EKD

[2024] NSWCATGD 22

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EKD [2024] NSWCATGD 22

Hearing dates:

26 September 2024

Date of orders:

26 September 2024

Decision date:

26 September 2024

Jurisdiction:

Guardianship Division

Before:

E M Connor, Senior Member (Legal)
Dr F Duffy, Senior Member (Professional)
M Watson, General Member (Community)

Decision:

001 Review of an Enduring Guardianship Appointment

The application is dismissed because DZT has withdrawn the application and the Tribunal consents.

002 Review of an Enduring Guardianship Appointment

In relation to the enduring guardian appointment made by EKD on 26 March 2020 appointing DZT and KAD the Tribunal orders, directs or declares:

1. The resignations of DZT and KAD as an enduring guardian are approved.

2. EJT and KNP are appointed to replace DZT and KAD.

003 Guardianship Application

1. A guardianship order is made for EKD.

2. EJT is appointed as the guardian.

3. KNP, of [Address removed for publication.], is appointed as the alternative guardian.

4. This is a continuing guardianship order for a period of 12 months from 26 September 2024.

5. This order will not be reviewed at the end of the above period.

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

FUNCTIONS: EJT

7. EJT has the following functions:

a) Accommodation

To decide where EKD may reside.

b) Health care

To decide what health care EKD may receive.

c) Medical/Dental consent

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

d) Services

To make decisions about services to be provided to EKD.

e) Other Function

Community Access: To decide where, when and with whom EKD can access the community.

CONDITION:

8. The condition of this order is:

a) Standard Condition

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

004 Financial Management Application

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

2. EJT and KNP, of [Address removed for publication.], are appointed jointly and severally as the financial managers of the estate.

NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.

005 Review of an Enduring Power of Attorney

In relation to the enduring power of attorney made by EKD on 6 November 2006 which appointed EJT and CYT as her joint and several attorneys. The Tribunal determines, orders or declares:

1. To carry out a review of the making of the enduring power of attorney.

2. The enduring power of attorney is invalid wholly.

Catchwords:

REVIEW OF ENDURING GUARDIANSHIP – application for review of enduring guardianship appointment – request to withdraw application – application accepted – resignation of enduring guardians approved

GUARDIANSHIP – subject person diagnosed with dementia – person in need of a guardian – requested appointment of public guardian – request denied – suitability of private persons established – private guardian appointed – alternative private guardian appointed – order made

REVIEW OF ENDURING POWER OF ATTORNEY – application to review enduring power of attorney– instrument appointing attorney invalid for failure to comply with formal requirements in Powers of Attorney Act – instrument inoperable – whether to make an order under 36 of the Powers of Attorney Act – dismissed

FINANCIAL MANAGEMENT – application for financial management order – best interests of subject person that a financial management order be made – private financial managers appointed jointly and severally – orders made

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 15(3), 17(1), 25M; Pt 2

Powers of Attorney Act 2003 (NSW), ss 19, 36, 36(1)-(2), 36(4)(g)

Guardianship Regulation 2016 (NSW), Sch 1

Cases Cited:

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

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

IF v IG [2004] NSWADTAP 3

P v D1 & Ors [2011] NSWSC 257

Re B [2011] NSWSC 1075

Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516

W v G (2003) 58 NSWLR 220; [2003] NSWSC 1170

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Review of an Enduring Guardianship Appointment
EKD (the person)
DZT (applicant, enduring guardian)
MBD (carer)
KAD (enduring guardian)
NSW Trustee and Guardian
Public Guardian

002: Review of an Enduring Guardianship Appointment
EKD (the person)
EJT (applicant)
MBD (carer)
DZT (enduring guardian)
KAD (enduring guardian)
KNP
Public Guardian
NSW Trustee and Guardian

003: Guardianship Application
EKD (the person)
EJT (applicant, proposed guardian)
MBD (carer)
KAD (enduring guardian)
DZT (enduring guardian)
Public Guardian

004: Financial Management Application
EKD (the person)
EJT (applicant, attorney)
CYT (attorney)
MBD (carer)
KNP
NSW Trustee and Guardian

005: Review of an Enduring Power of Attorney
EKD (the person)
EJT (applicant, attorney)
MBD (joined party)
CYT (attorney)
NSW Trustee and Guardian

Representation:

J Hill (separate representative for EKD)

File Number(s):

NCAT 2024/00098213

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. EKD is 88 years old and has been a resident at an aged care facility since September 2022. It is reported that EKD has dementia. She is a retired pharmacist who was widowed in 2006 and previously lived at her home in northwest Sydney with one of her daughters, MBD, and her granddaughter.

2. MBD continues to live in northwest Sydney in the family home with her daughter, Ms Z. It is reported that MBD has her own disabilities. She had a twin sister who suicided on 23 August 2023 after a long history of mental illness. EKD has another daughter, Ms Y, who is reported to have limited contact with the family. She lives in another property owned by EKD.

3. EKD has three brothers: Mr X who lives in Tasmania; CYT who lives in regional NSW and is married to DZT; and EJT who lives in south Sydney and is married to KNP. EKD also has a niece, KAD, who lives in northern Sydney.

4. Significant acrimony has developed within EKD's family, primarily in relation to decisions about EKD returning home for visits and about MBD's visits to her at the aged care facility.

5. On 6 November 2006, EKD made an enduring power of attorney appointing EJT and CYT as her joint and several attorneys to commence immediately upon the acceptance by the attorneys. The instrument does not include a certificate signed by a prescribed witness in accordance with the requirement of s 19 of the Powers of Attorney Act 2003 (NSW) (the Powers of Attorney Act).

6. On 26 March 2020, EKD appointed KAD and DZT as her joint and several enduring guardians. The document submitted to the Tribunal has been signed as being accepted by DZT only.

7. On 23 February 2024, EKD wrote letters to DZT and KAD revoking all powers of guardianship granted to them.

8. On 23 February 2024, EKD wrote a letter to CYT revoking all powers of attorney granted to him.

9. On 14 March 2024, the Tribunal received an application for review of an enduring guardianship appointment from DZT. She submits that the revocation of the enduring guardianship by EKD on 23 February 2024 is not valid because she lacked capacity. She requests that the Tribunal confirm the appointment but vary the functions of the enduring guardian.

10. On 15 July 2024, the Tribunal gave directions regarding the timing of the submission and service of documents.

11. On 16 August 2024, the Tribunal received an application from EJT seeking review of the enduring guardianship appointment made by EKD on 26 March 2020 and a guardianship application. He is seeking the revocation of the appointments of DZT and KAD, and the making of a guardianship order appointing himself and KNP.

12. On 23 August 2024, the Tribunal made orders and directions including that MBD be joined as a party to the proceeding; that EKD be separately represented; and that all parties give to the Tribunal and other parties the material they rely upon by 19 September 2024.

13. The appointed separate representative for EKD is Ms Jill Hill.

14. On 19 September 2024, the Tribunal received a financial management application in relation to EKD from EJT.

15. On 19 September 2024, the Tribunal also received an application seeking review of the enduring power of attorney from EJT requesting orders that the enduring power of attorney be declared invalid and removing an attorney (CYT) from office.

16. On 19 September 2024, the Tribunal received notice from Ms Catherine Lucas, Legal Counsel for an aged care service provider, that she would be seeking leave to appear at the hearing.

17. On 20 September 2024, the Tribunal received notice from Elder Law that Mr Rodney Lewis would be seeking leave to represent MBD at the hearing.

18. On 20 September 2024, the Tribunal received notice from DZT seeking leave to be represented by Ms Hayley Bennett, barrister, and Ms Anthea Kennedy, solicitor of Bridges Lawyers, at the hearing.

19. On 25 September 2024, the Tribunal received a signed statement from DZT informing the Tribunal that she had resigned as enduring guardian for EKD and wished to withdraw her application seeking review of the enduring guardianship instrument made by EKD.

20. On 25 September 2024, the Tribunal received a signed statement from KAD informing the Tribunal that she had resigned as enduring guardian for EKD.

21. On 25 September 2024, the Tribunal received a signed statement from CYT stating that he was not opposed to the appointment of EJT as EKD's financial manager.

The hearing

22. At the end of these Reasons for Decision is a list of the witnesses who attended the hearing [Appendix removed for publication.]. The parties to each of the applications are set out above.

23. EKD participated in the hearing by video conference from the aged care facility. She remained attentive throughout the lengthy proceedings and the Tribunal was impressed by her level of understanding of the issues discussed and her meaningful contributions.

Legal representation

24. As noted above, on 19 September 2024 the Tribunal received notice from Ms Catherine Lucas, Legal Counsel for the aged care service provider, that she would be seeking leave to appear at the hearing.

25. On 20 September 2024, the Tribunal received notice from Elder Law that Mr Rodney Lewis would be seeking leave to represent MBD at the hearing and from DZT seeking leave to be represented by Ms Hayley Bennett, barrister, and Ms Anthea Kennedy, solicitor of Bridges Lawyers, at the hearing. Ms Kennedy was not present at the hearing and Mr Lachlan White informed the Tribunal that he was Ms Bennett's instructing solicitor.

26. At the start of the hearing, Mr Lewis informed the Tribunal that he was not seeking leave to represent MBD given the recent resignation of the enduring guardians and the statement of CYT. Mr Lewis stated that he sought to assist MBD as a McKenzie friend during the hearing, but reserved the right to seek leave to represent her should he consider it necessary.

27. Ms Bennett also told the Tribunal that she was not seeking leave to legally represent DZT but would assist her as a McKenzie friend.

28. We noted that the aged care service provider is not a party to the proceeding and Ms Lucas did not press her application to be granted leave.

29. The Tribunal did not grant leave for any party to be legally represented during the hearing but noted that a separate representative had been appointed at a previous hearing for EKD. The appointed separate representative was Ms Jill Hill.

001/002 Review of an enduring guardianship appointment

Background

30. On 26 March 2020, EKD appointed KAD and DZT as her joint and several enduring guardians. The document submitted to the Tribunal has been signed as being accepted by DZT only.

31. On 23 February 2024, EKD wrote letters to DZT and KAD revoking all powers of guardianship granted to them. It was accepted by the parties that these revocations were not valid because they had not been witnessed by a prescribed witness as required by Sch 1 of the Guardianship Regulation 2016 (NSW).

32. On 14 March 2024, the Tribunal received an application for review of an enduring guardianship appointment from DZT. She submits that the revocation of the enduring guardianship by EKD on 23 February 2024 is not valid because she lacked capacity. In her application she requests that the Tribunal confirm the appointment but vary the functions of the enduring guardian.

33. On 16 August 2024, the Tribunal received an application from EJT seeking review of the enduring guardianship appointment made by EKD on 26 March 2020 and a guardianship application. He is seeking the revocation of the appointments of DZT and KAD, and the making of a guardianship order appointing himself and KNP.

34. On 25 September 2024, the Tribunal received a signed statement from DZT informing the Tribunal that she had resigned as enduring guardian for EKD and wished to seek leave to withdraw her application seeking review of the enduring guardianship instrument made by EKD.

35. On 25 September 2024, the Tribunal received a signed statement from KAD informing the Tribunal that she had resigned as enduring guardian for EKD.

What did the Tribunal have to decide?

36. The Tribunal had to decide whether to approve the resignations of DZT and KAD; whether to consent to the withdrawal of DZT's application (Proceeding 001) to review the enduring guardianship appointment made by EKD; and to determine the review of the appointment of an enduring guardian lodged by EJT (Proceeding 002).

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

1. confirm the appointment of an enduring guardian with or without varying the functions of the appointed enduring guardian;

2. proceed as if an application for guardianship or an application for financial management (or both) had been made; or

3. revoke the appointment, with or without then proceeding as if an application for guardianship or an application for financial management (or both) had been made.

38. The Tribunal must not revoke the appointment of an enduring guardian unless:

1. the enduring guardian requests the revocation; or

2. the Tribunal is satisfied it is in the best interests of EKD that the appointment be revoked.

39. The Tribunal may appoint a substitute enduring guardian to replace an enduring guardian who has died, resigned or become incapacitated. The Tribunal may appoint a substitute enduring guardian only if:

1. the person is eligible to be appointed as an enduring guardian under Pt 2 of the Guardianship Act 1987 (NSW), and

2. the Tribunal is satisfied that:

1. EKD is in need of an enduring guardian; and

2. the person has a close personal relationship with EKD; and

3. the person is capable of carrying out the functions of an enduring guardian.

Is it in the best interests of EKD that the enduring guardianship appointment be revoked?

40. At the commencement of the hearing, DZT and KAD confirmed their intention to resign as enduring guardians for EKD. They submitted that a guardianship order appointing the Public Guardian should be made, rather than the appointment of EJT and KNP, as substitute enduring guardians.

41. Ms Hill told us that she spent approximately two hours alone with EKD on 23 September 2024. EKD instructed Ms Hill that she wants DZT and KAD removed as her enduring guardians and replaced with EJT and KNP. EKD stated that EJT is “objective and compassionate” and was very clear that she wants family members to make decisions for her rather than the Public Guardian. EKD also wants MBD to be consulted and involved.

42. The Tribunal noted that significant restrictions were placed on MBD's access to her mother and in relation to EKD's visits to her former home by the enduring guardians. This caused significant disharmony within EKD's family.

43. We agreed with Ms W, a clinical psychologist who saw EKD five times in 2021 and 2022 (but was prevented from seeing her in 2024 by the enduring guardians), that the enduring guardians had adopted an “authoritarian approach” and that:

“Some of the allegations reported here raise concerns about how the enduring guardians are making crucial decisions for a person with a disability, [EKD]. It is questionable that this is consistent with international best practice of supported decision making which privileges the rights, will and preference of the person with a disability; under the United Nations Convention on the Rights of People with Disabilities (CRPD)…”

44. The restrictions imposed by the enduring guardians and enforced by the aged care facility led to MBD contacting the Aged Care Quality and Safety Commission on 26 December 2023. It appears that following this contact some of the restrictions imposed on MBD were lifted. Ms V, the residential manager of the aged care facility, told the Tribunal that all restrictions on anyone visiting EKD at the aged care facility were lifted in March 2024 and that the aged care facility had been acting on the instructions of the enduring guardians which had been approved by the legal counsel for the aged care service provider.

45. It was clear on the material lodged with the Tribunal that there has been a significant breakdown in the relationship between EKD and the enduring guardians she appointed on 26 March 2020.

46. We approved the resignations of DZT and KAD as enduring guardians for EKD. We are satisfied that this is in EKD's best interest.

47. We also consented to DZT's request to withdraw her application seeking review of the enduring guardianship appointment, but proceeded to review the application lodged by EJT.

Is EKD a person in need of an enduring guardian?

48. Ms Hill reported that EKD was very anxious when she met with her and that, on that occasion, her recall was poor, and she could only recall historical issues such as her educational background “in generalities”. She did not remember that she has a house in northwest Sydney, and it was difficult to “disentangle” who she was talking about because she repeatedly referred to “we” rather than “I”.

49. Ms V told the Tribunal that EKD has been reviewed by a geriatrician who has assessed her as having moderate cognitive impairment. The observations of the nursing team at the aged care facility are consistent with this assessment. Ms V does not think EKD is able to make significant life decisions for herself.

50. EJT noted that it has been reported that EKD is able to make decisions with support. MBD told the Tribunal that her mother is able to make decisions, such as who she wants to make decisions on her behalf.

51. DZT submitted that EKD “struggles with risk assessment” and KAD agreed.

52. CYT provided examples that he submitted demonstrate that EKD has difficulty balancing competing considerations.

53. Ms Y believes her mother's impairment “is substantial”.

54. Ms Hill reiterated that EKD has difficulty separating herself from MBD and constantly thinks about others, rather than herself.

55. The Tribunal received a copy of an undated report from Dr U, staff specialist geriatrician at a public hospital, who states that she has reviewed EKD on two occasions and that she:

“…has progressive multi-domain cognitive impairment and functional loss in keeping with a diagnosis of probable mixed vascular/Alzheimer's dementia.”

…

“[EKD] lacks insight into the severity of her cognitive impairment. [EKD] is a person in need of a guardian for health and accommodation.”

56. In a report dated 23 July 2024, Dr S, geriatrician, states that she reviewed EKD at the aged care facility on that date and that:

“…[EKD] suffers from moderate mixed dementia, Alzheimer's disease, and vascular dementia in origin, with deficits in memory, judgment, insight and executive function. [EKD] has no capacity to make decisions about her accommodation and lifestyle…[EKD] cannot appoint a Power of Attorney or an Enduring Guardian. Any pre-existing appointment of an Enduring Guardian or a Power of Attorney can be enacted.”

57. In her report, Ms W states that on a Mini Mental State Examination administered by Dr S in 2024, EKD achieved the same score (17/30) as she had when assessed by Ms W three years earlier in October 2021, which indicates there has been no deterioration in EKD's cognition over that period. Ms W challenges Dr S's conclusion that EKD has “no capacity” to make decisions. Ms W notes that EKD was able to clearly express her wishes to Dr S and told her that she would like to leave the aged care facility, change her will, and change her power of attorney and enduring guardians.

58. EKD was able to clearly articulate her wishes during the hearing and we agree with Ms W that she should be supported to make her own decisions where possible.

59. We were satisfied, however, that EKD is a person in need of an enduring guardian. We accepted the evidence that she has cognitive impairment and is unable to make some important life decisions for herself, including whether she should have access to her former family home and what supports and services are needed in order for her to do so safely.

Who should be appointed as substitute enduring guardians for EKD?

60. It was proposed by EJT and KNP that they be appointed as substitute enduring guardians for EKD. This was supported by EKD; Ms Hill; Mr X in his written statement; and MBD.

61. DZT submitted that decisions such as whether EKD should remain at the aged care facility and issues regarding the safety of her returning home should be made by the Public Guardian “because of the division within the family”. She submitted that EJT “does not have good communication skills” and “has lacked transparency”. DZT asserted that they wanted to facilitate EKD accessing her former home safely, but that MBD denied access to an occupational therapist to assess the property.

62. During the hearing, MBD stated that she had not denied access to an occupational therapist and EKD told us that she refused access to the occupational therapist because “they just went about it the wrong way”. EJT told the Tribunal that EKD had denied access because “she was annoyed”.

63. Ms Y did not support the appointment of EJT and KNP as enduring guardians for her mother and submitted that the Public Guardian should be appointed. Ms Y told the Tribunal that she has had issues with EJT not answering her phone calls.

64. In her report, Ms W supports the appointment of EJT and KNP as guardians for EKD.

65. EJT acknowledged that there had been poor communication between him and CYT regarding his “side of things”, and that EKD's permanent placement at the aged care facility was never discussed with him. He noted that Ms Y has not spoken to her mother for approximately 20 years and that EKD had advised him to “be very careful” in his dealings with Ms Y as attorney. As a result, he refused to interact with Ms Y by telephone and required communication to be by email. EJT told the Tribunal that, if appointed, he and his wife “would be inclusive in our governance of the role”.

66. After considering the evidence, we were satisfied that EJT and KNP should be appointed as substitute enduring guardians for EKD and appointed them. They each have a longstanding close personal relationship with her, and EKD sought their appointment. We determined that they are capable of carrying out the functions of an enduring guardian.

67. EJT's written submissions to the Tribunal and presentation during the hearing evidenced a balanced and conciliatory approach to the dissent within the family. We also noted that EKD remarked to Ms Hill that EJT is “compassionate”.

68. We did not place significant weight on the views of Ms Y and DZT that the Public Guardian should be appointed because of the communication problems they have had with EJT. It was clear that EJT can communicate effectively with EKD and MBD, her former carer, and we are satisfied that he will endeavour to communicate with other family members regarding significant issues in EKD's life when necessary.

69. KNP noted that EKD has consistently stated that she does not want to be at the aged care facility and that, as enduring guardians, she and her husband would seek to engage the services of a psychologist such as Ms W to assist EKD to adjust to living at the aged care facility. Access to Ms W was previously refused by the former enduring guardians. It was not suggested that EKD should move to any other aged care facility, but rather that she receive professional assistance to help her settle at the aged care facility. KNP's approach to this issue was appropriate and sensible.

003 GUARDIANSHIP APPLICATION

What did the Tribunal have to decide?

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

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

71. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": Guardianship Act, s 3(1). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled,

2. of advanced age,

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW), or

4. otherwise disabled,

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: Guardianship Act, s 3(2).

72. Ms Hill told the Tribunal she was satisfied that EKD is a person for whom a guardianship order could be made.

73. We considered evidence about whether EKD has a disability in relation to the application to review the enduring guardianship appointment. That evidence is set out above and will not be repeated.

74. We are satisfied that EKD has moderate cognitive impairment that prevents her making some important life decisions and is a person for whom the Tribunal could make a guardianship order. We note, however, that she is able to clearly express her wishes and preferences which must be taken into consideration in the making of decisions on her behalf.

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

75. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship 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.

76. 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 Guardianship Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

77. The Tribunal considered whether a guardianship order should be made, given we had decided to substitute the former enduring guardians with EJT and KNP.

78. Given the conflict that has occurred, and the ongoing animosity within her family, we decided it would be in EKD's best interest in the short term for a guardianship order to be made. This will ensure that there is clarity regarding who can make decisions about her visiting her former family home or any other access to the community, and what supports or services may be required to facilitate this. It will also ensure that the aged care facility has clear direction regarding such issues.

79. The making of a guardianship order suspends the operation of an enduring guardianship instrument. We therefore authorised the guardian to also make decisions about EKD's accommodation; services; and health care, and to consent to medical and dental treatment on her behalf.

Who should be the guardian?

80. EJT and KNP proposed that they be appointed as guardian and alternative guardian for EKD respectively. Their appointment was supported by EKD, MBD, Ms Hill, Ms W and Mr X.

81. DZT, KAD and Ms Y sought the appointment of the Public Guardian.

82. The Tribunal must be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Guardianship Act. He or she 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.

83. 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 Guardianship 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]).

84. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

85. The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: Guardianship Act, s 15(3).

86. The Supreme Court has held that:

“the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G (2003) 59 NSWLR 220; [2003] NSWSC 1170, [25]).”

87. The Tribunal was satisfied that EJT and KNP are both suitable persons to be appointed as guardians for EKD for the reasons set out above in relation to the application to review the enduring guardianship appointment. We appointed them as guardian and alternative guardian respectively.

How long will the guardianship order last; should a non-reviewable order be made; and what is the impact on the enduring guardianship appointment?

88. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

89. We decided to make an order for 12 months and that it should be non-reviewable. This means that the guardianship order will not be reviewed unless the Tribunal receives an application requesting it be reviewed prior to its expiry.

90. We consider it likely that, within 12 months, the issues relating to EKD's potential visits to her home will have been resolved and there will be no ongoing need for a guardianship order. It is not in her best interests for there to be a further hearing before the Tribunal unless it is needed.

91. The enduring guardianship appointment made by EKD is suspended by the making of the guardianship order.

92. Upon the expiry of the guardianship order, the enduring guardianship appointment made by EKD (as varied by the Tribunal to substitute the former enduring guardians with EJT and KNP) will cease to be suspended.

005 REVIEW OF ENDURING POWER OF ATTORNEY

What did the Tribunal have to consider?

93. On 6 November 2006, EKD made an enduring power of attorney appointing EJT and CYT as her joint and several attorneys to commence immediately upon the acceptance by the attorneys. The instrument does not include a certificate signed by a prescribed witness in accordance with the requirement of s 19 of the Powers of Attorney Act.

94. On 19 September 2024, the Tribunal received an application seeking review of the enduring power of attorney from EJT. He is requesting orders declaring the enduring power of attorney invalid and removing an attorney (CYT) from office.

95. 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, 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(2) of the Powers of Attorney Act.

96. The Tribunal may make a number of orders relating to the making of a power of attorney including an order that the enduring power of attorney did not comply with the requirements of the Powers of Attorney Act and is invalid.

Should the Tribunal conduct the review?

97. In Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, Slattery J stated [at 80]:

“On an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what... (a party)...has produced.”

98. We decided to conduct a review of the enduring power of attorney because there was evidence provided that the instrument could not be relied upon as it did not comply with the requirements of the Powers of Attorney Act and, therefore, was invalid.

Should the Tribunal make any orders under section 36?

99. The Tribunal then proceeded, pursuant to s 36(2) of the Powers of Attorney Act, to consider whether to make an order under that Act.

100. It was uncontested that the enduring power of attorney made by EKD on 6 November 2006, which appointed EJT and CYT as her joint and several attorneys, does not include a certificate signed by a prescribed witness in accordance with the requirement of s 19 of the Powers of Attorney Act, and is therefore invalid.

101. There is no express power in the Powers of Attorney Act to declare that an instrument that does not comply with the requirements of that Act is a valid enduring power of attorney.

102. We considered whether the Tribunal has the power to rectify the instrument using the provision of s 36(4)(g) of the Powers of Attorney Act, which provides that the Tribunal may make “such other orders as the review tribunal thinks fit”. This section is very broad but is confined to reviews of the “operation and effect” of a power of attorney and does not extend to the making of the instrument.

103. We therefore declare the enduring power of attorney made by EKD on 6 November 2006 to be wholly invalid. It cannot be relied upon to manage her affairs.

104. Given we had declared the enduring power of attorney to be invalid, there was no need to consider removing CYT as an attorney.

004 FINANCIAL MANAGEMENT APPLICATION

What did the Tribunal have to decide?

105. On 19 September 2024, the Tribunal received a financial management application in relation to EKD from EJT.

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

1. Is EKD incapable of managing her affairs?

2. Is there a need for another person to manage EKD'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 EKD incapable of managing her affairs?

107. EKD told the Tribunal that she is no longer able to manage her affairs but that she was able to do so until recently.

108. It was uncontested by the parties that EKD is incapable of managing her affairs and this view was supported by Ms Hill.

109. EKD has significant assets, and we were satisfied that she is no longer able to manage her affairs.

Is there a need for a financial management order and is it in EKD's best interest that a financial management order be made?

110. EJT told the Tribunal that he has been assisting EKD with the management of her affairs for some time. A firm of accountants is engaged to assist and they pay all her bills and prepare her tax returns.

111. EJT and CYT have previously both relied on the purported enduring power of attorney which the Tribunal has now declared invalid.

112. We determined that there is a need for a financial management order for EKD and that it is in her best interests that a financial management order is made. Without a financial management order, matters such as lodgement of her individual tax returns will be unable to be attended to.

Who should be appointed as financial manager?

113. In appointing a financial manager, as in making all other orders under the Guardianship Act, the Tribunal must act with the interests of the person concerned as the paramount consideration, and in accordance with the other principles set out in s 4 of the Guardianship Act.

114. Section 25M of the Guardianship Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian.

115. EKD told us that she wanted EJT and KNP to be appointed to manage her financial affairs. This was supported by Ms Hill; MBD; Mr X; and CYT.

116. KAD declined to offer a view, stating that she has never had any involvement in EKD's financial affairs.

117. DZT submitted that the management of EKD's affairs should be committed to management by the NSW Trustee and Guardian because, given the divisions within the family, it would be better managed by somebody independent.

118. Ms Y also submitted that management should be committed to the NSW Trustee and Guardian, because her mother's affairs “are complex” and some of Ms Y's questions to the former attorneys have not been answered.

119. Ms Hill submitted that EJT and KNP should be appointed as private financial managers for EKD. She noted that they will be subject to the supervision of the NSW Trustee and Guardian and that direct management by the NSW Trustee and Guardian would result in “excessive fees” being payable by EKD.

120. 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.

121. 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.

113. The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.

114. EJT and KNP confirmed that they are willing to be appointed as private financial managers for EKD under the supervision of the NSW Trustee and Guardian.

115. We were satisfied that EJT and KNP are both suitable persons to be appointed as financial managers for EKD, subject to the authorities and directions of the NSW Trustee and Guardian. We appointed them jointly and severally.

116. EJT and KNP are both qualified accountants and EJT has been involved in the management of EKD's financial affairs for some time as her purported attorney, unaware that the instrument was not valid.

117. As private financial managers, EJT and KNP are in a much better position than the NSW Trustee and Guardian to understand EKD's needs and desires; make decisions about her financial; and act on those decisions quickly. EKD has considerable assets that can be used to pay for additional services or modifications to her home to enable her to visit and enhance her quality of life.

118. The appointment of private managers will also result in EKD paying significantly less fees to the NSW Trustee and Guardian than if they were directly appointed to manage her estate.

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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: 08 May 2025