NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: KMC [2014] NSWCATGD 43 Hearing dates: 27 October 2014 Decision date: 04 December 2014 Jurisdiction: Guardianship Division Before: Hughes B, Senior Member (Legal) Martin M, Senior Member (Professional) Cootes J, General Member (Community) Decision: Guardianship order revoked; financial management order made. Revocation of enduring power of attorney declared invalid. Catchwords: ENDURING POWER OF ATTORNEY - review of revocation - attorney revoked a subsequent enduring power of attorney - no authority - revocation declared invalid. GUARDIANSHIP - requested review of guardianship order - Public Guardian and private guardian appointed with separate functions - practicality and need for access function - guardianship order revoked - enduring guardianship appointment no longer suspended. FINANCIAL MANAGEMENT - two enduring powers of attorney made - conflicting authorities - potential for uncertainty - need for order - suitability for appointment - attorney appointed. Legislation Cited: Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW) Cases Cited: Holt v Protective Commissioner (1993) 31 NSWLR 227 Texts Cited: G E Dal Pont, Powers of Attorney (2011, LexisNexis) Halsbury, Laws of Australia (LexisNexis) Category: Principal judgment Parties: Mrs KMC (subject person) Mr BDC (applicant, attorney) Mrs MGC (applicant, attorney) Mr NTC (spouse, guardian) The Public Guardian NSW Trustee and Guardian File Number(s): 53264 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)). reasons for decision WHAT THE TRIBUNAL DECIDED 1The Tribunal reviewed the guardianship order of 26 August 2014 concerning Mrs KMC and revoked that order with effect from 27 October 2014. AND 2The Tribunal ordered that the revocation of enduring power of attorney made by Mrs KMC on 29 April 2014 is invalid. AND 3The Tribunal declared that the enduring power of attorney that Mrs KMC made on 11 September 2012 that appointed Mrs MGC and Mr BDC remains valid in whole. AND 4The Tribunal appointed Mr NTC as manager of Mrs KMC's property and affairs, subject to the authority and directions of the NSW Trustee. BACKGROUND 5Mrs KMC is a 77-year old woman who presently resides at a nursing home in West Sydney having moved there from an aged care hostel in October 2014. Mrs KMC had been admitted to the aged care hostel in March 2013 following a fall at home and an admission to hospital with a fractured shoulder. Mrs KMC previously lived in her own home with her husband Mr NTC. Mrs KMC has three surviving children, Mrs MGC, Ms QVM and Mr BDC. Mrs KMC is a woman with significant cognitive impairment. 6The Tribunal received an application for the appointment of a guardian and financial manager from Mrs MGC in May 2013. The application mainly related to concerns about the active attempts Mr NTC made at that time to remove his wife from the aged care hostel, and a refusal to pay an accommodation bond of $250,000 to that facility. That bond was eventually paid. 7Mrs KMC executed a power of attorney on 9 August 2010 whereby she appointed her husband, Mr NTC, as her attorney. Mrs KMC executed a second enduring power of attorney on 11 September 2012 whereby she appointed Mrs MGC and Mr BDC as her attorneys. 8On 11 September 2012 Mrs KMC appointed the same two children as her joint and several guardians under an appointment of enduring guardian. Mrs MGC and Mr BDC had authority pursuant to the appointment of enduring guardian instrument to make decisions concerning their mother's health care, provide medical and dental consent, decide where she lives and what services she may receive. 9On 11 July 2013 the Tribunal appointed the Public Guardian with the functions of access and accommodation for a period of 12 months. All functions of an appointment of enduring guardian are automatically suspended for the duration of any guardianship order pursuant to section 6I(1) of the Guardianship Act 1987 (NSW) ('the Guardianship Act'). 10On the same date the Tribunal gave consent to the withdrawal of a financial management application. 11On 30 October 2013 a further application for the appointment of a financial manager was received from Mrs MGC and Mr BDC. On 8 January 2014 the Tribunal gave consent for the withdrawal of that second application for financial management. 12On 29 April 2014 a revocation of the enduring power of attorney of 11 September 2012 was purportedly executed. This document was signed by Mr NTC and witnessed by Mr Z, solicitor. 13On 12 June 2014 the Tribunal received an application to adjourn the end of term statutory review of the guardianship order from Mr Z, a solicitor acting for Mr NTC. That application was heard on 26 June 2014 and the Tribunal adjourned the end of term statutory review of the guardianship order for approximately six weeks. 14On 15 July 2014 the Tribunal received a third application for the appointment of a financial manager from Mrs MGC and Mr BDC. 15On 26 August 2014 a differently constituted Tribunal reviewed the guardianship order of 11 July 2013 and renewed it for a period of 12 months. The Tribunal varied the order appointing Mr NTC as guardian with authority to make decisions for Mrs KMC about her accommodation, health care, medical and dental treatment and her access to services. The Public Guardian was appointed as guardian to make decisions about what access Mrs KMC has to others and the conditions of that access. 16On the same date the Tribunal adjourned the hearing of the application for the appointment of a financial manager and issued directions to the parties regarding the filing and serving of further material, including any new applications to review the making, or revocation, of a power of attorney, or the making of an appointment of enduring guardianship. 17Applications to review the revocation of the power of attorney of 11 September 2012 were received at the Tribunal on 16 September 2014. The applicants are Mrs MGC and Mr BDC. 18On 1 October 2014 the Public Guardian requested a review of the guardianship order. Mrs MGC submitted a request to review the guardianship order on 2 October 2014. Mr BDC submitted a request to review the guardianship order on 3 October 2014. THE HEARING 19At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing [Appendix removed for publication]. 20It was agreed by all parties that because of Mrs KMC's cognitive impairment following a stroke, including receptive and expressive aphasia, she was unable to provide a view or talk to the Tribunal. At the hearing of 11 July 2013 a differently constituted Tribunal panel was unable to communicate with Mrs KMC as a result of her cognitive impairment and aphasia. The Tribunal panel of 26 August 2014 was told that Mrs KMC might become distressed if she had to appear before the Tribunal. That panel determined that it would not call Mrs KMC to participate in the hearing. The Tribunal at this hearing made the same determination with the agreement of the parties. What did the Tribunal have to decide? 21The Tribunal had six proceedings before it, namely three requested reviews of the guardianship order of 26 August 2014, two applications to review the revocation of 29 April 2014, and an application for a financial management order. Requests for reviews of guardianship order 22On reviewing the guardianship order of 26 August 2014 the Tribunal could confirm, vary, suspend or revoke the order. 23In this matter the issues to be decided by the Tribunal were: (a)Should the guardianship order continue? (b)If so, what functions should now be given to the guardian? (c)If the order should continue, who should be the guardian? Application to review the revocation of the enduring power of attorney 24In respect of an application to review a revocation of the enduring power of attorney the Tribunal has to consider whether the applicant is an interested person within the terms of the Powers of Attorney Act 2003 (NSW) ('the Powers of Attorney Act') (section 35); and if it proceeds to a review the Tribunal is to consider: (a)Whether the principal did or did not have the mental capacity to revoke the enduring power of attorney (section 36(3A)(a), Powers of Attorney Act). (b)The Tribunal had to consider whether the revocation of the enduring power of attorney is invalid for other reasons (for example, the principal was induced to make the revocation by dishonesty or undue influence) (section 36(3A)(b), Powers of Attorney Act). 25If the Tribunal determines that the revocation is invalid due to lack of mental capacity or for other reasons, then the Tribunal may order that the enduring power of attorney remains valid, either wholly or in part. 26Alternatively, the Tribunal may decide not to make any of the orders above and decide to treat the application to review the revocation of the enduring power of attorney as an application for a financial management order under Part 3A of the Guardianship Act (section 37, Powers of Attorney Act). The Tribunal must be satisfied that it is appropriate in all the circumstances to treat the application as an application for a financial management order. 27In this case there was no need to consider the question of Mrs KMC's capacity as it was accepted that Mrs KMC did not execute the revocation herself. The Tribunal did not need to consider whether it should treat the application to review the revocation of the enduring power of attorney as an application for a financial management order as there was already an application for a financial management order before the Tribunal. Financial management application 28In this matter the Tribunal had before it an application for a financial management order in respect of which it had to make a decision. 29To make a financial management order the Tribunal must be satisfied that: (a)Mrs KMC is not capable of managing her affairs; (b)There is a need for another person to manage the affairs of Mrs KMC on her behalf; and (c)It is in the best interests of Mrs KMC that a financial management order be made. THE EVIDENCE AND THE TRIBUNAL'S REASONING REQUESTED REVIEW OF THE GUARDIANSHIP ORDER Previous Reasons for Decision 30The Reasons for Decision of the Tribunal of 11 July 2013 and 26 August 2014 detail the concerns that were held on those occasions. 31At the hearing of 11 July 2013 the basis for the application related to the actions of Mr NTC towards his wife. The concern was that Mr NTC intended to remove his wife from the aged care hostel where she was residing. This expressed intention was against the wishes of all other family members. At the time Mr NTC intended to take his wife home and possibly travel in his Winnebago for an extended period of time as he had previously done. 32In early May 2013 Mr NTC unsuccessfully attempted to remove his wife from that facility, leading his family to believe that he did not fully appreciate the extent of his wife's disability. Family members and the staff of the aged care hostel service provider agreed that at that time a form of supervision was required when Mr NTC visited that facility due to his unhelpful and occasionally dangerous interactions with his wife. Information provided to the Tribunal from incident reports highlighted the inappropriate manner in which Mr NTC physically handled and spoke to his wife at the nursing home. The Tribunal decided that an independent guardian should be appointed to make decisions about Mrs KMC's accommodation and access in view of the diverse positions that were held. The Tribunal did not appoint a guardian for medical and health care issues of concern given that there were no major issues of concern in that area and Mrs KMC had a number of family members involved in her life who are able to act as 'person(s) responsible'. 33By the time of the hearing of 26 August 2014 the Tribunal found that there remained an accommodation decision to be made for Mrs KMC. Her husband continued to be unhappy with Mrs KMC's placement at the aged care hostel and wished her to leave for cultural reasons. He stated that he wanted his wife to reside at the nursing home at West Sydney, which is closer to where he lives, more culturally appropriate for Mrs KMC and would enable him to visit her more regularly. The Tribunal accepted that there remained ongoing family conflict around Mrs KMC's healthcare and medical treatment, particularly in respect of physiotherapy treatment. 34The Reasons for Decision set out the basis upon which the Tribunal on that date found a continued need for an access function. The Tribunal was satisfied that Mr NTC's children and health professionals involved in the care of Mrs KMC considered Mr NTC's behaviour inappropriate in early to mid-2013. The Tribunal further accepted the evidence of Mr NTC and Ms QVM that he no longer held the view that Mrs KMC could be cared for at home. The access order in place whilst Mrs KMC resided at aged care hostel had reduced "controlling and aggressive" behaviour when Mr NTC attended his wife. The Tribunal accepted that Mr NTC's behaviours had been significantly positive and very different to previously. The Tribunal was satisfied that aged care hostel service provider could provide better care to Mrs KMC with an access order in place. 35The Tribunal of 26 August 2014 decided that Mr NTC should be appointed as guardian to make decisions concerning accommodation, services, medical and dental consent and healthcare matters. The Tribunal appointed the Public Guardian as decision maker in respect of the function of access. Current applications 36The Public Guardian requested a review of the guardianship order of 26 August 2014 on the basis that there was an unworkable division of authority in that order. The Public Guardian was appointed with the access function, which historically had only been used in regard to Mr NTC, the joint guardian. The Public Guardian stated in its application that Mr NTC was the reason that the initial guardianship order was made and access decisions were required to protect Mrs KMC. Noting that Mr NTC's behaviour has been settled since the access function was put in place, the Public Guardian considered that it would be unable to implement any access decision given Mr NTC's authority to change Mrs KMC's accommodation, make her health care decisions and to arrange services for her. The Public Guardian put forward the view that it was inconsistent to provide one guardian with the function of determining access for a guardian entrusted to make decisions by the Tribunal. 37Mr BDC and Mrs MGC requested a review on the basis that the Public Guardian should be appointed to make all decisions for Mrs KMC to protect her and ensure her interests are respected and preserved. 38At the request of the Public Guardian, Mr BDC and Mrs MGC, the Tribunal carried out a review of the guardianship order of 26 August 2014. The Tribunal considered it necessary to look at the current situation and consider the decisions that might be made in the foreseeable future. Should the guardianship order continue and should it be varied? Legal Principles 39In making decisions under the Guardianship Act, the Tribunal is required to have regard to the general principles set out in section 4. There are eight principles set out here which provide as follows in relation to the person with a disability: (a)The welfare and interests of such persons should be given paramount consideration (b)The freedom of decision and freedom of action of such persons should be restricted as little as possible (c)Such persons should be encouraged... to live a normal life in the community (d)The views of such persons...should be taken into consideration (e)The importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised (f)Such persons should be encouraged...to be self-reliant in matters relating to their personal, domestic and financial affairs (g)Such persons should be protected from abuse, neglect and exploitation (h)The community should be encouraged to apply and promote these principles. 40The Tribunal is directed to positively consider whether the circumstances of the life of the person under consideration requires the appointment of a legally authorised substitute decision maker, or whether the need for appropriate decision making can be achieved in other less formal ways. The Evidence 41Since his appointment as a guardian, Mr NTC has changed Mrs KMC's accommodation. Shortly before the hearing date, Mr NTC transferred his wife to the nursing home in West Sydney. No one who attended the hearing had any concerns that the nursing home was not a suitable placement for Mrs KMC. There is no alternative accommodation decision being considered for Mrs KMC. Mr BDC and Mrs MGC spoke of their strong concern that Mr NTC would remove their mother from any nursing home and return her to his own home. Mr NTC told the Tribunal that he believed his wife is appropriately placed and requires nursing home care. At the present time she would not be able to return home. As guardian, Mr NTC has made a decision that his wife be placed at nursing home in West Sydney, a facility that is closer to his own home. Mr NTC has not brought his wife home since his appointment as guardian. 42Mr BDC and Mrs MGC believe that if Mr NTC himself moves into a residential aged care facility he may move his wife to be with him. There is no imminent or definite plan for Mr NTC to enter residential care. 43Mrs MGC said that she believed that while there was no problem with the nursing home itself, she strongly felt that her mother should be in a single room, as she had been at the aged care hostel. Mrs KMC shares a room with another lady at the nursing home. Mr NTC told the Tribunal that Mrs KMC is very happy sharing a room and that the facility is like a five-star hotel. 44Ms Y, Administration Officer at the nursing home told the Tribunal that Mrs KMC has settled in well to the facility. Ms Y said that she has not observed any difficulties with Mrs KMC sharing a room and that there is adequate space for both women. Ms Y said that Mrs KMC became a permanent resident at the facility on 16 October 2014. 45Mrs KMC has a chronic and severe medical condition. Ms Y told the Tribunal that a care plan is in place at the facility that includes physiotherapy, podiatry, oral health, visual health and audio health. Ms Y told the Tribunal that Mrs KMC receives all the services that she requires at the nursing home in West Sydney. 46Mr NTC has had unfettered access to his wife at the nursing home in West Sydney. He visits her twice daily. Ms Y reported that staff consider Mr NTC friendly and courteous to staff and residents alike. He enjoys assisting with his wife's feeding whenever he can and is constantly checking with staff that everything is going well. Ms Y said that Mrs KMC appeared happy to see anyone who comes to visit. Mrs KMC receives visits from her daughters Ms QVM and Mrs MGC. The staff of the nursing home see no need to restrict visits to Mrs KMC. Ms Y told the Tribunal that she was cognisant of the problems that had been encountered by the aged care hostel service provider in relation to the behaviour of Mr NTC. Mrs MGC told the Tribunal that she is able to see when her father is not at the nursing home and makes informal arrangements to see her mother at these times. 47The Public Guardian participated in the hearing. The Public Guardian told the Tribunal that the access function was unworkable as it is impractical and very difficult to regulate access to a person's guardian. Mr BDC was strongly opposed to the access function being removed. He argued that the Public Guardian should have been the guardian with all functions including access. Mr BDC said that Mrs KMC had been protected from her husband by the existence of the guardianship order. He told the Tribunal that his father had not changed and that the access function kept Mrs KMC safe. Mr BDC told the Tribunal that his father has a history of becoming agitated and then will remove Mrs KMC from care. Mrs MGC was adamant that her father would not consult with herself or Mr BDC if any decisions were made, and like her brother, argued that the Public Guardian should be reappointed with all functions including access. Consideration 48Mrs KMC remains unable to make informed decisions due to the combined effect of her disabilities. 49On the evidence before the Tribunal there is no plan to change Mrs KMC's accommodation. Mrs KMC is appropriately and permanently placed. The Tribunal accepts that Mr BDC and Mrs MGC fear that their father may remove Mrs KMC from the nursing home and that these concerns are due to the past history of Mr NTC. However, the evidence before the Tribunal is that Mr NTC accepts that nursing home care is required for his wife and has accepted this since the first guardianship order was made. As guardian Mr NTC made an accommodation decision to transfer her to the nursing home in West Sydney. Mr NTC has advocated that his wife be placed at that facility for some time. The decision about whether Mrs KMC should be in a single or a shared room is not a decision for which a guardian is required. The evidence is that Mrs KMC is happy at the present time in a shared room and the nursing home feels that this is appropriate. If it becomes inappropriate the nursing home has a duty of care to move Mrs KMC into another room and to speak to family about this decision. The Tribunal is not satisfied that there are accommodation decisions to be made in the foreseeable future. 50At the past hearings there was family dispute about proper treatment for Mrs KMC and whether she should receive physiotherapy. Mr BDC spoke of his belief that his father would push Mrs KMC too far through physiotherapy and was unsure of whether such treatment would benefit Mrs KMC, despite the opinion of her Orthopaedic Surgeon that physiotherapy may assist her. The Tribunal considered that health professionals have their own ethical duties that provide a protection for Mrs KMC to ensure that she receives appropriate and beneficial treatment. There is a care plan in place at the nursing home. There are no medical or health care decisions to be made at the present time. 51The Tribunal is aware from the evidence at previous hearings that an access function was attached to the previous orders due to the need for supervision of Mr NTC during his visits to Mrs KMC at the aged care hostel. Mr NTC was not happy with his wife's placement at that facility and many problems arose until the access function was put in place under the guardianship order of July 2013. At the hearing of 26 August 2014 evidence was given to the Tribunal that the access function operated to improve Mr NTC's behaviours at the nursing home. Previously it had been reported that Mr NTC was controlling and aggressive whilst attending his wife at the aged care hostel and that he had interfered with the provision of services at that facility. 52The Tribunal is satisfied that Mrs KMC is protected from abuse, neglect and exploitation in her current placement. Mrs KMC's spouse of 60 years has been consistent for some time in his desire that Mrs KMC reside at the nursing home in West Sydney in order to preserve her relationship with him, and to recognise her cultural and linguistic background. Mrs MGC has managed to find an informal process by which she can visit her mother without coming into contact with Mr NTC. Mr BDC resides in the Australian Capital Territory and there is no suggestion that his access to Mrs KMC would be restricted. Ms QVM visits her mother regularly at the nursing home in West Sydney. The Tribunal is satisfied from the evidence of Ms Y that Mrs KMC is happy to receive visits from her family members. 53A guardian is a substitute decision maker. The Tribunal can only make a guardianship order when there are decisions to be made. The appointed guardian has already made an accommodation decision and there is no alternative proposal. The previous access function was required when Mrs KMC resided in a facility with which her husband was unhappy. The nursing home in West Sydney are aware of the difficulties encountered by the aged care hostel service provider in their dealings with Mr NTC, and nonetheless see no need to restrict Mr NTC's access to his wife. Mrs KMC's medical condition is stable and she receives appropriate health care at the nursing home in accordance with a heath care plan. Services are provided to Mrs KMC within the nursing home. The Tribunal is not satisfied that there are decisions to be made in the foreseeable future for which a guardian needs to be appointed. 54In 2012 Mrs KMC appointed her daughter Mrs MGC and son Mr BDC as her enduring guardians to make decisions about her accommodation, health care, services and medical and dental treatment. At the end of a guardianship order that appointment is revived and the enduring guardians are able to make decisions in accordance with that appointment, there being no challenge to its validity. 55Mrs MGC and Mr BDC have made it quite clear that they are not seeking to make decisions on their mother's behalf in any of these areas. If the enduring guardians choose not to act in accordance with their appointment, Mrs KMC's husband is her person responsible. Nonetheless, with the revocation of the guardianship order, the enduring guardianship appointment is revived. 56Accordingly the Tribunal determined that it should revoke the guardianship order with effect from 27 October 2014. REQUESTED REVIEW OF THE REVOCATION OF THE ENDURING POWER OF ATTORNEY 57Section 33 of the Powers of Attorney Act describes a reviewable power of attorney (including a revocation) as one that the Tribunal to whom the application is made has jurisdiction to deal with the application. There was no dispute that this Tribunal has jurisdiction to review the instrument. Are the applicants interested persons within the terms of the Powers of Attorney Act 2003 (section 35)? 58Section 36 of the Powers of Attorney Act provides that an "interested person" may request a review. Section 35 provides that an attorney or a person appointed as an enduring guardian is an "interested person" for this purpose. The applicants are Mr BDC and Mrs MGC. The Tribunal notes that Mr BDC and Mrs MGC were appointed as attorneys and enduring guardians for Mrs KMC under the instruments executed on 11 September 2012. The power of attorney of 11 September 2012 is the instrument that was purportedly revoked on 29 April 2014. Accordingly, the Tribunal accepts that the applicants are interested persons, who can validly request a review. Should the Tribunal conduct a review? 59Section 36(1) of the Powers of Attorney Act gives the Tribunal discretion to conduct a review of the revocation of an enduring power of attorney. In this case, the Tribunal was satisfied that it should conduct a review of the purported revocation of the enduring power of attorney, as this provided the only option to preserve the arrangements which Mrs KMC had put in place in 2012 for the management of her affairs, thereby reflecting her intentions at a time when her capacity has not been questioned by an application to review the making and operation of the 2012 power of attorney or appointment of enduring guardianship of the same date. The Tribunal was persuaded that the circumstances of the execution of the instrument required review. On this basis, the Tribunal determined to conduct a review, as requested. Was the revocation of the enduring power of attorney made by Mrs KMC invalid for other reasons (for example, the principal was induced to make the revocation by dishonesty or undue influence) (section 36(3A)(b), Powers of Attorney Act 2003)? The Evidence 60The Tribunal was provided with a copy of the enduring power of attorney executed by Mrs KMC on 9 August 2010 by which she appointed Mr NTC as her attorney. This instrument was executed in the presence of Mr X, solicitor, as witness. The Tribunal was also provided with a copy of the enduring power of attorney of 11 September 2012, which appointed Mr BDC and Mrs MGC as her attorneys. Mr X, solicitor, again witnessed the execution of this instrument. The Tribunal has not been requested to review the making or operation of either of these instruments. 61The Tribunal was provided with a copy of the revocation of the enduring power of attorney at issue. The principal, Mrs KMC, did not sign the instrument. Mr NTC signed the revocation. 62The reports of Dr W and Dr V predate the purported revocation of April 2014 and the Tribunal has the further benefit of the report of Dr U post-revocation. There is clear medical evidence that Mrs KMC has suffered impaired cognition and neurological disability impacting her capacity to manage her financial affairs at least from the time she was seen by Dr W and Dr V in 2013. Although none of the medical practitioners specifically consider whether Mrs KMC had the capacity to revoke an enduring power of attorney, this evidence supports the view that Mrs KMC was markedly impaired by her disabilities at that time, with significant receptive and expressive aphasia. Mr Z, solicitor, who witnessed the revocation instrument, was of the view that Mrs KMC herself was incapable of executing the instrument. 63The revocation instrument was signed by Mr NTC and witnessed by his solicitor, Mr Z, on 29 April 2014. Mr Z participated in the hearing by telephone. Mr Z told the Tribunal that he was instructed by Mr NTC that Mrs KMC had lacked the capacity to make the power of attorney or enduring guardian appointments of September 2012. Mr Z told the Tribunal that in his view this meant that the instruments of September 2012 were invalid and that the only valid power of attorney was the one appointing his client, Mr NTC, as attorney in May 2010. Mr Z submitted that as result of this Mr NTC as the valid attorney was able to stand in the shoes of the principal and revoke the invalid power of attorney of 2012. 64The Tribunal asked Mr Z about his understanding of the powers of review of the making, operation and revocation of powers of attorney held by the Tribunal and the Supreme Court. Mr Z told the Tribunal that he had not considered an application to review the 2012 instruments necessary, as he was satisfied from his instructions that Mrs KMC was incapable in 2012. He submitted that an attorney had the power to revoke a subsequent power of attorney if the previous attorney considered that the subsequent instrument was invalid. He told the Tribunal that an attorney could take any action that a principal would be able to if they had capacity in accordance with the instrument. The Tribunal asked Mr Z if he could provide support for his contention that an earlier attorney could stand in the shoes of the principal to revoke a subsequent power of attorney. No further submissions were made. The Law 65The Powers of Attorney Act was amended with effect from September 2013 to allow the Tribunal and the Supreme Court to review the revocation of enduring powers of attorney. Prior to this, only the making or operation of an enduring power of attorney could be reviewed. 66Division 4 of the Powers of Attorney Act deals with reviews of enduring powers of attorney and other powers. Section 33 sets out: (2) Both the Civil and Administrative Tribunal and the Supreme Court have jurisdiction to deal with an application under this Division in respect of an enduring power of attorney (including a revocation of an enduring power of attorney). (3) The Supreme Court (but not the Civil and Administrative Tribunal) also has jurisdiction to deal with an application under this Division in respect of any other power of attorney given by a principal who is incommunicate for the time being. (4) To remove any doubt, references in this Division to a reviewable power of attorney extend to a document purporting to be a reviewable power of attorney and to the making or revocation of a power of attorney extend to the purported making or revocation of a power of attorney. 67Parliament has established a review process to ensure that people who are incapable are protected. The power to conduct reviews is specifically provided by section 33 of the Powers of Attorney Act and is given to the Supreme Court and the Civil and Administrative Tribunal. There is no provision that any other person or body is able to review a power of attorney, including a revocation of an enduring power of attorney. It would be inconsistent with the general principles of protective legislation to allow informal reviews to take place. It was open to Mr NTC, or any other interested party in accordance with section 35 of the Powers of Attorney Act, to make an application to the Civil and Administrative Tribunal or the Supreme Court to review the circumstances of the making of the 2012 instruments. 68The following general principles are taken from G E Dal Pont, Powers of Attorney (2011, LexisNexis), and Halsbury, Laws of Australia (LexisNexis). 69'Authority' lies at the core of agency law and whether an attorney has power to do something will generally be found in the scope of the attorney's authority, by reference to the specific terms of the power. The fiduciary nature of a power of attorney requires a stricter or more restrictive approach to authority than what might be taken in general agency law. In enduring powers of attorney the approach must be even stricter, because the principal lacks the capacity to effectively monitor the exercise of the attorney's authority. 70Section 9(1) of the Powers of Attorney Act interferes with the principal's freedom to confer authority on the attorney, by limiting the authority to anything that the principal may lawfully authorise the attorney to do. Dal Pont further states: "if a statute requires an individual to execute an act personally, the individual cannot appoint an attorney for this purpose" (126). 71In relation to the making of a power of attorney, the Act expressly provides that only the principal may create one. As section 19 requires a principal, as defined in section 3 (in relation to a power of attorney, being the person giving the power), to understand the instrument - and there is no provision for any other kind of person to do so on the principal's behalf - it would be illogical for different requirements to apply to the making of a revocation instrument. At common law the capacity and formality of personal execution that applies to making an enduring power of attorney is the same that is required to revoke it. 72One of the key reasons the Power of Attorney Act gives jurisdiction to the Supreme Court or Guardianship Tribunal (now Civil and Administrative Tribunal) to review enduring powers of attorneys is because once the principal has lost the capacity to revoke the enduring power of attorney there is no avenue for revocation other than through these review mechanisms. 73 Section 36 (3A) makes it clear that the tests for a valid revocation are whether: (a)the principal did or did not have mental capacity to revoke a power of attorney, or (b)the revocation is invalid for any other reason, for example, the principal was induced to make the revocation by dishonesty or undue influence. 74The legislation specifically requires the state of mind of the principal to be considered by the Tribunal or Supreme Court at a review: if it exercises the discretion to conduct a review the Tribunal must consider if the principal had the mental capacity to revoke the power of attorney, or whether the principal was induced to make the revocation by dishonesty or undue influence (for example). The legislation does not empower an attorney to execute an instrument including a power of attorney, a revocation of a power of attorney, vote or exercise a principal's obligations as a trustee. Consideration 75The Tribunal on 26 August 2014 gave directions to all the parties to send in any evidence upon which they might wish to rely in any financial management application or review of the making, or revocation of a power of attorney, or the making of an appointment of enduring guardian prior to the next hearing date. The Tribunal considered that the parties were made aware of the jurisdiction of the Tribunal to review enduring powers of attorney and enduring guardianship appointments. 76The Tribunal did not need to consider Mrs KMC's capacity to revoke the instrument as she did not revoke it herself. However, the Tribunal took the legislative requirement to consider the principal's capacity to execute an instrument as an indication that a revocation must be executed by the principal. 77The legislation makes it clear that only a principal is able to create an enduring power of attorney. An instrument created in accordance with the legislation can only be revoked if empowered by the legislation. An attorney does not have the legislative authority to revoke an enduring power of attorney. The legislation is intended to protect those who are incapable of protecting themselves and for that purpose gave the power to review to the Supreme Court and the Civil and Administrative Tribunal. The Tribunal found that the revocation was invalid because the revocation was not executed by the principal. Order and Declaration 78The Tribunal exercised its discretion to make the following order and declaration: (1)The revocation of enduring power of attorney made by Mrs KMC on 29 April 2014 is invalid. (2)The enduring power of attorney that Mrs KMC made on 11 September 2012 that appointed Mrs MGC and Mr BDC remains valid in whole. FINANCIAL MANAGEMENT APPLICATION 79Section 25G of the Guardianship Act sets out the criteria to be established by the Tribunal if it is to make a financial management order. The Tribunal must be satisfied, to the requisite civil standard, of three matters. First, that the person the subject of the proposed order is not capable of managing his or her affairs. Secondly that there is a need for another person to manage those affairs on behalf of the person, and thirdly that it is in the person's best interests that the order is made. Is Mrs KMC incapable of managing her financial affairs? The Evidence 80It is accepted by all parties that Mrs KMC suffered a cerebro-vascular accident in May 2010 that resulted in hemiparesis and aphasia. Dr W provided the Tribunal with a health professional report dated 8 May 2013. Dr W reported that as a consequence of the cerebro-vascular accident of May 2010 Mrs KMC has suffered further seizures. As a result of her disabilities, Dr W reported that in May 2013 Mrs KMC was unable to express her wishes or make and decisions for herself in respect of either lifestyle or financial affairs. 81Dr V provided a report of 29 May 2013. Dr V found it difficult at that time to ascertain Mrs KMC's wishes given the severity of her expressive and receptive aphasia. She did not appear to appreciate her current care requirements or to fully understand the family conflict. Dr V was unable to complete formal cognitive testing given the extent of expressive and receptive aphasia. She was satisfied that Mrs KMC has significant cognitive impairment following her stroke that impacts her decision making capacity. 82Dr U provided the Tribunal with a report of 18 August 2014 in which he certified that Mrs KMC has suffered from "Stroke [Rt Hemiparesis/Dysphasia (Can't Speak)]. At around the time that she signed over her Power of Attorney i.e. 09/2012, She would not Comprehend (sic) why, what and the consequences of her action." 83On 8 January 2014 the Tribunal consented to a request to withdraw a financial management application. The Reasons for Decision of the Tribunal report that there was no dispute at that time that Mrs KMC has lost the capacity to manage her affairs. Mrs MGC and Mr BDC sought to withdraw the application on the basis that they were satisfied that there were no significant concerns for their mother's financial affairs. Mr NTC continued to manage his wife's affairs informally and Mrs MGC and Mr BDC could take control under the 2012 power of attorney if it became necessary. The Law 84A person's capability to manage his or her affairs was considered by Campbell J in the NSW Supreme Court in Re GHI (a protected person) [2005] NSWSC 581. Campbell J affirmed the approach enunciated in PY v RJS [1982] 2 NSWLR 700 by Powell J, at paragraph 7: "It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears: that he or she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and that by reason of that lack of competence there is shown to be a real risk that either he or she may be disadvantaged in the conduct of such affairs; or that such moneys or property that he or she may possess may be dissipated or lost... it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions in the most efficient manner..." 85Young J in H v H (unreported) NSW Supreme Court 20 March 2000, in dealing with the capacity test as it has been enunciated in NSW, said that dealing with the "ordinary affairs of man" does not simply mean being able to go to bank and draw out housekeeping money. Most people's affairs, his Honour said, " are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills." 86It should be noted that the relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86). Consideration 87The Tribunal accepts that Mrs KMC has been unable to participate in the hearings before the Tribunal since July 2013 as a result of cognitive impairment and neurological disabilities. 88There was no dispute by any of the parties that Mrs KMC is incapable of managing her financial affairs. The Tribunal is satisfied from the evidence before it that Mrs KMC has suffered significant cognitive impairment and that this makes her incapable of managing her own financial affairs, and puts her at risk of loss of her financial means. Is there a need for another person to manage Mrs KMC's affairs and is it in her best interests for a financial management order to be made? Previous applications 89The Guardianship Tribunal on 11 July 2013 consented to a request to withdraw an application for the appointment of a financial manager. The basis for the request to withdraw the application was that Mr NTC had paid a previously unpaid accommodation bond and nursing home fees were up to date. Mrs MGC told the Tribunal at that time that she and Mr BDC had not exercised their authority under the September 2012 power of attorney as it had not been necessary to do so, as their father was appropriately managing his and Mrs KMC's affairs and was providing for her appropriately. Mrs MGC sought the leave of the Tribunal to withdraw that financial management application. 90The application for the appointment of a financial manager for Mrs KMC that was before the Tribunal on 8 January 2014 related to concerns that Mr NTC was providing significant funds to Ms QVM. Mr BDC and Mrs MGC provided details of payments to Ms QVM that were reported to be from the joint account of their parents. On that occasion Mr NTC confirmed that he had lent or gifted funds to Ms QVM in the same manner that he had provided financial support to each of his children, including his now deceased son Mr TAC. It was accepted that this had not impacted on the financial support he continues to provide to his wife and her fees were always paid. Mr BDC and Mrs MGC told the Tribunal that they would invoke the power to operate the 2012 instrument if it became necessary. Mrs MGC and Mr BDC indicated that at that time they held no significant concerns for their mother's financial affairs and the Tribunal consented to the withdrawal of the application. The Tribunal on 8 January 2014 was satisfied that Mrs KMC's financial affairs remained generally well managed by Mr NTC and that Mrs KMC would not be disadvantaged by the withdrawal of the application. The Evidence 91In April 2014 Mr NTC purported to revoke the 2012 power attorney on behalf of his wife. His solicitor, Mr Z, contacted a local bank and notified that organisation that the power of attorney of 2012 had been formally revoked and that Mr NTC alone should be able to access the funds held in the joint bank account held in the names Mr NTC and Mrs KMC. 92Mr NTC advised the Tribunal that the family home is owned by Mrs KMC alone. There is an accommodation bond of $250,000, which is being transferred from the aged care hostel service provider to Company A, which is the financial limb of the nursing home in West Sydney. There is a joint bank account in the names of Mrs KMC and Mr NTC that contains about $14,000. Mr NTC has his own bank account that is separate to the account held with his wife. Mr NTC told the Tribunal that his wife receives a part pension and holds about $140,000 in superannuation. There are Telstra shares in the names of both Mrs KMC and her husband. Mr NTC pays an extra $1000 per month to the nursing home in addition to Mrs KMC's accommodation fees to pay for her healthcare and services, and to ensure that she is maintained in comfort. Mr NTC told the Tribunal that he has signed the accommodation agreement with nursing home and purchases the items his wife requires as she needs them. The nursing home confirmed that Mr NTC had signed all the necessary paperwork to enable Mrs KMC's admission to that facility. 93There is other property, which is held in the name of Mr NTC including a property at Regional NSW and a mobile home. Mr BDC and Mrs MGC raised concerns that Mr NTC had paid Ms QVM significant sums of money in 2013 from funds jointly held with Mrs KMC. The Tribunal was provided with bank statements from 2013, which show payments from Mr NTC's private bank account to Ms QVM. The bank statements provided to the Tribunal were in the name of Mr NTC alone. Consideration 94Ordinarily, the Tribunal would be reluctant to make a financial management order when an attorney would be able to manage a person's affairs. Usually there would be no practical reason why an attorney could not manage a person's affairs without the need for a financial management order. The Tribunal has not been asked to review the making or operation of the power of attorney of 2010 or the making or operation of the power of attorney of 11 September 2012. The Tribunal has not been asked to decide whether there can be an implied revocation of the 2010 power of attorney as a result of the subsequent power of attorney. Mrs KMC is therefore in a position where there are two powers of attorney in existence and there is significant confusion as a result of this. Mrs KMC has no capacity to fix these arrangements for herself 95There is considerable confusion as to who is legally entitled to access the accounts and assets in the name of Mrs KMC. There remains significant conflict between Mr NTC, Mr BDC and Mrs MGC as a consequence of which there is a serious potential for further problems for Mrs KMC if there are two valid enduring powers of attorney in force. The Tribunal considered that this is an untenable situation, and accordingly concluded that it is in Mrs KMC's best interests to make a financial management order. 96On this basis, the Tribunal was satisfied that there is a need to appoint a financial manager to manage Mrs KMC's affairs and it is in her best interests that an order be made. Who should be appointed financial manager? The Evidence 97Mr NTC told the Tribunal that he should continue to manage his wife's financial affairs as he has done informally throughout their 60 year marriage, and pursuant to the 2010 power of attorney. Mr NTC told the Tribunal of his assets and those of his wife. It was apparent that there has been intermingling of assets throughout the marriage, although some property is identifiably separate as belonging to Mrs KMC and some to Mr NTC. Mr NTC has ensured that he is in constant contact with the nursing home according to Ms Y, and has made every effort to see that his wife receives the best possible treatment. Mrs KMC has a health care plan that ensures that she will receive any healthcare or services including physiotherapy, podiatry, oral health, visual health and audio health. Mr NTC visits twice daily and is in the best position to see that his wife's needs and comforts are being met. 98Ms WFC is a daughter-in-law of Mr and Mrs KMC. Ms WFC provided the Tribunal with a letter dated 16 October 2014 and participated in the hearing. She and her late husband had acted as accountants and tax agents for Mr and Mrs KMC for the previous 20 years. Ms WFC told the Tribunal that Mr NTC had always controlled the finances and that he had excelled himself in that management, always doing it to the best of his ability to ensure that he and Mrs KMC could have a happy and well-provided for retirement. Ms WFC reported that Mr NTC has done very well in his endeavours, and his aim has always been to do the best for his wife. She considered that Mr NTC was very capable of handling his wife's affairs. 99The Tribunal also had a report from Dr S dated 25 June 2014. Dr S had met with Mr NTC to assess his capacity to care for Mrs KMC. He reported that Mr NTC is an 84-year old retired policeman and self-funded retiree. Dr S considered that Mr NTC expressed significant insight into Mrs KMC's medical, psychological and social needs as well as her current physical and mental state. Mr NTC appeared to be acting in the best interests of his wife and was fully aware of the financial issues surrounding her requirement for high-level care in an aged care facility. Dr S considered that Mr NTC appears to be dedicated in providing his wife with the best possible care and in advocating on her behalf when required. Dr S did not refer to any evidence of cognitive impairment in Mr NTC, indicating that he scored perfectly in a Mini Mental State Examination performed at the assessment. The Law 100In appointing a financial manager, as in making all other orders under the Guardianship Act the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in section 4 of the Guardianship Act. 101Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian. 102In Holt v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the Protective Commissioner and a family member as the manager of an estate. 103The NSW Trustee and Guardian now exercises the role of the Protective Commissioner. 104On the side of the Protective Commissioner was seen to be the manifest independence of statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage. 105The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers. 106The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be "more apparent than real" should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family. Consideration 107The Tribunal is satisfied that interrelated property interests are not uncommon in a family situation. The Tribunal heard evidence that Mr NTC has managed Mrs KMC's affairs informally for many years and that as recently as January 2014 the applicants were satisfied that this situation should continue informally. The Tribunal considered that Mr NTC has entered into financial agreements on his wife behalf in respect of the accommodation bond and her placement at the nursing home with her best interests as paramount. 108The Tribunal was satisfied that for many years Mr NTC has informally managed his wife's financial affairs. There has been no application to review the making of the power of attorney of 2010 or its operation. The Tribunal considers that the views of Mrs KMC at a time when she is understood to have had the capacity to appoint an attorney should be given significant weight. 109The Tribunal is also satisfied that Mr NTC will have the ongoing support and assistance from Ms WFC, who appears to have a good knowledge of the family's financial affairs. The Tribunal was satisfied that Mr NTC's intimate knowledge of his wife, her personality and her needs heavily outweighed the concerns that had been outlined by the applicants. Mr BDC and Mrs MGC relied upon earlier gifts to Ms QVM that had been explained at a previous hearing, an initial unwillingness to pay the accommodation bond to the aged care hostel service provider, which is a facility in which Mr NTC was strongly opposed to the placement of his wife. In April 2014 Mr NTC signed an instrument purporting to revoke the 2012 power of attorney. Mr NTC's signature was witnessed by his solicitor, and the Tribunal considers that Mr NTC did not believe that he was doing anything improper. The Tribunal is satisfied that Mr NTC will seek advice when he requires assistance. Both Mrs KMC and Mr NTC will be protected by the requirement that a financial manager appointed by an order of the Tribunal must comply with the authorities and directions of the NSW Trustee and Guardian. The Tribunal was satisfied that the benefits to Mrs KMC of the appointment of her husband strongly outweighed the appointment of the NSW Trustee and Guardian. 110Ultimately, the Tribunal determined for the reasons given above, that Mrs KMC's best interests will be served by a final financial management order. The Tribunal was satisfied that Mr NTC is a suitable person to be appointed as financial manager for Mrs KMC subject to the authorities and directions of the NSW Trustee and Guardian, and so appoints him in this role. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2014