WBX [2021] NSWCATGD 32

THE HEARING

1. At the end of these Reasons for Decision are lists of the parties to the applications and the witnesses who participated in the hearing. [Appendix removed for publication.]
2. As the hearing was held during the COVID-19 pandemic, it was conducted entirely by videoconference and teleconference. Ms Hill was present at the aged care facility with WBX by videoconference for the hearing.
3. Mr V, solicitor assisting BZH as a Mackenzie friend, observed the hearing from Sydney while BZH participated from the United Kingdom.
4. TCJ participated in the hearing from the office of Mr U, solicitor, with Mr T of Counsel.
5. QSB participated by videoconference.

Request by BZH to be joined as a party

1. QSB told us that he did not believe it was necessary for BZH to be joined as a party to the proceedings.
2. We were satisfied that BZH should be joined as a party to the proceedings. Not only is BZH a goddaughter and lifelong friend of WBX, she has been her lasting power of attorney since 2017 in the United Kingdom in relation to WBX's health and welfare, her property and financial affairs. Until recently, WBX divided her life between Australia and the United Kingdom, regularly spending about four to six months a year in the United Kingdom. BZH has remained in contact with her throughout her life in person, by letter, telephone and more recently by zoom calls.
3. BZH told us that she should be joined as a party not only because of her friendship with WBX, but because of her formal responsibilities as her lasting power of attorney in the United Kingdom. BZH pointed out that the material presented to NCAT in support of QSB's applications contains no mention of her role and interest, nor details of WBX's assets and income in the United Kingdom, all of which are relevant to the current proceedings.
4. BZH did not seek an adjournment and told us that she had the opportunity to review the written evidence prior to the hearing. Ms Hill, the separate representative, and TCJ supported the application of BZH to be joined as a party.
5. We joined BZH as a party to the proceedings.

Request by TCJ for leave for representation

1. TCJ requested leave to be represented in the proceedings in writing prior to the hearing on 12 March 2021. That request was not dealt with at that hearing.
2. TCJ participated from the office of Mr U, solicitor, who having witnessed the instruments executed on 25 January 2021 which are subject to these proceedings, is a witness in this matter and gave written and oral evidence to the Tribunal in this hearing.
3. TCJ requested that she be represented by Mr T of Counsel due to the complexity of the issues to be considered. Mr T was also present in the office of Mr U.
4. Section 45 of the Civil and Administrative Tribunal Act 2013 (NSW) provides that parties to proceedings in the Tribunal are not entitled to be represented by any person unless the Tribunal grants leave.
5. QSB was opposed to TCJ being represented and represented himself at the hearing. At the very end of the hearing Mr R, Senior Associate of a law firm, joined the teleconference to let us know that he had expected the Tribunal would contact him for the hearing to represent QSB. QSB had not asked us to contact Mr R at any stage during the hearing. We noted that all of the participants to the hearing were provided with the dial in details for the telephone/video conference. All other participants managed to successfully dial in to the video conference. We were not contacted via the Tribunal Registry with a request to contact Mr R.
6. QSB had not previously been granted leave to be represented by Mr R and the Tribunal had received no written or oral application seeking such leave. We also noted that Mr R had witnessed the enduring power of attorney, appointment of enduring guardian, and a Will dated 14 January 2020. He had the potential to become a material witness in the matter and as such would not have been granted leave to represent QSB or any other party in the proceedings. We noted that Mr R's law firm had been WBX's legal advisers for approximately ten years and considered that it would be inappropriate for that firm to represent QSB given his alleged conflict with WBX.
7. We decided to refuse the request of TCJ to be represented by Mr T. We considered that it would be unfair as QSB was not represented and did not seek representation. We allowed Mr T to assist TCJ as a Mackenzie friend. We also allowed Mr R to assist QSB as a Mackenzie friend when he dialled in toward the end of the hearing. Mr V did not seek to represent BZH.
8. We considered that the only person who should benefit from representation was WBX through the appointment of an independent separate representative. The Tribunal is obliged to assist unrepresented parties in the proceedings to ensure that procedural fairness is satisfied and that each party has an opportunity to state their position.
9. Section 36 of the Civil and Administrative Tribunal Act provides that the guiding principle to be applied to practice and procedure in proceedings in the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
10. Contained in the written material provided to the Tribunal in advance of the hearing were tax invoices from Mr R's law firm who had been retained by QSB as attorney on behalf of WBX in the proceedings that he commenced in the Consumer and Commercial Division of NCAT against Mr Z. QSB has continued to represent WBX's in the Consumer and Commercial Division matters following the purported revocation of his appointment as enduring power of attorney as he formed the view that the revocation and subsequent appointment of TCJ were invalid due to a lack of capacity to execute the instruments. Appearances in NCAT proceedings and estate planning work carried out by the law firm as instructed by QSB have cost WBX's very significant sums of money which do not sit comfortably with the guiding principle that proceedings in the Civil and Administrative Tribunal should be resolved justly, quickly and cheaply. We considered that no further expenses should be incurred by any party in the proceedings. We were satisfied that the proceedings could be resolved in a just, quick and cheap manner without the need for legal representation. Accordingly, we refused the request of TCJ to be legally represented.

General principles

1. The Guardianship Division of NCAT is a protective jurisdiction and is obliged to observe the following principles: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.

REVIEWS OF POWERS OF ATTORNEY & REVOCATION OF A POWER OF ATTORNEY

What did the Tribunal have to decide?

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

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

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

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

1. These orders include:

• An order varying a term of, or a power conferred by, the power of attorney
• An order removing a person from office as attorney
• An order appointing a substitute attorney to replace an attorney who has been removed from office or who otherwise vacates the office
• An order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of power of attorney and appointing a substitute attorney to replace the attorney who vacated office
• An order directing the attorney to: 1. Furnish accounts to the Tribunal or someone nominated by the Tribunal 2. Lodge a copy of all records and accounts of dealings and transactions made under the power 3. Requiring that the records and accounts be audited and that a copy of the report of the auditor be furnished to the Tribunal 4. Submit a plan of financial management for approval
• An order revoking all or part of the power of attorney
• Such other orders as the Tribunal thinks fit

1. With respect to a revocation of a power of attorney, the Tribunal may make either or both of the following orders:

• An order declaring that the principal did or did not have mental capacity to revoke a power of attorney;
• An order declaring that the power of attorney remains valid (either in whole or in part) if the Tribunal is satisfied: 1. The principal did not have the capacity necessary to revoke it; or 2. The revocation is invalid for any other reason, for example, the principal was induced to make the revocation by dishonesty or undue influence.

1. If on a review of the enduring power of attorney, the Tribunal decides not to make an order under s 36 of the Powers of Attorney Act, it may, if it considers it appropriate in all of the circumstances to do so, decide to treat the application for review as an application for a financial management order under Pt 3A of the Guardianship Act 1987 (NSW).
2. 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."
3. QSB's position is that between the making of the enduring power of attorney on 14 January 2020 (and the appointment of enduring guardian of the same date), WBX's capacity had deteriorated to the point that by 25 January 2021 she lacked the capacity to revoke the enduring power of attorney of 14 January 2020 and execute a new power of attorney appointing TCJ alone. He made submissions that if the enduring power of attorney of 25 January 2021 and the revocation of the same date were invalid due to a lack of capacity, then the Tribunal should conduct a review of the operation and effect of the enduring power of 14 January 2020. He told us that as the relationship between the two attorneys has irretrievably broken down, the Tribunal should exercise its discretion pursuant to s 36(4)(b) of the Powers of Attorney Act and remove TCJ from office as attorney, leaving him as the sole attorney in NSW. He did not make an application for the appointment of a financial management order or make any submissions that this would be an appropriate course of action.
4. Ms Hill participated in the hearing from the aged care facility with WBX. She told us that she had successfully obtained instructions from WBX in a conference the day before the hearing and then again prior to the commencement of the hearing. WBX was consistent in her desire for TCJ and BZH, her two goddaughters, to make decisions for her and manage her affairs if she could not do so herself. Without prompting, WBX gave the same answers consistently to Ms Hill in conference and to the Tribunal during the hearing. WBX told Ms Hill that she was surprised that QSB was involved in her affairs, recalling that his mother was a close friend of hers, but nonetheless she was bemused that she had appointed him at all as an attorney or guardian. Ms Hill told us that it was a relief to obtain such clear instructions from WBX and noted that WBX's views were consistent with her appointment of TCJ as attorney and enduring guardian in 2016 in respect of her Australian affairs and her appointment of BZH in 2017 as her lasting power of attorney in the United Kingdom.

Review of the operation and effect of the enduring power of attorney of 14 January 2020

1. We decided to conduct a review of the operation and effect of the enduring power of attorney of 14 January 2020 because it was evident that the relationship between QSB and TCJ, the attorneys, had irretrievably broken down. It was clear that QSB and TCJ were unable to act jointly or severally as WBX's attorneys due to their opposing views about how her affairs, in particular the rental of her East Sydney property, should be managed. The power of attorney of 14 January 2020 is unable to continue to operate in its current form.
2. QSB requested that we review the operation and effect of the enduring power of attorney of 14 January 2020 and make an order revoking the appointment of TCJ as an attorney. He said that if we wished to appoint an attorney to replace TCJ, then Mr S could be a suitable appointee. Mr S did not participate in the hearing or provide us with any written evidence.
3. QSB said that the power of attorney of 14 January 2020 is unable to operate in WBX's best interests as the relationship between the joint and several attorneys has irretrievably broken down.
4. He told us that TCJ is conflicted due to her relationship with Mr Z and she is unable to make independent decisions in respect of WBX's East Sydney home due to this relationship.
5. We accepted the evidence of TCJ and BZH that it is consistent with the long term wishes of WBX for Mr Z to remain as a tenant in her home. We were told that at one stage a proposal was made that Mr Z purchase the property from WBX which would enable her possessions to remain in her home and the home to be available for her to visit as she wished. This was not financially viable for Mr Z, so WBX made the decision that he could lease her home at a lower than market rent. We accepted that this course of action is consistent with WBX's relationship with Mr Z, which is close and continuing, and we did not accept that this placed TCJ in a position of conflict.
6. Ms Q, Executive Director of the aged care facility, and Ms P, Clinical Quality Consultant of the aged care facility, confirmed that Mr Z visits WBX regularly other than when prevented from doing so by COVID-19 restrictions. These visits are positive for WBX. Ms Q told us that she has always had a good relationship with TCJ and has found her to be a responsive attorney and enduring guardian.
7. QSB said that he had been blocked from visiting WBX. We noted that there is no legal authority for anyone to prevent WBX from having access to a person. Ms Q and Ms P told us that WBX herself requested that QSB not visit her and that this decision has been respected by staff at the aged care facility.
8. QSB is the son of old friends of WBX. We were told - and QSB did not dispute this - that he only became involved with WBX around 2017. It is apparent that he is a capable and committed person. The character reference from Dr O is glowing, stating that he would trust QSB with his own assets and interests and those of his family. It is evident that QSB's intention was to operate the enduring power of attorney in the way that would be most financially advantageous to WBX, although unfortunately significant legal fees have now been incurred through proceedings that he has brought to the Consumer and Commercial Division and Guardianship Division of NCAT. Medical fees have also been incurred with respect to the reviews and reports from Professor G and Dr M.
9. TCJ gave evidence to the Tribunal and provided us with a written statement dated 10 March 2021. TCJ's mother, Ms W has been WBX's best friend since they went to school together after WBX arrived in Sydney as a young girl with her parents from the United Kingdom.
10. TCJ detailed her own close and loving relationship with WBX. They have a strong mother/daughter like relationship and TCJ is extremely concerned for her ongoing welfare and happiness. Although she lives in Tasmania, TCJ has always had weekly contact with WBX and over the past couple of years she telephones her most days. TCJ has always regularly visited WBX from Tasmania unless prevented by COVID-19 restrictions.
11. TCJ said that QSB's mother went to school with WBX and WBX remained friends with both his parents. QSB's father was a previous co-executor of WBX's Will along with her own father who has sadly passed away. When QSB's father became ill, WBX changed her Will to appoint QSB and TCJ as co-executors and trustees of her Will. If either of them is unable to do so, then BZH's brother, Mr L, is appointed as an executor and trustee.
12. TCJ told us that WBX told her that QSB suggested that he become her power of attorney and WBX cannot recall why she agreed to this. TCJ said that QSB has told her of some of his plans with respect to WBX. Despite TCJ disagreeing with him, QSB has proceeded without her agreement. He has taken actions unilaterally and disregarded the views of TCJ despite the fact she is also WBX's attorney and enduring guardian.
13. TCJ said that since WBX has been in the aged care facility, she has assisted her with all of her Australian finances, including completing tax returns. She is the primary point of contact for WBX with the aged care facility. TCJ said that she has taken WBX's cheque book as QSB allegedly tried to get WBX to pay legal fees that she did not wish to pay. TCJ said that WBX is consistent in her wish that QSB should not be an attorney, is very upset about his plans and is furious that he has incurred large legal bills.
14. TCJ said that WBX's finances are in order and her care is very good at the aged care facility. TCJ accepts that WBX has been diagnosed with early-stage dementia and has observed that she is forgetful and can take some time to remember things. She has good days and not so good days. She can still give directions about what she wants to happen, although she is not so precise on details.
15. TCJ agreed that communication between herself and QSB has broken down to the point that the power of attorney of 14 January 2020 could no longer operate in WBX's best interests. For this reason, at WBX's request, she took her to see Mr U in January 2021.
16. BZH gave compelling evidence to the Tribunal. She pointed out that the relationship between Mr Z and WBX is akin to the relationship between a grandson and grandmother. Mr Z has spent periods of time living with WBX and the emotional benefit she has from him remaining in her home significantly outweighs the financial cost to her. It enables WBX to visit her own home and possessions and does not preclude her from returning to live there.
17. BZH gave us a very detailed account of WBX's assets which demonstrated that the financial impact of Mr Z living in her home is not particularly significant. BZH noted that the evidence in support of the applications from QSB made no mention of BZH's role and interest, nor details of WBX's assets and income in the United Kingdom. She said that she was very concerned that decisions were being made unilaterally by QSB for WBX, rather than with WBX and in consultation with TCJ and BZH. She said that decisions made by QSB do not respect WBX's long term existing relationships.
18. BZH provided us with her Curriculum Vitae that clearly demonstrates her suitability and expertise that warrant her appointment as WBX's lasting power of attorney in the United Kingdom. Not only in terms of her business and professional qualifications and experience, BZH is involved at a political and community level in the rights and welfare of people living with dementia in the United Kingdom.
19. BZH statement to us showed an attention to detail and awareness of WBX's estate in its entirety as well as love and affection for her godmother. BZH considered that a three-year lease of the East Sydney home to Mr Z is not inappropriate and is consistent with WBX's long term wishes. The arrangement brings her considerable emotional comfort. BZH told us that QSB's decisions have focused on financial considerations and fail to take account of WBX's broader best interests. She provided us with extracts from emails in which QSB states that the interests of the beneficiaries of WBX's Will has been a consideration in his decisions as attorney and enduring guardian.
20. BZH told us that it is imperative that NCAT recognise the international dimension of WBX's life and estate and to recognise that partnership is essential between attorneys and guardians in the United Kingdom and Australia. BZH said that in her role as attorney, she has sought to work alongside the principal, to support them in making decisions and to limit their freedom of action as little as possible. BZH told us that she has known TCJ well for many years and confirmed that they are able to work together with TCJ as attorney in NSW and BZH in the United Kingdom. She said that viable management of WBX's financial and personal interests requires close cooperation between attorneys in Australia and the United Kingdom. It was evident that BZH would find it challenging to work with QSB if he was the sole attorney.
21. We were satisfied having considered all the evidence that it would be in the best interests of WBX and would better reflect her wishes, to make an order pursuant to s 36(4)(f) of the Powers of Attorney Act revoking the enduring power of attorney of 14 January 2020.

Review of the making of the enduring power of attorney of 25 January 2021 and the revocation dated 25 January 2021 of the power of attorney of 14 January 2020

1. We were satisfied on the written evidence before us that we should conduct a review into the making of the enduring power of attorney of 25 January 2021 and its operation and effect. Similarly, we were satisfied that it was in WBX's best interests to review the revocation dated 25 January 2021 of the enduring power of attorney of 14 January 2020.

Circumstances leading to the cognitive assessment by Dr K and Professor G

1. QSB stressed to the Tribunal that his applications were brought for no other reason than to ensure that he complied with his obligations as attorney and enduring guardian for WBX. We accepted that QSB has a genuine interest in the welfare of WBX although we also recognised that QSB and his parents are among a number of beneficiaries of WBX's Will. He clearly does have a financial interest in WBX's assets and financial affairs, although we acknowledge that this does not appear to be his motivation in bringing the applications to the Tribunal.
2. QSB told us that he had become concerned about WBX's capacity and vulnerability around June 2020. We were told that WBX had spent a period of respite at the aged care facility in July 2019, then returned to her own home at East Sydney until December 2019 when she returned to the aged care facility becoming a permanent resident in January 2020.
3. QSB told us that in September 2019 WBX entertained the idea of selling the East Sydney home. The paperwork was drawn up and at the last minute WBX decided not to put the property on the market. It was agreed by all parties that in late 2019 WBX decided to lease her East Sydney home to Mr Z, son of TCJ, at a discounted rent for a one-year period. We were told that this gave her the option of returning to her home if she was unhappy at the aged care facility.
4. We were told that Mr Z has always had a close relationship with WBX and has lived with her for periods of time. Ms Q, executive director, and Ms P, clinical quality consultant, of the aged care facility told us that Mr Z visits WBX regularly - other than when impacted by COVID-19 restrictions - at the aged care facility. BZH and TCJ told us that having Mr Z in her home at East Sydney meant that WBX could visit her home regularly and keep her furniture and collectibles at home rather than in storage. The aged care facility is a short distance from the East Sydney suburb. BZH noted that the arrangement for Mr Z to remain in WBX's home brings her considerable comfort.
5. Having had the opportunity to read WBX's Will of January 2020 it is evident that WBX is very attached to her furniture, clocks and sewing boxes etc. WBX specifically provides which of her beneficiaries should receive particular items following her death.
6. BZH told us that WBX no longer speaks of returning to live at East Sydney and is settled at the aged care facility. WBX has consistently told BZH over the past months that she would like Mr Z to remain in her home pursuant to a three-year lease.
7. BZH provided us with a statement setting out WBX's financial position in the United Kingdom and Australia. It is evident that WBX is a wealthy woman with significant assets in both countries. BZH pointed out that WBX's annual income from the United Kingdom alone would be sufficient for her ongoing care costs of AU$90,000 per year plus an allowance for other expenses. WBX has very significant cash savings in banks in Australia and the United Kingdom. BZH pointed out that even if WBX's expenditure increased to AU$200,000 per year she could live on her existing savings for 36 years - without even using funds that could be realised through the sale of properties in Australia and the United Kingdom. Based on any plausible life expectancy, WBX has more than enough income and liquid financial resources available for her needs for the remainder of her life.
8. QSB told us that he had attempted to assist WBX from around 25 May 2020 to obtain 'a request for a cognitive assessment from a gerontologist'. He understood that WBX had spoken to her usual GP, Dr J, but had not mentioned her memory problems to him. It appeared that the impetus for QSB's concern at this point in time was related to a dishonoured cheque. We were not told how this came about.
9. Following a number of telephone calls, QSB attended the aged care facility on 3 June 2020 at which time WBX showed him a letter she had written to Mr R, her solicitor at the time. We were provided with a copy of this letter. WBX wrote that she wanted Mr Z to be appointed as an additional enduring guardian and attorney to QSB and TCJ. She had decided that this was necessary as Mr Z is a trusted member of her extended family, lives close by to her and is happy to assist her with her matters. Reading this letter appears to have caused QSB to consult Mr R and act with urgency in obtaining a cognitive assessment.
10. On 4 June 2020 QSB arranged a home visit by a GP, Dr H, for a consultation with WBX at the aged care facility. Dr H is not WBX's usual treating GP. QSB told us that WBX was very happy with this suggestion. QSB wrote in his submission that he was concerned as 'it's a serious matter to become someone's power of attorney for someone because it gives one access to their bank accounts and all their business affairs.' QSB considered that the addition of Mr Z as attorney and guardian should have been discussed with him as 'an attorney in waiting'.
11. QSB said that he met Dr H to escort him to WBX's room on 5 June 2020 and showed him the power of attorney instrument and an email from Mr R requesting a cognitive assessment. QSB obtained a referral and arranged an appointment for WBX with Professor G on 9 June 2020 at an aged rehabilitation hospital. QSB advised WBX of the appointment and on 6 June 2020 emailed TCJ saying that he would be with WBX at 'some time the following week' to take WBX to her appointment with Professor G.
12. TCJ responded acknowledging the need for clear communication between herself and QSB, especially in relation to the assessment of WBX's mental capacity as the issue, if not handled correctly, could have extremely detrimental effects on WBX's dignity and independence. 'As the person with the closest, lifelong connection' to WBX, TCJ requested that the appointment with Professor G be cancelled and rescheduled to a time when COVID-19 restrictions would enable her to travel to Sydney from Tasmania and attend the appointment with WBX. She wrote that it would be appropriate for her as goddaughter and closest connection to accompany WBX to such a sensitive appointment. TCJ raised her concern that the referral to Professor G was not made by WBX's regular doctor who knows her patient history. She said that there did not appear any urgent need for a cognitive assessment and requested that she have the opportunity to make her own observations and discuss the seriousness of what is proposed with WBX prior to attending the appointment with her, given the sensitive nature of the appointment.
13. QSB told us that he was losing confidence that TCJ had WBX's best interests at heart. He was concerned that Mr Z appeared to be coercing WBX to be make him an additional power of attorney as well as extending his lease to three years from 12 months. QSB said that the East Sydney property would have to be sold within 12 months to pay for WBX's costs at the aged care facility and that a rental agreement with Mr Z at a lower than market rate was not in WBX's financial interests. The need for the property to be sold is inconsistent with the unchallenged evidence about the size of WBX's estate. Mr R, as a long term legal adviser to WBX, considered that potentially entering into a three-year lease with Mr Z despite previous discussions about a 12-month lease was a serious example of WBX becoming 'increasingly confused in her affairs. i.e. beyond a loss of memory'. Mr R accordingly also recommended a full cognitive assessment.
14. Mr R and Mr N, solicitor, of the law firm filed a witness statement dated 12 February 2021 at the Tribunal stating that WBX had been an estate planning client of the law firm for over 10 years having last updated her estate planning with their firm in January 2020. They stated that as WBX's long term estate planning advisors, they had noticed and been sensitive to a decline in WBX's cognitive capacity. They considered that she has progressively become more confused and uncertain when discussing her legal affairs, particularly since her last estate planning update in January 2020. They consider WBX a vulnerable client, very much reliant on her nominated attorneys to assist her with complex financial, property and legal matters. They considered her to be an incapacitated client/protected person whereby any changes to her estate planning documents must be ordered by NCAT. Their view was that even purportedly simple estate planning changes are complex as to their meaning, effect and consequences for protected persons.

Health professional assessments

1. Despite TCJ's request for the appointment with Professor G to be rescheduled, QSB took WBX to the appointment at the aged rehabilitation hospital. WBX was reviewed by Dr K, Geriatrics Advanced Trainee. QSB had a consultation with Professor G to provide background information and showed him with emails from Mr R regarding a dishonoured cheque and requesting a cognitive assessment of WBX. Professor G was also shown the letter from WBX requesting that Mr Z be appointed as power of attorney and the text message from TCJ trying to reschedule the assessment. QSB said that Professor G said that WBX has dementia and is no longer capable of making financial decisions, although 'she should continue to do little things like signing cheques'. QSB said that Professor G recommended that a formal capacity assessment be done 'to be more effective in court or before the Tribunal'.
2. We received a detailed report from Dr K, Geriatrics Advanced Trainee, dated 10 June 2020 and approved by Professor G. Dr K reported that WBX could not recall the circumstances surrounding her decision to transition into residential nursing care. She suspected that WBX had started to experience some functional impairment. WBX has no concerns about her life at the aged care facility and feels the care she receives meets her expectations. WBX was reviewed by Dr F, geriatrician, in 2014, for issues surrounding dizziness that resolved with medication radicalisation. No formal diagnosis of dementia had been made prior to the appointment on 9 June 2020. In her review with Dr K, WBX expressed her awareness of some deterioration in short term memory. She currently manages her affairs, but some recent cheques had been dishonoured, and she is becoming confused with her finances. On a Montreal Cognitive Assessment (MOCA) WBX scored 23/30 which, in conjunction with the history provided by QSB and her solicitor, Mr R, would strongly suggest that there is progressive cognitive decline enough to constitute a diagnosis of dementia. Dr K considered that any changes to WBX's current arrangements for enduring power of attorney or enduring guardianship would have to be done via the Guardianship Division of NCAT.
3. Professor G provided a brief report dated 9 June 2020 in which he opined that WBX is suffering from early dementia. There is evidence of cognitive impairment which is likely to be permanent and over time will probably deteriorate. He considered that the impairment of cognition would result in at least a partial loss of capacity to understand complex financial arrangements and recommended that the enduring powers of attorney be empowered to manage WBX's legal and financial affairs hereon. He did not assess her as being unable to make other non-financial decisions. He highlighted that his report did not constitute a formal capacity assessment as this was outside the scope of his practice.

Assessment by Dr M, Consultant Clinical Neuropsychologist

1. On 28 January 2021 QSB took WBX to see Dr M. This appointment occurred after QSB's appointment as enduring power of attorney had been revoked on 25 January 2021 and notice of the revocation emailed to Mr R and QSB on the same date. We assume that QSB took WBX to the appointment in the role of enduring guardian.
2. QSB remained present during the interview with WBX and was then briefly interviewed by telephone on 4 February 2021 for the purposes of clarifying the extent of WBX's estate. Dr M was provided with a letter of instruction from Mr R dated 19 January 2021, the letter from Professor G of 9 June 2020, the letter from Dr K dated 10 June 2020 and copies of the enduring power of attorney and enduring guardianship from 14 January 2020. Dr M was not provided with the enduring power of attorney and revocation instrument dated 25 January 2021 and does not appear to have been made aware of the execution of these instruments 3 days before her review of WBX.
3. Dr M was provided background information about the proceedings against Mr Z in the Consumer and Commercial Division of NCAT. Dr M conducted her assessment over a two-hour period in her clinic. She concluded that WBX's retains personal strengths in the verbal domain, with above average vocabulary and verbal abstract reasoning. Her non-verbal intellectual skills and working memory are within the average range. Significant reductions were observed in the domains of verbal memory and expressive language in particular. She demonstrated a basic understanding of the concept of a power of attorney without any awareness of risks or consequences. Her knowledge fluctuated over the course of the two-hour assessment. Dr M concluded that WBX requires support for more complex activities such as managing medication and more complex financial matters. WBX's capacity to manage both simple and complex financial management was marginal, and her knowledge of personal assets and estate management was lacking. Dr M considered that it would be appropriate for any changes to an enduring power of attorney or enduring guardianship to be determined by the Tribunal. Given her current cognitive functioning and her complex and substantial estate Dr M considered that WBX would be at significant risk of financial exploitation without adequate support. Dr M was concerned about WBX's capacity to understand the nature and effect of any changes to her current power of attorney provisions or her awareness of how and why any changes may differ from the previous version.
4. We noted that Dr M's report focusses on financial matters and does not address the question of capacity to make ordinary life decisions.

The making of the enduring power of attorney of 25 January 2021 and the revocation of the enduring power of attorney of 14 January 2020

1. Mr U is the solicitor who witnessed the instruments of 25 January 2021. He gave evidence at the hearing and provided a written statement dated 12 March 2021. Mr U has practiced as a solicitor continuously for 46 years and has particular expertise in relation to matters of legal capacity in the preparation and execution of Wills and administration of assets.
2. Mr U was provided with the power of attorney of 14 January 2020, reports from Professor G and Dr K, Will of WBX and invoices for legal fees from the law firm. He noted that the medical reports found WBX to have early dementia at the time of testing and some cognitive impairment. He noted that the testing was arranged by QSB and that TCJ was not present or consulted.
3. Mr U was contacted by TCJ who reported that WBX had expressed concerns to her regarding the proposed sale of her house, the eviction of Mr Z as her tenant and the incurring of a significant amount of legal costs by QSB in relation to her assets and representation without authority and accordingly requested that her files be forwarded to Mr U.
4. On 31 August 2020 Mr U requested the law firm send all files, papers and documents regarding WBX to him. This did not occur even with a letter of authority signed by WBX.
5. On 29 October 2020 Mr U interviewed WBX at his office. She was brought to the appointment by Mr Z who waited outside during the interview. Mr U said that WBX appeared to be in control of her thought processes and understood why she was seeing him. She told him that she wanted QSB to stop interfering in her affairs and incurring legal bills. She confirmed that she wanted Mr Z to remain in her house and look after her things and she was opposed to his eviction and the proposed sale of her home. She said that she may wish to return to her home in the future. She wanted TCJ and BZH to look after her affairs.
6. Mr U said that WBX appeared to understand the effect of the power of attorney of January 2020 and asked him how to change the appointees if she wished. She read her Will and did not wish to change it. Mr U said that as a result of his conversation with her and based on his experience in dealing with persons of advanced age, he formed the view that WBX had the capacity to make her own general decisions in relation to her assets and who should have power over their disposition rather than herself. She had relatively good long and medium term recollection, however was sometimes confused about the order of events relating to execution of documents and their effect. She told Mr U that TCJ looks after her bills in Australia, BZH looks after her properties in England and Mr Z looks after her house.
7. On 25 January 2021 TCJ brought WBX to see Mr U again. TCJ waited outside his office. Mr U said that WBX recalled their earlier conversation without prompting and told him that she was distressed by the eviction proceedings and by the legal bills she continues to receive. She said that she had asked QSB to stop the proceedings however he would not do so. She said that she wanted TCJ and BZH to be her attorneys and asked Mr U to prepare the instruments. Mr U said that WBX appeared to understand the effect of revoking the January 2020 power of attorney and giving a new power of attorney to TCJ alone. Mr U said that WBX appeared to understand that this would mean that TCJ would have the authority to administer her affairs and assets and that QSB would not. WBX requested that an enduring power of attorney appointing TCJ as sole attorney be prepared straightaway along with a revocation of the enduring power of attorney of 14 January 2020. These instruments were executed in Mr U's presence. Once executed Mr U sent copies of the instruments to the law firm and QSB.
8. Mr U is a solicitor of many years, experienced in assessing the legal capacity of a person of advanced age. He pointed out that the decision to revoke a power of attorney and appoint a new power of attorney is a relatively simple and straightforward decision based upon who the principal wants to look after their affairs.
9. Mr R told us that from 2018 he had viewed WBX as a vulnerable client. He was involved in planning and witnessing the instruments of January 2020. He said that he considered that the appointment of QSB as attorney and co-executor of WBX's Will was sensible as QSB was an independent person. Mr R considered that TCJ has a conflict of interest as her son, Mr Z, lives in WBX's home and pays under market rent. Mr R correctly said that it may be concerning when a client moves away from her long-term advisers without notice. He confirmed that the law firm has now incurred over $50,000 in legal fees in respect of the tenancy dispute, proceedings in the Consumer and Commercial Division and the current proceedings with respect to WBX. He reiterated that QSB is the only independent attorney and said that he strongly believes that WBX lacked the capacity to execute the instruments in January 2021 based upon the reports of Professor G, Dr K and Dr M.

Consideration

1. We accepted the submissions of Ms Hill that WBX did have the capacity to execute the instruments on 25 January 2021. The decisions made by WBX on that date are consistent with her long-term estate plans. In 2016 WBX appointed TCJ as her attorney in NSW and in 2017 she appointed BZH as her lasting power of attorney in the United Kingdom. The written and oral evidence we received demonstrated that WBX is devoted and close to her two goddaughters and treats them as her own children. WBX has had a close relationship with TCJ and BZH their whole lives, spent significant periods of time with each of them and remains in regular contact with them both despite the limitations imposed by the COVID-19 restrictions. WBX was clear during the hearing that she wanted TCJ to be her attorney in Australia and BZH in the United Kingdom. She did not want QSB to be involved. Ms Hill submitted that the evidence supported a finding that WBX had the capacity to revoke the enduring power of attorney of 14 January 2020 and to execute an enduring power of attorney appointing TCJ as the sole attorney on 25 January 2021.
2. Having considered all of the written and oral evidence and heard submissions, we were satisfied that we should make an order pursuant to s 36(3)(a) of the Powers of Attorney Act that WBX did have the mental capacity to make a valid power of attorney on 25 January 2021.
3. We were also satisfied that we should make an order pursuant to s 36(3A)(a) of the Powers of Attorney Act that WBX did have the mental capacity to revoke a power of attorney on 25 January 2021.

REVIEW OF APPOINTMENT OF ENDURING GUARDIAN

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

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

1. The Tribunal must not revoke the appointment of an enduring guardian unless: 1. the enduring guardian requests the revocation; or 2. the Tribunal is satisfied it is in the best interests of WBX that the appointment be revoked.
2. The Tribunal may only proceed as if an application for guardianship or an application for financial management (or both) had been made if it considers it is in the best interests of WBX to do so.
3. On 14 January 2020 WBX appointed QSB and TCJ as her enduring guardians. Ms W is the alternative enduring guardian. There is no dispute that WBX had the capacity to execute the instrument and that it was executed in accordance with the requirements of Pt 2 of the Guardianship Act.
4. QSB requested that we review the appointment of enduring guardian as his relationship with TCJ has broken down to the point that she has no communication with him whatsoever. He has sent emails to TCJ to which she has not replied. As he is assisting WBX to potentially evict Mr Z from WBX's property, he considered that there is no scope for meaningful communications between TCJ or the alternative enduring guardian and himself. He requested that we revoke the appointment of TCJ as an enduring guardian. QSB does not wish to resign as enduring guardian. He did not seek that the review of the appointment of enduring guardian be treated as applications for guardianship or financial management orders.
5. TCJ wishes to remain as enduring guardian. WBX reiterated during the hearing that she wanted TCJ to "look after her" in Australia. She told us that she wants her goddaughters to make decisions for her.
6. Ms Hill said that WBX is clear that she wants TCJ to remain as her enduring guardian and for the appointment of QSB to be revoked. She wants TCJ to perform the same role in NSW as BZH does in the United Kingdom pursuant to the lasting power of attorney executed in 2017. This is consistent with the appointment of TCJ as enduring guardian and attorney for WBX in 2016.
7. In order to remove an enduring guardian, we had to be satisfied that it was in the best interests of WBX that the appointment be revoked.
8. We accepted that the relationship between the enduring guardians has irretrievably broken down. We accepted the evidence of Ms Q and Ms P that WBX does not wish to have contact with QSB. We considered that an enduring guardian should be required to carry out their duties pursuant to the s 4 general principles of the Guardianship Act as set out above. The views of WBX and those close to her should be considered. As WBX is unwilling to communicate with QSB and his relationship with TCJ and BZH has deteriorated, he would be unable to consider their views in making decisions. We noted that QSB said that he would also be unable to communicate with TCJ's mother, the alternative enduring guardian.
9. Ms Q and Ms P said that they have a good rapport with TCJ and that she is their first point of contact with respect to WBX. She communicates well and appears to make decisions in WBX's best interests. We accepted that TCJ's view that a referral to a geriatrician should have been made through WBX's regular GP and that the discussion about a capacity assessment should have been raised sensitively given WBX's independent personality. It appeared to us that it was perfectly reasonable for TCJ to be provided with the opportunity to make her own observations of any cognitive decline as she has been close to WBX her whole life. We accepted that QSB has made decisions unilaterally without consulting and considering the views of TCJ or BZH.
10. We found that QSB does not have a personality generally compatible with that of WBX. TCJ does have such a personality and an understanding of what WBX wants. We considered that there was no undue conflict of interest in TCJ remaining as an enduring guardian. We were satisfied that TCJ is willing and able to exercise the functions of her enduring guardianship appointment. We were satisfied that TCJ has a good rapport with WBX, the staff at the aged care facility and in particular with BZH. We considered that it is in WBX's best interests for her enduring guardian and lasting power of attorney to have good avenues of communication.
11. We were satisfied that WBX does not want QSB involved in making decisions on her behalf. WBX is clear that she wants BZH as her decision maker in the United Kingdom and TCJ as her decision maker in NSW. Furthermore, we were satisfied that it would not be in WBX's best interests for us to treat the application to review the appointment of enduring guardian as a guardianship application or a financial management application.
12. WBX's accommodation is permanent, she has an enduring guardian who can provide or withhold consent to medical and dental treatment and make decisions about her health care. WBX's receives all the services from which she could benefit at the aged care facility. There is no need for guardianship order to be made. Access decisions may be managed informally by WBX and the aged care facility.
13. There is no evidence to suggest that TCJ would not make decisions as WBX's enduring guardian in her best interests and in accordance with the s 4 general principles of the Guardianship Act set out above.
14. Accordingly, we were satisfied that it was in WBX's best interests to revoke the appointment of QSB as enduring guardian.

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