Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Weller v NSW Legal Services Commissioner [2022] NSWCATOD 67 Hearing dates: By submissions dated 23 July 2021, 21 August 2021 4 April 2022 and 8 April 2022 and on the papers. Date of orders: 24 June 2022 Decision date: 24 June 2022 Jurisdiction: Occupational Division Before: The Hon Jennifer Boland AM, Deputy President A Suthers, Principal Member L Porter, General Member Decision: 1. The decision of the Legal Services Commissioner dated 25 November 2020 in respect of Complaints 54415 and 58838 is affirmed. 2. The decision of the Legal Services Commissioner dated 25 November 2020 in respect of Complaints 52094 and 58839 is affirmed. 3. No order as to costs. Catchwords: ADMINISTRATIVE LAW – reviewability – review of disciplinary findings of Legal Services Commissioner – disciplinary decisions. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Act 2004 (NSW)(repealed) Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform Law (NSW) Powers of Attorney Act 2003 (NSW) Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) Cases Cited: Council of the NSW Bar Association v Lott [2016] NSWCATOD 159 Edith White v Judith Liane Wills [2014] NSWSC 1160 Gibbons v Wright [1954] HCA 17 HLT [2014] NSWCATGD 5. Lott v Council of the New South Wales Bar Association [2017] NSWCA 145) Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 Scott v Scott [2012] NSWSC 1541 Winefield v Clarke [2008] NSWSC 882 Yousef v Legal Services Commissioner [2020] NSWCATOD 85 Texts Cited: When a Client's Capacity is in Doubt – A Practical Guide for Solicitors, Law Society of New South Wales Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, American Bar Association Commons on Law and Ageing & American Psychological Association (2005) Guideline for Solicitors Preparing an Enduring Power of Attorney Law Society of New South Wales The Royal Commission Aged Care Quality and Safety Interim Report Category: Principal judgment Parties: Herbert Weller (Applicant) Legal Services Commissioner (Respondent) Representation: Solicitors: Applicant (self-represented) The Office of the Legal Services Commissioner (Respondent) File Number(s): 2021/00091668 2021/00101188 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act an order is made prohibiting the publication of the names of the complainant to the Legal Services Commissioner and persons involved in or named in the complaint. REASONS FOR DECISION Introduction 1. Mr Herbert Weller, a solicitor, is the applicant in an application to review disciplinary decisions of the New South Wales Legal Services Commissioner (the Commissioner) made on 25 November 2020. The Commissioner determined a complaint made by the son of an 88 year old gentleman, Mr CD,(54415), a complaint made by Mr EF,(52094), and two complaints instigated by the Commissioner himself (58838 and 58839). 2. For convenience, in these reasons, we refer to the complaints as "the consumer complaint", "the attorney's complaint", "the first Commissioner's complaint" and "the second Commissioner's complaint". There is substantial overlap in the underlying facts in all complaints and, as a consequence, there is overlap in the Commissioner's findings and determination of the complaints. 3. This review is focused on the duties of a solicitor, when acting for persons of advanced age, to ensure such clients have the requisite capacity to validly execute instruments including an Enduring Power of Attorney and the appointment of an enduring guardian. It also focuses on the capacity of a client to give instructions to commence litigation, and to understand advice about prospects of success and costs consequences of unsuccessful litigation, including indemnity costs. It is the Commissioner's position that the solicitor in this case did not act with the level of competence and diligence expected of a lawyer in dealing with two persons of advanced age. 4. The Commissioner determined, in respect of the consumer complaint and the Commissioner's first complaint, that the solicitor was guilty of unsatisfactory professional conduct as defined in s 296 of the Legal Profession Uniform Law (NSW) (the Uniform Law). As a result of that determination the Commissioner made orders under s 299 (1) (b) of the Uniform Law reprimanding the solicitor. He was fined the sum of $3,000 under s 299 (1) (f) of the Uniform Law and required to waive any fees for work done for a male client, Mr CD. 5. In respect of the attorney's complaint and the second Commissioner's complaint, the Commissioner determined that the solicitor should be reprimanded under s 299 (1) (b) of the Uniform Law, that a fine be imposed under s 299 (1) (f) of that law, and the solicitor was required under s 299 (1) (d) to waive all fees for a woman for whom he purported to act. 6. In broad terms, the solicitor submits the Commissioner failed to take account of his personal knowledge of the clients, and their wishes. He further submits the Commissioner gave insufficient weight to advice received from counsel instructed in proceedings in the Supreme Court of New South Wales. He asserts that his female client was subject to elder abuse perpetrated by her attorney and that he was acting to protect her interests. 7. We have determined that the Commissioner's decisions were the correct and preferable ones and affirm his two decisions made on 25 November 2020. The reasons for our conclusions are set out below. Non-publication orders 1. Neither party sought an order restricting publication of the names of the persons involved in these proceedings. As will become apparent later in these reasons, a decision of the Guardianship Division of this Tribunal was before the Commissioner, and the particulars of the complaints concern sensitive medical information about two persons, one of whom is now deceased. 2. Section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) enables the Tribunal, if it considers it desirable to do so by reason of the confidential nature of the evidence or for any other reason, of its own motion, or on the application of a party, to prohibit or restrict the name of any person regardless of whether or not that person is a party to the proceedings. 3. We have determined that a non-publication order should be made in the circumstances of this matter to ensure the privacy of persons, other than the solicitor, who are discussed in these reasons. 4. Accordingly, in these reasons we will refer to relevant persons as follows: 1. the consumer complainant as "the first complainant"; 2. the woman for whom the solicitor prepared a revocation of an enduring power of attorney, and a new enduring power of attorney and appointment of enduring guardian as "Mrs AB"; 3. the male person appointed as attorney for Mrs AB as "Mr CD". ( Mr CD, who is now deceased, is the father of the first complainant); 4. the female person appointed as attorney for Mrs AB as "Ms DE"; 5. the attorney appointed by Mrs AB as her attorney and guardian in 2015 as "Mr EF" (Mr EF is the complainant in the complaint referred to by us as the attorney complaint); 6. the aged care facility at which Mrs AB was residing at the relevant time as "Mrs AB's aged care facility"; and 7. the nursing home at which Mr CD was residing at the relevant time as "Mr CD's nursing home". The Administrative Review Application and grounds relied on 1. In his grounds for application for review of the consumer complaint and the Commissioner's complaint filed on 1 April 2021 the solicitor states: The Commissioner erred in finding that I engaged in unsatisfactory professional conduct in relation to the complaints itemised in his two letters dated 25 November 2020. 1. In his grounds for application of review of the attorney's complaint also filed on 1 April 2020 the solicitor relies on identical grounds. 2. On 5 May 2021 the solicitor filed an Administrative Review application form in which he sets out under the heading "Amended Administrative Review Application form" grounds for his application in respect of the consumer complaint that the Commissioner erred in failed to give due weight: 1. to the statements made by Mrs AB. 2. to the statements made by Mr CD. 3. to the statements made by Ms DE. 4. to statements made by Mrs DE's partner. 5. to the statements of the daughter of Mrs DE and her partner. 6. to the statement by staff of [Mrs AB's aged care facility] that I was not able to have access to the treating doctor at Mrs AB's aged care facility. 7. to the refusal of the staff of Mrs AB's aged care facility to permit me to see [Mrs AB]. 8. to the recommendations of the Law Society that solicitors need to take great care to avoid making assumptions that a person lacks mental capacity because of their disability or their advances [sic] age. 9. to the High Court decision I referred to, which in essence confirmed the recommendations of the Law Society. 10. to the submissions I made during the investigation. 11. to the statements and opinion of Trevor Boyd, Barrister. The complaints the subject of the appeal 1. The Commissioner agitated four separate complaints against the solicitor, each complaint in turn containing separate complaints and particulars. The first complaint was one instituted by the first complainant (Mr CD's son). The first complaint was, in part, raised because of indemnity costs orders made against Mr CD arising out of proceedings in the Supreme Court of NSW. Those proceedings were commenced by the solicitor on behalf of Mr CD as plaintiff, and with Mrs AB's aged care facility as first defendant and her attorney, Mr EF, appointed under a 2015 instrument, as second defendant. The Summons sought the granting of the prerogative writ of habeas corpus to bring Mrs AB before the Court, or her release from the aged care facility. 2. The first Commissioner's complaint (which agitates five separate complaints and particulars thereof) was instigated by the Commissioner himself and dealt with by the Commissioner in the same reasons as the consumer complaint. The Commissioner, among other complaints, framed complaints addressed to the solicitor's failure to obtain appropriate instructions to compromise an indemnity costs order made in favour of the two defendants by the presiding Judge, Kunc J. 3. The attorney's complaint was that the solicitor had prepared documents for execution by Mrs AB (revocation of an enduring power of attorney, a new enduring Power of Attorney and appointment of enduring guardian, a caveat over the title to Mrs AB's house) without first obtaining a medical certificate as to her capacity. We refer to the complaints in more detail below. 4. We have annexed to these reasons and marked as Annexure 'A" a copy of the complaints and the particulars of each complaint relied on by the Commissioner. The consumer complaint and first Commissioner's complaint- summary 1. In summary, the thrust of the consumer complaint is that the solicitor took instructions from Mr CD, to be Mrs AB's attorney, when he knew or ought to have known Mr CD lacked capacity to understand the effect of an enduring power of attorney or to give instructions to commence proceedings in the Supreme Court and, after commencing those proceedings, failed to give advice to Mr CD about offers from the defendants to compromise indemnity costs orders made in the defendant's favour. At the relevant time Mr CD was aged 88 years and was resident in a nursing home. Mr CD died in November 2018. 2. The Commissioner's complaints arise out of the same factual background and assert a failure by the solicitor to make written contemporaneous file notes of his attendance on Mr CD and steps he took to satisfy himself of Mr CD's capacity to understand the nature and effect of the enduring power of attorney and enduring guardianship. It is also alleged the solicitor failed to make appropriate file notes about Mr CD's capacity to understand costs he may incur in the Supreme Court proceedings and to ensure that Mr CD understood and had capacity to consent to the solicitor commencing the Supreme Court proceedings. The complaint asserts that the solicitor failed to act competently and diligently in the Supreme Court proceedings. The attorney's complaint and the second Commissioner's complaint- summary. 1. The attorney, Mr EF, complained to the Commissioner that the solicitor had prepared documents which Mrs AB executed on 23 May 2017 whilst a patient residing in the aged care facility. The relevant documents include the revocation of an enduring power of attorney which appointed Mr EF as Mrs AB's attorney. He also complained that the solicitor prepared an enduring Power of Attorney and appointment of enduring guardians by which Mrs AB appointed Mr CD and Ms DE as her attorneys and guardians without obtaining a medical opinion about Mrs AB's capacity. 2. Mr EF alleged the solicitor was on notice of concerns about Mrs AB's capacity by reason of correspondence from Mrs AB and Mr EF's solicitor (Mr Brown) alerting him about her lack of capacity. 3. The Commissioner's second complaint agitates two particulars of complaint, namely, that the solicitor failed to act competently and diligently in relation to the preparation of "Documents" when he knew or ought to have known that Mrs AB lacked capacity. The particulars of this complaint refer to the failure by the solicitor to seek any medical opinion, and a failure by him to make written contemporaneous file notes of steps taken to assess Mrs AB's capacity on 23 May 2017 (the date of execution of documents). 4. The particulars further allege the execution of the documents occurred in circumstances where the solicitor had been advised by letter from Mr Brown on 1 December 2016 that Mrs AB was suffering from Alzheimer's disease, and on 5 December 2016 in a telephone conversation with Mr Brown the solicitor was advised that he should obtain a medical certificate from Mrs AB's doctor. 5. Complaint 2 of the second Commissioner's complaint relates to the failure to make contemporaneous file notes setting out the steps the solicitor took to assess Mrs AB's capacity. Relevant statutory provisions 1. The two complaints were dealt with under s 299 of the Uniform Law. That section provides as follows: 299 Determination by local regulatory authority—unsatisfactory professional conduct (1) The designated local regulatory authority may, in relation to a disciplinary matter, find that the respondent lawyer or a legal practitioner associate of the respondent law practice has engaged in unsatisfactory professional conduct and may determine the disciplinary matter by making any of the following orders— (a) an order cautioning the respondent or a legal practitioner associate of the respondent law practice; (b) an order reprimanding the respondent or a legal practitioner associate of the respondent law practice; (c) an order requiring an apology from the respondent or a legal practitioner associate of the respondent law practice; (d) an order requiring the respondent or a legal practitioner associate of the respondent law practice to redo the work that is the subject of the complaint at no cost or to waive or reduce the fees for the work; (e) an order requiring— (i) the respondent lawyer; or (ii) the respondent law practice to arrange for a legal practitioner associate of the law practice— to undertake training, education or counselling or be supervised; (f) an order requiring the respondent or a legal practitioner associate of the respondent law practice to pay a fine of a specified amount (not exceeding $25 000) to the fund referred to in section 456; (g) an order recommending the imposition of a specified condition on the Australian practising certificate or Australian registration certificate of the respondent lawyer or a legal practitioner associate of the respondent law practice. (2) If the designated local regulatory authority proposes to determine a disciplinary matter under this section— (a) the designated local regulatory authority must provide the respondent or associate and the complainant with details of the proposed determination and invite them to make written submissions to the designated local regulatory authority within a specified period; and (b) the designated local regulatory authority must take into consideration any written submissions made to the designated local regulatory authority within the specified period, and may, but need not, consider submissions received afterwards; and (c) the designated local regulatory authority is not required to repeat the process if the designated local regulatory authority decides to make a determination in different terms after taking into account any written submissions received during the specified period; and (d) the rules of procedural fairness are not breached merely because no submissions are received within the specified period and the designated local regulatory authority makes a determination in relation to the complaint, even if submissions are received afterwards. (3) If the designated local regulatory authority determines a disciplinary matter under this section, no further action is to be taken under this Chapter with respect to the complaint. (4) If a complaint contains both a consumer matter and a disciplinary matter and the designated local regulatory authority has already made a determination of the consumer matter under section 290, the designated local regulatory authority may, in subsequently making a determination about the disciplinary matter, take into account the determination already made about the consumer matter, but not so as to make further orders under that section. 1. The present application is brought under s 314 of the Uniform Law. Section 314 is in the following terms: 314 Right of appeal or review of decisions of local regulatory authority (1) A respondent lawyer or a legal practitioner associate of a respondent law practice may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal against, or seek a review by the designated tribunal of, a determination of the designated local regulatory authority under— (a) section 290, in relation to a compensation order for more than $10000; or (b) section 299. (2) The designated tribunal may make any order it considers appropriate on the appeal or review. (3) It is intended that jurisdictional legislation may provide a right of appeal against or a right of review of the designated tribunal's decision. 1. The Application Act (see s 126) provides that the review is one conducted under the provisions of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) (as was the case under the repealed Act, the Legal Profession Act 2004 (NSW) (repealed)). 2. Section 63 of the Administrative Decisions Review Act deals with the Tribunal's task in determining the review before it. Section 63 provides as follows: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. Section 66 of the ADR Act deals with the date of and the effect of a decision made by the Tribunal. It provides as follows: 66 Effect of administrative review decision (1) A decision determining an application for an administrative review under this Act of an administratively reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision. (2) If any such decision varies, or is made in substitution for, an administrator's decision, the decision of the Tribunal is taken: (a) to be the decision of the administrator (other than for the purposes of an administrative review under this Act), and (b) to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders 1. The Tribunal's task under s 63 is explained in Yousef v Legal Services Commissioner [2020] NSWCATOD at [21]-[22] as follows: This is a review on the merits: Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154 ("Donaghy"). We are not concerned to examine whether there was challengeable error in the process or reasoning by the Commissioner, although parts of the grounds of the application as lodged in the Tribunal appear to proceed on this basis. As the NSW Court of Appeal said in Donaghy, the Tribunal is to "decide what the correct and preferable decision is having regard to the material before it" under s 63(1) of the ADR Act. That material includes "any relevant factual material". The nature of that review does not require that the Tribunal address whether the relevant administrator's decision involved error or was manifestly unsupportable. It is a review on the merits to be determined on the material before the Tribunal: Donaghy at [8]. The term "merits review" does not appear in the NCAT Act. In relation to the Commonwealth Administrative Appeals Tribunal (AAT), Kiefel J explained in Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 ("Shi") at [140] that the term "merits review", while not appearing in the Administrative Appeals Tribunal Act 1975 (Cth) is: "often used to explain that the function of the [AAT] extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision. The object of the review undertaken by the [AAT] has been said to be to determine what is the "correct or preferable decision". "Preferable" is apt to refer to a decision which involves discretionary considerations. A "correct" decision, in the context of review, might be taken to be one rightly made, in the proper sense. It is, inevitably, a decision by the original decision-maker with which the [AAT] agrees." Procedural History 1. This review application has had a somewhat protracted history in the Tribunal. On 5 May 2021 directions were made, including directions for the solicitor to serve any request for further and better particulars on the Commissioner by 16 May 2021, and for the Commissioner to serve all relevant documents under s 58 of the Administrative Decisions Review Act by 26 May 2021. The solicitor was to provide a written outline of submissions by 28 July 2021. On 6 July 2021 Deputy President Cole DCJ varied the timetable and listed the matter for directions on 6 September 2021. On that occasion her Honour made a direction for the parties to attempt to agree on a statement of agreed facts and listed the matter for directions on 3 November 2021. On that day the solicitor was again afforded time to serve any further written submissions by 19 January 2022 and the matter was listed for hearing on 14 March 2022. 2. Time to comply with the directions made on 3 November 2021 was again extended by Cole DCJ on 2 February 2022. However, as the parties could not reach agreement about agreed facts, on 28 February 2022 when the matter was relisted at the request of the Commissioner, the presiding member made directions for the parties to provide a list of any of the facts set out in the other's statement of facts with which the opposing party disagreed by 7 March 2022. On 7 March 2022 the Commissioner filed a document in tabular form setting out facts in the respondent's list of "agreed facts" which were disputed. The majority of "facts" relied on by the solicitor are disputed by the Commissioner or are asserted to be irrelevant or inconsistent with the Commissioner's findings and in one instance, is said to mischaracterise the evidence. 3. Unfortunately, we found the inability of the parties to reach consensus about relevant facts did not accord with the objectives of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) (see in particular s 3 (d) and s 36 (3)). As a consequence, we have proceeded to determine this review by ourselves recording relevant facts from the s 58 documents. 4. On 7 March 2022 the solicitor's office advised that the solicitor had been unable to access his office due to flooding in the Richmond area and sought that the hearing be adjourned. The Commissioner wrote to the Registrar on 10 March 2022 and acknowledged the difficulties caused by the flooding in NSW but opposed any further adjournment of the matter and sought either that the matter proceed on 14 March 2022 or that we determine the matter "on the papers". 5. On 14 March 2022, after hearing the solicitor's submissions in support of vacating the hearing date, rather than pressing that application, he agreed that we could deal with the matter on the papers as provided in s 50 of the NCAT Act with the proviso that he have a further 21 days to provide any further written submissions. 6. Having regard to the procedural history of this matter, and the objects of the NCAT Act, we determined that the matter should proceed on the papers but subject to the opportunity for the solicitor to file and serve any further written submissions and for the respondent to have an opportunity, if submissions were filed by the solicitor, to respond to those submissions. 7. We received submissions from the solicitor on 4 April 2022 and from the Commissioner in reply on 8 April 2022. 8. We pause to record that the s 58 documents in this matter comprise over approximately 1050 pages with a number of documents replicated. In some cases, copies of correspondence between the Commissioner and the Solicitor are disclosed but without attachments referred to in the letter. As we agreed to deal with this matter "on the papers" we did not have the benefit of the parties taking us to documents which either one may have wished to highlight as having direct relevance to this review. This has resulted in these reasons necessarily being of greater length than may otherwise have been the case. Background relevant to all complaints 1. The solicitor, according to the Commissioner's records, was admitted to practice in March 1977. He practises in a firm known as "Herbert Weller" at Richmond NSW. 2. Mrs AB, until 2016, lived in the Hawkesbury area. Her husband died around 2012. 3. After her husband's death, Mrs AB enjoyed a close friendship with Mr CD. They regularly frequented a local café, where from time to time the solicitor spoke with them. 4. Mrs AB executed an Enduring Power of Attorney and Enduring Guardianship on 2 October 2015 appointing her late husband's former business partner (Mr EF) as her attorney and guardian. The documents were prepared by Mr Brown of David Brown and Partners, and that solicitor also completed and witnessed the relevant certificates. Mr Brown's statement that he acted for Mrs AB, her late husband and Mr EF for over two decades is unchallenged. The solicitor does not dispute that Mrs AB had capacity to execute the documents in 2015. 5. On 5 March 2016 Mr CD appointed his daughter as his attorney and guardian pursuant to an enduring power of attorney and enduring guardian. The documents were prepared and witnessed by the solicitor. The solicitor also provided the relevant certification for the enduring power of attorney. 6. On 5 March 2016 the solicitor made a file note regarding Mr CD re "Will, P of A and EG. Reading documents and review file client and [Mr CD's daughter], explaining, advising and witnessing the documents". The file note also records: "[Mrs AB's first name] says she would like to change her P of A, and EG doesn't trust [Mr EF] and 'the solicitor'. Will discuss further later on. [Mr CD's first name] says he will pay the legal costs and expenses for [Mrs AB's first name]". 1. On 26 November 2016 the solicitor wrote to the National Australia Bank, Legal Branch advising that he had attended the bank's offices at Windsor with Mrs AB and was advised that she was unable to withdraw funds without Mr EF being present and signing relevant documents. The solicitor noted "I am instructed that this arrangement has been put in place fairly recently and Mrs AB has no recollection of signing any document to give effect to that course". 2. On 1 December 2016 Mr Brown wrote to the solicitor and advised that Mrs AB's treating geriatrician advised she was having difficulty managing her financial affairs and needed a financial manager to act for her as she was suffering "Alzheimers". He also recorded that he had acted for Mrs AB and her late husband for many years, that he had visited Mrs AB this year and noticed "a significant mental impairment". He also noted her condition had "worsened significantly since early this year". 3. On 6 December 2016 the solicitor forwarded a letter to Mr CD enclosing a costs agreement. 4. Also by letter dated 6 December 2016, the solicitor forwarded another letter to Mr CD headed "Advice concerning Mrs AB. Costs Disclosure and Proposed Costs Agreement". The "scope of work" referred to in the letter states "You have instructed us to act for you in relation to providing advice to you regarding your bank account. The total estimated costs of work to be done is estimated at $6,000 inclusive of GST." 5. At some time in 2016, Mr CD was admitted to St John of God Hospital, following a car accident. On discharge he took up residence in a nursing home at Richmond where he remained until his death in 2018. 6. On 11 December 2016 Dr Sasikaran, medical practitioner, made an entry in Mr CD's clinical notes at St John of God, Health Care, Hawkesbury District Health Care. The doctor recorded: "[Mr CD] has severe mixed dementia. Prior functioning in all domains of cognition. Will not be able to function on his own. Very poor insight no capacity to make his decisions. I will prepare medical document. S/W [social worker] to apply to Guardianship Tribunal". 7. On 13 December 2016 the solicitor wrote to Mr Brown and advised that Mrs AB had instructed him that her "Attorney [Mr EF] and you, may not be acting in her best interests". The solicitor noted: You say that you have recent medical opinions which provides evidence that [Mrs AB] is incapable of giving instructions. You may be correct about this, however, you and the Attorney/Enduring Guardian refuse to provide a copy thereof. You also refuse to provide a copy of the Power of Attorney and Enduring Guardian. Assuming that [Mrs AB] does not have capacity to provide instructions, she certainly has capacity to be worried and concerned about her own welfare and assets. These are her instructions to me. 1. On 20 December 2016 Mr Brown wrote to the solicitor and referred to a telephone conversation of 5 December in which he had "strongly suggested" that, before the solicitor attempt to act for Mrs AB, he should obtain a certificate from her doctor regarding her capacity to give instructions. 2. On 30 December 2016 Mrs AB was seen by a neuropsychologist (Dr Rock) who prepared a report addressed to her referring geriatrician. The neuropsychologist opined that Mrs AB had "moderately severe Alzheimer's Disease, and that while she was reasonable familiar with a Power of Attorney at a general level she was unaware of how it may impact her personally". 3. On 23 January 2017 Mr Brown wrote to the solicitor advising that Mrs AB had contacted him "extremely distressed". The solicitor was advised should he seek to contact Mrs AB again a complaint would be lodged without further notice. 4. In February 2017 Mr CD was transferred from St John of God Hospital, Hawkesbury to a nursing home. 5. On 2 April 2017, after she was discharged from hospital following a fall, Mrs AB was placed in an aged care facility for respite care by Mr EF as her guardian. Mrs AB became a permanent resident at that facility on 24 April 2017. 6. On 16 May 2017 the solicitor wrote to Mr CD enclosing a costs agreement of the same date. The scope of work is noted in the costs agreement as "You have asked us to act for you in relation to protect the welfare and assets of Mrs AB". An estimate of total fees of $55,500 is set out in the costs agreement. 7. On 23 May 2017 Mrs AB signed a revocation of the 2015 Power of Attorney. The instrument of revocation was witnessed by the solicitor who attended Mrs AB's aged care facility on that date. 8. On 23 May 2017 Mrs AB executed an Enduring Power of Attorney in which she appointed Mrs DE and Mr CD as her attorneys without limitation. Mrs AB's address on the document is a residential address not her aged care facility address. Mr CD's address is shown on the document in handwriting as a street in Richmond NSW being the address of his nursing home. The certificate under s 19 of the Powers of Attorney Act 2003 (NSW) is signed by the solicitor. The document does not state whether the attorneys are appointed jointly or jointly and severally but it appears it is intended they would act jointly as the document reads "Ms DE together with Mr CD". 9. On 24 May 2017 the solicitor wrote to Mr Brown seeking advice as to whether or not he had instructions to accept service of Revocation of the 2015 Enduring Power of Attorney. On the same day the solicitor sent a copy of the Revocation of the 2015 Enduring Power of Attorney to the National Australia Bank, Windsor. 10. On 26 May 2017 the solicitor wrote to Mr Brown, and to Mrs AB's aged care facility notifying them of the revocation of Mr EF as Mrs AB's attorney. The solicitor sought Mrs AB's release from her nursing home. 11. On 26 May 2017 lawyers for Mrs AB's aged care facility wrote to the solicitor expressing concern about Mrs AB's medical condition and suggested Mr CD and Mrs DE should make an urgent application to the Guardianship Division of NCAT. 12. On 26 May 2017 Mr Brown sent an email to Sharon Cooper, a solicitor in the employ of the solicitor, noting he had seen Mrs AB the day after she signed the revocation of the power of attorney but she had no recollection of the document. He noted that a medical report would be sent shortly and expressed concern about how a legal practitioner could not recognise "clear signs of severe mental impairment". 13. On 7 June 2017 the solicitor wrote to Mrs AB's aged care facility requesting Mrs AB be "released" by 4pm on 9 June 2017 or that proceedings would be commenced in the Supreme Court of New South Wales. He explained, on his instructions, it was "absolutely clear that Mrs AB is being held in [the aged care facility] against her will." He also noted concern that he, Mr CD and Ms DE and other close friends had been prevented from visiting Mrs AB. 14. On 8 June 2017 Mr Brown forwarded a copy of a neuro-psychological assessment of Mrs AB by Dr Rock dated 31 December 2016 to the solicitor. The letter advised should any application be made to the Supreme Court that "our client" would be seeking costs. The letter requested an immediate undertaking not to act on any documents the solicitor may have had Mrs AB sign. 15. On 8 June 2017 the solicitor wrote to Mrs AB's aged care facility requesting "confirmation of the legal basis on which Mrs AB was being detained in [the aged care facility". On the same day he wrote to Mr Brown advising that, if Mrs AB was not released by 4pm on 9 June, 2017 he had instructions to commence proceedings in the Supreme Court. 16. On 8 June 2017 notice of an urgent application to the Guardianship Division of NCAT seeking the appointment of the Public Guardian as guardian for Mrs AB was served on the solicitor at 2.38pm. 17. On 8 June 2017 at 2.55 pm the solicitor filed a Summons in the Supreme Court on behalf of Mr CD as First Plaintiff seeking a writ of habeas corpus for Mrs AB, or in the alternative, that the first defendant (Mrs AB's aged care facility) or Mr EF (the second defendant) be restrained from detaining Mrs AB. The summons was supported by an Affidavit of Mrs DE sworn 8 June 2017. The summons also purported to be supported by an affidavit of Mr CD sworn 8 June 2017 and witnessed by the solicitor although it appears that this affidavit was not filed in the Supreme Court until 14 June 2017. 18. On 10 July 2017 the solicitor wrote to the Guardianship Division of NCAT (NCAT). He advised he had discussions with Mr CD "on the weekend" and had a further discussion with Mrs DE. The letter enclosed handwritten notes of Mrs DE of her visit to Mrs AB on 19 and 20 June 2017 and a typed affidavit (noted yet to be signed by Mr CD) headed in the Supreme Court proceedings. He advised he had no further instructions in the matter. He confirmed that Mr CD and Mrs DE would not be attending the Tribunal and noted that the Public Guardian should be appointed "to manage [Mrs AB's first name] care and financial matters". 19. On 10 July 2017 the solicitor forwarded a Notice of Discontinuance in respect of the Supreme Court proceedings to Mr Brown and Mrs AB's aged care facility's solicitors. 20. On 14 July 2017 the solicitors for Mrs AB's aged care facility, O'Neill partners, noted in correspondence to the solicitor that their client had incurred costs of $11,828.72 but made an offer to settle the matter on the basis the Supreme Court proceedings were dismissed and its client's costs, fixed in the sum of $10,000, were paid. The offer was expressed to remain open until 4pm that day. 21. On 17 July 2017 in the Supreme Court, Kunc J made orders granting leave to the plaintiff (Mr CD) to discontinue the proceedings and ordering that the plaintiff "is to pay the defendants' costs on an indemnity basis". His Honour granted the parties liberty to apply during the course of the day in relation to a gross sum costs order. 22. On 19 July 2017 the solicitors for Mrs AB's aged care facility advised the solicitor that they would be seeking indemnity costs in respect of the Supreme Court proceedings. 23. On 28 March 2018 Michael John Dyson, costs assessor provided a certificate of determination of costs on the application of Mrs AB's aged care facility and Mr EF in the sum of $18,300.94. 24. On 8 May 2018 the Commissioner received correspondence from the first complainant, Mr CD's son. 25. On 15 July 2019 the first complainant advised the Commissioner that a payment for costs in the sum of $34,640.98 from Mr Brown was compromised by the payment of the sum of $25,000 being Mr EF's costs, and on 28 July 2018 a sum of $19,560.02 was paid to the solicitors for Mrs AB's aged care facility. The Commissioner's reasons in respect of the consumer complaint and the Commissioner's first complaint The preliminary view letter. 1. In order to understand the Commissioner's decision, it is necessary we refer to his letter dated 5 May 2020 (the preliminary view letter). The Commissioner's final determination refers to and adopts findings made in his preliminary view letter. 2. By letter dated 5 May 2020 the Commissioner provided his "preliminary view" on the consumer complaint, and his own first complaint, and said that the solicitor would be provided an opportunity to make further submissions before he made his final determination. 3. At para 8 of his letter the Commissioner noted that Mr Brown, in his letter dated 1 December 2016, (which we have referred to above) had recommended that the solicitor should obtain "clearance from Mrs AB's doctor before proceeding further" and this was a "Red Flag". 4. The Commissioner recorded as Red Flag 2 the telephone advice received from Mr Brown on 5 December 2016 and referred to in Mr Brown's letter of 20 December 2016 that he "strongly suggested" that the solicitor obtain a certificate from Mrs AB's doctors about whether she had capacity to give instructions. 5. The Commissioner identified as Red Flag 3 the fact Mr Brown, in his letter of 20 December 2016, recorded that he had known Mrs AB for 25 years and that to his observation Mrs AB's mental state had deteriorated significantly and that, as a lawyer, the solicitor should have been aware that comments such as "being taken advantage of" were not uncommon. 6. Red Flag 4 was identified as being based on Mr Brown's letter of 23 January 2017 when Mr Brown advised he had spoken to Mrs AB who was upset, and that his firm continued to act for her and her attorney and enduring guardian. 7. The Commissioner noted after Mrs AB's aged care facility was provided with the three documents executed by Mrs AB on 23 May 2017, her nursing home pointed out to the solicitor that the proper course of action was for an application to be made to the Guardianship Division of NCAT. The Commissioner described the aged care facility's advice to approach NCAT as Red Flag 5. 8. Red Flag 6 is recorded as the advice to the solicitor from Mr Brown that he had visited Mrs AB on 24 May 2017 when she is reported to have said she had no recollection of signing documents the previous day. 9. The Commissioner noted as Red Flag 7 Mrs AB's aged care facility's advice, on 26 May 2017, that Mrs AB lacked capacity to revoke the enduring power of attorney and enduring guardianship and that any concerns should be taken to NCAT. 10. The Commissioner then records the correspondence between the solicitor and Mr Brown and notes that, on 8 June 2017, Mr Brown forwarded to the solicitor by fax a report of Dr Rock (which report opined that Mrs AB was not capable of making her own decisions). The letter further advised if any proceedings were instituted in the Supreme Court "we will be seeking an order for costs". The Commissioner described this correspondence and report as Red Flag 8. 11. At para 28 of his letter the Commissioner concludes that: Upon receipt of the report of Dr Rock, a reasonably competent and diligent lawyer would have advised [Mr CD] not to commence proceeding for a Writ of habeas corpus. Dr Rock's report revealed that there were strong medical reasons why [Mrs AB] had been admitted to [the aged care facility] namely her lack of capacity. If [Mr CD] still wished to proceed, a reasonably competent and diligent lawyer would have advised him not to do so until he/she was able to obtain an expert report as to [Mrs AB's] capacity or lack thereof. As it then stood, you did not have evidence to contradict the conclusions reached by Dr Rock. You also did not have any evidence to support [Mrs AB's] assertions that she was at financial risk due to the action of [Mr EF]. 1. The Commissioner records, at para 29, the solicitor had notified Mrs AB's aged care facility on 8 June 2017 that if she was not released by 4pm on 9 June 2017 proceedings would be commenced. At para 30 the Commissioner records that the solicitor was notified by Mrs AB's aged care facility at 2.38 pm that an urgent application had been made to the Guardianship Division of NCAT seeking the appointment of the Public Guardian as guardian for Mrs AB. 2. Para 31 records that the solicitor's office filed the proceedings in the Supreme Court with Mrs AB's aged care facility and Mr EF as defendants. The letter further notes that Mr CD swore an affidavit dated 8 June 2017 which was filed in the Supreme Court on 14 June 2017. The Commissioner notes that the affidavit annexed the letter from Mr Brown's office together with the report of Dr Rock. The Commissioner explains that he therefore assumed the solicitor had seen the report of Dr Rock before he filed the Summons or shortly thereafter. 3. At para 33 the Commissioner again concludes a reasonably competent and diligent lawyer who was in the position of the solicitor would not have commenced proceedings until he had obtained an expert report about Mrs AB's capacity or would have commenced proceedings in the Guardianship Division of NCAT to review the appointment of Mr EF as Mrs AB's attorney. 4. The Commissioner also records that the solicitor had, as noted by Kunc J in the Supreme Court, "jumped the gun" one day before the deadline he gave to Mrs AB's aged care facility had expired and this was one of the reasons indemnity costs were ordered. The Commissioner records that the Guardianship Division of this Tribunal made orders "temporarily" appointing the Public Guardian as Mrs AB's guardian on 9 June 2017 and explains these facts as Red Flag 9. 5. At para 37 the Commissioner notes that, at this point (i.e. 9 June 2017) there was an opportunity for the solicitor to advise Mr CD to discontinue the Supreme Court proceedings or to adjourn the proceedings and get an expert report as to Mrs AB's capacity, and/or to get the Public Guardian's views about her capacity. The Commissioner concludes at this point in his provisional view letter: The proceedings were listed for 13 June 2017. A discontinuance at this early stage would have greatly reduced the substantial costs that were subsequently incurred. You did not take up this opportunity but instead sought an urgent hearing. 1. The Commissioner then notes that the solicitor could, and should, have consulted Mr CD's daughter, his attorney under the enduring power of attorney, about the proceedings but failed to do so. These matters are noted as Red Flag 10 (para 41). It is noted at this stage that the Supreme Court proceedings were adjourned until 17 July 2022. Again, at para 42 and 43, the Commissioner records his preliminary view that there was, at this stage, an opportunity to advise Mr CD to immediately discontinue the proceedings with a view to reducing costs and to commence proceedings in NCAT. The Commissioner again refers to his preliminary conclusion that Mr CD's attorney should have been consulted. 2. At para 44 the Commissioner concludes the letter from the aged care facility's solicitors dated 19 June 2017 that it was seeking indemnity costs of the proceedings on 13 June 2017 should have been a red flag (described at Red Flag 11 costs) 3. At para 45 the Commissioner expresses the following conclusions: Having advised [Mr CD] to commence proceedings that were, in my view, doomed to failure, you had a duty to mitigate the loss to [Mr CD]. That duty, in my view, encompassed a duty to re-assess the case to see whether [Mr CD] had any evidence to rebut Dr Rock's conclusions. He had none. You took no steps to obtain evidence to rebut Dr Rock's conclusions. 1. At para 49 the Commissioner records that the letter from solicitors for the aged care facility, who made an offer to compromise costs by the payment of $10,500, was not responded to by the solicitor. This is noted as Red Flag 12 costs. 2. Red Flag 13 is noted also to relate to the solicitor's failure to respond to an offer to settle the aged care facility's costs in the sum of $16,494.07. 3. At para 59 the Commissioner refers to correspondence from counsel briefed by the solicitor in the Supreme Court proceedings and notes that counsel advised there may be "some merit" in accepting the compromise on costs of $12,500 sought by the nursing home's solicitors. This is recorded as Red Flag 14 costs. 4. At paras 68 to 111 the Commissioner records the solicitor's responses to the complaints and his observations about the responses. 5. The Commissioner's reasons first consider the solicitor's reported conversation with Mrs AB when she complained that "Mr EF has locked me up in here so he can get my money and my house". The Commissioner concludes that this response "sheds no light on [Mr CD's] mental capacity to accept his appointment as the co-attorney and co-guardian of [Mrs AB] and at the time he instructed you to commence the proceedings". The Commissioner notes that there was no evidence to support Mrs AB's assertion that Mr EF was accessing her money at the bank and cash she had at home. 6. The Commissioner included, at para 74: It should have caused you to advise [Mr CD] against commencing the proceedings until you had obtained other medical evidence to contradict Dr Rock's conclusions. 1. At para 75 it is noted that the appropriate course that should have been taken by Mr CD in light of Mrs AB's statements about Mr EF was to commence proceedings in NCAT to review Mr EF's appointment as guardian. This failure is noted to have been "at a great financial cost to Mr CD". 2. At para 79-91 the Commissioner records the solicitor's submissions received in response to correspondence from his office. The submissions include the solicitor's submission that he had met Mrs AB in 2015 when he had seen her on more than one occasion in the local village when she was in the company of Mr CD. Mrs AB's complaints about Mr EF are set out including an assertion that he had made her "sign over" all her assets and money and that she would probably change her Power of Attorney and Enduring Guardianship. 3. The Commissioner records the solicitor's submission that, in early 2016, when he and his wife were having dinner with Mrs AB, she asked if he would prepare a new Power of Attorney and appointment of a new guardian. The Commissioner also records the solicitor's explanation of his visit to Mrs AB's aged care facility in late April or early May 2017 including his submissions about his observations about the unsuitability Mrs AB's accommodation and that to his observation "[Mrs AB's first name] did not belong in this 'Dementia Ward'" and that "she was extremely concerned not only about her assets but why she had been placed in [name of aged care facility]". The Commissioner notes the solicitor admitted he had not made a file note about this visit. 4. The Commissioner also sets out in detail the solicitor's submissions about a visit to Mrs AB with his wife on or about 15 May 2017 including the solicitor's assertion that: I saw no deterioration in [Mrs AB's first name] faculties during the period that I had known her. In fact, on the occasions I saw her at [the aged care facility] [Mrs AB's first name] was clear, precise and communicated exactly what she thought and wanted. There was no confusion and no disorientation. There was clear and precise confirmation the Power of Attorney and Enduring Guardian appointing [Mr EF] must be revoked. There was clear and precise confirmation, [Mrs AB's first name] was being held in [the aged care facility] against her will. 1. The Commissioner records the solicitor's concession that he did not make a file note of this attendance. He also records that the solicitor advised he had consulted with Mr CD and Ms DE and they agreed to the appointments. The Commissioner records that the solicitor reported he had prepared relevant documents and then met Mrs AB at the aged care facility on 23 May 2017. Again, the Commissioner's letter sets out the solicitor's response to the complaint as follows: Before [Mrs AB's first name] signed the documents, I was under no doubt, she had mental capacity to understand the nature of the documents. I applied the principles at law and judgment which we practitioners are required to do. I assessed her decision making ability. [Mrs AB's first name] had the mental capacity to make this decision and sign the documents [Mrs AB] confirmed, what she had told me over the past 18 months or so. [Mrs AB] said she wanted to revoke the Power of Attorney and Enduring Guardian she was made or tricked into signing by Mr EF. He had promised to marry her. She wanted to appoint her best friend [Ms DE's first name] and partner [Mr CD's first name] to look after her assets and well being. She wanted to be released "from this dreadful place and go home to [suburb]". She trusted [Ms DE's first name] and [Mr CD's first name] to take care of her. 1. The solicitor's submission, recorded accurately by the Commissioner, is set out at para 84(c)as follows: I have been assisting persons with these documents for over 40 years. The principles are clear. The person must understand the nature and effect of the documents and how the signing of these documents could impact the client. A person's state of mind, even if suffering a mental illness, can be fluid. [Mrs AB] if affected by dementia, was lucid and clear about the matters she desperately wanted to invoke. She was lucid and clear that she had been "locked up in this dreadful place" against her will because [Mr EF] no longer wanted to marry her and had abandoned her. [Mrs AB] said she wanted to cancel or revoke the earlier documents appointing [Mr EF], make a new Power of Attorney and Enduring Guardian appointing [Ms DE first name] and [Mr CD]. She also wanted to protect her home. I said she could lodge a caveat, to protect her home from sale or transaction [Mr EF] might undertake. 1. The Commissioner records the solicitor's submission in response to his letter dated 17 August 2018 in which the solicitor was asked to detail the questions he had asked Mrs AB before she executed the Enduring Power of Attorney and appointment of Guardian as follows: As to the questions I asked [Mrs AB's first name] they incorporated a statement to this effect: "I have prepared the documents you have asked for and brought them with me. The Power of Attorney and the Enduring Guardian are the same as the documents you signed in late 2015 when you appointed [Mr EF's first name]. By signing these, [Mr EF's first name] is no longer your Attorney and Guardian and in his place you appoint [Ms DE's first name] and [Mr CD's first name]". "[Ms DE's first name] and [Mr CD's first name] will be able to make the decisions about your health, your care, your property, your moneys in the bank and where you live, if you are unable to do so. That is, about the same matters, that [Mr EF's first name] has made and is making on your behalf. 1. The submissions of the solicitor are then noted to report that Mrs AB signed the documents "and asked if I could take her with me back to [suburb], her home". 2. The Commissioner concludes from the solicitor's submissions that he did not ask Mrs AB any questions to test Mrs AB's understanding of the nature and ramifications of the documents. 3. After setting out the solicitor's submissions, (which detailed his attendances on Mr CD and his daughter and son, and the commencement and adjournment of the Supreme Court proceedings), the Commissioner recorded the solicitor's response to a question posed to him about the nature of the advice he had given to Mr CD before Mr CD instructed him to discontinue the proceedings. The solicitor's reply is noted as: I advised [Mr CD] the Application and Amended Application had good prospects of success, provided that [Mrs AB's first name] when brought before the Court informed His Honour of her instructions to me and statements to various other witnesses that she was being detained against her will and she was fearful that her assets and moneys were in jeopardy. 1. At para 107, the Commissioner recorded that the solicitor said he had received oral advice from counsel briefed in the proceedings there were good prospects of succeeding, but that he had not made a file note of this advice, or the basis for it, rather that the solicitor trusted counsel had relied on "the draft affidavits and affidavits sworn in the proceedings". 2. The Commissioner's preliminary view letter next addresses the solicitor's response to the Commissioner's query about whether he had assessed Mr CD's capacity at any time. The solicitor's reply is recorded as follows: Yes, as I did with [Mrs AB's first name]. I relied on my knowledge and observations of [Mr CD's first name] over the time I had known him. I do not have file notes or documents that deal specifically with this matter. 1. At para 110, the Commissioner records the solicitor's response to the steps he took to assess Mr CD's capacity before he signed "the Documents" (being the Enduring Power of Attorney and appointment of Enduring Guardian"). That response is recorded as follows: [Mr CD's first name] and I had spent considerable time together both before and after his admission. As stated above, I relied upon my knowledge, observations and opinions of [Mr CD's first name] established over that period of time together with those at the time 1. The Commissioner also notes that, in his responses to him, the solicitor conceded that he was unaware of the Law Society Guideline " When a Client's Capacity is in Doubt – A Practical Guide for Solicitors" or "Guideline for Solicitors Preparing an Enduring Power of Attorney" dated December 2003. 2. The Commissioner next deals with the topic of Mr CD's residence in his nursing home and records the solicitor's response to questions addressed to him about any enquiries he made about why Mr CD was in a nursing home. The solicitor's response is set out as follows: I asked [Mr CD's first name]. [Mr CD] instructed that he was not sure why he was in the Retirement home. He did say that he did not want to be there and wanted his license (sic) so that he could leave. I was told that [Mr CD's first name] was in the retirement home because he had a car accident. I am now not certain who told me this information 1. The Commissioner then records the information he obtained in statements from Mr CD's adult children to the effect they were not aware their father had been appointed as Mrs AB's enduring attorney and guardian, and that they only became aware of the Supreme Court proceedings after they were commenced. The Commissioner also records Mr CD's adult children's advice that they were never briefed on the chances of success or financial ramifications of the Supreme Court proceedings. 2. Commencing at para 126, the Commissioner sets out his determination of the consumer complaint. The reasons commence by noting that every lawyer has a duty to take adequate steps to satisfy himself/herself that the client has capacity to give instructions. The Commissioner points out that there is a higher duty when there are "Red Flags" including those suggesting that a medical opinion be obtained. 3. At para 131 the Commissioner finds there were a number of indicators or "Red Flags" which should have altered the solicitor about capacity issues for Mr CD. These included: 1. his advanced age; 2. the fact he was a resident in an aged care facility; 3. his admissions to an aged care facility would have required a medical assessment; 4. the solicitor had not discussed the reason for Mr CD's admission with either of his adult children; 5. Mr CD was unable to tell him why he was in the retirement home, and that his forgetfulness was a possible indicator of lack of full capacity; and 6. the solicitor should have conducted appropriate enquiries and undertaken appropriate investigations to satisfy himself that Mr CD understood the nature and effect of the documents and the nature and ramifications of the Supreme Court proceedings. 1. The Commissioner also found, by reason of the "Red Flags" he identified as Red Flags 1 to 14 Costs, the solicitor should have been alerted to capacity issues about Mrs AB. 2. The Commissioner rejects, as a reasonable basis for assessing Ms AB's capacity, the solicitor's reliance on statements of his own observations, and reliance on statements of his wife, Ms DE and her husband and daughter because none were qualified to assess Mrs AB's mental capacity. 3. After noting the documents before NCAT about Mrs AB's capacity, and acknowledging that the solicitor did not have those documents, the Commissioner nonetheless concluded that the solicitor was in error in relying on social interactions to form a view about Mrs AB's capacity "when faced with the red flags identified in paragraphs 8 to 59 above". 4. The Commissioner finds that the solicitor did not ask any questions to test Mr CD's capacity to understand the effect of the role he was undertaking as attorney and guardian nor did the solicitor consider: the practical realities namely how was an 88 year old man with dementia related issues (who had the year before appointed his daughter as his enduring guardian and attorney because he was unable to manage his affairs) residing in a nursing home in [suburb] going to exercise his powers as a co-attorney and guardian for a 75 year old lady residing in a dementia ward in another nursing home in [the other geographically distant suburb]. 1. The preliminary view letter then comments about the need for comprehensive and contemporaneous file notes to be made by a lawyer. At para 142 the Commissioner concludes: You had a duty to appropriately seek and act on [Mr CD's] competent instructions. There was a comprehensive failure on your part to fulfil this duty. 1. The Commissioner's letter then extracts comments by Kunc J in Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 at [142] and he notes that while his Honour's comments relate to capacity to execute a Will that they are equally applicable to this matter. 2. At para 145, the Commissioner refers to three decisions of the Queensland Civil and Administrative Tribunal (QCAT) dealing with lawyers who took instructions from elderly clients in aged care facilities without conducting appropriate enquiries. In each case QCAT found the lawyers' conduct constituted unsatisfactory professional conduct. 3. Very fairly, the Commissioner distinguished the QCAT decisions from the complaints before him, noting the longer period of social interaction that had occurred between the solicitor and Mrs AB and CD, but balanced that against the "red flags" or warnings the solicitor had received from Mr Brown in his letter of 1 December 2016 and "continuing up of 8 June 2017" when the Supreme Court proceedings were commenced. 4. The Commissioner concludes the solicitor "compounded" his errors when he advised Mr CD to commence proceedings and advised him he had good prospects of success. The Commissioner found the solicitor should have consulted with Mr CD's attorney before he commenced proceedings. The Commissioner concluded that his preliminary view was that Complaint 1 was established. 5. The preliminary view letter then addresses Complaint 2 which is identified as commencing the Supreme Court proceedings without reasonable prospects of success. 6. The Commissioner finds that, if Dr Rock's report was in the solicitor's possession (noting it was received either before or shortly after the Summons was filed), he should have advised Mr CD immediately not to commence the proceedings, and if the report was received after the Summons was filed a competent lawyer would have advised Mr CD to discontinue the proceedings, or adjourned the proceedings to get an expert medical report about Mrs AB's capacity or lack thereof; would not have applied for an urgent hearing and would have advised Mr CD to commence proceedings in NCAT to review Mr EF's appointment an enduring Power of Attorney and Guardian. 7. At para 159 the Commissioner explains if facts (essentially a repeat of matters set out earlier in para 131 of his preliminary view letter) had not been present the solicitor may have had an arguable case to contend it was sufficient for him to rely on his observations, knowledge and conversations with Mr CD and Mrs AB. 8. Thereafter the Commissioner discusses the grounds on which a Writ of Habeas Corpus may be obtained but concludes that Mrs AB's capacity was the crucial issue to be addressed before proceedings were commenced. 9. The Commissioner gives consideration to the solicitor's submission that he had relied on the advice of counsel that there were good prospects of success in the Supreme Court proceedings but that the solicitor was not privy to the basis on which the barrister formed that view. The Commissioner concluded that the solicitor had failed to discuss with counsel why he held that view. 10. The Commissioner also concluded that the solicitor had failed to consider an application to NCAT which had been suggested to him by Mrs AB's aged care facility, and that he had commenced the Supreme Court proceedings one day before the deadline given to the nursing home. 11. The Commissioner concluded the solicitor had erred in seeking an early hearing rather than discontinuance after receipt of the report of Dr Rock. 12. The Commissioner also concluded the solicitor had failed to act competently and diligently by not responding to the offers to compromise costs finding he had a duty to advise Mr CD that it was in his interests to reply to the letters with a view to reducing costs. 13. At para 175 the Commissioner concluded that his preliminary view was that Complaint 2 was established. 14. The Commissioner next addressed complaint 3 namely that the solicitor had failed to act in the best interest of Mr CD. 15. The Commissioner repeats his earlier findings about Mrs AB's lack of capacity and then recounts the solicitor's submissions in respect of the costs of the Supreme Court proceedings but finds that he failed to make any file notes of instructions in respect of costs. 16. At para 184, the Commissioner finds the solicitor was either grossly incompetent or recklessly careless when he received the letter from Mrs AB's aged care facility's solicitors dated 19 June 2017. 17. The Commissioner concludes that Mr CD, by reason of his advanced age, and "severe mixed dementia", could not have understood advice given by the solicitor or the ramifications of arguing costs. The Commissioner concludes a competent solicitor would have been aware that indemnity costs would be awarded against Mr CD and that it was in the client's interests to negotiate an out of court settlement. 18. The Commissioner describes as "puzzling" that, although the solicitor produced file notes of conversations of attendances on Mr CD and Ms DE and her daughter, he did not make any file notes about the advice he gave to Mr CD to commence the proceedings, or advice given in respect of costs offers other than a note of Mr CD's instructions to "pull the pin" on the proceedings. The Commissioner also described as "puzzling" the fact the solicitor did not write "a single letter" to Mr CD before, during or after the proceedings about the advice given or instructions received. He notes again that the solicitor did not contact Mr CD's adult children about the proceedings and the cost implications when they were discontinued. 19. The Commissioner concludes, in the absence of files notes or letters, that he was not satisfied that the solicitor had not sought instructions or given any advice to Mr CD in relation to the aged care facility's solicitor's letters or instructions to argue costs. The Commissioner found complaint 3 established. 20. The Commissioner next addressed "Complaint 4 – Taking instructions from Mrs AB when you have been advised that she was suffering from Alzheimer's disease". 21. After repeating his earlier comments about Mrs AB's lack of capacity, the Commissioner concluded, in light of the identified Red Flags, the complaint was established. 22. Thereafter, the Commissioner turned to the five complaints he made about the solicitor's conduct. After setting out the complaints and particulars of the complaints the Commissioner, at para 197, concluded that, as his complaints were based on the same facts as those of the consumer complainant, he "repeated his comments" made in relation to those complaints. 23. The Commissioner summarised his preliminary view at paras 200-201 of his letter. 24. The Commissioner found both complaints were sustained "by the evidence", that the practitioner's conduct was not an isolated incident, or mere error of judgment. He concluded: Over a period of time you consistently failed to competently discharge your duties to [Mr CD]. Your conduct amounted to a very substantial and significant departure from standards of competence and diligence expected of a lawyer. The Commissioner's decision 1. The Commissioner's decision, the subject of this review, is contained in his letter to the solicitor dated 25 November 2020. After noting correspondence between Ms Ong of his office and the solicitor, and the solicitor's requests for extensions of time to make submissions, the Commissioner summarises his conclusions which he had set out in his preliminary view letter. 2. At para 32, the Commissioner summarises further submissions of the solicitor made in his letter to the Commissioner dated 28 August 2020. Those submissions included the following: 1. That Mrs AB was present when the solicitor explained the Enduring Power of Attorney and appointment of Guardian and Will of Mr CD on 5 March 2016 (five months after she appointed Mr EF as her attorney and guardian). 2. At the meeting on 5 March 2016 Mrs AB told the solicitor that she wished to make new documents because she no longer trusted Mr EF. The solicitor said Mr CD asked what he (the solicitor) could do and said he would pay the solicitor's fees. 3. Mrs AB raised her concerns about Mr EF on the following occasions: 1. On 29 November 2016 when discussing her concerns about her moneys in the bank and her real property; 2. 4 December 2016; 3. 9 December 2016 when Mrs AB instructed the solicitor she did not trust Mr EF and she wished Mr CD and Ms DE to be her new enduring attorneys and guardians; 4. 10 December 2016; 5. 17 December 2016 when Mrs AB confirmed her previous instructions that Mr EF "will have her put away or locked up, sell her properties and take her money"; 6. On 17 and 22 December 2016 and on 18 February 2017 that the solicitor met Mr CD who told you [the solicitor] to do what was necessary to help Mrs AB; 7. On 17 February 2017, at a dinner, Mrs AB confirmed her earlier instructions that she required a new Power of Attorney and enduring guardian; and 8. On 2 April 2017 when Mrs AB was admitted to [Mrs AB's aged care facility]. 1. The Commissioner recorded the solicitor's submission but found that he had overlooked clear instructions from Mrs AB as early as 5 March 2016 that she wanted to execute new documents and those instructions were confirmed on a number of occasions prior to her signing the documents. 2. The Commissioner recorded that the solicitor had not provided any explanation as to why he did not prepare the enduring power of attorney and guardianship documents in 2016 or at any time before Mrs AB's admission to her aged care facility despite repeated requests and Mr CD promises to pay the solicitor's fees. 3. Again, the Commissioner found that the Red Flags (set out in the preliminary view letter and repeated in the decision of 25 November 2020) should have alerted the solicitor of the need to properly assess Mrs AB's capacity. 4. The Commissioner found the solicitor had failed to ask Mrs AB relevant questions to test her capacity to understand the revocation of the 2015 documents, and that telling Mrs AB the documents were the same as the 2015 documents "without asking open ended questions to test her understanding and in the presence of the red flags fell below the standard of competence and diligence a member of the public is entitled to expect from a lawyer". 5. The Commissioner rejected, as a proper basis to excuse the solicitor's conduct, the fact of Mrs AB's continued assertions, nor did he accept the solicitor, in the face of the red flags, was entitled to rely on his own observations, the knowledge and opinions of Mr CD, Ms DE her daughter and the solicitor's wife. 6. The Commissioner explained why he did not give weight to the solicitor's submission that NCAT made its decision "without the benefit of the evidence of Ms DE, her daughter, Mr CD, your wife or yourself". This was because all chose not to appear before the Tribunal. The Commissioner also recorded that Mrs AB had been independently represented before the Tribunal and her representative was of the view Mrs AB lacked capacity. 7. At para 42, the Commissioner records the solicitor's submissions on the law on capacity. The Commissioner also records the solicitor's submission that the failure to take into account the solicitor's relationship with Mrs AB and Mr CD constituted a "fatal flaw" in his reasoning. The Commissioner also recorded the solicitor's submissions that Mrs AB gave instructions in March 2016 before she was admitted to a nursing home. 8. At para 46 the Commissioner confirms his conclusions in his preliminary view letter that the solicitor had failed to take into account Mrs AB's medical condition and the existence of "many red flags". He finds that, if the solicitor had paid heed to the red flags, as a reasonable competent and diligent lawyer, he would have obtained a medical opinion at least to satisfy himself about capacity and tested Mr AB's capacity. The Commissioner found "[y]ou failed to do this". Reasons in respect of the Attorney's complaint and the second Commissioner's complaint. The Preliminary view letter 1. As with the consumer complaint, by letter dated 5 May 2020, the Commissioner provided the solicitor with his preliminary views about the attorney's complaint and the second consumer complaint. 2. The preliminary view letter recites relevant facts, including the letter from Mr Brown to the solicitor dated 1 December 2016 which is described as Red Flag 1. The solicitor's telephone conversation with Mr Brown on 5 December 2016 as Red Flag 2 and Mr Brown's letter of 20 December is noted as Red Flag 3. 3. Mr Brown's letter to the solicitor dated 23 January 2017 in which he recorded Mrs AB's distress on receipt of a letter from the solicitor and confirmation of the appointment of her attorney are noted as Red Flag 4. 4. The Commissioner describes as Red Flag 5 the failure by the solicitor to take up Mrs AB's aged care facility's suggestions that, if he had concerns about the performance of Mr EF, that he should take the concerns to the Guardianship Division of NCAT. 5. Red Flag 6 is recorded as the email from Mr Brown to the solicitor on 26 May 2017 in which Mr Brown advised he had visited Mrs AB the day after she signed the enduring power of attorney and appointment of enduring guardian and that she had no recollection of signing the documents or any recollection of the solicitor. 6. A letter from Mrs AB's aged care facility to the solicitor dated 26 May 2017 advising that Mrs AB lacked capacity to revoke the enduring power of attorney or to execute new documents is described as Red Flag 7. 7. Red Flag 8 is noted as the receipt by the solicitor of Dr Rock's expert report from Mr Brown on 8 June 2017 with a warning from that solicitor should any proceedings be commenced in the Supreme Court his client would seek costs. 8. After setting out the notice of the urgent application to the Guardianship Division of this Tribunal, the Commissioner notes that, on 9 June 2017, an order was made appointing the Public Guardian as Mrs AB's guardian for a period of six weeks, and that any previous Powers of Attorney had been suspended. The Commissioner described these circumstances as Red Flag 9. 9. The preliminary view letter then records a summary of the findings of the Guardianship Division of this Tribunal on 20 September 2017 including that it noted a reports of Dr Piumali Gunawardene, geriatrician dated 30 March 2016 who opined Mrs AB "suffers from moderately severe Alzheimer's dementia. She has ongoing difficulty managing finances". The summary also noted the Tribunal considered a report of Dr Meng Chew, staff specialist geriatrician with the ACAT (Aged Care Assessment Team) dated 1 May 2016 who opined that Mrs AB "had mild dementia with impaired memory, anxiety and suspiciousness and an inability to manage her finances" and an ACAT assessment dated 10 August 2016 which reported Mrs AB had poor insight, short-term memory loss and that she was not orientated. 10. The Commissioner's preliminary view also records other evidence mentioned in the guardianship reasons including Dr Rock's report, and a report of Dr Christopher Grant prepared for the Tribunal dated 23 June 2017 in which the doctor opined Mrs AB had "severe dementia" as well as the evidence of the independent lawyer who met Mrs AB and appeared on her behalf at the Tribunal hearing. 11. At paras 51-70 the Commissioner sets out the solicitor's submissions and responses to questions posed by his office. 12. After setting out the solicitor's summary of his first meeting with Mrs AB, the Commissioner records that the solicitor said he had visited Mrs AB at the aged care facility in April or May 2017 but did not keep file note of this visit. The Commissioner also records the solicitor's report of visiting Mrs AB with his wife on or about 15 May 2017 when he recorded that he saw no deterioration in Mrs AB's faculties and that she was "clear, precise and communicated exactly what she thought and wanted. There was no confusion and no disorientation". The Commissioner records the solicitor did not make a file note of this attendance. 13. The Commissioner sets out the solicitor's submission to the effect that before Mrs AB signed the documents on 23 May 2017 he "was under no doubt, she had the mental capacity to understand the nature of the documents. I applied the principles at law and judgment which we practitioners are required to do. I assessed her decision making capacity". 14. The Commissioner set out in full the solicitor's explanation, including that Mrs AB had told him that Mr EF had "tricked her into signing the documents and had promised to marry her but she now wished to appoint Mr CD and Ms DE and to go home "from this dreadful place". 15. The Commissioner also noted the following submission of the solicitor corresponding to the earlier submission we recorded at [120] above. 16. At para 59 the Commissioner recorded the solicitor's explanation in his letter dated 17 August 2018 which we have already set out, in part, at paragraph 109 as follows: As to the questions, I asked [Mrs AB's first name] they incorporated a statement to this effect "I have prepared the documents you have asked for and brought them with me. The Power of Attorney and the Enduring Guardian are the same as the documents you signed in late 2015 when you appointed [Mr EF's first name] By signing these [Mr EF's first name] is no longer your Attorney and Guardian and in his place you appoint [Ms DE first name] and [Mr CD] . [Ms DE first name] and [Mr CE first name] will be able to make the decisions about your health, your care, your property, your moneys in the bank and where you live, if you are unable to do so. That is, about the same matter, that [Mr EF first name] has made and is making on your behalf" [Mrs AB first name] then signed the documents and asked if I could take her home with me to [suburb], her home. 1. The Commissioner concluded, at para 60, that it was clear that the solicitor had not asked Mrs AB any questions to test her understanding of the nature and ramifications of the documents. Thereafter, the Commissioner set out the solicitor's file note of his attendance. The file note records the names of Mrs AB and Mr CD, an attendance of four hours "signed in and confirmed". The fact that the solicitor advised that the four hour attendance included travelling time is noted. 2. The Commissioner also sets out the solicitor's explanation that, in reaching his conclusion that Mrs AB had capacity, he had not observed any deterioration in her capacity from when he first became acquainted with her between 2015 and the evening of 23 May 2017 when she signed the documents. 3. At para 69, the Commissioner explains that the solicitor had formed the view that Mrs AB had capacity when "she clearly did not". He refers to reliance on social interactions and conversations to form the solicitor's views without taking appropriate steps to assess capacity when faced with the red flags. 4. At para 80, the Commissioner sets out his preliminary view of the attorney's complaint. The Commissioner notes that where there are indicators of lack of capacity (red flags) a reasonably competent and diligent lawyer would be expected to make a higher level of enquiry, including, possibly, suggesting a medical opinion be obtained. 5. The letter goes on to record that the solicitor conceded he did not test Mrs AB's capacity by asking her any questions, let alone open ended questions to test her understanding of the documents. 6. The Commissioner also records his conclusion that where a client is of advanced age, residing in an aged care facility in a secured "Dementia ward", and given the many red flags identified, a reasonably competent or diligent lawyer would have taken comprehensive and contemporaneous notes of the steps taken to assess the client capacity or lack thereof. 7. The Commissioner's preliminary view letter repeats the case law and authorities set out in the preliminary view letter in respect of the consumer complaint. 8. The Commissioner, as with the consumer complaint, notes factors in support of the solicitor's position namely his relatively long social relationship with Mrs AB but concludes he had ignored red flags and although Mr Brown or the aged care facility had not provided a report, the fact Mrs AB said she did not have a treating doctor, given her age and that she was in the "dementia" ward she would have seen doctors before or after she entered the aged care facility. The Commissioner concludes the fact she did not remember this (seeing a doctor) was another red flag which should have caused the solicitor to make enquiries. 9. The Commissioner also points out that Mr CD was aged 88 years and a resident in another aged care facility at the relevant time. 10. At paras 96-97 the Commissioner sets out the steps he says a reasonably competent and diligent lawyer would have undertaken. These steps include asking open ended questions of Mrs AB, seeking medical opinion and/or information about her capacity, and making comprehensive written contemporaneous file notes and keeping records of all attendances on Mrs AB. 11. In addressing his two complaints the Commissioner relies on and repeats his factual findings in respect of the complaints by Mr EF. The Commissioner's determination 1. The reasons for the Commissioner's final determination are set out in his letter dated 25 November 2020. After summarising correspondence passing between his office and the solicitor, the Commissioner repeats relevant paragraphs of his preliminary view letter (which we have set out above). 2. The letter records the solicitor's submissions. We pause to note that the solicitor relies on his submissions in respect of the consumer complaint for this complaint. It is unnecessary we repeat those submissions which are set out above. 3. At para 34, the Commissioner notes that the solicitor has not provided any explanation as to why he did not prepare documents at any time in 2016 before Mrs AB's admission to the aged care facility. 4. The Commissioner repeats his findings about the solicitor ignoring "red flags" and his failure to properly test Mrs AB's cognitive capacity. The letter repeats the Commissioner's preliminary view about the solicitor's failure to ask open ended questions or to test her understanding of the documents. 5. As in the preliminary view letter, the Commissioner concludes that the practitioner's conduct was not an isolated incident or a mere error of judgment. Rather, he concludes that the solicitor, over a period of time. consistently failed his duty to Mrs AB and that his conduct constitutes a significant departure from the standards of competence and diligence expected of a lawyer. 6. In addressing his own complaint the Commissioner explains that he was not persuaded to change his preliminary views and concludes that the solicitor had engaged in unsatisfactory professional conduct. 7. The Commissioner repeated his conclusions set out in the preliminary view letter that the solicitor's conduct was not an isolated incident or a mere error in judgment. He concludes, again, that the conduct amounted to a failure by the solicitor to competently discharge his duties to Mrs AB and was a significant departure from the standards of competence and diligence expected of a lawyer. 8. Under the heading "Final Determination", at para 50, the Commissioner explains that for the reasons given, he had not changed his preliminary view and confirms his finding of unsatisfactory professional conduct under s 296 of the Uniform Law. The parties' submissions on the review application. The solicitor's initial submissions 1. On 6 September 2021 the solicitor forwarded to the Tribunal submissions in respect of all four complaints dated 23 July 2021. 2. The "submissions" are in the form of narrative and record the solicitor's history of relevant events. It is unnecessary that we repeat many of the events which we have recorded in these reasons under the heading "background". 3. The solicitor asserts that the visit to the National Australia Bank was to ascertain why Mrs AB could not access her funds. 4. The solicitor points out that, at the conclusion of his attendance on Mrs AB on 23 May 2017, that Mrs AB said, in the presence of Mr EF and the nursing staff at her nursing home, "Please don't forget to come again tomorrow because you are the only person I trust". He submits: Statements like these are crucial because [Mrs AB's first name] had faith in me and in my presence she was able to stand up to [EF] who notoriously had embarked upon and succeeded in thoroughly intimidating [Mrs AB's first name] 1. The solicitor submits that the Guardianship Division of the Tribunal "in coming to its deliberation did not consider the compelling affidavits of [Mr CD] and [Ms DE]". 2. He also asserts that, after Mrs AB signed the new enduring Power of attorney and appointment of guardian, "[o]utrageously and illegally [Mr EF] effectively locked out those persons who cared for [Mrs AB]". The solicitor refers to a letter from Mr Brown to Mrs AB's aged care facility explaining why access to her is being limited on instructions from [Mr EF]. 3. The solicitor submits that it was "patently clear" that Mrs AB was being held in the aged care facility against her will, and the suggestion that she was unable to live in her community with assistance was not supported by the evidence. He refers to the report of Dr Chew dated 17 May 2016 and the report of Dr Gunawardene dated 19 September 2016. He notes that Mr EF relied on a report of Dr Gunawardene of 30 March 2016. 4. The solicitor also relies on the observations of Dr Rock dated 30 December 2016 to support Mrs AB's capacity to make informed decisions about her financial affairs. 5. The submissions make a number of assertions about Mr EF, his character and motivation in respect of Mrs AB and her assets. The submissions are based on statements in the affidavit of Ms DE and reports of abusive behaviour of Mr EF by Mrs AB's neighbour (which Mr EF notes he reported to Windsor Police). 6. The solicitor submits the Supreme Court proceedings "were entirely appropriate" because Mrs AB would be brought before the Supreme Court and could tell a Judge her real wishes in the absence of Mr EF. He asserts a hearing in the Tribunal would take many months "to come to fruition" and that the Tribunal did not take into account the evidence of Ms DE, Mr CD or himself. 7. The solicitor then refers to the presumption a person has capacity, and "Rule 8 of the Uniform Law Solicitors Conduct Rules". 8. The solicitor concludes his initial submissions as follows: What decision had [Mrs AB first name] made? [Mrs AB first name] had decided as early as 5 March 2016 and probably before, that she no longer wanted [EF] as her Attorney and Guardian. He had assaulted, intimated, promised to marry her, sold [rural property] locked her up and took her money and finally had her locked away in the deplorable premises at [name of aged care facility]. She wanted new Attorneys and Guardians who had her best interests at heart and [Mrs AB's first name] was entitled to that. The solicitor's submissions dated 4 April 2022. 1. The solicitor submits that the Commissioner has failed to take into account his long and close relationship with Mrs AB and Mr CD, nor the abusive relationship between Mrs AB and Mr EF. He asserts the Commissioner's reliance on "red flags" and "warning signs" have no relevance in this case. He submits: A longitudinal assessment of the mental capacity, along a timeline extending either side of the focal point, is necessary, in order to examine the mental capacity of [Mrs AB's first name] and [Mr CD's first name] in context. The complaints and Commissioner's submissions fail to do this. Once focus is directed to these matters it becomes plain that the complaints are misconceived and should be dismissed. 1. The solicitor's submissions cite in support of his propositions the decision of the Supreme Court of New South Wales in Scott v Scott [2012] NSWSC 1541 at [199]-[200]. 2. The solicitor sets out details of matters in which he acted for Mr CD from 2009 and states that since late 2015 "we saw each other socially and developed a very close friendship". 3. The solicitor also submits that the Commissioner failed to take into account that Mr CD and Mrs AB had known each other "for many decades" and had "over the past few years" spent frequent time with each other. 4. The submissions again refer to the solicitor's close relationship with Mrs AB, whom he first met in 2015. He accepts that, in October 2015, when Mrs AB executed the documents appointing Mr EF, at that time Mrs AB had capacity to execute the documents but submits that "it is highly relevant and very persuasive that I saw no deterioration in [Mrs AB's first name] during that period". 5. The submissions again repeat earlier submissions that the "red flags" or "warning signs" were not applicable or misconceived. 6. The solicitor submits that the Commissioner's submissions fail to take into account the ethical duties solicitors have to the Court, their clients and the administration of justice and refers to Rule 8 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) (the conduct rules). 7. The submissions advance the proposition that the complaints and Commissioner's submissions "do not take into account that there is no single legal definition for mental capacity". At para 12, after referring to the capacity necessary to make a valid Will, he points out that "the fundamental issue is whether the client is able to understand the general nature of what they are doing". He asserts both Mr CD and Mrs AB (by reference to their first names) knew what they were doing. The solicitor cites a number of authorities on capacity. 8. The submissions go on to assert the Commissioner's submissions do not take into account that a person's capacity can fluctuate over time or in different situations. 9. The submissions, at para 15 and 16, again refer to the solicitor's close relationship with Mr CD and Mrs AB. At para 17 reference is made to the decision of the High Court in Gibbons v Wright [1954] HCA 17. The solicitor at paras 18 and 19 cites from the decision in Scott v Scott and submits, applying the relevant principles to the facts "commencing late 2015 and concluding with the Supreme Court application in this matter, it is clear that [Mrs AB's first name] and [Mr CD's first name] had capacity for their decisions and therefore the complaints are misconceived. 10. The submissions also refer to "Model Rule 1.14" by reference to "Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, American Bar Association Commons on Law and Ageing & American Psychological Association (2005)". 11. The submissions refer to a key message of the "chapter" of the need for lawyers to be sensitive "to age-related changes without losing sight of the individuality of each older person, although functional limitations do increase with age most older adults do not have physical, sensory, or cognitive impairments. Therefore, one must not assume impairments in older clients, but one must be prepared to address these issues when they arise". 12. The submissions then particularise recommended steps to be undertaken by lawyers. However, at para 25, the solicitor states: I do not say I applied all of the above techniques, however my approach, particularly with older clients is in general terms similar to that set out in paragraph 24. [Mrs AB first name] first mentioned appointing new Attorneys in late 2015 and thereafter on a number of occasions until the 15th May 2017. 1. The submissions repeat earlier submissions that the Commissioner had failed to give weight to the affidavit of Mrs DE. The Commissioner's initial submission 1. We commence by noting that the initial submissions of the Commissioner are extensive consisting of some 150 paragraphs and that they canvas each and every response made by the solicitor in his replies to correspondence with the Commissioner and his submissions. It is unnecessary we set out in any detail the submissions. Rather we have focussed on the broad principles and submissions advancing those principles on which the Commissioner relies. 2. The thrust of the Commissioner's submissions is that the solicitor, in his "narrative', has failed to address the complaints agitated against him by the Commissioner. 3. The submissions, by reference to cases decided in the Tribunal, refer to the statutory provisions and role of the Tribunal in conducting a merits review hearing, and explain that the Tribunal is not concerned with appealable error. 4. The submissions note that the solicitor has failed to articulate what order he says should result as an outcome of the proceedings. 5. The Commissioner's submissions refer to a number of authorities on capacity (being the authorities set out in the Commissioner's reasons) 6. In addressing each of the complaints the submissions at para 47 state: The Applicant's characterisation of the conduct of [Mr EF] throughout the letter does not address the Respondent's reasons for a finding of unsatisfactory professional conduct in the final determination for each of the decisions which do not call into question [Mr EF's] conduct. 1. The submissions note: The Applicant's focus on whether [Mrs AB] and [Mr CD] had capacity conflates the red flags or warning signs about the capacity of those persons, with a factual issue which does not arise in these proceedings, namely, whether they actually had the capacity to instruct the Applicant (relying only on the basis of his personal relationship with each of them, such that he could simply ignore the red flags). 1. We pause to note that this submission is repeated in the submissions dated 8 April 2022. The submissions go on to state that there is a risk that the strength of a friendship might "cloud a Lawyer's objectivity and professional judgment in undertaking work for them." 2. The submissions detail each of the statements made by the solicitor, and address those statements in general terms along the lines that the solicitor's statements do not address the Commissioner's reasons for finding unsatisfactory professional conduct in the final decision noting that the reasons do not, for example, call into question Mr EF's conduct but rather identify "red flags" in relation to Mrs AB's capacity. 3. In summary, the submissions state that the solicitor has sought to frame the case as one of elder abuse in which he acted to protect Mrs AB against Mr EF, and assert that the solicitor has failed to acknowledge and address the many "red flags" identified in the preliminary view letters and the decision letters of 25 November 2020. The Commissioner's submissions 8 April 2022. 1. The Commissioner's submissions categorise the solicitor's submissions of 4 April 2022 into seven broad topics as follows: 1. The general test for capacity 2. The capacity of Mrs AB and Mr CD 3. The validity of documents 4. Allegations of abuse by Mr EF 5. "Red Flags" identified by the Commissioner 6. Submissions as to law and 7. General submissions. 1. We agree with the Commissioner's categorisation of the solicitor's submissions. 2. The submissions do not cavil with the solicitor's exposition of the law on capacity, but rather emphasise that, as noted in para 24 of the solicitor's submissions, he admits he had not applied all of the techniques" referred to by the "Handbook for Lawyers" published by the American Bar Association. The submissions point out that the appropriate publication in this jurisdiction is the NSW 2016 guideline published by the Law Society. The submissions emphasise the "general warning signs" or "red flags" referred to in the guideline. 3. In considering the capacity of Mrs AB and Mr CD, the submissions refer to the solicitor's submissions being a "rehash" of earlier submissions and emphasise again that the solicitor failed to obtain independent advice about Mrs AB and Mr CD's capacity. It is asserted whether or not those persons had capacity "simply misses the point". It is submitted that the medical evidence and the reasons of the Guardianship Division "go to the heart of whether [the solicitor] acted on the 'red flags' in relation to whether those persons had capacity, not whether those persons in fact had the capacity to instruct him". 4. The submissions highlight that the solicitor's personal knowledge of Mrs AB and Mr CD is undermined by the circumstance of each of them being in an aged care facility. 5. The submissions address the manner in which the solicitor deals with the medical evidence before the Guardianship Division of the Tribunal setting out the findings in the Tribunal's decision on that topic. The submissions also consider the Guardianship Division's reasoning and treatment of the affidavits of Mr CD and Ms DE. 6. The submissions go on to refer to the solicitor's criticisms of Mr EF's purported emotional, physical and financial abuse of Mrs AB and state that "even if the Applicant believed these allegations, this could not absolve him of his professional obligations in this matter". 7. The submissions, as in the earlier submissions, refer to the solicitor's failure to address the "red flags" and suggest that the solicitor asserts the primacy of his personal relationship with Mr CD and Mrs AB over the existence of the "red flags". 8. In summary, the submissions repeat many of the earlier submissions, summarised at [234] above again, stating that the solicitor has sought to frame the case as one of elder abuse in which he acted to protect Mrs AB against Mr EF, and assert that the solicitor has failed to acknowledge and address the many "red flags" identified in the preliminary view letters and the decision letters of 25 November 2020. 9. The submissions conclude advancing the proposition that both specific and general deterrence "are important protective considerations in these proceedings". It is submitted in respect of specific deterrence that the solicitor's lack of insight and attempts to justify his conduct warrant the Tribunal's censure, and the Commissioner's decisions should be found to be the correct and preferable ones. Discussion 1. We commence our discussion by noting we do not doubt that the solicitor enjoyed a warm and friendly relationship with Mr CD and Mrs AB, whom he saw socially on a not infrequent basis in his local café, occasionally in the company of his wife and/or Mr CD's adult children. It appears to us that his social interactions with Mr CD and Mrs AB, and his concern for Mrs AB's welfare led to a lack of professional detachment and objectivity in his actions. Relevant law – capacity. 1. The law presumes a person has capacity. However, the presumption can be rebutted. Certain persons, for the purpose of litigation in the Supreme Court of NSW under the Uniform Civil Procedure Rules (UCPR) require the appointment of a tutor to conduct litigation because they are considered to the lack capacity (a child under the age of 18, certain persons subject to orders under the Mental Health Act 2007 (NSW), a protected person within the meaning of the NSW Trustee and Guardianship Act 2009 and "an incommunicate person being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs"). 2. There is no legal definition of capacity. Capacity encompasses legal capacity as well as physical capacity. Capacity to engage in a transaction or to execute a document such as a Will, or an Enduring Power of Attorney is subject to different tests, albeit that the differences are subtle. 3. It is not in doubt that a client's capacity to give instructions can fluctuate from time to time: see Croft v Sanders [2019] NSWCA 303. 4. The authorities set out principles applicable to judge capacity in various circumstances - capacity to enter a contract (Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423), to execute a Will (Banks v Goodfellow (1870) LR 5 QB 549), to execute a Power of Attorney (Scott v Scott [2012] NSWSC 1541) and to manage financial affairs (see Ability One Financial Management Pty Ltd v JB by his Tutor AB [2014] NSWSC 245; P v NSW Trustee and Guardian [2015] NSWSC 579). 5. The interim report of the Royal Commission Aged Care Quality and Safety Interim Report highlights issues pertinent to the matter of capacity. The Commissioners explain: Personal experiences of dementia are largely under-explored. As a person's cognitive capacity declines, it may be difficult for them to make themselves understood. Other people may not always take the time to listen and to understand them. There is no doubt that residents with dementia experience fear and confusion. For some people, dementia develops quickly. When it progresses more slowly, people can develop strategies to hide the condition. Because of the complexities of behaviour and emotions, people who are not cared for respectfully can experience outbursts of frustration and rage. This impacts on personal care and nursing staff, including heightening the possibility of injury. In turn, this leads to further distress for the family 1. The Law Society of New South Wales (and other State Law Societies) provide excellent resources for lawyers to assist them in dealing with issues of client capacity (see, for example, When a client's capacity is in doubt). This guide provides advice on the use of open ended questioning of a client. The guide also stresses the importance of good record keeping with detailed file notes, and the obtaining of appropriate medical reports by specialist practitioners including geriatricians. Prudent steps to be taken by a lawyer are set out by Barrett J (as his Honour then was) in Winefield v Clarke [2008] NSWSC 882 (see also Edith White v Judith Liane Wills [2014] NSWSC 1160). 2. The question of when it will be appropriate for a lawyer who is concerned about a client's capacity to execute a Power of Attorney to apply to the Guardianship Division of the Tribunal is explored in HLT [2014] NSWCATGD 5. 3. We note that the solicitor refers to the Australian Solicitor's Conduct Rules made under the Uniform Law. Notwithstanding the duty imposed on a solicitor under Rule 8 to act on a client's instructions and pursuant to Rule 9 to maintain confidentiality, exceptions are recognised where the client's capacity to give instructions is in doubt. (see rule 9.2) 4. While we have referred above to the tests on capacity, as the Commissioner's submissions dated 8 May 2022 make clear, the complaints against the solicitor do not assert that the documents executed by Mrs AB on 24 May 2017 were invalid, albeit we note that the Guardianship Division of this Tribunal (2017/00196793) having considered the evidence before it, including medical reports, concluded that Mrs AB did not "have the mental capacity to execute the 2017 Revocation". Consideration 1. The consumer and attorney's complaints as well as the Commissioner's complaints are carefully particularised in considerable detail including the identification of many facts described as "red flags". 2. While the solicitor takes issue with selected parts of the medical reports contained in the s 58 documents, and those which were before the Guardianship Division, his submissions ignore, or do not canvas in any meaningful way, the matters identified by the Commissioner as Red Flags. In particular, the undisputed fact is that he took no steps to obtain independent expert opinion about Mrs AB's capacity, nor did he question her statement that she did not have a general practitioner, particularly when he became aware she had been admitted to the aged care facility. His submissions asserting that Mrs AB was abused by Mr EF have no tested evidentiary basis. Such allegations could, and should, have been raised by the solicitor in the Guardianship Division of the Tribunal in an application to revoke the Enduring Power of Attorney and appointment as guardian of Mr EF. 3. We have considered the solicitor's submission that the Guardianship proceedings did not take into account the evidence of Mr CD and Mrs DE. The reasons given in the guardianship proceedings cogently explain why their evidence was not determinative of the issues the Tribunal was required to decide, and relevantly because as the Tribunal noted "We had ample independent, professional evidence about [Mrs AB]". 4. We also note that first, the Commissioner found, as he was entitled to do on the evidence before him, that Mrs AB asked the solicitor to prepare new documents for her in about December 2016 but he took no steps to do so until 23 May 2017 and he provides no explanation about the delay. 5. Second, the solicitor was aware that Mr Brown had acted for Mrs AB and her late husband for many years and had observed her over those years. Mr Brown put the solicitor on notice of Mrs AB's diagnosis in December 2016 including the fact he had a neuropsychologist report and advised of his observations of her cognitive decline. As the Commissioner's submissions of 8 April 2022 note, Mr Brown had known Mrs AB for a much longer period than the solicitor. 6. Third, Mr Brown spoke to the solicitor on 5 December 2016 again bringing to the solicitor's notice the issue of Mrs AB's diagnosis and confirmed his advice in his letter of 20 December 2016. 7. The solicitor prepared a Power of Attorney for execution by Mrs AB appointing as her Attorney Mr CD who was, at the relevant time, an 88 year old gentleman residing in a nursing home. He also commenced proceedings in the Supreme Court on behalf of Mr CD as applicant. He did so it appears on "instructions" from Mr CD as recorded in a Costs Agreement of 16 May 2017 and at Mr CD's expense. The solicitor was well aware, having drafted documents for Mr CD in April 2016, that he may be unable to manage his own affairs and his daughter was appointed as his attorney. Mr CD was unable to tell the solicitor why he was in the nursing home. 8. The solicitor did not seek or obtain any medical evidence about Mr CD's capacity to understand the role of an attorney, or how he could fulfil that role, nor did he take any appropriate steps to ensure Mr CD had capacity to instruct him to commence the Supreme Court proceedings. Further, there is no suggestion in the solicitor's material or submissions that he took steps to ensure Mr CD understood the costs implications of the Supreme Court proceedings as required by s 174 (3) of the Uniform Law. A solicitor exercising an appropriate level of competence and diligence would have made proper enquiries to satisfy himself of Mr CD's capacity to give instructions. 9. Significantly in respect of Mrs AB's Capacity, the solicitor relied on his own observations. He did not test her understanding by asking open ended questions, rather he recited to her the effect of the documents. He made no contemporaneous file note other than recording his attendance at the aged care facility. In summary, he did not observe any of the guidelines promulgated by the Law Society and conceded he was unaware of those guidelines. The solicitor relied on his observations of Mrs AB's demeanour and understanding. It is relevant to refer to what was said in the Tribunal in HLT about reliance on a client's demeanour as follows: Notwithstanding Mr DOX's careful explanation of what an attorney can and cannot do, his evidence did not satisfy us that his interview elicited from Mrs HLT evidence of her understanding. Rather, it indicated she acquiesced in what he said and asked few questions. The Tribunal finds both Mr DOX and Ms MMR relied heavily on Mrs HLT's appearance and learned social skills without critical examination of her cognition, or more particularly without the benefit of any medical opinion. The Tribunal notes at the three occasions we had the benefit of Mrs HLT's presence at the hearing she was immaculately groomed, exchanged pleasantries with the Tribunal members and maintained a high level of what may be broadly described as "social skills" despite her obvious lack of cognitive capacity. 1. While the solicitor places emphasis on the observations and comments of Mr CD and Ms DE those persons were not, as the Commissioner found, appropriately qualified to opine on the issue of capacity. 2. The solicitor did not take into account that Mrs AB was transferred from hospital to a secure dementia ward at her aged care facility or the advice given by the aged care facility about her diagnosis. 3. Before or shortly after he commenced proceedings in the Supreme Court, the solicitor was put on notice by the aged care facility that he should make an application to the Guardianship Division on behalf of Mrs AB to revoke Mr EF's appointment and when advised proceedings had been commenced in the Tribunal did not appear for the hearing or apparently advise Mrs AB, Mr CD or Mrs DE of the importance of them appearing at the hearing if they wished to be heard. 4. It is not in doubt, as noted by Kunc J the Supreme Court can, in appropriate circumstances, issue a Writ of Habeas Corpus. It is not suggested in these disciplinary proceedings that remedy was unavailable. What is raised is the appropriateness of that remedy in circumstances identified by the Commissioner as red flags. There is no dispute that the solicitor did not confer with counsel retained to act in the Supreme Court proceedings and little weight can be placed on counsel's advice to the solicitor in these circumstances. It is, however, telling that counsel recommended accepting one offer of compromise made in respect of costs, a recommendation that the solicitor did not pursue. 5. The solicitor's action in commencing proceedings prior to the "deadline" he imposed on the aged care facility to release Mrs AB resulted in the award of indemnity costs when the proceedings were discontinued. It is also relevant that, as the Commissioner found, the solicitor had been provided with a copy of Dr Rock's report either prior to or shortly after the Supreme Court proceedings were commenced. Given the solicitor's staunchly held view that the success of the Supreme Court proceedings was reliant on Mrs AB explaining her concerns to the judge, for the judge to act upon them in issuing a writ, the solicitor should have not commenced, or should then have discontinued or adjourned the proceedings to get an expert medical report. This was important in the face of the evidence available to him that Mrs AB may not have capacity to retain and process the information necessary to hold an informed view as to what would best promote her welfare and interests. 6. The solicitor offers no explanation about his failure to respond to correspondence from the defendants to seek to compromise costs. This lack of action and obtaining and documenting of instructions from Mr CD, or his attorney, was inexcusable. 7. We are satisfied that the Commissioner's decisions on the three complaints advanced in 54415 and the three complaints primarily advanced in 58838 were the correct and preferable decisions in the circumstances particularised. Accordingly, we affirm those decisions. Summonses 1. The solicitor, by letter dated 4 April 2022, sought to "review" the decision of the Registrar to issue Summonses to David Brown Solicitors and National Australia Bank. The solicitor in his letter to the Tribunal said: The documents that I am seeking production of, will I expect, assist the Tribunal in reaching its deliberations and non-production may amount to a breach of procedural fairness. The Tribunal Member who considers this application may obtain considerable assistance from my 'further submissions' filed this afternoon. 1. We agree with the Registrar's decision to refuse the issue of the Summonses for the following reasons. First, these proceedings have been on foot since April 2021. There is no explanation as to why the application to issue Summonses was not made prior to the decision being reserved to be heard "on the papers". Further delay of the review application is not in accordance with the objects of the NCAT Act. Secondly, and more importantly, this review is not to determine whether Mrs AB's finances with the National Australia Bank were or have been properly or improperly managed. If the solicitor wished to agitate an argument of financial mismanagement the correct forum for that was the Guardianship Division proceedings. The solicitor chose not to participate in those proceedings. As we identified earlier in our reasons, the solicitor's conduct and response, or lack thereof, to the actual complaints, is the matter in issue in these proceedings. Thirdly, and importantly the solicitor has not demonstrated a genuine forensic purpose for the documents sought nor do we see that it is "on the cards" that any documents produced would assist in determining the review: see Council of the NSW Bar Association v Lott [2016] NSWCATOD 159; Lott v Council of the New South Wales Bar Association [2017] NSWCA 145. 2. Accordingly, we are not satisfied that the issue of the summonses would assist to determine this review application. Costs 1. The Commissioner seeks an order that the solicitor pay his costs of this review. The solicitor did not address the issue of costs in his submissions. This matter being a review under the Administrative Decisions Review Act costs are governed by s 60 of the NCAT Act. 2. Section 60 provides as follows: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following— (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may— (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section— costs includes— (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 1. The Commissioner submits that the general rule in s 60 (1) is displaced on the basis in this case that there are special circumstances. The special circumstances relied on in the Commissioner's submissions are that the solicitor's grounds for the review are misconceived and lacking in substance, and that he failed to comply with s 36 of the NCAT Act by failing to properly particularise his application. 2. We do not find the circumstances relied on by the Commissioner as "special circumstances" are established. This is not a matter where "costs follow the event" and a successful litigant is entitled to costs. It is noteworthy that the Commissioner accepted as a relevant fact in distinguishing the circumstances of this matter from the QCAT authorities that the solicitor had known and observed Mrs AB and Mr CD in a social context for a period of approximately two years and that observation had influenced his actions. Nor do we accept that the solicitor failed to particularise the grounds of his review application. He did provide particulars in his amended application which we set out earlier in these reasons. 3. We further note that neither party incurred costs of counsel or a hearing as this matter was dealt with on the papers thus minimising costs. 4. Accordingly, we find each party should bear their own costs of the review. ORDERS. 1. The decision of the Legal Services Commissioner dated 25 November 2020 in respect of Complaints 54415 and 58838 is affirmed. 2. The decision of the Legal Services Commissioner dated 25 November 2020 in respect of Complaints 52094 and 58839 is affirmed. 3. No order as to costs. appendix 'a' – the complaints. 1. The consumer complaint (the first complaint) (complaint 54415) is as follows: [Complaint 1] 1. The lawyer took instructions from [Mr CD] to attend to the following when he knew or ought to have reasonably known that [Mr CD] lacked the capacity to properly give instructions and/or to understand the effect and ramifications of the following: a. the enduring power of attorney dated 23 May 2017 whereby Mrs [AB] appointed [Mr CD] and Ms DE as her enduring attorneys. b. the commencement of Supreme Court proceedings against [Mrs AB's aged care facility] and [Mr EF] (the Supreme Court proceedings. Particulars i. At the time of taking instructions from [Mr CD], the lawyer knew that [Mr CD], then aged 88 years, was a resident at the Uniting Nursing Home at Richmond. ii. In view of [Mr CD's] advanced age and his residence at a nursing home, the lawyer should have but failed to take reasonable steps to obtain a medical assessment as to whether [Mr CD] had the capacity: aa. to give him instructions bb. to understand the effect and ramifications of becoming an attorney for [Mrs AB] cc. to fulfil his role as the appointed attorney for [Mrs AB]. dd. to understand the effect and ramifications of commencing the Supreme Court proceedings. iii. The lawyer failed to take steps to ascertain the views of [Mr CD's] attorney Colleen Louise Turner as to his capacity or lack thereof. [Complaint 2] 2. The lawyer commenced the Supreme Court proceedings when he knew or ought reasonably to have known that the proceedings did not have reasonable prospects of success [Complaint 3] 3. The lawyer failed to act competently or in the best interests of [Mr CD] Particulars i. See complaints 1 and 2 above. ii. He failed to aa. seek instructions from [Mr CD] or provide any advice to [Mr CD] in respect of the letters from the solicitors for Allity dated 19 June 2017 and 14 July 2017 bb. respond to the letters from the solicitors for Allity set out in (aa) above. See paragraphs 719 to 22 of Annexure D 4. The lawyer took instructions from [Mrs AB] to revoke her existing enduring power of attorney granted to [Mr EF] and sign an enduring power of attorney and enduring guardianship appointing [Mr CD] and [Ms DE] as her attorneys and guardians when he had been formally advised by David Brown, the solicitor for [Mr EF], that [Mrs AB] was suffering from Alzheimer's disease. 1. The second complaint against the solicitor (Complaint 58838) is as follows: Complaint 1 1. The lawyer failed to act competently and diligently in relation to the presentation and execution of the Documents by [Mr CD] when he knew or ought to have known that he lacked capacity to understand the nature and effect of the Documents and/or was recklessly careless as to whether or not he lacked capacity. Particulars The lawyer: a. Knew that [Mr CD] then aged 88 years of age was a resident at the Uniting Nursing Home at Richmond at all material times. b. In view of the factors in (a) above, the lawyer should have but failed to conduct appropriate enquiries to satisfy himself that [Mr CD] was capable of: i instructing the lawyer that he ([Mr CD]) agreed to accept his appointment as enduring co-attorney and enduring co-guardian of [Mrs AB]. ii. understanding the nature and effect of the Documents and iii. of executing the said Documents. c. Failed to ask open ended questions or any questions of [Mr CD] to test his understanding of the nature and effect of the Documents and his role as enduring co-attorney and enduring co-guardian of [Mrs AB]. d. Failed to seek any medical opinion and/or information about [Mr CD's] capacity to sign the Documents and/or accept his appointment as co-attorney and co-guardian of [Mrs AB]. e. Took instructions from and permitted [Mr CD] to accept his appointment as co-attorney and co-guardian of [Mrs AB]. f. Failed to make any written contemporaneous file notes or record(s) of his attendance or attendances on [Mr CD] setting out the steps he took to assess his capacity to understand the nature and effect of the Documents including a record of all questions asked of [Mr CD] and all answers received from him. Complaint 2 2. Alternatively, the lawyer failed to maintain reasonable standards of competence and/or diligence when he failed to make any written contemporaneous files notes or record(s) of his attendance on [Mr CD] setting out the steps he took to assess his capacity to understand the nature and effect of the Documents including a record of all questions asked of [Mr CD] and all answers received from him. Complaint 3 "the Supreme Court proceedings" refers to the proceedings commenced by the lawyer in the Supreme Court on behalf of [Mr CD] against Allity Pty Ltd and [Mr EF] seeking a Writ of Habeas Corpus in relation to [Mrs AB] 3. The lawyer failed to act competently and diligently in relation to his conduct of the Supreme Court proceedings and/or was recklessly careless in his conduct of the said proceedings. Particulars The Lawyer: a. Failed to conduct appropriate enquiries to satisfy himself, that [Mr CD] had the capacity to: i. instruct the lawyer to commence the Supreme Court proceedings ii. understand the nature and effect of the Supreme Court proceedings including the costs ramifications to him if the proceedings were unsuccessful. b. Failed to ask open ended questions or any questions of [Mr CD] to test his understanding of the nature and effect of the Supreme Court proceedings including the costs that he may incur if the proceedings were unsuccessful. c. Failed to seek any medical opinion and/or information about [Mr CD's] capacity to give instructions and to understand the nature and effect of the Supreme Court proceedings when he knew or ought reasonably to have known that [Mr CD] lacked capacity and/or was recklessly careless as to whether he lacked capacity. d. Commenced the Supreme Court proceedings on behalf of [Mr CD]: i. when he knew or ought reasonably to have known [Mr CD] lacked capacity to understand the nature and effect of the Supreme Court proceedings including the costs that he may incur if the proceedings were unsuccessful and/or was recklessly careless as to whether he lacked capacity. ii. after: aa. he had been informed in a letter dated 26 May 2017 by Allity Pty Ltd, the operator of the aged care home where [Mrs AB] was a resident, that [Mrs AB] did not have mental capacity and that the appropriate course was for him to take his concerns to the Guardianship Division of NCAT, bb. he had been informed in a letter dated 26 May 2017 by Mr David Brown, solicitor, that he had attended on [Mrs AB] on 24 May 2017 and that [Mrs AB] had no recollection of the lawyer or of signing the Revocation of Power of Attorney. cc. Mr Brown had faxed to him in his letter dated 8 June 2017 (stamped as received on 7 June 2017 by the lawyer's office) the report of Dr Andrew Rock dated 31 December 2016 who stated, inter alia, that [Mrs AB] "scored in the extremely low range for general cognitive ability." e. Failed to make any written contemporaneous file notes or record(s) of his attendance or attendances on [Mr CD] setting out the steps he took to assess his capacity to understand the nature and effect of the Supreme Court proceedings including a record of all questions asked of [Mr CD] and all answers received from him. f. Failed to conduct appropriate enquiries to satisfy himself that [Mr CD] understood the nature and effect of the costs disclosure and proposed costs agreement dated 16 May 2017 (the costs agreement) that he sent to [Mr CD]. g. Failed to ask open ended questions and/or any questions of [Mr CD] to test his understanding of the nature and effect of the costs agreement. h. Failed to seek any medical opinion and/or information about [Mr CD's] capacity to give instructions in relation to the costs agreement. i. Took instructions and permitted [Mr CD] to enter into the costs agreement when he knew or ought reasonably to have known that [Mr CD] lacked capacity to understand the nature and effect of the costs agreement and/or was recklessly careless as to whether he lacked capacity. j. Failed to make any written contemporaneous file notes or record(s) of his attendance or attendances on [Mr CD] setting out the steps he took to assess his capacity to understand the nature and effect of the costs agreement including a record of all questions asked of [Mr CD] and all answers received from him. k. Failed to ask open ended questions and/or any questions of [Mr CD] to test [Mr CD's] understanding of his alleged instructions to reject the offer in the letter from O'Neill Partners to the lawyer dated 14 July 2017 and to argue the question of costs. l. Failed to make any written contemporaneous file notes or record(s) of his attendance or attendances on [Mr CD] setting out the steps he took to assess his capacity to understand the nature and effect of his alleged instructions to reject the offer in the letter from O'Neill Partners to the lawyer dated 14 July 2017 and to argue the question of costs including a record of alf questions asked of [Mr CD] and all answers received from him. Complaint 4 4. Alternatively, the lawyer failed to maintain reasonable standard of competence and/or diligence when he failed to make any written contemporaneous file notes or records(s) of his attendance or attendances on [Mr CD] setting out the steps he took to assess his capacity to understand: a. the nature and effect of the Supreme Court proceedings including a record of all questions asked of [Mr CD] and all answers received from him. b. the nature and effect of the costs agreement including a record of all questions asked of [Mr CD] and all answers received from him. c. the nature and effect of [Mr CD's] alleged instructions to reject the offer in the letter from O'Neill Partners to the lawyer dated 14 July 2017 and to argue the question of costs including a record of all questions asked of [Mr CD] and all answers received from him. Complaint 5 In relation to the costs agreement, the lawyer breached section 174(3) of the Legal Profession Uniform Law (NSW) when he failed to take all reasonable steps to satisfy himself that [Mr CD] understood and had given consent to the proposed action set out in the costs agreement and the proposed costs. The lawyer knew or ought to have known that [Mr CD] lacked capacity and could not have understood or given the required consent. Particulars The Commissioner repeats the Particulars in paragraphs (g), (h), and (i) of Complaint 3. ********** 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 11 July 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW), the dates at orders (1) and (2) of the Tribunal's decision was changed from 25 November 2022 to 25 November 2020. 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: 11 July 2022