Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZHC v ZHP [2018] NSWCATAP 190 Hearing dates: 5 April 2018 Date of orders: 07 August 2018 Decision date: 07 August 2018 Jurisdiction: Appeal Panel Before: M Schyvens, Deputy President M Harrowell, Principal Member A Lowe, General Member Decision: Appeal dismissed Catchwords: APPEAL – appeal of decision of the Guardianship Division – review of an enduring power of attorney – decision to treat as an application for financial management – appeal on a question of law – whether finding that the attorney was in breach of her fiduciary obligations was legally unreasonable – duty not to mix the property of the principal with the attorney's own property – whether there was a failure to take account of the views of the person subject of the application – appointment of family member as manager and undue conflict of interest – appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b) Guardianship Act 1987 (NSW), ss 4, 4(e), 25G, 25M, 25M(1), 25R Powers of Attorney Act 2003 (NSW), ss 36, 36(1), 50(3); cl 14(1)(b) of Sch 6 Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139C v W [2015] NSWSC 1774 Collins v Urban [2014] NSWCATAP 17 DHQ v DHR [2018] NSWCATAP 128 F v NSW Trustee and Guardian [2017] NSWSC 1319 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 House v The King [1936] HCA 40; (1936) 55 CLR 499 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24 P v NSW Trustee and Guardian [2015] NSWSC 579 Re Buckley [2013] WTLR 373 SAB v SEM [2013] NSWSC 253 Texts Cited: G E Dal Pont, Powers of Attorney, 2nd ed 2011, LexisNexis Butterworths Category: Principal judgment Parties: ZHC (Appellant) ZHP (First Respondent) ZHD (Second Respondent) NSW Trustee an Guardian (Third Respondent) Representation: M Adams (Separate Representative for ZHP) File Number(s): AP 17/53531 Publication restriction: Disclosure of the names of the appellant, the first and second respondents is prohibited. A reference to the name of a person includes a reference to any information, picture or any other material that identifies the person or is likely to lead to the identification of the person Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: Not applicable Date of Decision: 4 October 2017 Before: R L Bailey, Senior Member (Legal)A M Matheson, Senior Member (Professional)L Porter, General Member (Community) File Number(s): 2017/00196607 REASONS FOR DECISION Introduction 1. ZHC, the appellant in these proceedings, appeals against the decision made by the Guardianship Division of the New South Wales Civil and Administrative Tribunal (the Tribunal) on 4 October 2017, the effect of which was to commit the management of the estate of ZHP to the NSW Trustee and Guardian (NSWTG). Prior to the Tribunal's order, the appellant was managing her mother's financial affairs under an enduring power of attorney. She seeks orders to regain authority to manage ZHP's estate either by reinstatement of the enduring power of attorney or as appointment as her mother's financial manager. 2. ZHP is the appellant's mother. ZHD is ZHC's son, and made the initiating application to the Tribunal to review an enduring power of attorney which resulted in the Tribunal making the decision the subject of this appeal. 3. ZHP is an 83-year-old widow who currently resides at a nursing home in the Australian Capital Territory. Prior to a fall, which resulted in hospital admission, ZHP lived in her own home in regional NSW together with the appellant, the appellant's husband, and their two children. 4. On 29 June 2017, the Tribunal heard an application to review an instrument in which ZHP appointed the appellant as her enduring guardian. The Tribunal concluded that ZHP had a cognitive impairment due to dementia, decided to proceed as if an application for a guardianship order had been made for ZHP and appointed the Public Guardian as her guardian for a period of 12 months. 5. For the reasons that follow, we have decided to dismiss the appeal. The proceedings at first instance 1. On 4 July 2017, the Tribunal received an application from ZHD requesting that the Tribunal review an enduring power of attorney dated 1 May 2015 in which ZHP appointed ZHD as her sole attorney. 2. In his application, ZHD stated, amongst other things, that he was of the view that a financial management order was needed because: Why do you think a review of the enduring power of attorney is needed? As [ZHP]'s son I am very interested in her welfare. [ZHC] obtained an EPoA on 1 May 2015 in favour of herself through undue influence over the principal [ZHP]. This EPoA allegedly revoked a joint EPoA that [ZHC] and I held form 15 May 2014. I was not aware of the new EPoA until May 2017 when I spoke to the principal's solicitor [Y] about the potential need to use the EPoA. [ZHC] has advised me on 7 May 2017 that she has spent $7,000-$8,000 on [ZHP]'s credit card for the benefit of her family and that she would repay it. This expenditure occurred earlier this year when [ZHP] was in hospital and respite care. This is in addition to the $200-$300 each week that she has taken for some time from [ZHP] for groceries. [ZHP] has said she was powerless to do anything to remedy this. [ZHC], her husband, and daughter live in a separate flat on [ZHP]'s property. [ZHC]'s son lives in the main house with [ZHP]. [ZHP] is medically assessed as not being capable of financial management of her affairs. [ZHC] has a conflict of interest and misused her attorney role for her benefit of residing in [ZHP]'s property for low or no coast. [ZHP] wishes to retain her home as this is her 'paradise on earth'. As [ZHP]'s lifestyle decisions are now subject to the management of the Public Guardian, similarly [ZHP]'s financial decisions need to be made by an independent body such as the NSW Trustee and Guardian. 1. On 21 August 2017, the Tribunal received an application from the appellant requesting the Tribunal review the guardianship order made on 29 June 2017 and appoint her as her mother's guardian in substitution for the Public Guardian. 2. The application to review an enduring power of attorney and the application to review the guardianship order were listed before the Tribunal for hearing on 4 October 2017. The Tribunal proceeded to conduct a review of the enduring power of attorney subject to challenge, decided not to make any orders in respect of that instrument but rather treat ZHD's application as a financial management application, and consequently made a financial management order over the estate of ZHP appointing the NSWTG as the manager of her estate. The Tribunal adjourned the application to review the guardianship order to a date to be fixed. Whilst orders made in relation to guardianship are not the subject of this appeal, we note that a differently constituted panel of the Tribunal conducted a hearing on 2 November 2017 and ordered that the appointment of the Public Guardian, ZHP's guardian, should continue. 3. The reasons for the Tribunal's orders of 4 October 2017 were issued to the parties on 14 November 2017. Those reasons outlined who participated in the hearing, which included, amongst others, the appellant, ZHP, and ZHD. 4. The application to review an enduring power of attorney gave the Tribunal discretion to review the making of the instrument or its operation (s 36(1) of the Powers of Attorney Act 2003 (NSW)). ZHD's application was for the Tribunal to review the operation and effect of the instrument rather than its making, and his grounds for such review were summarised in the Tribunal's reasons as follows: [39] The applicant told the Tribunal that he would like the Tribunal to review the operation and effect of the power of attorney rather than the making of the document. He provided the following examples of what he described as examples of the attorney's failure to comply with her legal obligations. He submitted that the power of attorney is not operating in [ZHP]'s best interests. In early May 2017, the attorney advised that she had used [ZHP]'s credit card for her own personal purposes. The attorney advised that this had amounted to between $7,000.00 to $8,000.00, which she would repay. That bank statements and credit card statements were missing from [ZHP]'s house in mid-2016. The applicant has completed and filed [ZHP]'s tax returns since 2016 and required these documents in order to complete that task. This raised concerns that [ZHP]'s finances "were not secure". The attorney has relied on [ZHP] for many years for financial support. [ZHP] has provided the attorney and her family with rent-free accommodation; bought the majority of their groceries for them and provide them with domestic services without financial contribution from the attorney or her family. [ZHP] regularly withdrew $400.00 to $500.00 a week for groceries and cash expenses, which she told the applicant, was mainly used for purchasing groceries for the attorney's family. The applicant is concerned because [ZHP]'s income that she earns from a lease of a taxi plate has reduced considerably in recent times although her expenses have not and the attorney has not made attempts to contribute as appropriate. [ZHP] was financially dependent on and intimated by the attorney and her family. [40] The applicant submitted that the above demonstrates that the attorney is not able to fulfil her duty as an attorney and that she has a significant conflict of interest in that she derives considerable financial benefit from living with [ZHP]. 1. The appellant's position in relation to the grounds put to the Tribunal by her brother, ZHD, was summarised by the Tribunal as follows: [43 In response, the attorney submitted that there is no evidence that she has mismanaged her mother's affairs. She said that she has only started operating under the power of attorney since the Geriatrician indicated that he believed [ZHP] no longer had the ability to manage her own affairs. This occurred on 18 June 2017. [44] The attorney submitted that prior to that time, [ZHP] had had full control of her own finances. She conceded that [ZHP] has been generous to her and her family. [45] She conceded that she used [ZHP]'s credit card to pay for personal expenses, including veterinary bills for an operation for her cat, which had been injured in an accident at the end of 2016. She said that this was done with the full consent of [ZHP], prior to the advance of her dementia. [46] The attorney said that she has undertaken to refund that amount and has, until now, paid the interest component on the credit card but has not paid any of the principal debt down at this time. [47] The attorney denied that she is reliant on [ZHP] for financial support. Whilst she has gratefully accepted the assistance that [ZHP] has provided, she said that this has always been in accordance with [ZHP]'s own wishes, during the time when she still had the capacity to make such decisions. She said that when [ZHP] still had capacity in April 2017, she told the attorney and her husband to "use her money for household expenses" which they did. [48] The attorney agreed that she and her family live rent-free. However, she submitted that this arrangement began at least 26 years ago with the full consent and support of [ZHP] at a time when she was able to make informed decisions. She said that she and her family maintain the property and provide care for [ZHP]. [49] The attorney also submitted that she has always been transparent in the way in which she has managed [ZHP]'s affairs and the fact that [ZHP] has always been generous to her. [50] Since the assessment of the Geriatrician in June 2017, she has not used her mother's finances for her own purposes and has maintained accurate records. [51] The attorney said that the $400.00 to $500.00 a week that [ZHP] always had in her wallet was for her own expenses. [52] Furthermore, the attorney submitted that she now understands her obligation to maintain separate finances and keep adequate records. She denied the suggestion that the fact that she lives in [ZHP]'s house represents any conflict of interest because it has been an arrangement which [ZHP] herself established and wishes to continue. [53] [ZHP] confirmed that her daughter lives in the property and does not pay rent and that this in accordance with her wishes. 1. The Tribunal decided it should review the operation and effect of the enduring power of attorney concluding: [55] The Tribunal noted that the terms of the power of attorney executed on 1 May [2015] provided that the document was to operate as soon as the attorney accepted her appointment, which she did on that date. [56] The attorney signed her acceptance and her understanding of the fact that she was to keep her affairs separate from those of the grantor, and that she was to maintain adequate records. [57] The power of attorney did not grant the attorney the power to bestow gifts from or obtain benefits from the grantor's estate. [58] On the face of the document, it is clear that the power of attorney commenced on 1 May 2015, notwithstanding the fact that the attorney believes she has not invoked that power until June 2017. [59] The Tribunal formed the view that the attorney has had the power and obligation to act in accordance with the Powers of Attorney Act, and with the undertaking that she signed on 1 May 2015, since that date. [60] There is no factual dispute about the fact that the attorney has obtained personal benefit from [ZHP], in contravention of the duties which she accepted on 1 May 2015. [61] For that reason, the Tribunal determined that a review should be conducted. 1. The Tribunal then proceeded to decide not to make any orders in relation to the enduring power of attorney under s 36 of the Powers of Attorney Act but rather to treat ZHD's application as an application seeking the appointment of a financial manager for his mother's estate. 2. The legislative test then applicable to the Tribunal's determination is provided in s 25G of the Guardianship Act 1987 (NSW) (the Act): 25G Grounds for making financial management order The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that: (a) the person is not capable of managing those affairs, and (b) there is a need for another person to manage those affairs on the person's behalf, and (c) it is in the person's best interests that the order be made. 1. The Tribunal found ZHP was not capable of managing her own affairs: [75] [ZHP] told the Tribunal that she does not have the ability to manage her finances. [76] The Tribunal notes the progress notes of Dr [Z], dated 18 and 28 June 2017, which are consistent with [ZHP]'s own opinion. There was no dispute about this issue. [77] The Tribunal, therefore, determined that [ZHP] is incapable of managing her affairs. 1. The Tribunal also concluded that there was a need for another person to manage ZHP's affairs, and that it was in ZHP's best interests that an order be made: [78] The Tribunal refers to the evidence set out above. [ZHP] has a property that she owns as well as a taxi plate that she leases. [79] The Tribunal is satisfied on the factual evidence set out above, in relation to which there is no dispute, that the current attorney has breached her duty as an attorney under the Powers of Attorney Act. [80] The Tribunal is satisfied that the informal mechanisms established by the power of attorney on 1 May 2015 do not operate in [ZHP]'s best interests. [81] For that reason, the Tribunal is satisfied that there is a need to appoint someone to manage [ZHP]'s affairs and that it is in her best interests that a financial management order be made. 1. Having decided to make a financial management order, the Tribunal was then required to determine whether there was a suitable person to appoint as manager of the estate, or alternatively, commit the management of the estate to the NSWTG (s 25M of the Act). 2. ZHD sought the appointment of the NSWTG whilst the appellant requested that she be appointed. The Tribunal concluded that an appointment of the NSWTG should be made and gave the following reasons: [93] The Tribunal noted that there is no evidence to suggest that [ZHP] has been denied services or adequate care and support. However, it is clear, and uncontested, that the current attorney has used some of [ZHP]'s funds for her own benefit and that of family members. The Tribunal has taken into account her evidence that this has been in accordance with [ZHP]'s wishes and according to her instructions. In the view of the Tribunal, that does not absolve the attorney from the obligation that she accepted, when she accepted her appointment as attorney, to separate her financial affairs from those of [ZHP]'s. [94] On the basis of the attorney's own evidence, it is only recently that she has fully understood the responsibilities of an attorney. [95] The manner in which the attorney conducted herself is a factor which the Tribunal may take into account in determining her suitability as a potential financial manager. [96] Of greater significance is the fact that the attorney and her family derive considerable financial benefit from [ZHP]. The Tribunal notes that arrangements in which adult children reside with elderly family members rent-free in exchange for care and support is not unusual or necessarily a cause for concern. However, it clearly raises the prospect of a significant conflict of interest. [97] Even though [ZHP] made it clear to the Tribunal that it is her wish that the attorney and her family live in the property rent-free, the Tribunal cannot be satisfied that the current attorney would be free to make financial decisions that are entirely in [ZHP]'s best interests, as opposed to in the best interests of the attorney and her family, when such interests may conflict. [98] For that reason, the Tribunal is not satisfied that it would be appropriate to appoint the current attorney as financial manager. [99] The Tribunal was also of the view that to appoint a family member in the current circumstances may have the effect of inflaming familial conflict, which would be contrary to [ZHP]'s best interest. For those reasons, the Tribunal has decided to appoint the NSW Trustee and Guardian. Notice of Appeal and interlocutory matters 1. The appellant filed a Notice of Appeal dated 11 December 2017 which was also recorded as having been received by the Tribunal's registry on 13 December 2017. 2. Several directions hearings were conducted following the filing of the Notice of Appeal. Directions were made as to the filing and exchange of submissions and that the sound recording of the hearing subject to appeal be filed, or a transcript, if to be relied upon. The sound recording was not filed but the appellant did submit an informal transcript of select parts of the hearing. There was no objection from any other party as to the informal transcript submitted. 3. A separate representative was appointed for ZHP. Mr Matt Adams participated in the hearing before us by telephone as he was present with ZHP at the aged care facility where she resides. 4. Mr Adams did not make any submissions on the appellant's grounds of appeal other than to state that he could not see how it could be found that the Tribunal made any decisions contrary to law and that there was no new evidence to justify a grant of leave. Mr Adams informed us that after discussions with ZPH, he had formed the view that she was quite unaware of the nature of the proceedings before the Tribunal, she had no recollection of previous hearings, and was generally comfortable and happy, and not overly distressed by the proceedings. In relation to the appellant he indicated that ZPH had stated that she trusts her daughter. Grounds of appeal and consideration 1. The appellant attached a document to the Notice of Appeal on which she listed her grounds of appeal as follows: Point 92 States: [ZHP] told the Tribunal that she believes that [ZHC] can be trusted. She did not specifically express her view that she would like [ZHC] to manage her financial affairs, however. This relates to when [ZHP] was asked what she thought in relation to the management of her finances and who she believed should be managing it for her. [ZHP] stated, 'I trust [ZHC]. I want [ZHC]. This was clearly [ZHP] responding to who she wanted to manage her financial affairs. The Tribunal could have asked her to elaborate if they were unsure. Point 94 States: On the basis of the attorney's own evidence, it is only recently that she has fully understood he responsibilities of on attorney. To clarify, I did not clearly understand that the POA came into effect at the time of signing, or that from the time of signing [ZHP]'s and my finances were to be separated. I mistakenly believed that the POA came into effect once [ZHP] either directed me to take control/ or from the time it was determined that she was no longer able to make financial decisions. Point 96 States: Of greater significance is the fact that the attorney and her family derive considerable financial benefit from [ZHP]. The Tribunal notes that, arrangements in which adult children reside with elderly family members rent-free in exchange for care and support is not unusual or necessarily a cause for concern. However, it clearly raises the prospect of a significant conflict of interest. By me and my family residing on [ZHP]'s property rent-free, it enables us to care for [ZHP] whilst maintaining her property. I believe that this counteracts any possible conflict of interest. Point 97 States: Even though [ZHP] made it clear to the Tribunal that it is her wish that the attorney and her family live in the property rent-free, the Tribunal cannot be satisfied that the current attorney would be free to make financial decisions that are entirely in [ZHP]'s best interests, as opposed to in the best interests of the attorney and her family, when such interests may conflict. Apart from living rent-free on the property in exchange for caring for [ZHP], and caring for and maintain the property, it is evident from [ZHP]'s bank statements were provided to the Tribunal, that as from June 2017, when it was determined that [ZHP] could no longer make financial decisions on her own, myself and my family have completely separated our finances, and all decisions made relating to [ZHP] and her finances have been made in her best interest. Point 99 States: The Tribunal was also of the view that to appoint a family member in the current circumstances may have the effect of inflaming familial conflict, which would be contrary to [ZHP]'s best interests. For those reasons, the Tribunal has decided to appoint the NSW Trustee and Guardian. There is no evidence to suggest that appointing a family member will inflame familial conflict. My brother, myself and my family each have a very strong relationship with [ZHP] and there is no evidence to suggest that this would change if a family member was appointed as Financial Manager. The Tribunal gave my brother the option to be considered to a) be appointed as sole Financial Manager for [ZHP] or b) to be appointed joint Financial Manager. I stated that I would have accepted either of those options at the time however, my brother elected to decline both offers. I believe that placing my mother's Financial Management into the hands of the NSW Trustee and Guardian is not in her best interests due to the confusion and emotional distress it would cause her to know that her wishes which were clearly stated back on 1 May 2015 are not being abided by. Along with this, there will be fees involved with having the NSW Trustee and Guardian as her Financial Manager, which are unnecessary considering the fact that there is a family member who is willing and able to carry out this responsibility. 1. In the Notice of Appeal, the appellant wrote that she is seeking leave to appeal. In submissions attached to the notice she wrote: I believe that the NCAT Appeal Panel should grant leave to appeal against the estate of [ZHP] being committed to the NSW Public Trustee and Guardian for management due to the misunderstandings and misinterpretations which occurred during the Tribunal, as detailed in the Grounds of Appeal summary. Along with this, it's very clear that my mother, [ZHP]'s wish since 1 May 2015 is that I manage her financial and legal affairs should the time come that she is no longer able to .… I believe that it is unnecessary to have [ZHP]'s finances managed by the NSW Trustee and Guardian due to the fact that, as stated in Section B, [ZHP] trusts me, and although the Tribunal misunderstood at the time, [ZHP] stated that she wants me to continue managing her affairs. I understand the importance of keeping [ZHP]'s finances and my own completely separate and that all financial decisions made on behalf of [ZHP] are to be strictly in her best interests only. As such, I believe that the NCAT Appeal Panel should give serious consideration to granting leave to appeal the decision of committing the Management of the estate of [ZHP] to the NSW Trustee and Guardian. 1. The orders sought by the appellant, also contained in the attachment to the Notice of Appeal, can be summarised as follows: 1. I believe that if successful on the appeal, I should be reinstated as Enduring Power of Attorney, in line with [ZHP]'s wishes on 1 May 2015. … 2. If I am not to be reappointed as Enduring Power of Attorney, I believe that I should be appointed as the Financial Manager of [ZHP]'s estate. … 3. At the very least, I believe I should be appointed as Financial Manager of [ZHP]'s estate with supervision of the NSW Trustee and Guardian. … 1. Each of the stated grounds of appeal is linked to specific paragraphs of the Tribunal's reasons for decision. Each paragraph relates solely to reasons given by the Tribunal to appoint the NSWTG as ZHP's financial manager. While this might suggest that is the only part of the decision under appeal, a fair reading of the Notice of Appeal suggests otherwise. In reaching that conclusion we note that the primary order sought by the appellant is to be "reinstated as Enduring Power of Attorney", which indicates that the appellant also challenges the making of the financial management order. The making of that order suspended the enduring power of attorney which the appellant seeks to have reinstated (s 50(3) of the Powers of Attorney Act). 2. There is a right of appeal on a question of law. Otherwise leave to appeal is required: (s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act)). As the appellant was self-represented and the Notice of Appeal does not identify particular questions of law, it is appropriate for us to distill from the grounds of appeal what questions of law might arise from the material provided (John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69). The matters which may raise questions of law are: 1. The finding that the attorney was in breach of her fiduciary obligations was legally unreasonable. 2. The Tribunal misstated the evidence about ZHP's views about who should be appointed as her financial manager and failed to have regard to her views 3. The Tribunal misapplied the law in deciding not to appoint the appellant as financial manager on the ground that this gave rise to an undue conflict between her interests and those of ZHP. 4. There was no evidence to support the finding that the appointment of a family member was likely to inflame family tensions. 1. Other matters raised by the appellant require leave to appeal. In this regard, the principles which govern the granting of leave to appeal pursuant to s 80(2)(b) of the CAT Act are set out in Collins v Urban [2014] NSWCATAP 17 at [84]. The particular considerations relevant to the granting of leave in a protective jurisdiction are explained in a number of decisions (P v NSW Trustee and Guardian [2015] NSWSC 579, [190]-[198]; F v NSW Trustee and Guardian [2017] NSWSC 1319, [41]; SAB v SEM [2013] NSWSC 253, ([8]-[10]). 2. In SAB v SEM [2013] NSWSC 253, White J considered the principles which applied to an appeal to the Supreme Court from a decision of the then NSW Guardianship Tribunal: [8] Without intending to be exhaustive, the considerations governing a determination as to whether leave should be given will include whether or not a question raised involves a matter of administration or policy which might have general application, whether or not the Tribunal's decision has been arrived at after the Tribunal members have directed themselves properly and fairly on the facts and not gone wrong in law, whether there is an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand, and whether the factual error was unreasonably arrived at and clearly mistaken. (See K v K at [14] and Slinko v Guardian Administration Tribunal at [9]-[16]) [9] Underlying these constraints is the need to recognise that Parliament has entrusted to the Tribunal the primary function of making the factual determinations required for a guardianship order, and that the Court should not grant leave to appeal unless the Tribunal has gone about that fact finding process in a way which is so unorthodox as to be likely to produce an unfair result. It is not enough that a judge might consider that he or she would have reached a different conclusion on the facts from the conclusion reached by the Tribunal. [10] The grant or withholding of leave is to be exercised having regard to the general principles in s 4 of the Act, including the principle that the welfare and interests of the person with disabilities is to be given paramount consideration. But that is not to say that the gateway requiring leave to appeal can be emasculated by the Court's too readily engaging in a detailed review of the facts with a view to detecting possible error. 1. In C v W [2015] NSWSC 1774, when discussing the principles relating to the granting of leave by the Court under cl 14(1)(b) of Sch 6 to the CAT Act, Lindsay J (at [44]-[46]) stated, relevantly, that: [44] Secondly, if leave is to be granted pursuant to clause 14(1)(b) for an appeal on a ground other than a question of law, the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision or decision-making process under review, which merits a grant of leave: Collins v Urban [2014] NSWCATAP 17 at [82]-[84], qualified, in cases involving an exercise of the Court's protective jurisdiction, by observations made in P v NSW Trustee and Guardian [2015] NSWSC 579 at [191]. Leave to appeal 1. The matters raised by the appellant under the heading "Reasons why the NCAT Appeal Panel should grant leave to appeal against the decision", which are summarised at [25] above, were largely a restatement of the grounds of appeal for which we understood leave was not sought. The only additional matters raised were the assertion that the appellant now had a clear understanding of her obligations as an attorney (if she was to be reinstated) and that the appointment of the NSWTG was now "unnecessary". 2. None of these matters raised issues of a character which merits a grant of leave. Assertions that circumstances have changed since the order was made which may have rendered the order unnecessary are matters which may form the basis to seek a review of the order under s 25R of the Act but do not amount to a basis upon which to grant leave. 3. There is no question of principle or policy, or a manifest error in the decision or decision-making process under review. The findings of fact were available to the Tribunal on the evidence to which we have been referred and as identified in the reasons for decision. 4. Accordingly, leave to appeal is refused. 5. We now turn to each of the remaining complaints of the appellant, being the questions of law which we have identified above. Ground (1) The finding that the attorney was in breach of her fiduciary obligations was legally unreasonable. 1. This ground would require us to conclude that the decision was relevantly unreasonable in the circumstances. 2. The Tribunal found that the appellant was in breach of her fiduciary obligation to ZPH as attorney. On the basis of that finding, the Tribunal decided to exercise the discretion under s 36 of the Powers of Attorney Act to conduct a review of the instrument appointing the appellant as ZHP's attorney (see [13] above). Subsequently, this finding was also relied upon in relation to the Tribunal's determination to make an order s 25G of the Act in concluding that there was a need for another person to manage ZHP's affairs (see [17] above). Whilst not clearly stated, this finding appears to be a factor in the Tribunal's decision not to appoint the appellant as the manager of ZHP's estate (see [19] above). 3. The appellant submits that whilst she did not understand that the instrument appointing her as ZHP's attorney came into effect upon its execution, no adverse finding should be made against her on this account because there was no dishonesty in her actions, ZHP's needs had been met under her care, and any transactions from which she or her family derived a benefit were made at ZHP's direction. 4. In his reply to the appeal, ZHD agreed with the finding made by the Tribunal that the appellant was in breach of her duty as attorney. He submits that it is clear that the instrument of appointment came into effect on the date of execution, that the wording of the instrument itself made it abundantly clear to the appellant the obligations upon her as attorney, and that the appellant's own evidence at the hearing as to her misunderstanding of the obligations upon her and confirmation of transactions which benefitted her and her family supported the Tribunal's findings on this issue. 5. We understand the appellant's position to be that the finding made by the Tribunal was a finding which could not reasonably have been reached on the evidence before the Tribunal. 6. A differently constituted Appeal Panel of the Tribunal, in the matter of DHQ v DHR [2018] NSWCATAP 128, recently provided the following useful summary of the test to be applied in determining whether a decision was "legally unreasonably" so as to give rise as an error of law: [34] To succeed on this ground, the appellant must establish that the decision under appeal was one that could not reasonably have been reached. In Li, the High Court held that there was a legal presumption that the legislature intended that a statutory discretionary power would be exercised reasonably. [35] In Li the High Court extended the basis upon which the exercise of a discretionary power can be set aside on the ground of unreasonableness. The plurality (Hayne, Kiefel and Bell JJ) held at [68] that Wednesbury unreasonableness, that is, an irrational, if not bizarre decision – one that no reasonable person could have arrived at (per Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223) — is neither the starting nor the end point for the standard of unreasonableness. The plurality held that the concept of legal unreasonableness extends to a decision which lacks "an evident and intelligible justification" and one which involves an error in the exercise of discretion, such as where the decision-maker acts on a wrong principle or takes irrelevant matters into consideration: [75], [76]. [36] In Judicial Review of Administrative Action and Government Liability by M Aronson, M Groves and G Weeks (Thomson Reuters, 6th ed, 2017) the authors commented (at [6.450]), that Li "invites a qualitative assessment of the impugned discretionary decision, but it does not allow an appeal to the judicial review judge's subjective sense of reasonableness". See also GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 at [154]. [37] In Oswal v Commissioner of Taxation [2015] FCA 1439 at [48], Griffiths J usefully summarised the relevant principles concerning legal unreasonableness discussed by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 (Singh): "Legal unreasonableness 'is invariably fact dependent' and requires a careful evaluation of the evidence. The outcome of any particular case in which it is claimed that there has been a legally unreasonable exercise of a statutory discretionary power will depend on the application of the principles from Li and the authorities discussed therein, rather than on an analysis of factual similarities or differences between individual cases, including Li": at [42]; "There is a presumption of law that the Parliament intends an exercise of statutory power to be reasonable": at [43]; "There are two species of legal unreasonableness, namely where the review court has identified an underlying jurisdictional error in the decision-making process and also where the concept of legal unreasonableness is 'outcome focused' and there is lacking 'an evident and intelligible justification': at [44] citing Li at [76] per Hayne, Kiefel and Bell JJ and at [105] per Gageler J; "Where there are reasons in support of an exercise of discretion, those reasons will provide the focus for an assessment as to whether the decision is unreasonable in the legal sense and, in such a case, it would be a rare where the reasons demonstrate a justification but the ultimate exercise of the power is seen to be legally unreasonable": [45]-[47]; and "The standard of legal unreasonableness applies across a wide range of statutory powers, but the indicia of legal unreasonableness will need to be found in a scope, subject and purpose of the particular statutory provisions in issue in any given case, as well as the fact dependent": at [48]. 1. For the following reasons we are not persuaded that the conclusion reached by the Tribunal that the appellant was in breach of her fiduciary duty, can be characterised as a decision which lacks "an evident and intelligible justification". 2. First, the terms of the instrument appointing the appellant made it clear that the power of attorney came into operation once the attorney (the appellant) accepted her appointment by signing the instrument. The appellant executed the instrument accepting the appointment on 1 May 2015. Accordingly ZPH's role as attorney commenced on 1 May 2015. 3. The commencement of fiduciary duties under a power of attorney, like the commencement of duties under a power generally, rests upon the event that triggers its operation having occurred, whether it be immediate upon the execution of the power or upon an event specified in the power transpiring and the attorney's acceptance of responsibility under the power (see G E Dal Pont, Powers of Attorney, 2nd ed 2011 at [8.43]). 4. Effective 1 May 2015, the appellant was subject to the fiduciary duties applicable to an attorney, one of which is a duty not to mix the property of the principal with the attorney's own property (See Lush J in Re Buckley [2013] WTLR 373 at [42]). 5. The appellant admitted to the Tribunal below that she continued to intermingle her own funds with those of ZHP until June 2017, when she learnt that to do so was impermissible given her role as attorney. Irrespective of whether the appellant's actions lacked the character of dishonesty, this was sufficient in itself for the Tribunal to make the finding that it did. 6. Second, under the terms of the instrument, the appellant was under a duty to not provide gifts or benefits to others from the estate of ZHP. Whilst the appellant's evidence was that she and her family had benefitted from ZHP's estate since the commencement of the instrument she had asserted that this was in accordance with her mother's instructions. Given the duty the appellant was subject to, the onus for proving that a gift or self-benefit derived by the attorney was given with the valid consent of the donor rests with the attorney. It was not submitted to us that there was sufficient evidence before the Tribunal to satisfy this onus and accordingly it was open to the Tribunal to make the finding it did. 7. In these circumstances, no error is established. Ground (2) The Tribunal misstated the evidence about ZHP's views about who should be appointed as her financial manager and failed to have regard to her views 1. The appellant submits that the reasons for decision reveal that the Tribunal misunderstood the evidence given by ZHP about her views on who should be appointed to manage her financial affairs. In support she relies on the partial transcript of the proceedings she submitted. 2. In its reasons for decision the Tribunal wrote: [92] [ZHP] told the Tribunal that she believes that [ZHC] can be trusted. She did not specifically express her view that she would like [ZHC] to manage her financial affairs, however. 1. The relevant sections of the partial transcript submitted by the appellant in support of this ground are as follows: 1:24:25: Senior Member Bailey: So really the only question for the Tribunal to determine is who should be appointed, and as the appellant I think you suggested it should not be a private person, it should be an independent financial manager. Is that your position? [ZHD]: Yes, I think so. Senior Member Bailey: What's your view on that [ZHC]? [ZHC]: Putting all differences aside, I believe it should be kept within the family. Senior Member Bailey: So who do you think would be the best person to do that in the family? [ZHC]: W'll [ZHP]: Her [ZHC]: I'm not allowed at the moment. Senior Member Bailey: That's your view is it? No, it's interesting…because any financial manager that's appointed has to operate under the guidance and directions of the NSW Trustee and Guardian, so there is a level of scrutiny. Any financial manager must submit accounts and receipts and a budget plan. Property cannot be disposed unless there is approval from the trustee, so there is a degree of scrutiny and supervision and guidance, so it could be a family member, or family members operating under the guidance of the NSW Trustee and Guardian. [ZHP]: What would happen with all my bank statements and things…? Senior Member Bailey: Just the same as now. So, [ZHC], what's any submission that you wish to make? [ZHP]: She's very trust worthy, very trust worthy … 1:33:25 … [ZHP]: I think she…She can be trusted. Senior Member Bailey: So [ZHP], your wishes are that [ZHC] should be the one to look after your money? [ZHP]: Well she can be trusted. 1. The appellant argues that the above extract of the transcript indicates that ZHP expressed the view that the appellant should manage her affairs and that the statement made by the Tribunal that "[ZHP] did not specifically express her view that she would like [ZHC] to manage her financial affairs" misstated ZHP's views. 2. In the Reply, ZHD questioned ZHP's capacity to make complex decisions such as choosing a person to manage her financial affairs. As to the partial transcript relied upon by the appellant, ZHD noted that most contributions by ZHP were responses to questions that in fact were not directed to her and submitted that this was due to ZHP being anxious. He emphasised that the Tribunal's reasons correctly reflected that on the only occasion ZHP was directly asked by the Tribunal as to whether the appellant should be authorised to manage her affairs, ZHP did not respond in the affirmative, but replied somewhat equivocally "Well, she can be trusted". 3. We are not satisfied that the Tribunal misunderstood the available evidence about ZHP's views. 4. The Tribunal has a duty when exercising its functions under the Act to take into consideration the views of the person for whom orders are sought (s 4(d) of the Act). A failure to take account of such views, when available, could amount to a failure to take into a relevant consideration which can give rise to an error in law (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24 at 39 per Mason J). 5. We are satisfied that no such error has been substantiated by the appellant in these proceedings and this ground of appeal should be dismissed. 6. Whilst the informal transcript does indicate that ZHP made the comment "Her" when the Tribunal had asked the appellant who should be appointed to manage ZHP's affairs, this was an interjection on the part of ZHP and when the same question was put directly to ZHP she stated that the appellant could be trusted but did not definitively state that the appellant should be appointed to such role. Whilst it would have been useful for the Tribunal to have provided greater clarity in its reasoning on this issue, when the reasons are considered as a whole, we can infer that the Tribunal took account of the evidence as to ZHP's cognitive capacity in deciding to give greater weight to ZHP's direct response to the Tribunal's questioning rather than her interjection to questions addressed to the appellant. 7. In any event, we note that the Tribunal's primary reasoning for not appointing the appellant to manage ZHP's affairs was because the Tribunal concluded there was a significant potential for conflict between the interests of ZHP and the appellant. As such, even if the Tribunal had understood ZHP to have unequivocally been of the view that the appellant should be appointed to manage her affairs and the Tribunal then duly took account of this, we are satisfied that the outcome would have been the same, that is, the Tribunal would have concluded not to appoint the appellant as ZHP's manager. Ground (3) The Tribunal misapplied the law in deciding not to appoint the appellant as financial manager on the ground that this gave rise to an undue conflict between her interests and those of ZHP. 1. The Tribunal's reasons provide that the primary basis upon which a determination was made not to appoint the Appellant as her mother's financial manager and to appoint the NSWTG instead was due to her and her family deriving financial benefit from ZPH's estate: [96] Of greater significance is the fact that the attorney and her family derive considerable financial benefit from [ZHP]. The Tribunal notes that arrangements in which adult children reside with elderly family members rent-free in exchange for care and support is not unusual or necessarily a cause for concern. However, it clearly raises the prospect of a significant conflict of interest. [97] Even though [ZHP] made it clear to the Tribunal that it is her wish that the attorney and her family live in the property rent-free, the Tribunal cannot be satisfied that the current attorney would be free to make financial decisions that are entirely in [ZHP]'s best interests, as opposed to in the best interests of the attorney and her family, when such interests may conflict. [98] For that reason, the Tribunal is not satisfied that it would be appropriate to appoint the current attorney as financial manager. 1. Whilst the appellant did not take issue with the Tribunal's findings that she and her family derived a financial benefit from residing in ZPH's home rent-free, she submitted that such a finding was insufficient to prevent her from being appointed as the financial manager. She argued that residing in the property enabled her and her family to provide care to ZPH and otherwise maintain the property which counteracted any possible conflict of interest. 2. ZHD disagreed, contending that so long as the appellant and her family remained in the property rent free, irrespective of the wishes of ZHP, that gives rise to a conflict between the interests of his mother and his sister. He noted that ZHP had been living at an aged care facility since January 2017 and was now a permanent resident at a facility. He submitted that the Tribunal was correct in concluding that the existence of a conflict of interest meant it was not appropriate to appoint the appellant to manage their mother's affairs. 3. We understood the appellant to contend that the decision to appoint the NSWTG to manage ZHP's estate on the basis of the purported conflict of interest between her interests and those of her mother was a decision which could not reasonably have been reached on the evidence before the Tribunal. 4. The appellant did not challenge the Tribunal's conclusion that she and her immediate family had derived a financial benefit from living in ZPH's home rent-free for many years. This alone was sufficient evidence for the Tribunal to conclude, as it did, that there was the prospect of a significant conflict between the interests of ZPH and those of the appellant. 5. When exercising the discretion under s 25M(1) of the Act to appoint a suitable person or the NSWTG to manage a person's estate, the Tribunal is required to make an assessment of the likelihood of whether the interests of the proposed manager and those of the subject person will come into conflict and if so whether there is real risk that the proposed manager will discharge the their role in a manner consistent with the principles applicable to them under s 4 of the Act. Conflicts of interest do not necessarily present an absolute bar to the appointment of family members, but the nature and extent of the actual or likely conflict must be scrutinised : Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227. 6. The reasons record that ZPH was on a respite placement at an aged care facility at the time of the hearing. There was evidence before the Tribunal in the form of discharge documentation that there was a likelihood that the appellant and her family would be unable to provide for ZPH's care needs sufficiently at home. Whilst the Tribunal's reasons could have provided greater clarity, it can be inferred that the Tribunal concluded that it was likely that ZPH would not return to live at home and would remain living at an aged care facility. The financial consequences for ZPH's estate if that were to eventuate would have placed the appellant, if appointed manager, in a position of requiring her to make decisions which would have had a negative financial impact on her and her family in order to benefit her mother's estate. 7. We are satisfied that in exercising its discretion to appoint the NSWTG to manage ZPH's estate, the Tribunal, having made relevant findings of fact, identified the correct legal test and took into account all relevant considerations and that there is no basis to conclude the decision was otherwise obviously wrong: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5. Accordingly, no error is established. Ground (4) There was no evidence to support the finding that the appointment of a family member was likely to inflame family tensions. 1. In determining to appoint the NSWTG as ZHP's financial manager, in addition to the reliance upon concerns of conflict of interest, the Tribunal also considered the issue of familial conflict if a family member was appointed to manage ZHP's estate: [99] The Tribunal was also of the view that to appoint a family member in the current circumstances may have the effect of inflaming familial conflict, which would be contrary to [ZHP]'s best interest. For those reasons, the Tribunal has decided to appoint the NSW Trustee and Guardian. 1. The appellant challenged that conclusion, submitting that there was no evidence to suggest that appointing a family member would inflame familial conflict. She asserted that she, her family, and ZHD, had a very strong relationship with ZHP and that there was no evidence before the Tribunal to suggest this would change if a family member was appointed as manager. 2. In his reply to the appeal, ZHD supported the Tribunal's conclusion, noting that the Tribunal's reasons correctly recorded his opposition to any family member being appointed and that an independent manager may improve relationships. 3. A finding made without evidence is an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 4. We reject the appellants' submission that there was no evidence before the Tribunal which permitted the conclusion that the appointment of a family member as ZHP's manager may have the effect of inflaming familial conflict. 5. The evidence of ZHP on this issue, which was not subject to challenge by the appellant, was recorded in the Tribunal's reason as follows: [90] The applicant [ZHD] submitted that the NSW Trustee and Guardian should be appointed. He said that the appointment of an independent financial manager would be to the benefit of family relationships and would ensure that any financial decisions would avoid the blurring of financial affairs. 1. ZHP's stated position to the Tribunal was clearly evidence upon which the Tribunal was entitled to rely to reach the conclusion that it did. It was unclear to us if the appellant asserted a contrary view before the Tribunal below. The appellant's submission to us that there was no evidence on this issue is incorrect and accordingly this ground of appeal must fail. It was open to the Tribunal to rely upon ZHP's evidence to conclude that appointment of a family member may inflame familial conflict. 2. We should note that the Tribunal stated in the reasons that familial conflict would not be in ZHP's "best interests" and that this was a persuading factor, along with conflict of interest concerns, in deciding to appoint the NSWTG as manager of ZHP's estate rather than the appellant. As there is no element of assessing "best interests" when applying the terms of s 25M of the Act to determine who to appoint as the manager of a protected person's estate, we have assumed that that term was used as a form of short hand to describe the duty upon the Tribunal, when exercising its functions under the Act, to give effect to the principle of recognising the importance of persevering family relationships (s 4(e) of the Act). 3. For these reasons the appeal should be dismissed. Orders 1. The appeal is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar ********** 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: 07 August 2018