QHN [2019] NSWCATGD 34

The hearing

1. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.] It was not disputed that as an attorney and enduring guardian prior to his appointments being revoked, LBT had standing to bring the applications to the Tribunal.
2. The Tribunal was assisted by written submissions from Ms Soto, affidavits from KZB and Mr X and statements from LBT. LBT was assisted by Ms T, solicitor, as a Mackenzie friend.

What did the Tribunal have to decide?

1. The Tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney, or not to carry out such a review: Powers of Attorney Act 2003 (NSW), s 36(1). As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act (s 36(2)).
2. The Tribunal may make a number of orders relating to the making of a power of attorney including the following:

• An order declaring that QHN did or did not have mental capacity to make a valid power of attorney;
• An order declaring that the power of attorney is invalid (either in whole or in part) if the Tribunal is satisfied: 1. QHN did not have the capacity necessary to make a valid enduring power of attorney; 2. The enduring power of attorney did not comply with the requirements of the Powers of Attorney Act; 3. the enduring power of attorney is invalid for any other reason, for example, dishonesty or undue influence.

1. The Tribunal may make a number of orders relating to the operation and effect of a power of attorney if it is satisfied:

• that it would be in the best interests of QHN to make the order
• that it would better reflect the wishes of QHN to make the order

1. These orders include:

• An order varying a term of, or a power conferred by, the power of attorney
• An order removing a person from office as attorney
• An order appointing a substitute attorney to replace an attorney who has been removed from office or who otherwise vacates the office
• 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
• 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
• An order revoking all or part of the power of attorney
• Such other orders as the Tribunal thinks fit

1. If on a review of the enduring power of attorney, the Tribunal decides not to make an order under s 36 of the Powers of Attorney Act, it may, if it considers it appropriate in all of the circumstances to do so, decide to treat the application for review as an application for a financial management order under Pt 3A of the Guardianship Act 1987 (NSW).

Should the Tribunal conduct the review?

1. In Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, Slattery J stated [at 80]: "On an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what... (a party) has produced."
2. We decided to conduct a review of the enduring power of attorney because LBT alleged that QHN had changed longstanding arrangements for the management of her affairs pursuant to an enduring power of attorney at a time that he considered that she was incapable of making the appointment and was subject to undue influence by KZB.
3. We had before us copies of the enduring powers of attorney made by QHN in 1997, 2013, 2018 and 2019. We also were provided with a copy of the revocation of the power of attorney of 2018 by which LBT's appointment of 2013 was confirmed and KZB was appointed as substitute attorney.
4. The Guardianship Division of NCAT is a protective jurisdiction and is obliged to observe the following principles: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.
5. LBT brought to our attention a situation where at face value QHN appeared to have in place three valid enduring powers of attorney (1997, 2013 and 2019 - the 2018 appointment being revoked) and the Tribunal was only requested to review the enduring power of 2019. This raised confusion about which, if any, was the power of attorney upon which an attorney could rely.
6. Additionally, at the age of 91 QHN is a person of advanced age and we received written evidence that a diagnosis of dementia has been made. LBT alleged that as a result of dementia, QHN was incapable of executing the power of attorney of 11 March 2019 and submitted that she had been induced by undue influence by KZB to make that power of attorney.
7. Given the protective nature of the Guardianship Division, we decided to conduct a review of the power of attorney of 11 March 2019.

The review and decision to exercise discretion to make no orders and to treat the application for review of power of attorney as application for management order.

1. During the course of the review it became evident that that power of attorney of March 2019 contained a clause revoking all prior powers of attorney. Accordingly, we were satisfied that although LBT had only received notice of the revocation of the enduring power of attorney made in May 2018, he was now on notice as a result of receiving the material submitted for the hearing, that the powers of attorney made in 1997 and 2013 were also revoked. It appeared from the instrument that the power of attorney complied with the legislative requirements.
2. We then considered the medical evidence provided to us to see if we could reach a conclusion about whether or not QHN was incapable of making an enduring power of attorney on 11 March 2019 or whether she was subject to undue influence by KZB.
3. We were provided with a report dated 28 February 2019 from Dr S who has been QHN's General Practitioner at the aged care facility since June 2018. He told us that QHN has dementia with mild to moderate cognitive impairment. Despite this, he considered that QHN was capable of making informed decisions about her financial affairs.
4. We received reports from Dr Q, Specialist in Geriatric Medicine, dated 7 May 2019 and 17 May 2019. Dr Q told us that in June 2018 QHN had been assessed using a MOCA screening test and received a score of 10/30, however this assessment may well have been unreliable as QHN was in hospital at the time after an acute illness. Dr Q conducted a MMSE on 26 February 2019 and QHN received a score of 23/30 suggesting cognitive impairment. Dr Q said that although QHN lacked the capacity to make decisions about the services that she receives and her accommodation, she was able to retain information about the role of an attorney and a guardian and when these roles became active. He said that QHN had the capacity to appoint an enduring power of attorney and enduring guardian at the time she made the decision in March 2019. He commented that her reasoning for appointing KZB was "contradictory" as she chose to appoint him due to his role as her solicitor.
5. A report from Professor P dated 15 August 2019 was also before the Tribunal. Professor P considered that QHN most likely has a mild to moderate vascular dementia and most likely had the capacity to make the appointments of enduring guardian and power of attorney in March 2019. Professor P said that in his opinion there was no indication of KZB or Mr X attempting to influence QHN to appoint KZB as her attorney and enduring guardian. Furthermore, there was no evidence for the presence of delusions or hallucinations that could affect her decision making.
6. QHN told us that she sees KZB and his wife, Mrs R, regularly at the aged care facility. She was adamant that she wanted KZB to represent her interests and to manage her financial affairs. She confirmed her trust in KZB. She said that she had no interest in seeing LBT who used to be an old friend.
7. LBT told us that he believed that KZB had coerced QHN into revoking his appointments and making KZB her sole enduring guardian and attorney. He said that he had known QHN for many years and believed that as a result of dementia she would have been incapable of making the appointments of March 2019. He had no evidence to support his opinions. LBT said that he believed that he had been intentionally excluded from seeing QHN and believed that the application for the personal apprehended violence orders protecting KZB and QHN from him was a ploy to prevent him from having contact with QHN. He told us that KZB had kidnapped QHN and was preventing him from overseeing QHN's business affairs. He claimed that the proceedings in the Consumer and Commercial Division in respect of QHN's property were unsubstantiated and said that Ms W should not be evicted from the property. He told us that Ms W is his friend and should be able to continue living in the property with her disabled daughter. He alleged that KZB had made him sign a number of blank pages and then had used these pages as authorities to receive personal medical information about LBT's own capacity. We received copies of authorities signed by LBT enabling KZB to receive reports from medical practitioners about him as well as reports provided by medical and healthcare practitioners about LBT.
8. Ms Soto considered that the application for review of the power of attorney should be treated as an application for a financial management order. She said that she was concerned that there is a great deal of conflict between KZB, QHN and LBT. KZB commenced proceedings in the Consumer and Commercial Division to evict tenants from a unit owned solely by QHN. It is alleged that LBT rented out the property to tenants who are in rental arrears and the tenants remain in the property despite the tenancy having been terminated. The eviction orders are now subject to an appeal at the Internal Appeal Panel of NCAT. KZB, LBT and the tenants are parties to the appeal. QHN's affairs are complex and to a significant degree have been intertwined with those of LBT. QHN is not in a position to manage the more complicated and technical transactions that are part of her estate.
9. Ms Soto said that it would be appropriate for a financial management order to be made rather than enabling KZB to continue as attorney at the present time. On 15 February 2019 Ms W, on behalf of LBT, made a complaint against KZB to the Office of the Legal Services Commissioner alleging:

• Improper conduct
• Refusal to pay money from LBT's trust account
• Taking advantage of a person under Power of Attorney
• Overcharging
• Improper conduct in relation to QHN
• Unlawfully delaying the payment of trust money
• Failure to send accounts
• Stealing from LBT
• "sabotage"
• Victimisation
• Concealing information and oppression

1. This complaint resulted in an investigator being appointed by the Law Society of NSW to carry out an investigation of KZB and his practice. This investigation was conducted over four separate days (8 May 2019, 15 May 2019, 29 May 2019 and 19 June 2019).
2. KZB received a letter dated 9 September 2019 from the Law Society in respect of a Trust Account Report prepared by the investigator. The letter confirmed that no response was required from KZB. The Tribunal was not provided with the report and so is unable to conclude if any findings were made in respect of each of the complaints listed above or if the investigation has closed in its entirety.
3. At the time that KZB was appointed as sole enduring guardian and attorney for QHN he was also enduring guardian and attorney for LBT. QHN's affairs and those of LBT are deeply intertwined. Ms Soto considered that making a financial management order, with the transparency and protection provided by the oversight of the NSW Trustee and Guardian, would enable QHN's affairs to be managed without conflict of interest and for QHN's best interests alone.
4. We decided to exercise our discretion not to make any orders and, in accordance with s 37 of the Powers of Attorney Act to treat the application for the review of the power of attorney as an application for a financial management order.

FINANCIAL MANAGEMENT APPLICATION

1. Before it could make a financial management order in relation to QHN the Tribunal had to be satisfied of the following matters:

• QHN is incapable of managing her affairs
• There is a need for another person to manage QHN's affairs and
• It is in the best interests of QHN for a financial management order to be made

1. If the Tribunal decides to make a financial management order, it also needs to decide who should be appointed as financial manager.
2. The making of a financial management order has the effect of suspending any enduring power of attorney for the duration of the order: Powers of Attorney Act, s 50(3).

Is QHN incapable of managing her affairs?

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

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

1. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86).
2. QHN's affairs are complex and is apparent from the material before the Tribunal that she has been dependent upon KZB to arrange for the sale of her home, the removal of LBT's belongings from her home, the disposal of a sailing boat, the commencement and running of proceedings in the Consumer and Commercial Division of NCAT to recover rent owed to her by Ms W and LBT who was responsible for collecting rent from Ms W for the property. She has been dependent upon KZB to take steps in respect of the eviction of Ms W. KZB is taking action to recover a luxury vehicle belonging to QHN that LBT has possession of and has allegedly transferred into his name. KZB has also asked LBT to account for withdrawals of large sums of money from QHN's accounts. Furthermore, he has asked LBT to account for a failure to pay land tax and council rates in regard to property owned by QHN.
3. It was not disputed that QHN is now incapable of taking any of the above steps and is not in a position to protect her own financial affairs. As a result of cognitive impairment QHN is incapable of managing her own affairs.

Is there a need for a financial management order and is it in QHN's best interests for a financial manager to be appointed?

1. As set out above, QHN's financial affairs are complex and there is a need for ongoing decisions to be made about how to recover money and property owed to her by LBT and/or Ms W. QHN has accommodation and care fees to be paid. There is a need for her assets to be managed.
2. For the reasons set out above, we considered that there is a need for a financial management order to be made to ensure transparency in the management of QHN's affairs. The oversight of the NSW Trustee and Guardian is both a protection to QHN and to a private manager appointed by the Tribunal. We considered that at the present time QHN's affairs are so complicated and intertwined with those of LBT that it would be in her best interests for a financial management order to be made. Although KZB is aware of the intention of LBT to revoke his appointment as his attorney and enduring guardian, he has not received proper notification of revocation. Until this occurs or KZB resigns from his appointment as attorney and enduring guardian for LBT there could be a perceived conflict of interest between his obligations owed to LBT and those owed to QHN. We considered that there is a need for the objective and protective oversight provided by the NSW Trustee and Guardian consequent to the appointment of a private financial manager.
3. The Tribunal was satisfied that there is a need to appoint someone to manage QHN's affairs and that it is in her best interests for a financial manager to be appointed.

Who should be appointed as financial manager?

1. In appointing a financial manager, as in making all other orders under the Guardianship 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 Guardianship Act.
2. Section 25M of the Guardianship 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.
3. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.
4. On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage.
5. The advantages of the appointment of a private person were more economic management of smaller estates (that is, fewer fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members and friends to act as managers.
6. The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be "more apparent than real," should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.
7. In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen ASJ stated: "[34] It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend on its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager's character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interests."
8. The matters or "guidelines" that should be considered when determining who to appoint as financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495 at [50].
9. KZB was appointed as QHN's attorney in March 2019. He was appointed as substitute attorney to LBT in May 2018. The medical evidence before us supported a finding that QHN had the capacity to make the decision to appoint KZB at those times. KZB has known QHN for many years and has a thorough knowledge of her affairs. He has been proactive as attorney. It appears that he had concerns about LBT's capacity which is the reason that he arranged for the authorities for the disclosure of medical information to be signed by LBT and sent to his practitioners. We were satisfied that KZB has played an active role in protecting QHN's affairs and ensuring that they are managed in her best interests. Ms O, Director of Nursing at the aged care facility, spoke highly of KZB and his care for QHN. She said that he ensures that QHN's comforts and needs are met. QHN was adamant that she wanted KZB to continue to manage her affairs.
10. We were satisfied that not only would KZB continue to ensure that QHN's affairs are managed in her best interests, he has already demonstrated that he is able and willing to take active steps to recover monies and assets to which QHN is entitled.
11. LBT's submission that either the NSW Trustee and Guardian or he should be appointed did not persuade the Tribunal. We were satisfied that LBT has a significant conflict of interest with QHN and has demonstrated that he has failed to protect her financial interests. KZB has an intimate knowledge of QHN's affairs and is already engaged in actions to recover her property. To appoint the NSW Trustee and Guardian would cause unnecessary delay and would not reflect the wishes of QHN.
12. The Tribunal was satisfied that KZB was a suitable person to be appointed as financial manager for QHN subject to the authorities and directions of the NSW Trustee and Guardian.

Should a reviewable financial management order be made?

1. The Tribunal may determine that a financial management order should be reviewed within a specified time. In this matter, the Tribunal determined that the financial management order should be reviewed within 12 months. By that time, it is hoped that the situation in respect of QHN's properties and assets will have been resolved and all parties satisfied by the transparency provided during this period by the oversight of the NSW Trustee and Guardian. There may not be a need for a financial management order at that time and it is hoped that the power of attorney of March 2019 that expressed QHN's wishes may be sufficient to manage her affairs without an order.

REVIEW OF APPOINTMENT OF ENDURING GUARDIAN & DECISION TO DISMISS GUARDIANSHIP APPLICATION

What did the Tribunal have to decide?

1. On reviewing the appointment of an enduring guardian, the Tribunal may

• confirm the appointment of an enduring guardian with or without varying the functions of the appointed enduring guardian;
• proceed as if an application for guardianship or an application for financial management (or both) had been made; or
• revoke the appointment, with or without then proceeding as if an application for guardianship or an application for financial management (or both) had been made.

1. The Tribunal must not revoke the appointment of an enduring guardian unless: 1. the enduring guardian requests the revocation; or 2. the Tribunal is satisfied it is in the best interests of QHN that the appointment be revoked.
2. The Tribunal may only proceed as if an application for guardianship or an application for financial management (or both) had been made if it considers it is in the best interests of QHN to do so.
3. The Tribunal may declare that the appointment of KZB has effect if the Tribunal is satisfied that QHN:

• has appointed KZB as her enduring guardian and
• that QHN is a 'person in need of a guardian.' A 'person in need of a guardian' is a person who because of a disability is totally or partially incapable of managing his or her person: Guardianship Act, s 3(1). A 'person with a disability' is a someone who is: 1. intellectually, physically, psychologically or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or 4. otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: Guardianship Act, s 3(2),

Details of the enduring guardianship appointment

1. On 1 March 2019 QHN appointed KZB as her enduring guardian. This was not inconsistent with her appointment of KZB as a substitute enduring guardian to LBT in May 2018. It appears from the evidence before us that KZB and QHN had a legitimate basis to conclude that LBT was not acting in QHN's best interests and may also have had his own cognitive issues in conjunction with being a person of advanced age.
2. The medical evidence as set out above led us to the conclusion that it was probable that QHN had the capacity in March 2019 to decide who she wanted to be her enduring guardian. The affidavits of Mr X and KZB supported this conclusion.

Does QHN have a disability which prevents her from being able to make important life decisions?

1. We accepted the evidence of Dr Q that as a result of dementia, although she was capable of deciding who she wanted to make decisions for her and when an appointment comes into effect, QHN lacks the capacity to make important life decisions about where she lives and the services that she receives.
2. We were satisfied that the enduring guardianship appointment has become active. QHN is permanently placed, and KZB and his wife are the points of contact by the aged care facility. Ms O, Director of Care, told us that KZB provides medical and dental consents for QHN. The nature of QHN's disability is degenerative, and it is unlikely that her capacity to make important life decisions will improve.
3. The enduring guardianship appointment has taken effect.

Should the enduring guardianship appointment be confirmed and is there a need for the Tribunal to make a guardianship order?

1. QHN told us that she is very happy at the aged care facility. The food is good, and she likes the people there. She sees KZB and his wife regularly. She wants to stay where she is and to preserve the status quo. KZB wishes to remain as QHN's enduring guardian.
2. Ms O supported the confirmation of the enduring guardianship appointment. She said that the facility has good communication with KZB, and she considered that he makes decisions in QHN's best interests. She said that QHN's accommodation is permanent, and she will be able to age in place. Ms O said that QHN lets her know if there is anything she wants or needs.
3. Ms Soto told us that she had visited QHN who confirmed her very strong preference that KZB remain her enduring guardian. QHN trusts KZB implicitly. Ms Soto had concerns that KZB may have directed the aged care facility that QHN's access to other people should be limited. Her own experience when she went to the aged care facility was that KZB had to provide consent for her to see QHN. It transpired that this was a procedure put in place by the aged care facility due to their concerns about QHN's vulnerability and the existence of the interim apprehended violence order protecting her from LBT. We accepted that KZB did not direct the aged care facility that all access to QHN was to be through him. We reinforced at the hearing that an enduring guardian has no authority to make access decisions: only a guardian appointed by the Tribunal with an access function has that power.
4. LBT told us that he has no issue with QHN's accommodation and believes that it is appropriate for her. He has no difficulty with QHN's medical treatment or the services that she could receive. He wants to have access and believes that KZB has stopped his access to QHN. This is now a matter which will be resolved in the Local Court. LBT is prevented by the interim apprehended violence order from contact with QHN. The Tribunal accepts that LBT is unhappy with this and misses his friendship with QHN. QHN presented as ambivalent about any contact with LBT saying that he used to be a good person and their relationship was strictly a business one. Ms O told us that QHN is vulnerable, and the aged care facility has a duty of care to ensure that QHN is not contacted by LBT in accordance with the terms of the apprehended violence order. She considered that this situation could be managed informally without the need for a guardianship order.
5. QHN's accommodation is permanent. Her medical, dental and healthcare needs are being met. KZB provides consent as enduring guardian to medical and dental treatment. Any services from which QHN may benefit are provided through the facility. QHN is happy with her current situation and want the status quo to continue. There is no evidence that KZB is not making decisions as enduring guardian in her best interests.
6. We were satisfied that the appointment of enduring guardian executed by QHN on 1 March 2019 by which she appointed KZB should be confirmed. KZB wishes to remain enduring guardian. His appointment is strongly supported by QHN and the staff at the aged care facility. There are no decisions to be made for QHN at present that cannot be made by an enduring guardian. There is no need for a guardianship order to be made. We were satisfied that we should not interfere with the decision made by QHN about who should be her enduring guardian at a time that the evidence supports a finding that she had the capacity to make such a decision.
7. Accordingly, we confirmed the appointment of KZB as enduring guardian and dismissed the application for a guardianship order.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2022