OBQ [2020] NSWCATGD 59

[2020] NSWCATGD 59

NCAT Guardianship|2020-09-11|Before: Slattery J

View original source

At a glance

Source facts

Court

NCAT Guardianship

Decision date

2020-09-11

Before

Slattery J

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

Background

OBQ is 86-years-old and lives at an aged care facility in regional NSW. His wife died in 2017. He has four adult children who are LAQ, TYQ, DZC and WBX.
On 9 October 2017 OBQ made an enduring power of attorney appointing DZC as the attorney and WBX as the substitute attorney.
On 12 February 2018 OBQ executed a Revocation of Power of Attorney, revoking the power of attorney appointing DZC as the attorney. The date of the power of attorney is not recorded in the revocation.
A copy of letter to DZC dated 14 March 2018 from a law firm, advises that DZC's appointment as OBQ'ss attorney had been revoked.
On 28 March 2018 OBQ executed a Revocation of Power of Attorney, revoking the power of attorney dated 9 October 2017 appointing DZC as the attorney. On that day OBQ also executed a revocation of the appointment of DZC as his enduring guardian.
A copy of a letter dated 29 March 2018 addressed to DZC advises of the revocation of the enduring guardianship appointment.
On 6 April 2018 OBQ made an enduring power of attorney appointing LAQ and TYQ as the attorneys.
On 25 May 2020 the Tribunal received an application from DZC seeking a review of the enduring power of attorney made on 6 April 2018 appointing LAQ and TYQ as the attorneys. In the application DZC seeks a review of the operation and effect of the enduring power of attorney.
On 9 July 2020 the Tribunal received an application from DZC seeking a review of the revocation of the enduring power of attorney that appointed her as the attorney.
On 2 July 2020 at a Directions hearing, the Tribunal ordered that OBQ be separately represented at the hearing and made directions regarding the filing and serving of documents.
At a Directions hearing on 31 July 2020 the Tribunal consented to OBQ being legally represented by Sean Radburn, refused an application by LAQ and TYQ for legal representation and ordered that OBQ be assessed by a geriatrician.

[3]

Concerns raised by DZC

DZC claimed that over time, and before the revocation of the enduring power of attorney appointing her and the making of the enduring power of attorney appointing her brothers, LAQ had borrowed large sums of money from OBQ, including a loan of $250,000 and a loan of $25,000 that had been being repaid by Ms Z, the partner of LAQ. She also advised that LAQ had been declared bankrupt in 2014.
OBQ's property at [Address removed for publication.] ("the Property") was let after OBQ entered the aged care facility. DZC noted that the rent was paid by cash from18 October 2018 until 12 July 2019 and on her calculations, should have generated an income of approximately $13,850 based on weekly rental of $350. She was of the view that those funds have not been properly accounted for.
DZC raised a number of concerns about the sale of the Property by the attorneys and the sale of the furniture and effects from the house, including: 1. She was of the view that OBQ was unaware of the sale of the property; 2. The refundable accommodation deposit (RAD) at the aged care facility had not been paid despite funds being available from the sale of the property; 3. A bank account from Bank YZ had been opened for OBQ. The funds from the sale of the Property had been placed in that account instead of in OBQ's existing savings account from Bank AB. In her view, it was not necessary to open the new bank account; 4. Funds had been removed from OBQ's Bank YZ account following the sale of the Property. Specifically two withdrawals of $193,500 had been made and were transferred to accounts later identified as being those of the attorneys; 5. The disbursements note that a sum of $3898 was used to discharge a Retail and Small Business Loan from Bank WX for which payment instalments had previously been made by Ms Z, the partner of LAQ.
Further issues raised regarding dealings with OBQ's affairs were: 1. In April 2020 a total of $17,000 was transferred from OBQ's account to that of TYQ; 2. Further transfers of funds amounting to $31,500 were made in April 2020; 3. The aged care facility account had frequently been in arrears and OBQ's Bank AB account had six incidents of dishonoured withdrawals or overdrawn funds between 17 May 2019 and 3 April 2020; 4. Some $800 had been spent as unclassified expenses; 5. There have been extensive dealings with OBQ's affairs and the attorneys have not kept proper records; 6. The estate has been diminished by the actions of the attorneys.
DZC was also concerned about the whereabouts of OBQ's motor vehicle and the fact that the rates on OBQ's property had been overdue.
DZC expressed the view that her contact with OBQ had been restricted by LAQ who had blocked her telephone number on her father's telephone and had diverted calls to that telephone to his own telephone. In her view OBQ was misled into revoking the enduring power of attorney appointing her and making the new appointment of her brothers because he had been told by her brothers that she had not sought contact with him.
DZC also advised that she was told by TYQ that LAQ had a taxation debt of some $500,000 in which he had implicated his parents and that TYQ was intending to pay the parents' half share.
In respect of the revocation of the power of attorney appointing her as the attorney: 1. DZC was of the view that OBQ executed that document believing that he was revoking an enduring guardianship appointment. For some time during the hearings DZC asserted that there was no revocation of an enduring guardianship appointment and that therefore when he was intending to revoke the enduring guardianship OBQ had in fact executed the revocation of the enduring power of attorney. In her view this situation amounted to OBQ being misled into revoking the enduring power of attorney. She also noted that there was no evidence that a Greek interpreter had assisted OBQ when executing those documents; 2. She believes that her brothers influenced OBQ to revoke her appointment as the attorney and appoint them on the basis that she had not been in contact with him, when, in fact, the telephone diversions had prevented her contacting him; 3. She denied removing items from OBQ's home without his permission.

[5]

Evidence and submission of LAQ

LAQ expressed the view that OBQ retains the ability to direct his attorneys regarding the management of his affairs and that as the attorney he has acted on those instructions.
In respect of specific matters raised by DZC, LAQ offered evidence and made the statements and submissions to the following effect: 1. He denied that a loan of $25,000 taken out by his parents was for his benefit. He states that part of the funds was given to his sister, WBX, and he assumes that the remainder of the funds was used by his parents. He stated that he and Ms Z have been repaying the loan with the agreement with his parents, because "that is what families do," and that the loan was discharged on the sale of the Property; 2. He advised that he was declared bankrupt on 2 May 2014 and was discharged from bankruptcy in 22 July 2017. He provided documentary evidence of the discharge; 3. He denied having a taxation debt of $500,000 and states that he has contacted the Australia Taxation Office who have confirmed that he does not and has never owed such a debt; 4. In respect of the cash rental income from the Property of OBQ's, the money was used for OBQ's expenses. However from May 2019, the tenant requested to pay the rent directly into the bank account and all the funds were directed to the nursing home fees as OBQ was receiving a reduced aged care pension; 5. He had OBQ's car registered in his own name because WBX had told him that a family member was looking to take it; 6. In respect of the furniture and other items in the Property, he advised that some was sold and some disposed of. He provided the Tribunal with copies of internet communication regarding sale of some property and list of property that was disposed of; 7. He advised that OBQ's aged care fees had gone into arrears when a freeze was placed on his Bank AB account. This occurred due to an administrative error resulting from OBQ's previous Greek residency status and concerns regarding his Foreign Tax Residency. LAQ provided a copy of a letter dated 18 July 2019 to OBQ at the address of the Property, that refers to issues about foreign tax residency and states that until information was provided regarding that matter a restriction could apply to the account as a result of which he would be unable to transact on the account other than to make deposits or repayments. When LAQ realised what was causing the restrictions on the account he had completed necessary documents at the bank and the restriction was lifted and nursing home fees were paid; 8. In respect of the sale of the Property: 1. OBQ knew about the sale of the property and asked his sons to sell it for him. OBQ had instructed his sons to accept an offer of $470,000 for the property. OBQ signed the discharge of mortgage on 17 March 2020. This indicates that he was aware of the sale, contrary to DZC's concerns that on 6 April 2020 OBQ was not aware of the sale; 2. He signed the contract of sale as OBQ's attorney and settlement took place on 31 March 2020. Net sale proceeds were $446,737.18 which were disbursed as follows: 1. $20,000 repaid to him and his partner for costs incurred on behalf of OBQ for expenses including rates and water accounts, car registration, insurance and medical bills. This amount was paid by way of deposit of $10,000 on 10 April 2020 and $10,000 on 12 April 2020. He had not provided the Tribunal with receipts for the expenses as he had not been asked to do so; 2. The remaining funds are held in two accounts in trust for OBQ. The accounts each have $193,500. One account is in his name and the other account is in the name of TYQ. This action was taken to protect OBQ's funds because DZC had previously accessed his Bank AB account. 1. A decision had not yet been made about paying the refundable accommodation payment as opposed to paying a daily accommodation fee; 2. He has asked DZC to sign over burial plots purchased for her parents and put into DZC's name because he believes that they belong to OBQ and as his attorney he wants to hold the title to the plots; 3. He did divert OBQ's landline to his number and that of his brother because after the death of his wife, OBQ often stayed with his sons and was rarely at his own home. When OBQ first moved into the aged care facility he asked the family not to telephone too often to assist with OBQ settling into the aged care facility.
In relation to the revocation of the appointment of DZC as OBQ's attorney and the appointment of him and his brother to that role, in his written and oral statements LAQ indicated the following: 1. Whilst OBQ's wife was in palliative care, DZC had removed items from the Property. OBQ was often away from the home over this period, staying with family, and when he returned and took stock of the situation after the death of his wife he was upset about the removal of items and had asked his lawyer to seek their return. 2. He had decided to appoint his sons as his attorneys when he was contemplating living with his daughter, WBX, in Sydney and this arrangement would have allowed his sons/attorneys to manage his assets in regional NSW. However he had not been able to remain at WBX's home and had returned to another area in regional NSW.

[7]

The capacity of OBQ

We were provided with a letter from Dr Y, a geriatrician, dated 30 August 2020 addressed to Mr Radburn and incorporating Dr Y's assessment of OBQ's capacity when seen on 20 August 2020. He advises the following: 1. OBQ scored 23/30 on the Mini Mental State Examination (MMSE) and this score represents mild cognitive impairment; 2. During the assessment OBQ had no problems with speech or comprehension and gave a reasonable account of his past and present medical and legal issues; 3. OBQ said that he had appointed his sons as his attorneys under an enduring power of attorney. When asked if he wanted to make any changes to the appointment he said that he did not want to do so. He mentioned that his daughter was interested in taking over the role and that he was not inclined towards that outcome. When asked his reasons he expressed dissatisfaction for reasons that Dr Y has recorded elsewhere but which were not provided to the Tribunal; 4. OBQ understood that nature of a will and said that he has left his estate to each of his four children and that he did not want to make any changes to the will. 5. When asked about assets OBQ was aware that he has no property in his name. He was able to name his bank and an amount and to provide information about his bank balance. 6. OBQ said that he was happy at the aged care facility. He was also aware of his medical conditions and has made appropriate decisions regarding his treatment. 7. Overall, OBQ was able to comprehend questions asked and topics discussed and was able to reflect upon them and to express his wishes clearly. He was aware of his financial standing, his assets and his will and did not want to make any changes. He expressed some concern about family dynamics and interference with his decision making. Dr Y has recorded detail elsewhere in documentation that was not provided with the report. 8. In Dr Y's opinion, OBQ was able to make decisions regarding his enduring power of attorney and to decide about any revocation. 9. Due to his mild cognitive impairment and diagnosis of cancer with a limited prognosis, OBQ is likely to be vulnerable to influence from family members.

[12]

What did the Tribunal have to consider?

The Tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney, or not to carry out such a review: Powers of Attorney Act 2003 (NSW), s 36(1). As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act (s 36(2)). In her application DZC seeks a review of the operation and effect of the enduring power of attorney.
The Tribunal may make a number of orders relating to the operation and effect of a power of attorney if it is satisfied: 1. that it would be in the best interests of OBQ to make the order; 2. that it would better reflect the wishes of OBQ to make the order.
These orders include: 1. An order varying a term of, or a power conferred by, the power of attorney; 2. An order removing a person from office as attorney; 3. An order appointing a substitute attorney to replace an attorney who has been removed from office or who otherwise vacates the office; 4. An order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of power of attorney and appointing a substitute attorney to replace the attorney who vacated office; 5. An order directing the attorney to: 1. Furnish accounts to the Tribunal or someone nominated by the Tribunal; 2. Lodge a copy of all records and accounts of dealings and transactions made under the power; 3. Requiring that the records and accounts be audited and that a copy of the report of the auditor be furnished to the Tribunal; 4. Submit a plan of financial management for approval. 1. An order revoking all or part of the power of attorney; 2. Such other orders as the Tribunal thinks fit.
If on a review of the enduring power of attorney, the Tribunal decides not to make an order under section 36, it may, if it considers it appropriate in all of the circumstances to do so, decide to treat the application for review as an application for a financial management order under Pt 3A of the Guardianship Act 1987 (NSW).

[19]

Conflicts of interest

The Tribunal was required to consider all relevant circumstances, including whether there was evidence of any conflict of interest facing the attorney. As noted in Re R [2000] NSWSC 886, to allow an attorney "With conflicts of interest to continue is something that … has to be watched carefully. If it has to be watched carefully, then it seems to me that it is just a question of fact and degree as to whether in all the circumstances it is in the best interests of the incapable person that that situation continues."
Our concerns as noted above caused us to consider whether there is a conflict of interests between OBQ and his attorneys. However as noted, OBQ has given evidence that the attorneys have acted on his instructions and the medical evidence is to the effect that he is able to provide those instructions. As it is now acknowledged that the funds held in the names of the attorneys are held in trust for OBQ we are satisfied that it is not in his best interests to make an order that could change the arrangements made with his consent.
We note that Dr Y is of the view that OBQ could be liable to influence from family members. In our view taking into account that OBQ has a limited prognosis due to his cancer and has expressed some disappointment at the actions of DZC, it is possible that he has been influenced by the attorneys in the instructions he has given to them.
In the matter of Tulloch (deceased) v Braybon (No 2) [2010] NSWSC 650 at [39] and [40], Brereton J considered the concept of undue influence as that concept applies to dispositions made in circumstances of undue influence: "it must go beyond one of mere confidence and influence, to one involving dominion or ascendancy by one over the will of the other, and correlatively dependence and subjection on the part of the other. …But more is required than the 'influence' that any person might have on another by making an recommendation or giving advice. What is required, as a minimum, is that one have some element of authority or superiority (which may be moral or practical as distinct from legal) over the other."
In our view whilst OBQ might have been influenced by his sons and accepted their advice in instructing them to handle his affairs in the way that they have, the consistent evidence before us is that OBQ has an understanding and interest in his affairs such that his will has not been overborne by the attorneys.
In our view where OBQ retains capacity to instruct his attorneys it is not in his best interests to overturn his decisions and to do so clearly is not in accordance with his wishes. Therefore we made no orders in respect of the operation and effect of the enduring power of attorney and we were not of the view that it was in his best interests to make a financial management order.

[21]

Should the Tribunal conduct a review of the revocation of the enduring power of attorney?

As noted above, DZC was of the view that OBQ was influenced in his decision to revoke the appointment by: 1. the actions of LAQ in blocking her telephone access to OBQ and then asserting to OBQ that she was not interested in contacting him; and 2. some misunderstanding or misleading information that resulted in him being confused about the revocation of the enduring guardianship as opposed to revocation of the enduring power of attorney.
As noted in the section of these Reasons dealing with the review of the operation of the enduring power of attorney, Mr Kambas was of the view that OBQ has capacity to manage his affairs and the Tribunal should not intervene in his affairs.
We are of the view that the evidence discloses some inconsistency about the catalyst for the revocation of the appointment of DZC as the attorney and the appointment of her brothers, in that it was submitted both that these documents were executed because OBQ was moving to Sydney and his sons could attend to his assets in regional NSW and that they were executed because he had moved back to the other part of the State. It is our understanding that the documents were executed prior to OBQ moving back to the other part of the State and into the aged care facility.
As noted above, we are of the view that it is possible that OBQ is now influenced by his sons because he places some reliance and trust in their views, but in our view his will is not overborne by theirs. We accept that DZC's contact with OBQ was reduced when his telephone was diverted following the death of his wife at a time when he was not always living in his home. However we do not accept that DZC was prevented from contacting or seeing OBQ. Whilst we are of the view that OBQ's decision to revoke the appointment of DZC is likely to have included disappointment at limited contact from her, we are also of the view that OBQ was influenced by disappointment about her removing items from the home and also by the issues around the burial plots.
In our view OBQ's decision to revoke the appointment of DZC as his attorney may have been informed by a number of factors and DZC has not brought to the Tribunal evidence of weight indicating undue influence to warrant review of the decision.
DZC submitted that OBQ was misled about the document that he executed as he had thought that he had revoked her appointment as his enduring guardian. We have been provided with copies of two revocations of the enduring power of attorney appointing DZC and a copy of the revocation of her appointment as the enduring guardian. In our view DZC has not brought to the Tribunal any evidence of weight that OBQ was confused or misled about the effect of these documents or that he mistook one for the other.
We are also of the view that the evidence of Dr Y and of the solicitors who have had dealings with OBQ about his affairs, and OBQ's evidence about the revocation, do not provide a basis for a further examination of OBQ's capacity to revoke the appointment. Accordingly in our view we should not review the revocation on that basis.
Having considered the evidence it is our view that there is insufficient evidence to warrant the Tribunal's intervention in this matter. Accordingly we decided not to conduct a review of the revocation of the enduring power of attorney.