BZD

[2021] NSWCATGD 28

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BZD [2021] NSWCATGD 28

Hearing dates:

23 July 2021

Date of orders:

23 July 2021

Decision date:

23 July 2021

Jurisdiction:

Guardianship Division

Before:

S Roushan, Senior Member (Legal)
Associate Professor C Willcox, Senior Member (Professional)
M McCalman, General Member (Community)

Decision:

Review of Enduring Power of Attorney

In relation to the enduring power of attorney made by BZD on 20 December 2019 which appointed WAD as attorney(s) the Tribunal determines, orders or declares:

to carry out a review of the operation and effect and making of the enduring power of attorney.

The appointment of WAD as an enduring power of attorney is revoked.

Review of Enduring Guardianship

In relation to the enduring guardian appointment made by BZD on 20 December 2019 appointing WAD the Tribunal orders, directs or declares:

The appointment of WAD as an enduring guardian is revoked.

The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for BZD.

The application for review is treated as if it were an application under the Guardianship Act for a financial management order for BZD.

Guardianship

1. A guardianship order is made for BZD.

2. FYN of [Address removed for publication.] and NBT of [Address removed for publication.] are appointed jointly as the guardians.

3. This is a continuing guardianship order for a period of six months from 23 July 2021.

4. This is a limited guardianship order giving the guardian(s) custody of BZD to the extent necessary to carry out the functions below.

FUNCTIONS: FYN and NBT

5. FYN and NBT have the following functions:

a) Accommodation

To decide where BZD may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take BZD to a place approved by the guardian.

ii) keep them at that place.

iii) return them to that place should they leave it.

c) Health care

To decide what health care BZD may receive.

d) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where BZD is not capable of giving a valid consent.

e) Services

To make decisions about services to be provided to BZD.

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring BZD to an understanding of the issues and to obtain and consider their views before making significant decisions.

Financial Management

1. The estate of BZD is subject to management under the NSW Trustee and Guardian Act 2009.

2. The management of the estate of BZD is committed to the NSW Trustee and Guardian.

Guardianship Application

The application for guardianship dated 3 March 2021 is dismissed after hearing.

Catchwords:

REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – mismanagement of principal’s finances by the attorney – attorney obtained significant benefits – principal suffered significant financial loss – decision to revoke enduring power of attorney – decision to treat application to review an enduring power of attorney as an application for a financial management order – need to protect the principal from financial abuse and exploitation – need for legal action to recover principal’s estate – NSW Trustee and Guardian appointed – order made.

REVIEW OF ENDURING GUARDIANSHIP – application to review an enduring guardianship appointment – principal has been isolated from her family members – decisions not made by the enduring guardian in the principal’s best interests – decision to revoke the enduring guardianship appointment – decision to treat the application to review an enduring guardianship appointment as an application for a guardianship order.

GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person is of advanced age – cognitive impairment – need for decisions to be made about health care and medical and dental consent – accommodation function with power to authorise others – suitability of proposed private guardians – private guardians jointly appointed – order made.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(2), 4, 6K(1), 6K(2)(b), 6K(3), s 14(2), 15(3), 17(1), 25M

Powers of Attorney Act 2003 (NSW), ss 12, 36, 36(1)-(3), 36(4)(f)

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep

CJ v AKJ [2015] NSWSC 498, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579

HJ v HK & Ors [2008] NSWADTAP 75

Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227

IF v IG [2004] NSWADTAP 3

P v NSW Trustee and Guardian [2015] NSWSC 579

Re B [2011] NSWSC 1075

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

BZD (the person)
NBT (applicant)
WAD (carer)
FYN (joined party, other non-party)
Public Guardian

002: Review of an Enduring Power of Attorney

BZD (the person)
NBT (applicant)
WAD (attorney)
FYN (joined party)
NSW Trustee and Guardian

003: Review of an Enduring Guardianship Appointment

BZD (the person)
NBT (applicant)
WAD (enduring guardian)
FYN (joined party)
Public Guardian
NSW Trustee and Guardian

Representation:

A Donne, separate representative for BZD

Solicitors:

Q Nguyen for NBT
J Vaughan for WAD

File Number(s):

NCAT 2021/00060717

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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

Background

1. BZD is 83 years old and of Italian background. Her husband, Mr Z, passed away on 29 May 2018. BZD has three children: WAD, NBT and FYN.

2. Mr Z and BZD resided at their own home in Western Sydney (House ZZ). Following Mr Z’s death, BZD resided with FYN in Inner-West Sydney for a period of about eight months. She returned to House ZZ around February 2019.

3. In late November 2019, WAD took BZD to his rented residence in regional NSW. BZD has resided with her son in regional NSW ever since.

Appointment of Attorneys

4. On 28 January 2015, BZD executed instruments of enduring guardianship and enduring power of attorney, appointing her husband as her enduring guardian and attorney. She also appointed Mr Y, WAD’s son, as the substitute enduring guardian and attorney.

5. On 6 December 2019, after accompanying her son to regional NSW, BZD executed instruments of enduring guardianship and enduring power of attorney, appointing WAD as her enduring guardian and attorney. She also appointed NBT as the substitute enduring guardian and attorney. The instruments were witnessed by Ms X, solicitor, but were not signed by NBT.

6. On 20 December 2019, BZD again executed instruments of enduring guardianship and enduring power of attorney, appointing WAD as her enduring guardian and attorney. On this occasion, however, she appointed Ms W as the substitute enduring guardian and attorney. These instruments were signed by BZD and both appointees and witnessed by Ms X.

7. On 7 February 2020, BZD made a revocation of power of attorney, revoking the instrument dated 6 December 2019. The revocation was witnessed by Ms V, solicitor.

8. On 30 March 2020, House ZZ was sold for the price of $1,350,000.

9. On 3 July 2020, WAD purchased a house in regional NSW (House YY) for the price of $579,000.

Applications

10. On 2 March 2021, the Tribunal received an application for guardianship with respect to BZD from NBT. It was stated in the application that BZD has a decision-making disability due to dementia and advanced age. The application also noted that WAD is preventing BZD from having contact with other members of the family.

11. On 31 March 2021, the Tribunal also received from NBT applications for review of enduring guardianship and enduring power of attorney. The applications did not specify which instruments the reviews were sought in relation to. However, subsequently it became evident that the reviews were being sought in connection with the instruments executed on 20 December 2019.

12. On 8 April 2021, the Tribunal made orders directing WAD to give to the Tribunal and all other parties all bank statements and financial records, including records in relation to the sale of House ZZ for the period 6 December 2019 to 30 April 2021; medical records addressing BZD’s capacity and copies of the relevant instruments. WAD was directed to provide these documents by 14 May 2021. The Tribunal also directed that BZD to be separately represented and allowed NBT and WAD to be legally represented. The matter was listed for hearing on 31 May 2021.

13. Subsequently, Mr Alex Donne was appointed as BZD’s Separate Representative, NBT was represented by Mr Quang Nguyen, Solicitor at a law firm and WAD appointed Mr John Vaughan as his legal representative.

14. On 18 May 2021, Mr Nguyen wrote to the Tribunal and requested that the hearing be adjourned as the documents directed by the Tribunal to be given had not been provided by WAD.

15. At a directions hearing held on 28 May 2021, the Tribunal adjourned the hearing listed on 31 May 2021. The Tribunal also made further orders directing WAD to give to the Tribunal and all other parties the documents referred to in the Tribunal’s previous orders, as well as conveyancing records and all other relevant records in relation to the sale of House ZZ, the purchase of House YY and all the relevant bank statements covering transactions relating to BZD's funds, including transactions relating to proceeds from or funds associated with the sale of House ZZ. WAD was directed to provide these documents by 2 July 2021.

The Hearing

16. The hearing in relation to all three applications was held on 23 July 2021.

17. The relevant parties have been listed on the front page of this decision record. The witnesses and the representatives who attended the hearing are listed at the end of these Reasons. [Appendix removed for publication.] BZD was assisted by an interpreter in Italian and English languages.

Overview of Evidence

Affidavits

18. In her affidavit of 27 February 2021, NBT stated that her parents had resided at House ZZ for a very long time. BZD was heavily reliant on her husband in relation to finances and shopping. Following the death of Mr Z, BZD resided with FYN for a few months before returning to House ZZ. During her stay at House ZZ, she was in regular contact with and supported by her daughters and Mr Y. WAD, on the other hand, had limited contact with BZD. In late November 2019, WAD took BZD to his residence in regional NSW for a holiday. NBT subsequently received copies of the instruments of enduring power of attorney and enduring guardianship, executed on 6 December 2019. She did not sign the documents.

19. NBT stated that WAD and BZD returned to Sydney in February 2020. During this trip NBT and FYN were informed by WAD that he intended to sell House ZZ and take BZD to regional NSW to reside with him. House ZZ was sold at an auction in March 2020 and shortly after, WAD purchased House YY. NBT alleged that her mother is being manipulated by WAD, who is ‘present’ whenever she contacts her mother. She stated that she believes her mother is displaying symptoms of dementia.

20. The contents of FYN’s affidavit, also dated 27 February 2021, were essentially consistent with NBT’s in relation to key events and timelines. FYN also provided her account of her interactions with her mother and brother, as well as her own observations in relation to the dynamics within the family. FYN noted that following an argument with WAD in December 2020, she was effectively prevented from speaking to her mother. FYN agreed with her sister’s observations that her mother now displays signs of dementia and forgetfulness.

21. In his affidavit of 2 July 2021, WAD responded to his sisters’ affidavits. He referred to having had conflict with his father before his death and agreed that his mother had been heavily reliant on Mr Z for paying bills, shopping and cooking. WAD stated that after taking his mother to regional NSW in November 2019, she expressed her wish to reside with him and to sell House ZZ. WAD agreed that he had relied on the instrument of enduring power of attorney, executed on 20 December 2019, to sell House ZZ. He claimed that he had informed his sisters of the auction and that he alone had carried out the necessary repairs to the house prior to the sale.

22. WAD stated that House ZZ was sold for $1,350,000 and that it was at BZD’s request that he deposited the proceeds of the sale into an account in his own name because she told him his sisters ‘don’t deserve to have anything’. He stated that he did not seek any advice about these arrangements and arranged for BZD to write a note in her own handwriting on 12 May 2020. WAD provided a translation of the note, which stated:

“I [BZD] gift to my son [WAD] the money to buy the house and to fix/repair the house where I live with him and he looks after me well and promised to stay? to a date until death. [BZD] --12-5-2020 (sic)”

23. WAD further stated that he purchased House YY in his own name on 1 July 2020 for the price of $579,000. Since then, he has spent in excess of $160,000 in refurbishing the house and the purchase of furniture and appliances to make his mother comfortable. His mother appears to be happy residing with him. She has gained weight and he has spent $7,632.70 on her dental treatment.

24. WAD also submitted a copy of a brochure published by the NSW Trustee and Guardian in Italian, which appears to provide general information in relation to estate planning. The first page of the brochure bears a partially illegible handwritten note (‘client [BZD] read & understood…’) and BZD’s name, which appears to have been handwritten by her.

Bank Statements

25. In compliance with the Tribunal’s orders, Mr Vaughan submitted bank statements relating to a number of accounts as provided to him by WAD. In his covering email of 30 June 2021 to the Tribunal, Mr Vaughan acknowledged that the bank statements appear to be incomplete. Further bank statements were provided to the Tribunal on 21 July 2021.

26. The following is a summary of the Tribunal’s observations in relation to some of the key transactions reflected in the bank statements (cents have not been included and amounts have been rounded to the nearest dollar figure).

• On 30 March 2020, $1,327,000 was deposited into WAD’s bank account from Bank 1 ([Information removed for publication.]). A total of $185,210 was withdrawn from the account on three separate occasions. On 5 June 2020, the account was closed and $1,143,663 was withdrawn.

• Between 31 March 2020 and 30 June 2020, $130,709 was deposited into a different account from Bank 1, which appears to belong to WAD ([Information removed for publication.]). Numerous withdrawals and debits from the account left a balance of $9082 as at 30 June 2020. No statements covering the period between 1 July 2020 and 23 July 2021 were provided.

• On 5 June 2020, $571,831 was deposited into WAD’s bank account from Bank 2 ([Information removed for publication.]). Separately, in addition to this amount, a bank cheque from Bank 2 for $544,275 was drawn by WAD towards the purchase of House YY on 1 July 2020.

• Bank statements relating to the Bank 2 account, reflect numerous withdrawals and debits between June 2020 and April 2021 (there is a gap in the statements for the periods 6 February 2021 to 22 March 2021 and 13 April 2021 to 6 June 2021), including food and liquor purchases; regular (approximately weekly) $1000 withdrawals, totalling about $43,000, from an ATM at a bowling club; frequent cash withdrawals of $2000 from various ATMs, totalling about $80,000; and withdrawals of other significant amounts at various intervals.

• The relevant bank statements for the Bank 2 account reflected a closing balance of $66,652 on 14 July 2021, indicating that approximately $505,179 of the $571,831 deposited into the Bank 2 account on 5 June 2020 had been spent.

• WAD is a recipient of a Department of Social Services pension. The pension is deposited into a bank account from Bank 1 in his own name ([Information removed from publication.]). A single statement covering transactions between 18 May 2021 and 23 June 2021, indicate that in addition to his fortnightly pension, two separate amounts of $5,121 and $6,004 were deposited into the account during this period.

• BZD is a recipient of an Aged Pension. Her pension is deposited into a Pensioner Security Account from Bank 3. Bank statements relating to this account indicate that $29,300 had been withdrawn from the account between 6 December 2019 and 29 April 2021.

• A Summary of Payments from Receipts and Invoices received from WAD suggests that between January 2020 and November 2020 a total amount of $163,133 was spent on repairs and refurbishments relating to House ZZ and House YY. A further $7,633 was spent on BZD’s dental treatment.

Medical Evidence

27. The evidence submitted indicates that BZD was admitted to a public hospital on 27 February 2021 for investigation and management of confusion. She was discharged on 3 March 2021. According to the Discharge Referral notes provided, BZD was given a primary diagnosis of ‘Alzheimer’s/vascular mixed dementia’ and number of secondary diagnoses, including UTI and delirium. It was noted that BZD has experienced a progressive decline over the past year, but there has been no formal diagnosis of dementia. It was further noted that BZD is experiencing increasing confusion, insomnia despite medication, episodes of self-harm (hitting herself in the head when angry), episodes of aggression, increased wandering with forgetfulness and confusion, visual hallucination and a few falls over the past 12 months.

28. The Discharge Referral notes also state that BZD had undergone an MRI at the hospital, revealing cognitive impairment. The MRI result had pointed to ‘moderate cortical cerebral atrophy and moderate microvascular ischaemic gliosis’ and ‘severe hippocampal atrophy likely related to a process such as Alzheimer’s disease.’ A RUDAS was conducted on 3 March 2021, in which BZD scored 14/30, indicating moderate dementia.

29. Mr Vaughan also submitted a copy of BZD’s medical file as provided to him by her GP, Dr U. The medical records provided indicate that BZD was severely grief stricken following the death of her husband and has experienced depression and chronic insomnia ever since.

30. In a letter to the Tribunal, dated 20 July 2021, Mr Vaughan stated that WAD had arranged for his mother to see a geriatrician in regional NSW (Dr T) on 15 July 2021. However, despite a number of calls to the medical centre, Mr Vaughan had not been successful in contacting the doctor to follow up on the report.

Application to Review Enduring Power of Attorney

31. The Tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney, or not to carry out such a review: Powers of Attorney Act 2003 (NSW), s 36(1). As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act (s 36(2)).

32. There was sufficient evidence before us to justify exercising our discretion to conduct a review of the enduring power of attorney executed on 20 December 2019.

Circumstances of the making of the power of attorney

33. BZD told us at the hearing that she understood what the instrument of enduring power of attorney was when she signed it. She said it meant that her son would take care of her (he ‘takes care of everything’) and that she had given him her money because he takes care of her.

33. WAD acknowledged at the hearing that he had acted as his mother’s interpreter when the instrument was explained to her by Ms X, the solicitor who had witnessed the instrument.

34. In a submission received by the Tribunal on 16 July 2021, Mr Nguyen referred to BZD’s poor English language skills and noted that the instruments executed on 20 December 2019 were not signed in the presence of an interpreter and the contents were not translated for her. Mr Nguyen submitted that the signed Italian brochure does not overcome this deficiency and the instrument executed on 20 December 2019, as well as the subsequent revocation of the instrument signed on 6 December 2019 should be declared invalid.

35. BZD’s Separate Representative, Mr Donne, stated that he had been unable to have a private meeting with BZD. Mr Donne raised a number of concerns in relation to the making of the instrument of power of attorney executed on 20 December 2019. He submitted that if BZD had intended for her attorney to receive any gifts, this should have been expressly stated in the instrument and, in any event, any gifts or benefits flowing onto the attorney have to be reasonable. He submitted that the firm of solicitors acting for BZD in relation to enduring power of attorney had later represented WAD in relation to the purchase of his home (House YY). Whilst there is a statement of BZD’s wishes in a handwritten note, the note appears to have been written shortly before the purchase of House YY. Mr Donne also noted BZD’s poor English language skills and the evidence referring to her dependence upon her husband on all financial matters prior to his death.

36. Mr Vaughan submitted that there is no medical evidence suggesting that BZD lacked capacity at the time of the signing of the instrument dated 20 December 2019 and that, according to his instructions, when she travelled to regional NSW in November 2019, she had the intention of staying with WAD.

37. In a submission dated 23 July 2021, Ms V, principal and owner of the two legal practices, stated that she reviewed BZD’s file in early 2020 and noted that the documents completed by her former employer, Ms X, did not contain a revocation of a previous instrument of power of attorney (dated 6 December 2019). She subsequently arranged an appointment for BZD to attend her office on 7 February 2020 to discuss this matter. She initially met with BZD in the absence of her son to ensure that a person is not under duress.

38. Ms V stated that she noted at that time that BZD spoke in ‘broken English’. She had previously suggested that ‘materials be made available in Italian and that notes be made to ensure her capacity’. At that appointment, she spoke to BZD about her documents with the aid of the explanatory brochures in Italian which BZD signed. BZD told her that she had read the Italian brochure and understood its contents. She also told Ms V that she was being cared for by her son and that she trusted him, but she did not trust her grandson, Mr Y.

39. Ms V submitted that, at the time of affirming the instruction for the revocation document, she was satisfied that ‘[BZD]’s understanding of the appointment was sufficient and that the appointment was valid’. If she had any concerns about BZD’s mental capacity or her capacity to understand, she would have taken steps to invalidate the appointment made by Ms X. Ms V submitted that in witnessing the revocation document, she had ‘no cause to believe that the original power of attorney document was executed without [BZD]’s understanding or that she did not sign the document voluntarily’.

40. In considering the evidence before us, we were mindful that there is no test for the capacity to make an enduring power of attorney in the Powers of Attorney Act. A person has capacity to make an enduring power of attorney if he or she understands both the nature and effect of the document when it is explained to the person.

41. The evidence before us indicated that when Mr Z was alive, BZD was entirely dependent on him in managing household affairs, including finances, shopping and driving. We accepted that following her husband’s death, BZD was grief stricken, depressed and suffered from chronic insomnia. It was also evident to us that BZD has poor English language skills and we accepted that WAD had acted as her interpreter when she had signed the instrument of enduring power of attorney dated 20 December 2019. The Italian brochure used to aid the process appears to contain general information in relation to creating a will, making a power of attorney and nominating an enduring guardian.

42. We also took into account the fact that there was no medical evidence before us to indicate that BZD did not have the mental capacity to enter into the enduring power of attorney. It was clear that BZD had put her trust in her son, accepting his undertakings to take care of her. As discussed further below, whilst WAD had subsequently relied on the instrument to conduct a number of questionable financial transactions, this does not necessarily mean that BZD was not capable of executing the document on 20 December 2019. In her affidavit of 27 February 2021, NBT referred to her mother ‘now displaying symptoms of dementia’ and did not indicate that she had any reservations about her mother’s capacity in December 2019. We also considered Ms V’s submissions that at the time of affirming BZD’s instructions for the revocation of the instrument executed on 6 December 2019, she was satisfied that BZD had sufficient understanding of the appointment. Unfortunately, Ms V was not available at the hearing and we did not have the opportunity to question her further.

43. Having carefully weighed the totality of the evidence before us, pursuant to s 36(2) of the Powers of Attorney Act, we decided on balance not to make any order concerning the making of the enduring power of attorney on 20 December 2019.

44. We were not asked to review the revocation of the instrument of enduring power of attorney made on 6 December 2019.

The operation and effect of the enduring power of attorney

46. As noted earlier, WAD had relied on the enduring power of attorney made on 20 December 2019 to sell BZD’s home for $1,350,000. He then deposited $1,327,000 of the proceeds of the sale into an account in his own name. This was followed by withdrawals and transfers of significant portions of this amount into other accounts, also in his own name. WAD had subsequently used $544,275 to purchase a house in regional NSW in his own name and deposited $571,831 into a Bank 2 account, spending approximately $505,179 between June 2020 and July 2021. This expenditure comprised withdrawals of significant amounts of cash from various ATMs on a regular basis, including regular withdrawals of $1000 from an ATM at bowling club. At the hearing, WAD conceded that these amounts had been spent by him and his mother on poker machines at the club. Whilst WAD claimed to have spent a total amount of $163,133 on repairs and refurbishments relating to House YY, as well as House ZZ and a further $7,633 was spent on BZD’s dental treatment, there were still large amounts of money that were unaccounted for, including withdrawals from BZD’s pension account from Bank 3 between 6 December 2019 and 29 April 2021 totalling $29,300.

47. We discussed our concerns with WAD in relation to the manner in which he has managed his mother’s affairs, effectively squandering her estate. WAD stated that he had acted in accordance with his mother’s wishes. He said BZD had told him that she did not want her daughters to get anything. When pressed, he reiterated that BZD did not want to leave anything to his sisters. When it was put to him that it did not appear that he had acted in his mother’s best interests, he said he believed he had because he had acted in accordance with her wishes. We also noted that when accepting his appointment as attorney he had also accepted to act in the best interests of his mother, to keep their finances separate and keep reasonable records. WAD responded that he had not fully understood the document.

48. Under s 12 of the Powers of Attorney Act, ‘a prescribed power of attorney does not authorise an attorney to execute an assurance or other document, or to do any other act, as a result of which a benefit would be conferred on the attorney unless the instrument creating the power expressly authorises the conferral of the benefit.’ The instrument executed on 20 December 2019 did not authorise WAD to do any act as a result of which a benefit would be conferred on him, let alone benefits and gifts at the scale highlighted by the evidence. BZD’s purported handwritten note gifting to WAD the money to buy House YY, does little to alleviate our concerns regarding the operation and effect of the instrument.

49. On the basis of the evidence before us, we were satisfied that BZD’s funds had been mismanaged, the attorney’s finances were intermingled with BZD’s finances and her estate has been dissipated. We were left with little doubt that WAD had not acted in his mother’s best interests. Indeed, it was evident to us that he had obtained significant benefit as attorney by selling his mother’s house and spending the proceeds almost entirely in a manner that benefits himself.

50. For all the above reasons, we decided to make orders under s 36(3) of the Powers of Attorney Act as we were satisfied that it would be in the best interests of BZD to make the order. We decided that it would be in the best interests of BZD to make an order under s 36(4)(f) of the Powers of Attorney Act revoking all of the enduring power of attorney made on 20 December 2019.

Review of Appointment of Enduring Guardian

51. On reviewing the appointment of an enduring guardian, the Tribunal may:

1. revoke the appointment, or

2. confirm the appointment, with or without varying the functions of the enduring guardian under the appointment: Guardianship Act 1987 (NSW) (‘the Act’), s 6K(1).

52. The Tribunal must not revoke the appointment of an enduring guardian unless, relevantly, the Tribunal is satisfied that it is in the best interests of the appointor that the appointment be revoked: the Act, s 6K(2)(b).

53. If the Tribunal, when reviewing the appointment of an enduring guardian, decides to revoke the appointment, it may proceed as if an application for either a guardianship order or a financial management order or both had been made: the Act, s 6K(3).

54. The evidence before us, which we have accepted, indicates that WAD took BZD to regional NSW in November 2019 for a short holiday. Soon after, BZD executed instruments of enduring power of attorney and enduring guardianship, appointing WAD as her attorney and guardian, and has resided with him ever since. In the intervening period, WAD has sold House ZZ, he has bought House YY from the proceeds of the sale of House ZZ, has squandered almost all of his mother’s remaining estate and has effectively isolated her from the rest of her family. We were satisfied that these circumstances clearly establish that there is a conflict of interest between WAD’s own interests and those of BZD; he has been making decisions which do not promote BZD’s best interests; and he is failing to consult and work effectively with other significant people in the appointor’s life.

55. Mr Donne was of the view that it would be appropriate to revoke WAD’s appointment as enduring guardian. We agreed. On the basis of the evidence before us, we were satisfied that it is in the best interests of BZD to revoke WAD’s appointment as enduring guardian. Having revoked the appointment, we proceeded to consider making guardianship and financial management orders.

Guardianship Orders

56. The questions which had to be decided by the Tribunal were:

1. Is BZD someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

2. Should the Tribunal make a guardianship order and if so, what order should be made?

3. Who should be the guardian?

4. How long should the order last?

Is BZD someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

57. We accepted the medical evidence before us, summarised above, indicating that following her admission to a public hospital on 27 February 2021, BZD was given a primary diagnosis of ‘Alzheimer’s/vascular mixed dementia’ and number of secondary diagnoses, including UTI and delirium. According to the relevant discharge notes, BZD has experienced a progressive decline over the past year signified by increasing confusion, insomnia despite medication, episodes of self-harm, episodes of aggression, increased wandering with forgetfulness, visual hallucination and falls. The results of an MRI had indicated cognitive impairment and BZD score of 14/30 in a RUDAS pointed to moderate dementia.

58. We were informed that BZD had been assessed by a geriatrician on 15 July 2021. Unfortunately, a report had not been produced by the time we heard the matter.

59. We further accepted the evidence of NBT and FYN in relation to their observations of BZD’s increasing forgetfulness, disorientation and confusion.

60. We accepted Mr Donne’s submissions that the available recent medical evidence, BZD age, her vulnerabilities as exacerbated by cultural factors suggest that she has a disability withing the meaning of s 3(2) of the Act. We accepted that BZD had been dependent on her husband prior to his death and appears to have become reliant on WAD in making decisions on her behalf.

61. Having carefully weighed the evidence before us, we were satisfied on balance that BZD has a disability, which results in her, at least partially, being restricted in her major life activities to such an extent that she requires supervision and assistance and is thereby incapable of managing her own person. We were satisfied that a guardianship order could be made for BZD.

Should the Tribunal make a guardianship order and what order should be made?

62. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order:

1. The views (if any) of:

1. the person;

2. the person's spouse;

3. the person's carer; and

2. The importance of preserving the person's existing family relationships;

3. The importance of preserving the person's particular cultural and linguistic environments; and

4. the practicability of services being provided to the person without the need for the making of such an order.

63. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).

64. The evidence before us has highlighted conflict of interest in the decisions made by WAD regarding his mother’s accommodation. BZD’s expressed wishes in the past and as stated to us at the hearing were to continue to reside with WAD. However, we were mindful of BZD’s isolation, her vulnerability and complete dependence on WAD, particularly in the context of her diminished financial security. We were of the view that there is a need to appoint a guardian to make accommodation decisions that are in BZD’s best interests.

65. In view of BZD’s current circumstances, we were also satisfied that it would be appropriate for the appointed guardian to have the authority to authorise others, including members of NSW Police and the Ambulance Service to take BZD to a place approved by the guardian, to keep her at that place or to return her to that place should she leave it. In reaching this view, we were mindful of BZD’s isolation, her dependence on WAD and his influence over her, which may necessitate the involvement of others to return her to enforce accommodation decisions.

66. In view of the recent medical evidence, we were of the view that BZD may require an ACAT assessment and other arrangements to be made for her to access appropriate services. She may also require further medical assessments in relation to her various health conditions. This may necessitate associated medical treatment, requiring consent. Whilst there was no evidence before us to suggest ongoing disagreement between WAD and his sisters regarding medical treatment that may be required by BZD or any medication she is on, in view of the overarching prevailing family dynamics, we considered it appropriate to give the appointed guardian the function of giving consent to medical treatment for the duration of these orders.

67. After carefully weighing the evidence before us, as well as considering the principles contained in s 4 of the Act and the matters set out in s 14(2) of that Act, we were satisfied that a guardianship order should be made for BZD. We formed the view that there are decisions that are required to be made in relation to BZD’s accommodation, health care, consent to medical and dental treatment and services. We were further satisfied that there are sufficient grounds upon which to base a view that it would be necessary for the substitute decision maker to have additional authority to authorise others to take BZD to a particular place, to keep her there and return her to that place. We were satisfied, on the evidence, that these additional powers were necessary in all of the circumstances to ensure that BZD is adequately cared for.

Who should be the guardian?

68. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He must:

1. Have a personality generally compatible with the personality of the person under guardianship;

2. Have no undue conflict of interest (particularly financial) with those of the person; and

3. Be able and willing to exercise the functions of the order.

69. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep, and Re B [2011] NSWSC 1075, [66]).

70. Section 15(3) of the Act provides that the Public Guardian should not be appointed ‘in circumstances in which such an order can be made appointing some other person as the guardian of the person’.

71. Mr Vaughan submitted that BZD would like to stay with her son, who had initially asked NBT to accept an appointment as substitute enduring guardian in the instrument executed on 6 December 2019. He submitted that WAD should be appointed as his mother’s guardian.

72. At the hearing, BZD expressed the view that she trusted her son because her daughters are after her money. This view was clearly contrary to the evidence before us. Despite expressing such views, we accepted that BZD has been eager to maintain contact with her daughters and at some point, she had asked them to take her back to Sydney.

73. For the same reasons that we relied on in revoking WAD’s appointment as enduring guardian, we did not consider him to be suitable to be appointed as his mother’s guardian under the Act.

74. Mr Nguyen initially submitted at the hearing that NBT and FYN are willing to be appointed as guardians. He later submitted that he had received instructions that it may be appropriate for the Public Guardian to be appointed as BZD’s guardian. This position again changed by Mr Nguyen submitting that perhaps all three siblings should be appointed jointly as their mother’s guardian. We did not form the view that these proposals reflected lack of willingness on behalf of NBT and FYN to be appointed as guardians. Rather, we formed the impression that NBT and FYN were attempting to be conciliatory in finding a resolution in the best interests of their mother.

69. Despite the challenges and limitations imposed, both NBT and FYN have remained in contact with and involved in BZD’s life. They are clearly committed to and genuinely concerned for her welfare and well-being. They appeared to have a harmonious relationship with one another and to be committed to protecting and promoting their mother’s best interests. There was nothing apparent on the face of the evidence to suggest that they had any undue conflict of interest with BZD. On the basis of this evidence, we were satisfied that they both meet the requirements to be appointed as guardians for BZD. We therefore decided to appoint NBT and FYN jointly as guardians for BZD.

How long should the order last?

76. An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, in the circumstances of this case and in view of the additional restrictive powers given to the appointed guardians, we decided to make a short-term order for a period of six months.

Financial Management Order

77. Before it could make a financial management order in relation to BZD, the Tribunal had to be satisfied of the following matters:

1. Is BZD incapable of managing her affairs?

2. Is there a need for another person to manage BZD's affairs and is it in her best interests for a financial management order to be made?

3. If so, who should be appointed financial manager?

Is BZD incapable of managing her affairs?

78. The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]):

“Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests?

…

[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.”

79. In considering whether the person is “able” in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events;

• support systems available to the person; and

• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, at [309].

80. We placed weight on the evidence of BZD’s children, as supported by submissions made by Mr Donne, that BZD had been entirely dependent on her husband in managing household affairs, including banking, payment of bills and shopping. This dependence was transferred to her children following her husband’s death. BZD’s dependence on others has been exacerbated by her poor English language skills and more recent medical evidence, indicating cognitive decline and impairment.

81. On the basis of the evidence before us, we were satisfied that, at this time and for the reasonably foreseeable future, BZD does not have the ability to plan for the future or to be relied upon to make sound judgements about her welfare and interests. We were satisfied that BZD is incapable of managing her own affairs in a reasonable, rational and orderly way, with due regard to her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.

Is there a need for another person to manage BZD's affairs and is it in her best interests for a financial management order to be made?

82. The evidence set out in detail above indicates that as a consequence of a series of decisions made by WAD, BZD has suffered significant financial loss and is now in possession of a negligible estate. WAD has been the sole beneficiary, and we agreed with Mr Donne that there should be divestment from him back to his mother’s estate. Any such attempt would entail careful consideration of the necessary legal and other processes, as well as any associated costs. In addition, careful financial planning and decision making is required in the immediate future to secure what remains of BZD’s estate and to ensure that any income and capital is used in her best interests and to meet her needs.

83. Mr Vaughan also conceded that it would be in BZD’s best interests for the Tribunal to make a financial management order but noted that the associated costs must be taken into account.

84. We were satisfied that there is a need to appoint someone to manage BZD’s affairs. We were satisfied that it was in BZD's best interests to make a financial management order.

Who should be appointed as financial manager?

85. In appointing a financial manager, as in making all other orders under the 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 s 4 of the Act.

86. Section 25M of the 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.

87. As noted in HJ v HK & Ors [2008] NSWADTAP 75, at [14]:

“In Re L [2000] NSWSC 721, at [7] and [12], Young J recognised that a responsible family member will often be best placed to manage an incapable person’s affairs provided there are minimal conflicts of interest or, if there are conflicts of interest, that they are properly dealt with. Nevertheless, when a private manager is appointed, the Tribunal needs to be satisfied both of the person’s good fame and character, and of his/her ability to manage funds and understanding of what is required as a financial manager (see also Re R [2000] NSWSC 886, at [48] to [49]). Where there is a close family relationship, consideration must also be given to whether the Protective Commissioner, being an independent statutory office with staff who have expertise and experience in managing estates, would bring a more dispassionate, neutral approach which would better meet the financial management needs of the incapable person: Holt v Protective Commissioner (1993) 31 NSWLR 227, at 242.”

88. In Holt & Anor 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 then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.

89. On the side of the then Protective Commissioner was seen to be the manifest independence of the 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.

90. The advantages of the appointment of a family member were more economic management of smaller estates 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.

91. Both NBT and FYN initially expressed their willingness to manage their mother’s affairs. NBT, however, stated that she may require legal assistance in carrying out the associated responsibilities and FYN expressed the view that is she is willing to do whatever is in the best interests of her mother.

92. As noted above, Mr Donne submitted that consideration should be given to divestment from WAD back to his mother’s estate. This may require the restructuring of BZD’s estate and the NSW Trustee and Guardian are placed in the best position to carry out this process. Subsequently, Mr Nguyen also submitted that there is merit in the argument that the NSW Trustee and Guardian may be better equipped to initiate proceeding to at least partially recover BZD’s estate. NBT and FYN did not express any objections.

93. In all of the circumstances, we agreed with the submissions made. We were of the view that, in light of the existing family dynamics, there are clear advantages in appointing the NSW Trustee and Guardian as BZD’s financial manager. We were persuaded that the NSW Trustee and Guardian would bring expertise and experience in managing the estate in a dispassionate and neutral way to make decisions in the best interests of BZD. We therefore appointed the NSW Trustee and Guardian as BZD’s financial manager.

Residual matters

94. For reasons already outlined, we revoked the enduring power of attorney made on 20 December 2019. We were not asked to review the revocation, dated 7 February 2020, revoking the instrument of enduring power of attorney made on 6 December 2019. As a consequence of our orders and the revocation of the 6 December 2019 instrument, the instrument of enduring power of attorney executed on 28 January 2015 remains valid. However, the making of a financial management order suspends the operation of the enduring power of attorney for the duration of the order.

Application for Guardianship

95. Having made guardianship orders as a consequence of reviewing the appointment of the enduring guardian, we considered it appropriate to dismiss NBT’s guardianship application.

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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

Decision last updated: 05 August 2022