YGM v YGN

Names of parties

1. In these reasons we have not used the real names of the parties. Because it is an official report of these appeal proceedings, the prohibition of the publication of the name of any person mentioned, or otherwise involved, in an "internal appeal" against a decision made by the Guardianship Division of NCAT does not apply to these reasons: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), ss 65(1)(a), 65(3). However, because of the sensitive nature of the matters discussed in these reasons, we decided to not refer to the parties by their real names. For ease of reading in these reasons we use fictitious names and not the pseudonyms assigned to the parties by the Registrar. Those pseudonyms and the corresponding fictious names are set out in Annexure A to these reasons.

Background to the appeal

1. The following facts are principally taken from the decision under appeal and the decision of a differently constituted Appeal Panel in Latimer v Latimer [2022] NSWCATAP 94.
2. On 30 May 2017, Angela executed instruments appointing Kim and Margaret as her attorneys and enduring guardians. Each instrument authorised Kim and Margaret to act together and individually. The instruments were prepared by Angela's long-time solicitor (the Solicitor). In a certificate annexed to the EPoA, the Solicitor certified pursuant to s 19(2) of the Powers of Attorney Act that he had explained the effect of that instrument to Angela before it was signed, and Angela appeared to understand its effect.
3. On 29 May 2021, Doug wrote to Kim and Margaret demanding their resignation as Angela's attorneys and enduring guardians, citing "financial abuse at several levels". A few days later Kim and Margaret lodged applications with the Guardianship Division seeking the appointment of Ted as Angela's enduring guardian and attorney, or in the alternative, Ted and Mark as substitute enduring guardians and attorneys. Kim and Margaret explained that they made that application because of Doug's persistent criticisms of them and his "increasingly serious allegations of impropriety". Subsequently, Kim and Margaret requested leave to withdraw that application because Angela was now living with Kim and, in their view, they were able to continue to act in their appointed roles. Doug opposed that request. Nonetheless, on 17 November 2021, following a hearing, the Tribunal gave Kim and Margaret leave to withdraw their substantive application seeking review of the operation and effect of the EPoA and the enduring guardianship appointment and dismissed that application.
4. On 23 January 2023, Doug made an application to the Guardianship Division seeking review of the making of, and the operation and effect of the EPoA. At the hearing of that application, Doug informed the Tribunal that he was not seeking review of the making of the EPoA, only its operation and effect. (Transcript of proceedings, YGN, NCAT, 2021/00190323, (L Organ, Senior Member (Legal), Dr B McPhee, Senior Member (Professional), P J Foreman AM, (General Member) 14 June 2023, 14:19).

Doug commences living with Angela

1. In 2016, Angela sold the house where she had been living for many years and purchased and moved to a smaller house in south-west Sydney (Angela's home). In September 2019, Doug returned to Australia after living in China and moved into Angela's home. Until that time Angela had been living alone.
2. In August 2021, Angela moved to live with Kim in private rental accommodation. Doug remained living in Angela's home. The parties disagree about the circumstances surrounding that move. Doug claimed that Kim had "kidnapped" Angela against her wishes. On the other hand, Kim and Margaret claimed that that move was necessary because of Doug's conduct and Angela's deteriorating health and increased care needs.
3. In September 2021, in the exercise of her authority as attorney, Kim issued Doug with a notice of termination under the Residential Tenancies Act 2010 (NSW). On 8 October 2021, Doug made an application to the Consumer and Commercial Division of NCAT, seeking a declaration under s 115 of the Residential Tenancies Act that that notice was a "retaliatory notice", and therefore, of no effect. Doug claimed that on 22 May 2020, he entered into a valid residential tenancy agreement with Angela.
4. In a separate application made to the Consumer and Commercial Division, Margaret and Kim sought a declaration under s 11 of the Residential Tenancies Act that Doug's occupancy of Angela's home was not, as claimed by Doug, under a residential tenancy agreement.
5. On 6 December 2021, the Tribunal dismissed each application.
6. Kim successfully challenged the Tribunal's decision to dismiss her application: Latimer v Latimer [2022] NSWCATAP 94. The Appeal Panel set aside the decision that the agreement between Doug and Angela dated 22 May 2020 constituted a residential tenancy agreement under the Residential Tenancies Act. At [40] the Appeal Panel found that it was not a binding agreement because when made, Angela "did not have the requisite level of mental capacity to enter into a binding agreement".

Angela makes loans to her children

1. Between the mid-1990s and 2018, Angela made loans to each of her children. In a will made in 2005, Angela recorded that she made the following loans to her children, each payable with interest: 1. to Mark, in 1996, who now owed her $25,000 2. to Ted, in 1996, who now owed her $25,000 3. to Ted, in 1999, who now owed her $50,000 4. to Doug, in 1996, who now owed her $39,558 5. to Kim, in 2003 and 2004, who now owed her $7,735.
2. Angela made further loans to Kim in 2011 ($100,000), in 2012 ($100,000) and in 2014 ($80,000), each payable with interest.
3. In October 2018, Angela made a further loan to Mark of $75,000, payable with interest.

The 2017 loan decisions

1. In an email sent on 10 June 2017 to Margaret and Doug, Kim detailed several proposals she claimed she had discussed with Angela about restructuring her financial affairs. These included the revision of Angela's will made in 2005 (the 2005 Will), the restructuring of the loans made by Angela to her children, and giving gifts to her children. That email was stated to be in preparation for a phone conference the following day with Angela, Margaret, Doug and Kim.
2. In that email, Kim said "as all of you now know by now we have all had different loans with Mum". Doug and Mark had repaid their loans with interest. Ted and Kim had not.
3. After setting out the details of her loan and referring to concerns raised by Mark about its size, Kim wrote "my loan is under the microscope because it is large and we need to figure out the best way to structure the Will, because Mum can't do this part of the Will on her own".
4. Under the heading "Initial proposal and circumstances", Kim wrote that over the last couple of weeks while helping Angela with her investments, "consolidating them etc, working things out", a "spanner was thrown in the works", when the Solicitor who was advising Angela about the "power of attorney and guardianship", suggested that the loans to the children be worked out in the "form of express gifts". Kim said that during one of their many discussions about those loans, Angela said "how about we forget the interest", to which she replied, "if you forget my interest, it is not fair that you have charged Doug interest and Mark interest. They have paid back their loans with interest and why should Ted and I get away with it".
5. Kim said that after making enquiries and presenting Angela with the details of the amount in interest paid by Mark and Doug, Angela "was happy with the amount and to refund you".
6. Kim then went on to refer to various other options said to have been discussed with Angela, including refunding $65,000 to Mark and Ted for the interest paid by them, and waiving the interest payable by Kim and Ted, on their respective loans. She said: "This proposal, would be that everything is equal as best it can be as at the time of the Will, that in the end, you, [Doug] and [Ted] receive the exact same gift as I (I had the highest so mine is only relevant in terms of the drafting of the Will) and that the only problem that I had to work out (although not yet with mum was what do I or [Ted] pay in addition, because we have this gift now to use. …"
7. After discussing the pros and cons of that proposal, Kim wrote: "we need to forecast what is appropriate because [Ted] and [Kim] need our loans set in stone …(to make it easy as possible for mum - like I said she does not want any hassle now, she doesn't need additional money at the moment BUT she does want what is fair between us kids". Kim went on to say "We need to work this out first and approve it as fair together and then explain it to mum and get her approval. She is the final decision maker."

Waiver of interest on loans made to Kim

1. On 5 June 2017, Kim wrote by hand, "Mum to waive all interest under this contract as she was doing for her other children", on each of the three loan contracts she and Angela entered into in 2011, 2012 and 2014, between herself and Angela. On each contract Angela's signature appears below Kim's handwritten entry.

Gift to Doug of $41,800

1. In July 2017, Angela gave Doug $41,800.

Angela's wills

1. In the 2005 Will, Angela bequeathed her estate to her four children in equal shares. That will stated that the balance of any loan made by Angela to any child would be deducted from that child's share of her estate.
2. In September 2019, Angela executed a further will prepared by the Solicitor (the 2019 Will). Under that will, Angela: 1. released any surviving child from any debt owed to her 2. gave $280,000 to Doug 3. gave $210,000 each to Ted and Mark 4. gave the residue of her estate to each surviving child in equal shares.

The decision under appeal

1. In reasons for the decision under appeal (the Reasons), under the heading "what did the Tribunal have to decide", at [13] the Tribunal said that when reviewing the operation and effect of a power of attorney, it had "a broad discretion to make orders in the terms of those set out in ss 36(3) to (9) of the Powers of Attorney Act if it is 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".
2. The Tribunal said that it had decided to exercise the discretion to review the operation and effect of the EPoA because "significant allegations had been made by [Doug] in relation to the conduct of [Kim] and [Margaret] as attorneys [which] warranted further consideration by the Tribunal": at [18].
3. At [20], the Tribunal noted that under the EPoA the appointment of Kim and Margaret as Angela's attorney "was to take effect immediately upon the attorneys' acceptance and the attorneys were not given any additional authority to confer benefits on anyone other than [Angela]".
4. At [21], the Tribunal noted that the parties agreed that Angela is "now incapable of managing her financial affairs as a result of dementia and severe cognitive impairment". The Tribunal referred to a report prepared by geriatrician, Dr Sarah Baldwin, dated 15 September 2021 which "confirms [Angela's] dementia is now at an advanced stage and that [Angela] has limited communication".
5. Because Angela's cognition and physical health is relevant to the submissions made by the parties, we set out in full the Tribunal's summary of the medical evidence: "[22] Other medical evidence available to us documents [Angela] experiencing deteriorating cognition and declining physical functioning over the last few years. This history is of some relevance to the issue of when [Angela]'s attorneys commenced to use their authority under the EPoA and whether [Angela] was still capable of managing her financial affairs after she made the EPOA. [23] As at 26 November 2017, Dr David Conforti, Geriatrician at Liverpool Hospital reports that [Angela] had mild memory impairment 'that is starting to have an impact on her life' with a most likely diagnosis being Alzheimer's disease superimposed on vascular changes. [24] An ACAT assessment of 29 October 2019 says [Angela] was engaged in the assessment but was confused and demonstrated obvious cognitive impairment. She was noted to display some paranoia against family regarding money and forgetting her house had been sold. ([Angela] owned another property which she sold prior to the purchase of the [south-west Sydney] property.) [25] An annual health assessment dated 18 December 2020 of Dr Vasundhara Kandanuru, [Angela's] GP at the time, notes a history a history of mild cognitive impairment in 2018. Dr Kandanuru records that at the date of the health assessment [Angela] was either 'slightly' or 'significantly' impaired' in managing many of her activities of daily living. For example she was noted to be significantly impaired in managing her finances and housework but only slightly impaired in relation to her ability to read and for personal care tasks. A Mini Mental State Examination (MMSE) conducted indicated [Angela] had moderate cognitive impairment."
6. At [27], the Tribunal recorded that Doug's principal concerns in relation to the management of Angela's financial affairs were: "(1) Treatment of loans made by [Angela] to her children and the role played by [Kim] in these arrangements which [Doug] considers was a breach of her fiduciary duties as an attorney; (2) Alleged conflict of interests on [Kim's] part in her role as [Angela's] attorney."
7. At [28], the Tribunal noted that Kim, not Margaret, was the focus of Doug's concerns, which was consistent with the outcome he was seeking: the removal of Kim as attorney, leaving Margaret as the sole attorney under the EPoA.
8. After referring to submissions made by Doug and the evidence about the 2019 Will and the arrangements made in relation to the loans made by Angela to her children in and after 2017 (the 2017 loan arrangements), the Tribunal went on to set out its findings and conclusions about the EPoA.
9. At [44], the Tribunal described its jurisdiction as 'protective' and its primary interest as being "the rights of those whose affairs can be managed on their behalf under the instrument once they have lost the ability to do so for themselves".
10. At [45], the Tribunal noted that attorneys are in a fiduciary relationship with the person whose affairs they manage; must act in the best interests of the principal and must not obtain a personal benefit other than specifically provided for in the EPoA. At [46], the Tribunal stated that if an attorney abused the power or improperly took benefits for themselves or others to the detriment of the principal or ultimately to the beneficiaries of the estate of the principal, it may be appropriate for the Tribunal to review a power of attorney and to make orders. At [48], the Tribunal said Kim and Margaret's fiduciary duties as attorneys commenced when they signed their acceptance of their appointments on 30 May 2017. The Tribunal said that the fact that a principal has executed an enduring power of attorney "does not prevent the principal from continuing to deal with his or her own finances" and that both the principal and the attorney "may be able to deal with the principal's property and financial affairs whilst the principal has capacity".
11. At [49], the Tribunal noted that Angela had been diagnosed with cognitive deficits in November 2017 but said that this was not incompatible with the attorneys' claim that they did not commence to use the EPoA and take over management of Angela's financial affairs until around May 2020. The Tribunal observed that, a diagnosis of cognitive impairment and dementia "of itself, does mean that someone is incapable of managing their financial affairs".
12. At [55], the Tribunal rejected Doug's claim that Kim had been managing Angela's financial affairs "since 2017 as she was no longer capable of doing so". Referring to the decision of the Appeal Panel in Latimer v Latimer, the Tribunal said that Doug's actions in entering into the purported residential tenancy agreement with his mother in May 2020 is inconsistent with his claim that Kim had been managing Angela's financial affairs since 2017 because she was no longer capable of doing so.
13. The Tribunal accepted, as Doug claimed, that Kim was involved in discussions with Angela about the 2017 loan arrangements in the lead-up to the making of the 2019 Will but found that the evidence did not "establish that this was a breach of her fiduciary duties as attorney": Reasons at [51].
14. At [51], the Tribunal considered the allegation made by Doug that in relation to the 2017 loan arrangements, Angela was subject to undue influence by Kim and Margaret in the sense described by Brereton J in Tulloch (deceased) v Braybon (No 2) [2010] NSWSC 650 at [39], [40]. At [52], the Tribunal found that while Angela might have been influenced by Kim and accepted her advice about matters relating to the management of her financial affairs, "the evidence is insufficient to establish that her will has been overborne by the either of the attorneys in relation to the treatment of loans", including the waiver of interest on Kim's loan documented on 5 June 2017: Reasons at [52].
15. With respect to the $75,000 loan made by Angela to Mark in 2018, the Tribunal found that that loan was at Mark's request and that the attorneys had not commenced to use the EPoA at that time: Reasons at [53]. Further, the Tribunal found that Kim had not breached her fiduciary duty as attorney by not arranging a formal loan contract because she considered Angela was still capable of making financial decisions for herself at that time: Reasons at [53].
16. At [57], the Tribunal concluded that it had decided not to exercise the discretion to make orders under s 36(4) of the Powers Of Attorney Act for the following reasons: "(1) In appropriate cases the need for the investigation and remedy of historical wrongs which continue adversely to affect the present welfare and interests of the person concerning whom the order is sought are undoubtedly relevant factors for the Tribunal to consider. This is not such a case. (2) In our view, our principal concern is with ensuring that appropriate arrangements are in place for the continuing management in her interests of [Angela's] affairs. We consider the evidence weighs in favour of the conclusion that [Angela]'s needs are being met. Moreover, we accept the evidence of [Kim], [Mark] and [Ted] that [Angela's] care expenses are being met and that she has sufficient means available to her to fund her care needs into the future. Further the evidence available does not support a finding that there has been any financial abuse or exploitation of [Angela] by her appointed attorneys. (3) It is difficult to reconcile [Doug's] stated position at the hearing that he wants the Tribunal to remove [Kim] as an attorney under the EPOA leaving [Margaret] remaining as the sole attorney, with his written submissions and evidence. Although most of his criticisms and concerns are directed towards [Kim] he makes specific criticism of [Margaret] making false statements to the Tribunal and having a conflict of interest in relation to the loan made to [Mark] in 2018 by [Angela] given she is [Mark's] wife. In any event [Margaret] does not want to act as sole attorney and she is seeking a continuation of her joint appointment with [Kim]. Both [Ted] and [Mark] also support a continuation of the current arrangements in place through the EPOA for the management of their mother's financial affairs. (4) In the absence of evidence of any mismanagement, maladministration or conflict of interests on the part of the attorneys we see no reason to disturb the arrangements [Angela] herself put in place to manage her financial affairs when she no longer had capacity to do so. We have reached the conclusion that, so far as the operation of the EPOA is concerned, there is no reason for us to intervene. We are not satisfied that it would be in the best interests of [Angela] to do so or that it would better reflect the wishes of [Angela]."

Statutory framework

1. On the application of an "interested person", NCAT may decide to review the operation and effect of a "reviewable power of attorney", or to not carry out such a review: Powers of Attorney Act, s 36(1). A "reviewable power of attorney" includes an "enduring power of attorney": Powers of Attorney Act, ss 33(1), 33(2). An enduring power of attorney is an instrument, "expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument": Powers of Attorney Act, s 19(1).
2. Unless expressly authorised in the instrument, an enduring power of attorney does not authorise an attorney to give a gift of all or any property of the principal to any other person, or to confer benefits on themselves: Powers of Attorney Act, ss 11(1), 12(1).
3. Section 36 of the Powers of Attorney Act states: 36 Interested persons may apply for review (1) Tribunal may review making or operation and effect of power. A review tribunal may, on the application of an interested person, decide to review the making, revocation or the operation and effect of a reviewable power of attorney or not to carry out such a review. (2) As a consequence of reviewing the making, revocation or operation and effect of a reviewable power of attorney, a review tribunal may decide whether or not to make an order under this section. (3) Orders relating to making of power of attorney. A review tribunal may make either or both of the following orders with respect to the making of a power of attorney: (a) an order declaring that the principal did or did not have mental capacity to make a valid power of attorney, (b) an order declaring that the power of attorney is invalid (either in whole or in part) if the tribunal is satisfied: (i) the principal did not have the capacity necessary to make it, or (ii) the power of attorney did not comply with the other requirements of this Act applicable to it, or (iii) the power of attorney is invalid for any other reason, for example, the principal was induced to make it by dishonesty or undue influence. (4) Orders relating to operation and effect of power. A review tribunal may, if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal, make any one or more of the following orders relating to the operation and effect of a power of attorney: (a) an order varying a term of, or a power conferred by, the power of attorney, (b) an order removing a person from office as an attorney, (c) an order appointing a substitute attorney to replace an attorney who has been removed from office by a review tribunal or who otherwise vacates the office, (d) an order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of an attorney and appointing a substitute attorney to replace the attorney who vacated office, (e) an order directing or requiring any one or more of the following: (i) that an attorney furnish accounts and other information to the tribunal or to a person nominated by the tribunal, (ii) that an attorney lodge with the tribunal a copy of all records and accounts kept by the attorney of dealings and transactions made by the attorney under the power, (iii) that those records and accounts be audited by an auditor appointed by the tribunal and that a copy of the report of the auditor be furnished to the tribunal, (iv) that the attorney submit a plan of financial management to the tribunal for approval, (f) an order revoking all or part of the power of attorney, (g) such other orders as the review tribunal thinks fit. ... (7) Orders may be subject to terms and conditions. An order made under this section may be made subject to such terms and conditions as the review tribunal thinks fit. (8) Further orders relating to accounts and information. If a review tribunal makes an order under this section directing an attorney to furnish accounts or other information, the tribunal may decide to make further orders for: (a) limiting the disclosure of accounts or other information by the attorney, and (b) inquiry and report on the conduct of the attorney. ...
4. If, on review of the operation and effect of a reviewable 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 the circumstances to do so) decide to treat that application for review as an application for a financial management order under Pt 3A of the Guardianship Act 1987 (NSW): Powers of Attorney Act, s 37(1); Guardianship Act, s 25F(d).
5. In Parker v Higgins [2012] NSWSC 1516, Slattery J considered the operation of s 36 of the Powers of Attorney Act and explained at [42], that ss 36(1)-(2) of that Act give the review tribunal a "two-step discretion". The review tribunal may first exercise a discretion to "decide to review" the operation and effect of a reviewable power of attorney or "not to carry out such a review": Powers of Attorney Act, s 36(1). If the review tribunal decides to exercise that discretion, it may exercise a further discretion "whether or not to make an order" under [s 36]": Powers of Attorney Act, s 36(2). Where, the review relates to the operation and effect of the power of attorney, "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 review tribunal may make one or more of the orders listed in s 36(4) of the Powers of Attorney Act, which include orders of the type sought by Doug in the initiating application to NCAT, that is, an order under s 36(4)(b) of that Act removing a person from office as an attorney.

Grounds of appeal

1. As a party to the proceeding before the Tribunal, Doug has a right to appeal from the decision under appeal to an Appeal Panel of NCAT on any question of law or, with the leave of the Appeal Panel, on any other ground: NCAT Act, s 80(2)(b).
2. In undated submissions filed on 31 October 2023, Doug largely abandoned the grounds of appeal listed in the notice of appeal and stated that he now relied on the following "revised grounds": "Error of law grounds (a) in deciding whether it was in the best interests of [Angela] to make an order under 36(4) of the POA Act and considering [Kim's] conduct for that purpose, the Tribunal, committing an error of law, confined its enquiry to: (A) whether there was evidence of [Kim's] 'mismanagement, maladministration or conflicts of interest' (57(4) of the Reasons) (a legal error); (B) whether [Kim] had engaged in conduct in her use of the EPOA or in her capacity as attorney ([48]-[52]). Ground for which leave is sought • (b) in circumstances where there was significant, objective evidence that a person who had been appointed attorney had taken advantage of a vulnerable, elderly person, but where the Tribunal had not directed itself to, or given proper consideration to, [Kim's] conduct …there had been a substantial miscarriage of justice for the reasons in cl 12(1) of Schedule 4 of [the NCAT Act]. Dealing with this appeal ground, special consideration should be placed on Tribunal's protective function."
3. In oral submissions, Doug further refined the ground on which leave to appeal was sought. He urged the Appeal Panel to grant leave to appeal on the basis that the finding that there was no evidence of "mismanagement, maladministration or conflicts of interest" constituted a factual error "unreasonably arrived at" and that it "gave rise to an injustice which is reasonably clear".

The wrong test

1. Doug contended that in considering whether it would be in Angela's best interests to order that Kim be removed as attorney or to make another type of order under s 36(4) of the Powers of Attorney Act, the Tribunal confined its enquiries to Kim's conduct in the use of the EPoA. By failing to consider, or to properly consider, Kim's "problematic and exploitative" conduct that did not involve the use of the EPoA, the Tribunal asked the wrong question, and, in turn, misapplied s 36(4) of the Powers of Attorney Act. Doug contended that the finding at 59 that there was no evidence "of any mismanagement … on the part of the attorneys…" should be read to mean no evidence "of any mismanagement … on the part of the attorneys in the use of their authority as attorneys …".
2. Doug identified Kim's conduct in relation to the following to be "particularly problematic": 1. the handwritten amendments to loan documents that advantaged her financially (5 June 2017) 2. the advance to Mark of $75,000 (31 October 2018) 3. the new Will executed by Angela (18 September 2019).
3. Doug contended that the above conduct (the impugned conduct) reveals that at a time when Kim believed, or at least suspected, that Angela was on the "cusp of losing capacity", she took steps to order Angela's financial affairs in a way that benefitted herself and perhaps other family members. That, by June 2017, Kim believed that Angela's cognitive abilities were so diminished that she could not work out her overall financial situation is demonstrated by the "extraordinary email" sent on 10 June 2017 to Doug and Margaret (the June 2017 email), in which Kim referred to Angela as "rambling", might or might not have understood her finances ("I think she understands this"), was forgetting things and had to have things explained to her numerous times.
4. Doug contended that the following extracts from the Reasons demonstrate that in considering Angela's best interests, the Tribunal confined its enquiries to Kim's conduct in the use of the EPoA: 1. in relation to the discussions about the loans and repayment arrangements with Angela in the lead up to the making of the 2019 Will, the finding that "the evidence does not … establish that this was a breach of her fiduciary duties as attorney" (emphasis added): Reasons at [50] 2. in relation to the 2019 Will, the statement that "it was not incumbent on [Kim] as attorney to have informed [Angela's] Solicitor of [Angela's] diagnosis of dementia in the context of her role as attorney" (emphasis added): Reasons at [50] 3. in relation to the loan made to Mark in 2018, the finding, "We do not consider that [Kim] breached her fiduciary duty as an attorney by not arranging a formal loan contract given she considered her mother was still capable of making financial decisions for herself at that time": Reasons at [53] 4. the conclusion that there was not a case where there was "need for the investigation and remedy of historical wrongs which continue adversely to affect the present welfare and interests of the person concerning whom the order is sought are undoubtedly relevant factors for the Tribunal to consider": Reasons at 57.
5. Finally, Doug contended that the second of the four reasons given by the Tribunal at [57] for concluding that Angela's best interests would not be served by exercising the discretion to make orders under s 36(4) of the Powers of Attorney Act - that Angela's care needs are being met and that she has sufficient means to fund her future care - demonstrates the narrow approach taken by the Tribunal to evaluating Angela's best interests. That Angela may be properly cared for and have sufficient funds to pay for her current and future care needs, does not answer, whether, given Kim's alleged misconduct, it is in Angela's best interests for Kim to remain as attorney.
6. Kim rejected Doug's argument that in considering Angela's best interests, the Tribunal confined its consideration to her use of the EPoA. That throughout the Reasons, the Tribunal referred to the allegation that acting as attorney, she breached her fiduciary duty to Angela, is hardly surprising given that was the primary submission advanced by Doug in the proceedings.
7. While the Tribunal did not make explicit findings about each of the numerous allegations levelled by Doug at Kim, it is implicit from the finding, stated at 59, that the Tribunal considered those allegations and saw no evidence of concern.

Consideration

1. The Powers of Attorney Act does not define the term "best interests" nor stipulate the matters which the Tribunal is to consider in deciding whether it is satisfied that it would be in the best interests of the principal to exercise the discretion to make orders under s 36(4) of that Act. The matters relevant to an assessment of the principal's best interests and the weight to be given to them is for the Tribunal to decide, having regard to the facts of the particular case and the protective purpose of the Powers of Attorney Act.
2. The question raised by this ground is whether, by its reasons, the Tribunal can be shown to have erred in its consideration of Angela's best interests by failing to have regard to the impugned conduct. In short, did the Tribunal fail to consider that conduct because it occurred before Kim commenced using the authority conferred under the EPoA? In answering this question, the structure and content of the Reasons must be considered.
3. After setting out the background to the application for review of the EPoA ([2]-[8]), the Tribunal considered the medical evidence relating to Angela's decision-making capacity ([21]-[25]) and went on to consider the evidence given and submissions made by the parties about the impugned conduct ([26]-[43]). Under the heading, "Review of operation and effect of EPOA", the Tribunal summarised the principles relating to the protective character of a power of attorney ([44]-[48]) and went on to make a series of findings in relation to the impugned conduct. Finally, at [57] the Tribunal gave four reasons for its decision not to exercise the discretion to make orders under s 36(4) of the Powers of Attorney Act.
4. The Reasons reveal that, despite rejecting Doug's argument that by mid-2017 Angela had lost capacity to manage her financial affairs and from that time her affairs were being managed by Kim and Margaret, the Tribunal nonetheless considered the impugned conduct.
5. At [32]-[33], the Tribunal summarised the evidence and the competing submissions made by the parties about the series of decisions made by Angela about loans to her children from mid-2017, including waiving the interest payable by Kim on her $280,000 loan (the 2017 loan arrangements).
6. At [34], the Tribunal summarised the allegation made by Doug that Kim and Margaret had breached their fiduciary duty to Angela by failing to ensure that a loan agreement was drawn up in respect of the 2018 loan made by Angela to Mark. At [52], the Tribunal rejected that claim reasoning that Kim considered that "[Angel]a was capable of making financial decisions for herself at that time." Further, the Tribunal concluded that it was unremarkable that a formal contract was not entered into given that the loan was in the nature of a "family arrangement". At [42] and [53], the Tribunal found that that loan was made at Mark's request.
7. At [52] after referring to Doug's submission that Kim had exerted "undue influence" over Angela, the Tribunal found that while Angela "might have been influenced by [Kim] and accepted her advice about matters to do with the management of her financial affairs, the evidence is insufficient to establish that her will has been overborne by either of the attorneys", including in relation to the waiver of interest on Kim's loan.
8. With respect to the 2019 Will, at [50] the Tribunal accepted that Kim had been involved in discussions about the loans and repayment arrangements with Angela in the lead up to the making of that will. However, the Tribunal found that this did not establish that Kim had breached her fiduciary duties as attorney.
9. It is in the context of those findings that the Tribunal's dispositive reasoning at [57], must be considered.
10. For the following reasons, we reject Doug's argument that the Tribunal confined its enquiry to Kim's alleged misuse of the EPoA: 1. It requires the finding at 57 to be read in isolation from the Tribunal's previously stated findings, including that, contrary to Doug's submission, Angela continued to manage her affairs until 2020 (at [56]); that while Angela might have been influenced by and accepted the advice of Kim in relation to her financial affairs, the evidence did not establish that her will was overborne by Kim (at [52]). 2. It is inconsistent with the finding stated by the Tribunal at 57, "the evidence available does not support a finding that there has been any financial abuse or exploitation of [Angela] by her appointed attorneys" (emphasis added). 3. Given that no complaint was made about any aspect of Kim and Angela's conduct after 2020, it cannot reasonably be suggested that by the statement, "the absence of evidence of any mismanagement, maladministration or conflict of interests on the part of the attorneys", the Tribunal was referring to something other than the impugned conduct.
11. Read fairly and as a whole, the Reasons do not support the contention that the Tribunal failed to consider the impugned conduct in assessing whether it would be in Angela's best interests to remove Kim as attorney or make any other type of order under s 36(4) of the Powers of Attorney Act.

Leave ground

1. Doug submitted that if he failed to persuade us that the Tribunal had applied the wrong test, leave to appeal should be granted because the finding that there was no evidence of "any misconduct mismanagement, maladministration or conflict of interests on the part of the attorneys" (the impugned finding), constitutes a factual error "unreasonably arrived at" and one which "gave rise to an injustice which is reasonably clear".
2. Doug contended that there was significant, objective evidence of Kim's misconduct. At a time when she believed Angela's capacity to be impaired, Kim took advantage of Angela by arranging for the interest payable on her $280,000 loan to be forgiven and then proceeding to orchestrate changes to Angela's will. The June 2017 email demonstrated that 10 days after Angela made the EPoA, Kim sought to drive through changes to Angela's financial affairs, which would advantage herself and possibly her siblings. That email evidences that Kim saw her role as structuring Angela's will and financial affairs, albeit with the tokenistic caveat that Angela would need to "approve" the plan.
3. Further, Kim admitted that she "helped Mum facilitate" the loan made to Mark in 2018. However, despite her belief about Angela's declining capacity she took no action to protect Angela's interests to ensure that she received independent legal advice or to arrange for a formal loan agreement to be put in place.
4. Kim rejected the contention that there was significant, objective evidence of misconduct by her. She contended that contrary to the suggestion that she acted in secrecy in relation to the waiver of interest payable on her loan, the June 2017 email sets out in excruciating detail the various proposals she had discussed with Angela about restructuring her affairs, which included forgiving the interest payable on that loan. She pointed out that the Tribunal had before it evidence from her and Margaret about how the 2017 loan arrangements were devised and implemented and accepted that evidence.
5. Further, Kim contended that Doug's challenge to the impugned finding fails to identify how that finding gave rise to an injustice to Angela. She points out that it is not in dispute that Angela is being well cared at home by herself and other family members. Angela has more than adequate means to meet any current or future care needs, whether she continues to live at home or moves to residential aged care.
6. Ted argued that the impugned finding must be seen in the context of the history of Angela assisting her children financially over several decades. The 2017 loan arrangements are entirely consistent with that history.
7. Ted disputed Doug's claim that the 2017 loan arrangements and the subsequent revision to Angela's will disproportionally advantaged Kim. He submitted that it is telling that Doug failed to mention either the $42,000 he was given by Angela in 2017 or that, as a consequence of the changes made by Angela to her will, in addition to their quarter share of the residue of Angela's estate, all of Angela's children except Kim received a significant bequest, Doug receiving the largest.
8. Ted contended that the financial decisions made by Angela between 2017 and 2020 are entirely consistent with her expressed wish to treat her children equally. He asserted that it is extremely difficult, if not impossible, to compare the relative benefit to borrowers of loans which commenced at different times, for different durations, and in different interest rate climates. The approach taken by Angela was a common-sense approach designed to achieve equity among her children.

Principles governing grant of leave

1. In Collins v Urban [2014] NSWCATAP 17 (Collins), an Appeal Panel of NCAT noted at [84] that to grant leave to appeal under s 80(2)(b) of the NCAT Act, there must be a "sound basis" for granting leave. The Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." (Citations omitted)
2. Where, as here, the decision under appeal was made by the Guardianship Division, in the exercise of the discretion to grant leave to appeal is the protective character of the jurisdiction exercised by that Division must be considered: C v W [2015] NSWSC 1774 at [44]-[46]; BPY v BZQ [2015] NSWCATAP 33 at [33]-[34]; ZII v ZIJ [2018] NSWCATAP 255 at [60].

Consideration

1. Doug's challenge to the impugned finding side steps a key finding made by the Tribunal that up until 2020 Angela was managing her finances free from undue influence of either Kim or Margaret.
2. The main evidence on which Doug relies to support his argument that the impugned finding constitutes a factual error unreasonably arrived at, is the June 2017 email sent by Kim to Doug and Margaret. As Doug points out, that email contains several jarring statements, including "we need our loans set in stone", "we need to work this out first and approve it as fair together and then explain it to Mum and get approval". However, that email is consistent with Kim's evidence that she had discussed with Angela several proposals to restructure Angela's financial affairs and revising her will. Critically, that email must be read in the context of the unchallenged finding that while Angela might have accepted Kim's advice about her financial affairs, her will was not overborne by Kim: Reasons at [52]. It is implicit from the Reasons that the Tribunal accepted the evidence given by Kim and Margaret about the management of Angela's financial affairs before 2020.
3. Underlying the challenge made to the impugned finding, is the assertion that the 2017 loan arrangements, together with the subsequent revision to Angela's will, significantly and disproportionately advantaged Kim, which Doug contended would have been inconsistent with Angela's wish to treat her children equally. Undoubtedly, Kim was advantaged by the waiver of interest on her loan, the largest of the loans Angela made to her children. However, Angela's subsequent revision to her will is consistent with her reported wish to treat her children equally. Whether those revisions in fact achieved that stated wish is not to the point. They could not be said to evidence a departure from Angela's previously expressed wishes.
4. In circumstances where the Tribunal found that when Angela made the loan to Mark in 2018, she was "still capable of making financial decisions for herself", it is not apparent how it could be argued that any act or omission by Kim (or Margaret) evidenced "mismanagement, maladministration or conflict of interest".
5. The challenge to the impugned finding, in truth, is an expression of disagreement with that finding. On the available evidence, that finding was reasonably open to the Tribunal. Leave to appeal is refused.

Orders 1. Appeal dismissed. 2. Leave to appeal is refused.

Annexure A Party Pseudonym Fictitious name Appellant YGM Doug First Respondent YGN Angela Second Respondent YGO Kim Third Respondent YGP Margaret Fourth Respondent YGQ Ted Fifth Respondent YGR Mark Sixth Respondent NSW Trustee and 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: 02 February 2024