Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZTP v ZTQ [2021] NSWCATAP 29 Hearing dates: 27 January 2021 Date of orders: 15 February 2021 Decision date: 15 February 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks, Principal Member R Booby, Senior Member M Bolt, General Member Decision: Appeal dismissed Catchwords: APPEAL FROM GUARDIANSHIP DIVISION - appeal initiated by a person purportedly acting under power of attorney – held person initiating appeal did so without demonstrated authority – appeal incompetent – appeal dismissed Legislation Cited: Powers of Attorney Act 1998 Qld ss 6A, 70,Sch 2 Guardianship and Administration Act 2000 Qld Powers of Attorney Act 2003 (NSW) ss 8,9,19,25 Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: ZTP (Appellant) ZTQ (First Respondent) Public Guardian (Second Respondent) ZTR (Third Respondent) ZTS (Fourth Respondent) Representation: Counsel: J Hill (appointed representative for Appellant) Solicitors: Respondents (Self Represented) File Number(s): AP 20/49688 Publication restriction: Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013, a person must not without the consent of the Tribunal, publish or broadcast the name of any person who appears as a witness in these proceedings, to whom these proceedings relate, or is mentioned or otherwise involved. The name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. Decision under appeal Court or tribunal: Civil and Administrative Tribunal NSW Jurisdiction: Guardianship Division Citation: N/A Date of Decision: 2 November, 2020 Before: L Organ Senior Member Associate Professor C Wilcox Senior Member J V Le Breton General Member File Number(s): 2020/00128798 reasons for decision Background 1. By Decision published on 2 November 2020 the Guardianship Division of this Tribunal appointed the Public Guardian as guardian of a person who shall be referred to in these proceedings as ZTP. The application was made by a treating medical specialist of ZTP whom we shall refer to as ZTQ. That decision reviewed an earlier decision of the Tribunal made on 9 June 2020 which had appointed ZTS, the sister of ZTP as her guardian and appointed the Public Guardian in her place. 2. In the course of that decision the Tribunal noted that on the second day of the hearing ZTS had said that she no longer wished to be the guardian of ZTP. 3. On 24 November 2020 a Notice of Appeal from that decision was filed. The appellant was named as ZTP. The Notice of Appeal was signed by ZTS as her "enduring power of attorney" and named ZTS as the "representative" of ZTP. An order was sought on appeal revoking the appointment of the Public Guardian and that ZTS be "reinstated to private guardianship" of ZTP. 4. A telephone hearing of the appeal proceedings was conducted on 27 January 2021. Attending were ZTS, Ms Jill Hill of counsel who had been appointed as the separate representative of ZTP, ZTQ, and a carer who told us that ZTP was with him but that she did not wish to take part in the appeal proceedings. 5. We note that the Guardianship Division in its decision under appeal had described ZTP as having been found by the Mental Health Review Tribunal to be a mentally ill person and who was at that time an involuntary patient under the Mental Health Act 2007. No indication has been given to us which would lead us to believe that her status has since altered in any way. Ms Hill informed us that she had spoken to ZTP earlier that morning and that ZTP had said that she did not wish to take part in the appeal proceedings. 6. This information given to us whilst endeavouring to elicit the nature of the appeal and the attitude of the parties caused us to question ZTS concerning her authority to institute the appeal proceedings. We indicated to her during the course of our discussion that even if it transpired that she was not authorised to have instituted the appeal proceedings in the name of ZTP, she was nevertheless entitled to have instituted an appeal as a person interested in the welfare of her sister. ZTS was adamant that she did not wish to be substituted as the appellant in the proceedings and insisted that she was fully authorised to have commenced them pursuant to authority created by a power of attorney. 7. In written submissions to the Tribunal Ms Hill said "I am unclear as to whether (ZTS) is the appellant, or (ZTP) (for whom I act as Separate Representative) is the appellant. For practical purposes I assume the appellant is (ZTS), who appears to have signed and filed the appeal." 8. At the conclusion of the hearing in which ZTS made submissions about the validity of her authority to commence the proceedings in the name of ZTP we informed the parties that we were not satisfied that the appeal had been validly commenced, and invited ZTS to make any further submissions that she wished to put before us. She abruptly left the telephone hearing and did not attempt to rejoin it. We then announced that we would dismiss the appeal. 9. The reasons which follow are our reasons for having made that order. The form of a power of attorney from ZTP to ZTS 1. ZTS provided a number of documents on which she sought to rely as a basis for her authority to initiate the appeal on behalf of ZTP. 2. The documents provided were in the form of photostat copies and comprised: 1. A Deed made on 6 February 2020 between ZTP, ZTS and the mother of ZTP comprising pages numbered 1 through to 4 ("The Deed") 2. A Form 1 "Appointing an Attorney for Personal and Health" dated 6 February 2020 numbered pages 9 through to 12 3. A Form 2 "Appointing an Attorney for Financial Matters" dated 6 February 2020 numbered pages 13 through to 16 4. A Form 3 "Attorney's Acceptance" numbered pages 22 to 23 The Deed 1. The Deed identifies the appointor as ZTP whose given address was then in Queensland. The mother of ZTP whose address was shown in Western Australia was described as "Attorney 1" and ZTS of the same address in Western Australia was described as "Attorney 2". That document was executed by all parties in the presence of the same Justice of the Peace who gave her address as Southport, Queensland. 2. The provisions of the Deed are not expressed to continue to operate upon ZTP losing capacity so as to render it an enduring power of attorney. This is to be contrasted with the specific language to this effect in Form 1. 3. The powers given to the attorneys under the Deed included discussion with professional medical and mental health advisers and professional advisers concerning "legal matters and mental health and disability services matters" relevant to ZTP, together with powers to execute documents and to give effect to those documents including "making applications" on behalf of ZTP. 4. The documents which the attorneys were empowered to execute were defined to mean those listed in a Schedule, any documents ancillary to or referred to in those documents and "any other documents which the Attorney executing them considers necessary or expedient to give effect to a transaction to which any of the above documents relate." 5. The Schedule contains the following terms Any contracts, agreements, documents whatsoever, which the Appointer is or is required to be a party (sic) and which the Appointor is legally entitled and required to execute. These include, but are not limited to, applications for Mental Health Related Services, Legal Aid Services, Centrelink Services, NDIS Services and Entitlements and any other documents relevant to medical housing, living assistance and community disability assistance applications. 1. We note that prima facie the provisions of the Deed would not entitle an attorney to sign the Notice of Appeal in these proceedings. 2. There is an additional Clause 2.3 of the Deed which provided that The powers conveyed upon the Attorneys are conferred by Part 2 of the Powers of Attorney Act 2003 (NSW) to do anything on the Appointer's behalf that she may lawfully authorise her attorney to do. 1. That portion of Part 2 of the NSW Powers of Attorney Act 2003 which is relevant is section 9 9 Powers conferred by prescribed power of attorney (1) Subject to this Act, a prescribed power of attorney confers on the attorney the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do. (2) A prescribed power of attorney has effect subject to compliance with any conditions or limitations specified in the instrument creating the power. 1. Section 8 of the NSW Powers of Attorney Act provides that a prescribed power of attorney is an instrument that is in the form prescribed by the regulations and duly executed. The Deed is not in the form prescribed by the regulations. Furthermore, the Deed was clearly entered into in Queensland, and neither ZTP or ZTS were resident in NSW. 2. Accordingly there is nothing contained in the Deed which would entitle ZTS to purport to exercise its provisions to initiate this appeal. Form 1 1. This is the only part of the documentation relied upon by ZTS which contains any reference to an enduring power of attorney. 2. By section 25 of the Powers of Attorney Act 2003 (NSW) there is provision for recognition in New South Wales of enduring powers of attorney made in other States and Territories 25 Recognition of enduring powers of attorney made in other States and Territories (1) An interstate enduring power of attorney has effect in this State as if it were an enduring power of attorney made under, and in compliance with, this Act, but only to the extent that the powers it gives under the law of the State or Territory in which it was made could validly have been given by an enduring power of attorney made under this Act. (2) In particular, an interstate enduring power of attorney to which subsection (1) applies: (a) has effect in this State subject to any limitations on the power that apply to it under the law of the State or Territory in which it was made, and (b) does not operate to confer any power on an attorney in this State that cannot be conferred on an attorney under an enduring power of attorney made in this State. (3) Subsection (1) does not apply to any power of attorney (or class of powers of attorney) prescribed by the regulations. (4) A document signed by an Australian legal practitioner that certifies that an interstate enduring power of attorney was made in accordance with the formal requirements of the law of the State or Territory in which it was made is admissible in any proceedings concerning that power and is prima facie evidence of the matter so certified. (5) In this section: interstate enduring power of attorney means a power of attorney made in another State or a Territory that, under the law of that State or Territory, has effect in that State or Territory as a valid power of attorney even if the principal loses capacity through mental incapacity after the execution of the instrument creating the power of attorney. 1. The Form 1 makes reference to the provisions of the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000, both of which we note are Queensland legislation. Section 14 of the Powers of Attorney Act 1998 provides a method for the proof of a power of attorney by way of certification. We note that no such certification has been provided to us, and on this basis ZTS has not formally proven the power of attorney which she purported to exercise when instituting this appeal. Furthermore, we note that the Form 1 commences on page 9 and we were not provided with pages 5 through to 8. 2. Form 1 which appoints an attorney "for personal/health matters" is dated 6 February 2020. This is the same date referred to in the Deed described above. In this document ZTP then said to be living in Queensland appointed ZTS said to be living in New South Wales as an attorney, including "under enduring power of attorney" for "personal/health matters" and her mother as a second attorney for "personal/health/financial matters." The only description of the nature and effect of the power is that it is to "make decisions on my behalf about personal/health matters." 3. This document was also signed by ZTP in the presence of the same Justice of the Peace as referred to in [12] above. That witness certified that at the time the enduring power of attorney was signed ZTP appeared to understand the nature and extent of the powers given to the attorneys. 4. Included within the same documentation is a Form 2 by which ZTP purported to appoint her mother as her enduring attorney for "financial matters." The legislative background 1. In respect of Form 1 We shall assume for present purposes that the power of attorney upon which ZTS relies is governed by the Powers of Attorney Act 1998 (Qld). There is a definition of "personal/health matters" in Schedule 2 to that Act Types of matters Part 2 A personal matter, for a principal, is a matter, other than a special personal matter or special health matter, relating to the principal's care, including the principal's health care, or welfare, including, for example, a matter relating to 1 or more of the following— (a) where the principal lives; (b) with whom the principal lives; (ba) services provided to the principal; (c) whether the principal works and, if so, the kind and place of work and the employer; (d) what education or training the principal undertakes; (e) whether the principal applies for a licence or permit; (f) day-to-day issues, including, for example, diet and dress; (g) whether to consent to a forensic examination of the principal; Note— See also section 104 (Protection for person carrying out forensic examination with consent). (h) health care of the principal; (i) a legal matter not relating to the principal's financial or property matters; (j) who may have access visits to, or other contact with, the principal; (k) advocacy relating to the care and welfare of the principal. 1. Legal matter as referred to in (i) above is in turn defined to mean the following A legal matter, for a principal, includes a matter relating to— (a) use of legal services to obtain information about the principal's legal rights; and (b) use of legal services to undertake a transaction; and (c) use of legal services to bring or defend a proceeding before a court, tribunal or other entity, including an application under the Succession Act 1981, part 4 or an application for compensation arising from a compulsory acquisition; and Note— This enables the Supreme Court to make provision for a dependant of a deceased person from the deceased person's estate if adequate provision is not made from the estate for the dependant's proper maintenance and support. (d)bringing or defending a proceeding, including settling a claim, whether before or after the start of a proceeding. 1. It is arguable that clause (d) of the definition of a legal matter might empower an attorney to commence proceedings in the nature of an appeal of the kind with which we are dealing. 2. There is one further provision of the Powers of Attorney Act 1998 (Qld) to which we need to refer, namely section 70 which is in the following terms 70 Subject to guardian or administrator (1) If a person is appointed under the Guardianship and Administration Act 2000 as guardian or administrator for a principal, an attorney for the principal may exercise power only to the extent authorised by the tribunal. (2) In this section— attorney includes a statutory health attorney. 1. We observe that by reason of the provisions of section 70, there is a clear intention that the powers of an attorney are to be restricted in the event that a guardian is appointed under the Queensland legislation. The reference to the tribunal is, by reason of Schedule 3 to that Act a reference to QCAT. In considering the application of the provisions of section 25 (2) (a) of the NSW Powers of Attorney Act we conclude that it is the intention of section 70 that the appointment of a guardian under the legislation of a relevant jurisdiction is intended to restrict the powers of an attorney by requiring authorisation. This is because the framework under which powers of attorney, including enduring powers of attorney, operate under the Queensland legislation differs from that in New South Wales. For example, section 6A of the Queensland Powers of Attorney Act makes specific reference to the Queensland Guardianship and Administration Act 2000, in a manner which is not found in the New South Wales legislation 6A Relationship with Guardianship and Administration Act 2000 (1) This Act is to be read in conjunction with the Guardianship and Administration Act 2000 which provides a scheme by which— (a) the tribunal may appoint a guardian for an adult with impaired capacity for personal matters to make particular decisions and do particular other things for the adult in relation to the matters; and Note— Personal matters do not include special personal matters or special health matters—schedule 2, section 2. (b) the tribunal may appoint an administrator for an adult with impaired capacity for financial matters to make particular decisions and do particular other things for the adult in relation to the matters; and (c) the tribunal may consent to the withholding or withdrawal of a life-sustaining measure and to particular special health care. Note— However, the tribunal may not consent to electroconvulsive therapy or a non-ablative neurosurgical procedure—Guardianship and Administration Act 2000, section 68(1). (2) The Guardianship and Administration Act 2000 also provides a scheme for health care and special health care for adults with impaired capacity for the matter concerned, including an order of priority for dealing with health care and special health care. Note— See the Guardianship and Administration Act 2000, sections 65 and 66. (3) The Guardianship and Administration Act 2000 also provides for the public advocate. (4) If there is an inconsistency between this Act and the Guardianship and Administration Act 2000, the Guardianship and Administration Act 2000 prevails. 1. Accordingly, the appointment of a guardian for ZTP in New South Wales will arguably restrict the exercise of the power to initiate this appeal without the authority of the guardian under section 25(2)(a) of the NSW Powers of Attorney Act which we have earlier reproduced. 2. We add for completeness that we do not regard Form 1 as creating an enduring power of attorney under the NSW legislation. There is no compliance with section 19(1)(c) (1) An instrument that creates a power of attorney creates an enduring power of attorney for the purposes of this Act if: (a) the instrument is expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument, and (b) execution of the instrument by the principal is witnessed by a person who is a prescribed witness (not being an attorney under the power), and (c) there is endorsed on, or annexed to, the instrument a certificate by that person stating that: (i) the person explained the effect of the instrument to the principal before it was signed, and (ii) the principal appeared to understand the effect of the power of attorney, and (iii) the person is a prescribed witness, and (iv) the person is not an attorney under the power of attorney, and (v) the person witnessed the signing of the power of attorney by the principal. (2) In this section: prescribed witness means: (a) a registrar of the Local Court, or (b) an Australian legal practitioner, or (c) a licensee under the Conveyancers Licensing Act 2003, or an employee of the NSW Trustee and Guardian or a trustee company within the meaning of the Trustee Companies Act 1964, who has successfully completed a course of study approved by the Minister, by order published in the Gazette, for the purposes of this paragraph, or (d) a legal practitioner duly qualified in a country other than Australia, instructed and employed independently of any legal practitioner appointed as an attorney under the instrument, or (e) any other person (or person belonging to a class of persons) prescribed by the regulations for the purposes of this paragraph. 1. It follows that in circumstances where a guardian has prima facie been validly appointed in New South Wales, with the specific authority to make decisions about ZTS''s access to legal services, and no consent has been obtained from the guardian to the institution of the appeal or to access legal services there must be further doubt about the purported exercise by ZTS of a power given to her under the enduring power of attorney entered into in Queensland upon which she informed us that she relied as entitling her to initiate these appeal proceedings in the name of ZTP. Conclusion 1. In circumstances where, 1. there has been a failure by ZTS to provide a copy of the power of attorney upon which she seeks to rely which is an authorised copy in accordance with either Queensland or New South Wales legislation 2. the appeal seeks that ZTS be appointed guardian in lieu of the Public Guardian in circumstances where she had informed the Tribunal from whose decision the appeal is brought that she did not wish to be appointed guardian 3. ZTP has given no indication that she has shown any interest in the proceedings 4. if the document was created pursuant to the laws of Queensland, the appointment of a guardian would arguably impact upon its efficacy 5. if the document was created pursuant to the laws of New South Wales, there has been a failure to comply with a mandatory requirement to provide a certificate we are not persuaded that the appeal was appropriately and validly initiated by ZTS acting pursuant to a power of attorney given to her by ZTP, which formed the basis of the notice of appeal. We note also that if ZTS wished to pursue this matter on behalf of ZTP she could have accepted the opportunity which we gave her to be substituted as the appellant in these proceedings, an opportunity which she declined. 1. For all these reasons, the appeal is 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2021