DSD

[2015] NSWCATGD 45

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DSD [2015] NSWCATGD 45

Hearing dates:

27 October 2015

Date of orders:

27 October 2015

Decision date:

27 October 2015

Jurisdiction:

Guardianship Division

Before:

R Booby, Senior Member (Legal)
L Tong, Senior Member (Professional)
E McAlpine, General Member (Community)

Decision:

The principal did not have mental capacity to revoke the enduring power of attorney. The power of attorney instrument remains valid because the principal did not have the capacity necessary to revoke it.

 

Application to withdraw financial management application refused.

 Financial management application adjourned for approximately four months.

Catchwords:

ENDURING POWER OF ATTORNEY – application for review of revocation – standing of attorney to bring application for review of revocation – exercise of Tribunal’s powers under s 36 of the Powers of Attorney Act 2003 (NSW) – whether principal has “mental capacity” to revoke the enduring power of attorney – evidence of capacity considered by the Tribunal – dispute as to appropriateness of capacity assessments

 

FINANCIAL MANAGEMENT – insufficient time to adequately deal with the application – hearing adjourned

INTERLOCUTORY ISSUES – whether persons are statutory parties to the proceedings - consideration of s 3F(5) of the Guardianship Act 1987 (NSW) as to who “has the care of another person” – request to withdraw financial management application – where there has been a breakdown in the relationship between principal and attorney – complexity of subject person’s affairs – Tribunal decided that the application should proceed

Legislation Cited:

Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)

Cases Cited:

Gibbons v Wright (1954) 91 CLR 423
Scott v Scott [2012] NSWSC 1541
Szozda v Szozda [2010] NSWSC 804

Category:

Principal judgment

Parties:

Ms DSD (principal and subject person)
Mr EPG (applicant, carer, and attorney appointed under an enduring power of attorney)
The NSW Trustee and Guardian

Representation:

Separate Representative

File Number(s):

60155

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

What the Tribunal decided - Review of Revocation of Enduring Power of Attorney

1. The Tribunal decided under section 36(1) of the Powers of Attorney Act 2003 (NSW) to carry out a review of the revocation on 7 September 2015 of the enduring power of attorney made by Mrs DSD on 15 October 2013.

2. As a consequence of reviewing the revocation of the enduring power of attorney, the Tribunal decided under section 36(2) of the Powers of Attorney Act to make the following orders under section 36.

1. The Tribunal declared that Mrs DSD did not have mental capacity on 7 September 2015 to revoke the enduring power of attorney dated 15 October 2013

2. The Tribunal declared that the power of attorney remains valid because Mrs DSD did not have the capacity necessary to revoke it.

What the Tribunal decided - Financial Management Application

3. The Tribunal refused an application by Mr EPG seeking to withdraw his application for appointment of a financial manager for Mrs DSD.

AND

4. The Tribunal adjourned, for approximately four months, to a date to be fixed, the hearing of the application made by Mr EPG seeking the appointment of a financial manager for Mrs DSD.

Background

5. Mrs DSD is 64 years old and resides at an aged care facility in West Sydney. She has three children who are Mr EPG, Ms OVD, and Mr UGD.

6. Mrs DSD had a stroke in 2013 and in 2015 she was injured in a motor vehicle accident.

7. On 15 October 2013 Mrs DSD appointed Mr EPG as her enduring guardian and attorney under an enduring power of attorney.

8. On 30 July 2015 the Tribunal received an application seeking the appointment of a guardian and a financial manager for Mrs DSD. The applicant was Mr EPG. On 2 September 2015 Mr EPG requested to withdraw the applications.

9. On 7 September 2015 Mrs DSD purported to revoke the appointment of Mr EPG as her attorney.

10. On 8 September 2015 the Tribunal adjourned the proceedings and issued directions.

11. On 6 October 2015 the Tribunal ordered that Mrs DSD be separately represented in the matters before the Tribunal. Ms OPM attended the hearing as the separate representative of Mrs DSD

12. On 21 October 2015 the Tribunal made a guardianship order appointing the Public Guardian for six months to make decisions for Mrs DSD about her accommodation and services.

The hearing

13. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing [appendix removed for publication].

14. The Tribunal notes that during the hearing Mrs DSD was assisted by an interpreter in the Tagalog language who, in the view of the Tribunal, seemed to have aligned herself with Mrs DSD’s sisters who were present at the hearing. She also appeared at times to be attempting to assist, rather than interpret for, Mrs DSD. The Tribunal had cause to question and direct the performance of the interpreter.

15. In addition to the assistance provided by the interpreter, Mrs DSD frequently responded in English to questions asked by the Tribunal and appeared to understand much of the proceedings without interpretation.

16. Despite its view that the interpreter was inappropriate in carrying out her role, the Tribunal was satisfied that as result of its direction to and questioning of the interpreter, and also because of Mrs DSD’s demonstrated relative high- level of ability with the English language, Mrs DSD had a sufficient opportunity to participate in the hearing and to present her views.

Does Mr EPG have standing to make the application?

17. A person who is an attorney under a power of attorney that has purportedly been revoked may apply for the review of a revocation (section 35(1)(a) Powers of Attorney Act).

18. The Tribunal was satisfied that as an attorney under an enduring power of attorney whose appointment has purportedly been revoked, Mr EPG has standing to bring the application.

What did the Tribunal have to consider?

19. The Tribunal may, on the application of an interested person, decide to review the revocation of a reviewable power of attorney, or not to carry out such a review (Powers of Attorney Act, section 36(1)). As a consequence of reviewing the revocation of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under section 36 of the Powers of Attorney Act (section 36(2)).

20. The Tribunal may make a number of orders relating to the revocation of a power of attorney including the following:

• An order declaring that Mrs DSD did or did not have mental capacity to revoke a power of attorney

• An order declaring that the power of attorney remains valid (either in whole or in part) if the Tribunal is satisfied:

1. Mrs DSD did not have the capacity necessary to revoke it or

2. the revocation is invalid for any other reason, for example, Mrs DSD was induced to make the revocation by dishonesty or undue influence

21. If on a review of the revocation of the enduring power of attorney, the Tribunal decides not to make an order under section 36, it may, if it considers it appropriate in all of the circumstances to do so, decide to treat the application for review as an application for a financial management order under Part 3A of the Guardianship Act 1987 (NSW).

22. To make an order relating to the revocation of the enduring power of attorney made by Mrs DSD on 7 September 2015 the following questions may be considered:

• Should the Tribunal conduct a review of the revocation of the enduring power of attorney?

• Did Mrs DSD have the mental capacity necessary to revoke the enduring power of attorney on 7 September 2015?

• Is the revocation of the enduring power of attorney invalid for any other reason (e.g. dishonesty or undue influence)?

• If the revocation is invalid, should the Tribunal declare that the enduring power of attorney remains valid?

• Should the Tribunal make any orders in relation to the enduring power of attorney? If no, should the Tribunal consider treating the application as an application for a financial management order?

Circumstances of the revocation of the power of attorney and should the Tribunal conduct a review?

23. In a document dated 7 September 2015 signed “[Ms DSD],” Mrs DSD states that she revokes the “power of attorney and enduring power of attorney” given to Mr EPG on 15 October 2013 “due to lost (sic) of trust. I believe that he does not have my best interests at heart as he has been refusing to follow my instructions.”

24. During the hearing Mrs DSD said that she revoked the appointment because Mr EPG had abused his position including by withdrawing funds from her savings account and moving the funds from a term deposit into a savings account from which he could make withdrawals.

25. In his application Mr EPG expresses the view that Mrs DSD had insufficient capacity to revoke his appointment as her attorney and that she was influenced by others to revoke the appointment.

26. Mr EPG provided documentary and oral explanations to the Tribunal setting out details of his management of his mother’s estate. He said that he had made numerous attempts to explain his actions to Mrs DSD but that she did not remember the explanations.

27. Taking into account the concerns of Mrs DSD and Mr EPG’s assertions that he could explain why he had made the decisions about which she was concerned, the Tribunal was satisfied that it should review the revocation of the power of attorney.

Application of the law

28. Since September 2013 the Powers of Attorney Act provides that the Tribunal and the Supreme Court are able to review the revocation of enduring powers of attorney. Prior to this, only the making or operation of an enduring power of attorney could be reviewed.

29. The legislation requires consideration of whether a person had the "mental capacity" to revoke the Power of Attorney. "Mental capacity" is not defined in the legislation, however the concept of decision making capacity has been considered in many cases in different contexts. This is a relatively new jurisdiction, and there are only a small number of cases which deal with the mental capacity required to revoke an enduring power of attorney, as opposed to executing one. However general principles from other cases can provide guidance.

30. It is a long standing principle that the starting point for any consideration of decision-making capacity is that the person is fully capable. A finding that a person lacks capacity can therefore only be made after satisfactory evidence has been provided to disprove the presumption of capacity (Szozda v Szozda [2010] NSWSC 804 at [20] – [26]).

31. The capacity to execute a document depends on the particular circumstances in which it is executed. In Gibbons v Wright (1954) 91 CLR 423, the High Court (at [438] per Dixon CJ, Kitto, and Taylor JJ) stated:

“the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.”

32. Applied to this matter, this means that the Tribunal needs to consider whether or not at the time she revoked the power of attorney, Mrs DSD was capable of understanding the nature of what she was doing.

33. In Scott v Scott [2012] NSWSC 1541 the Court considered the making of an enduring power of attorney. Lindsay J commented that what follows from the High Court principle stated above, is that each case muse be considered on its own facts. He states

“Attention must be focused on all the circumstances of the case, including the identities of the donor and donee of a disputed power of attorney; their relationship; the terms of the instrument; the nature of the business that might be conducted pursuant to the power; the extent to which the donor might be affected in his or her person or property by an exercise of the power; the circumstances in which the instrument came to be prepared for execution, including any particular purpose for which it may ostensibly have been prepared; and the circumstances in which it was executed [199].

An exploration of all the circumstances of the case will, not uncommonly, call for consideration of events leading up to, and beyond, the time of execution of the disputed power of attorney, as well as on the focal point of the time of execution itself. A longitudinal assessment of mental capacity, along a time line extending either side of the focal point, may be necessary, or at least permissible, in order to examine the subject's mental capacity in context “ [200].

Did Mrs DSD have the mental capacity to revoke the enduring power of attorney?

34. The Tribunal was in receipt of a number assessments regarding Mrs DSD’s capacity.

1. A report dated December 2013 by Ms Z, Provisional Psychologist, and Dr Y, Clinical Neuropsychology Supervisor (the Ms Z/Dr Y report) addressed to Dr X, a Staff Specialist in Rehabilitation Medicine provides information and opinion to the following effect:

1. On 1 May 2013 Mrs DSD scored 27/30 on the Mini Mental State Examination (MMSE) losing one point each on measures of orientation, three stage commands and a visuospatial task;

2. On 7 May 2013 she scored 20/30 on the Rowland Universal Dementia Assessment Scale (RUDAS) indicating cognitive impairment;

3. On 7 July 2013 on discharge from the Rehabilitation Unit of a public hospital, Mrs DSD was described as having impaired cognition with “major deficits in abstract reasoning;”

4. At a follow-up appointment on 28 June 2013 Mrs DSD scored 22/30 on the MMSE.

5. Mrs DSD was assessed on 17 October 2013, six months after a middle cerebral artery embolic infarct, secondary to new onset atrial fibrillation. She was seen for assessment to document her functioning and to determine her capacity to appoint Mr EPG as her attorney and guardian;

6. During the interview Mr EPG expressed some concerns about Mrs DSD’s level of functioning and noted difficulties with her memory and her ability to understand conversations and instructions. He said that he had been assisting her with bill paying and shopping and did not allow her to use the stove unattended due to her forgetfulness;

7. At interview for the assessment Mrs DSD demonstrate little insight into her cognitive changes since her stroke and denied any difficulties with organisation, concentration or memory;

8. Mrs DSD was able to understand the concepts of a power of attorney and the executor of a will but did not understand the concept of enduring guardianship even after it was explained to her;

9. In summary the assessment indicated the following areas of reduced cognitive functioning:

1. Orientation to time;

2. Ability to manipulate auditory information (auditory working memory);

3. Speed of information processing;

4. Recent memory for contextualised (logically structured) verbal information;

5. Ability to follow multi step commands (comprehension);

6. Ability to perform learned movements (Praxis);

7. Visuospatial abilities;

8. Basic conceptualisation skills;

9. High-level executive functions (Planning, organisation, reasoning, judgement, mental flexibility;

10. Her areas of preserved cognitive functioning included:

1. Orientation to person and place;

2. Basic concentration (counting and basic mental control);

3. Recent memory and learning of simple repeated information (e.g. word list learning);

11. Her behaviour on testing also revealed impulsiveness, concrete thinking and perseveration;

12. Her mood levels on a self-assessment were in the severe range for depression and stress and in the mid-range for anxiety;

13. The extent of severity of Mrs DSD’s cognitive deficits exceeded what would be expected to follow her stroke and it was possible that she had more generalised cognitive impairment or a dementing process;

14. Given Mrs DSD’s demonstrated understanding of the concept of a power of attorney and executor of a will she had the capacity to make those appointments. However as she was not able to understand the concept of enduring guardian that issue required more discussion with the solicitor and Mr EPG;

15. Mrs DSD has severe global cognitive deficits and could require increased supervision at home for self-care and cooking.

2. An Aged Care Client Record dated 8 July 2015 and completed following Mrs DSD’s hospitalisation on 26 May 2015 following a motor vehicle accident records that on 18 June 2015 Mrs DSD scored 26/28 on the RUDAS losing two points for recall. She is said to require supervision or assistance with most activities, to lack insight into her limitations, to be impulsive and to demonstrate difficulties with planning and sequencing of tasks and to have reduced problem solving skills. She was assessed as being unsafe to return home and as being unable to manage at home without constant supervision and was approved for high-level residential care.

35. In a statement dated 17 July 2015 Mr EPG and Ms OVD make statements to the following effect about Mrs DSD’s capacity since her stroke:

1. Mrs DSD has limited ability to handle money matters including paying bills, going to the bank and dealing with Centrelink. She is bilingual in English and Filipino and is able to visit her GP and to socialise;

2. Mrs DSD has exhibited difficulties in attending to more complex financial matters such as investing and setting up term deposits, and legal matters such as insurance claims, wills and estate issues, and even before her stroke she had relied on Mr EPG or Ms OVD for those matters;

3. She requires simple instructions regarding mid-level and complex tasks and has not been able to attend to tasks such as utility and Internet connections.

36. A report dated 19 August 2015 addressed to Dr W, of the aged care facility in West Sydney, from Dr V, a geriatrician provides information and opinion to the following effect resulting from an assessment completed on the date of the report:

1. Mrs DSD required supervision with transfers and to sit and stand. She was mobilising with a quad stick and was doubly incontinent, but required minimal assistance with showering and dressing;

2. Mrs DSD wanted to return home but lacked insight into her health and care needs and had limited understanding as to how she would manage with her limited mobility;

3. Mrs DSD scored 23/30 on the RUDAS with deficits in visuospatial skills, praxis, memory, and judgement;

4. More detailed testing with the Addenbrooke’s Cognitive Examination version III (ACEIII) returned a score of 59/100 “with global deficits again being demonstrated (Attention 11/18, memory 12/26, fluency 7/14, language 16/26, visuospatial 13/16);

5. Mrs DSD was not able to complete a Trail Making Test that is a test of frontal executive functioning;

6. Dr V concludes that Mrs DSD required constant supervision with her mobility and assistance with her activities of daily living, was impulsive and lacked insight into her care needs and physical limitations;

7. Dr V supported the appointment of a guardian for Mrs DSD as well as the appointment of a financial manager.

1. A report dated 12 October 2015 from Ms U of the a Mental Health Centre and Ms T, Clinical Supervisor, (the Ms U/Ms T report) provides additional information and opinion to the following effect:

1. Mrs DSD’s medical records and assessment of her current psychological functioning suggest that there has been some impact of the stroke on Mrs DSD’s cognitive functioning including in the area of visuospatial construction, motor coordination, and memory. She was oriented to time and place;

2. Mrs DSD compensates for memory problems by using reminders;

3. “By established guidelines,” Mrs DSD’s cognitive functioning “does not appear to present cause for concern regarding her capacity to make decisions at this point in time;”

1. Mrs DSD scored 25/30 on the RUDAS which is above the threshold that would indicate concerns about cognitive impairment

2. Mrs DSD demonstrates limited but developing insight into her condition following education about recovery from her stroke. Her judgement was “reasonable” in that she accepted that if her condition were to deteriorate she might require one of her children to make decisions for her;

3. Mrs DSD’s culture includes a strong sense of family values that could include expectations on how the eldest son will respect and care for his mother. Regarding guardianship, she is struggling with disempowerment which could be due in part to lack of familiarity with Australian systems;

4. The Tribunal should consider the appointment of other family members or the Public Guardian as Mrs DSD’s guardian and if Mr EPG were to retain authority over her financial matters the family should receive some emotional support and had been provided with details regarding Relationships Australia.

37. In a letter to the Tribunal dated 15 October 2015 Ms S, an Individual Advocate from an advocacy association in NSW refers to Mr EPG's application for guardianship and financial management orders for Mrs DSD. Of relevance to the review of the revocation of the enduring power of attorney, Ms S makes comments to the following effect:

1. The RUDAS administered by Dr V on 19 August 2015 does not meet “culturally appropriate practice and is imprecise” and was administered without the use of an interpreter. Mrs DSD reported that she felt “intimidated” and “nervous” when she was assessed and that Dr V was “not very engaging with her and did not allow for cultural considerations.” Ms S concludes by asserting “Clearly Dr V has not taken into consideration the cultural values, norms, expectancies and attitudes of Mrs DSD’s cultural background;”

2. In referring to the ACEIII assessment, Dr V does not explain the meaning of a score of 59/100 and the list of impairments does not explain their effects on Mrs DSD’s cognitive functioning;

3. Mrs DSD has a bilateral hearing impairment, which, in conjunction with the language issues could have impacted on the result of Dr V’s assessment;

4. The more recent administration of the RUDAS using an interpreter returned a score which, according to the authors of that report was above the threshold indicating cognitive impairment;

5. The more recent RUDAS assessment score is two points higher than that obtained when it was administered by Dr V and as Dr V does not explain the significance of the score obtained on her assessment, it is difficult to assess the meaning of the scores on Mrs DSD’s cognitive ability and capacity to manage her own affairs;

6. The ACCR records a RUDAS score of 26/28 but does not explain the meaning of that score. The context of the ACCR a focus on the needs of the person to receive aged care services and is not a final determination of the person’s abilities to make decisions;

7. Mrs DSD believes that Mr EPG is not working in her best interests and she has concerns about the way he treats her.

38. The Tribunal carefully considered the evidence regarding Mrs DSD’s cognitive capacity, including the issues raised in Ms S’s letter dated 15 October 2015. In relation to those matters the Tribunal took into account:

1. There is a degree of consistency in each of the reports in that each report and the submission of Mr EPG and Ms OVD assesses Mrs DSD as having impaired memory. The reports also each refer to her as having impaired insight (though the Ms U/Ms T report describes her insight regarding the need for assistance as improving). The report of Dr V and the Ms Z/Dr Y report both describe Mrs DSD as having impaired judgement as a result of impaired executive functioning. Whilst the Ms U/Ms T report states that Mrs DSD expressed “reasonable judgement,” that assessment is in the context of her acknowledging possible future need for guardianship if her condition were to deteriorate. The Tribunal is of the view that this does not assist in assessing whether her overall judgement is reasonable or of it is reasonable specifically in respect of issues relating the power of attorney;

2. Ms S questions the validity of Dr V’s assessment for reasons including that Mrs DSD has bilateral hearing difficulties. However Dr V refers to the hearing impairment in her report and the Tribunal is satisfied that as a medical practitioner specialising in old age, she would have taken that into account in making her assessment;

3. The assessments of Dr V and Ms Z and Dr Y were conducted in the absence of an interpreter. Ms S states that Mrs DSD “identifies deficiency with her English language skills;”

1. In their statement written on 17 July 2015 Mr EPG and Ms OVD describe Mrs DSD as being bilingual in English and Filipino;

2. In their report Ms Z and Dr Y state that Mrs DSD advised that whilst Tagalog was her first language, her education had been conducted in English. This includes 12 years of high school education and a 4-year Bachelor of Science degree, and a 2-year part-time Masters degree in Child Psychology. She reported living in Australia since 1972;

3. The Tribunal accepts that it would have been appropriate to enquire of Mrs DSD whether she would benefit from the use of an interpreter and to provide one if she thought it would be helpful. The Tribunal has no evidence whether or not she was asked and if so, what was her response;

4. In any case, the Tribunal is of the view that taking into account Mrs DSD’s long experience with the English language, including 18 years of formal education, and the view of her children that she is bilingual in English and Filipino, the results obtained by Dr V and Ms Z, and Dr Y are not invalidated by the lack of an interpreter.

4. Ms S raises issues about the use and interpretation of tests administered in the assessments. She asserts that the RUDAS administered by Dr V “does not meet culturally appropriate practice and is imprecise.” Apart from the lack of an interpreter, Ms S does not explain why the RUDAS administered by Dr V was not culturally appropriate. The Tribunal is unclear whether Ms S asserts that the RUDAS itself is an imprecise instrument, or whether its use by Dr V was imprecise;

1. If Ms S is impugning the test itself, either for lack of cultural appropriateness or imprecision, the Tribunal notes that it was considered a useful assessment in all three assessments provided to the Tribunal and for that reason concludes that some weight can be placed on its scores;

2. Whilst asserting that “clearly” Dr V has not taken into account cultural factors in making her assessment of Mrs DSD, Ms S appears to rely on the evidence of Mrs DSD about the lack of use of an interpreter and her feelings during the assessment. The latter issue is canvassed above. In relation to Mrs DSD’s reported feelings during the assessment the Tribunal is not able to assess whether these feelings were or were not, the result of how Dr V administered the assessment. The Tribunal notes that in her report Dr V does refer to Mrs DSD’s Filipino background. Whilst her report does not detail the procedure involved in making her assessment the Tribunal is of the view that taking into account Dr V’s reference to Mrs DSD’s cultural background, and in the absence of more detailed evidence, it is unsafe to conclude that Dr V did not take Mrs DSD’s cultural background into account;

3. If the imprecision is alleged to be in how Dr V used the instrument, the Tribunal is not assisted by the later Ms U/Ms T report because that report does not indicate on which items Mrs DSD lost 5/30 points when administered for that assessment and nor does it analyse whether there is any significant difference in the scores in the domains of visuospatial skills, praxis, memory and judgement which according to Dr V are the areas of deficit indicated when she administered that assessment. These are also areas of impairment identified in the Ms Z/Dr Y report.

5. In their report, after commenting on Mrs DSD’s reduced functioning in respect of visuospatial construction, motor coordination and memory, Ms U and Ms T opine that “by established guidelines, her cognitive functioning does not appear to present cause for concern regarding her capacity to make decisions at this point in time.” The report does not identify the nature or source of the “established guidelines” to which they refer. Their view that there is no cause for concern about Mrs DSD’s decision-making capacity differs from that expressed by Dr V in her report written only some two months before the Ms U/Ms T report as well as the Ms Z/Dr Y report some two years earlier which identified some similar areas of impairment;

6. Dr V is a geriatrician who works in the Geriatric Medicine Department of a public hospital in the Local Health District West of Sydney. Ms Z is a Provisional Psychologist and Dr Y, who supervised Ms Z in completing the Ms Z/Dr Y report, is a Clinical Neuropsychology Supervisor. Neither Ms U nor Ms T provides details of their professional qualifications or experience. The Tribunal is of the view that the reports of Ms Z, Dr Y, and Dr V carry weight due to the qualifications and expertise of their authors. By contrast the Tribunal is unable to place equal weight on the opinions of Ms U and Ms T.

39. In her submission to the Tribunal, Ms OPM noted that despite their differences, the more recent assessment and the earlier assessments do indicate that Mrs DSD has some cognitive impairment, and in particular, that she has impaired memory.

40. Taking all of these matters into consideration, including the submissions of Ms S, the Tribunal is satisfied that:

1. The qualifications of Dr Y and Dr V are such, and the similarity between the assessment results in the Ms Z/Dr Y report and the report of Dr V are such, to suggest that those assessments are reliable despite the issues raised by Ms S;

2. To the extent that different conclusions are reached in the Ms U/Ms T report, the Tribunal places more weight on the Ms Z/Dr Y report and Dr V assessments;

3. All three assessments provide sufficient consistency to conclude that Mrs DSD has impaired memory and some limited insight and the earlier reports also refer to lack of judgement which is not refuted in the Ms U/Ms T report;

4. The observations by Mr EPG and Ms OVD which predate Dr V’s assessment, support the conclusion that Mrs DSD does have some cognitive impairment including memory impairment.

41. Taking all of these matters into account, the Tribunal is satisfied that Mrs DSD has impaired memory, impaired executive functioning, including judgement and reduced insight. The Tribunal is satisfied that these impairments could result in her inability to properly understand and analyse issues related to her financial affairs and the revocation of the power of attorney. However as set out in the matter of Scott v Scott (supra) it is necessary to review the context of the purported revocation of the enduring power of attorney properly and to determine whether it was executed with appropriate mental capacity.

The context of the revocation

42. The Ms Z/Dr Y report indicates that during the assessment interview, Mrs DSD said that she trusted Mr EPG. She also reported that she was involved in ongoing legal proceedings in the Philippines concerning a property ownership dispute in the family and discussed her belief that her stroke was caused by a black magic spell cast on her by her sister in the Philippines.

43. In their report dated 12 October 2015, Ms U and Ms T report that Mrs DSD’s first husband, from whom she was divorced, died in 2009 and she did not inherit from his estate. Mr EPG sold a property in Perth which he had inherited from his father in order to provide Mrs DSD with $100,000 and at Mr EPG’s encouragement she purchased the Mt Druitt apartment where she lived with her sisters until she was admitted to hospital following her stroke.

44. In his application for financial management Mr EPG states that he believes that Mrs DSD’s sisters, Ms NXD and Ms VDH have made false accusations to Mrs DSD that he has been stealing her funds. He also believes that they have been taking financial advantage of Mrs DSD.

45. In a letter dated 27 July 2015 addressed to Mr EPG, a solicitor provides Mr EPG with advice about his authority as Mrs DSD’s attorney and the rights of his aunts to make applications to the Tribunal.

46. In an email to the Tribunal dated 17 August 2015, Mr EPG alleges that he received a threatening message from Ms VDH when he requested her address for the Tribunal and that he is intending to apply for an apprehended violence order protecting him and his mother from her and other family members. The Tribunal makes no finding of fact regarding the detail of the matters alleged by Mr EPG, but accepts his statement as an indication of tension between him and some of Mrs DSD’s family of origin.

47. Mr EPG provided the following documents regarding family property issues.

1. A copy of a document dated 1 August 2015 which appears to be a draft and unendorsed letter certifying that Mrs DSD had agreed to sell to her sister, Ms NDD, her share in property in the Philippines inherited from their mother.

2. A copy of an email dated 3 August 2015 from Mr EPG to Ms NDD bearing the salutation “Dear [Ms NDD].” The email contains statements to the following effect:

1. That Mrs DSD is in aged care facility and lacks capacity to make financial decisions, and that Mr EPG has believed for some time that Mrs DSD was unable to make such decisions partly because she can be easily influenced by others.

2. References to a court case in the Philippines.

3. A statement that Mr EPG and Ms OVD were seeking legal advice about Mrs DSD’s legal position regarding a compensation claim for the injuries sustained in the motor vehicle accident.

4. A statement that other family members have denied that Mrs DSD lacks the ability to make decisions for herself and were accusing Mr EPG of stealing from Mrs DSD.

5. A request that the proposed sale of land be delayed so that more pressing issues regarding Mrs DSD’s affairs could be managed.

3. A copy of an email dated 3 August 2015 from Mr EPG to Ms NDD bearing the salutation “Hi [Ms NDD]” with content to the following effect:

1. A request for the provision of a professional valuation of the land offered for sale and an offer for the purchase of the land based on the valuation.

2. A request for evidence about how much land was allocated “from the court hearing.”

3. A reference to other relatives (Ms VDH and Ms NXD) causing stress to Mrs DSD and noting that Mr EPG was having discussions with a lawyer regarding what could be done about their “ harassment and intimidation tactics.”

4. A copy of an email dated 3 August 2015 from Mr EPG to Ms NDD bearing the salutation “Hi [Ms NDD]” and:

1. Referring to Mrs DSD as lacking capacity to agree to a contract for the sale of land;

2. Noting that Mr EPG had requested a survey of the land and questioning therefore why “[Ms NDD]” was seeking a response regarding the proposed sale of land;

3. Noting that Mr EPG would not make decisions about the proposed sale of land until he received legal advice regarding the situation in the Philippines;

4. Noting that Mr EPG was also intending to further investigate how Mrs DSD became involved in a court matter in the Philippines because Mr EPG believed that she was “pressured coaxed and perhaps but highly likely intimidated by [Ms VDH] and Marilyn into assisting them financially in this court proceedings likely continuing til today,” and that he wants to see receipts regarding her funding of the court case.

48. In his email dated 17 August 2015 Mr EPG states that the aunt “[Ms NDD]” has not disputed his applications for financial management and guardianship (the only applications submitted at that time) but that others of his mother’s family of origin had done so.

49. The Tribunal was satisfied that the evidence regarding events preceding the revocation of the enduring power of attorney suggest that:

1. Mrs DSD and Mr EPG appear to have had a trusting relationship over a considerable period of time. This is indicated by the reference in the Ms U/Ms T report to Mr EPG providing Mrs DSD with $100,000 to put towards her purchase of her apartment in West Sydney and by her comments to Ms Z and Dr Y that she trusted Mr EPG;

2. There was no improper influence on Mrs DSD when she made the enduring power of attorney. The solicitor who witnessed the appointment appears to have been cautious and to have required a neuropsychological assessment which endorsed Mrs DSD’s capacity to make the appointment;

3. Over time there been issues between Mrs DSD and her family of origin. In 2013 she told Ms Z and Dr Y that she believed her stroke resulted from a black magic spell cast by her sister in the Philippines;

4. More recently there appears to have been some pressure exerted by a Filipino sister regarding the sale of land and Mr EPG’s emails also indicate that others of Mrs DSD’s family were attempting to exert some influence over her affairs;

5. Mr EPG’s activation of the enduring power of attorney is consistent with the view of Dr V, expressed in her report dated 23 August 2015, that Mrs DSD was in need of financial management;

6. Mr EPG has been resisting the efforts of Mrs DSD’s family of origin regarding involvement in her affairs.

50. There have been a number of reasons advanced for the revocation of the enduring power of attorney.

1. In the document signed by Mrs DSD on 7 September 2015 she states that the reason for the revocation is that Mr EPG had refused to follow her instructions and she had lost trust in him.

2. In their report dated 12 October 2015 Ms U and Ms T state that Mrs DSD felt that her making of the power of attorney was “not informed” and also that she has now experienced the ramifications of the appointment as threatening her autonomy and quality of life.

3. During the hearing Mrs DSD told the Tribunal that she believes that Mr EPG was abusing the power of attorney.

1. She said that he had withdrawn $1000 from her account;

2. That when she went to withdraw money to pay the physiotherapist and to pay for a manicure and pedicure she had insufficient funds.

3. Her sisters have been paying for her food and clothing because the bank has refused to allow her to withdraw funds because Mr EPG is her attorney.

4. Without telling her, Mr EPG had cancelled her $70,000 term deposit and placed it on a savings account, perhaps to make it easier for him to withdraw funds.

51. In respect of the comment in the Ms U/Ms T report that Mrs DSD felt she was not properly informed in relation to the power of attorney the Tribunal notes that according to the Ms Z/Dr Y report Mrs DSD understood the nature of a power of attorney, though she did not understand an enduring guardianship. The assessment was conducted just two days after the power of attorney was signed.

52. In respect of her feelings of loss of autonomy, the Tribunal notes that prior to the revocation of the enduring power of attorney, Mrs DSD’s autonomy had been significantly reduced in that she was residing in an aged care facility. She records the aged care facility as her location in the purported revocation of the power of attorney, but also states that her “actual residential address” is the address of her home unit in West Sydney. As noted above, in her report dated 23 August 2015 Dr V notes that Mrs DSD said that she wanted to return home.

53. A decision about Mrs DSD’s accommodation is one for a guardian, not an attorney. However as noted in the assessment of Ms Z and Dr Y, Mrs DSD had difficulty understanding the role of the guardian and the Tribunal is of the view that it is likely that Mrs DSD’s opposition to her placement in the aged care facility also contributed to her belief that the attorney had interfered with her autonomy.

54. During the hearing Mr EPG said that Mrs DSD was made a permanent resident at the aged care facility on 13 October 2015. The Tribunal notes that since then the Public Guardian has been appointed with the function of making decisions about where Mrs DSD lives.

51. During the hearing and in a document dated 26 August 2015 Mr EPG said that under the power of attorney he has made the following decisions and effected the following transactions:

1. Since Mrs DSD was admitted to hospital in March 2015 he has paid all of her bills including electricity, strata fees, council rates, water, and mobile phone bill and has adjusted Mrs DSD’s mobile phone plan to one that is more financially advantageous. Some of these bills were initially paid out of his funds or those of Ms OVD and he later recouped the funds from Mrs DSD’s account;

2. He completed all the Centrelink forms necessary upon Mrs DSD’s admission to the aged care facility;

3. He has obtained advice from financial consultancy firm regarding how to arrange Mrs DSD’s affairs to maximise her Centrelink entitlements and to minimise her taxation liabilities;

4. He has prepared Mrs DSD’s property for rental including:

1. Moving Mrs DSD’s property to the apartment of Ms OVD;

2. Carrying out repairs. He said that he is a carpenter by trade and is a self-employed handyman. He said in that capacity he has done some work on Mrs DSD’s electrical, plumbing, and air conditioning system as well as general repair work. He said he paid himself $25 per hour for this work;

3. Entered into a rental management agency agreement with a real estate company to let her unit for $350 per week. Mr EPG provided the Tribunal with a copy of the rental agency agreement.

5. He removed $58,000 from Mrs DSD’s term deposit so that he could pay $50,000 deposit on the $250,000 Refundable Accommodation Deposit at the aged are facility, thus reducing the interest charged on that debt;

6. He has engaged lawyers to advise and act in relation to a possible claim against the driver of the motor vehicle that hit Mrs DSD.

56. During the hearing it was evident from the behaviour of the participants that there was discord between Mr EPG on the one side and Mrs DSD’s sisters on the other.

57. During the hearing Mr EPG said that words to the effect that he explained all the financial dealings to Mrs DSD a number of times up until approximately four weeks before the hearing when he gave up because Mrs DSD was not remembering or understanding the explanations.

58. The Tribunal found Mr EPG’s evidence regarding his actions as attorney to be coherent and consistent and had no cause to doubt his evidence about this matter.

59. In relation to the revocation of the enduring power of attorney and whether the Tribunal should order that it remains in force, Ms OPM made submissions to the following effect:

1. Mrs DSD has lost some autonomy and will continue in that situation as long as she remains in an aged care facility. This is not the result of the operation of the enduring power of attorney;

2. By paying himself for the repairs he made on Mrs DSD’s property, Mr EPG has failed to keep his affairs and those of Mrs DSD separate. However Mrs DSD’s estate appears to have benefitted from the work done by Mr EPG;

3. With the exception of paying himself from Mrs DSD’s funds, Mr EPG has operated appropriately as her attorney. Her property is managed to provide an income and her affairs are being properly managed.

Conclusion

60. Having considered the evidence regarding Mrs DSD’s cognitive capacity as well as the context of the purported revocation of the enduring power of attorney the Tribunal reached the following conclusions:

1. At the time the power of attorney was made and until recent months there was a relationship of trust between Mrs DSD and Mr EPG who for some time, with Ms OVD, has been assisting her with her affairs;

2. Over recent months there have been a number of stressful events in Mrs DSD’s life. These include a motor vehicle accident and admission to an aged care facility as well as some pressure on her to sell some property to a sister. There appears to have been some ongoing legal matters in the Philippines. Mr EPG, as Mrs DSD’s attorney, has taken over management of the financial and legal aspects of these developments;

3. Mr EPG has appropriately taken over the management of Mrs DSD’s affairs consistently with the assessment of a geriatrician that due to impaired capability she is not able to manage her own affairs and requires a financial manager. As her attorney under an enduring power of attorney under these circumstances he is not required to act on her instructions and his failure to do so is not a valid reason for revoking the appointment;

4. Some discord has developed between Mr EPG and Mrs DSD’s family of origin;

5. Taking into account the stressful events listed above, including her admission to an aged care facility and Mr EPG’s assumption of the role of attorney, in the context of family discord, Mrs DSD has experienced a loss of autonomy. This situation is worsened by her belief that Mr EPG has not consulted with her. In part this could be due to her memory loss and in part to the fact that Mr EPG, by his own admission, had “given up” explaining matters to her over recent weeks;

6. The transactions that Mrs DSD referred to and which made her suspect that Mr EPG has abused his position as her attorney have been adequately explained by Mr EPG who was supported at the hearing and in written documents by his sister Ms OVD. The Tribunal accepts that Mrs DSD could benefit from access to some funds for discretionary spending and that this could be arranged by Mr EPG with minimal alterations to his current financial management strategies;

7. Whilst Mr EPG was in error in paying himself for work done on Mrs DSD’s property without keeping their affairs separate, Mr EPG has, in the main, acted in the best interests of Mrs DSD as her attorney. Some of his actions if unexplained for the reasons accepted above, would have caused concern for Mrs DSD, but are explicable with reference to her circumstances;

8. The Tribunal is satisfied that the loss of autonomy and the suspicion complained of by Mrs DSD and advanced as reasons for revoking the enduring power of attorney are explicable by reasons other than any inappropriate actions on the part of Mr EPG;

9. The Tribunal is also satisfied that Mrs DSD’s view that the enduring power of attorney should be revoked for those reasons results from her inability to properly analyse her circumstances and the actions of her attorney which results, in turn, from her impaired capacity and the current stressful circumstances that provide the context for the purported revocation.

61. Having reached the conclusions set out above, the Tribunal ordered that:

1. Mrs DSD did not have mental capacity on 7 September 2015 to revoke the enduring power of attorney dated 15 October 2013; and

2. The power of attorney remains valid because Mrs DSD did not have the capacity necessary to revoke it.

FINANCIAL MANAGEMENT APPLICATION

Preliminary Matter – Who provides services and support for Mrs DSD

62. Section 3F(5)(d) of the Guardianship Act establishes that a person who has care of another person is a party to an application for financial management for that person. This also applies to a person who cared for another prior to his/her admission to an aged care facility. The circumstances in which a person is to be regarded as having care of another person include where that person, other than for remuneration, provides domestic services and support to the other person, or arranges for the other person to be provided with such services and support.

63. The Tribunal enquired of Mr EPG and Ms OVD which, if any, of them could be categorised as such as person.

64. After considering the evidence, and with the concurrence of Mr EPG and Ms OVD, the Tribunal was satisfied that whilst Ms OVD provided some care and support for Mrs DSD the primary responsibility for providing services and support or arranging for those services and support was with Mr EPG and therefore he is the person who is a party to the application by virtue of being a carer for Mrs DSD.

What did the Tribunal have to decide?

65. The questions to be considered by the Tribunal are:

• Is Mrs DSD incapable of managing her affairs?

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

• If so, who should be appointed financial manager?

Request to withdraw the application

66. Mr EPG sought to withdraw his application for financial management on the basis that the Tribunal had confirmed his appointment as Mrs DSD’s attorney.

67. During the hearing Mrs DSD consistently said that she did not want Mr EPG to manage her affairs.

68. The Tribunal decided that taking into account the current discordant relationship between Mr EPG and Mrs DSD and the complexity of Mrs DSD’s affairs, it was appropriate for the application to be heard and for the Tribunal to consider who, if anyone, should be appointed to manage her affairs under a financial management order.

69. Having reached that conclusion the Tribunal refused Mr EPG’s application to withdraw his application.

The Adjournment

70. The Tribunal did not consider the matters set out above regarding financial management because the hearing had gone overtime and there was insufficient time to address the issues. Accordingly the Tribunal adjourned the hearing of that application for approximately four months to a date to be fixed by the Registrar.

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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: 16 May 2016