YJB v YJC

YJB v YJC - [2024] NSWCATAP 221 - NSWCATAP 2024 case summary — Zoe

[5]

The sisters make applications to NCAT

On 18 October 2023, Susan applied to NCAT seeking review of the making of, and the operation and effect of, the 2022 EPoA and the reinstatement of a "lapsed power of attorney". In that application, Susan claimed that Noel lacked capacity to make the 2022 EPoA. In addition, Susan made various allegations including that, acting as attorney, Violet had withdrawn approximately $50,000 from Noel's bank account.
In a letter dated 1 November 2023, Violet said she wished to resign as Noel's attorney and enduring guardian and that she could not work with Susan.
On 8 December 2023, Susan applied to NCAT to withdraw the application she made to NCAT in October 2023. Susan said that as she had now been appointed as attorney, she was able to address her concerns about Violet's actions in relation to Noel's finances.
On 14 December 2023, Violet applied to NCAT seeking review of the 2023 EPoA which had appointed Susan as Noel's attorney. Violet requested that that appointment be revoked and that the 2022 EPoA be reinstated. In that application, Violet claimed that Noel had been pressured by Susan to appoint her as his attorney. In addition, Violet said that in the previous 12 months, Noel's dementia had markedly declined and he had not intended to, and could not recall, revoking the 2022 EPoA; that Susan was using the 2023 EPoA to prevent Noel from having a relationship with Violet; and, that Susan has a been a limited life expectancy as a result of a recently diagnosed serious medical condition and was not in the right mind to be able to act as Noel's attorney. In addition, Violet applied to NCAT seeking review of the purported appointment of Susan as his enduring guardian. Decision under appeal
At a directions hearing on 20 December 2023, the Tribunal (J Moir, Senior Member (Legal)) consented to the application made by Susan on 8 December 2023 to withdraw her application made in October 2023 seeking review of the 2022 EPoA: NCAT Act, Sch 6, cl 10. In addition, the Tribunal ordered that Noel be separately represented in the proceedings: NCAT Act, s 45(4)(c).
On 23 February 2024, the Tribunal (J Moir, Senior Member (Legal), M Bain, Senior Member (Professional), P Davidson, General Member (Community)) considered the application made by Violet in December 2023 seeking review of the purported 2023 EGA and the 2023 EPoA (the Application). At the conclusion of that hearing, the Tribunal: 1. exercised the discretion conferred by s 6K(3)(a) of the Guardianship Act 1987 (NSW) to treat the application for review of the 2023 EGA as an application for a guardianship order; and 2. under s 14 of the Guardianship Act, made a guardianship order in respect of Noel and appointed Violet as guardian for a period of 12 months with the functions of accommodation, health care, services, and authority to consent to medical and dental treatment.
Because of lack of time, the Tribunal adjourned the application for review of the 2023 EPoA. Following a hearing on 3 April 2024, the Tribunal: 1. exercised the discretion conferred by s 36(1) of the Powers of Attorney Act 2003 (NSW) to review the revocation of the 2023 EPoA; 2. exercised the discretion conferred by s 37(1) of the Powers of Attorney Act to treat the application for review of the 2023 EPoA as an application for a financial management order under the Guardianship Act; and 3. made a financial management order in respect of Noel's estate appointing Violet as the financial manager of that estate.
In written reasons for those decisions provided to the parties on 26 June 2024 (the Reasons), the Tribunal noted at [38] that while Violet sought review of Susan's appointment as enduring guardian said to have been made on 18 October 2023, there was no evidence that Noel had appointed Susan as enduring guardian at that time. At [37]-[43], the Tribunal detailed the history of appointments made and revoked by Noel and concluded that at the time of the hearings, the "best available evidence" was that : 1. there were four unrevoked instruments made between 20 August 2020 and 24 January 2024 appointing Violet, Susan and Ms Timms as enduring guardians; and 2. there was one unrevoked general power of attorney, and two unrevoked EPoAs appointing Susan and Ms Timms as attorneys.
On 29 April 2024, Susan lodged an internal appeal against the decision of the Tribunal to appoint Violet as guardian and financial manager for Noel. On the same day, she applied for a stay of the operation of that decision. Susan requested the Tribunal to reinstate the appointments of herself and Ms Timms as Noel's enduring guardians and attorneys.

[6]

Review of the purported 2023 EGA

In its Reasons, the Tribunal summarised the history of the appointments of enduring guardians and attorneys made by Noel, the background to the applications made to NCAT, and the expert evidence regarding Noel's health care needs and cognition: [53]-[56].
The Tribunal also detailed the submissions made by Susan, Violet, and Ms Timms. In addition, the Tribunal summarised the views of Noel ([62]-[65]) together with the submissions made by Mr Cruz (Noel's solicitor in the first hearing) and the Separate Representative, Ms Barbara Lu: [71]-[82].
In the context of reviewing Susan's purported appointment as enduring guardian in October 2023, the Tribunal found that there was no evidence that Noel had made that appointment. The Tribunal noted that Noel had made a series of appointments and, as a consequence, four enduring guardianship appointments were now in effect, including three appointing Susan and Violet which predated Violet's application to NCAT: at [83]. The Tribunal concluded that it was not in Noel's interests that there be multiple enduring guardians "unless there is minimal risk of the appointees being in conflict with each other about what is best for him if they are called on to make decisions". The Tribunal found that there was "no realistic possibility" that Violet, Susan and Ms Timms would be "able to work co-operatively as enduring guardians". Applying that analysis, the Tribunal decided it was in Noel's best interest to exercise its discretion to treat the application for review made of the purported 2023 appointment as an application for a guardianship order as permitted by the Guardianship Act, s 6K(3): at [85].
The Tribunal found that Noel is a "person in need of a guardian" within the meaning of s 14(1) of the Guardianship Act and therefore the discretion to make a guardianship order could be exercised. The Tribunal found Noel's cognitive decline arising from Alzheimer's and vascular dementia indicated that Noel is at least partially incapable of managing his personal affairs: at [93]. The Tribunal noted that, given the history of conflict between Susan and Violet, the enduring guardians are unlikely to agree on important matters regarding Noel's care and support. The Tribunal found that it was not consistent with Noel's interests and welfare to allow the current arrangement to continue: at [96].
Having decided to make a guardianship order, the Tribunal went on at [101]-[118] to consider whom to appoint as Noel's guardian. Violet, Susan and Ms Timms each nominated to act as Noel's guardian.
At [101]-[102], the Tribunal noted correctly that pursuant to s 15(3) of the Guardianship Act it was not permitted to appoint the NSW Public Guardian if an order could be made appointing an individual as Noel's guardian. In addition, the Tribunal noted that it must be satisfied that any proposed guardian met the requirements in s 17(1) of the Guardianship Act: 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 of 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. …
The Tribunal found that each of the three proposed guardians had personalities which were generally compatible with Noel, each was willing to undertake that role, and there was no undue conflict of interest which would impact on their ability to act as guardian: at [110]. The Tribunal then considered whether, as required by s 17(1)(c) of the Guardianship Act, each was able to exercise the functions conferred by the guardianship order in a manner consistent the general principles in s 4 of the Guardianship Act (the section 4 principles) which state: 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.
At [111], the Tribunal found that Violet was able to exercise the functions conferred by the guardianship order. The Tribunal found that Violet had been very active in assisting Noel's "transition from independent living to supported living, particularly over the past two to three years". The Tribunal noted that Violet's evidence was consistent with the evidence given by other people involved in his care, together with statements made in numerous medical, ACAT (Aged Care Assessment Team), and carer reports. The Tribunal found that Violet has actively participated in Noel's care and support, both informally, and as his enduring guardian and attorney. The Tribunal accepted Violet's undertaking that she would not interfere with Noel's relationships with others and that she would communicate with Susan. In addition, the Tribunal found that Violet "has a proven track record in organising and making decision[s] on behalf of her father in his interests": at [117].
At [112]-[116], the Tribunal considered Susan's suitability to be appointed as Noel's guardian. The Tribunal concluded that Susan is not a suitable person to be appointed as guardian. The Tribunal noted that Susan has demonstrated an inconsistent understanding of her father's capacity and needs and the role of enduring guardian. In addition, the Tribunal found that she has not acted to preserve Noel's existing family relationships but has inflamed existing tensions. Further, she was not able to demonstrate that the approach she would take as a guardian would be consistent with the section 4 principles, particularly having regard to preserving Noel's existing family relationships: at [116].
Whilst the Tribunal was satisfied that Ms Timms was suitable to be appointed, the Tribunal found that it would be difficult for her to undertake the role of guardian without continuing to be strongly influenced by Susan with whom Ms Timms has a very close relationship. The Tribunal found that it is consistent with Noel's interests and welfare to appoint Violet as Noel's guardian: at [117].

[7]

Review of the 2023 EPoA

The Tribunal decided to review the 2023 EPoA because of the evidence of uncertainty and conflict about the management of Noel's financial affairs under successive EPoAs": at [121].
The Tribunal found that the "current arrangement is clearly dysfunctional and not meeting [Noel's] need for clarity and consistency about who is managing his affairs, and access to money for his own day to day expenses": at [130]. The Tribunal concluded that the outcome that would be most consistent with Noel's best interests could not be achieved by making orders under s 36 of the Powers of Attorney Act. Rather his interests are likely to be "best served by a financial management order where the management of his finances is overseen by the NSW Trustee and Guardian, to try and alleviate concern about financial abuse": at [128]. The Tribunal found that Noel was not capable of managing his financial affairs, there was need for another person to manage his affairs and that it was in Noel's best interests that a financial management order be made.
Having decided to make a financial management order, the Tribunal proceeded to consider who to appoint to manage Noel's finances. The Tribunal considered and found not proven, several allegations made by Susan about Violet's handling of Noel's finances: [150]-[153]. The Tribunal said it had "no concern about the appropriateness of [Violet's] management of his affairs": [153].
At [153], the Tribunal considered Violet's plan to manage Noel's finances if appointed manager and her skills and qualifications to undertake that task.
The Tribunal went on to consider whether it would be to Noel's benefit to appoint the NSW Trustee and Guardian, rather than a private manager, and decided against that option. The Tribunal reasoned "although there is some advantage in an independent financial manager in circumstances of conflict and distrust, this would come with the disadvantage of reduced accessibility and flexibility for [Noel] which is an unnecessary imposition on his autonomy": at [160]. The Tribunal said: "Given [Violet's] suitability for the role, her experience in record keeping, and her demonstrated responsiveness to her father's needs, the Tribunal was satisfied that her appointment as financial manager strikes an appropriate balance between accessibility and accountability."

[8]

Grounds of appeal

As a party to proceedings before the Tribunal, Susan has a right to appeal the decision under appeal, an "internally appealable decision", on any question of law or, with the leave of the Appeal Panel, on any other ground: NCAT Act, s 80(2)(b).
To bring an appeal on a question of law, Susan must identify with precision the question of law said to be raised by the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. Susan failed to undertake that task in the notice of appeal and submissions in support. Nonetheless, adopting the "more generous or benevolent approach" endorsed by the Court of Appeal (Griffiths AJA, Meagher and Kirk JJA agreeing) in Kudrynski v Orange City Council [2024] NSWCA 33 at [50]-[51], we considered whether on the material filed by Susan in this appeal together with her oral submissions, as a matter of substance, there existed a question of law to be considered.
Having undertaken that analysis, we concluded that the following questions of law can be discerned: 1. Whether in circumstances where Noel has a hearing impairment, the Tribunal failed to afford Noel procedural fairness by failing to take such measures as are reasonably practicable to ensure that he had a reasonable opportunity to participate in the hearings on 23 February 2024 and 3 April 2024. 2. Whether the Tribunal was biased against Susan because it had regard to "illegally obtained" material about her health. 3. Whether, as required by s 4(d) of the Guardianship Act, the Tribunal had failed to have regard to the views of Noel in determining the applications made by Violet to NCAT.
In addition, Susan seeks leave to appeal on the ground that the findings made by the Tribunal about Noel's capacity to manage his personal and financial affairs are against the weight of evidence.
Further, Susan seeks leave to appeal on the basis of "fresh evidence" said by Susan to demonstrate Violet's unsuitability to act as Noel's guardian and financial manager.

[10]

Consideration

The Tribunal was required to observe the rules of natural justice, or, as they are now more commonly referred to, the rules of procedural fairness: NCAT Act, s 38(2). Reflected in s 38(5)(c) of the NCAT Act, those rules required the Tribunal to take such measures as are reasonably practicable to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".
Noel participated in both hearings by audio visual link (AVL). At the time of the first hearing on 23 February 2024, he was staying with Susan at her home in regional NSW. He participated in the second hearing on 3 April 2024 from his home in regional NSW accompanied by a paid support worker. Susan did not attend the second hearing.
Referring to the hearing on 23 February 2024 at [12] the Tribunal said: "12 At the time of this hearing [Noel] was staying with [Susan] at [xxx]. Because [Noel] has some hearing impairment, it was not possible for him to hear and contribute based on the sound quality available from the speaker on [Susan's] computer. There was considerable time taken at the start of the hearing to ensure that [Noel] was able to hear the proceedings and participate in an informed way. After some efforts by [Susan and Mr Tyson] who were both with [Noel], and the Tribunal providing suggestions and feedback, a solution was found where [Noel] confirmed that he was able to hear what was being discussed and was therefore able to provide his views. The Tribunal was satisfied that [Noel] was given the best opportunity to participate meaningfully in these proceedings and was satisfied that the views that he expressed were based on him having heard what was explained and discussed."
In the hearing of the appeal, Susan agreed, as recorded in the Reasons at [12], that at the start of the hearing, after she had adjusted the speakers on her computer, the quality of the sound improved. She conceded that after those adjustments were made, Noel was able to hear some of what was said but insisted that he could not hear everything that was said.
As the appellant in this appeal, it falls to Susan to establish the factual premise on which this ground of appeal rests, that Noel was largely unable to hear what was said during the two hearings. While there is no dispute that Noel has a hearing impairment for the following reasons, the premise on which this ground rests is not established.
First, Susan's claim that Noel was unable to hear what was being said during each hearing is largely unsupported. The transcript on which Susan relies is consistent with what the Tribunal recorded at [12], that at the commencement of that hearing there were problems with the speakers on Susan's computer and, with the assistance of the Tribunal, she and Mr Tyson took steps to rectify those problems. Susan failed to provide the transcript of the first hearing day after those adjustments were made. Nor did she provide the transcript of the second hearing day.
Second, the claim that Noel was unable to participate in the hearing because he could not hear what was being said is inconsistent with the numerous references in the Reasons to statements made by Noel throughout the hearings in response to questions asked by the Tribunal. For example, the Tribunal recorded that: 1. in response to Susan's request that the second day of the hearing be adjourned, Noel said he "preferred to get the hearing over and done with, but was not strongly opposed to it being adjourned": at [16]; 2. in answer to the Tribunal's question about Violet's allegation that he is frustrated by Susan's handling of his financial affairs and his debit card being declined, Noel said "he didn't recall he had had much of a problem with purchases being declined": at [16]; 3. at the hearing Noel said he "agreed he has mild dementia and can forget things"; he "estimated he was about 75-78% able to manage for himself": at [64]; 4. when asked by the Tribunal about his understanding of his current enduring guardian and attorney arrangements, Noel said "he does not recall why he changed things recently, though he probably had a reason. He was not sure who he appointed to look after his money, but thought it was probably [Susan]": at [65]; 5. in response to whether a guardianship order should be made, Noel did "not offer a clear view … either in favour, or in opposition": at [99]; 6. in response to who should be appointed as guardian Noel said he was willing for Susan, Violet, and Ms Timms to act as his guardians. However, he was not "able to assist with any suggestions how to resolve the issue of their incompatibility": at [109]; 7. as to whether he was capable of managing his finances, Noel said he "wants some help with looking after his money now". He suggested that his "carers may be able to do this with his day to day money, and that maybe he could look after the larger matters himself": at [129]; 8. as to who should be appointed manager Noel said that he "would be happy with either [Violet or Ms Timms]": at [156].
Finally, while this factor is not conclusive, we note that Noel's participation in the appeal hearing did not support the claim that he was unable to participate in a hearing conducted by AVL. Throughout that hearing he gave responsive answers to questions asked.
The real complaint made by Susan appears to be the Tribunal's refusal to accede to her request that Mr Tyson be permitted to act as Noel's "lip reader". We understand Susan to suggest that this would have involved Mr Tyson repeating to Noel what was said by the Tribunal and the participants in the hearing, and Noel in turn would read Mr Tyson's lips. In circumstances where there was a high level of conflict between Susan and Violet; where each had suggested the other was seeking to manipulate Noel; where Mr Tyson was a friend of Susan's; where there was no evidence that if Mr Tyson were to act as lip reader in the manner proposed by Susan, that Noel would be better able to participate in the proceedings, the fact that the Tribunal decided to refuse to accede to Susan's request is unremarkable. It could not reasonably be suggested that by refusing to accede to Susan's request the Tribunal failed to take such steps as are reasonably practicable to ensure that Noel had a reasonable opportunity.
The premise on which this ground rests is not established. This ground of appeal must be rejected.

[15]

Tribunal considers the impugned material

At [68], the Tribunal recorded that Ms Timms's second statutory declaration "seemed incongruous with all of the other evidence being presented about [Susan's] competence to act as [Noel's] enduring attorney and enduring guardian". The Tribunal recorded that that statutory declaration had been prepared in support of an application made by Susan to the National Disability Insurance Agency, which Susan gave to the Tribunal in error. The Tribunal went on to record that Susan said that the information recorded in Ms Timms's second statutory declaration is "no longer accurate and that she is improving and dealing better with stress". In her opinion she "is not struggling from a cognitive perspective".
At [69], after referring to Susan's objection to the impugned material asserting that "her health issues are private and not relevant to these proceedings", the Tribunal said it "gave little regard to evidence submitted by others which provides details of her medical condition beyond a fairly simple account" and, gave as examples, the statutory declaration prepared by the Cousin and the CT scans said to be relevant to Susan's medical condition submitted by Violet. However, the Tribunal took a different approach to Ms Timms's second statutory declaration, reasoning at [69] that it "is relevant both in relation to [Susan's] own capabilities and the reliability of her evidence".
In considering whom to appoint as Noel's guardian, and specifically whether the three proposed guardians satisfied the requirement to be able to exercise the functions conferred by the proposed guardianship order (Guardianship Act, s 17(1)(c)), the Tribunal returned to consider Ms Timms' second statutory declaration: at [101]-[118]. At [114], the Tribunal said that Susan was "not straightforward in her evidence, and presented whatever account might best suit her purpose at the time". It went on to give several examples including Susan's claim that Violet had failed to inform her about the purchase of Noel's car, which was inconsistent with the records of the text messages between Susan and Violet over the period of that sale, together with Ms Timms' second statutory declaration. At [115], the Tribunal commented: "By one account [Susan] is a highly functional and organised carer, and by the other account she is unable to function at the most basic level for herself. The marked disparity in [Susan's] evidence, depending on the purpose to which it was to be put, calls into question the reliability of her evidence generally."
At [116], the Tribunal concluded: "On balance, the Tribunal was satisfied that [Susan] has demonstrated an inconsistent understanding of her father's capacity and needs, and the role of enduring guardian. She has not acted to preserve his existing family relationships, but has inflamed existing tensions. She was not able to demonstrate that the approach she would take as guardian would be consistent with the principles of the Act, particularly having regard to preserving his existing family relationships. On this basis, she is not a suitable person to be appointed as guardian."

[17]

Consideration

In support of the contention that the Tribunal was biased, Susan relies solely on the Tribunal's decision to admit into evidence the impugned material. While not put in these terms, the effect of her submissions is that the most likely explanation for the Tribunal's decision to appoint Violet and not herself as Noel's guardian and manager was that the Tribunal was prejudiced against her on account of having considered the impugned material. Notably, Susan does not rely on the reasons for decision to demonstrate bias by the Tribunal, announcing at the appeal hearing that she had not reviewed them.
The contention that the Tribunal failed to objectively assess Susan's suitability to act as her father's guardian is not established for the following reasons:
First, contrary to Susan's assertion, the Tribunal gave little weight to the impugned material tendered by Violet and the Cousin. There is nothing in the Reasons to suggest that the Tribunal considered Susan's health relevant to its assessment of her suitability to act as Noel's guardian or financial manager.
Second, the adverse finding made by the Tribunal - that she was "not straightforward in her evidence, and presented whatever account might best suit her purpose at the time" - does not demonstrate as Susan appears to suggest, that the Tribunal had prejudged, or failed to objectively assess her suitability to act as guardian. The Tribunal was entitled, as it did, to draw an adverse inference about the reliability of Susan's evidence based on the inconsistences between the contents of Ms Timms's second statutory declaration, the balance of the evidence given by Ms Timms and the evidence given by Susan herself. In SCAA v Minister for Immigration & Multicultural and Indigenous Affairs [2000] FCA 668 at [38], von Doussa J explained: "… Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision."
At its highest this ground rests on Susan's subjective belief that the most likely explanation for the Tribunal's decision not to appoint her as Noel's guardian and manager was because it was biased against her. There is no cogent evidence to support that belief. Nor can it be inferred from the adverse finding made by the Tribunal about Susan that the Tribunal had not been open to persuasion or had prejudged her suitability to act as guardian or manager or any other issue that fell to be determined in the proceedings.
This ground of appeal is rejected.

[20]

Consideration

At [63], the Tribunal recorded that in the statement prepared by Noel dated 9 February 2024: "(1) [Noel] provides his details, his current situation, living in his unit in [xxx] with [Noel's dog] and with carers who visit him. He states that [Susan's] guardianship arrangement is working well as he can trust her and converse with her. He states he has not had any problems with [Susan] as his guardian. He does not recall whether he wanted to change the power of attorney or enduring guardianship arrangement in October 2023. He does not recall interacting with a law firm called MJO Legal in November 2023 about wanting to change the current arrangements. (2) He describes his relationships with [Susan and Violet], noting that [Susan] is calm and stable and has helped look after him in the past when he has needed it. He refers to his relationship with [Violet] as more 'fully charged', stating that he has 'had a few bounds (sic) with [Violet] but she has settled down now' He says he was disappointed when [Violet] took his car and trailer when she wasn't supposed to and observed that she was '.. a little bit disjointed at the time'. He also notes that [Violet] has taken a considerable amount of money around $50,000 out of his account. He doesn't think it has all being returned but believes that she has made an effort to repay it. (3) He wants [Susan] to remain as his guardian but also wants whatever has happened with [Violet] to be forgotten and smoothed over. He states 'I feel that if I became ill that [Susan] would be reliable to take care of me. [Susan] has been stable all her life'. He also states that he would like [Ms Timms] to be jointly appointed with [Susan]. He states that he does not want the NSW Trustee to be his guardian because he doesn't know where they would send him and someone told him that if they were appointed he would not be able to keep [Noel's dog]."
The Tribunal went on to record the oral evidence given by Noel about who he had recently appointed to manage his personal and financial affairs. At [65], the Tribunal recorded: "[Noel] was not sure who he appointed to look after his money, but thought it was probably [Susan]. He said that he thought that [Violet] was still enduring guardian and attorney. She has been there the longest and he wants her to stay in this role - he hoped that he had not revoked her appointment, but didn't think he had. He would like his daughters to be able to work together, but they don't seem to be able to stop fighting."
Later, having decided to make a guardianship order in respect of Noel, the Tribunal considered whom to appoint as guardian. The Tribunal recorded at [109] that Noel said that he was willing for Susan, Violet and Ms Timms to be appointed as his guardians. With respect to the appointment of a manager, the Tribunal recorded at [156] that Noel said he "would be happy with either [Violet] or [Ms Timms]".
Susan appears to contend that the Tribunal's decision not to confirm her appointment as enduring guardian and attorney and to proceed to make guardianship and financial management orders appointing Violet as guardian and manager, demonstrates that the Tribunal failed to have regard to Noel's views. For these reasons we reject that contention:
First, it misstates the evidence to claim that Noel had expressed a preference for Susan to be appointed over Violet. Noel had in fact expressed conflicting views. While in his statement dated 9 February 2024, Noel said that he wanted Susan to remain as his guardian and to make important financial decisions on his behalf, in the hearing conducted two weeks after making that statement, Noel expressed a different view. At that hearing, Noel said that he was willing for Susan, Violet and Ms Timms to be appointed as his guardians and Violet or Ms Timms to be appointed to manage his financial affairs.
Second, the decision not to confirm Violet's appointment under the 2023 EPoA, was based on the finding that were multiple EPoAs in existence and that it was not in Noel's interest to permit the "clearly dysfunctional" arrangements in relation to his finances to continue. The reason for proceeding to make a guardianship order was made for largely the same reason with the Tribunal finding that there was no realistic probability that Susan, Violet and Ms Timms would be able to work together cooperatively: at [84]. Noel's wishes were not relevant to those assessments.
Third, as the summary of the statements made by the Noel in the course of the proceedings summarised at [53] above demonstrate, the Reasons are replete with references to Noel's views about various matters relevant to the determination of the Application. The Reasons demonstrate that the Tribunal considered those views.
Finally, as to the claim that the Tribunal had refused to give Noel leave to be legally represented at the second hearing, which Susan contends is further evidence of the Tribunal's failure to have regard to Noel's wishes, Susan is mistaken. After the first hearing in which he appeared, the solicitor who had represented Noel in the first hearing, wrote to the Tribunal and advised that he was no longer acting for Noel and would not be participating in the second hearing: Reasons at [13].
The contention that the Tribunal failed to have regard to Noel's views is not established. This ground of appeal must be rejected.

[23]

The capacity findings

Before considering whether, as asserted by Susan, the capacity findings were against the weight of evidence, it is first necessary to set out those findings.
In the context of deciding whether the discretion to make a guardianship order could be exercised the Tribunal found that Noel was "a person in need of a guardian", that is, "a person who, because of a disability, is totally or partially incapable of managing his … person": Guardianship Act, ss 14(1), 3(1). The Tribunal found "as a consequence of cognitive decline arising from Alzheimer's on a background of vascular dementia, [Noel] is at least partially incapable of managing his person, including making important life decisions": at [93].
In the context of deciding whether the discretion to make a financial management order could be exercised the Tribunal found that Noel "is not capable of managing his financial affairs": at [139].
We refer to these findings together as the "capacity findings".
At [54], in a detailed table, the Tribunal summarised the available expert evidence for the period July 2020 to February 2024. That table revealed a range of opinions about Noel's cognition and included: 1. A report dated 7 July 2020 in which geriatrician Dr Tyagi, noted that a CT scan of Noel's brain revealed "mild subcortical ischaemic vascular changes and subtle cerebellar atrophic changes." Dr Tyagi diagnosed mild cognitive impairment, vascular with possible impact from alcohol use. 2. Several reports prepared by geriatrician, Dr Benito. In the most recent of those reports dated 30 March 2022, Dr Benito said "I think his cognitive impairment is still mild and it has minimal day-to-day impact." 3. Several reports prepared by geriatrician, Dr Milne. In the most recent of those reports dated 23 January 2024, Dr Milne wrote that in his opinion Noel "suffers from mild cognitive impairment secondary to cerebral vascular disease and a history of excessive alcohol intake". Dr Milne stated that he had not undertaken "any formal capacity tests". 4. An ACAT assessment report dated 23 February 2024 which recommended that when Noel returned home (he was then living with Susan) he received increased care, a "Home care package level 4". The authors of that report noted "declining independence and increased care needs … [r]equires instructions and prompting with all IADLS (instrumental activities of daily living) on a daily basis". 5. Several letters prepared by various GPs, including Dr DaVood Moghadam. In a letter dated 16 December 2022, Dr Moghadam wrote "[b]ased on the assessments [Noel] is assessed as Level 3 cognitive capacity and he has early dementia and in my opinion he is unable to make his own decisions". In a subsequent letter dated 25 October 2023, Dr Moghadam wrote: "This letter is to certify that [Noel] has the capacity to make decisions for himself per his request".
At [86]-[93], the Tribunal returned to consider the expert evidence in the context of deciding whether Noel was "a person in need of a guardian". At [87], the Tribunal noted that Noel "has consistently been diagnosed with mild cognitive impairment over the past four years" and that the most recent specialist evidence is that Noel "likely has Alzheimer's dementia in the context of underlying cerebrovascular disease, as well as alcoholic brain injury". The Tribunal acknowledged that a "diagnosis of dementia alone is not a capacity assessment" and that there is "no neuropsychological assessment, nor any other kind of detailed capacity assessment before the Tribunal".
Contrary to Susan's assertion, the Tribunal considered the letter dated 25 October 2023 in which Dr Moghadam wrote that Noel "has the capacity to make decisions for himself": at [88]. The Tribunal noted that that opinion was inconsistent with earlier opinions expressed by Dr Moghadam. The Tribunal also noted that Dr Moghadam had failed to provide an explanation for how he came to either of the opinions he expressed, or the reason for his change in opinion. The Tribunal decided not to give weight to Dr Moghadam's evidence where "it is in conflict with evidence from specialists or more detailed assessments": at [88].
At [89], the Tribunal noted that the solicitor who represented Noel in the first hearing and the separate representative were of the view that the evidence supported a finding that Noel is "a person in need of a guardian".
At [90]-[91], the Tribunal found that the written and oral evidence given by Noel "reflects his memory deficits and confused understanding of his situation".
The Tribunal noted that while initially Susan maintained that Noel had "no clear diagnosis of dementia, or decision making incapacity", in the hearing after some discussion she confirmed that she agreed that Noel is "a person in need of a guardian": at [92].
At [132]-[139], in the context of deciding whether the power to make a financial management order could be exercised, the Tribunal considered whether Noel was capable of managing his financial affairs. The Tribunal considered the medical evidence set out above, together with Noel's history of financial difficulties and the "more recent evidence that his memory deficits have led to him becoming very confused when trying to do his banking": at [134]. In addition, the Tribunal noted the evidence given by Violet and Ms Timms which was to the effect that he was not able to budget and manage his money: at [135]-[136].
At [138], the Tribunal noted that Susan's written evidence revealed that she has elected to manage Noel's finances "very closely" which was inconsistent with her initial submissions that Noel has "no cognitive impairment or dementia". In addition, the Tribunal noted that the ACAT assessment conducted on 22 February 2024, which was largely based on information provided by Susan, and records that Noel has "a much more advanced incapacity than had previously been recorded".
Applying that analysis the Tribunal found at [139] that Noel "in a reasonably competent fashion … is not capable of managing his financial affairs".

[25]

Fresh evidence

Susan seeks to rely on "fresh evidence" which she contends warrants the Appeal Panel granting leave to appeal. Susan submits that that evidence demonstrates that contrary to the undertaking Violet gave to the Tribunal, since being appointed as Noel's guardian and manager, Violet has sought to undermine Susan's relationship with Noel.
The Tribunal referred to that undertaking in the context of considering whether Violet was able to exercise the functions conferred by the guardianship order. To put Susan's submission in context, we set out in full the paragraph in which the Tribunal referred to that undertaking: "111 The Tribunal considered their respective ability to undertake the role. In [Violet's] case, the Tribunal accepted the evidence of the very active and thorough role she has played in assisting [Noel]' transition from independent living to supported living, particularly over the past two to three years. This evidence is consistent with the statements by [three named carers]. It is also consistent with the numerous references in medical reports, ACAT reports, and the carer reports to [Violet's] active participation with her father's care and support. For some of this period she was his enduring guardian and enduring attorney but for the earlier part, she was not, and she undertook this role informally, in accordance with [Noel]' wishes. The Tribunal accepted her undertakings that she would not interfere with her father's relationships with others, and to communicate with [Susan] and saw no persuasive evidence that she had interfered in the past. The Tribunal was satisfied that [Violet] is able to undertake the role of guardian, consistently with the principles of the Act and that she is therefore a suitable person to be appointed as guardian for [Noel]." (Emphasis added.)
It was not immediately apparent from the voluminous material filed by Susan in support of the appeal, what was the fresh evidence said to warrant the exercise of the discretion to grant leave to appeal. At the hearing of the appeal, Susan identified that evidence as: 1. An email sent by Violet to Susan and Violet concerning arrangements about Noel's scheduled cataract surgery. 2. Affidavits prepared by Susan and Mr Tyson about Violet's actions in calling the Police to Noel's home on 15 May 2024. 3. An email exchange between a health care provider and Susan and Violet about an unpaid account.

[30]

Consideration

The existence of fresh evidence may warrant the exercise of the discretion conferred by s 80(2)(b) of the NCAT Act to grant leave to appeal, or to deal with the appeal under s 80(3) of the NCAT Act by way of a new hearing.
Generally, fresh evidence must satisfy three conditions: it could not have been obtained with reasonable diligence in the original proceedings; there is a high degree of probability that if admitted there would have been a different result in those proceedings, and; the evidence must be credible: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160, Clarke JA (Sheller JA agreeing); Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202; [2015] NSWCA 30 at [68] (Sackville AJA).
The evidence on which Susan seeks to rely, establishes that there was a dispute between the sisters over the payment of an account and who would accompany Noel to surgery and to a hearing before the Appeal Panel.
The three incidents about which Susan complains demonstrate that, unsurprisingly the tumultuous relationship between the sisters has continued after Violet's appointment. With the exception of the incident which saw Police called to Noel's home, objectively assessed the incidents are relatively trivial in nature. While Violet's actions in calling the Police to Noel's home is more concerning, given the conflicting accounts of what occurred and the plausible explanation given by Violet for her actions, it could not reasonably be said to tend to indicate that Violet has, or is likely to, use her appointments to undermine the relationship between Noel and Susan.
We are not satisfied that there is a high degree of probability that if the evidence on which Susan seeks to rely had been before the Tribunal, there would have been a different result in the proceedings, specifically that the Tribunal would have declined to appoint Violet as guardian and manager. The Tribunal was alive to the "long history of intermittent estrangement" between the sisters and the difficult nature of their relationship. The Tribunal did not naively predict that those problems would resolve following Violet's appointment. Rather the finding made by the Tribunal was confined to whether contrary to the section 4 principles, Violet would use her appointment to seek to undermine Noel's relationship with Susan.
The evidence on which Susan seeks to rely does not warrant the exercise of the discretion to grant leave to appeal or to deal with the appeal under by way of a new hearing.

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Judgment (32 paragraphs)

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