1. TCM made enduring powers of attorney (EPA) on 29 May 2018 and 3 November 2021. On both occasions, she appointed her son, PLB, as her attorney with another son, RAX, as alterative attorney. Both powers were for personal and financial matters.
2. The 2018 EPA was exercisable when she ceased to have capacity. It was witnessed by solicitor, Gerald William Cassidy, and Kelsey Orr, presumably a clerk for Mr Cassidy.
3. The 2021 EPA gave powers that were exercisable immediately and was allegedly witnessed by CWT, wife of PLB, and Ebony Adams, presumably also a clerk for Mr Cassidy.
4. Both powers note that the power was read to TCM prior to signing. Neither powers mention the presence of an Italian interpreter.
5. No person alleges that TCM lacked capacity because of a disability to execute the instruments. However, it is asserted by some witnesses that because of her language and literacy issues, she would not have understood the instruments and did not have financial literacy to be able to adequately supervise the use of her funds.
6. PLB denies active use of either power except the 2021 EPA which he only exercised shortly before TCM's death.

• (1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or > > (b) is otherwise an abuse of process.

1. I note that summary dismissal powers are to be exercised with great care, and that the proceedings should not be struck out or dismissed unless it is clear that there is no real question to be tried. I am also aware that, for the purposes of this decision, I need to assume that the applicant can prove each and every fact alleged in his claim.

1. The application was made on 25 August 2022 by solicitors for the applicant. On 28 October 2022, the applicant's solicitors submitted consent orders to VCAT for the application to be dismissed. However, on 31 October 2022, VCAT refused leave to withdraw because the applicant had subsequently written to VCAT saying he was no longer represented and wanted to retract the application for withdrawal.
2. On 2 November 2022, VCAT made standard orders for the attorney to submit accounts to VCAT and 'an affidavit stating the date upon which he first exercised any enduring power of attorney for the principal'.
3. The attorney submitted an affidavit and financial accounts on 18 November 2022, and these were circulated to parties and interested persons by VCAT in January 2023. TCM's sons, TCR and TSC, expressed objections to the materials submitted soon after.
4. On 24 February 2023, I convened a directions hearing. The applicant was directed to provide particulars of the breaches of the attorney's duties within a month, and the attorney was directed to respond within a further month, including by submitting a foreshadowed summary dismissal application.
5. The attorney made a summary dismissal application on 21 April 2023. On the same date, I made a direction for the applicant to provide any written response at least three business days before the hearing of that application. The hearing was scheduled for 19 May 2023.
6. On 2 May 2023, the attorney's solicitors requested that the application be heard on the papers and on 10 May 2023, a Senior Member, noting that the applicant had not responded to VCAT's emailed request for a response in relation to a hearing on the papers, vacated the hearing and directed that the summary dismissal application be referred to me for a decision on the papers.
7. On 15 May 2023, the applicant submitted an objection to the summary dismissal application being decided on the papers and requested that the hearing proceed as scheduled. Because (i) the hearing had already been vacated and that time was assigned elsewhere, and (ii) because of my view that the summary dismissal application could not succeed, I did not seek to reinstate the summary dismissal hearing.

THE APPLICANT'S CASE AND LIMITS ON VCAT'S JURISDICTION

1. The attorney makes the case that the applicant has not particularised his application well, nor specified which transactions are a breach of the attorney's duties. However, the applicant has been unrepresented since October 2022 and some leeway is allowable for that.
2. The applicant is supported in his claims by at least two other brothers - TSC and TCR - who have also made submissions about the attorney's behaviours. For ease of reference I will refer to them as 'the applicant and his supporters'. I note that the attorney objects to submissions that come from non-parties, but it appears that at least BNN, TSC and TCR are acting together, or that TCR is acting on BNN's behalf, to promote the case. I also note that their financial interest in a successful outcome is the same as for the applicant.[1] Details from their submissions are included in the following outline.
3. After TCM's death, the applicant was notified that he was a joint executor with PLB. He requested financial records from PLB and was disappointed in the lack of transparency of those records and suspicious that there had been a 20-year history of PLB and his wife, CWT, using TCM's funds inappropriately.
4. I agree with the attorney that the following issues raised by the applicant and his supporters are outside of VCAT's jurisdiction under the POAA:
   • any transactions that occurred prior to the existence of an EPA (e.g. assertions that there has been financial abuse 'over twenty years'); and
   • any transactions that occurred after the principal's death, at which time, if he was transacting, it would be as an executor. Actions of an executor are reviewable by the Supreme Court, but not by VCAT.
5. The following transfers in account #7602 are considered suspicious by the applicant and his supporters:
   • 23 March 2022 - credit $20,000 (date of death);
   • 23 March 2022 - debit $25,000 to CWT;
   • 24 March 2022 - credit $25,000; and
   • 24 March 2022 - debit $25,000 to CWT.
6. Of these, only transactions on 23 March 2022 could be relevant if there is evidence that, at the time of the transactions, the principal was still alive. The principal's account was later credited with $390,000 which included $340,000 that was debited to an account that appears to be in PLB's name on 2 May 2022, so it appears the principal's account was reimbursed for any funds removed at or after the principal's death.
7. I also agree with the attorney that applications about the invalidity of an EPA, for formal execution or capacity reasons, are not capable of being determined after her death. In any event, it would be futile as there is no point revoking the power after the principal has died. Only an accounting or compensation application under the POAA survives the death of the principal.
8. In relation to the 2018 EPA, the following issues have been raised:
   • ATM cash withdrawals between 4 May 2018 and 25 October 2021 - $52,140.00 ($318 per week) when direct debits on the accounts show $55,736.94 over the same period for payment of utilities, medical expenses and groceries ($340 per week). The applicant and his supporters consider that, combined, this level of expense ($658 per week) is excessive for an elderly woman living alone with modest tastes and habits. They infer that the principal was supplementing the attorney's expenses via the ATM cash withdrawals.
9. The applicant challenges the attorney's assertion that he did not act pursuant to the 2018 EPA. The applicant asserts that the principal was physically and functionally unable to have made some transactions because of her illiteracy and age. The applicant asserts that, even though she retained mental capacity and therefore the commencement condition was not met, the attorney has relied on the document to transact on behalf of the principal. He asserts that during that period, all online and ATM transactions were facilitated by the attorney.
10. Because I am to take his case at its highest for a summary dismissal decision, I will accept those assertions in this context.
11. As for the 2021 EPA, when the attorney submitted accounts under VCAT's direction, the applicant was concerned that the time period (post 3 November 2021) was inadequate. The applicant and his supporters allege that the following transactions are possible breaches of the attorney's duties disclosed by the tendered records relating to the 2021 EPA:
    • Deposits from PLB on 16 December 2021 of $2,000 and 30 December 2021 of $1,000, repaid to PLB on 20 February 2023;
    • 'Unaccounted transactions' up to $8,961.60;
    • Payment of Foxtel account in CWT's name (the attorney explained that it was the principal's usage but in CWT's name for convenience in establishing the account);
    • 2 June 2020, transfer to account holder RAX 'electric', $500;
    • 17 May 2021, transfer from BNN to 'f visa', $400.55;
    • 13 July 2021, transfer from BNN to 'p visa', $400.55; and
    • 16 September 2021, transfer to account holder RAX, $47.90.
12. Because I am to take his case at its highest for a summary dismissal decision, I will also accept those assertions in this context.

1. The attorney was directed to file an affidavit stating the date upon which he first exercised any EPA for the principal. The attorney's affidavit states:
   1. I am the Attorney referred to in the Enduring Power of Attorney of the Deceased dated 30 November 2021.
   2. I commenced acting in my capacity as Attorney for the Deceased within a week of the execution of that document. In that week, I attended the National Australia Numurkah Branch to notify the bank of my appointment as Attorney and to enable my access to the Bank Accounts held in the name of the deceased pursuant to that Enduring Power of Attorney.
2. The attorney relies on this affidavit as proof that the applicant has no cause of action.

1. In the text above I have acknowledged certain aspects of the applicant's case that are outside VCAT's jurisdiction and the applicant has no basis to proceed. But I have also outlined areas where the applicant's case falls within VCAT's jurisdiction. The attorney submits that the application ought to be dismissed as lacking in substance if, after the applicant has submitted all of his evidence, there is nothing of any substance for the respondent to answer. The attorney states that there is no evidence that could establish a reasonable cause of action.
2. Regarding the 2018 EPA, the applicant and his supporters dispute the credibility of PLB's affidavit.
3. I note that the affidavit does not make mention of the 2018 EPA, although the direction required that he attest to the 'date upon which he first exercised any enduring power of attorney from the principal'.
4. PLB's statement 'I commenced acting in my capacity as Attorney' could be interpreted as meaning only under the 2021 EPA which he refers to in paragraph 1 of the affidavit. It is a point for cross-examination, which means it needs to be tested at a hearing.
5. Whether or not the attorney considered himself to be acting as attorney during the period 4 May 2018 and 25 October 2021, he still attracts fiduciary duties as an attorney once appointed. It is alleged that some or all of cash withdrawals to the sum of $52,140.00 benefited him or his wife.
6. As cash transactions, proof for either the applicant or the attorney of the purpose or destination of these transactions will be difficult. However, the argument raised by the applicant and his supporters may have some merit: that a frugal and elderly woman is unlikely to have expenditure of $658 per week. The issue will fall on the attorney's credibility about his involvement in and knowledge of the cash withdrawals. If a Tribunal member finds that some of those withdrawals benefited the attorney more than the principal, then the member may find that this was in breach of his duties not to use the position for profit, or his duty to avoid acting in circumstances that created a conflict of the principal's interests and his own.
7. In respect of the 2021 EPA, significant transfers of funds in and out of the principal's accounts and the attorney's accounts in the days surrounding the principal's death have been repaid within a short period, leaving no discernible disadvantage. While the transactions raise questions, there is not much of any substance left to mount a cause of action when repaid so quickly.
8. The remaining seven transactions in question are of small financial value but could amount to breaches of an attorney's duties under section 63(1) of the POAA if they are found not to have been made diligently in good faith, or not to demonstrate reasonable skill and care.
9. Accordingly, with respect to the 2018 EPA, the applicant ought to have the opportunity to cross examine the attorney on the contents of his affidavit and the cash transactions. With respect to the 2021 EPA, although the amounts outstanding are small, there is sufficient prima facie indication of a breach of attorney's duties to warrant a hearing.
10. The application for summary dismissal or strike out of the application is dismissed.
11. I note that the attorney is legally represented and has indicated an intention to seek a costs order against the applicant if the application fails. Given the potential hurdles to proof of allegations in respect of the 2018 EPA and the minor amounts of money potentially outstanding regarding the 2021 EPA, I highly recommend that the parties attempt alternative dispute resolution rather than incur the expense, stress and time involved in proceeding to a hearing when a commercial resolution may suffice.

[1] Presuming that all sons are to inherit equally from the estate.