1.Enduring Power of Attorney PA [redacted] registered 2 March 2022 made by the donor [TH] is revoked.

2. [BMK], accountant and director of [company], is appointed as administrator for [TH] until 20 July 2028.

3.The administrator is to lodge with the Tribunal a financial summary relating to the financial matters of [TH] within 8 weeks from the date of this order.

4.The administrator is to be remunerated $1,400.00 (plus GST) per month out of the estate of [TH] for the work involved in administering her estate.

Guardianship stream - Application to review enduring power of attorney - Application to appoint new attorney or revocation of enduring power of attorney and appointment of administrator - Request to withdraw application - Withdrawal dismissed -Family conflict - Workability of enduring power of attorney instrument - Inaction by attorneys - Gifting under s31(3) - Meaning of 'donation' - Enduring power of attorney revoked - Administrator appointed.

Powers of Attorney Act 2000; ss 30, 32, 33.

C v W [2015] NSWSC 1774;

Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820;

EMT (Guardianship) [2020] VCAT 1356;

Great Investments Ltd v Warner [2016] FCAFC 85;

KU (No. 2) (Application to Review Enduring Power of Attorney) [2023] TASCAT 153;

Plaintiff M70/2011 v Minister of Immigration and Citizenship (2011) HCA 32;

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34.

T McGregor - Tasmanian Legal Aid as separate representative for TH

The decision has been anonymised for the purpose of publication.

1. TH is an 88 year old woman who resides in a residential aged care facility (RACF) in [city]. TH's husband passed away in 2019. She has three children, her son LHH who lives in another state of Australia, and daughters SWH and LD who both live in Tasmania. In 2020 TH was diagnosed as having dementia.
2. On 13 December 2021 TH made an enduring power of attorney (EPOA) appointing LHH, SWH and LD as her joint attorneys. The EPOA was registered by the Recorder of Titles in Tasmania on 2 March 2022. TH was legally represented in the completion and execution of the EPOA. The validity of the EPOA is not in issue.
3. TH's EPOA authorises the attorneys to do anything that they are lawfully authorised to do and it operates despite any subsequent mental capacity of TH.
4. A letter from Dr Felicity Wivell of Newstead Medical to TH's legal representatives dated 21 December 2022 stated that TH was no longer capable of making decisions about her finances and her EPOA was to be enacted.
5. In June 2023, TH had an admission to hospital in [city] following a stroke. While in hospital TH was made subject to a twelve-month guardianship order appointing the Public Guardian as her guardian to determine where she was to live, what services she was to receive and s 28 powers to enforce the guardian's decision. TH was discharged from hospital to a RACF in [city] on 12 September 2023 and on 24 October 2023 was transferred to another RACF in [another city].

1. On 3 October 2024, LHH filed an application to review the EPOA (the application) with the Tasmanian Civil and Administrative Tribunal (the Tribunal). The application sought the appointment of a new attorney; or the revocation of the EPOA and appointment of an administrator, being LHH, and if not the Public Trustee.
2. On 23 October 2024 the Tribunal conducted a directions hearing and appointed a separate representative for TH and made orders and directions to assist the application to be ready for hearing. On 27 November 2024 the legal representative for SWH and LD made an application for a summons to obtain TH's bank records from the Commonwealth Bank. A bank report and bank statements were received from the Commonwealth Bank on 12 February 2025.
3. On 10 December 2024 the Tribunal received from LD a 'Part C - suitability for appointment and consent to act as administrator, if appointed'. It stated: "My mother's preference is that the EPOA continues with the three of us jointly. If that is not possible, she has told me her preference is that I am her administrator."
4. On 11 December 2024 the application was further adjourned by the Tribunal at the joint request of the attorneys' legal representatives, to enable discussions between the attorneys.
5. At hearing on 18 February 2025, the Tribunal received a request to withdraw the application from LHH's legal representative and countersigned by SWH and LD's legal representative. None of the attorneys were at the hearing. The Tribunal was advised an agreement in writing had been reached between the attorneys. After hearing submissions, the Tribunal adjourned the hearing of the withdrawal application and later published directions to parties requiring the attorneys provide particulars and supporting documentation to verify certain transactions concerning bank accounts of TH. Copies of transactions and a spreadsheet were subsequently produced and filed by LHH's legal representative with the Tribunal.
6. On 11 June 2025 at hearing, the Tribunal delivered its decision refusing leave for the applicant to withdraw his application. The Tribunal ordered the application be listed for hearing on 9 July 2025 and requested the attendance of attorneys. It further ordered that the parties were to file any further evidence that was sought to be relied on by 28 June 2025.

1. A partly different constituted panel of the Tribunal heard the application on 9 July 2025. Hearing notices had been sent to all parties and participants on 20 June 2025.
2. At the hearing TH appeared by video link with a support person from the residential aged care facility. Mr Isles from Butler McIntyre and Butler appeared for LHH. Mr Sheehan from Ogilvie Jennings appeared for SWH and LD. Mr McGregor from Tasmania Legal Aid appeared as separate representative for TH. Ms O'Connell appeared on behalf of Public Trustee (Tas).
3. We enquired as to the participation of the attorneys and were advised that none of the attorneys were attending. Mr Isles stated LHH had only just returned to Australia that morning from overseas. Mr Sheehan cited SWH was attending a medical appointment but did not provide any evidence of such; and LD was with a mainland veterinarian and her horse, who was having a dental procedure.
4. We then spoke with TH briefly explaining the reason for the hearing and to elicit her wishes. During this exchange TH became upset and confused and we were unable to obtain her wishes, but she was content to remain on the video link. TH remained on video link for over half of the hearing before hanging up. Mr McGregor confirmed he had met with TH and could speak further to her wishes.
5. None of the parties sought an adjournment and we indicated that we would proceed with the hearing. Mr Sheehan then requested an adjournment, albeit not instructed to do so but on the basis that his clients believed LHH would be present at the hearing. The Tribunal stood the matter down to enable Mr Sheehan and Mr Isles to speak with their clients. Mr Sheehan indicated he had not been able to reach his clients. Mr Isles indicated his client was at the airport in [Australian State] and was able to take our call. We contacted LHH who participated in the hearing and gave evidence by telephone. After hearing all evidence and submissions, we reserved our decision.
6. On 10 July 2025 Mr Sheehan wrote to the Tribunal requesting the hearing be reopened to enable the making of submissions about the appointment of an alternate administrator. Mr Sheehan's letter of 10 July 2025 was circulated to all parties, to enquire whether any party was opposed to this course. No response in opposition was received.
7. We determined to allow the request to reopen the hearing for the purpose of hearing submissions as to the appointment of an alternate attorney or administrator. A hearing notice for 21 July 2025 was issued.
8. On 17 July 2025 Mr Isles wrote to the Tribunal requesting leave to provide supplementary submissions as to:

...several substantive and procedural issues that were not fully anticipated or addressed in the applicant's earlier submissions dated 27 June 2025. In particular, the applicant seeks to respond to: > > 1. Allegations or implications made during the hearing, which the applicant has not yet had a fair opportunity to address; and > > 2. Any submissions made by Mr Adam Sheehan (on behalf of [SWH] and [LD] regarding the appointment of an alternative administrator, should the Tribunal revoke the enduring power of attorney.

9. Additionally, Mr Isles requested the opportunity to make oral submissions regarding the appointment of an alternative administrator at hearing.
10. On 18 July 2025 we granted leave for the proceedings to be reopened for the purpose of considering the appointment of another attorney or an administrator for TH. Further, we gave leave for Mr Isles to further address the Tribunal orally at hearing in respect of his request to raise additional issues at the hearing.
11. On 21 July 2025 the Tribunal reconvened. LHH, Mr Isles, Mr Sheehan, Mr McGregor and Ms O'Connell were present in person at the hearing. SWH and LD did not attend. After hearing submissions and in particular the request by LHH to "correct the record", the Tribunal granted leave to allow LHH to give further evidence limited to: the quantification of the payment of $105,000.00 to each attorney from TH's estate; and the incentive behind making those payments.
12. Mr Sheehan made a submission seeking the appointment of BMK, accountant and Director of a company as administrator for TH, if the Tribunal was to revoke the EPOA. BMK joined the hearing by telephone and gave evidence.
13. At the conclusion of the hearing, we determined to revoke the EPOA and appoint BMK of a company as TH's administrator, and indicated we would publish our reasons. These are our reasons.

The Tribunal's jurisdiction to review an enduring power of attorney and the orders that may be made on such review are provided in s 33 of the Act:

33. Power of Tribunal to make orders in respect of enduring power of attorney > > (1) The Tribunal may - > > (a) of its own motion; or > > (b) on application by an attorney; or > > (c) on application by or on behalf of a donor; or > > (d) on application by any other person who the Tribunal believes has a proper interest in the matter - > > hold a hearing in accordance with Division 1 of Part 10 of the Guardianship and Administration Act 1995 to review an enduring power of attorney. > > (2) On the review, the Tribunal may, by order - > > (a) vary a term of, or a power conferred by, the enduring power of attorney; or > > (b) appoint a substitute attorney; or > > (c) appoint an administrator of the estate of the donor if he or she is over the age of 18 years; or > > (d) declare that the donor did or did not have mental capacity to make a valid enduring power of attorney; or > > (e) declare that the enduring power of attorney is invalid if the Tribunal is satisfied that > > (i) the donor did not have the mental capacity to make it; or > > (ii) it does not comply with the other requirements of this Act; or > > (iii) it is invalid because the donor was induced to make it by dishonesty or undue influence or invalid for any other reason; or > > (f) revoke the enduring power of attorney and, if the donor is over the age of 18 years and the Tribunal thinks fit, appoint an administrator of his or her estate; or > > (g) make such other order as to the exercise of the power, or the construction of its terms, as the Tribunal thinks fit. > > (3) An appointment of a person as administrator under subsection (2)(f) has the same effect as if it had been made under Part 7 of the Guardianship and Administration Act 1995. > > ...

The Act does not provide any guidance as to what matters need to be considered upon a review of the enduring power of attorney under s 33, however we adopt the observations in JK (Request to withdraw application) [2022] TASCAT 21 at [26]:

When considering whether to exercise the discretion to make an order under s 33 of the POA Act in relation to the operation of an instrument....the Tribunal is examining the evidence to decide whether an attorney has in any way breached their duty as an attorney, or has otherwise not acted, or will not be able to act in the future, in a manner which protects the interests of the donor, promotes their best interests, and where possible and appropriate, reflects any known wishes or likely wishes of the donor.

Section 32 of the Act sets out the duties of an attorney under an enduring power of attorney as follows:

32. Duties of attorney under enduring power of attorney > > (1) An attorney under an enduring power of attorney, during any period of mental incapacity of the donor - > > (a) is taken to be a trustee of the property and affairs of the donor according to the tenor of the power; and > > (b) must exercise his or her powers as attorney to protect the interests of the donor > > and, if he or she fails to do so, is liable to compensate the donor for any loss occasioned by the failure. > > (1A) An attorney, in so far as doing so will not conflict with the attorney's duty under subsection (1) to protect the interests of the donor, must at all times exercise his or her powers under an enduring power of attorney as far as is possible and reasonable in the circumstances - > > (a) in the best interests of the donor; and > > (b) in consultation with the donor; and > > (c) taking into account - > > (i) the wishes of the donor, in so far as those wishes have been, or can be, ascertained; and > > (ii) what would be reasonably likely to be the wishes of the donor, if he or she were not subject to a mental incapacity. > > (1B) For the purposes of this section, an exercise of a power under an enduring power of attorney is not to be taken to constitute a failure to protect the interests of the donor, and is to be taken to be in the best interests of the donor, if - > > (a) it is an exercise of a power that the donor would have been likely to make if he or she were not subject to a mental incapacity; or > > (b) the exercise of the power consists of providing for those persons who the donor would expect to provide for, if he or she were not subject to a mental incapacity. > > (2) An attorney under an enduring power of attorney is not competent to appoint another person to perform any functions or exercise any powers in his or her capacity as such. > > (3) An attorney under an enduring power of attorney must keep any property of the donor (apart from property held by the attorney and the donor as tenants in common or joint tenants) separate from property of the attorney.

Section 31 addresses the scope of authority of an attorney under an enduring power of attorney, including, relevant to this matter, gifting provisions:

31. Scope of authority, &c., of attorney under enduring power of attorney > > (1) An enduring power of attorney - > > (a) may confer general authority in accordance with subsection (2) on the attorney to act on the donor's behalf in respect of all or a specified part of the property and affairs of the donor or may confer on him or her authority to do specified acts on the donor's behalf; and > > (b) may be expressed to operate only during such period as may be specified in the power of attorney - > > and, in any such case, the authority may be conferred subject to conditions or restrictions. > > (2) Where an instrument is expressed to confer general authority on the attorney, it operates to confer, subject to any conditions or restrictions specified in the deed or instrument, authority to do on behalf of the donor any act which the donor can lawfully do by an attorney. > > ... > > (3) Unless there is a contrary intention expressed in the enduring power of attorney, an attorney may give away any property of the donor only if - > > (a) the gift is - > > (i) to a relation or close friend of the donor; and > > (ii) of a seasonal nature or on the occasion of a special event (including, for example, a birth or marriage); or > > (b) the gift is a donation of the nature that the donor made when the donor had mental capacity or that the donor might reasonably be expected to make - > > and, in either case, the value of the gift is reasonable having regard to all the circumstances and, in particular, the donor's financial circumstances. > > (4) An attorney or a charity with which an attorney has a connection is not precluded from receiving a gift under subsection (3) . > > (5) The Tribunal may - > > (a) on the application of an attorney or of its own motion; and > > (b) after a hearing in accordance with Division 1 of Part 10 of the Guardianship and Administration Act 1995 - > > authorise the attorney to make a gift of any property of the donor to any person approved by the Tribunal and for any purpose approved by the Tribunal.

Section 35 sets out provisions relating to advice or directions that may be sought from the Tribunal in relation to an enduring power of attorney:

35. Advice or directions as to enduring power of attorney > > (1) An attorney under an enduring power of attorney may apply for advice or direction by the Tribunal on any matter relating to the scope of his or her appointment as such or the exercise of any power by the attorney under the enduring power of attorney. > > (2) An application under subsection (1) may be made in accordance with section 34 or informally. > > (3) The Tribunal may require notice of an application under subsection (1) to be given to any person that the Tribunal directs and may exercise its powers under this section without a hearing. > > (4) The Tribunal may - > > (a) approve or disapprove of any act proposed to be done by the attorney; and > > (b) give such advice or direction as it considers appropriate; and > > (c) vary the effect of the enduring power of attorney or make any other order that it could have made on an application under section 33 . > > (5) The Tribunal of its own motion may direct, or offer advice to, an attorney in respect of any matter arising under the power of attorney. > > (6) Without limiting the powers conferred by this section, the Tribunal may - > > (a) require an attorney to lodge with the Tribunal a copy of all records and accounts kept by the attorney of dealings and transactions made by him or her under the power; or > > (b) require those records and accounts to be audited by an auditor appointed by the Tribunal and require a copy of the report of the auditor to be furnished to the Tribunal; or > > (c) require the attorney to submit a plan of financial management to the Tribunal. > > (7) An attorney who contravenes a direction given to him or her under this section is guilty of an offence and is liable on summary conviction to a fine not exceeding 20 penalty units.

I am a joint attorney with my two sisters in an activated EPA, for our mother, [TH]. > > My mother owns several rental properties which generate income and has a large amount of funds in the bank. This requires payment of commercial and personal bills. These include rates and taxes, insurance, utilities, payments for medical and aged care facility costs. > > There are two issues requiring review, one is that my sisters have frozen my mother's accounts, stopping payments of bills, and the second is the ongoing workability of the EPA. > > In May 2024, my sisters stopped the process we were using to pay bills, and would not accept alternative methods for payment, and have not agreed to restart payments. This left only direct debits working. On 2 August 2024, my sisters froze my mother's accounts, stopping all payments. This includes, not only commercial bills, rates, taxes and utilities and book keeping, but also payments for my mother's medication and accommodation at the aged care facility. > > This leads to the second part which is the workability of the joint EPA. Almost every action I have put forward has been disputed in some way or another by my sisters. Mostly, they have been worked out so we could move forward with things like appointing a property manager, but others have not been resolved. Ultimately, the inability of my sisters to cooperate has lead [sic] to the situation where it is not possible to function jointly, so making the EPA unworkable. > > I consider the matters have reached such a stage that we are no longer able to work co-operatively. > > I have asked my sisters many times to remove the stops on the accounts so the bills can be paid, to no avail. > > Since May, I have offered to enter into discussions regarding their concerns, and asked, almost begged them to allow the bills to be paid, but they have not agreed. > > I have also offered alternate ways to pay the bills, but they have been ignored. > > In a last attempt, on 10 September, I proposed a different approach to paying the bills which addressed both my sisters' and my concerns. They consulted my mother's accountant who said it was acceptable; however my sisters did not agree to it. > > ... > > Tax returns for 2021-22. 2022-23, and 2023-24 have not been completed.

2. At the directions hearing on the 23 October 2024, LHH commented there had been conflict between the attorneys since the beginning and that his sisters had stopped payment of TH's accounts for four months. LHH stated "I have no idea, no hope that the power of attorney will continue in any cooperative fashion" and then confirmed "it is not workable in any way."
3. At the hearing on the 9 July 2025, LHH gave evidence that he had made application, to the Tribunal due to there being a breakdown in communication between him and SWH and LD and because the EPOA had become unworkable.
4. LHH confirmed TH had a significant estate and her finances were a co-mingling of personal and business interests. We were told TH's estate was approximately $12 million dollars, comprising of a number of commercial properties, which generated rent. The annual income and expenses statement received from the attorneys, provides TH's gross total income is in excess of $525,000.00 and she has an annual surplus of $276,503.00, after payment of her living and personal expenses. TH banks primarily with the Commonwealth Bank (the Bank) but also has an account with Macquarie Bank which has a balance of approximately $389,000.00. LHH stated that TH has a CommBiz bank account which is the primary overarching account over her other bank accounts. Her rental income is paid into two of her accounts, one being a personal account which is intended to be closed, and the other a transaction account.
5. LHH stated that when the CommBiz account was opened, only he was given administrator privileges over the account which allowed only him to make withdrawals on TH's account. LHH stated that on 17 May 2024, LD raised concern with the Bank that LHH was the only administrator noting "it was a very suspicious thing" to have, when there were three attorneys appointed by TH. The Bank then froze TH's CommBiz accounts. This resulted in TH's funds not being able to be accessed. TH's personal and business expenses continued without any means of paying them. LHH indicated he sent multiple emails asking LD and SWH to support the unblocking of the account and offered several solutions to try and fix this issue. LHH told us he was personally meeting payment of TH's expenses, to ensure her financial commitments and needs were being met. He indicated that this also included payment of her residential aged care fees and medical accounts. He indicated, after a number of months of paying these accounts, he was running out of money to continue to meet payment of TH's expenses.
6. In response to questioning by us, LHH confirmed there had not been any dispute about the operation of TH's bank accounts. "I never did a withdrawal or a transaction without prior receipt of permission from my sisters." LHH indicated he had set up a Google account with spreadsheets which all attorneys had access to, and he would make payments from TH's account "by batching up bills once a month", and getting emailed permission from SWH and LD for payment of the batch expenses. "I was very particular about every cent. I didn't do anything without their agreement." LHH confirmed any payments he made were evidenced in the spreadsheets.
7. When asked why the CommBiz account still remained frozen, LHH stated:

They wanted to be equal administrators. It comes down to a matter of trust. They always acted together to block and transfer simple majority vote. I would have been frozen out of any decision making. > > ... > > The administrator has the privileges to do anything. They could withdraw the whole lot. Allowing all people to be administrators meant one person could withdraw all funds. We are joint attorneys but it would allow an attorney to act severally.

8. LHH told us there had been a dispute over the will of their father, following his death in 2019, which caused a breakdown of relationships with his siblings. LHH indicated his father had loaned money to SWH and wanted it repaid without interest and had put in his will a hotchpotch clause "to stop any problems". LHH stated that after their father's death SWH argued the money was a gift. LHH said TH and LD supported SWH's claim that it was a gift. LHH indicated there was "absolutely no evidence of the payment being a gift". From that time on, communication between LHH and his sisters was extremely limited. LHH confirmed he had only been communicating with SWH and LD by email about TH's financial matters, but otherwise there had been no other communication with them. He confirmed the conflict following the dispute over their father's will continued after the enactment of TH's EPOA. He confirmed the conflict was still a significant thing between them and confirmed the ongoing fragility of their relationship.
9. We questioned LHH whether TH's income tax return for the years 2022, 2023 and 2024 had been lodged. LHH confirmed they had not been lodged and were still an issue that required completion. We put to LHH that TH's finances did not appear to be overly complicated, and the tax returns should be relatively straight forward to prepare. LHH indicated they were in the process of engaging a bookkeeper to complete the tax returns, as the previous bookkeeper had resigned. He confirmed TH's taxable income was approximately $400,000.00. LHH said TH had a bookkeeper in 2021 as his mother had not been involved in financial matters before the death of her husband and had limited understanding of such matters.
10. We enquired of LHH whether professional advice had been sought as to TH's estate, and particularly the investment of TH's surplus funds. LHH confirmed no advice had been sought and stated the attorneys had agreed to move $1,500,000.00 into a term deposit but no other action had been taken because of a divergence of views between attorneys as to investment options.
11. LHH indicated that his parents had been very generous to him and his siblings over the years and had "advanced all their children's financial positions." He noted they had purchased a property for him to use and had contributed to a property he had purchased. He indicated that he assumed similar gifts were made to SWH and LD. LHH confirmed it was usual for TH to gift to her children and grandchildren in varying amounts at Christmas time, birthdays and other times. LHH told us all the attorneys had agreed to a gift from TH's estate of $5000.00 to each attorney and $500.00 to all grandchildren for Christmas in 2024.
12. Prior to the enactment of the EPOA LHH confirmed TH had gifted to him and his siblings frequently, a total of approximately $60,000.00 - $65,000.00 per year. These were by regular small gifts over the course of a year, rather than a lump sum. LHH noted he would get an envelope with a cheque inside from TH and assumed SWH and LD were also receiving gifts of a similar sum.
13. After the EPOA was enacted, according to the evidence, TH continued to send envelopes with the cheques inside to LHH. LHH stated:

we were looking at our duties as attorneys and not taking a benefit. I came down negatively about it. > > ... > > I was saying we shouldn't do it. I wasn't banking cheques. I returned them since start of the EPOA. I was telling my sisters not to take advantage. I looked up 'How to' sheet from Legal Aid.

LHH confirmed no lump sum amounts were transferred from TH's bank accounts to the attorneys until 4 October 2024 when a sum of $105,000.00 was transferred to each of them. In response to questioning by Mr McGregor, separate representative for TH, LHH responded:

My mother was very generous, and it had stopped completely. I started looking at the legislation and thinking, wondering what would be allowed in accessing any of that money and saw that gifting was allowed.

We asked if this transfer of funds was a way of 'brokering' the standoff with SWH and LD and LHH confirmed it was.

I thought it would help with convincing my sisters. > > ... > > To allow my mother's accounts to be unfrozen. It got to a point where there were some quite large bills and I had ran out of capacity to pay them, so I was trying to manage, I was trying to convince them to, to unfreeze the accounts and I was offering both a proposal which moved all the payments of bills to the bookkeeper which is still in the process of going underway and also the gifts.

We enquired what discussions had occurred between the attorneys in respect of this proposal.

...we were talking about $40,000.00 - $50,000.00 amounts at the time. That was the sort of the amount being discussed. I can remember writing that I thought it should be more than that and [LD] wrote back - how about $100,000.00 and that is something we settled on. I can't remember why it was $105,000.00.

When asked what the relevance of the transfer of the funds had in respect of the agreement to unfreeze the accounts, LHH stated:

I think it was part and parcel of the thing. > > Because I had run out of money I put forward the proposal. I said if they didn't agree to unfreeze the account, I would have to ask for a review of the EPA from TASCAT. They didn't agree. So I began the process. That's what happened at the time. I can't exactly remember the timeline, what happened before or after but I think the um, saying I was going to do it and proceeding with the review was what convinced them to agree to unfreezing the accounts and allowing payments to be made.

We asked LHH why he suggested the transfer of funds:

I thought it would help with unfreezing the accounts and I thought this was proportionately to what my mother would want us to have.

LHH confirmed he did not consider previous gifting amounts when setting the amount of $105,000.00. Mr McGregor put to LHH that there was no evidence there had been lump sum cash amounts of the magnitude of $105,000.00 previously given by TH to her children, to which LHH agreed. LHH opined that TH had a small requirement for money and wanted to give to her children. 20. Mr McGregor asked whether any attempts had been made by any of the attorneys to obtain TH's wishes in respect to payment of $105,000.00 to the attorneys. LHH indicated no attempts were made. LHH commented that TH had previously said to him if she can't make use of the money she wants her children to have it. 21. LHH confirmed TH's CommBiz account is still frozen and there is no intention to approach the bank to unfreeze this account. LHH said the attorneys' only access to their mother's bank funds is from her transaction account when the three of them sign a withdrawal form. The withdrawn funds are then paid into a private account of LHH and from there TH's expenses are being paid. LHH again confirmed SWH and LD have access to the spreadsheets he uses to record the payment of expenses. When asked by Ms O'Connell of the Public Trustee whether any steps had been taken to separate TH's bill payments from his own private account, LHH responded: "no but the idea is that the bookkeeper will do that". 22. At the hearing on the 21 July 2025, LHH wanted to correct his evidence on 9 July 2025, as to the quantification of the payment of $105,000.00 to each attorney from TH's estate and as to the incentive behind making those payments. LHH said the incentive was to pay TH's bills from her own funds as he had run out of money to do so. LHH stated there had been discussions between the attorneys about unfreezing TH's accounts to allow for payments of her expenses, but no resolution was reached on this issue until all attorneys agreed they would receive a payment of $105,000.00. At this time there was also agreement with SWH and LD that he would be fully reimbursed for the sum be had paid to meet TH's expenses. 23. In relation to gifting, LHH indicated the methodology behind the amount of the payments was that there had been no gifting from TH's estate for the last two years. The sum of $105,000.00 was less than that received by each of the attorneys in 2021 and 2022 combined. The purpose of this lump sum was to rectify that gifting had not occurred in the previous two years. In relation to whether the payment was an incentive to unblock the account or not LHH stated in relation to the evidence he had given on 9 July 2025:

I answered it in terms of going through that filter point of where I had sort of come to a smallish conclusion that it could be seen as an incentive.

24. When asked: "is that still something you have concluded?" LHH replied:

I think it was more surmising that it be seen as such, rather than a conclusion because I don't know what they [ie SWH and LD] were thinking. They didn't tell me this would be the case or anything like that.

25. In the financial records provided to the Tribunal there was reference to 'a bounty' payment in the sum of $250.00 being provided to an attorney for when they visited TH, as well as reimbursement of any expenses. At hearing on 9 July 2025, LHH explained this was a lump sum payment for the time of an attorney to visit their mother. He explained that LD who lived out of [city], had to travel to see TH and would "take her out and spend time with her. My mother would hand out money as well."

I thought how about a lump sum which would cover her expenses. We looked at an hourly payment of a social worker and considered that at the time. It was $95.00 per hour.

26. Ms O'Connell asked LHH about whether the 'bounty payments' would continue and he confirmed it would. LHH questioned whether this was of concern. Ms O'Connell responded:

I guess it is a matter of perspective. When I visit my mother, I do it for free.

27. At the end of the hearing, Mr Isles submitted that the EPOA should be left as it is, that is with LHH, SWH and LD acting as joint attorneys, and the application be dismissed. This was also the position of Mr Sheehan.
28. Mr McGregor submitted we should take into account the evidence of TH at the hearing on the 18 February 2025 where she indicated her wish for her three children to remain, if possible, her joint attorneys. He stated:

TH was adamant that she wanted her children working as her powers of attorney, and she was very strong in saying that she wanted them to work peacefully and cooperatively so together, and that [she] wanted things to be even and equal. She wasn't able to choose one if she had to, but when we met yesterday she did mention that while she gets along with all her kids, she did unprompted say that they do sometimes not get along and they do, I think she said they mentioned they fight, but she still wanted them to work together.

29. At the hearing on 21 July 2025, we also heard evidence from BMK, accountant and director of a company. BMK confirmed he had no direct experience with personal administration under the Act however was currently administering something similar in a corporate sense, involving the winding up of a trust between conflicted parties. He confirmed he had experience in managing corporate property portfolios and able to meet his obligations under the Act including the reporting requirements. He was not aware there were three outstanding tax returns to be completed and filed with the ATO, but confirmed he would work promptly with a bookkeeper and accountant to ensure the returns were filed. He confirmed he has no existing relationships with any of the attorneys. He indicated he would get an understanding of TH's situation and her needs and requests for funds. BMK stated he would consider requests of expenditure by the current attorneys on a case-by-case basis and would ensure "permission is sought rather than reimbursement." In respect to gifting, he indicated if there had been a pattern of gifting, he would consider this, only after full consultation with all attorneys. When questioned as to whether he had read the Act, he acknowledged he hadn't but would do so and would obtain legal advice if required.
30. We also heard from Ms O'Connell in respect of Public Trustee's commission and fees. If appointed as administrator, and TH's assets remained unrealised, the Public Trustee would take 2.2% commission at the end of the administration which based on the value of 15 Nov 2024, was $300,000.00. Commission on income would be 6% and for rental income 3%. This would equate to commission of $34,500.00 per annum if managing property and $18,000.00 if not managing property directly. Ms O'Connell confirmed in relation to the Public Trustee being substituted as attorney, there would be a fee of $120.00 per hour and a monthly account fee of $13.50, and 6.6% commission on income and 3.3% on rental income.
31. At the conclusion of the hearing, both Mr Isles and Mr Sheehan submitted that if the Tribunal intended to revoke the EPOA then their clients were supportive of BMK's appointment as administrator.
32. Despite LD filing a 'Part C - Suitability for appointment and consent to act as administrator', at no point did LD participate in the hearing and Mr Sheehan did not seek to pursue LD's appointment as administrator.

1. Written submissions dated 9 April filed by LHH's legal representative addressed the gifting by the attorneys to themselves in the sum of $105,000.00 each. It was submitted the attorneys had wrongly believed that they were acting in compliance with s 31(3) in making the gift, however, upon receiving legal advice they all accept that 31(3)(a)(ii) had not been met, as the gifts were not of a seasonal nature.

A further written submission dated 27 June 2025 stated that the gifting of $105,000.00 to each of the attorneys fell within s 31(3)(b) of the Act as:

2 ...the gifts were donations of the nature [TH] made when she had mental capacity or she might reasonably be expected to make and that the value of the gifts were reasonable having regard to all the circumstances and, in particular, [TH's] financial circumstances.

...

14. The applicant submits that the gifts which have been made, have been made only from income earned on [TH's] substantial financial holdings and have not diminished in any way those financial holdings.

...

18. Whilst the gifts have already been made and so on its face, paragraph (a) of [s 35] (4) could not apply, the applicant submits that paragraph (b) could apply to the present factual situation and the Tribunal could direct that the gifts (sic) repaid by the attorneys.

19. Should the Tribunal not accept these submissions and those of 9 April 2025, the applicant, regardless of the power of compulsion set out in sub-section (7) of section 35, would submit to a direction from the Tribunal that the gifts be repaid.

1. At hearing Mr McGregor, as separate representative for TH made oral submissions stating he had met with TH on 9 December 2024 and 8 July 2025 at the RACF. Mr McGregor reported that on 8 July 2025 TH was somewhat confused and could not recall having made an EPOA and did not know what it was and was not aware of the value of her estate. TH did not believe she had given gifts to her children previously of more than $20,000.00. At the hearing on 9 December 2024, Mr McGregor stated that TH was adamant that she wanted her children as her attorneys, and she was very strong in saying that she wanted them to work peacefully and cooperatively and wanted things to be equal and was not able to choose one attorney over another. Mr McGregor stated that TH indicated without prompting that the attorneys "sometimes do not get along and they do, fight."
2. Mr McGregor confirmed that in his opinion the attorneys had breached either their fiduciary duties and/or statutory functions under the Act. He submitted that there was a failure by the attorneys to properly consider the investment of TH's money, the delays with the frozen accounts becoming operational and this being contrary to TH's best interests; the 'bounty' being paid to the attorneys; and the lump sum payment of $105,000.00 to each of the attorneys. Mr McGregor indicated prior to the enactment of the EPAOA, TH had given money to her children by smaller incremental payments rather than a lump sum.
3. Mr McGregor also referred to the decision of KU (No.2) (Application to Review an Enduring Power of Attorney) [2023] TASCAT 153 and in particular to [106] - [109], which considered an attorney's lack of understanding of their duties does not negate or alleviate in any way the seriousness of consequences of any breach. Mr McGregor confirmed:

... that is of course relevant here. I note that there are submissions made that the attorney's will seek to, are aware of their duties now, but it's important to consider that their past actions is of course relevant

1. There was no dispute that TH was incapable of managing her financial and legal matters and the EPOA was in its enduring stage. This has been so since 21 December 2022, as per the correspondence from TH's general practitioner, Dr Felicity Wivell. We had a health care professional report from Dr Andrew Krat dated 21 June 2023 and progress notes relating to TH's admission in hospital in June 2023 confirming that her ability to manage day to day and more complex financial and legal decisions is impaired. We also had a health practitioner report and accompanying letter from Dr Emma Foster, general practitioner who attends the RACF where TH resides, dated 27 November 2024 which stated TH lacks decision making for all financial matters. In her notes, Dr Foster states:

Diagnosis: Dementia with behavioural and psychological symptoms (BPSD) ...with anxiety being a prominent feature. Anxiety often worst when worrying about family...intermittent use of antipsychotics when anxiety levels are high... [TH's]s dementia causes poor memory, disorientation to place and time, decreased executive functioning with inability to understand long term consequences of choices. [TH] also has difficulty in identifying risk and retaining information when told of risks for long enough to compare risks against benefits of any decision. [TH's] condition is permanent, and slowly deteriorating. Limited insight and recall into medical conditions and limitations to executive function caused by dementia. Unable to remember and identify carers within the facility. [TH] is at risk of coercion...

2. The issue before us was whether the current attorneys breached their statutory or fiduciary duty as joint attorneys for TH. We considered whether they had not acted or will not be able to act in the future, in a manner which protects the interests of TH, and which promotes her best interests, and where possible and appropriate, reflects any known wishes or likely wishes of TH.
3. The statutory obligations of an attorney under an enduring power of attorney are set out in s 32(1) of the Act which provides than an attorney is taken to be a trustee of the property and affairs of the donor during any period of mental incapacity. As a trustee of a donor's estate, equitable and common law fiduciary obligations are imposed on an attorney.
4. The Tribunal previously provided commentary on obligations imposed upon an attorney in the decision of KU at [92] to [94]. Paragraph 94 provides:

The duties of an attorney were summarised in the recent decision of Bale v Kimberley developments Pty Ltd [2022] NSWSC 820 where Ward P stated at [663]-[664]: > > [663] It is noted that in Howard v FCT (2014) 253 CLR 83; [2014] HCA 21, the High Court restated some of the essential obligations and liabilities of a fiduciary: a fiduciary relationship imposes upon a fiduciary obligations to the principal not to obtain any unauthorised benefit from the fiduciary relationship and not to be in a position of conflict; these fiduciary duties are proscriptive obligations; fiduciaries must exercise their powers honestly for the purposes for which they are given; the content of the fiduciary duty is moulded by the particular instrument under which that duty is created; and a fiduciary, in equity, has a liability to account for a breach of these fiduciary duties. > > [664] Powers of attorney are a form of agency that is subject to a fiduciary overlay as well as statutory obligations (see Ward v Ward (No 2) [2011] NSWSC 1292 at [3] per Brereton J, as his Honour then was). The attorney has an obligation to act in the best interests of the principal, which binds the attorney on the prescribed form and as part of the attorney's fiduciary obligations in equity and at common law...

5. From the application filed by LHH, the multiple hearings, the written submissions of the attorneys' legal representatives and the oral evidence of LHH, there is clear evidence that there has been a history of relationship and communication breakdown between the attorneys. This appears to have commenced after the passing of TH's husband, over a dispute about his will. This conflict has impacted the attorneys' ability to act as joint attorneys for TH. They have not acted in accordance with TH's wish, that they stop fighting and get along. TH has been aware of the discord and arguments between the attorneys as indicated in her comments to Mr McGregor.
6. LHH, who we found to be a candid and honest witness at the hearings, openly acknowledged the conflict between the attorneys. He confirmed their relationship was fragile and lacked trust, and that this had not changed over time. This conflictual relationship was evidenced by LD writing to the Bank raising concerns about the use of TH's CommBiz account resulting in it being frozen, which left no access to TH's funds to pay her accounts and meet her needs, including her aged care accommodation fees and medical expenses. This required LHH to meet TH's expenses from his own funds, which over time dwindled to the point such that he could not afford to continue to do so. In the submission of LHH's legal representative dated 9 April 2025 he commented; "...there was eventually an agreement between the attorneys for payments once again to be made from [TH's] account." [emphasis added].
7. That the conflict and distrust between the attorneys got to the point that TH's basic needs were put in jeopardy of not being met from her own estate is of significant concern. Despite TH having a large estate which well and truly meets all her financial needs, the issue raised by LD concerning administrator privileges resulted in no access to TH's funds. This situation then continued for approximately six months, despite LHH's attempts to communicate with LD and SWH about these issues. LHH stated that it was only after the application was filed with the Tribunal that agreement was obtained from LH and SWH to access the transaction account of TH and resume the payment of TH's expenses from this account. These actions, spanning approximately six months resulted in a failure by the attorneys to promote and protect TH's financial interests.
8. As at the date of the second hearing in this matter, the evidence was there has been no agreement between the attorneys to lift the freeze of the overarching CommBiz account. LHH indicated his concern about the attorneys all being given administrator privileges which could effectively allow direct access to TH's bank funds and the ability to withdraw them. LHH expressed concern that LD and SWH would always act together in decisions which would likely result in him being the minority vote, and therefore effectively powerless. In our view, this is a clear demonstration of the lack of trust between the attorneys, and the unworkability of the EPOA.
9. This ongoing conflict and lack of trust between the attorneys results in TH's transaction account being the only account the attorneys can utilise, with the three attorneys all required when withdrawing funds from this account. This situation has required a process where funds are withdrawn from TH's transaction account and deposited to an account in LHH's own name, to enable payment of TH's expenses. The attorneys have taken no action to open a bank account in TH's name to enable withdrawn funds to be deposited into an account in her name or alternatively enabling a direct debit of funds between her accounts. The transfer of funds to LHH's bank account has resulted in the intermingling of finances, which remains the current situation, however we note LHH has fully accounted for the funds. The attorneys have breached their fiduciary duty to keep TH's funds separate from their own.
10. At hearing LHH confirmed TH's estate is an intermingling of her personal and commercial interests, which has remained unchanged. He confirmed the 2022, 2023 and 2024 income tax returns of TH have still not been completed and lodged with the Australian Tax Office (ATO), despite there having been a bookkeeper (at least for part of the time) and accountant assisting with TH's financial matters over the last three years. This failing could well have resulted in a large tax debt being incurred by TH and action being taken by the ATO for recovery of this debt. While this has not transpired, we find the failure of the attorneys to complete TH's tax returns, is evidence of their mismanagement of TH's estate and a failure to act in her best interests.
11. TH's estate is significant and requires constant management, action and oversight. In his evidence, LHH confirmed there has been no attempt by the attorneys to seek professional financial planning and investment advice in respect of TH's significant estate. In LHH's evidence, he indicated that the attorney's had conflicting views as to investment options which resulted in little action being considered or taken. LHH stated:

Seemed like issues going on all the time which drew our attention away from issues such as investment.

12. The Tribunal was told on the 18 February 2025 and again on the 9 July 2025 that considerable work has been done by all attorneys and their legal representatives to resolve issues, and the attorneys had entered into a written agreement as to how they would proceed and function as joint attorneys. The agreement provides for the ongoing use of a bookkeeper, accountant and property agent with much of the day-to-day hands-on work being done by these individuals and not by the attorneys themselves. We were told the attorneys would have oversight and control, remaining as formal decision makers for TH, as is required by the Act. At hearing on the 18 February 2025, LHH's legal representative confirmed there is nothing to stop the attorneys from walking away from the agreement or changing it in the future as it is not binding on them. From LHH's evidence on the 9 July 2025 it was clear that the agreement made between the attorneys some four months before is still not fully operable. There is no written agreement in place engaging a bookkeeper and the work on TH's financial records to enable the completion of her tax returns is still outstanding. Even with the written agreement in place, we were not confident the attorneys can work together in a co-operative manner that promotes the best interests of TH. The actions of the attorneys to date have resulted in a failure by the attorneys to promote and protect TH's interests.
13. The inaction in respect of having the book keeping and accounts up to date, the failure to complete and lodge TH's tax returns, the necessity of LHH's use of his own bank account to transfer TH's funds to meet payment of TH's expenses, the lack of fully implementing the agreement reached between attorneys entered into on the 17 February 2025 and their ongoing strained relationship, reduces the weight we give to the agreement effectively resolving existing and ongoing issues between the attorneys. We find that the ongoing deep-seated conflict that has existed for at least the last two years between the attorneys is likely to beset the future workability of the EPOA, even with external supports in place.

1. It was agreed at hearing on the 9 July 2025, that there is no reference in the EPOA to gifting or reference to the history of gifting by TH.
2. We heard evidence, that the attorneys each received a payment from TH's estate as follows:

(a) a sum of $250.00 for each time they visited TH;

(b) a sum of $5000.00 by way of a gift at Christmas time, and a gift of $500.00 was also paid to each of her grandchildren;

(c) a lump sum payment of $105,000.00.

1. LHH confirmed a sum of $250.00 was paid to an attorney when they visited their mother. This sum was referred to in LHH's legal representatives' submission as a 'bounty.' LHH stated that this was a reimbursement for the time an attorney spent with TH, and on top of that there was reimbursement for expenses, which apart from petrol and parking, remained unclear. LHH referred to the hourly rate of a social worker being $95.00, as an indicator of how the attorneys agreed to the sum of $250.00. LHH told us there had been some brief consideration of engaging someone to visit TH. LHH indicated that LD did the majority of the visiting of TH given her proximity to their mother, and that this was for the benefit and wellbeing of TH who liked to go out and did not enjoy living in residential aged care. LHH considered LD may visit TH less if she was not paid. There was no evidence put to us, that the attorneys received payment from TH for visiting her in her home, prior to the enactment of the EPOA.
2. We find that the payment of an attorney to visit TH is not of 'a seasonal nature' or on 'a special event' and it is not 'a gift or donation of the nature that the donor made when TH had capacity or might reasonably be expected to make' under s 31(3) of the Act. While we acknowledge that an attorney's visits to TH appear to be beneficial for TH, we find the payments being made to the attorney for their time is a breach of their fiduciary duty, as the payment does not come within the parameters of s 31(3) of the Act and is for their own financial gain.
3. In respect to the payment of $5000.00 to each of the attorneys and $500.00 to each of TH's grandchildren at Christmas time from TH's estate, we find that these are gifts to 'close relatives of the donor' and are of 'a seasonal nature' and therefore allowed under s 31(3)(a) of the Act.
4. In relation to the lump sum payment of $105,000.00 to each of the attorneys, the joint written submissions of the attorneys dated 9 April 2025 provides:

...the average amount of the total gifts made by her [TH] to each of those three children over those two years [2021 and 2022] was $64,886.87 per annum. > > ... > > The Attorneys had proceeded upon the basis that they each believed that there were acting in compliance with s 31(3) in making the gift. However, upon them each receiving advice on this issue from their legal advisers they now all accept that the aspect of s 31(3) which has not been met in the making of the gifts is that of a seasonal nature as required under s 31(3)(a)(ii). Although not attempting to excuse any non-compliance with the Act, the Attorneys now have realised, accept that the gifts do not meet that requirement and despite [TH's] prior gifting to each of them, does not allow such gifts to be made in such a way under the instrument.

5. LHH's legal representative filed further written submissions dated 27 June 2025 which stated:

2. The focus of those submissions [dated 9 April 2025] should in fact have been more on the Powers of Attorney Act 2000, s 31(3)(b) in that the gifts were donations of the nature [TH] made when she had mental capacity or that she might reasonably be expected to make and that the value of the gifts were reasonable having regard to all the circumstances and [TH's] financial circumstances.

4. Authority supporting that proposition can be found in EMT (Guardianship) [2020] VCAT 1356 (EMT) which was a case dealing with various provisions of the Powers of Attorney Act 2014, and in particular s 67...

5. That section provides as follows:

(1) Subject to any condition or restriction stated in an enduring power of attorney, an attorney for financial matters under the power of attorney may make a gift of the principal's property only if -

(a) the gift is reasonable having regard to all the circumstances and, in particular, the principal's financial circumstances; and

(b) the gift is -

(i) to a relative or a close friend of the principal and is of a seasonal nature or for a special event; or

(ii) a type of donation that the principal made when the principal had decision making capacity for the matter or that the principal might reasonably be expected to make.

6.Those provisions resemble the provisions of the Powers of Attorney Act 2000, s 31(3).

7. Neither requires the gift to be of a seasonal nature or for a special event.

8. The only elements to be met to ensure compliance with s 31(3)(b) are that:

1. The gift is a donation of the nature the donor made when the donor had capacity,

1. The gift is a donation of the nature that the donor might reasonably be expected to make; and
2. The value of the gift is reasonable having regard to all the circumstances and, in particular, the donor's financial circumstances.

9. Of these elements, the applicant submits that a combination of (a) and (c) are a proper basis for concluding that the gifts were appropriate in all the circumstances of this case.

10. On such a conclusion, element (b), which does not have to be met in order for the gifts to be found to be appropriate, is superfluous. However, the applicant submits that the gifts can also be considered to have been appropriate with a combination of elements (b) and (c) in the circumstances of this case.

11. The applicant submits that the gifts are permissible under the Tasmanian Provision.

1. We asked the parties to address us on the terms 'gift' and 'donation' in s 31(3). In particular, we asked the parties to address us on whether s 31(3)(b), properly understood, deals with 'donations' to a charity and does not encompass a 'donation' to a family member or, as in this case, to an attorney.
2. We understood Mr Isles' submission to be that 'donation' and 'gift' in s 31(3)(b) are interchangeable and that the attorneys acted in accordance with s 31(3)(b) when they 'donated' to themselves the sum of $105,000.00 each.
3. Mr McGregor stated he did not have an answer as to whether there is a distinction between gift and donation. He noted the decision of EMT supports that donation is to be interpreted broadly but noted that no analysis of donation vs gift was considered.
4. At hearing, Mr Sheehan submitted that the written submissions countersigned on behalf of SWH and LD still applied. That is the gifts weren't permitted under s 31 of the Act. Mr Sheehan submitted if their clients had applied to the Tribunal under s 31(5), the Tribunal may have authorised the gift to them, on the basis TH provided regular gifts to her children equating to approximately the same value.

This isn't a situation where gifts of this nature, or amount, are inconsistent with the prior wishes of the donor, nor do they lessen the value of the estate in a way that has a detrimental impact on [TH's] financial needs. > > ... > > My clients are now fully aware of their obligations and duties, with respect to gifting whilst acting in their role, and that such payments cannot be made in the future in absence of an order from the Tribunal.

5. Mr Sheehan submitted the Victorian decision of EMT is similar to the facts of this matter. The payments could not have been made under the almost mirror provision of the Victorian Act.

By virtue of s 31(5), it's therefore open, in my submission its open for the Tribunal to authorise the making of those gifts. Despite the circumstances in which they've been made, the Tribunal may be satisfied that the payments align with [TH's] wishes and be made given the circumstances outlined.

6. We do not accept the submission of Mr Isles that the sum of $105,000.00 to each of the attorneys falls within s 31(3)(b) of the Act for the following reasons.
7. The broad principles of statutory interpretation are well settled and usefully set out in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 (at [14]):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to it context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense.

8. It is clear from the text of s 31(3) that the provision sets out two distinct types of property that an attorney may give away on behalf of the donor. The first is a gift to relations or close friends of the donor as long as the gift meets the description set out in s 31 (3)(a)(ii). The second type of gift is a "donation of the nature that the donor made when the donor had the mental capacity or that the donor might reasonably be expected to make...".
9. There is no definition of "donation" in the Act. Recourse may be had to dictionary definitions of these words (Pearce and Geddes, Statutory Interpretation in Australia, 10th Ed). Mr Isles referred us to the Oxford online dictionary which defines 'donation' as: "something that is given to a person or an organisation such as a charity in order to help them; the act of giving something in this way." The online Macquarie Dictionary provides the meaning of donation as "a gift, as to a fund; a contribution."
10. Despite the breadth of these definitions, we cannot accept the proposition that the terms 'gift' and 'donation' are interchangeable as otherwise 'donation' would have no separate work to do (Plaintiff M70/2011 v Minister of Immigration and Citizenship (2011) HCA 32, [97]).
11. We also do not accept that we should follow the Victorian decision of EMT. It is not binding and is not relevant to our consideration. It does not consider the meaning of the words 'gift' and 'donation' but accepted the use of the two words as one and the same.
12. Section 31(3) sits within Part 4 of the Act dealing with enduring powers of attorney. Relevantly, the duties imposed upon an attorney under the Act when a donor is, to use the words of the legislation, mentally incapacitated are set out in s 32. In addition to those legislative duties, an attorney is subject to fiduciary duties in their role as a trustee and must exercise his or her powers as attorney to protect the interests of the donor (s 32(1)).
13. Section 31 of the Act sets out more broadly the scope of the authority of an attorney under an enduring power of attorney.
14. The purpose of s 31(3) is to provide a legislative exception to the general principle that attorneys, acting in accordance with their fiduciary duties to the donor, may act only for the benefit of the donor and "cannot in the absence of a clear power to do so, make presents to himself or to others of his principal's property" (Great Investments Ltd v Warner [2016] FCAFC 85, [85]).
15. As it provides an exception to this general principle, the terms of s 31(3) should be interpreted narrowly so as not to undermine the otherwise clear obligations to protect the interests of the donor. This approach is consistent with the protective jurisdiction exercised by the Tribunal when determining matters under the Act which requires that "everything done, or not done, on an exercise of protective jurisdiction must generally be measured against what is in the interests, and for the benefit, of the person in need of protection (C v W [2015] NSWSC 1774, [96]).
16. In our view, the wording of s 31(3)(b) clearly indicates that 'donation' is a particular kind, or subset, of gift in the context of that provision. In order for it to have "separate work to do" and interpreting the exceptions set out in s 31(3) narrowly, it should not be properly understood, as was submitted in the submission made by Mr Isles, as including a gift to relations as is explicitly provided for in s 31(3)(a). We also note that as a matter of common usage, 'donation' would not be the usual way that members of a family would describe the giving of money to one another. A gift or loan, depending on the terms of the transfer of property of the donor to a family member, would be the more usual description. We are of the view that the use of 'donation' in s 31(3)(b) should be understood as a gift to a person or organisation that has a charitable purpose and not a gift to a family member without that charitable purpose. This interpretation is supported by the wording of s 31(4) of the Act that:

(4) An attorney or a charity with which an attorney has a connection is not precluded from receiving a gift under subsection (3).

17. Extrinsic material in respect of s 31(3) lends further weight to this interpretation. The second reading speech of the Powers of Attorney Bill 2000 (Tas) at cl 31 states:

Subclause (3) complements section 58 of the Guardianship and Administration Act 1995. This subclause is based upon the recommendation at pages 299 and 300 of the abovementioned Queensland Law Reform Commission Report (QLRC R49 pages 299 and 300). > > Under subclause 32(1) of the Bill an attorney under an enduring power of attorney is a trustee. So the provision is required to make it clear that the attorney does have the power to make gifts of the nature set out in the bill, namely: > > The gift is authorised by the enduring power of attorney document itself; the gift is reasonable having regard to all the circumstances and, in particular, the donor's financial circumstances, and the gift is : > > (i) to a relation or close friend of the donor; and > > (ii) of a seasonal nature or on the occasion of a special event (including, for example, a birth or marriage); or > > (iii) the gift is a donation of the nature that the donor made when the donor had mental capacity or that the donor might reasonably be expected to make. > > ... > > Clause 31 Subclause (4) also helps clarify the attorney's powers by providing that both the attorney or a charity with which the attorney has a connection are not precluded from receiving a gift under subsection (3). Subclause (5) complements subclause (3) and provides that the Board [referring to the previous Guardianship and Administration Board] either of its own motion or after an application by an attorney may approve a gift of the donor's property to any person or for any purpose. > > An attorney may wish to make a gift of the owner's property that falls outside the criteria set out in subclause (3) or may be uncertain of his or her power to make the relevant gift. In either case the attorney can seek the prior approval of the Board to make the gift. > > In the exercise of the powers to make a gift under an enduring power of attorney the attorney is subject to the general power of the supervision of the Board in Clause 33.

18. The Queensland Law Reform Commission Report referred to in the second reading speech ("Assisted and Substituted Decisions: Decision-Making by and for People with a Decision-Making Disability [1996] QLRC 49" (QLRC Report) states at pages 299-300:

In the Draft Report, the Commission acknowledged that, although a decision-maker for a person with impaired decision-making capacity is under a general obligation to act in the interests of that person, there may be times when the decision-maker is called upon to decide whether to act to benefit some other person. The Commission recognised that giving gifts, for example, is a normal and important incident of family life to mark anniversaries, special personal occasions, particular seasons or religious celebrations. Many people also make regular gifts to charity. [emphasis added] > > ...the Commission expressed the view that, in order to protect a person with impaired decision-making capacity, the power of a decision-maker to use that person's money for the benefit of someone other than that person should not be unqualified, and that the extent to which a decision-maker may act to benefit another person should be spelt out in legislation. > > The Commission recommended that a decision-maker should be able to make a gift to a relation or close friend of a person whose decision-making capacity is impaired if the gift is of a seasonal nature or because of a special event or is in the nature of a donation that the person had made or might reasonably be expected to make, and provided that the value of the gift is not more than would be reasonable in all the circumstances, particularly the person's financial circumstance... [emphasis added] > > ... > > The Commission recommends that the legislation provide that a decision-maker who may make a financial decision for a person whose decision-making capacity is impaired may give away the person's property only if: the gift is to a relation or close friend of the person whom the person might reasonably have been expected to benefit and is of a seasonal nature or because of a special event (including, for example, a birth or marriage); or the gift is in the nature of a donation that the person had previously made or might reasonably be expected to make; and the gift's value is not more than what is reasonable having regard to all the circumstances and, in particular, the person's financial circumstances. [emphasis added]

19. The QLRC Report clearly acknowledges that donors may have made "regular gifts to charity" before losing mental capacity to do so and that the relevant proposed legislation should provide a mechanism for an attorney to continue to make such gifts on behalf of the donor. The QLRC Report goes on to describe the circumstances in which such donations may be made noting that "the power of a decision maker to use that person's money for the benefit of someone other that that person should not be unqualified and...should be spelt out in the legislation". It was this approach that was clearly adopted in the inclusion of cl 31 in the Powers of Attorney Bill as set out in the second reading speech.
20. We find that s 31(3)(b), when it uses the word 'donation', does not refer or envisage a transfer of a donor's money by an attorney to themselves. For these reasons we find the gift by the attorneys to themselves of $105,000.00 does not comply with s 31(3) of the Act. By reason of this we find the attorneys have gifted to themselves without authority and therefore have breached their fiduciary duty.

1. It is clear to us that TH's wishes are for her three children to remain as her attorneys. It is also clear that TH is close to each of her children. Given TH's dementia diagnosis and her deteriorating cognition we do not believe however that she is fully cognisant of the mattes that have been the subject of these hearings.
2. We are satisfied the attorneys breached their statutory obligations under the Act and have breached their equitable and fiduciary duties. Equally we are satisfied that the ongoing conflict between the attorneys remain unresolved and is likely to continue to hamper the workability of the EPOA if they remain TH's joint attorneys.
3. TH is a person with a deteriorating cognitive condition and is not able to manage her financial matters. She requires a substitute decision maker to attend to management of her estate.
4. No party sought an order that we vary the EPOA and appoint a substitute attorney. We noted Ms O'Connell's comments and the breakdown of the Public Trustees fees which indicated the appointment of the Public Trustee as attorney, rather than administrator may be more financially viable. However, without being able to quantify the hours likely to be spent managing the estate, the likely total cost to the estate remains unclear.
5. We find the appointment of an independent administrator would bring with it the benefit of neutrality in financial decision making on behalf of TH. The potential for ongoing family conflict over financial matters and its negative impact on TH, would be greatly reduced.
6. Mr Isles and Mr Sheehan supported the appointment of BMK of the company to be appointed as a professional administrator for TH. Mr Johnson has considerable accounting and estate experience and we find he is appropriately skilled to meet the requirements of an administrator. We acknowledge the Public Trustee also has significant experience as an administrator and could perform this role for TH. We note the Public Trustee's quantum of fees and commissions is unclear and could be significant upon the ending of the administration, whereas BMK has agreed to a set monthly fee. These fees would be met by TH's estate and is well within the capacity for it to do so. For these reasons we determined to appoint BMK as administrator for TH.

1. Enduring Power of Attorney [redacted] registered 2 March 2022 made by the donor [TH] is revoked.
2. BMK, accountant and director of [a company], is appointed as administrator for [TH] until 20 July 2028.
3. The administrator is to lodge with the Tribunal a financial summary relating to the financial matters of [TH] within 8 weeks from the date of this order.
4. The administrator is to be renumerated $1,400.00 (plus GST) per month out of the estate of [TH] for the work involved in administering her estate.