HZS

[2018] NSWCATGD 28

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

HZS [2018] NSWCATGD 28

Hearing dates:

2 February 2018

Date of orders:

02 February 2018

Decision date:

02 February 2018

Jurisdiction:

Guardianship Division

Before:

S Roushan, Senior Member (Legal)
Dr M J Wroth, Senior Member (Professional)
L Stewart, General Member (Community)

Decision:

Application for Guardianship

 

The application for a guardianship order is dismissed after hearing.

 

Review of an Enduring Power of Attorney

 

In relation to the enduring power of attorney made by HZS on 31 July 2017 which appointed DAS as attorney the Tribunal determines, orders or declares:

 

a) to review the enduring power of attorney.

 

b) as a consequence of carrying out the review, not to make an order in relation to the making of the enduring power of attorney.

 

c) to make the following orders in relation to the operation and effect of the enduring power of attorney:

 

The term of, or a power conferred by, the enduring power of attorney is varied by changing the wording of paragraph 4, commencement of the operation of the power of attorney, from “Once the attorney/s have accepted his/her appointment by signing this document” to “Once my attorney considers that I need assistance managing my affairs”.

 

DAS is removed from office as an attorney.

 NZN is appointed to replace DAS.

Catchwords:

GUARDIANSHIP – application for a guardianship order – application dismissed – review of making and operation and effect of enduring power of attorney – decision to conduct review under s 36(1) of the Powers of Attorney Act 2003 (NSW) – variation by Tribunal of power of attorney – attorney replaced – commencement of power of attorney varied

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)–(2), 14
Powers of Attorney Act 2003 (NSW), ss 19
s 36(1)–(2), 36(4), 36(4)(a)–(c)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Guardianship Application

 

HZS (the person)
DAS (applicant, enduring guardian)
NZN (joined party)
Public Guardian
NNW (spouse)

 

Review of an Enduring Power of Attorney

  HZS (the person)
DAS (applicant, attorney)
NZN (joined party)

Representation:

Nil

File Number(s):

NCAT 2017/00361021

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

Background

1. HZS is 88-years-old. He lives with his partner, NNW, at a nursing home in Inner West Sydney. HZS has two daughters: DAS and NZN, who resides in Tasmania.

2. On 31 July 2017, HZS appointed DAS as his attorney under an instrument of enduring power of attorney. He also appointed DAS as his enduring guardian.

3. On 29 November 2017, DAS lodged an application for guardianship in relation to HZS.

4. On 22 January 2018, the Guardianship Division received an application for the review of an enduring power of attorney from DAS.

5. On 21 December 2017, NZN made an application to be joined as a party. On 23 January 2018, the Tribunal joined NZN as a party to the application for guardianship and to the application for the review of an enduring power of attorney.

Evidence

6. In her application for guardianship and an accompanying statement, DAS stated that her father was admitted to hospital with pneumonia in July 2017. Following discussions with the hospital social worker, her father and NNW decided to move into the nursing home, as this was the only facility at the time that could accommodate them both.

7. DAS stated that an acquaintance of her father and NNW, Mr Z, has ‘persuaded’ them to ‘revoke [her] power of attorney with the bank and remove [her] communication access on their behalf with Centrelink’. He also promised to move them out of the nursing home and into a private rental property. DAS arranged for an advocate from Older Persons Advocacy Network to meet with her parents and, following this meeting, her parents decided to remain at the nursing home. Centrelink also agreed to ‘reinstate [DAS’s] communication rights’.

8. DAS said her father's condition has deteriorated, he is ‘very aggressive’ towards NNW and the nursing home staff and he refuses to pay his nursing home fees. She said she is unable ‘to exercise [her] power as attorney’ with the bank in order to ensure that the fees are paid. She was advised by the bank to apply to the Tribunal, seeking the appointment of a ‘financial guardian’ for her father.

9. In her application for a review of enduring power of attorney, DAS asked the Tribunal to review the enduring power of attorney on the basis that HZS did not have the mental capacity to make the enduring power of attorney. She also asked the Tribunal to review the operation and effect of the enduring power of attorney. She stated the purpose of the application was to ask the Tribunal to decide ‘what provisions should be in place’ so that her father could continue to pay his nursing home fees if incapacitated.

10. In support of the applications, DAS submitted the following:

1. Letter from Dr Y, a GP, dated 23 November 2017, stating that she is caring for HZS at The nursing home. She said HZS is ‘displaying significant cognitive decline with paranoid features and I feel he is not competent to attend to financial matters’.

2. An instrument of Enduring Power of Attorney executed by HZS, appointing DAS to be his attorney. The instrument placed no conditions or limitations on the attorney and stated that the power of attorney operates ‘once the attorney has accepted his/her appointment by signing this document’ (paragraph 4). Both HZS and DAS signed the instrument on 31 July 2017. The certificate under s 19 of the Powers of Attorney Act 2003 (NSW) (“POA Act”) was signed by Mr X, solicitor.

3. An instrument of Enduring Guardianship executed by HZS, appointing DAS to be his enduring guardian.

4. A completed myagedcare National Screening and Assessment Form in relation to HZS.

5. Bank statements, as well as receipts and invoices issued by an aged care service provider.

11. As part of her application to be joined as a party, NZN submitted a detailed statement, opposing her sister’s applications. She said she, her father and NNW do not believe that HZS is cognitively impaired. She has regular conversations with her father and visits him once or twice a year. She has not noticed any significant decline in his ‘mental function’. She noted that she had spoken to Dr Y and the nursing home manager, who had identified HZS’s inability to understand why he could not leave the facility unescorted and issues with payment of his nursing home fees as ‘indicators of his alleged cognitive impairment’. She had also spoken to a nurse at the nursing home, who had informed her that, whilst HZS had been initially uncooperative with carers at times, he had settled down in the last couple of months.

12. NZN stated that, following discussions with her father, she understood that his resistance to paying his nursing home bills was his ‘last stand of autonomy in a situation where so much autonomy had already been taken away from him’. Subsequently, HZS had arranged for the payment of the fees. She further stated that, when they initially moved to the nursing home, her father and NNW were not allowed to leave their room for three weeks due to an outbreak of flu in the nursing home. During this period, DAS had gone into their rented unit and given away ‘most of their possessions’. After he was allowed out of his room, due to risk of falls, he could not attend any appointments outside the nursing home without being escorted at a cost of $150 for each trip. HZS was eventually permitted to leave the facility after signing a waiver. This caused HZS great frustration.

13. NZN stated that she was informed by her father that he had signed ‘something in the presence of someone’, whom he believed to be a lawyer. He was not given a copy of the document. He later removed DAS’s access to his bank account. NZN also provided an account of her impressions of her sister’s health issues.

14. NZN submitted the following medical reports:

1. Letter from Dr W, Consultant Geriatrician, to Dr Y, dated 5 January 2018. Dr W stated that he had reviewed HZS, following a referral from Dr Y for a geriatric assessment. He concluded that HZS has mild cognitive impairment, but he is able to manage his finances and has the capacity to appoint a person who he trusts as his attorney or enduring guardian. Dr W reported that HZS did not want DAS ‘to get involved with his finances and medical treatment’.

2. Letter to the Tribunal from Dr V, GP, dated 22 January 2018, stating that she has known HZS as a patient since 2002. He was transferred out of her care in mid-2017, but she conducted a health assessment for him on 8 January 2018. She stated, on her assessment, HZS has capacity to manage his finances and understand the decisions around guardianship and power of attorney. She reported that HZS was unhappy about how he was ‘railroaded’ into appointing DAS as his enduring guardian and attorney. She also reported that HZS understands the benefit of staying in the nursing home and accepts the care he is receiving there.

15. In a statement, HZS said DAS has applied to the Tribunal to be appointed as his guardian against his ‘will’ and he considers her ‘unfit’ for such an appointment. He said, sometime after July 2017, when he and his partner contracted pneumonia and blood infection, DAS let herself into their apartment without permission and gave away their possessions. HZS listed some of the items allegedly dealt with DAS. He said, after they were discharged from hospital, DAS ‘got us to sign a power of attorney’. They were informed by the bank of DAS’s access to their accounts and they requested that her access be removed.

16. In a detailed response, DAS stated that discussions with her father and NNW in relation to a possible move to a nursing home had begun in September 2015. HZS was admitted to hospital with pneumonia in July 2017. During HZS’s hospitalisation, HZS and NNW spoke to a social worker at a public hospital, who found a nursing that could accommodate them both. Shortly after, NNW asked DAS ‘to have power of attorney’. Following their move to the nursing home, HZS signed the instrument of power of attorney in the presence of a solicitor. The solicitor spoke to HZS in DAS’s absence. However, HZS has since claimed that he did not know what he was signing.

17. DAS stated that she has paid for the first six weeks of her father’s nursing home fees and arranged for her father’s recliner chair to be moved to the nursing home. HZS was ‘angry and resentful’ about being in a nursing home and refused to pay his fees. Only on one occasion DAS relied on her powers as attorney to transfer some money from her father’s account to an account he held jointly with NNW to cover the fees.

18. DAS stated that, following HZS and NNW’s move to the nursing home, DAS secured their personal and financial information and discussed with them her attempts at selling their belongings. She sold some of their belongings through Gumtree and Facebook and placed the rest in storage. She had verbally agreed with her father and NNW that she should keep the proceeds of the sale as compensation for the first six weeks of their nursing home fees. DAS stated that, if her father and NNW were to reimburse her, she would be happy for them to arrange for their belongings to be moved to a storage of their choice. DAS noted that she did not believe her father has dementia, but he has a ‘very long history of problematic behaviour’.

Application to Review Enduring Power of Attorney

19. As previously noted, DAS’s application to review the enduring power of attorney was made on two bases: DAS’s capacity to execute the enduring power of attorney on 31 July 2017 and the operation and effect of the enduring power of attorney.

20. The evidence presented indicates that it was DAS who had instigated the process leading to the execution of the instrument under which she was appointed as attorney and, at various times, she had asserted her role as attorney under that instrument. Therefore, her request for a review of the enduring power of attorney on the basis that HZS did not have the mental capacity to make the enduring power of attorney is somewhat baffling.

21. In relation to her request for a review of the operation and effect of the instrument, DAS asked the Tribunal to review the operation and effect of the instrument and to make ‘any other order’. She explained that she was asking the Tribunal to decide ‘what provisions should be in place’ so that her father could continue to pay his nursing home fees if incapacitated. She added that she would accept the Tribunal’s decision ‘even if this means that they appoint an independent NSW Trustee and Guardian’.

22. Following the consideration of the evidence, the Tribunal formed the impression that DAS’s request for a review of the enduring power of attorney was, at least party, motivated by her misplaced wish to have her role as attorney formally recognised in the face of strong opposition from her father and other members of the family. The Tribunal, however, did not form the view that DAS’s motivations were sinister or that she was acting against the interests of her father.

23. Nevertheless, in view of the submissions made in relation to HZS’s mental capacity to make the enduring power of attorney on 31 July 2017 and the concerns expressed HZS in relation to DAS’s role as his attorney, the Tribunal decided to review the making of the enduring power of attorney and its operation and effect pursuant to s 36(1) of the POA Act.

The making of the enduring power of attorney on 31 July 2017

24. In her oral evidence to the Tribunal, DAS said she had discussed the issue of power of attorney with her father and NNW two days before her father’s admission to hospital in July 2017. She spoke to a solicitor, who went to the nursing home and, after speaking to her father and NNW privately, her father signed the document. DAS denied having instructed the solicitor. When the Tribunal highlighted the fact that the contents of the instrument appear to have been typed and prepared before the instrument was signed, DAS stated that she did not know about this. The Tribunal was not persuaded by this evidence.

25. Similarly, the Tribunal was not persuaded by the evidence of HZS and NNW in this regard. They both told the Tribunal that they did not know the nature of the documents they had signed in the presence of a solicitor. NNW said that they were taken by DAS to a solicitor’s office in Inner West Sydney, where they had signed the documents in DAS’s presence. Whilst HZS referred to the fact that he had just recovered from pneumonia, no persuasive explanation was provided as to why both HZS and NNW had failed to form any understanding of the nature of the documents they were signing at that time.

26. The medical evidence provided to the Tribunal did not specifically comment on HZS’s capacity to execute the enduring power of attorney in July 2017. The letters from Dr Y, Dr W and Dr V were written four to six months after the enduring power of attorney was executed. The letters from Dr Y and Dr V do not identify what assessment tools they had used to reach their respective conclusions in relation to HZS’s capacity to manage his finances. Whilst Dr W referred in his letter to HZS’s capacity to appoint whom he wishes as his attorney, he did not comment on HZS’s capacity to execute the enduring power of attorney in July 2017. 

27. On the basis of the medical evidence referred to above, the Tribunal accepted Dr W’s evidence that HZS has mild cognitive impairment, having scored 23/30 in a MoCA. The Tribunal also accepted that, in July 2017, HZS was seriously ill with pneumonia. However, there was no persuasive evidence before the Tribunal to suggest that HZS did not have the capacity to enter into the enduring power of attorney on 31 July 2017.

28. Given the lack of evidence about HZS’s capacity to execute the enduring power of attorney, the Tribunal decided, pursuant to s 36(2) of the POA Act, not to make any order concerning the making of the enduring power of attorney 31 July 2017.

Review of operation and effect of enduring power of attorney

29. At the hearing, HZS repeatedly and strongly expressed the view that he did not want DAS to be or remain as his attorney. This view was reinforced by the evidence given by NNW and NZN.

30. In her evidence, DAS reiterated that her primary concern was her father not being able to pay his nursing home fees. She also noted that she had not been reimbursed for the nursing home fees she had paid on her father’s behalf.

31. On the evidence before it, the Tribunal was not satisfied that DAS had mismanaged her father’s funds. On the occasions that she had accessed her father’s funds as attorney, she had used the funds to pay the nursing home fees. Further, the Tribunal could not rule out that, at times, DAS’s attempts to overtly assert her role as attorney were based on concerns about her father entrusting certain friends with access to his financial information, such as appointing Mr Z as his Centrelink nominee. However, questions do remain in relation to the manner in which she had disposed of or dealt with HZS and NNW’s personal belongings. DAS told the Tribunal that, other than the sold items, the remainder of these belongings is in a storage unit and she would provide access to her father or NZN for these items to be removed.

32. Whilst the Tribunal paid careful regard to DAS’s evidence, the Tribunal placed weight on HZS’s expressed wishes that he did not want DAS to remain as his attorney. Having decided to review the effect and operation of the enduring power of attorney executed on 31 July 2017, pursuant to s 36(4) of the POA Act, the Tribunal was satisfied that it would be in the best interests of HZS and it would better reflect his wishes to remove DAS from office as an attorney: s 36(4)(b).

33. HZS told the Tribunal that he is capable of managing his finances and he did not need to appoint an attorney under an enduring power of attorney. Nevertheless, he conceded that, if his physical health deteriorated and he was readmitted to hospital, he may require assistance with managing his finances. The interactions between HZS and NZN clearly indicated that HZS relies on and trusts his younger daughter. NZN expressed her willingness to be appointed as an attorney despite residing in Tasmania. All the participants, including DAS, agreed that NZN would be an appropriate person to be appointed as attorney. On this basis, the Tribunal made an order under s 36(4)(c) of the POA Act, appointing a substitute attorney, NZN, to replace DAS. Pursuant to s 36(4)(a) of the POA Act, the Tribunal also made an order varying paragraph 4 of the instrument, commencement of the operation of the power of attorney, from ‘once the attorney/s have accepted his/her appointment by signing this document’ to ‘once my attorney considers that I need assistance managing my affairs’.

The Guardianship Application

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

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

35. Section 14 of the Guardianship Act 1987 (NSW) (“the Act”) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/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’ (s 3(1) of the Act). A person with a disability is a person who is:

1. (a) intellectually, physically, psychologically or sensorily disabled;

2. (b) of advanced age,

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

4. (d) 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 (s 3(2) of the Act).

36. DAS’s application for guardianship only referred to her concerns in relation to her father’s financial affairs. DAS did not state that her father has a disability which prevents him from being able to make important life decisions. Nor did she identify any important life decisions that are required to be made in relation to her father.

37. DAS’s evidence at the hearing confirmed that she had made the application for guardianship because she had been concerned about her father’s finances. Her evidence did not suggest that her father has a disability which prevents him from being able to make important life decisions or that there are any important life decisions that are required to be made.

38. Similarly, the medical evidence provided did not indicate that HZS as a disability which prevents him from being able to make important life decisions. Whilst Dr W stated that HZS has mild cognitive impairment, he only referred to HZS’s capacity to manage his finances.

39. The Tribunal, therefore, was not satisfied that HZS has a disability which prevents him from making important life decisions. He is not a person for whom the Tribunal could make a further guardianship order.

40. In any event, the evidence referred to above indicates that HZS has appointed DAS as his enduring guardian. Thus, prima facie, if HZS had a disability which prevented him from making important life decisions, any decisions that need to be made that he would be unable to make himself can be made by the ‘appointee’ under the relevant instrument. The Tribunal was not asked to review the enduring guardianship.

41. Having carefully considered the evidence before it, the Tribunal dismissed the application for the appointment of a guardian.

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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: 01 February 2019