CXP

[2017] NSWCATGD 33

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CXP [2017] NSWCATGD 33
Hearing dates:	11 September 2017
Date of orders:	11 September 2017
Decision date:	11 September 2017
Jurisdiction:	Guardianship Division
Before:	J S Currie, Senior Member (Legal) Dr L Tong, Senior Member (Professional) R Royer, General Member (Community)
Decision:	The application is dismissed because the Tribunal has no jurisdiction.
Catchwords:	POWER OF ATTORNEY – application for review of enduring power of attorney – whether instrument is an ”enduring power of attorney instrument” – Tribunal’s power to review power of attorney ENDURING POWER OF ATTORNEY – effect of failure to comply with requirements of s 19(1) Powers of Attorney Act 2003 – whether appointment will continue to be effective if the principal loses mental capacity after execution – finding that the instrument did not purport to be a reviewable enduring power of attorney
Legislation Cited:	Powers of Attorney Act 2003 (NSW), div 4 of pt 5, ss 3(1), 19, 19(1), 19(2), 19(1)(a), 26, 33, 33(1)-(2), 33(4), 36(1)
Cases Cited:	Nil
Texts Cited:	G.E. Dal Pont: “Powers of Attorney” (LexisNexis Butterworths, 2011) at [4.6], [4.7] and [4.13]
Category:	Principal judgment
Parties:	Mr CXP (principal) Ms QND (applicant, attorney) Ms TAJ (attorney)
Representation:	Nil
File Number(s):	NCAT 2017/00196670
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

APPLICATION FOR REVIEW OF ENDURING POWER OF ATTORNEY

What the Tribunal decided

1. We decided to dismiss the application for want of jurisdiction.

Background

2. Mr CXP is a 79-year-old man who lives in an aged care facility on the South Coast of New South Wales. It is asserted in the application that he has dementia. His former wife is Ms KZA. He has two daughters, Ms QND and Ms TAJ.

3. On 20 February 2017, Mr CXP executed an instrument which was entitled “Enduring Power of Attorney” (which we will refer to in these Reasons as “the Power of Attorney”), under which he appointed his daughters Ms QND and Ms TAJ jointly as his attorneys.

4. On 13 July 2017, the Tribunal made a continuing limited guardianship order for Mr CXP. Ms QND and Ms TAJ were appointed jointly as his guardians for 12 months from the date of the order with the decision-making functions of accommodation (with the coercive authority), health care, medical and dental consent, and services.

5. On 31 July 2017, the Tribunal received from Ms QND an application which sought a review of the operation and effect of the Power of Attorney. The purpose of our hearing at Sydney on 11 September 2017 was to conduct a hearing of that application.

Parties and witnesses

6. The Appendix to these Reasons for Decision identifies the parties to the application and the witnesses who participated in the hearing. [Appendix removed for publication.]

Uncontested facts

7. The following facts are uncontested.

1. The Power of Attorney is entitled: “Enduring Power of Attorney”.

2. Mr CXP signed the Power of Attorney on 20 February 2017 in the presence of a person who is stated to be a prescribed witness and who is identified in the instrument as Registrar of a Local Court.

3. By clause 1 of the Power of Attorney, headed “Appointment of attorney by the principal”, Mr CXP appoints Ms QND and Ms TAJ jointly to be his attorneys.

4. By clause 4 of the Power of Attorney, headed “Commencement”, the Power of Attorney is stated to operate once the attorneys have accepted their appointment by signing the instrument.

5. On 5 April 2017, Ms QND and Ms TAJ signed the Power of Attorney, each accepting her appointment as attorney.

6. The witness to the Power of Attorney completed a certificate under s 19 of the Powers of Attorney Act 2003 (NSW) which appears at clause 6 of the instrument.

7. Clause 2 of the Power of attorney, as printed, is as follows:

“2. Powers

My attorney may exercise the authority conferred by Part 2 of the Powers of Attorney Act 2003 to do anything on my behalf I may lawfully authorise an attorney to do.

I give this power of attorney with the intention that it will continue to be effective if I lack the capacity through loss of mental capacity after its execution.

Additional powers (optional)

I authorise my attorney to give reasonable gifts as provided by section 11(2) of the Powers of Attorney Act 2003.

I authorise my attorney to confer benefits on the attorney to meet their reasonable living and medical expenses as provided by section 12(2) to the Powers of Attorney Act 2003.

I authorise my attorney to confer benefits on the following persons to meet their reasonable living and medical expenses as provided by section 13(2) of the Powers of Attorney Act 2003 [insert full name and address of each person below]

and (delete if not required)”

8. Clause 2 in its entirety has been ruled through by hand with a diagonal line and a set of initials appears on the right-hand side at the foot of that deletion.

9. The same initials in the same hand appear at the foot of each page of the Power Attorney other than page 6 which contains only printed notes.

Relevant legislation

8. Division 4 of Part 5 of the Powers of Attorney Act makes provision for a review Tribunal (defined by s 26 of that Act as this Tribunal and the Supreme Court of New South Wales) to review certain powers of attorney. That Division commences with s 33 of that Act, which is in the following terms (omitting cross- referencing notes).

33 Reviewable powers of attorney

(1)   A power of attorney is a reviewable power of attorney for the purposes of an application under this Division if the review tribunal to which the application is to be made has jurisdiction to deal with the application has provided by this section.

(2)    Both the Civil and Administrative Tribunal and the Supreme Court have jurisdiction to deal with an application under this Division in respect of an enduring power of attorney (including a revocation of an enduring power of attorney).

(3)    The Supreme Court (but not the Civil and Administrative Tribunal) also has jurisdiction to deal with an application under this Division in respect of any other power of attorney given by a principal who is incommunicate for the time being.

(4)    To remove any doubt, references in this Division to a reviewable power of attorney extended to a document purporting to be a reviewable power of attorney and to the making or revocation of a power of attorney extend to the purported making or revocation of a power of attorney.

9. Subsection 36(1) of the Powers of Attorney Act is in the following terms.

36 Interested persons may apply for review

(1) Tribunal may review making all operation and effect of power. A review Tribunal may, on the application of an interested person, decide to review the making, revocation or the operation and effect of the reviewable power of attorney or not to carry out such a review.

10. Section 19 of the same Act sets out formal requirements for the making of an enduring power of attorney. Subsection 19(1) of the same Act is in the following terms (omitting cross-referencing notes).

19 Creation of enduring power of attorney

(1)   An instrument that creates a power of attorney creates an enduring power of attorney for the purposes of this Act if:

(a)   the instrument is expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument, and

(b)   execution of the instrument by the principal is witnessed by a person who is a prescribed witness (not being an attorney under the power), and

(c)   there is endorsed on, or next to, the instrument a certificate by that person stating that:

(i)   the person explained the effect of the instrument to the principal before it was signed, and

(ii)   the principal appeared to understand the effect of the power of attorney, and

(iii)   the person is a prescribed witness, and

(iv)   the person is not an attorney under the power of attorney, and

(v)   person witnessed the signing of the power of attorney by the principal.

11. Subsection 19(2) of the same Act goes on to define “prescribed witness” for the purposes of subsection (1).

12. Subsection 3(1) of the Powers of Attorney Act defines “enduring power of attorney” by direct reference to sub-s 19(1) of that Act.

Issue for determination: our jurisdiction to hear the application

13. The threshold issue to be determined by us is whether on the basis of the evidence and this legislation the Power of Attorney is a “reviewable power of attorney” within the meaning of s 33(1) of the Powers of Attorney Act. If it is not, then we do not have jurisdiction to determine the application and the application must be dismissed.

Testimony at the hearing

The evidence of Mr CXP

14. Mr CXP participated in the hearing by telephone from the aged care facility in which he lives. He was accompanied by a Care Supervisor.

15. Although Mr CXP was somewhat vague in his account of some matters, he appeared to have a clear recollection that he had signed an instrument that was a power of attorney and he had done so at a court building in Regional NSW. However he insisted that he always thought the instrument was for “a different thing” (which he did not further describe) and that he did not think the document or the appointments under it would be used by his daughters.

16. The Presiding Member asked Mr CXP whether he recalled who ruled through the entirety of clause 2 of the Power of Attorney. In response, he identified by description the person who completed the section 19 Certificate in the document as a prescribed witness. Mr CXP told us that at the time this person deleted clause 2 she had said to him words to the effect: “We don’t need these.”

The evidence of Ms QND and Ms TAJ

17. Both Ms QND and Ms TAJ attended the hearing in person. Unfortunately their evidence was not of any substantial assistance to us in determining how clause 2 came to be deleted. Ms QND’s recollection was that Mr CXP himself had deleted clause 2, but she also conceded that: “It could have been the lady at the courthouse”. She confirmed that the Power of Attorney was executed some days before it was witnessed. We were left uncertain as to whether or not Ms QND was present when clause 2 was deleted.

18. Ms TAJ confirmed that she was not present when the instrument was executed by Mr CXP or when clause 2 was deleted.

Our analysis and determination

The scheme of the relevant legislation

19. The effect of div 4 of pt 5 of the Powers of Attorney Act is to make detailed provision for the review of:

1. enduring powers of attorney; and

2. powers of attorney which are not enduring in nature, where the principal to the power is incommunicate.

20. Powers of attorney which are not enduring in nature principal are, for purposes of comparison, normally referred to as “general powers of attorney”.

21. The meaning of “enduring” for this purpose is readily apparent in s 19(1)(a) of the Powers of Attorney Act: the power of attorney is “enduring” when it is expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after executing it.

22. As Professor G.E. Dal Pont explains in his comprehensive commentary in “Powers of Attorney” (2011, LexisNexis Butterworths) at [4.6], [4.7] and [4.13], there are at least two reasons why the formality requirements for enduring powers of attorney exceed those applicable to non-enduring or general powers of attorney. Firstly, an enduring power is not infrequently made at a time when the principal perceives the onset of mental incapacity, when he or she may be particularly susceptible to the influence of the intended attorneys. Secondly, upon the principal losing capacity, the scope for monitoring and review of the attorney’s exercise of authority is reduced. There is a corresponding need to ensure that the principal and the attorneys understand the nature, function and implications of the power of attorney. As Professor Dal Pont puts it, at [4.7]:

“The foregoing explains why statute uniformly requires that an intention of a principal that a power of attorney be “enduring” be clearly expressed in the instrument itself.”

23. It is abundantly clear from sub-s 33(2) of the Powers of Attorney Act that the jurisdiction of this Tribunal is limited to conducting reviews of enduring powers of attorney and that this Tribunal has no jurisdiction to review a general power of attorney.

What is the effect of the alteration of clause 2?

24. It seems indisputable that the legal effect of the diagonal line through clause 2 of the Power of Attorney and the initialling of that alteration is that clause 2 has been deleted in its entirety and forms no part of the executed instrument. In a sense it does not matter whether the deletion was intentional or accidental, but on the basis of the evidence, particularly Mr CXP’s clear recollection of this aspect, the inescapable conclusion is that the deletion was intentional. That is so whether or not there was a mistake or misapprehension by someone at the time of execution as to the effect of this deletion.

25. Although Mr CXP did not recall this specifically, it is a reasonable inference that the initials which appear at the foot of each page of the instrument and at the right hand lower corner of the deletion of clause 2 are his. We infer this on the basis that the instrument appears to have been signed before an officer of a Local Court, that the common practice is to have the principal sign or initial at the foot of each page of such an instrument and that the initials appearing at the foot of the clause 2 deletion appear to be the same as those at the foot of each page of the instrument (except the final page, which contains only printed notes). There was nothing in the evidence which would lead to a contrary conclusion.

26. Similarly, there is nothing in the evidence to suggest that the deletion was made after Mr CXP had executed the instrument. It must follow that the most reasonable explanation is that Mr CXP verified his acceptance of the deletion by initialling it.

27. The removal of clause 2 has the effect of transforming the instrument from an enduring power of attorney to a general power of attorney. It is no longer an instrument which meets the formal requirements of sub-s 19(1) of the Powers of Attorney Act. Specifically, any expression of intention that the appointment will continue even if the principal lacks capacity through loss of mental capacity (the “enduring” element required by s 19(1)(a) of that Act) has been excised.

Is the Power of Attorney a “reviewable power of attorney” because it purports to be one?

28. The jurisdiction of this Tribunal to conduct a review of powers of attorney is not restricted to instruments which meet the strict requirements of s 19. Our jurisdiction is somewhat broadened by s 33(4) of the Powers of Attorney Act, which has the effect of including “a document purporting to be a reviewable power of attorney” within the class of powers of attorney which we can review. By reference to s 33(2) of that Act that must mean a document which purports to be an enduring power of attorney. So the question becomes: is the instrument in question here, that is, the Power of Attorney, an instrument which purports to be an enduring power of attorney.

29. There are three features of the Power of Attorney which might support a contention that it is an instrument which purports to be an enduring power of attorney (although such a contention was not expressly raised at the hearing). The Power of Attorney:

1. bears the title “Enduring Power of Attorney”;

2. contains on page one printed notes explaining the effect of an enduring power of attorney and the circumstances in which the person intending to execute the instrument may prefer to use a general power of attorney; and

3. contains in section 6 a completed certificate under s 19 of the Powers of Attorney Act. Such a certificate is only required when an enduring power of attorney is signed.

30. However, ultimately we could not be persuaded that any of these matters are sufficient to bring the instrument within sub-s 33(4) of the Powers of Attorney Act as one which “purports” to be a reviewable power of attorney. We came to that conclusion for the following reasons.

1. The instrument itself consists of handwritten changes to a printed form. Although the printed form is headed “Enduring Power of Attorney” it is obviously equally available for use by people who wish to make a general power of attorney (even though the printed notes on page one appear to direct the user to a separate form of general power of attorney).

2. The existence of the section 19 certificate cannot be a conclusive indication that the instrument, as executed, purports to be an enduring power of attorney. It may well be appropriate in particular circumstances involving a general power of attorney for such a certificate to be completed as a record of the explanation of the instrument which had been given to the principal. There is nothing in the printed notes on the power of attorney form to indicate that use of the certificate is restricted to enduring powers of attorney.

3. There was nothing in Mr CXP’s testimony to indicate that his intention was to make an enduring power of attorney. If anything, his insistence, as noted at [15] above, that he thought the instrument was for “a different thing” suggests the contrary.

4. There was no other evidence supporting a contention that the instrument as executed purported to be “enduring” in nature and effect.

5. The legal effect of the deletion of clause 2 is that the instrument can only operate as a general power of attorney.

6. In order for a power of attorney to be a “purported” enduring power of attorney for the purposes of s 33 of the Powers of Attorney Act, it seems to us that there must be some persuasive and unambiguous indication, either on the face of the instrument itself or in some supplementary documentation or the testimony of those who witnessed the execution of the instrument, that the instrument was intended to operate as an enduring power and not as a general power. That is simply not the case here.

31. The result is that the Power of Attorney is not a “reviewable power of attorney” for the purposes of sub-s 33(1) of the Powers of Attorney Act. Accordingly we have no jurisdiction to conduct a review of it.

32. It follows that this application must be dismissed for want of jurisdiction and we ordered accordingly.

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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: 23 April 2018