ZCK v NSW Trustee and Guardian

Extension of time

1. The Tribunal gave its decision at the conclusion of the hearing on 3 March 2016. The appellant received the written reasons on 11 April 2016. Rule 24(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) relevantly provides that appeals must be filed within 28 days of the appellant being notified of the decision or given reasons for the decision (whichever is the later). As the Notice of Appeal was filed on 5 May 2016 it was not out of time.
2. ZCM indicated in her Reply to Appeal that the Notice of Appeal had not been filed within time, but that she did not object to the Tribunal extending the time to appeal. As the appeal was filed within time, there is no need to extend time.

Relevant legislation

1. Section 36 of the POA relevantly provides that: The 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: s 36(1). 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: s 36(2). The Tribunal may make either or both of the following orders with respect to the revocation of a power of attorney: an order declaring that the principal did or did not have mental capacity to revoke a power of attorney, an order declaring that the power of attorney remains valid (either in whole or in part) if the tribunal is satisfied: the principal did not have the capacity necessary to revoke it, or the revocation is invalid for any other reason, for example, the principal was induced to make the revocation by dishonesty or undue influence: s 36(3A).
2. Section 37 provides that: 37 Review tribunal may treat certain applications for review of power of attorney as application for management order (1) If, on a review of the making, revocation or operation and effect of a reviewable power of attorney under section 36, the Civil and Administrative Tribunal decides not to make an order under that section in respect of the power of attorney, 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 Part 3A (Financial management) of the Guardianship Act 1987 . (2) If such a decision is made, the application is taken to be an application for such a financial management order duly made in respect of the principal under that power. (3) If, on a review of the making, revocation or operation and effect of a reviewable power of attorney under section 36, the Supreme Court decides not to make an order under that section in respect of the power of attorney, it may (if it considers it appropriate in all the circumstances to do so) proceed instead as if an application for a declaration and order under section 41 of the NSW Trustee and Guardian Act 20 09 had been duly made in respect of the principal under that power.

Decision of the Tribunal

1. The Tribunal decided that, given the evidence before it, it was appropriate to carry out a review of the revocation of the EPOA. The Tribunal had before it medical evidence in respect of ZCL's cognitive capacity. This included: 1. A report of Dr D'Ambrosio, ZCL's former general practitioner, dated 31 January 2016. Dr D'Ambrosio had treated ZCL from 1987 to December 2014. He said that ZCL had diagnoses of dementia and bipolar and had "experienced severe bouts of depression broken by periods of acute psychosis requiring psychiatric admission. He said that ZCL required "on-going psychiatric care". 2. A report of Dr Trevor Smith, ZCL's current general practitioner, dated 22 December 2015. Dr Smith had treated ZCL since January 2015. He said that ZCL had diagnoses of vascular dementia with slight forgetfulness, and bipolar depression. He said that her disability did not affect her capacity to make decisions about her financial affairs, and that "she benefits from [her] son's [ZCK's] supervision". He also stated that her cognitive ability had been assessed in August 2015 as "mild dementia in the form of forgetfulness."
2. The Tribunal also had before it other evidence medical and lay evidence relevant to ZCL's capacity including the evidence of Mr David Hughes, a mental health nurse practitioner and Ms Diane L'Estrange, a solicitor. Ms L'Estrange prepared the revocation documents on instructions from ZCL. Ms L'Estrange's file note stated that she had formed the view that on 18 September and 24 September 2015 ZCL had the capacity to make her own financial decisions.
3. The Tribunal decided not to make an order under s 36(3A) of the POA Act. It was not satisfied that it could make a finding either that ZCL had or did not have capacity as at 24 September 2015. The Tribunal added that there was no evidence to support a finding that the revocation was invalid for another reason such as dishonesty or undue influence.
4. However, the Tribunal was satisfied that it was appropriate and in the interests of ZCL to treat the application for the review of the EPOA as an application for a financial management order under s 37.
5. As the Tribunal noted in its reasons, before it could make a financial management order, it had to be satisfied that: 1. ZCL was incapable of managing her affairs. 2. There was a need for another person to manage her affairs, and it was in her best interests for a financial management order to be made.
6. The Tribunal decided that ZCL was incapable of managing her affairs, that there was a need for another person to manage her affairs, and that it was in her best interests for a financial management order to be made. While ZCL told the Tribunal that she would be able to manage the sale of the unit on her own and without any assistance, ZCK gave evidence to the contrary. Ms Stanton, a Case Manager from the Older Persons Mental Health Service, told the Tribunal that while ZCL may have the capacity to buy herself a coffee or a dress, she would require assistance to sell her property. Mr David Hughes, also from the Older Persons Mental Health Service, agreed.
7. The Tribunal then had to decide who should be appointed as ZCL's financial manager. It appears that both her son ZCK (her present attorney) and her niece ZCM (her former attorney) sought to be appointed. However, the Tribunal decided that it was in ZCL's best interests for an independent financial manager be appointed. Accordingly, the Tribunal committed the management of the estate of ZCL to the NSW Trustee.

Notice of Appeal

1. ZCK raises two grounds of appeal.
2. The first ground was that the Tribunal erred in not making a finding as to ZCL's mental capacity on 24 September 2015. It is implicit in this ground of appeal that ZCK submits that the Tribunal should have found that ZCL had the mental capacity to revoke the POA appointing ZCM, and to appoint him as her attorney. ZCK submits that the Tribunal should have given more weight to the evidence of ZCL's treating doctor, and the contemporaneous file note of Ms L'Estrange, that ZCL had capacity on 24 September 2015.
3. The second ground was that the Tribunal erred in deciding to appoint the NSW Trustee as ZCL's financial manager. ZCK submits that he should have been appointed as financial manager. In support of this ground of appeal the appellant relies on evidence that was before the Tribunal as well as his future intentions.
4. In addition, ZCK sought leave to rely on fresh evidence. He submitted that this new evidence "demonstrates conclusively" that ZCL had capacity to revoke her former EPOA and to execute a new EPOA on 24 September 2015. It is convenient to deal with this matter first.

Application to rely on fresh evidence

1. A party seeking to adduce fresh evidence in an appeal may only do so with the leave of the Appeal Panel and in accordance with well-established principles. If the Appeal Panel is to exercise its discretion in favour of the party applying for leave, it must be "affirmatively satisfied" that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal was "likely to have produced a different result": Building Professionals Board v Hans (2008) NSWADTAP 13 at [54].
2. The fresh evidence sought to be relied on is a report of Professor Jan Potter dated 11 April 2016. Professor Potter is the Director of Aged Care Rehabilitation and Palliative Care in Illawarra, Shoalhaven Local Health District, and a Clinical Professor at the University of Wollongong Graduate School of Medicine. The report relevantly states: I initially assessed [ZCL] in the Outpatient clinic at Wollongong Hospital on the 15th October 2015, as she had been referred to me by her GP for a capacity assessment and I have subsequently reviewed her a 2nd time on the 19th February 2016. The history that I was able to obtain from the Electronic Medical Record and the patient's GP referral, was that [ZCL] had a background history of a haemorrhagic stroke in September 2014 in the right anterior lobe. She is also known to have had syncopal episodes in 2012 and is known to Cardiology and she has a background history of Bi-Polar disorder and has attended the mental health team. When we assessed [ZCL] ... [s]he explained to me that she had moved from Sydney where she had been residing for many years to be near her family, in particular her son and daughter-in-law with whom she attended the Clinic. Since being there, she has been well integrated to the local community in the Shoalhaven and is known to the Shoalhaven Community Psychiatric Team who are happy with her progress and feel that she is settled and stable. She was aware of short term memory issues and had some difficulty with medication compliance, but since moving in with her son and daughter-in-law, that has all settled down and she is managing very well. She has scored formally on memory testing between 28/30 on the 15th October 2015 and 22/30 on the 19th February 2016. She readily admits that she gets performance anxiety with these tests and after she had settled down and I again asked her some of the points she lost points on, she was able to correct herself in terms of orientation. Throughout these consultations, she discussed her home situation and was very consistent and has repeated to each of the three people assessing her at each clinic appointment, that she was very happy and settled in the Shoalhaven with her son and daughter-in-law and that she didn't wish to return to Sydney and that this was her choice and she was not being coerced in any way. In my opinion, certainly at the times I have seen [ZCL], I would have no doubt about her capacity with this regard.
3. On the basis of information provided at the hearing, this report may have been prepared for the hearing held on 18 April 2016. Decision making about accommodation is a function which falls to guardians, and that is why it is likely that Professor Potter's report was prepared for application for the review of the enduring guardianship appointments. At that time, the Tribunal reviewed the enduring guardianship appointment made by ZCL on 24 September 2015 appointing ZCK as her enduring guardian. The Tribunal confirmed ZCK's appointment. While the reasons for decision refer to Professor Potter having an ongoing involvement in ZCL's care, the reasons do not refer to her report of 11 April 2016, now sought to be adduced by ZCK in these proceedings.
4. We are not persuaded that if the report of Professor Potter of 11 April 2016 had been before the Tribunal was "likely to have produced a different result'. We have reached this conclusion for the following reasons.
5. The first, and principal reason, is that Professor Potter's report does not address the issue of capacity by reference to the acts undertaken by ZCL on 24 September 2015, nor does she express an opinion on that issue. We note the observations of Ward J (as her Honour then was) in A v N [2012] NSWSC 353 at [390]: The test for capacity is "issue specific" (Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162 and see Dalle-Molle (by his next friend Public Trustee) v Manos BC-200402709). Capacity is to be tested by reference to the particular transaction or conduct in which the person proposes to engage. In Gibbons v Wright, the principle was expressed as follows: The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation. ... any test of the requisite capacity ... whether the person concerned is capable of understanding what he did by executing the deed when its general purport was explained to him. The principle ... appears to us to be that the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.
6. Secondly, Professor Potter assessed ZCM on 15 October 2015. Despite ZCL having been referred for a capacity assessment, no results are given for any assessment. Professor Potter expresses the opinion that "certainly at the times that I have seen [ZCL], I would have no doubt about her capacity with this regard". It is not clear what Professor Potter is referring to. It would appear to be a reference to ZCM's home situation and to her being "very happy and settled in the Shoalhaven with their son and daughter-in-law and that she didn't wish to return to Sydney".
7. For those reasons, we are not satisfied that, having regard to the findings of the Tribunal at first instance, the further evidence, if tendered at the hearing conducted by the Tribunal, was "likely to have produced a different result": Building Professionals Board v Hans (2008) NSWADTAP 13 at [54].
8. We turn now to consider the appellant's two grounds of appeal.

Nature of the appeal

1. Schedule 6 Pt 5 cl 12 of the NCAT Act enables an appeal to be made against a decision of the Guardianship Division of the Tribunal by way of an internal appeal to the Appeal Panel or to the Supreme Court of NSW. Section 80 of the NCAT Act deals with the making of an internal appeal. It provides that any internal appeal may be made: 1. in the case of an interlocutory decision of the Tribunal at first instance -with the leave of the Appeal Panel, and 2. in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
2. Section 80(3) provides that the Appeal Panel may: 1. decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and 2. permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
3. The Appeal Panel's powers in determining the appeal are found in s 81 of the NCAT Act. Section 81 provides as follows: (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.

Does the appeal raise a question of law?

1. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing a question of law giving rise to an appeal as of right and noted at [11] that, in circumstances where appellants are not legally represented, it is apposite to approach the issue by looking at the grounds of appeal generally. Without expressing exhaustively possible questions of law, the Appeal Panel referred at [13] to the following as constituting questions of law: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law has been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account a relevant (mandatory) consideration. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision was so unreasonable that no reasonable decision-maker would have made it.

Other error - leave to appeal required

1. If no question of law is raised on appeal, an appeal may be brought on any other grounds with the leave of the Appeal Panel. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel of the Tribunal conducted a review of the relevant cases at [65]-[79] and concluded at [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 [1 9] 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.
2. As was further explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

The first ground of appeal

1. The Tribunal has a discretion as to whether or not to make an order declaring that the principal did or did not have mental capacity to make a valid power of attorney. There is no requirement to make a finding that the principal did or did not have capacity. That is apparent from the opening words of s 36(3): (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:
2. Having thoroughly reviewed the evidence, the Tribunal decided that it could not make a finding as to what ZCL's mental capacity was five months earlier on 24 September 2015. The Tribunal had evidence which tended to suggest that she did have capacity as well as evidence that tended to suggest that she did not. The Tribunal made none of the errors identified by the High Court in House v R [1936] HCA 40: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
3. ZCK also submits that the Tribunal erred in not making a finding as to ZCL's mental capacity on 24 September 2015, given that it had the evidence from Dr Trevor Smith, Ms L'Estrange, Mr David Hughes and himself. ZCK appears to be submitting that the decision of the Tribunal not to make a finding as to his mother's mental capacity was against the weight of the evidence. In our view, characterised in this way, this ground of appeal does not raise an error of law. As the Appeal Panel observed in Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38: 31. A dispute with a finding of fact does not of itself raise a question of law. Nor is a tribunal of fact obliged in its reasons to recount and examine all of the evidence given by witnesses. There must be a defect affecting the reasoning process giving rise to a finding that is so great as to show that the Tribunal failed to discharge its duty to deal rationally with the evidence before it. 32. There may be an error of law if, for example, its finding is based on no evidence, or no logically probative evidence, or it fails to have regard to critical evidence (see, for example, Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [2 ] per Allsop P, Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at 513 (Court of Appeal); or it makes an adverse finding without addressing significant uncontroverted evidence to the contrary: State Rail Authority of New South Wales v Earthline Constructions [1999] HCA 3; (19 99) 160 ALR 588; (1999) 7 3 ALJR 306); or it relies on irrelevant evidence (House v R [1936 ] HCA 40; (1936) 55 CLR 499). 33. Provided these boundaries are not infringed, the trier of fact is immune from appeal on error of law grounds in relation to its findings of fact. A submission that the trier of fact's findings are against the weight of the evidence does not raise a question of law: see, for example, Lewis & anor v Registrar Consumer Claims Tribunal & anor [1999] NSWSC 381 (Bell J).
4. There was no error in the manner in which the Tribunal exercised its discretion. This ground of appeal is dismissed.

The second ground of appeal

1. The second ground of appeal was that the Tribunal erred in deciding to appoint the NSW Trustee as ZCL's financial manager. ZCK agrees that ZCL needed a financial manager, and that one should have been appointed. ZCK submits that he should have been appointed as financial manager. The relevant provision is s 25M: 25M Tribunal may commit estate of protected person to management (1) If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order: (a) appoint a suitable person as manager of that estate, or (b) commit the management of that estate to the NSW Trustee.
2. This provision gives the Tribunal an open discretion to appoint a suitable person or the NSW Trustee to manage a person's estate.
3. In support of this ground of appeal, ZCK relied on some evidence that was before the Tribunal. He also said that he would: 1. have a "lifetime tenancy agreement" prepared to protect ZCL's "separate equitable lifetime right of residence;" 2. amend his will to protect that interest in the event of his death; and 3. consult Centrelink in relation to the "granny flat rules" and pension entitlements.
4. He submitted that the expense of a financial manager was "outlandish", and that he had done "nothing wrong".
5. The Tribunal referred expressly to ZCK's evidence that he would discuss various options with his mother, and would care for both her and his father (at [51]). Evidence of what ZCK intends to do in the future is not a basis on which the Appeal Panel should set aside the Tribunal's decision. The Panel is not re-hearing the merits of the application. If circumstances have changed, ZCK may apply to the Guardianship Division for a review of the appointment of a manager: Guardianship Act, s 25S.
6. ZCK emphasised that the decision of the Tribunal was against his mother's wishes and not in her best interests. He submitted that the decision was not in his mother's interests.
7. The Tribunal is bound to take into account ZCK's views when exercising any function under the Guardianship Act: s 4(d). At [52] the Tribunal noted that ZCL's former husband trusted ZCK and his wife. The Tribunal noted that "[ZCL] did not give any indication to the Tribunal that she did not trust her son to act in her best interest." However, the Tribunal had already noted at ([21(5)]) that ZCL said that she wanted ZCK to look after her financial affairs.
8. ZCK made the point that in the Investigation Report prepared by the Tribunal, a Tribunal employee had recorded ZCK as clearly stating that, "... she is very content with [ZCK] being her power of attorney, that he handles all her financial affairs and that she has complete faith in any choices he makes for her.
9. At [53] the Tribunal came to the following conclusion: The Tribunal does not doubt the care and affection that [ZCK] has for his mother. The Tribunal was concerned, however, that [ZCK] has not taken appropriate steps to protect [ZCL]'s financial interests to date. Furthermore, [ZCK]'s interests are now intermingled with those of [ZCL] in such a way that may make it difficult for him to separate out what is in [ZCL]'s interests from what is in his and his family's interests. For example, in the event [ZCL]'s legal interest in the family home is formally documented and [ZCL] needs to liquidate her contribution to fund her future needs or a nursing home bond, it is likely that the family home will need to be sold. This may put [ZCK] in the unenviable position of taking action in the interests of his mother (as is required by a financial manager) that impacts significantly on the interests of his family.
10. We do not consider that in exercising the discretion in s 25M as to who to appoint as financial manager, the Tribunal acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect it, or failed to take into account some material consideration. In particular, the Tribunal expressly referred to ZCL's wish that ZCK look after her financial affairs.

Conclusion

1. The appellant has sought to set aside decisions of the Tribunal on the basis that its discretion to make those decisions miscarried. For the reasons given above, we are not persuaded that Tribunal's discretion miscarried.

Orders

1. The Appeal Panel makes the following orders: 1. Leave to appeal on grounds other than a question of law refused. 2. Appeal dismissed. ATTACHMENT A POWERS OF ATTORNEY ACT 2003 - SECT 36 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. (3A) Orders relating to revocation of power of attorney A review tribunal may make either or both of the following orders with respect to the revocation of a power of attorney: (a) an order declaring that the principal did or did not have mental capacity to revoke a power of attorney, (b) an order declaring that the power of attorney remains valid (either in whole or in part) if the tribunal is satisfied: (i) the principal did not have the capacity necessary to revoke it, or (ii) the revocation is invalid for any other reason, for example, the principal was induced to make the revocation 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 princip al 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. (5) Orders relating to mental capacity of principal A review tribunal may make an order relating to the operation and effect of a power of attorney declaring that the principal lacked or lacks capacity because of mental incapacity at a specified time or during a specified period or for the time being. An enduring power of attorney can not be lawfully revoked by the principal while the principal is declared to be incapable by such an order. (6) Effect of order declaring mental incapacity for the time being If a review tribunal makes an order under this section declaring that a principal under a reviewable power of attorney lacks capacity through mental incapacity for the time being, the principal is to be taken, for the purposes of the operation of the power of attorney , to lack such capacity for such period (if any) specified in the order or until further order of the tribunal. (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. (9) Order reinstating lapsed power of attorney may have retrospective operation If a review tribunal makes an order under this section reinstating a power of attorney that has lapsed by reason of a vacancy in the office of an attorney, the order may also direct that it has effect from the time at which the power of attorney originally lapsed. (10) Effect of order removing or appointing attorney or altering power The removal or appointment of an attorney, or the alteration or revocation of a power of attorney, under this section has effect as if: (a) it were done in due form by the principal, and (b) the principal were of full capacity and were, to the extent necessary, authorised to do the thing in question by the instrument creating the power. (11) Review tribunal may exercise functions despite instrument A review tribunal may exercise a function under this section despite anything to the contrary in the instrument creating the power. (12) Section does not affect irrevocable powers of attorney This section has effect subject to the provisions of Part 3 (Irrevocable powers of attorney). 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

Amendments 08 September 2016 - Corrected paragraph numbering 22 September 2016 - Corrected Legislation Cited 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: 22 September 2016