YCS v YCW

YCS v YCW - [2023] NSWCATAP 183 - NSWCATAP 2023 case summary — Zoe

[5]

The decision under appeal

In May 2018, the Subject Person executed an enduring power of attorney (the 2018 EPoA) appointing the Daughter as her attorney. On the same day, the Subject Person executed an instrument appointing the Daughter and her husband, jointly and severally, as her enduring guardians (the 2018 EGA).
The Subject Person's husband died about 20 years ago. After his death, and until February 2022, the Subject Person lived alone in the family home which she owns. In recent years, as she become increasingly frail, the Subject Person has required assistance to remain living in the family home. Until late 2021, the Daughter and her husband, who lived nearby, provided the Subject Person with assistance and support. While the Daughter and the Son disagree about the amount of assistance and support the Daughter provided the Subject Person, the Daughter concedes that by early 2022 she was providing little assistance and support because she was struggling with grief following the death of her husband.
On 31 January 2022, the Subject Person was admitted to hospital following a fall. Two weeks later, the hospital discharged the Subject Person into the care of the Son and Daughter-in-law. The Subject Person returned to live in the family home and was joined by the Son and the Daughter-in-law. The three continue to live together.
In March 2022, the Subject Person revoked the instruments made in 2018 appointing her Daughter as her enduring guardian and attorney and executed instruments appointing the Son and the Daughter-in-law jointly as her enduring guardians (the 2022 EGA) and attorneys (the 2022 EPoA) (together, the 2022 instruments).
In May 2022, the Daughter applied to NCAT seeking review of the 2022 instruments, contending that the Subject Person lacked capacity to make those instruments. The Son disputed that claim and said that the Subject Person's "cognitive function is fine, with just a bit of forgetfulness": Reasons for decision, 21 December 2022, issued to parties on 14 March 2023 (the Reasons) at [47].
The Tribunal heard the Daughter's applications over two days, 9 November 2022 and 21 December 2022.
In the proceedings before the Tribunal, the Son and Daughter each alleged that the other was not acting in the Subject Person's best interests. The Daughter claimed that the statements of concern for the Subject Person made by the Son were disingenuous and that his true motivation was a desire to obtain ownership of the family home. In addition, the Daughter claimed that the Subject Person told her on numerous occasions that she did not want to live with the Son: Reasons at [38]. The Daughter said that she and the Subject Person "had always been very close and spent a lot of time together". However, since moving into the family home the Son had refused to allow her to have contact with the Subject Person, and "yells at her and tells her its none of her business": Reasons at [38], [39].
The Son claimed that since he and his wife have been living with the Subject Person, her health and well-being had improved: Reasons at [46]. The Son tendered letters prepared by friends and neighbours supporting that claim. In addition, the Son tendered a petition signed by members of the local bowling club stating that after being "released into the care" of the Son and Daughter-in-law, the Subject Person had "never looked back": Reasons at [57]. The Son claimed that over the last 20 years the Daughter had neglected the Subject Person and stolen money from her: Reasons at [48].

[6]

2022 EGA

The Tribunal found that there was insufficient evidence to determine whether, as claimed by the Daughter, the Subject Person lacked capacity to make the 2022 EGA and decided not to address that issue: Reasons at [71].
At [72]-[79], the Tribunal went on to consider whether, acting as enduring guardians, the Son and Daughter-in-law were observing the principles in s 4 of the Guardianship Act 1987 (NSW) (the Act) (the section 4 principles). The Tribunal found that the Son and Daughter-in-law, and in particular the Son, had "actively sought to damage the relationship between mother and daughter, exploiting his mother's dependence on him": Reasons at [74]. The Tribunal stated that it was not satisfied that the Son and Daughter-in-law "are able to fulfil their responsibilities as enduring guardians for [the Subject Person], with regard to the section 4 principles, and in particular, the importance of preserving [the Subject Person's] existing family relationships": Reasons at [76]. The Tribunal found that the continued appointment of the Son and Daughter-in-law "would likely serve to worsen and possibly destroy [the Subject Person's] relationship with [the Daughter]": Reasons at [76]. The Tribunal concluded that it was in the Subject Person's best interest to revoke 2022 EGA: Reasons at [78].
Having reached that conclusion, as permitted by s 6K(3) of the Act, the Tribunal went on to treat the Daughter's application seeking review of the 2022 EGA as an application for guardianship and financial management orders.
At [81], the Tribunal found that the Subject Person has mild Alzheimer's disease together with several chronic conditions which caused pain and restriction; is dependent on others for assistance with day-to-day living, and, as a result of her cognitive disability and her dependence on others, is vulnerable to influence, and that this impacts on her ability to make decisions on her own behalf. The Tribunal concluded that the Subject Person was a "person in need of a guardian" (as defined by s 3 (1) of the Act) and the power to make a guardianship order could be exercised.
At [85] the Tribunal concluded that the types of decisions likely to be required to be made on behalf of the Subject Person in the foreseeable future include decisions about her access with other people, and, possibly, support services, which "may be of benefit in giving effect to decisions about her access with other people". The Tribunal stated that there was "no consideration of any move from her current accommodation": Reasons at [85].
Referring to the Son's actions in preventing the Daughter from having contact with the Subject Person, the Tribunal found that decisions concerning the Subject Person's access with other people "can only properly be made by a guardian, given the demonstrated inability of her family to engage in the informal resolution of this issue": at [86]. At [89] the Tribunal stated that it was satisfied that the appointment of a guardian to "try and assist [the Subject Person] to have a relationship with her daughter is the only means by which there is a realistic prospect of preserving her family relationships".
The Tribunal decided to exercise the discretion to make a guardianship order and to give the guardian authority to make decisions about the access the Subject Person has with other people and the support services she receives: Reasons at [90].
The Son and Daughter-in-law were the only people to nominate to act as the Subject Person's guardians. At [91] the Tribunal said that it was not satisfied that either the Son or Daughter-in-law were able to act as guardian for the Subject Person "because the conflict within the family would prevent them from being able to make decisions". The Tribunal reasoned that, had they been able to make "necessary decisions", there would have been no need to revoke the appointment of the Son and Daughter-in-law as enduring guardians: Reasons at [91]. The Tribunal appointed the Public Guardian as the Subject Person's guardian: Reasons at [92].

[7]

Review of the 2022 EPoA

In exercising the discretion conferred by s 36(1) of the Powers of Attorney Act 2003 (NSW) (the PoA Act) to review or not to review the "making or operation and effect" of the 2022 EPoA, the Tribunal decided not to review the concerns raised by the Daughter about the making of that instrument but to review its operation: Reasons at [95]. The Daughter asserted, among other things, that the Subject Person lacked capacity to make the 2022 EPoA instruments.
At [96] the Tribunal said it was satisfied that it was in the Subject Person's "best interests" to revoke the 2022 EPoA. Referring to its previously expressed concerns that the Son "is unable to separate his mother's interests from his own interest in punishing his sister", the Tribunal stated that "an attorney should not have a conflict of interest with the principal, but this is not limited to a financial conflict of interest". At [96] the Tribunal stated that if the Son continued as attorney for the Subject Person, he may seek to act on his threats of legal action to recover money he claims his sister has stolen from the Subject Person and, if he did that, "his personal animosity towards his sister would be likely to cloud his judgement about the benefits of such action to his mother".
At [98] the Tribunal noted that the effect of its decision to proceed to make a financial management order was to suspend the 2022 EPoA. However, the Tribunal reasoned that it was in the Subject Person's best interests to exercise the power to revoke it so that "it is clear that this instrument can no longer be relied upon": Reasons at [96].
At [99]-[104] the Tribunal said it was satisfied that the pre-conditions to the exercise of the power to make a financial management order (s 25G of the Act) were met, namely: 1. that the Subject Person was incapable of managing her financial affairs due to the diagnosis of Alzheimer's dementia and its findings that the Subject Person was dependent on others for assistance with managing her financial affairs: Reasons at [101]. The Tribunal found that informal means of assisting the Subject Person to manage her affairs are "inadequate given the concerns about financial abuse and the high conflict within her family": Reasons at [103]; 2. that there was a need to make a financial management order to ensure that the Subject Person's "day to day finances are managed in her interests, in accordance with an equitable division of expenses in the household" and to ascertain "whether [the Subject Person] has an interest in any assets or financial resources which are being withheld from her and to take action in relation to this if warranted": Reasons at [102]; 3. that it was in the Subject Person's best interests to make a financial management order: Reasons at [104].
Having decided to make a financial management order, the Tribunal proceeded at [105]-[109] to consider whom to appoint as the Subject Person's financial manager. The Tribunal decided not to appoint the Son but rather to commit the management of the Subject Person's estate to TAG. Referring to its reasons for revoking the EPoA - concerns about the Son's judgement, influence, and conflict of interest with his mother - the Tribunal concluded that it would not be in the Subject Person's interests to appoint the Son and Daughter-in-law as her financial managers: Reasons at [108]. The Tribunal stated that there is a clear benefit to the Subject Person in having a financial manager appointed who is "independent from the family conflict": Reasons at [108].

[10]

Legal principles

A tribunal of fact which makes a finding of fact or draws an inference where there is a complete absence of evidence makes an error of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 (Bond) at 356 (Mason CJ); Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [91] (Hayne, Heydon, Crennan and Kiefel JJ).
In Bond, Mason CJ noted at [88]-[89] that there was "no error of law simply in making a wrong finding of fact" and "want of logic is not synonymous with error of law". Mason CJ continued: "So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."
In order to say that there was some evidence capable of supporting a finding, it is necessary that there be a rational connection between particular evidence and a finding of fact: BHP Billiton Ltd v Dunning [2015] NSWCA 55 at [35]-[43], Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 at [300].
Referring to the statement made by Mason CJ set out at [34] above, Basten JA in L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2012] NSWCA 15, at [34] added four "points of caution": "First, this passage indicates that the 'no evidence' ground of judicial review depends not on the reasoning of the decision-maker, but on a comparison between the material available to the decision-maker and the conclusion reached. Secondly, care must be taken with the term 'no evidence', as an administrative decision-maker is usually entitled to take into account material which would not count as 'evidence' in a judicial context. In what is essentially an inquisitorial inquiry, that material is not necessarily limited to the material placed before the decision-maker by the applicant for review. Thirdly, it is important to bear in mind that the decision-maker may be entitled to seek support for a particular inference from the absence of material supportive of a contrary view. Fourthly, where an evaluative judgment is to be formed on the basis of conflicting indicators, it will be difficult if not impossible to establish a 'no evidence' ground of review."

[11]

Impugned Findings 1, 2

Section 36(4) of the PoA Act gave the Tribunal a discretion to make any of the orders listed in s 36(4) of that Act, including an order revoking all or part of the power of attorney (s 36(4)(f) of the PoA Act), "if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal". The Tribunal stated that it was satisfied that it is in the best interests of the Subject Person to revoke the 2022 EPoA. The stated reasons for that conclusion included Impugned Findings 1 and 2.
Impugned Findings 1 and 2 are contained in [96] of the Reasons: "The Tribunal has already set out the concerns that [the Son] is unable to separate his mother's interests from his own interest in punishing his sister [Impugned Finding 1]. An attorney should not have a conflict of interest with the principal, but this is not limited to a financial conflict of interest. The Tribunal has well founded concerns that if [the Son] was able to continue as attorney for [the Subject Person], he may seek to act in his threats of legal action to recover money he claims his sister has stolen from [the Subject Person]. Should he do so, the Tribunal is satisfied that his personal animosity towards his sister would be likely to cloud his judgement about the benefits of such action to his mother [Impugned Finding 2]…."
In the appeal, the Solicitor acknowledged that there was ample evidence of the Son's animosity towards the Daughter. However, the Solicitor contended that there was no evidence of the Son, in the role of attorney, having been unable to separate his mother's interests from his own or being unable to do so in the future. The finding that he might abuse his position as attorney to recover money he claimed the Daughter had stolen from him was a matter of "pure speculation". The Solicitor contended that there was no evidence that in his role as attorney the Son had acted in a reckless, negligent or improper manner.

[12]

Consideration

Impugned Findings 1 and 2 are in the nature of evaluative judgements. Each involve a predictive exercise about the likelihood of the Son in the future acting in a manner inconsistent with his obligations as attorney, specifically by being unable to separate his mother's interests from his own interest in punishing his sister (Impugned Finding 1), and being unable to objectively assess the benefits of commencing legal action against his sister to recover money he alleged she owed to their mother because of his personal animosity towards his sister (Impugned Finding 2).
Whether, as contended by the Solicitor, these were based on "no evidence", requires the Reasons to be read as a whole.
At [48] the Tribunal recorded the Son's allegations about the Daughter's "alleged failings and dishonesty" during the period she and her late husband were the Subject Person's "main supports". At [51] the Tribunal referred to the Son's actions in highlighting every transaction in the Subject Person's bank statements he considered "suspect" and asserting that this "was proof that [the Daughter] had been taking money from [the Subject Person] for over 20 years". At [52], the Tribunal recorded that the Son calculated that the Daughter owes the Subject Person $238,000 plus interest, "which he asserts she should repay".
At [53], the Tribunal detailed the claim made by the Son that the Daughter owes him "a lot of money". The Tribunal recorded that the Son: 1. alleged that the Daughter had stolen or not looked after items he had stored under the Subject Person's house, including the Daughter-in-law's wedding dress and a train set he claimed was valued at about £290,000; 2. estimated that he and his wife had suffered "personal loss" of about $800,000 caused by the Daughter, which she should repay; 3. threatened "police involvement"; 4. said as attorney he would take legal advice about recovering money from the Daughter. He and his wife would pay for any legal proceedings.
At 74, in the context of considering whether in his role as enduring guardian, the Son was observing the section 4 principles, the Tribunal referred to: "(3) [The Son's] relentless focus on his sister's purported failings and, alleged criminality in her dealings as attorney, although the Tribunal had explained that it was the 2022 enduring power of attorney and not the 2018 enduring power of attorney that was under review. Certainly, an incoming attorney may choose to investigate whether there may have been improper dealings by a previous attorney and take action in relation to this if warranted. But [the Son and the Daughter-in-law] had been directed to provide the Tribunal with evidence in relation to their actions as attorneys, not [the Daughter's]. They complied with these directions in the most cursory way, preferring to expend energy on trying to find material against [the Daughter]. Their submissions make manifestly outlandish claims about money that she owes [the Subject Person] based on assumptions about bank transactions from over twenty years ago. [the Son's] inability to separate himself and his own interests from his consideration of his mother's interests is also apparent in his assertions about [the Daughter] owing him and [the Daughter-in-law] vast sums of money and his threats to take legal action to recover this and the money he claims she owes [the Subject Person]."
The Solicitor appeared to contend that because there is no direct evidence of the Son, to date, having being unable to separate his interests from those of his mother or of his personal animosity towards his sister clouding his judgement about the possible benefits of commencing legal action to recover the money he alleged she owed to their mother, that there was no material to support Impugned Findings 1 and 2. We reject that argument. The Tribunal was not confined to considering direct evidence but was entitled to consider all the evidence and to draw inferences from that evidence about the likelihood of the Son's animosity towards the Daughter infecting his judgement and causing him to be unable to separate his own interests from those of his mother.
The inferences the subject of Impugned Findings 1 and 2 were reasonably open to the Tribunal on the available material. That material included the evidence of the intense nature of the Son's animosity towards his sister, the "manifestly outlandish" nature of claims made by the Son about the money he alleged was owed by his sister to his mother, together with the Son's "relentless focus" on the Daughter's "alleged criminality in her dealings as attorney". It does not follow, as the Solicitor appears to contend, that because there was also evidence favourable to the Son that there was "no evidence" to support Impugned Findings 1 and 2.
In the interest of completeness, we observe that the Tribunal did not find, as the Solicitor asserted, that the Son may seek to recover from the Daughter the money he claims was owed to him and the wife. Set out in full at [38] above, the passage in which Impugned Finding 2 relevantly states: "The Tribunal has well-founded concerns that if [the Son] was able to continue as attorney for [the Subject Person], he may seek to act in his threats of legal action to recover money he claims his sister has stolen from [the Subject Person]."

[13]

Reformulation of Ground 1 (Impugned Findings 1 and 2)

At the hearing, the Solicitor reformulated the 'no evidence' ground as it related to Impugned Findings 1 and 2 and contended that: 1. the Tribunal asked the "wrong question", and 2. the findings were irrational.
With respect to the 'wrong question' ground, without authority the Solicitor asserts that in considering whether to exercise the power to revoke the EPoA, the Tribunal was confined to considering the question of whether "the animus towards the Daughter was driving the improper use of the EPoA".
This contention, in effect, repeats the argument discussed above that the Tribunal was confined to considering the past actions of the Son, specifically whether the animus towards the Daughter had driven him to improperly use the 2022 EPoA.
Finally, the power to revoke the 2022 EPoA was available to the Tribunal if satisfied that it "would be in the best interests of the principal to do so": PoA Act, s 36(4). There is nothing in the text, context or purpose of that provision to support the contention, apparently advanced by the Solicitor, that in considering whether it would be in the best interests of the Subject Person to revoke the 2022 EPoA, the Tribunal was confined to considering how the EPoA had been used to date. The Tribunal was entitled, as it did, to assess the likelihood of the Son in the future using the EPoA in a manner inconsistent with the duties owed by an attorney to the principal.
With respect to the challenge to the Impugned Findings on the ground that they are said to be "irrational", the Solicitor contended that there was no rational connection between evidence of the animus between the siblings and the finding that it may drive improper use of the 2022 EPoA. He pointed out that to date there was no evidence that, in the discharge of his role as attorney, the Son had acted dishonestly, recklessly or failed to account for his actions. There was no evidence of impropriety.
"Irrationality" is conventionally defined as "the quality of being devoid of reason": Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [125]. Whether separately or together, Impugned Findings 1 and 2 can properly be characterised as "irrational" requires consideration of whether those findings were ones no rational or logical decision maker could arrive at on the same evidence: SZMDS at [130]. In SZMDS Crennan and Bell JJ at [131] explained: "If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion."
The material on which Impugned Findings 1 and 2 were made, referred to above, included: 1. the expression by the Son of a high degree of animosity towards the Daughter; 2. the Son's "fervent" belief that the Daughter had stolen money from the Mother; 3. the nature of the claims on which that belief was based, found by the Tribunal to be "manifestly outlandish"; 4. the Son's statement to the Tribunal that he intended to commence recovery proceedings and to involve Police.
Based on that material, the Tribunal considered the likelihood of the Son being able to quarantine his animosity towards the Daughter and to engage in an objective assessment of the likely risks and benefits of commencing legal proceedings, in short, to engage in the cost-benefit analysis a prudent attorney is required to undertake before commencing legal action on behalf of their principal. The Tribunal found, in effect, that there was an unacceptable risk that the Son's animosity towards the Daughter might "cloud his judgement about the benefits of such action to his mother". It could not be said that there was no logical connection between the material before the Tribunal and Impugned Findings 1 and 2. Nor could it be said that no rational or logical decision maker could arrive at those findings on the same material.

[15]

Legal principles governing the appointment of a guardian

Section 17(1) of the Act states: 17 Guardians (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that f the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.
Referred to previously in these Reasons, s 4 of the Act states: 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.
In ZKF v ZKG [2019] NSWCATAP 64, commenting on the operation of s 17 of the Act, the Appeal Panel said at [31]: "The task posed by s 17(1)(c) required the Tribunal to make an evaluative judgement about whether the appellant was 'able' to exercise the accommodation function. This required the Tribunal to consider not only whether the appellant possessed the necessary skill and experience to be able to exercise that function (or put another way, to make decisions about his mother's accommodation on her behalf) but also whether he had the personal attributes, such as judgement and integrity, required to exercise that function. In addition, as correctly acknowledged by the Tribunal, this required the Tribunal to consider whether the appellant was able to make those decisions in a manner consistent with the statutory duty imposed by s 4 of the Guardianship Act: W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (per Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (per Lindsay J)."

[16]

Consideration

Having decided to revoke the 2022 EGA and to make a guardianship order, the Tribunal went on to consider whether to appoint the Son and Daughter-in-law as guardians for the Mother. They were the only persons nominated to act as guardian for the Subject Person.
At [91], referring to its reasons for revoking their appointment as the Subject Person's enduring guardians, the Tribunal stated that it was not satisfied that the Son and Daughter-in-law were able to act as the Mother's guardian "because the conflict in the family would prevent them from being able to make decisions".
At [74], the Tribunal correctly observed that the Act required the Son and Daughter-in-law, when exercising functions under the Act in their role as enduring guardians, to "observe [the section 4] principles in the way they act in that role". At [76] the Tribunal stated that it was not satisfied that the Son and Daughter-in-Law "are able to fulfil their responsibilities as enduring guardian for [the Subject Person], with regard to the section 4 principles, in particular the importance of preserving [the Subject Person's] existing family relationships". The Tribunal found that their continued appointment "would likely serve to worsen and possibly destroy [the Subject Person]'s relationship with [the Daughter]". At [74]-[75] the Tribunal set out the findings on which that conclusion was based, which included: 1. that the Son and Daughter-in-Law "had no intention of trying to assist the Subject Person have any kind of relationship with Daughter": [75]. That finding was apparently based on the claim made by the Daughter, and accepted by the Tribunal, that since moving to live with the Subject Person, contrary to the Subject Person's wishes, the Son had prevented the Daughter from having contact with the Subject Person: at [39], [42], [74]; 2. that the undated letter tendered by the Son and purportedly written by the Subject Person (see bundle of documents filed by YCW 22/2/2023 p 116, "the Disputed Letter") is "not an accurate reflection" of the Subject Person's views and the Son's actions having the Subject Person sign the letter "essentially in support of his own interests", "reflects very poorly on [the Son]". The letter stated, among other things, that the Subject Person is scared of, and does not want to have any contact with, the Daughter: at 74; 3. the petition written and distributed by the Son to members of the Subject Person's bingo club. The Tribunal found the text of that petition to be "misleading and inflammatory" and "shows scant regard for his mother's privacy". The Tribunal said it was "particularly troubling" that the Son tendered that letter, given the directions it made in November 2022 encouraging the parties "to try and work together to give effect to [the Subject Person]'s stated wish to have contact with and see [the Daughter]". The Tribunal found the letter to be further evidence of the Son's efforts to "undermine" the relationship between the Daughter and the Subject Person: at 74.
The Tribunal accepted, as claimed by the Son, that the Subject Person "is happier and healthier" now that she was living with and being provided with care and company by the Son and Daughter-in-law. However, the Tribunal found that acting as enduring guardians, the Son and Daughter-in-law had demonstrated a failure to have regard to the importance of preserving the family relationships as required by s 4 of the Act.
The Tribunal applied the same reasoning in reaching the state of satisfaction required under s 17(1)(c) of the Act, about whether the Son and Daughter-in-law are able to exercise the access and services functions conferred under the guardianship order. The above summary of the material available to the Tribunal demonstrates that the finding was one reasonably open to the Tribunal.
The contention that there was no evidence to support Impugned Finding 3 must be rejected.

[17]

Ground 3: reliance on the recommendation made by Dr Langford urging the appointment of TAG

The Solicitor contended that, in revoking the 2022 EPoA, the Tribunal erred by relying on the finding made by geriatrician, Dr Claire Langford, that the Son had subjected the Subject Person to "elder abuse". The Solicitor contended that Dr Langford "unfairly … and with no proper ground" imputed "elder abuse" to the Son. That finding was based on "hearsay and indirect evidence".
Dr Langford has been treating the Subject Person for seven years. For the purpose of the proceedings, Dr Langford prepared two reports dated 9 November 2022 and 22 November 2022.
At [26]-[30], under the heading "Evidence regarding [the Subject Person's] decision making capacity and care needs", the Tribunal summarised the contents of Dr Langford's reports. At [28] the Tribunal recorded that Dr Langford in her first report wrote: "Over the years there has been a lot of allegations of various forms of elder abuse by both her daughter and her son against each other who have been in conflict. Whenever I have taken [the Subject Person] aside she refused to make comment on whether the allegations were true."
At [29] the Tribunal recorded that in her second report, Dr Langford stated that when she saw the Subject Person on 22 November 2022, she reassured the Subject Person that she would not be recommending that she move to aged care but rather that she remain at home under the care of her son and daughter-in-law. At [30] the Tribunal recorded: "Dr Langford observes that the NCAT proceedings are causing "ongoing anxiety" and states "I have explained to her today that I am very happy for there to be at minimum a financial manager appointed through the Public Trustee (and) have explained to [the Subject Person] the reasons why. She was reasonably accepting of this...I have indicated that if a Public Guardian was appointed, that there would be the opportunity for...care to be monitored while the finances remain independent."
In the context of considering whether to make orders under s 36 of the PoA Act, the Tribunal returned to consider Dr Langford's reports. At [97] the Tribunal stated that it could not be satisfied on the available evidence that the Subject Person's "financial interests are being managed in her own interests". After referring to the failure of the Son and Daughter-in-law to provide detailed records about the Subject Person's finances throughout the period they had been acting as attorney, despite being directed to do so, the Tribunal stated at [97]: "The Tribunal also noted Dr Langford's reference to longstanding allegations about elder abuse, and her recommendation that a financial management order be made, with an independent financial manager. The Tribunal accepts her insight into the situation, and the likely benefit to [the Subject Person] in removing this source of continued conflict."

[19]

Ground 4: Failure to have regard to the views of the Subject Person

The Solicitor contended that in deciding whether to revoke the 2022 Instruments, the Tribunal failed to have regard to the views of the Subject Person. The Solicitor contended that, for about a year, the Subject Person has "expressed strong and consistent views" that she wanted the Son and Daughter-in-law to act as her guardian and attorney. In support, the Solicitor pointed to the following comments made by the Subject Person in the hearing before the Tribunal: "1. 'I want peace of mind. I don't want any changes. I want my son and his wife to stay with me as long as I live'. 2. In response to a purported letter written by [the Daughter] on 6 March 2020 [the Subject Person] noted that 'No, I shouldn't be doing that. I shouldn't have done that'… 'I want do that, I want [the Son and Daughter-in-law] to live with me'… 'Yeah, till I die'… "no, it's not my writing. No, that's not my writing. No'. 3. In being questioned about appointing [the Daughter] as a previous guardian and attorney, '[the Daughter] can't look after me'… 'I don't know. Don't get me wrong. I'm not afraid of her, don't get me wrong. But she seems overpowering me'. … 'I'm quite happy with the way I am today'. 4. 'I'm comfortable with where I am and what I'm doing'. 5. 'I asked my son and his wife to come and live with me because I'm a bit lonely, had a couple of dogs, and they came straight away, and they've been looking out for me'. 6. In relation to [the Daughter] looking after her affairs [the Subject Person] expressed the views that she didn't want [the Daughter] [ in this position 'so I said no, you leave me alone'. 7. When asked if there was anything else [the Subject Person] wished to express she said 'I just want to stop. Let [the Son and Daughter-in-law] look after me in my own house till I die'. 8. In respect of the alleged letter written by 6 March 2020 the [Subject Person] expressed views in relation to [the Son and Daughter-in-law] moving in 'I want it more than anything' …. 'I think I will die if they leave me'... "I don't want more changes, I just want to live"… 'I think I'm so fine, I'll be soon [inaudible], I don't want any changes, just leave me be'. 9. In respect of being questioned about potentially appointing the Trustee and Guardian to be appointed [the Subject Person] expressed the following view, 'I'm sad to say they used me'. 10. In relation to whether the Subject Person] current guardians would facilitate visitation with [the Daughter] 'sure, they take me down'... 'I like to see her but she's a bit bossy', 'she should just leave me alone'."
In addition, the Solicitor contended that there was "no legal basis for the revocation" of the 2022 Instruments because of the "alleged denial of [the Daughter's] visitation".

[20]

Views of the Subject Person: to revoke the 2022 EGA

In considering whether to exercise the discretion to revoke the 2022 EGA, s 4(d) of the Act required the Tribunal to "take into consideration" the views of the Subject Person.
The Tribunal concluded that it was in the best interests of the Subject Person to revoke the 2022 EGA because it was not satisfied that the Son and Daughter-in-law were able to fulfil their responsibilities as enduring guardians in a manner consistent with the section 4 principles, specifically "the importance of preserving the family relationships" (s 4(e) of the Act). The Tribunal concluded that their continued appointment "would likely serve to worsen and possibly destroy" the Subject Person's relationship with the Daughter.
In several parts of the reasons, the Tribunal referred to the views expressed by the Subject Person about various matters. As noted above, the Tribunal found that the Disputed Letter did not accurately reflect the views of the Subject Person: Reasons at 74. However, the Tribunal found that the Subject Person had expressed the view: 1. that she wanted to continue to have contact with the Daughter: Reasons at [62], [75]. 2. that she did not want her current living arrangements to be changed and wished to remain living in the family home with the Son and Daughter: Reasons at [61], [77], [89].
Referring to the Subject Person's "wish for the existing arrangements to be unchanged", the Tribunal concluded that the Subject Person was "primarily focussed on there being no change to her current living situation, remaining in her own home, with the care and support of her son and daughter in law": Reasons at [77]. The Tribunal recorded at [77] that its decision to revoke the EGA would not change that arrangement.
The only express statement made by, or attributed to, the Subject Person in the proceedings relating to the revocation of the 2022 EPoA was the following statement contained in the Disputed Letter: "I have the utmost confidence in [the Son] as Carer/Guardian and EPOE, he hasn't steered me wrong". That was one of many matters canvassed, allegedly by the Subject Person, in the Disputed Letter. As discussed above the Tribunal gave that letter no weight, finding it was not an accurate reflection of the Subject Person's views. The only other evidence before the Tribunal of the Subject Person's views about the proposed revocation of the EPoA was the unresponsive answer she gave to questions asked by the Tribunal about the proposal to appoint an independent person to manage her financial and personal affairs. As the Tribunal observed, the appellant appeared not to understand those questions.
The Solicitor appears to contend that the Tribunal was obliged to accept the Son's characterisation of the Subject Person's views. We reject that contention. The Tribunal was entitled, as it did, to assess whether the Disputed Letter was an accurate reflection of the Subject Person's views, especially given the conflicting accounts of those views and the Subject Person's inability to recall many of the matters canvassed in that letter.
The stated views of the Subject Person, set out above at [76], on which the Solicitor relies are entirely consistent with the observation made by the Tribunal that the Subject Person's primary concern was that there be no change to her current living situation.
Finally, the contention that that "there is no legal basis for the revocation" of the 2022 Instruments because of the alleged denial of "[the Daughter's] visitation" must be rejected for these reasons: 1. The assertion that there was no basis for the finding that the Subject Person had prevented the Daughter visiting her is rejected. The Daughter gave evidence that since the Son had moved to live in the family home, the Son had refused to permit her to have contact with the Subject Person: Reasons at [39]. 2. Section 6K of the Act conferred on the Tribunal the discretion to revoke the EGA if satisfied that it is in the best interests of the Subject Person to do so. Framed by the section 4 principles, it was up to the Tribunal to decide what considerations were relevant to the exercise of that power. The Tribunal was entitled to consider whether it was in the Subject Person's interests to be able to maintain a relationship with her daughter and whether, in the absence of a guardianship order with an access function, that could be achieved.

[24]

Legal Principles

The Tribunal was required to give written reasons for its decision: NCAT Act, cl 11, Sch 6. Section 62(3) of that Act provides that a written statement of reasons must contain: 62 Tribunal to give notice of decision and provide written reasons on request ... (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based; (b) the Tribunal's understanding of the applicable law; and (c) the reasoning processes that lead the Tribunal to the conclusions it made.
In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 (Orr), Bell P (as His Honour then was), in considering the nature of the Tribunal's obligation to give reasons, stated at [66] that the function of an appeal court in the context of appellate review is "to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard", citing Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]. Referring at [67] to the statement made by Basten JA in Resource Pacific Pty Ltd v Wilkinson at [48], that "[t]ransparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality", Bell P commented that the "identification of separate parameters of quantity and quality is, with respect, a useful one".
At [70] Bell P went on to state that the "sheer volume of work undertaken by tribunals is such that a perhaps more relaxed standard of review of reasons with corresponding compensation for linguistic infelicities is appropriate than may be the case when an appellate court is hearing an appeal from another court". Bell P, however, acknowledged that there are "certain minimum characteristics that a Tribunal's reasons must possess" which, in relation to NCAT, are supplied by s 62(3) of the NCAT Act. Bell P stated at [72] that while s 62(3) of the NCAT Act provides a "useful starting point, it still leaves for consideration the question as to the quality and detail of the reasoning process that must be exposed".

[25]

Consideration

We deal first with the assertion that the basis for the decision to revoke the 2022 EPoA was the dispute within the family over the Subject Person's access to the Daughter. That claim misstates the Reasons. No mention is made of that dispute in [96]-[98], where the Tribunal explained why it decided to revoke the 2022 EPoA. While the Tribunal referred to the conflict between the siblings, it was in the context of the finding that the Son's animosity towards the Daughter was likely to cloud his judgement about the benefits of commencing legal action on behalf of the Subject Person to recover money from the Daughter and that the Son was unable to quarantine his interest in "punishing" the Daughter from his obligation as attorney to act in the best interests of the Subject Person because of the entrenched conflict and lack of trust between the siblings. We referred to those above but for convenience we set out the relevant passages in full: "96. The Tribunal was satisfied that it is in [the Subject Person] best interests to revoke the 2022 enduring power of attorney. The Tribunal has already set out the concerns that [the Son][the Son] is unable to separate his mother's interests from his own interest in punishing his sister. An attorney should not have a conflict of interest with the principal, but this is not limited to a financial conflict of interest. The Tribunal has well founded concerns that if [the Son] was able to continue as attorney for [the Subject Person], he may seek to act in his threats of legal action to recover money he claims his sister has stolen from [the Subject Person]. Should he do so, the Tribunal is satisfied that his personal animosity towards his sister would be likely to cloud his judgement about the benefits of such action to his mother. The Tribunal was not satisfied that removing [the Son] as attorney and leaving [the Daughter-in-law] as the sole attorney would ameliorate this concern, as it was clear from the dynamics between them that [the Son]'s influence would remain. 97. In addition to this concern, the Tribunal could not be satisfied from the available evidence that [the Subject Person]'s financial situation is currently being managed in her interests. The attorneys provided almost no evidence about her current financial situation (despite being directed to do so) and the oral evidence about the day to day arrangements was inconsistent between the attorneys and [the Subject Person]. It should have been a simple matter for the attorneys to provide the evidence requested, and their failure to do so, in the context of entrenched conflict and lack of trust is a particular concern. The Tribunal also noted Dr Langford's reference to longstanding allegations about elder abuse, and her recommendation that a financial management order be made, with an independent financial manager. The Tribunal accepts her insight into the situation, and the likely benefit to [the Subject Person] in removing this source of continued conflict. 98. For reasons explained in more detail below, the Tribunal decided to make a financial management order, which has the effect of suspending the operation of an enduring power of attorney. In [the Subject Person]'s situation, the Tribunal was satisfied that it is in her best interests to revoke the 2022 power of attorney in order to ensure that it is clear that this instrument can no longer be relied upon."
As is apparent, the argument advanced by the Solicitor is not directed at the adequacy of the reasons given for revoking the 2022 EPoA. Rather, the argument is in effect an expression of disagreement with that decision.
In the Reasons, the Tribunal detailed the findings on material questions of fact on which the decision to revoke the 2022 EPoA was based and referred to the evidence on which those findings were based. In addition, the Tribunal set out its understanding of the applicable statutory provisions governing the exercise of the discretion to review the 2022 EPoA and to make a financial management order.
The reasoning path that led the Tribunal to revoke the 2022 EPoA is readily discernible from the Reasons. The Tribunal gave detailed, cogent and persuasive reasons for the facts found and ultimate conclusion reached. The Tribunal not only met but exceeded the minimum standards prescribed by s 62(3) of the NCAT Act.
This ground fails.

[26]

Fresh evidence

At [97] in the context of considering whether to revoke the 2022 EPoA, the Tribunal criticised the failure by the Son and Daughter-in-law to comply with the directions made on 9 November 2022: "97 …. The attorneys provided almost no evidence about her current financial situation (despite being directed to do so) …. It should have been a simple matter for the attorneys to provide the evidence requested, and their failure to do so, in the context of entrenched conflict and lack of trust is a particular concern. …"
By the directions made on 9 November 2022, the Tribunal required the Son and Daughter-in-law to provide records of their financial dealings as attorneys for [the Subject Person], including copies of bank statements, records of any transfers or sale of assets, loans or mortgages entered into, as well as a summary of [the Subject Person's] financial situation (assets, income, debts) at the time they were appointed attorney and at present."
The Tribunal found that the Son and Daughter-in-law complied in the "most cursory way", and that the only material filed in answer to those directions was a statement issued by the Subject Person's bank for the period, 8 November 2022 to 8 December 2022: Reasons at [54],[55],[75].
In the appeal, the Solicitor tendered affidavits prepared by the Son and Daughter-in-law which attached the records they had been directed to file by the Tribunal. In addition, in their respective affidavits the Son and Daughter-in-law detailed the manner in which they had been managing the Subject Person's finances, asserting they had not gained any benefit from acting in that role and had acted honestly in "all matters concerning [the Subject Person's] legal and financial affairs".
At the hearing of the appeal, the Solicitor explained that it was not asserted that the statutory declarations prepared by the Son and the Daughter-in-law constituted "fresh evidence", namely significant new evidence which has arisen since the Tribunal hearing and which was not reasonably available at the time of that hearing, warranting the reopening of the decision under appeal. Rather the purpose of filing the affidavits was to cover the contingency if the Appeal Panel allowed the appeal and directed the Tribunal under s 81(1)(e) of the NCAT Act to reconsider the case "with further evidence". The Solicitor explained that a further reason for filing the affidavits was to "correct the record" by providing an explanation for the Son and Daughter-in-law's failure to comply with the directions. The Solicitor said that as self-represented parties, the Son and Daughter-in-law did not fully understand what the Tribunal had required. Their failure to comply was not an attempt to conceal information from the Tribunal or some other sinister motive.
Given our decision to not allow the appeal or give leave to appeal, it is unnecessary to consider this new material.

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