hostility) as a device to deprive Mrs NFM of her assets.
At this point it is appropriate to note Ms EZO's evidence on these financial and property matters: 1. Both the house and the relevant bank deposits are held in her and Ms BYW's names. 2. This arrangement was adopted at Mrs NFM's insistence, in order to give her comfort that the property and money were protected from other family members. Mrs NFM's memory impairment means that she is unable to recall her intentions.

[42]

SUBMISSIONS

Mr Svehla's submissions for Ms EZO were in broad summary as follows: 1. A review of the medical evidence is that Mrs NFM lacked the capacity to execute the EGA Revocation, the First EPA Revocation, the Second EPA Revocation, the 2017 EGA and the 2017 EGA. 2. In view of the decline in her mental condition and capacity since 2015, Mrs NFM needs a substitute decision-maker for both financial and major personal decisions. 3. The consequence of the conclusion in (1) is that the 2014 EGA, the 2014 EPA and the 2015 EPA remain in effect. It is, however, inappropriate for any family member to act as substitute decision-maker, in view of the family dynamic. 4. The best course is for independent and objective decision makers to be appointed for Mrs NFM: the Public Guardian for personal decisions, and the NSW Trustee and Guardian for financial and business matters.
Mr DBL's submissions on behalf of Ms DAT were in broad summary as follows: 1. The starting presumption is that Mrs NFM had capacity at the relevant time to execute the instruments. 2. The evidence is not sufficient to displace that presumption. In particular, the broadly contemporaneous medical evidence is inconsistent, and does not displace that presumption. 3. There are serious questions concerning the conduct of Ms EZO as attorney and enduring guardian, and it is not in Mrs NFM's best interests for Ms EZO to be placed in authority over Mrs NFM and her affairs. 4. The 2017 revocations and appointments in favour of Ms DAT should continue in Mrs NFM's best interests.
Ms Rogers, as separate representative for Mrs NFM, submitted in summary as follows: 1. The weight of medical evidence is that in late-2016 and early-2017 Mrs NFM lacked the capacity to execute the EGA Revocation, the First EPA Revocation, the Second EPA Revocation, the 2017 EGA and the 2017 EGA. 2. The logical consequence is that Ms EZO and Ms BYW remain in place as Mrs NFM's enduring guardians and attorneys. This however establishes a decision-making regime for her which is inherently unstable and to which she is hostile. 3. To avoid this unsatisfactory outcome, it is in Mrs NFM's best interests to treat the applications as applications for guardianship and financial management orders. 4. The Public Guardian should be appointed as Mrs NFM's guardian, and the NSW Trustee and Guardian as financial manager, in order to ensure that decisions are made for her by an independent and dispassionate decision-maker charged with acting in her best interests.

[44]

The 2017 EGA

The Tribunal's view is that the weight of evidence supports the proposition that Mrs NFM did not have capacity to grant the 2017 EGA: 1. The assessments made by Dr Y and Dr X in late 2016 both indicate that her decision-making capacity was impaired shortly before the relevant time, and it is a strong inference (especially in view of Dr Y's very clear evidence that no temporary factors were involved in the cognitive decline which he identified) that her capacity did not improve during the period of two months between those reports and the execution of the 2017 EGA. 2. No other medical or psychological evidence convincingly challenges Dr Y's and Dr X's conclusions. 3. Professor Z's report is supportive of those conclusions, and for the reasons outlined above the Tribunal prefers her report to that of Dr P on this issue.
Ms DAT has not sought the revocation of the 2017 EGA, but in the Tribunal's view it is in Mrs NFM's best interests that it be revoked. In view of: 1. The changeability and unpredictability of Mrs NFM's preferences amongst her daughters, and 2. The toxic relationships both as between Mrs NFM and certain of her daughters, and as between various daughters, to leave an inherently flawed instrument in place as the basis for decision- making concerning Mrs NFM is to expose decisions made or proposed concerning her accommodation and wider care needs to permanent instability. This, in the Tribunal's assessment, is manifestly not in Mrs NFM's interests.
This then leads to consideration of the status of the 2014 EGA and the EGA Revocation. The Tribunal has no authority to set aside the EGA Revocation, although it does have authority under s 6M of the Act to confirm that the 2014 EGA is in effect, if the enduring guardian appointed under it applies for an order. No such application has been made, however, and Ms EZO has indicated that she has no intention of doing so. Where that leaves Mrs NFM, therefore is: 1. With uncertainty as to the status of the 2014 EGA; and 2. if it remains in effect, under the theoretical authority of an enduring guardian, in the person of Ms EZO, for whom Mrs NFM has on numerous occasions vigorously and clearly expressed her distaste. This in the Tribunal's view is an equally unsatisfactory situation which is not manifestly in Mrs NFM's interests. In order to deal with these unsatisfactory outcomes, the Tribunal intends to proceed under s 6K(3)(a) of the Act, as if an application has been made for a guardianship order in respect of Mrs NFM.

[47]

Should the Tribunal make a guardianship order and what order should be made?

The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order: 1. the views (if any) of: 1. the person, and 2. the person's spouse, and 3. the person's carer and 1. the importance of preserving the person's existing family relationships, and 2. the importance of preserving the person's particular cultural and linguistic environments, and 3. the practicability of services being provided to the person without the need for the making of such an order.
These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
Considering these factors: 1. Mrs NFM herself and Ms DAT are in favour of the continuation of the 2017 EGA, but if it is revoked would argue for Ms DAT to be appointed as guardian. Ms EZO supports a guardianship order. Ms NXQ did not participate, and thus expressed no views. Ms BYW appears to be broadly supportive of Mrs NFM's and Ms DAT's position. 2. The mutability of Mrs NFM's preferences concerning her daughters, coupled with the less than cordial relations between some daughters, means that for decision making concerning Mrs NFM's accommodation and care to be left on an informal basis, as seems the logical consequence of revoking the 2017 EGA, leaves decision making at best uncertain and at worst unstable. 3. In the absence of a clear decision-making arrangement, the practicability of services being provided to Mrs NFM on a clear and uncontested basis is questionable. This is particularly important in view of her declining cognition and physical health, and the possibility that in the medium term an accommodation decision will be required.
The Tribunal decided on the basis of all of this evidence that a guardianship order should be made, and that since in the short to medium term decisions can be foreseen concerning her health care, treatment, accommodation and services, the order should extend to those functions.

[48]

Who should be the guardian?

There is a proposal that Ms DAT be appointed guardian for Mrs NFM. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He/she must: 1. have a personality generally compatible with the personality of the person under guardianship, 2. have no undue conflict of interest (particularly financial) with those of the person and 3. be able and willing to exercise the functions of the order.
In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep, and Re B [2011] NSWSC 1075, [66]).
In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed (s 15(3) of the Act).
The Supreme Court has held that: the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).
It is clear from Mrs NFM's evidence that Ms DAT is, for the moment at least, an acceptable candidate for guardianship. It is also clear, however, from the history of Mrs NFM's engagement with her daughters over recent years (which is summarised above) that: 1. The identity of her preferred daughter can change radically with little or no notice, and 2. Mrs NFM's choice of substitute decision-maker appears, to some degree at least, to be driven by either the perceived willingness of a particular daughter to comply with her wishes or, alternatively, Mrs NFM's conclusion that the current decision-making daughter has made decisions with which she (Mrs NFM) disagrees.
What follows in the Tribunal's view is that: 1. Based on Mrs NFM's conduct over recent years, decisions by a decision-maker concerning potentially controversial topics (notably accommodation and the linked issue of services) with which Mrs NFM disagrees carry an appreciable risk of eliciting a reaction from Mrs NFM which is directed either at reversing the decision or punishing the decision maker. The risk inherent in this is that a decision maker will be reluctant to make decisions which are in Mrs NFM's best interests but not in accordance with her wishes. The logical consequence, in Mrs NFM's best interests, is that the decision maker on such topics should be an independent person over whom Mrs NFMis not in a position to exert emotional or other influence, such as the Public Guardian. 2. Decisions concerning relatively non-controversial topics, such as health care and treatment, can more safely be left in the hands of a family member. Ms DAT is the family member for whom Mrs NFM expressed a general preference in the 2017 EGA. Mrs NFM continues for the moment to have confidence in her, she remains willing to undertake that role, and there is no indication that decision-making by Ms DAT for her mother over the past fifteen months in these areas has not been successful. It follows that Ms DAT should continue to be that family member.
On the basis of this evidence, the Tribunal was satisfied that: 1. Ms DAT meets the requirements to be appointed as the private guardian for Mrs NFM, in relation to decisions concerning health care and medical and dental treatment; and 2. the Public Guardian should be appointed as guardian for Mrs NFM to make decisions concerning her accommodation and services.

[55]

Is there a need for a financial management order?

Mrs NFM's affairs are quite complex: 1. On a day-to-day level her financial needs appear to be straightforward - being bill payment and the receipt of income - and to have been effectively managed on her behalf by Ms EZO, and subsequently Ms DAT; but 2. Her underlying asset position and history of large financial dealings needs attention: 1. It is clear that she lives in a property in Southern Sydney purchased using the proceeds of sale of her properties in Inner West Sydney; what is not clear is whether this property is held on trust for her by Ms EZO and Ms BYW, who are the registered proprietors or whether it was purchased for them as a gift, subject to some kind of life interest for Mrs NFM; 2. It is not clear whether the balance remaining of the sale proceeds, which the Tribunal was told was in the order of $690,000, is held in the names of Ms EZO and Ms BYW as her trustees, or was a gift to them on condition presumably of their providing continuing financial support; 3. Whatever the arrangements involved, there does not appear to be any clear documentation of them; and 4. There appears to be, from the oral evidence provided by Mrs NFM and various of her daughters, some history of Mrs NFM providing large amounts to her daughters; unfortunately, there was little common ground as to the basis on which these amounts were provided.
All of this tells the Tribunal that: 1. Mrs NFM is potentially at financial risk, and 2. It is in her interests that her financial position be clarified, and in particular that the status of payments made by her and property acquired using her money be clarified and regularised.
The Tribunal was satisfied that: 1. there is a need to appoint someone to manage Mrs NFM's affairs; and 2. it is in the best interests of Mrs NFM that a financial management order be made.
It should be emphasised that the Tribunal makes no findings as to the circumstances in which any such payments were made or property acquired, or as to the conduct of any person in relation to such payments or acquisitions. Its decision cannot (and must not) be misinterpreted as voicing or implying any criticism of any of Mrs NFM's daughters' conduct in relation to the management of her affairs.

[56]

Who should be appointed as financial manager?

In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Act.
Section 25M of the Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian.
Ms EZO said that she supported the appointment of NSW Trustee and Guardian as Mrs NFM's financial manager, in order: 1. To ensure that Mrs NFM's affairs are managed by a competent and neutral third party; and 2. In doing so, to remove a source of discord from Mrs NFM's life and that of her daughters.
Mrs NFM said that she preferred Ms DAT as her financial manager, and Ms DAT and Ms BYW expressed willingness to be appointed. The Tribunal's view on this proposal was as follows: 1. Ms BYW is not an appropriate candidate for appointment. This has nothing to do with her personal qualities, but rather is because she would potentially have a conflict of interest in acting as her mother's financial manager. Part of the functions of a financial manager will be to identify and regularise the arrangements relating to the real property and cash deposits derived from the sale of the Inner West Sydney property and held by Ms EZO and Ms BYW. Clearly, Ms BYW cannot be on both sides of that process, as she would if appointed as financial manager for her mother. 2. Ms DAT does not have so clear a conflict of interest, although in view of the comments made by Mrs NFM in her 2014 and 2015 wills it is conceivable that any review by a financial manager of Mrs NFM's history of large gifts to family members might extend to the gifts to Ms DAT referred to in those wills. Of more concern to the Tribunal is that, were Ms DAT appointed as financial manager, any attempt by her to clarify and regularise the status of payments made by Mrs NFM and of property acquired using her money would be inevitably (and inextricably) linked with the long history of conflict amongst Mrs NFM and various daughters. This would only detract from the effectiveness and integrity of the process of identifying and regularising Mrs NFM's asset position. 3. Moreover, in view of the history of Mrs NFM's relationships with her daughters over recent years, the Tribunal is inclined to the view that for a family member to have charge of her finances will serve only to generate further discord amongst the family members, something which is self-evidently not in Mrs NFM's best interests.
The Tribunal was satisfied, therefore, that the estate of Mrs NFM should be committed to the NSW Trustee and Guardian.
The making of a financial management order has the effect of suspending any enduring power of attorney for the duration of the order (s 50(3), Powers of Attorney Act). This clearly means that the 2014 EPA and the 2015 EPA are suspended, and that no attorney is authorised to undertake any transactions on Mrs NFM's behalf under them.

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