Susan Elizabeth Parker v Margaret Catherine Higgins

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]

What did the Tribunal have to consider?

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, 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 Mr DAM 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. Mr DAM 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 Mr DAM to make the order
• That it would better reflect the wishes of Mr DAM 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. Require 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 Part 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. At the commencement of the hearing the parties indicated their agreement to the following facts.

• On 22 November 2016, Mr DAM was an inpatient at Western Sydney Public Hospital A, and went on day leave accompanied by Mr BIM and Ms TUN.
• Whilst on day leave, Mr DAM, Mr BIM and Ms TUN together went to the office of a law firm in Western Sydney and saw Solicitor X.
• Mr DAM executed the enduring power of attorney appointing Mr BIM and Ms TUN as his enduring attorneys with Solicitor X as the prescribed witness.

1. There is disagreement between the parties in relation to whether Mr DAM had mental capacity to make a valid enduring power of attorney. In her application, Ms DIM states Mr DAM's treating team at Western Sydney Public Hospital A do not believe that he had capacity. In her report she details that Mr DAM's income is a disability support pension which is paid into his Bank A account and his major asset is in another bank account which has approximately $15,000 to $20,000 in it.
2. In evidence before the Tribunal is a report by Dr Z from Western Sydney Public Hospital A dated 7 December 2016 which is supportive of Ms DIM's application. In his report, Dr Z details Mr DAM's lengthy psychiatric history and admission to Western Sydney Public Hospital A since 2008 for treatment resistant schizophrenia and also specifically addresses the issue of Mr DAM's capacity on 21 November 2016 to consent to the enduring power of attorney.
3. Mr BIM and Ms TUN maintain that Mr DAM had capacity to make the enduring power of attorney. They have provided a written response to the Tribunal dated 14 December 2016 which provides information about their attendance with Mr DAM at the law firm's office on 21 November 2016 and their subsequent conversations with Solicitor X in which she reiterated her opinion that Mr DAM had capacity.
4. On the basis of this information there is clearly a real issue as to whether Mr DAM had capacity and the Tribunal considered that a full review was necessary. A full review enabled the Tribunal to examine the evidence from the Western Sydney Public Hospital A's treating team and from Mr BIM and Ms TUN more closely and also to obtain evidence directly from Solicitor X.

Circumstances of the making of the power of attorney

1. Solicitor X was contacted during the course of the hearing by telephone and gave evidence. Solicitor X states that on 21 November 2016 she met with Mr DAM, Mr BIM, and Ms TUN jointly in the boardroom at the offices of a law firm. Upon initially speaking with them and reviewing the enduring power of attorney and enduring guardianship forms, she then spoke with Mr DAM alone. She spoke with Mr DAM alone for forty minutes during the appointment which was one hour in duration. She kept a detailed file note of the attendance. She had not met with or spoken with Mr DAM, Mr BIM, or Ms TUN prior to 21 November 2016.
2. Solicitor X states that when she met with them the enduring power of attorney and enduring guardianship forms were already completed except for the sections requiring signature and the witness certificates. She did not know whether Mr DAM or someone else had filled out these forms.
3. Solicitor X states when initially speaking with Mr DAM alone "he appeared a little nervous". She asked Mr DAM his name and date of birth which he provided and asked where he lived. Mr DAM said he lived at an address in Western Sydney and was currently a patient at Western Sydney Public Hospital A. Mr DAM said he "had been in and out" of Western Sydney Public Hospital A for eight years because of "depression" however he was "better and was going home soon". Mr DAM said that he was "not treated well" at Western Sydney Public Hospital A.
4. Solicitor X states that she went through the enduring power of attorney form in detail with Mr DAM and explained the effect of the enduring power of attorney. She asked him about his assets and he said that he received a pension and had accounts with the Bank A and Bank B. He did not know the balances of these accounts. His pension was deposited into the Bank A account and the balance varied. Solicitor X asked whether he had understood that the effect of the enduring power of attorney was that his attorneys could access his accounts without him knowing and had control over his finances. Mr DAM said he understood this.
5. Solicitor X asked Mr DAM a number of questions about his family situation, his choice of attorneys and who he trusts. Mr DAM said he has a mother and two sisters who live in Queensland. Mr DAM said he "trusts [Mr BIM] and [Ms TUN] implicitly" and "they look after him" and they "manage his finances anyway". Overall, Solicitor X was satisfied that Mr DAM appeared to understand the effect of the enduring power of attorney appointment.
6. Solicitor X was asked whether her management of the situation would have been different had she been aware that Mr DAM was an involuntary patient at Western Sydney Public Hospital A because of his schizophrenia. Solicitor X indicated that she probably would have pressed for more information from the family about his diagnosis and asked more questions about his condition. She may not necessarily have proceeded to obtain a medical report.
7. Solicitor X stated that notwithstanding the information provided to her that Mr DAM was an inpatient for depression, she did not consider it necessary to make further enquiries or obtain a medical report. She is aware of the Guidelines for Solicitors Preparing an Enduring Power of Attorney from the Law Society of NSW suggesting that a medical report be obtained if there is doubt as to mental capacity, however, states at the time she felt satisfied that Mr DAM had capacity. In forming this view, she took into account that he was engaging with her, smiling, and also took account of his body language. He did not appear intoxicated or under the influence of drugs.
8. In evidence, Mr DAM said that he went with Mr BIM and Ms TUN to see Solicitor X after first going to the Public Guardian office in Parramatta. He said that he filled out the forms when he was with Solicitor X while Mr BIM and Ms TUN were outside. When asked why he appointed Mr BIM and Ms TUN as his enduring attorneys and guardians, he said "so he could move to New Zealand" and so "they can look after my finances". When asked what the enduring power of attorney meant, he said it means they can "access my finances if they need to". Mr DAM said that his finances were in his accounts with Bank A and Bank B and he understood the enduring power of attorney took effect on 21 November 2016. Mr DAM said that he understood that Mr BIM and Ms TUN could access his bank accounts without his knowledge. Mr DAM was not able to explain why the box on the form appointing the attorneys joint and severally had been ticked or what this meant or why various sections of the form relating to nomination of a substitute attorney, additional powers, or the commencement date had been deleted. Mr DAM was not clear whether he had crossed these sections out or whether he had said it was alright to cross out these sections. He was unable to explain what these sections meant.
9. Mr DAM said he had been looking after his own finances. When asked why he decided on 21 November 2016 to make the enduring power of attorney given he had had looked after his own finances for many years, he said so he could go to New Zealand.
10. In their written response to the Tribunal, Mr BIM and Ms TUN confirm that Mr DAM has managed his own finances. They indicate that Mr DAM's father, who is now deceased, had fought for Mr DAM's financial independence whilst an inpatient at Western Sydney Public Hospital A and the arrangements in place where Mr DAM has control over his bank accounts and makes payments directly to the Hospital for his accommodation. They confirm that Solicitor X interviewed Mr DAM independently to ascertain his wishes and Mr DAM has continued to tell his doctors and the treating team that he "stands by what he has signed".
11. Ms TUN told the Tribunal that Mr DAM has difficulty accessing his bank statements and information about his account balances and Mr DAM wanted the enduring power of attorney to enable them to obtain this information for him.
12. Dr Z from Western Sydney Public Hospital A has provided a report dated 7 December 2016 and gave evidence at the hearing. Dr Z saw Mr DAM with a Registered Nurse on 2 December 2016 specifically to assess Mr DAM's capacity to consent to the enduring power of attorney and enduring guardian signed by him on 21 November 2016. During this assessment, Mr DAM reported to Dr Z that he signed these documents to give his brother and sister-in-law "the right to let me out of the hospital, we told the solicitor, she told me to give a copy to my doctors, that is why we went to [Regional NSW]", "they are in charge of my money". When asked by Dr Z to elaborate more he responded "they can do some banking for me, to get bank statement, to check how much money I have we have updates from [Regional NSW]!", "No one told me they can take any of my money."
13. Dr Z discussed the first paragraph of the enduring power of attorney document indicating that the power of attorney gives the attorney the power to manage legal and financial affairs including buying and selling real estate, shares and other assets, operating bank accounts and spending money on his behalf and that Mr DAM responded "this is changed, I didn't sign for that, no one told me", "I don't' know who changed this." Following further discussion, Dr Z states Mr DAM was unable to retain information related to this paragraph and had no idea about his assets. Dr Z states that Mr DAM was unable to understand or retain information about the nature of the enduring power of attorney and the extent of authority given to the attorney. Overall Dr Z's opinion is that Mr DAM did not have capacity to make the enduring power of attorney.
14. Ms DIT, Social Worker at Western Sydney Public Hospital A has provided a report dated 9 December 2016 to the Tribunal. Ms DIT states that since the death of Mr DAM's father in December 2014, there has been a significant movement of family and interest in Mr DAM's well-being. She states that there is a clear divide between Mr DAM's mother and sisters who reside in Queensland and Mr BIM and Ms TUN who are based in New Zealand about where Mr DAM should live. Currently enquires have been made to psychiatric facilities in South East Queensland and Regional NSW about a possible transfer for Mr DAM. Mr BIM and Ms TUN want Mr DAM to move to New Zealand.

Did Mr DAM have the mental capacity to make the enduring power of attorney?

1. Dr Z's opinion is that Mr DAM did not have capacity to make the enduring power of attorney. Dr Z has been Mr DAM's treating doctor at Western Sydney Public Hospital A for four years. In his report, he details Mr DAM's lengthy psychiatric history following Mr DAM's diagnosis with schizophrenia at the age of 23. He has had more than ten admissions to various psychiatric hospitals and has been an involuntary patient at Western Sydney Public Hospital A since 2008. His illness is characterised by grandiose delusions, auditory hallucinations, thought disorder, and violent outbursts. He drinks excessive amounts of water that puts him at risk of water intoxication. His condition fluctuates between periods of relative stability and other periods during which he becomes vague, intrusive, disorganised, concrete, and argumentative. He continues to display psychotic and mood symptoms which have been resistant or have partially responded to a wide range of psychotropic medication and electro convulsive therapy. Mr DAM's mental state has been progressively declining since the death of his father, who was his primary caregiver in 2014.
2. In forming his opinion, Dr Z took into account a neuropsychology report from Mr Y, Psychologist, dated 13 July 2016. This report is in evidence before the Tribunal. Mr Y assessed Mr DAM in May 2016 to assess his cognitive profile prior to his possible relocation to Queensland. Mr Y states that Mr DAM's overall intellectual functioning is in the borderline impaired range with impairment with processing speed, attention, and memory including memory for structured verbal information. Mr DAM demonstrated limited insight into his personal and cognitive shortcomings. Mr Y considered that the pattern of deficits is likely attributable to both illness and medication factors. Mr Y states, however, that Mr DAM displays a considerable degree of age appropriate functioning in some cognitive domains. Mr Y's suggestions for cognitive management strategies include that information be presented to Mr DAM in small amounts at a time, and that he be allowed extra time to work through new or complex information.
3. In Dr Z's opinion, Mr DAM would not have been able to process and retain information about the enduring power of attorney and enduring guardianship forms within the time frame of forty minutes that Solicitor X spent with him. On questioning by Ms TUN, he agreed that Mr DAM's mental state fluctuates but maintained that even at the higher level of his functioning Mr DAM would not have the necessary capacity. He rejected Mr BIM's suggestion that he was not able to properly assess Mr DAM's capacity to execute the documents on 21 November 2016 because his assessment took place on 12 December 2016 which was some time after the documents were signed and that on 2 December 2016 Mr DAM was in a different situation. Dr Z stated that Mr DAM was on his regular medications on both occasions, was not over-medicated and was relaxed when he assessed him on 2 December 2016. He maintained that Mr DAM was surprised at the suggestion that Mr DAM and Ms TUN could access his money without his knowledge and asserted the document had been changed.
4. Dr Z stated that whilst Mr DAM may have looked like he was engaged and able to answer questions of a superficial nature when he was with Solicitor X on 21 November 2016, he was likely not to have been processing and understanding the information being provided by her. He drew a distinction between Mr DAM being able to express a view about who he wanted his attorney to be, and ability to sufficiently understand and retain information about what he has meant. Dr Z was firm in his opinion that Mr DAM did not have sufficient capacity either on 21 November 2016 or indeed at any time over the four years that he had been his treating doctor.
5. The Tribunal takes into account the evidence from Solicitor X that Mr DAM had capacity to execute the document. However, we consider that Solicitor X proceeded on the basis of incorrect information. She incorrectly believed that Mr DAM had been in and out of Western Sydney Public Hospital A for depression, that he was better, and was going home soon. She did not know that Mr DAM had been an involuntary patient since 2008 for schizophrenia and that apart from day leave and overnight leave with his father prior to his death in 2014 and more recently day leave with his brother, had permanently resided at Western Sydney Public Hospital A. Solicitor X was unaware of the nature and extent of Mr DAM's psychiatric illness. Solicitor X concedes that had she been aware that Mr DAM's admission was for schizophrenia she would have made further inquiries.
6. Whilst we accept that Mr DAM was engaging in his interactions with Solicitor X and repeatedly indicated his trust in his brother and sister-in-law, this is not the issue. The issue is whether he had sufficient capacity to understand the nature and effect of the document and on this issue we prefer the evidence of Dr Z over Solicitor X. Solicitor X has met with Mr DAM on one occasion only. In contrast, Dr Z has been Mr DAM's treating doctor for four years and has the benefit of the medical records from his lengthy admission and importantly also the report of the neuropsychological assessment by Mr Y.
7. The evidence from Solicitor X is that the forms had already been completed except for the signatures and witnessing provisions when she met with Mr DAM. This conflicts with the evidence from Mr DAM that he filled out the forms with Solicitor X. We accept Solicitor X's evidence on this issue. The inability for Mr DAM to accurately recount the circumstances surrounding completing the forms is consistent with Dr Z's evidence regarding his incapacity. Further whilst Mr DAM in giving evidence before the Tribunal, said he understood that the enduring power of attorney meant that his attorneys could access his bank accounts without his knowledge, we accept the evidence from Dr Z that on 2 December 2016, Mr DAM indicated the contrary. Dr Z's evidence that Mr DAM's understanding was that the attorneys could only get bank statements and check how much money he has is consistent with Ms TUN's evidence regarding Mr DAM's intention. The Tribunal takes into account also that in giving evidence Mr DAM was unable to explain key provisions of the document.
8. The Tribunal is satisfied that Mr DAM did not have mental capacity to make the enduring power of attorney on 21 November 2016.

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 Mr DAM that the appointment be revoked.

Details of the enduring guardianship appointment

1. The Tribunal takes into account the evidence generally in connection to the application for review of the enduring power of attorney.
2. In giving evidence, Solicitor X stated that when she met with Mr DAM on 21 November 2016, she dealt with the enduring guardianship form separately following on from the enduring power of attorney. She asked Mr DAM open- ended questions about the form, his choice of enduring guardians, and about section four of the form which details the functions and limits of the enduring guardians. Four boxes are ticked in this section indicating that should Mr DAM become incapable of making his own personal decisions, he authorises his enduring guardians to make decisions about where he lives, his health care, personal services, and provide consent to medical and dental treatment. A fifth box is ticked and inserted in handwriting on the form is that the enduring guardian is to decide "regarding, health, well being, working, study, also travel and lifestyle freedoms".
3. Solicitor X asked Mr DAM about why the particular boxes had been ticked and he said that he "implicitly trusted Mr BIM and Ms TUN and that they looked after him anyway". Solicitor X states that Mr DAM was "a bit vague" in relation to the fifth box. When she asked him to explain further about why the boxes were ticked, Mr DAM said that he wanted Mr BIM and Ms TUN to look after him, that he didn't want to stay in Hospital, and wanted to go home.
4. The Tribunal asked Mr DAM about the boxes ticked in section four and he said that his brother had ticked the boxes whilst at Solicitor X's office. This is contrary to the evidence from Solicitor X that this part of the form had already been completed when she saw Mr DAM. When asked by the Tribunal to explain what section four of the form meant, Mr DAM merely read back this part of the form. When asked what the section completed in handwriting following the fifth box meant, Mr DAM said it meant that he has human rights and that he included this because of his mother. Mr DAM became confused and recounted how he was bashed in Hospital and said he believed his father was still alive. Mr DAM said he was waiting to see his father again. When asked by the Tribunal about his mental illness and why his was admitted to Western Sydney Public Hospital A, Mr DAM said that he had a fit and died and woke up a year later. Mr DAM said he did not think he had schizophrenia but he had depression. Mr DAM said he wanted his brother and sister-in-law to be his enduring guardians.
5. In giving evidence, Solicitor X maintained that on 21 November 2016 she was satisfied that Mr DAM had capacity and appeared to understand the effect of the enduring guardianship appointment. Dr Z expresses a contrary view. The Tribunal accepts that in signing the document, Mr DAM was motivated by a desire to leave Hospital and move to New Zealand to live with his brother and sister-in-law and trusts them. Mr DAM expresses a desire to the Tribunal that they be his guardians. However, the Tribunal accepts the evidence from Dr Z that he did not have capacity to sufficiently understand the nature and effect of the document and to retain information and this is consistent with the Tribunal's own observations of Mr DAM whilst giving evidence. The evidence also suggests that Mr DAM's thinking about the form is influenced by a delusional belief that his father is still alive. This is consistent with Dr Z's evidence that Mr DAM continues to display psychotic symptoms including delusions and has previously said he doesn't think his father is dead.

Is it in the best interests of Mr DAM that the enduring guardianship appointment be revoked?

1. Mr DAM is currently an involuntary patient at Western Sydney Public Hospital A. The current involuntary patient order made by the Mental Health Review Tribunal will expire on 6 March 2017. Ms DIT states that inquiries in relation to transferring Mr DAM to another psychiatric facility are ongoing. Dr Z states the Mental Health Review Tribunal has asked the treating team to consider possibly transferring him to a psychiatric facility in New Zealand. As detailed in their written response to the Tribunal, Mr BIM and Ms TUN are very concerned about Mr DAM's welfare at Western Sydney Public Hospital A and strongly believe that he should be transferred to a facility in New Zealand. They have made and continue to make inquiries about a transfer to New Zealand.
2. Ms DIT states there is family conflict about where Mr DAM should live. She states whilst Mr DAM is fortunate to have the attention of family members who all clearly indicate they want the best for Mr DAM, the strong views and differing opinions within the family unit are conflicting and confusing for Mr DAM. She states that Mr DAM's views about where to live frequently fluctuate. Dr Z considers that Mr DAM's mental state has been progressively declining since the death of his father and that this could, at least to a degree, be secondary to the impact of family conflict on his already limited resiliencies.
3. The Tribunal is satisfied that it is in Mr DAM's best interests that the enduring guardianship appointment be revoked. In forming this view, the Tribunal finds that Mr DAM did not have capacity to make the appointment and it is not in his best interests that the appointment stand in these circumstances. Further, the Tribunal takes into account the pressing and difficult issue regarding Mr DAM's accommodation, the family conflict surrounding this, and the need to protect Mr DAM from harm.

APPLICATION FOR APPOINTMENT OF FINANCIAL MANAGER AND GUARDIAN

1. The Tribunal may adjourn proceedings to any time and place (s 51 of the Civil and Administrative Tribunal Act 2013 (NSW)). When considering whether to adjourn proceedings, the Tribunal has regard to the guiding principle of the Civil and Administrative Tribunal Act: which is to facilitate the just, quick and cheap resolution of the issues in the proceedings (s 36(1)). The Tribunal may also consider the principles in s 4 of the Guardianship Act, including that the paramount concern is the welfare and interests of the person who is the subject of the proceedings. The Tribunal is required to take such steps as may be reasonably practicable to ensure that the parties understand the nature of proceedings and have a reasonable opportunity to be heard or otherwise have their submissions considered (s 38(5), Civil and Administrative Tribunal Act). The Tribunal is also required to ensure that all relevant material is disclosed to the Tribunal to enable it to determine all of the relevant facts in issue in the proceedings (s 38(6), Civil and Administrative Tribunal Act).
2. On 14 December 2016, Mr BIM and Ms TUN provided a detailed written response to Ms DIT's application along with 50 photographs. Ms DIT was provided with an opportunity to read the response at the commencement of the hearing, however, did not have an opportunity to review the material in detail.
3. Whilst the Tribunal proceeded to hear the applications for review of the enduring power of attorney and enduring guardianship appointment, there was insufficient time for the Tribunal to hear the applications for an appointment of a financial manager and guardian. These applications are adjourned to 19 January 2017. Taking into account that Mr DAM is currently subject to an involuntary patient order and evidence from his treating team that he will likely remain in Western Sydney Public Hospital A prior to the next hearing before the Mental Health Review Tribunal on 6 March 2017 whilst ongoing inquiries are made regarding a possible transfer to an alternative facility, we consider that Mr DAM's interests are sufficiently protected during the adjournment period. 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: 22 December 2017