YMO v YMN

"In relation to the enduring power of attorney made by [YMJ] on 11 October 2012 which appointed [YMK] as attorney and [YMN] as the alternative attorney the Tribunal determines, orders or declares:

1 to carry out a review of the operation and effect of the enduring power of attorney.

2 [YMK] is removed from office as an attorney.

3 [YMN] is appointed to replace [YMK].

4 [YMN] is removed from office as an alternative attorney."

1. The Tribunal gave these reasons for its decision:

"Our Findings

[39] We have decided to remove [YMK] as the Attorney for his wife's estate. In his place appoint [YMN] as the Attorney and remove her as the alternate Attorney.

[40] This is because of the following:

(i) [YMK] was not proactive in relation to payment of aged care fees for his wife. We have taken into consideration that over a period of time [YMK] was unwell with being treated for cancer. However, he was relying upon his daughter, [YMO], to attend to payment of bills presumably under his direction. Until weeks before this hearing aged care fees for [YMJ] had not been paid. This shows some dereliction in reasonable decision making as the Attorney.

(ii) [YMK] has not engaged with Centrelink in a timely and reasonable manner to ensure his wife's aged care fees are appropriately being charged. He has not completed an assets and income assessment to determine what those fees should be.

(iii) [YMK] was not able to provide a reasonable explanation about how he would process accounts and payments for [YMJ]. Particularly he could not explain how he would be able to communicate with [YMN] in decision making, for example, if [YMN] takes her mother to a doctor and money being available for payment of accounts. It was evident that the relationship between [YMK] and [YMN] has broken down.

(iv) [YMK] relies significantly on his daughter, [YMO], to carry out the role of Attorney. Whilst the characterisation of [YMO] was 'bookkeeper', we find that [YMK] had been, in essence, using [YMO] as a de facto decision maker at times when he has been unwell and unable to carry out his role. Due to the breakdown of the relationship between himself and [YMN], he has allocated those tasks to [YMO] instead of the alternative Attorney pursuant to the wishes of [YMJ] when she made the instrument.

[41] We find it is in the best interests of [YMJ] that the Power of Attorney be varied in the way as set out in our order to ensure efficiency in decision making for her. We have also taken into consideration that [YMJ's] estate is not complex. She will receive payments through Centrelink by way of a pension and her aged care fees will be met by approximately 85% of that pension once the assets and income assessment has been completed. The only remaining assets to be managed is the joint and sole bank account and any entitlement [YMJ] has to the company of which we are told she is a 50% shareholder, namely [Removed for publication.]."

1. YMN's application sought a review of the operation and effect of the enduring power of attorney.
2. Review of the operation and effect of an enduring power of attorney (a "reviewable power of attorney": s 33(2) of the Powers of Attorney Act 2003 (NSW) by the Guardianship Division of NCAT is governed by s 36 of the Powers of Attorney Act:

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.

...

(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.

1. If, on review of the operation and effect of an enduring power of attorney, the Tribunal decides not to make an order under s 36 of the Powers of Attorney Act, it may (if it considers it appropriate in all the circumstances to do so) decide to treat the application for the review as an application for a financial management order under Pt 3A (Financial management) of the Guardianship Act 1987 (NSW): Powers of Attorney Act, s 37(1); Guardianship Act, s 25F(d).
2. Section 4 of the Guardianship Act sets out the general principles that must be observed when exercising functions under the Guardianship Act and the Powers of Attorney Act with respect to persons who have disabilities (see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), Sch 6, cl 5):

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.

1. In the appeal the appellants relied on the following material that was before the Tribunal at first instance:

(1) A submission by YML addressing the following:

(a) YMN had sought to restrict visits to and outings by YMJ. YML alleges that in so doing YMN appeared to be acting as YMJ's attorney and guardian.

(b) YMN borrowed by $4000 from YMK and YMJ and it was repaid in an aggressive manner by the partner of YMN.

(c) Invoices for aged care fees were addressed to YMN and YMK and YMO had not received the invoices.

(d) YMK felt that YMN was "committing character assassination on him" and that YMN should not be "given Power of Attorney" for YMJ.

(2) A spreadsheet prepared by YMO with notes of events from 2022 including the following matters:

(a) Attempts by YMN to have YMK resign as the attorney and a letter that she had "got him to sign".

(b) Examples of poor relationship between YMK and YMN.

(c) YMN borrowed $4000 from YMK and YMJ and said she only needed to repay $2000 to YMK because the remainder was owed to her mother.

(d) Descriptions relating to an incident when it is alleged that YMN took bank statements for a joint account held by YMK and YMJ.

(e) Allegations that YMN took a computer and password book. (YMK also refers to this incident and notes that the computer was returned).

(f) Disagreements about ownership of family home as between YMK and YMJ.

(g) Description of an incident involving police being called to the aged care facility when it is alleged that YMN insisted that an original version of the enduring power of attorney was required by people wanting to take YMJ out from the aged care facility

(3) A statement from YMK including:

(a) He has delegated YMO to assist in managing the couple's financial affairs now that YMJ is not able to do so. YMO has been managing the couple's affairs since May 2023.

(b) During the period in which YMN was assisting YMJ by managing her affairs, bills were unpaid. He assumed responsibility for managing the affairs and delegated tasks to YMO.

(c) He does not want YMN to have access to his affairs or those of YMJ, or to become the attorney for YMJ. He does not trust YMJ. He suspects that she stole documents and a computer from his house. She has since returned the computer.

1. In submissions the appellants address the following matters:

(1) Allegations that YMN misled the Tribunal below with at least 33 false statements.

(2) Allegations that YMN misled the aged care facility by claiming that she was YMJ's attorney, and this is why invoices were sent to her, and had used the untruth to claim control over visitors to YMJ.

(3) Allegations that YMN had stolen legal documents and money from the family home and that YMN "could not be trusted" with the financial affairs of YMK and YMJ.

(4) They submitted evidence in the Tribunal below, being:

(a) Photographs of documents allegedly created by YMN claiming that YMK and YMJ were unwilling to remain as enduring guardians and attorneys for each other, and correspondence from legal practitioners regarding this matter.

(b) A summons for video footage evidencing YMN being aggressive and being evicted from a bank.

(c) A "timeline of events", comments from YMK, dates of visits by YMO to YMK and YMJ

(d) Statements from neighbours

1. YMN provided excerpts from the transcript of the hearing below which she had apparently transcribed. She relied on these as evidence of matters raised during the hearing. She failed to provide a full transcript or sound recording as directed by the Appeal Panel. However nothing turns on this because there was no challenge by the appellants to YMN's account of the proceedings which included:

(1) During the hearing below, YMK and YMO had said that they did not think it was necessary to make a financial management order.

(2) Should a financial management order be made, YMO had opposed the possible appointment of YMN or her brother, as financial managers and had proposed the appointment of herself or YMK, or YML. YMK, he said that he or YMO should be appointed.

(3) During the hearing YMN noted, and YMO acknowledged, that YMJ had appointed YMN as the substitute attorney if YMK were not able to fulfil the role.

1. As parties to the proceedings to review the enduring power of attorney, the appellants have a right to appeal the decision on the basis of any question of law or, with the leave of the Appeal Panel, on any other ground: NCAT Act, s 80(2)(b).
2. In the Notice of Appeal the appellants include the following references to material put to the Tribunal below:

(1) YMN has provided false and misleading information to the Tribunal, has stolen items from YMK and YMJ and damaged their property and misled that aged care facility as to who is YMJ's attorney.

(2) YMN has restricted visitors to YMJ at the aged care facility.

(3) YMN was asked to leave a bank after bullying YMK and YMJ.

(4) Having initially trusted YMN, YMK now distrusts her.

(5) YMJ took advantage of YMK by having him sign the document, later rescinded by him, indicating that he did not want to continue as YMJ's attorney.

(6) YMO had been managing the affairs of YMK and YMJ for more than a year and a half and was willing to continue to do so. Alternatively a financial manager should be appointed.

1. The appellants also raise the following matters including new allegations and submissions:

(1) YMN organised a credit card for YMJ after YMJ was declared to lack capacity.

(2) having initially trusted YMN, YMK now distrusts her.

(3) there is doubt about YMJ's integrity and honesty and she should not be the attorney.

(4) the Tribunal had not read all their documents

(5) there were disputed facts about the payment of YMJ's aged care fees and evidence about the couple's financial affairs.

(6) having regard to the principles in s 4 Guardianship Act, the Tribunal should have made a financial management order appointing an independent financial manager as this would be more appropriate for the preservation of family relationships.

1. The appellants said that at hearing at first instance they did not seek the appointment of a financial manager but they have now formed the view that a financial manager should be appointed.
2. An appellant must identify with precision the question of law said to be raised by the decision under appeal: Ferella & Anor 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]. The Grounds of Appeal as put by the appellants do not clearly identify questions of law.
3. YMK was accompanied by his lawyer during the appeal proceedings. However the lawyer described his role as one of "support" as opposed to representation. Noting that the appellants were not legally represented in the appeal and 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 sought to identify potential questions of law raised in their stated Grounds of Appeal and submissions.
4. The appellants have submitted that a financial management order is the appropriate outcome in these proceedings both because of their evidence regarding the unsuitability of YMN to manage YMJ's affairs, and because of the requirement at s 4(e) of the Guardianship Act to have regard to the preservation of family relationships. It is accepted by each of the parties to the appeal that it was never put to the Tribunal below that it should make a financial management order.
5. Regardless of how the matter was conducted at the initial hearing, the Tribunal is required to have regard to s 4 of the Guardianship Act. We have identified the following potential error on a question of law (Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204):

"In not making a financial management order and appointing an independent financial manager, did the Tribunal wrongly fail to observe the principle requiring it to facilitate the preservation of family relationships (s 4(e) Guardianship Act"

In not making a financial management order and appointing an independent financial manager, did the Tribunal wrongly fail to observe the principle requiring it to facilitate the preservation of family relationships: Guardianship Act, s 4(e)

1. Section 36(4) of the Powers of Attorney Act indicates that the Tribunal can make orders, including substituting an attorney for one who has been removed, if it is satisfied that to do so would better reflect the wishes of the principal, or would be in the best interests of the principal. At [40(iv)] of its Reasons for Decision, setting out its findings, the Tribunal cites YMJ's wishes in appointing YMN as the substitute attorney. There is no evidence before us that this matter was contested during the hearing.
2. The process envisaged under ss 36 and 37 of the Powers of Attorney Act is a three stage process: first conduct a review of the enduring power of attorney; second decide whether to make an order under s 36 and third, if it decides not to make an order under s 36 of the Powers of Attorney Act and if it is in the best interests of the principal, the Tribunal can proceed to consider whether to make a financial management order. In this matter, the Tribunal completed the first two stages and made orders under ss 36(4)(a) and 36(4)(c) of the Powers of Attorney Act consistently with the evidence of the wishes of YMJ.
3. Having determined to make the orders under the Powers of Attorney Act, there was no statutory obligation under that Act for the Tribunal to proceed to consider making a financial management order.
4. The principles set out in s 4 Guardianship Act are not independent of each other. Observing one can result in not observing another. In this matter, the Tribunal has given effect to the views of YMJ (s 4(d) of the Guardianship Act) whilst it is alleged by the appellants that the Tribunal has not given effect to s 4(e) of that Act. In our view there is no error of law in observing one, but not another, of the principles.

1. We do not conclude that the Tribunal has made an error on a question of law by not making a financial management order and appointing an independent financial manager, whilst failing to observe the principle requiring it to facilitate the preservation of family relationships: Guardianship Act, s 4(e).

1. The appellants support their application for leave to appeal stating that they were misunderstood by the Tribunal, and they "could not get our points across". They also describe the actions of YMN as "disturbing" and as indicating a lack of integrity and trustworthiness and submit that the better decision would be for a financial management order to be made.
2. The principles governing the application for leave to appeal were summarised by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17.

"[84] The general principles derived from these cases can be summarised as follows:

(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) 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,

BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];"

1. In this matter the appellants argue, in summary, that YMN has acted in an untruthful manner, and has made decisions that are not in the best interests of YMK and do not adequately take account of the joint interests he holds in the marital estate. The appellants submit that making a financial manager order and appointing the NSW Trustee as the manager, could remedy the concerns they outline.
2. The evidence of both the appellants and the respondent indicates that it was never put to the Tribunal that a financial management order should be made. There is no discernible factual error or injustice disclosed by the appellants in this respect and nor have they provided evidence of unorthodox proceedings in the initial hearing.
3. We are not convinced that the appellants' submissions raise matters of principle or public importance or matters of administration or policy.
4. It is our view that the appeal reflects a current view of the applicants that was not put or supported by evidence at the initial hearing. There being no errors of fact or other matters that support leave to appeal, leave is refused.

1. No basis for appellate intervention having been established, either on a question of law or on any other ground. Leave to appeal is refused and the Notice of Appeal dismissed.

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.