Susan Elizabeth Parker v Margaret Catherine Higgins & Ors

NCAT Guardianship|2022-03-30|Before: Epstein-Frisch AM

What the Tribunal decided

The Tribunal decided to carry out a review of the operation and effect of the enduring power of attorney made by LCQ on 15 June 2013, appointing his daughters KQZ and QAY as his joint attorneys.
Having reviewed the operation and effect of the enduring power of attorney, the Tribunal decided under s 36(4)(b) of the Powers of Attorney Act 2003 (NSW) to remove QAY as an attorney.
The effect of the Tribunal's decision is that KQZ remains as the sole attorney under the power of attorney executed by her father on 15 June 2013.

Background

LCQ is 82 years old. He lives in a care facility in East Sydney, where he has been since January 2022. His wife died in March 2017. On 15 June 2013, LCQ executed an enduring power of attorney, appointing his daughters, KQZ and QAY as his joint attorneys. On the same day he appointed his daughters as his enduring guardians and Mr Z as an alternative enduring guardian.
LCQ has been diagnosed with dementia.
On 20 January 2022, KQZ made an application to the Tribunal to review the enduring power of attorney. She stated that QAY has refused to share information regarding her father's finances and there are concerns about the operation of his bank accounts in Malaysia and Singapore. KQZ raised several other concerns regarding the management of her father's financial affairs by her sister.

The hearing

LCQ participated briefly in the hearing, accompanied by a registered nurse. We were advised that LCQ was upset, and he became increasingly distressed. We excused his participation from the hearing, with the agreement of the parties. We were satisfied that it was not procedurally unfair to continue the hearing in LCQ's absence.
Several persons participated in the hearing by videoconference. These included KQZ, QAY, Ms Y, Mr Z, Mr X, Mr W, Mr V, and Ms U.
A list of the parties and hearing participants is at the end of these reasons for decision. [Appendix removed for publication.]

Legislative framework

The Tribunal's jurisdiction to consider an enduring power of attorney is set out in s 33(2) of the Powers of Attorney Act: 33 Reviewable powers of attorney … Both the Civil and Administrative Tribunal and the Supreme Court have jurisdiction to deal with an application under this Division in respect of an enduring power of attorney (including a revocation of an enduring power of attorney).
The Tribunal may, on the application of an interested person, decide to review the making, revocation or operation and effect of a power of attorney: Powers of Attorney Act, s 36(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."

The review of the operation and effect of the power of attorney

We have been provided with a copy of the enduring power of attorney, executed on 15 June 2013. As noted above, the instrument appointed KQZ and QAY jointly as attorneys. It does not authorise the attorneys to confer any gifts or benefits on themselves or third parties. It also does not make any provision for substitute attorneys.
The Tribunal has been asked to review the operation and effect of the enduring power of attorney made by LCQ.
As above, the Tribunal can decide not to review the operation and effect, or as a consequence of reviewing the enduring power of attorney we can decide not to make any orders.
If the Tribunal reviews the operation and effect of an enduring power of attorney, the orders we can make are set out in s 36(4) of the Powers of Attorney Act. These are: A review tribunal may, if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal, make any one or more of the following orders relating to the operation and effect of a power of attorney: 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 an attorney, 3. an order appointing a substitute attorney to replace an attorney who has been removed from office by a review tribunal 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 an attorney and appointing a substitute attorney to replace the attorney who vacated the office, 5. an order directing or requiring any one of the following: 1. that an attorney furnish accounts and other information to the tribunal or to a person nominated by the tribunal, 2. that an attorney lodge with the tribunal a copy of all records and accounts kept by the attorney of dealings and transactions made by the attorney of dealings and transactions made by the attorney under the power, 3. that those records and accounts be audited by an auditor appointed by the tribunal and that a copy of the report of the auditor be furnished to the tribunal, 4. that the attorney submit a plan of financial management to the tribunal for approval, 1. an order revoking all or part of the power of attorney, 2. such other orders as the review tribunal thinks fit.
Alternatively, if we decide not to make any orders, we are permitted to treat the application as an application for a financial management order under Pt 3A of the Guardianship Act 1987 (NSW) if "appropriate in all the circumstances to do so.": Powers of Attorney Act, s 37(1).
In considering whether we should review the operation and effect of the enduring power of attorney, it is important to note that an attorney is in a fiduciary relationship with the person whose affairs they manage. An attorney must act in the best interests of the principal and must not obtain a personal benefit, other than specifically provided in the executed enduring power of attorney: Powers of Attorney Act, s 12(1).
In considering the above issues, we have had regard to the medical evidence regarding LCQ, and the numerous submissions, emails and other documents provided by the parties. This is discussed below.

Medical evidence regarding LCQ

The Tribunal was provided with a report by Dr T, consultant rheumatologist, geriatrician and physician, dated 14 May 2019. Dr T stated that LCQ was at that time living with his daughter, QAY. He had been widowed for two years. He had a two and half-year history of cognitive decline and was diagnosed in October 2018 with dementia. Dr T stated that LCQ is not capable of changing his will, his enduring power of attorney or enduring guardianship.

Submissions, evidence and claims from KQZ

In her application, KQZ stated that she is seeking a review of the operation and effect of the enduring power of attorney because she wishes for her sister, QAY, to be removed as an attorney. She raised various concerns, discussed below, regarding her sister's conduct as an attorney and indicated that she has benefited from her position, in breach of her obligations as an attorney.
KQZ indicated in the application that her father's assets include: income of $30,000 when a term deposit matures; $6,000 in dividends annually; a residential home valued at $2,300,000; Australian bank accounts with a balance of $2,086,000; shares valued at $301,545; and overseas cash of $1,000,000. He has no debts. His expenses are nursing home fees of $130,000 per year and medical expenses of $10,000 per year.
KQZ provided statements to the Tribunal setting out her reasons as to why she believes a review is necessary. She stated that she is seeking removal of QAY as a joint power of attorney. She is seeking for the Tribunal to make a decision in LCQ's best interests by ensuring her father's funds are protected and made available to him for his immediate use and ongoing care. Her reasons include the following:

When their father appointed both his daughters as his joint attorneys, he wanted both his daughters to be involved in managing his financial affairs.
Despite this, from January 2018 QAY retained sole access and control over their father's bank accounts in Malaysia and Singapore with the total value of approximately AUD$1,000,000.
In November 2018, QAY took similar steps to remove KQZ's access to their father's Australian bank accounts with Bank ZZ, and safe deposit box, containing LCQ's wife's jewellery, foreign cash, property deeds and gold bullion.
QAY repeatedly ignored requests to provide details of how she has used her father's funds since she took sole financial control. She consistently refused to provide financial information and her actions have destroyed any trust between the sisters.
QAY has consistently breached her duties as an attorney and made questionable decisions, including to provide incorrect information on Services Australia residential aged care means test forms by excluding the value of his home in South Sydney from his assets.
In 2018, QAY unilaterally appointed her best friend's husband, Mr R, to be her father's accountant.
Ms S, her father's accountant and tax agent in 2021, was not informed by QAY of his dementia diagnosis or the existence of the joint power of attorney appointment. In October 2021, when her father no longer had capacity to sign documentation, QAY submitted tax documents purportedly signed by her father to Ms S.
QAY has failed to address the core issues and her responses as to why she should remain as an attorney application are "full of her love and care for their father". KQZ stated that this is not the issue.
QAY's actions have continued to jeopardise their father's financial welfare. Her assertions are unsubstantiated, inaccurate hysterical and contradictory.
QAY continues to be uncooperative and only communicates by numerous emails and SMS messages. She continues to refuse to have discussions with KQZ regarding the transfer of their father's Malaysian funds to Australia.
QAY has sought personal financial benefit and directed $8000 annually to herself "in the guise of a donation". QAY is the sole beneficiary of the donation. KQZ only became aware of this when she was able to gain access to her father's tax returns in November 2021.
KQZ has never been given access to her father's overseas bank statements for the period between January 2018 to November 2021.
QAY and her husband own their own home. However, QAY continues to live in their father's home, instead of her own home which is nearby. She believes she is entitled to use their father's funds to pay her living expenses, internet, electricity, water and gas.
QAY "secretly" took their father to make a new will in July 2019, even though the geriatrician had found in 2018 that her father is incapable of doing so.
QAY has not acted in their father's best interests with regard to her sole control over his Malaysian funds. She has deliberately locked his Malaysian funds into an account by reinvesting them in unwarranted long-term deposits to prevent the funds from being available for transfer to Australia.
QAY plans to leave Australia soon to live in Malaysia with her husband who is a Malaysian citizen.
When QAY gave KQZ access to her father's bank accounts in November 2021, it was "one time access" and she continues to have control over all the Malaysian bank accounts, including log ins, passwords and security devices.
QAY has not explained why she is a fit person to continue to hold a joint power of attorney. She has shown a blatant disregard for her role as an attorney and refused to work with her joint attorney or be accountable and transparent.

In support of the above, KQZ provided the following documents:

Numerous emails from KQZ to QAY requesting that QAY cease recurring payments for services to her father following his admission to aged care.
Record of a donation of $8000 designated to QAY for an organisation.
Letters to Mr X, of a church institution, and numerous emails to QAY from KQZ requesting she be appointed as signatory on all accounts in Malaysia, Australia and Singapore; a new bank account with Bank YY; joint owner of family safe deposit box; co-administrator of online passwords. She also requested equal access to shares; to be provided with financial statements; [Company name removed for publication.] company reports; superannuation fund statements; and tax returns.
Financial management plan for LCQ, as agreed between joint attorneys, dated 3 December 2021. It was agreed that LCQ's liquid assets be made available, including cash and term deposits, AUD$1.3 million in term deposits in Australian bank accounts; cash and term deposits in an account with Bank YY in Malaysia with a balance of approximately AUD$833,00 and $232,000 Singapore dollars in Bank XX in Singapore.
Statement by Mr Q, KQZ's husband, dated 22 February 2022. He supports the application for QAY to be removed as an attorney. His wife has nothing to gain from remaining as a sole attorney. She is a chartered accountant and a chief financial officer. QAY has continued to refuse access to financial information and ignored requests for access. The enduring power of attorney is not workable, and KQZ should be appointed as sole power of attorney.

Claims, evidence and submissions from QAY

QAY has denied the allegations made by her sister, KQZ. Many of QAY's emails relate to the care she provided to her father and her opposition to her father's admission to a nursing home. As discussed during the hearing, our focus is not on the care issues, and we accept that QAY provided considerable care to her father prior to his admission to an aged care facility.
QAY's statements, emails, and supporting documents in relation to her conduct as a joint attorney are summarised below.

KQZ emailed her several times and said she did not want to be responsible for her father's financial affairs. This led to the breakdown of their relationship and QAY's decision to exclude KQZ's access. It was supported by their father.
Their father decided he did not want KQZ to have access to his accounts and it was he who decided in November 2018 that her access to the safety deposit box should be blocked.
Their father handed financial control of his overseas accounts to QAY, and this greatly upset KQZ. This began a "downward spiral" in the relationship between the sisters.
QAY was advised many times to remove her sister KQZ as joint attorney because of her refusal to exercise her joint responsibilities. QAY did not want to do so because she did not want to cause distress to her father.
KQZ is bullying, badgering and not respectful when she does not get her own way and exhibits a pattern of abuse, and continues to blame and accuse QAY of excluding and withholding her financial access.
KQZ has relentlessly slandered her, creating family divisions and great personal hurt. She has repeated demands for financial access while ignoring repeated requests for face-to-face meetings.
QAY does not intend to relocate overseas.

In support of her claims, QAY provided the following:

Numerous emails between QAY and KQZ, with many relating to discussions regarding contacting each other.
An email from QAY to KQZ, dated 27 November 2021, referring to a handover of their father's financial and medical information, passwords for all bank accounts; and records of transactions.
Numerous personal references for QAY, mostly in relation to the care she provided to her father.
Emails from KQZ, mostly prior to 2018, stating that she did not want to be involved in their father's financial affairs.
Email from KQZ to her father in 2016 suggesting he repatriate funds in his overseas accounts. The annotation on the email indicates that LCQ indicated at that time he wished for the funds to remain in Malaysia and Singapore.
Statements from Mr X responding to the concerns raised by KQZ and denying she has not been given access to all her father's accounts.

Hearing discussion

During the hearing, KQZ was adamant that the power of attorney is not workable as their relationship has broken down and is irreconcilable. KQZ said she is seeking for the Tribunal to make a ruling in her father's best interests. She wishes for QAY to be removed as an attorney and she is putting herself forward as the sole attorney. She said she is a chartered accountant and aware of her obligations as an attorney. She said she does not want an independent financial manager appointed and does not support the appointment of the NSW Trustee and Guardian.
QAY agreed with her sister and said she opposes the appointment of the NSW Trustee and Guardian. She said she wishes to retain her position as an attorney but confirmed that she and her sister can no longer work together, and the existing enduring power of attorney is unworkable.
We indicated that we had read all the material and asked KQZ to confirm that we had correctly identified the main issues. We commented that the material provided by KQZ discloses that her concerns are essentially that QAY removed KQZ's access to their father's online bank accounts and her access to the family's safe deposit box; QAY changed accountants without consultation, and caused her father to sign documentation in 2021 when he no longer had capacity; did not disclose to the accountant her father's dementia or the existence of the power of attorney appointing both sisters; continued to refuse KQZ's access to the bank accounts and statements; has sole access to Malaysian/Singapore bank accounts; and has gifted $8,000 a year to herself.
KQZ agreed and said her other concern is that her sister is about to move to Malaysia, and it would be "virtually impossible" for her to manage her father's accounts if she was not in Australia. She also indicated that one of her main concerns in relation to QAY returning to Malaysia is the money in their father's bank accounts. KQZ confirmed she has concerns that her sister would access that money for her own benefit. She said QAY has consistently refused to repatriate the funds in the Malaysian and Singapore accounts to Australia.
KQZ said she has no access to any of her father's Malaysian bank accounts. She referred to statements that she submitted showing there is the equivalent of $850,000 in her father's Bank YY account in Malaysia. She said on 1 March 2021, at a time when her father required the money, QAY reinvested the funds with a maturity date of 2023. She did so without any discussion and when their father's health was declining, and it was evident he would require all his funds in Australia. KQZ said she works for a global equity fund and at the time her sister reinvested the money, interest rates were very low, and investors were liquidating their assets. She said her sister's motives for reinvesting the money and making it unavailable for two years were questionable, and not in her father's best interests.
KQZ said the Residential Aged Care Deposit (RAD) was paid on 14 January 2022. Her father's fees are approximately $10,000 per month. Although her sister has claimed there was sufficient money in Australia for her father's use, this is not a decision for her to make. KQZ said her father's funds should be in Australia to be available for his benefit. Her sister finally transferred about $13,000 from her father's Bank YY account, using an online application. She said it was very risky for her to use the online application and it should have been transferred into his Bank YY Australia account.
KQZ also referred to her concerns that her father had purportedly signed documentation in 2021 at a time when he no longer had capacity. She said earlier that year her father had attempted to sign a document and his signature was a "scrawl". She does not believe her father had the requisite motor skills to be able to sign documentation at that time. She also referred to her concerns that her sister did not advise the accountant, Ms S, that her father had dementia, and Ms S was unaware that he did not have capacity to sign any documents at that time.
KQZ also said in 2016 when they went to Malaysia for a wedding, QAY encouraged her father to establish a joint bank account with her in Malaysia, and it was only when KQZ told her father that he would have difficulty returning the money to Australia, that he closed the account.
KQZ also referred to the $8,000 her sister has gifted herself each year, and said it is clear the money is only for her benefit. Although she obtained her father's approval, she was aware her father had dementia and could not approve the donation of $8,000. KQZ also said her sister has continued to live in her father's home, even though she has her own home, and is making use of his internet and other utilities.
QAY responded to the allegations by her sister. She said she has nothing to hide, and she decided to reinvest her father's money because she was aware he had sufficient money in his Australian bank accounts to cover the costs of his expenses for aged care and health care, without the need to repatriate the money. She confirmed she will repatriate the money, but the RAD has been paid and he has sufficient money. She believes there is "no hurry" for the funds to be returned. She said all the accounts are in her father's name and in 2016 her father wanted a joint account to be made in their names "for practical purposes". When KQZ disagreed, they removed QAY's name from the account.
QAY said the documents will show that she made numerous attempts for KQZ to make decisions with her as the joint attorney, but she continued to refuse to meet her face-to-face. She said she receives $8,000 as a donation, which her parents consistently made since 2003. They told her they wanted to donate to her organisation, which is a religious organisation, and the donation pays for her work.
QAY said she does not believe she has mismanaged any of her father's money and she reinvested the money because there was no need to repatriate the money. She also said she was following Ms S's instructions at the time the documents were signed in 2021 and they were signed electronically. She said although her father has dementia, he can be lucid at times and in November 2021 she gave her sister access to all the accounts.
When asked why she is living in her father's home, QAY said she wanted to bring her father home for Chinese New Year as there were many people who wanted to see him, and she thought it best they have a celebration at her father's home. However, due to the Omicron virus circulating at that time, she did not bring her father home. She also said she is making sure the gardens at her father's home are maintained. She said her own home is empty and has not been rented.
Ms Y, LCQ's sister, said she is very upset about the dispute between the sisters. She said QAY cared for her father very well and LCQ told her he wants QAY to "get everything". She believes QAY was devoted to her father.
Mr W, KQZ's husband, said the Tribunal has correctly pointed out that the issue is not in relation to who cared for LCQ but who is best suited to remain as the attorney. He said his wife has complete integrity. She is a chartered accountant and works for a billionaire who has entrusted her completely to look after his funds. At no point has KQZ ever engaged in questionable conduct, and she has abided with her obligations as an attorney. He said it is his belief that his wife is most suitable to be entrusted with the ongoing financial welfare of her father's assets.
Mr V said he is also a chartered accountant, and he does not believe there is any evidence that his wife, QAY, has misappropriated any of her father's money, and in fact she has "guarded" it for his benefit.

Our consideration

As above, we must first consider whether we should review the operation and effect of the enduring power of attorney made by LCQ in 2013.
We accept that the enduring power of attorney is unworkable due to the breakdown of the relationship between the jointly appointed attorneys. There remain considerable assets belonging to LCQ that require consideration and ongoing management of his financial affairs. We have decided, therefore, that we should review the operation and effect of the enduring power of attorney.
We must consider what orders, if any, we should make. If we decide to make orders, we must be satisfied that any orders we make are in LCQ's best interests or better reflect his wishes.
We firstly accept that there were considerable difficulties in communication between KQZ and QAY. The email communication indicates that KQZ expressed her considerable frustration and at times indicated she no longer wished to manage their father's financial affairs. However, this appears to have been prior to their father's diagnosis of dementia, at a time when he had not been declared incapable of managing his financial affairs, and prior to the geriatrician finding that his will, enduring guardianship and enduring power of attorney could not be changed.
Importantly, LCQ appointed both his daughters as his joint attorneys in 2013, and despite assertions by QAY that he wanted only her to manage his accounts, he did not revoke his appointment of KQZ when he had capacity to do so. KQZ also remained in her position as attorney and did not resign from that position. As a joint attorney appointed under the enduring power of attorney in 2013, QAY's obligations to consult her sister KQZ about all decisions regarding her father's financial affairs remained in place.
The email communication from 2018 indicates that KQZ repeatedly requested access to her father's financial affairs and accounts from that time. The evidence before us indicates that QAY made numerous decisions without consulting KQZ, and only reluctantly provided her with access to information regarding their father's accounts and information in November 2021, after frequent attempts in the previous three years by KQZ to obtain access. Even then, KQZ was provided with incomplete information and given limited access to accounts. We consider that QAY's actions in refusing to share full access to her father's financial information to her joint attorney constitute a breach of her obligations as a joint attorney.
The evidence in relation to QAY's management of the money in her father's bank accounts in Malaysia and Singapore is unclear, and we note KQZ's concerns that she did not receive access to records for the period between January 2018 and November 2021 for those accounts. We accept that prior to his diagnosis of dementia, LCQ indicated that he wanted his money kept in Malaysia and did not want it repatriated at that time. However, LCQ's circumstances changed significantly from 2018 when he was diagnosed with dementia. QAY's motives for not transferring her father's funds in overseas bank accounts and reinvesting the funds for a further two years in 2021, at a time when her father may have required the funds, are of concern.
We are not satisfied that QAY's continued refusal to repatriate her father's funds at a time when he would inevitably require them for his increasing care needs were made in his best interests. Nor are we satisfied that QAY has satisfactorily explained how her decision for the funds to remain in Malaysian bank accounts would benefit her father, who has dementia, is a resident in a nursing home, and is very unlikely to ever return to Malaysia. Again, QAY's decisions regarding her father's funds in overseas bank accounts were made unilaterally and without consultation with her joint attorney.
We have similar concerns in relation to the "donation" of $8,000 a year to QAY. Whilst this decision was made by her parents when her father had capacity, he no longer has capacity to consent to the donation and her mother is deceased. QAY's continued residence in her father's home also appears to be for her benefit and we found her explanation as to why she has continued to reside in her father's home to be unconvincing. As above, these decisions were made without consultation with the joint attorney.
Having considered all the evidence, we are satisfied that the evidence does not indicate QAY's deliberate or devious misappropriation of her father's funds for her own benefit. However, LCQ appointed both his daughters as his joint attorneys. He envisaged that they would work together in his best interests, and undoubtedly wished for consultation and co-operation between the sisters. We consider that QAY's actions indicate that she has often not abided by her obligations as a joint attorney, and indeed she at times appeared to deliberately flout her obligations by acting unilaterally without consulting the joint attorney in relation to numerous decisions. Her decision to not repatriate her father's money in bank accounts in Malaysia and Singapore is not in accordance with her obligation as an attorney to act only in her father's best interests.
We note that other issues have been raised by KQZ relating to her father's will, the provision of information to an accountant, and various other issues. We have insufficient information regarding these matters and have not made any adverse findings in relation to these issues.
We are satisfied that the evidence establishes that KQZ, who is a chartered account and has considerable experience in managing significant estates, should remain in the role of attorney. We accept there is no evidence that she has acted inappropriately in her role. We consider KQZ is most appropriate to remain in the position as the attorney. She has relevant experience and qualifications, and we are satisfied she will make decisions in her father's best interests and appropriately manage his financial affairs.
Both sisters have indicated that they do not agree with a financial management order, and we accept that the imposition of a financial management order is not in LCQ's best interests, given that he has an extensive estate involving fees in accordance with the management of that estate. We have decided not to not make a financial management order.
We have, therefore, decided it is in LCQ's best interests that we make orders relating to the operation and effect of the enduring power of attorney made by LCQ on 15 June 2013. We have made an order under s 36(4)(b) of the Powers of Attorney Act removing QAY as attorney.
The effect of the order removing QAY is that KQZ remains in her position as attorney and is the sole attorney for her father, LCQ. Under s 36(10) of the Powers of Attorney Act the effect of an order removing an attorney is as if it was done in "due form by the principal, and the principal were of full capacity and were to the extent necessary, authorised to do the thing in question by the instrument creating the power".

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

At a glance

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