KNU

[2018] NSWCATGD 45

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KNU [2018] NSWCATGD 45

Hearing dates:

22 November 2018 and13 December 2018

Date of orders:

13 December 2018

Decision date:

13 December 2018

Jurisdiction:

Guardianship Division

Before:

A D Suthers, Principal Member (Legal)
Dr G Jamieson, Senior Member (Professional)
D R Sword, General Member (Community)

Decision:

TZG is removed as a party.
The appointment of KHA as an enduring guardian is revoked.
In relation to the enduring power of attorney made by KNU on 22 October 2018 which appointed KHA as attorney the Tribunal decided:
To carry out a review of the making of the enduring power of attorney.
Not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW). The application for review of the enduring power of attorney is treated as an application for a financial management order under Pt 3A of the Guardianship Act 1987 (NSW).
1. The estate of KNU is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. KHA of [address removed for publication.] is appointed as the financial manager of the estate.
NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he has obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:

GUARDIANSHIP – review of making of enduring guardianship appointment – capacity to make enduring guardianship appointment – circumstances surrounding preparation and execution of enduring documents – preparation of enduring documents on instructions of another person – failure to satisfactorily ensure subject person sufficiently understood the nature and effect of enduring documents – appointment of enduring guardian revoked

 

FINANCIAL MANAGEMENT– review of making of enduring power of attorney – capacity to make enduring power of attorney – circumstances surrounding preparation and execution of enduring documents – preparation of enduring documents on instructions of another person – failure to satisfactorily ensure subject person sufficiently understood the nature and effect of enduring documents – review of enduring power of attorney treated as application for financial management order – subject person incapable of managing their financial affairs – need for another person to manage subject person’s affairs – best interests – consideration of who to appoint as financial manager – suitability of proposed financial manager – financial manager’s understanding of the capacity of the subject person – ongoing family conflict – oversight of financial manager by NSW Trustee and Guardian – appointment of private financial manager – financial management order made.

GENERAL – legal representation – multiple instruments – Tribunal Practice Guidelines – Rule 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 – evidence of Solicitor as to capacity of subject person to understand enduring instrument

Legislation Cited:

Guardianship Act 1987 (NSW), ss 6J Section 6J, 6K–6MA, 14(2), Pt 3A
Powers of Attorney Act 2003 (NSW), Div 4 of Pt 5, 36, 36(1), 36(3), 37()1
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 27

Cases Cited:

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

002: Review of an Enduring Power of Attorney
KNU (the person)
JBU (applicant, attorney)
TZG (attorney)
KHA (joined party)

003: Review of an Enduring Guardianship Appointment
KNU (the person)
JBU (applicant, enduring guardian, spouse)
TZG (enduring guardian)
KHA (joined party)

Representation:

Counsel:
Ms Coulton for Ms JBU
Mr Kirby for Mr KNU

  Solicitors:
VRT Lawyers for Ms JBU
McIntyre Legal for Mr KNU on day one of the hearing

File Number(s):

NCAT 2018/00024229

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. KNU is an 84-year-old man, who is living with his son, KHA, in Sydney. He was, earlier this year, living with his daughter TZG and, prior to that, lived with his wife JBU, until he was admitted to hospital in 2017 and later placed in an aged care facility by JBU as part of his discharge planning.

2. For simplicity, we may refer to KNU’s children by their first names in these reasons.

3. JBU is not the mother of KHA and TZG but was in a relationship with KNU for over 45 years.

4. There has been a significant breakdown in the relationship between KHA and TZG on the one hand and JBU on the other, for several years.

5. KNU was resistant to being placed into residential aged care. He is an independent man, who expresses strong views about where and how he would like to live.

6. It appears that after discovering that their father was living in residential aged care and away from JBU, KHA and TZG both took a more active role in KNU’s life, including arranging for his discharge and return to independent living, first with TZG and then with KHA.

7. KNU then commenced divorce proceedings and an application for property division against JBU in the Family Court. JBU feels that this was instigated by TZG or KHA, and maintains that the relationship between her and KNU had not broken down at that time.

8. Complicating those proceedings even further are allegations by KNU that JBU, who had been handling their financial affairs for some time, had removed his name from an account with a balance of approximately $1.5 million, and retained control of those monies herself. KNU sought and obtained injunctive relief from the Family Court, to secure the bulk of those monies during the family law proceedings.

KNU’s history of making enduring documents and the applications to the Tribunal

9. KNU has made and revoked several enduring documents in his lifetime, as follows:

1. An enduring guardianship and enduring power of attorney appointment of KHA, in about 2006, which he later revoked;

2. A later appointment of JBU as enduring guardian and enduring attorney, revoked on 13 May 2014;

3. On 13 May 2014, during an earlier admission to Hospital and in the context of dispute between JBU, KHA and TZG about discharge planning to residential aged care, he appointed KHA and TZG as his guardians and attorneys. On 14 May 2014, staff at the hospital made extensive notes about this process, which, where relevant, are recorded below:

Social worker asked [KNU], “did you sign anything?”

[KNUreplied, “yes but I’m not sure what I signed.”

Social worker asked again, “did you sign anything yesterday?”

[KNUreplied, “I think I did, but I’m not sure what … [KHA], [TZG], [YZ] were here”.

Social worker asked, “did you know what it was that you signed?”

[KNUreplied, “No – I did not have a clue”.

Social worke[r] asked, “did they tell you what you were signing?”

[KNUresponded, “they inferred it was a document that would protect me from being incarcerated in a nursing home…. A solicitor was here handing around cards but I did not get one.”

…

Seen by [Dr Z] and geriatric team who wrote in the notes: Discussion with [KNU], aware of discharge plan – “to [regional NSW]”. Happy with this plan. [KNU] reports being told of “scenario”, cooked up by sister [YZ], son [KHA], daughter [TZG], sister [XY] with a solicitor where he signed a document where his wife’s Power of Attorney and Guardianship has been rescinded. Now says this was, “not a bright thing to do” and now feels that he has “alienated” his wife who is now “hurt by the chain of events”.

[Dr Y] further wrote: “When asked who he trusts to make decisions on his behalf – he reports “just [JBU]” (his wife) and when asked if could make his decision again he would choose [JBU] again”.

[KNU] reports there is coming up to be a “monumental shit fight”. Reports “they were pretty forceful” yesterday in getting him to sign.

[Dr Y] wrote [KNU]: “Gave comprehensive description of his assets and worth (alone) without [JBU]”.

Reiterated in front of daughter [TZG] and wife: [KNU] says he is unhappy ([Dr Y]’s emphasis) that he signed the documentation yesterday that he did not agree with the decision that he made.

We (aged care team) have stated that [KNU] should get a solicitor and sign documentation alone. [KNU] stated again that he would do this again with his wife [JBU].

…

Seen by [Dr Z] again. He was asked to review [KNU] as he is informed that daughter and family members other than his wife have arranged for a solicitor to attend yesterday (without [Dr Z]’s knowledge) and have patient rescind POA and Guardianship. [Dr Z] then confirmed [KNU]’s capacity by asking him a number of questions.

He asked [KNU] “what is the plan after discharge”, reply “to get to a facility temporarily in [regional NSW]”.

[KNU] agreed he is still happy for this to proceed.

…

When asked what occurred yesterday [KNU] reported, “They have all seemed to have cooked up this scenario”. ([KNU]) He is aware a solicitor attended and that he rescinded his POA and Guardianship but said, “in view of events I don’t think that was a wise thing to do” … “I did understand but they backed it up with a lot of verbiage … there was more afoot then I suspected”. [KNU] stated, “they were pretty forceful yesterday”.

When asked if he is happy with his decision, he stated “no”.

[Dr Z] asked who he would trust as POA and Guardian and he stated “my wife [JBU]”.

[KNU] again correctly stated his assets which he said were “for security” for expenses such as food, entertainment and “a great need for care in future… I am on the cusp of”.

Following this discussion [JBU] arrived as did [TZG]. [Dr Z] advised them that he will no longer accept family squabbles being played out in hospital, and explained he feels [KNU] currently has capacity to decide his discharge destination and that he has consistently said he wishes to continue with the plan for discharge to [regional NSW] to an aged care facility. [Dr Z] then informed [Dr X] (Aged Care Head of Department) of developments.

4. KNU then, in August 2014, appointed JBU as his guardian and enduring attorney, with others as alternate appointees;

5. On 12 February 2018, after his discharge from aged care, he appointed TZG as his enduring guardian and enduring attorney and revoked the earlier documents; and

6. On 22 October 2018, whilst these proceedings were on foot and four weeks prior to the hearing, he revoked the appointments of TZG and appointed KHA as his enduring guardian and enduring attorney.

10. After TZG removed KNU from residential aged care in December 2017, JBU applied for the appointment of a guardian for KNU.

11. Once she became aware of the enduring appointments KNU made appointing TZG on 12 February 2018, JBU applied to have both of the documents reviewed, on the basis that she alleged that KNU did not have the capacity to understand those documents when they were made by him.

12. Both KNU and JBU were granted leave to be represented in the proceedings.

13. The applications were case managed at length by the Tribunal, partly because of the significant number of summonses sought by KNU and JBU, and also because KNU’s capacity was very much in issue between the parties.

14. In May 2018, the Tribunal noted an agreement at a directions hearing for KNU to be assessed by Professor W, a geriatrician, to assist the Tribunal by providing evidence about KNU’s diagnosed medical conditions and capacity to understand and execute enduring documents. Whilst it is but one example, it is reflective of the conflict between the parties in this matter that they were unable to meet their agreement to provide a joint letter of instruction to Professor W. Notwithstanding this, KNU was examined by Professor W, and three reports were prepared as a consequence of two consultations.

15. In addition to somewhat infrequent visits to his General Practitioner, KNU had also consulted Professor V, a geriatrician in regional NSW, for treatment. Later, he was examined by Professor U, a psychogeriatrician, who was asked to prepare a report to assist KNU’s then solicitors to ensure that he had the capacity to execute enduring documents in May 2018. That report reached only draft stage and KNU did not execute contemporaneous enduring documents. Whilst Professor U’s file arising from those instructions were produced to the Tribunal under summons issued by JBU, they were not disclosed, after a claim of legal professional privilege was made by KNU and the release of the documents was not pursued by JBU at the hearing.

The Hearing

16. At the end of these Reasons for Decision are lists of the witnesses who attended the hearing. [Appendix removed for publication.]

17. The matters proceeded to hearing before us over two days in November and December 2018.

18. On the first day of hearing, JBU sought leave to withdraw her application for a guardianship order; as she sought the making of a guardianship order on the application she had made for the Tribunal to review the enduring guardianship appointment made by KNU in any event. We were satisfied that this was the just, quick and cheap way to proceed. No objection was taken by any other party. On that basis, we dismissed the guardianship application.

19. When the applications were initially made, JBU was asking the Tribunal to review the appointments made by KNU, appointing TZG, in February 2018. As those appointments were revoked and new documents were executed appointing KHA to those roles some four weeks prior to the hearing, JBU asked us to treat the applications as applications for review of the later documents. Each of the other relevant parties told us that they understood that to be what was sought by JBU and agreed that they were not prejudiced by us proceeding on that basis. We did so.

20. If we proceeded to review the appointment of an enduring attorney made by KNU, JBU asked the Tribunal to appoint a financial manager for him.

21. We were not asked to review the revocation of the appointments of TZG, meaning she was no longer KNU’s enduring guardian or attorney. With her consent, we removed her as a party and noted that KHA is now a party, although TZG remained in the hearing and gave evidence as required.

What did the Tribunal have to decide?

The legal framework

22. The Tribunal’s jurisdiction in relation to the review of an enduring guardianship appointment is set out in ss 6K to 6MA of the Guardianship Act 1987 (NSW). Section 6J of the Guardianship Act provides that the Tribunal must at the request of any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the appointor, review the appointment of an enduring guardian.

23. On reviewing the appointment of an enduring guardian, the Tribunal may revoke the appointment or confirm the appointment, with or without varying the functions of the guardian: s 6K(1) of the Guardianship Act. The Tribunal must not revoke the appointment unless the enduring guardian requested the revocation, or it is satisfied that it is in the best interests of the appointor that the appointment be revoked: s 6K(2) of the Guardianship Act.

24. If the Tribunal revokes the appointment, it may proceed as if an application for guardianship, financial management or both has been made: s 6K(3) of the Guardianship Act.

25. The Tribunal’s jurisdiction in relation to the review of the making of powers of attorney is set out in Div 4 of Pt 5 of the Powers of Attorney Act 2003 (NSW) (POA Act).

26. The Tribunal may, on the application of an interested person, decide to review the making of a reviewable power of attorney: s 36(1) of the POA Act.

27. When reviewing the making of a power of attorney, the Tribunal may make an order declaring that the principal either did or did not have the mental capacity to make a valid power of attorney at the relevant time. If the Tribunal is satisfied the principal did not have the capacity necessary to make the power of attorney, the Tribunal may declare the power of attorney to be invalid. The Tribunal may also make an order that the power of attorney is invalid for some other reason, such as where the principal was induced to make the power of attorney by dishonesty or undue influence.

28. In the alternative, the Tribunal may decide not to make any orders in respect of the review and, in that event, may treat the application as an application for a financial management order under Pt 3A of the Guardianship Act “if it considers it appropriate in all the circumstances to do so”: s 37(1) of the POA Act. This may be appropriate if there are concerns about the making of a power of attorney but to revoke the instrument would leave the principal without necessary assistance in managing their finances.

29. In conducting its enquiries, the welfare and interests of KNU are the Tribunal’s paramount consideration.

The nature of KNU’s alleged cognitive impairment

30. The extensive medical reports provided to the Tribunal, in addition to other medical records produced under summons, indicate that KNU has had ongoing impairment of his cognition, to a variable extent, for an extended period.

31. However, the existence, nature and cause of that impairment is not consistently identified and diagnosed.

32. As a consequence, there is disagreement amongst KHA and TZG on the one hand and JBU on the other, regarding KNU’s medical diagnosis.

33. In June 2008, KNU was assessed by a neurologist Dr T, with corroborative history being given by JBU, and was given a diagnosis of dementia. He commenced medication (donepezil) for this and while it is unclear exactly how long he took the medication for, medical records provided to the Tribunal indicate that he was still taking it during the 2014 hospital admission mentioned above.

34. KHA and TZG do not agree with the diagnosis. They say it was made based on a misleading history, and that the issues at the time were more related to a mood disturbance caused by KNU’s living situation.

35. Prior to being placed in residential aged care in 2017, KNU had a prolonged admission to a public hospital in regional NSW with an infection and associated delirium.

36. Professor V has supported the diagnosis of dementia given by Dr T, since KNU had first consulted him in 2014. However, on his initial assessment, Professor W did not support a diagnosis of dementia. He only identified any cognitive decline on the second of the two occasions he examined KNU in 2018 and felt that it was unlikely to be dementia related. In his view it was, most likely, caused by depression. In November 2018, though, he was concerned enough by the decline to refer KNU back to his general practitioner for further assessment, despite the medico-legal nature of the consultation.

37. Whilst differentiating between the medical opinions as to the cause of KNU’s cognitive impairment has been important to the parties in preparation for the hearing, it is largely irrelevant to our determination of the applications, because the fact that KNU has a cognitive impairment now is not in issue between the parties, and for the reasons that follow.

Review of KNU’s enduring documents dated 22 October 2018

38. It is necessary to consider KNU’s capacity to understand the making of these enduring documents in the context of the medical history available to us, and the difficult dynamic within his family. We also needed to give preliminary consideration to the evidence in a broader context, in order to determine whether to proceed to review the enduring power of attorney.

Professor W’s evidence

39. At the hearing, Professor W gave evidence and was asked questions by KNU and JBU’s barristers.

40. His evidence was that he saw KNU in June and November 2018, to form the views expressed in his reports.

41. He noted a clinically significant decline in KNU’s cognitive function between those examinations. He opined that it was unusual to get that degree of decrease in cognitive function, in that time, due to dementia.

42. He acknowledged that he interviewed KNU in the company of KHA in November, and that during the consultation KHA and KNU discussed some differences of opinion about the matters in issue.

39. Professor W expressed, in his report dated 15 November 2018, the view that KNU was capable of understanding the appointment of an enduring guardian and enduring attorney.

40. Professor W also acknowledged, though, that this was not evidence that KNU actually understood the making of the documents on 22 October 2018. He said, of his assessment that KNU could understand the documents at their consultation on 15 November 2018, that he “would transfer that to October” as he had no reason to think KNU was “better or worse then”.

41. To meet Professor W’s other obligations, we heard his evidence first. He had some ability to observe KNU at the hearing in his interactions with the Tribunal, but not in the context of him being asked questions by the Tribunal members or others which might be likely to test KNU’s recall or awareness of his current situation. From what Professor W did observe of KNU at the hearing, he observed that it “validates to me that he does have a high level of cognitive function and does have a high level of capacity to understand a complex legal proceeding as (sic) this Tribunal hearing. He is the best witness, better than me, of his ability to understand things. It reinforces my belief that he does have that capacity.”

42. Indicative of the ability observed by Professor W, in our view, was a question later put by KNU to Professor W, where he asked the professor the following: “It was suggested that I might subject myself to a series of tests because of the differentiation between what you observed in me initially and what you observed in me at a later date. You said my condition, if you like, had deteriorated, so you suggested that I might subject myself to a couple of tests, which I haven’t done. I’d like to know what the basis for your suggestion was, in terms of the tests and what the tests should clinically reveal?” Whilst the professor responded in detail, it was the complexity of the question which was instructive as to KNU’s ability to form and present complex thoughts evidenced by this part of the exchange.

43. Later, in questioning by counsel for JBU, Professor W agreed that KNU was likely to fluctuate in his mental capacity, the professor responded “good days and bad days correct. 100% that is true”.

44. Whilst we have no reason to question Professor W’s opinion as to KNU’s ability to understand the nature and effect of making enduring documents on the day he was interviewed by him on 15 November 2018, Professor W did not, in fact, take KNU through each of the issues one might be expected to consider when assessing capacity to make those documents. His report in May contains no information about why KNU was wanting to make appointments at that time, why he had appointed who he had, or if he had made any previous appointments. No further detail regarding KNU’s thought processes on these issues were documented in his second report. Rather, Professor W accepted KNU’s ability to give a broad overview of each document as evidence of his ability to do so, despite KNU returning a Mini-mental state score of 19/30 and Addenbrooke’s Cognitive Examination Revised (ACER) score of 74/100. It is also relevant to understand the nature and effect of KNU’s cognitive decline, which was evident in his later responses to the Tribunal’s questions and those of JBU’s counsel.

KNU’s evidence

49. As indicated by Professor W, KNU was his own best witness when it comes to his level of function. Despite KNU’s ability to consider some issues at a complex level, and then formulate the question he put to Professor W referred to above, he was, contemporaneously, unable to recall or consider some quite simple issues surrounding his living arrangements and circumstances.

50. As evidenced by his responses to questions on the first day of the hearing, soon after Professor W’s evidence, KNU was unable to accurately respond to the following questions, where clear and cogent evidence was available to satisfy us that his answers were in error:

1. His address, although he could recall it after being given some time to consider it when asked again;

2. That there was a period in about 2016 when he did not have contact with KHA or TZG for extended periods (evidenced by a codicil to a will that was before us.);

3. When he signed the enduring documents dated 22 October 2018;

4. Who was present when that occurred;

5. That he signed documents other than the enduring guardianship appointment (he could not recall the two revocations or the enduring power of attorney and denied signing a document regarding his finances);

6. Who asked his solicitor Ms McIntyre to prepare the documents he signed on 22 October 2018;

7. what his carers cost or how or when he is billed for them.

51. Despite being legally represented, KNU acknowledged that he would not know the phone numbers for his solicitors.

52. On questioning at the hearing, KNU was also unable to answer the following questions, even after being given the opportunity to consider each of them on more than one occasion:

1. The date, in that he felt that it was 22 September 2018. KNU was unable to rectify this after later being shown the enduring power of attorney he signed on 22 October 2018.

2. The names of KHA’s wife and each of their children, who live in the house with him, even though she and one of the children attended the hearing and had introduced themselves.

3. Where he was when he signed the enduring documents on 22 October 2018.

4. His general practitioner’s last name or place of business;

53. If he was making financial decisions like “mucking around in the market,” KNU said he would confer with KHA before doing so.

54. When KNU was shown the enduring power of attorney he signed on 22 October 2018, he displayed a keen interest in it, and wanted to examine it to “see if there were any exclusions” in the power he then realised he had given KHA. It was apparent that he had forgotten that KHA had the power before it was again shown to him. As a result of this lack of understanding that he had executed an enduring power of attorney appointing KHA, and where there was a general uncertainty about KNU’s ability to understand the nature and effect of such important documents, we decided that it was in his best interests to proceed with a review of the enduring power of attorney, whilst reviewing the enduring guardianship appointment.

55. We were satisfied from all of this evidence that KNU has a complex form of cognitive decline, which has affected him for some years, as evidenced by the conflicting diagnoses that he has received. We were also satisfied that it was likely to vary in effect and significance upon his functioning from time to time and depending on the task he was undertaking. In particular, however, it would affect his ability to understand the nature and effect of making an enduring power of attorney and giving the power of enduring guardianship, which are complex legal issues.

56. Given that, the evidence of what was done to establish KNU’s ability to understand the nature and effect of the enduring documents he executed on 22 October 2018 became the most important evidence which could be available to us, to establish whether KNU did, in fact, understand them at the time they were executed.

Examination of the circumstances surrounding the making of KNU’s enduring documents on 22 October 2018

57. One complicating factor in enquiring into this issue was that the documents executed on 22 October 2018 were prepared and witnessed by Ms Anthea McIntyre, the solicitor representing KNU in these proceedings, although Mr Kirby of counsel was also instructed.

58. It is not appropriate for a legal practitioner to represent the person whose enduring documents they have witnessed in the Tribunal, where the person’s capacity to understand the making of those documents is in issue. The practice guideline issued by the Tribunal in relation to representation of parties in this Division makes this plain, where it states:

28.   A legal practitioner cannot represent a party in proceedings in which the legal practitioner will also be a material witness. This may arise, for example, where a legal practitioner has witnessed the execution of an enduring power of attorney and the issue in dispute is whether the principal had the requisite capacity to execute that document. Legal practitioners are prohibited from acting where they are or may be a witness in proceedings.

59. The corollary to this is that preparing and witnessing new enduring documents for a client they represent during proceedings in the Tribunal is also likely to complicate the proceedings and unlikely to be in their client’s interests, as it will likely be necessary that they then cease acting in the proceedings.

60. Further, where a legal practitioner is instructed to prepare new enduring documents for a client, whilst proceedings are underway in the Tribunal and the client’s capacity to understand such documents is directly in issue, it should be anticipated that their process of preparing and witnessing the documents will be closely scrutinised.

61. Here, apparently to circumvent some of those concerns, Ms McIntyre arranged to meet with KNU to execute the documents in the presence of another legal practitioner retained by KNU in his Family Court proceedings, WX. WX prepared a statutory declaration about what he observed when he attended with Ms McIntyre on KNU, in part to observe and bear witness to the interactions they had regarding KNU’s understanding of the documents before they were executed. That statutory declaration was forwarded to the Tribunal, and the other parties by Ms McIntyre, shortly prior to the hearing.

62. Cognisant of r 27 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), we raised with the parties the potential for the Tribunal to consider whether to revoke leave for KNU to be represented by Ms McIntyre at the hearing. Clearly, doing so was likely to lead to an adjournment and significant expense and delay to, at least, KNU and JBU, who were represented by solicitors and counsel.

63. Mr Kirby, for KNU, initially submitted that there would be no need for Ms McIntyre give evidence. He said that WX was present and could give evidence of what occurred and noted the potential disadvantages to the parties if the potentially conflicted position Ms McIntyre put herself in caused the matter not to proceed.

64. Ms Coulton of counsel, for JBU, did not submit that Ms McIntyre’s leave to represent KNU should be revoked.

65. On that basis, we did not proceed to consider revoking Ms McIntyre’s leave and took evidence from WX. Unfortunately, even then, we were unaware that Ms McIntyre would later assert that WX’s notes of the process she engaged in with KNU in witnessing his enduring documents on 22 October 2018 were inaccurate. We will come back to that issue later.

What transpired on 22 October 2018?

WX’s evidence

66. WX told the Tribunal that, whilst his professional practice did not include the preparation or witnessing of enduring documents, he was aware of the documents promulgated by the New South Wales Law Society headed “When a client’s mental capacity is in doubt” and the “Guidelines for solicitors preparing an enduring power of attorney”. WX understood the general nature and effect of the recommendations contained in those documents and felt that Ms McIntyre complied with them in her conduct of the meeting with KNU on 22 October 2018. WX made contemporaneous notes of what he observed in that meeting, with a view to the potential for him to be a witness to the process. He recorded his notes, not as a transcript of what was said but doing his best to record the words used. He prepared his statutory declaration from his notes, knowing that what was said would be “scrutinised heavily.” He specifically recorded the exact times the discussions about the enduring documents and the revocation of the earlier appointments commenced and ended, a total period of 22 minutes.

67. WX had been present at the hearing when KNU gave evidence to the Tribunal as referred to above, whereby KNU showed significant impairment in his memory. He did not feel that was consistent with KNU’s presentation on 22 October 2018 and attributed that to conversations he assumed KNU had had relating to the enduring documents with others, prior to that meeting.

68. WX felt that Ms McIntyre had engaged in asking KNU “open” questions (that is questions which do not, in themselves, indicate the answer) about the enduring documents, to establish his understanding of them. The questions he actually recorded, though, and the process he recorded observing Ms McIntyre following, were in no way reflective of open questions being asked, or a thorough and effective process of establishing that KNU understood the documents being followed. With respect to WX, it was apparent that he was not entirely familiar with the concept of what constitutes an open question. Little turns upon this, save as shall be referred to in relation to submissions made for KNU later.

69. In relation to the enduring power of attorney, WX's evidence was that the conversation between Ms McIntyre and KNU transpired thus:

Anthea said to [KNU]: “[TZG] is really stressed. She’d preferred not to be your guardian and attorney. [JBU] is putting pressure on her.” [KNU] said: “She doesn't want the flack”. Anthea said: “So we need to think of an alternative”. At this point unprompted [KNU] said: “I'll appoint [KHA]”. Anthea said: “It's who you decide [KNU]. Let me explain the roles and make sure you are comfortable with it. It would give [KHA] power to manage your financial and legal decisions. [KHA] would be required by law to act in your best interests. He could take your funds. Do you trust he would act in your best interests? [KNU] said: “Yes”. Anthea said: “Why would you trust him?” [KNU] said: “He’s my son. He’s never done anything questionable.”

Anthea said: “Do you understand that if you appoint [KHA] as your attorney he will have significant powers over your money? You are aware of the powers which [JBU] had when she was your attorney?” [KNU] said: “Yes it's a powerful instrument. I don't think [KHA] would do the wrong thing.”

70. Subsequently, WX noted that Ms McIntyre produced the enduring power of attorney she had pre-prepared for KNU to consider. After she took KNU through the document, WX says that Ms McIntyre continued with the following conversation with KNU:

“This is an enduring Power of Attorney,” and went on to say “The power will continue even if you have capacity (sic). Once you lose capacity then you cannot waive this. No one can use this document to make medical and accommodation decisions for you. Do you want to appoint your son?” [KNU] said: “[KHA].” Anthea said: “He can do anything apart from vote or make a will for you. You are giving this with the intention that it continues if you lack capacity. He can reimburse himself for out-of-pocket expenses”. At this point [KNU] interrupted and said: “Right”. Anthea said: “If he wishes to get professional advice and he pays for it personally then he can reimburse himself from your funds. Is that what you would like?” [KNU] said: “Yes” and he nodded.

71. WX recorded that KNU then read the document in silence and later executed it.

72. We will not quote verbatim the process WX says Ms McIntyre followed in relation to the enduring guardianship appointment. It was, he says, similar to that recorded in relation to the enduring power of attorney, in that it was a process of Ms McIntyre making long directive comments to KNU to which he was required to or in fact gave limited responses. It is particularly unnecessary to repeat that evidence at length because Ms McIntyre later acknowledged that if she had in fact followed the process described by WX it would have been insufficient to properly ascertain that KNU understood documents he executed.

73. After WX’s evidence, we were satisfied we needed to hear from Ms McIntyre.

Ms McIntyre’s evidence

74. Ms McIntyre gave evidence after WX about the preparation of the enduring documents on 22 October 2018. Unfortunately, she had not brought her notes, taken at the time of that meeting, to the hearing. It was also only part way into her evidence that she told us that she disagreed with the record WX had made of what occurred at that meeting. On that basis, her evidence commenced on the first day of the hearing and concluded on the second, after she had produced a statutory declaration to the Tribunal and attached various notes she said were relevant to the matter.

75. Ms McIntyre acknowledged that she prepared the relevant documents on the instructions of TZG, without discussing them with KNU. She did not show them to KNU until she felt that she had established that the documents she had pre-prepared coincided with the instructions of KNU, at their meeting on 22 October 2018.

76. She observed WX taking notes of her conversations with KNU. She had read WX’s statutory declaration and submitted it as his evidence to the Tribunal.

77. Initially, in evidence, she said that she agreed with it and said it was an accurate reflection of what was said on the day, but when asked about whether she had complied with the Law Society’s guidelines about asking open questions and asked where in WX’s statutory declaration it was reflected that she had asked such questions, she told us, for the first time, that WX’s notes did not reflect what she said “to a T” and that she was concerned that WX’s statutory declaration did not “accurately record the conversation”. She said, on the first day of her evidence, that she took some “brief notes” at the time and later created file notes. She acknowledged that WX was in a better position to make contemporaneous notes of what was said than she was.

78. Ms McIntyre said that she prepares “about 400” such documents a year and that she has, as a result, developed a standard practice in asking questions.

79. She felt that KNU’s documents were comparatively simple, in comparison to many of her other clients. Notwithstanding that, in the circumstances, she felt that she was particularly careful in her meeting with KNU on 22 October 2018.

80. On the first day of hearing, giving evidence of what occurred without the benefit of her notes; she recalled starting the relevant part of the conversation by asking KNU if he knew what a power of attorney is. She said that, in reply, KNU said that an attorney may “Make financial decisions for me. They look after my money.”

81. When she asked what an enduring guardian would do, she said that KNU responded that they “make medical decisions for me and dental decisions and look after my care and where I live”. Ms McIntyre said that KNU was “super sharp that day” and said that she was shocked by the lapses in memory demonstrated by the evidence KNU gave at the hearing, referred to above.

82. She recalled asking KNU what an attorney can do and recalled that he said they can “spend my money and they can access my bank accounts”. She said she then asked KNU if she could tell him some other things an attorney could do, to make sure he understood the full extent of the role and proceeded to do so in detail. She said that he nodded in agreement and said in response to being asked who he would like to appoint that he would like to appoint KHA.

83. Ms McIntyre recalled that she then asked KNU whether he understood that this would give KHA “a lot of power over him” and he responded, “Yes”. She says she asked: “Do you trust [KHA]?” and KNU responded: “Yes, he is my son.” She said she asked: “Do you have any concern at all about [KHA] and about [KHA] having that role and having that power over you?” and KNU replied: “No, not at all, or words to that effect.”

84. She said she then gave KNU the enduring power of attorney, summarised what she felt were the relevant information sections and read the operative sections whilst KNU was nodding. He then read it. She said she then asked whether he had any questions and he said “no.” She asked whether the document reflected his wishes and he said “Yes.” He signed and she then witnessed his signature on the document.

74. In relation to the enduring guardianship appointment Ms McIntyre said that she satisfied herself about KNU’s understanding of this document using similar ‘open ended questions’ in a similar process to that she engaged in with the power of attorney, with a particular focus on the sections relating to end of life decision making in the document. In response to her questions about the powers KNU was giving his guardian about that issue, she recalled KNU saying “give me the heave ho – I don’t want to be a geri”.

75. She then read that document, which she had pre-prepared, and asked if that reflected his wishes. He said “yes.” She said she was completely satisfied with his responses.

76. In questioning from the Tribunal, she recalled pointing out the enduring nature of the documents and that he could not revoke them if he lost capacity.

77. She felt that there was nothing else she could do to ensure that KNU understood the documents.

78. One aspect of this evidence, which posed a difficulty for Ms McIntyre’s position, was that even this discourse would be insufficient in the circumstances for her to satisfy herself that KNU sufficiently understood the nature and effect of the enduring documents he executed on 22 October 2018.

79. As she had provided the evidence above in response to questions asked by Mr Kirby, we gave her the opportunity to again tell us what occurred, in case she had left anything out. She was satisfied she had not.

80. We then questioned Ms McIntyre. She agreed that she did not ask KNU whether he felt he could manage his own money.

81. We put it to Ms McIntyre that she had not asked KNU when he would like the enduring power of attorney to commence. Her response was that she did, despite not mentioning it before.

82. When asked why she didn’t ask to speak to KNU to take instructions to prepare the documents before taking pre-prepared documents to the meeting on 22 October 2018. She mentioned a potential difficulty with KNU hearing her over the phone but acknowledged not having attempted to speak to him to confirm this.

83. The hearing was then adjourned, due to the time which had been taken working through the issues which arose late in the process and to allow Ms McIntyre to present the Tribunal and other parties with a copy of her notes of her meeting with KNU on 22 October 2018.

84. By the time we resumed, Ms McIntyre had ceased representing KNU in the proceedings. Mr Kirby continued his representation of KNU under a direct briefing arrangement.

85. Ms McIntyre provided a statutory declaration regarding the conduct of the meeting with KNU on 22 October 2018, together with some attached handwritten notes and a typescript. She was only able to provide one page of the notes actually taken by her during the meeting, being the one she felt was most legible. The other notes were prepared by her shortly after the meeting, from the original notes, and the originals apparently destroyed.

86. It is unnecessary for us to deal in detail with all of the notes provided by Ms McIntyre. It will suffice to record that they are reasonably similar to the notes taken by WX. Despite Ms McIntyre noting that, in her view, “[she] was careful to ask open-ended questions throughout the meeting,” she records having done so to a reasonably limited extent. For example, in relation to questioning of KNU about the enduring power of attorney he executed, she records the following conversation:

A - Do you know what a power an attorney is?

[KNU] - Yes. They can manage my legal and financial affairs. Pay my bills and use money.

A - Yes that's right. An attorney has power to manage your legal and financial affairs including buying and selling real estate, dealing with shares, operating bank accounts, paying your bills and spending money on your behalf.

A - Do you know what an enduring power of attorney means?

[KNU] - It continues even if I lose capacity.

A - Yes, that's right the appointment endures beyond loss of capacity. If you lose capacity, you cannot revoke the appointment you can only revoke a power of attorney if you have capacity to do so.

[KNU] – Right.

A - Do you want to give this power to someone?

[KNU] - Yes, to my son [KHA].

A - [KHA] would then be able to manage your financial and legal affairs.

[KNU] – Yes

A - This will mean that [KHA] will have access to your money, shares and assets. He would have power to sell your houses and access and spend your money. He would be required by law to act in your best interests. Do you trust [KHA]?

[KNU] - Yes, he’s my son.

A - Do you trust without reservation that he would act in your best interests?

[KNU] - Yes I don't think he would do anything wrong.

Our findings about the making of KNU’s enduring documents on 22 October 2018

98. Even the questions reflected by this exchange, which were quite consistent with the types of questions Ms McIntyre’s notes recorded that she asked in relation to the enduring guardianship appointment made by KNU, only examine his ability to respond to the questions he is being asked in a way which demonstrates a clear and rational understanding of the power he is giving to a limited extent. Whilst the written notes made by Ms McIntyre reflect some open questions it is clear that, even on that record, she then quickly proceeds to making more directive comments to KNU, to which he only needed to give a limited response and was, due to the nature of the question, prompted to do so in a certain way.

99. For a client where a legal practitioner had no reason to hold concerns that they may have impaired cognitive ability, the questions Ms McIntyre records having asked may have been barely sufficient when executing the documents. This may particularly be the case in circumstances where the practitioner had other discussions with the client, where they discussed and examined the client's understanding of the documents. That is not the case here. Ms McIntyre did not prepare any of KNU’s earlier enduring documents. She did not give evidence of any other conversations on earlier occasions whereby she explained and/or tested KNU’s understanding of such documents.

100. In any event, we prefer the evidence of WX as to what was in fact discussed between Ms McIntyre and KNU in relation to the documents on 22 October 2018. WX was in a better position to take contemporaneous notes, as he was not party to the conversation. He was there to take notes and clearly understood the importance of doing so. His statutory declaration was also prepared from his original notes, as opposed to Ms McIntyre, who relied on a rewritten version without access to the originals. Whilst Mr Kirby submitted that WX’s clear lack of understanding of what constitutes an “open” question should lead us to find that Ms McIntyre's notes were more accurate, we find that WX’s record is more accurate because he was unlikely to be influenced in what he recorded by a predetermined view of the appropriate questions which should be asked. His careful note that Ms McIntyre took only 22 minutes to provide four previously unseen legal documents for KNU’s consideration, explain them, and ascertain that KNU understood them is also more consistent with the brief conversation he records observing.

101. In circumstances where Ms McIntyre:

1. prepared these documents on the instructions of TZG, rather than KNU;

2. commenced the discussion she had with KNU on the premise that there was a need for him to change his enduring documents due to TZG wanting to relinquish the roles she held;

3. in no way qualified KNU’s responses about the trust he placed in KHA, despite knowing of the allegations that he had imposed his will on KNU to be appointed as his enduring guardian and enduring attorney in 2014 and without exploring in any way what had changed since KNU had previously been estranged from KHA; and

4. failed to go beyond a rudimentary attempt at asking open questions to ensure that KNU understood not only the general nature and effect of the documents he was to execute but also the options which were available to him in relation to those documents, such as, in relation to the enduring power of attorney, when it might commence;

we are not satisfied that Ms McIntyre satisfactorily ensured that KNU sufficiently understood the nature and effect of the enduring guardianship and enduring power of attorney documents he executed on 22 October 2018.

102. For that reason, given the complex nature of his cognitive impairment and the insufficient process followed by Ms McIntyre, we are also not satisfied that KNU properly understood the enduring powers he executed on 22 October 2018.

The consequence of our findings about the making of KNU’s enduring documents on 22 October 2018

103. We decided that it was in KNU’s best interests to revoke the enduring guardianship appointment and considered whether it would be in his best interests to deal with the review as if an application for a guardianship order had been made.

104. We also proceeded to determine whether we should appoint a financial manager for KNU. Whilst we considered the possibility of making orders pursuant to s 36(3) POA Act, we decided that would not be in his best interests, so that he would not be left without the assistance of someone to manage his financial affairs and to ensure that there was appropriate oversight of the decisions made by any appointee.

Should the Tribunal proceed as though an application for a guardianship order had been made?

105. In deciding whether to proceed as though a guardianship application had been made, we noted that the Tribunal will only proceed to make a guardianship order if:

• KNU is someone for whom the Tribunal could make an order because he has a disability which restricts him in one or more major life activities to the extent that he requires supervision or social habilitation and is at least partially incapable of managing his person?

AND

• The Tribunal should make a guardianship order. The general principles recognise the importance of freedom of action, self-determination and independence, against which the Tribunal must balance protection from neglect, abuse and exploitation.

• The Tribunal considers all relevant factors, including those listed in s 14(2) of the Guardianship Act before exercising its discretion. These relate to the views of KNU and any spouse or carer, preserving family relationships, preserving cultural and linguistic environments and the practicability of services being provided in the absence of a guardianship order. Where relevant evidence of particular weight about these issues was available to us, or where different factors needed to be balanced, it is referred to below.

106. The unchallenged evidence establishes that KNU is settled in his accommodation with his son KHA, receives sufficient services to meet his needs and has unimpeded access to appropriate health care. There was no suggestion that this situation had required the use of any powers of enduring guardianship to establish or maintain. Rather, KNU receives the informal support of his children as and where required.

107. Against this, JBU suggested that we should go on to make a guardianship order, with the appointment of the Public Guardian, solely in relation to the function of making decisions about KNU’s access to others.

108. She has a different view than that expressed by KNU’s family about whether her relationship with him has totally broken down and feels that she is precluded from having contact with him, which might be remedied through the appointment of a guardian.

109. There are two reasons why we were not satisfied that this was sufficient reason for us to go on to consider the appointment of a guardian for KNU with the access function, even if we decided that the first limb of the test, in relation to capacity, had been established.

110. The first, and most significant reason was that there was no evidence that JBU had sought and been denied the opportunity to have contact with KNU. At the end of the first day of the hearing, we pointed out that this was likely to be a significant factor in our consideration but there was no evidence that JBU had actively sought to contact KNU, even in the three weeks before the hearing resumed. Similarly, there was no evidence that she has ever been prevented from doing so.

111. Ms Coulton, for JBU, also accepted without the need for formal evidence from the Public Guardian that the position commonly expressed by that office is that it will not make decisions for access where the subject person expresses a wish that this not occur. When asked whether he would like to have contact with JBU, KNU’s response was “[n]ot particularly, no.” Later, when speaking about his relationship with JBU, he said “there’s nothing there, it’s just a void”. He went on to say that he would be prepared to maintain cordial relations but indicated no desire to have contact with JBU.

112. Secondly, we were cognisant of the fact that KNU and JBU are engaged in proceedings in the Family Court, in addition to these proceedings which, as discussed above, have been conducted in an unfortunately combative way. There is also an allegation made on KNU’s behalf that he was assaulted by JBU at the Family Court in April 2018, which is denied by JBU.

113. We were satisfied that any future contact between KNU and JBU, if it was to occur, would only be in KNU’s best interests if it arose organically through the parties, rather than through a decision by a guardian.

114. We were not satisfied that we should treat the review application as if an application for a guardianship order had been made.

The Financial Management application

115. The questions we had to decide when proceeding to treat the review of KNU’s enduring power of attorney as a financial management application were:

• Is KNU incapable of managing his affairs? Evidence of how the person is actually managing their affairs is relevant. The Tribunal assesses the subjective circumstances of the person including the support available to them and their ability, within the bounds of that support, to make sound judgements.

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

• If so, who should be appointed financial manager?

Is KNU incapable of managing his affairs?

116. A person is not shown to be incapable of managing their financial affairs unless they are incapable of dealing, in a reasonably competent fashion, with their affairs and because of that lack of competence there is a real risk that either they may be disadvantaged in the conduct of such affairs or their money or property may be dissipated or lost.

117. KNU believes that he can manage his affairs. He believes that he retains the capacity to deal with shares and other investments. Notwithstanding that, after his evidence referred to above, Mr Kirby on his behalf conceded that KNU does not in fact retain that ability, due to the decrease in his executive function. That concession was appropriately made.

118. Similarly, KHA’s evidence on this issue was that, as attorney, he would not let KNU manage his finances as there would be a risk in doing so.

119. None of the other witnesses at the hearing who spoke to this issue suggested that KNU can still manage his finances. It was acknowledged by Mr Kirby on his behalf that he has not done so for some time.

120. Notwithstanding that we accept that KNU may have good and bad days in relation to his memory and ability to understand his financial position, he is at significant risk in making financial decisions when he is not always in a position to retain and process information about his finances and decisions he has previously made.

121. We were satisfied that KNU is incapable of managing his financial affairs.

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

122. KNU has significant financial resources and repeatedly expressed at the hearing an interest in share trading. He was unable to understand in any meaningful detail the nature and expense of the services he currently receives at home. For the reasons above, we were not satisfied that the enduring power of attorney he made on 22 October 2018 was made with his full understanding.

123. There is also the point, validly made by the applicant, that KNU’s financial position is being rapidly diminished by the cost of the level of care being provided for him at home. When asked about this issue, KHA indicated that, if necessary, he had the capacity and was willing to fund KNU’s ongoing care from his own resources. This position, expressed by a loving son, is unsurprising. It does indicate, though, the potential complexities of the position KNU finds himself in, even absent the further complication of the Family Court proceedings in which he is involved.

124. For those reasons, we were satisfied that there is a need to appoint someone to manage KNU’s affairs and it is in his best interests that an order be made.

Who should be appointed financial manager?

125. When 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. Preference is given to the appointment of a suitable person where that is appropriate, before the appointment of the NSW Trustee and Guardian.

126. 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 Protective Commissioner and a family member as the manager of an estate.

127. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.

128. On the side of the 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.

129. 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.

130. In the event that we decided to appoint a financial manager, KHA sought appointment. That this would be consistent with KNU’s wishes was made clear by Mr Kirby and was evidenced by comments made by KNU on 22 October 2018 and in the hearing.

131. KHA gave evidence in relation to his extensive experience in financial management. In the short period of his appointment, he had collated information in relation to his father’s financial affairs and was able to demonstrate a sound understanding of his father’s assets, income and expenditure. His capacity to undertake the role was not seriously challenged by the applicant.

132. However, his appropriateness for appointment was challenged on four broad bases by JBU.

133. The first was an assertion by JBU that he had not done enough to investigate the actions of TZG as attorney, or to call in cash belonging to her father that she was storing on his behalf. KHA gave a thorough response to this issue, in which he made it clear that he understood that TZG had expended greater sums from her personal funds on KNU’s behalf than she presently held for him and that, whilst he was undertaking an accounting of this issue to satisfy himself of the true position, he was satisfied for the time being. Given the recency of his appointment as attorney, this seemed a reasonable approach to us.

125. The second was an allegation that KHA was taking insufficient care as to his father’s finances, due to the level of expenditure he was authorising for services for KNU, as attorney, on an ongoing basis. This is a somewhat vexed issue. KNU clearly wishes to live at home, and it is apparent that his placement into aged care by JBU was a substantial trigger for the conflict now evident in this family. In those circumstances, where he can afford it, it is unsurprising that KHA may adopt the position he has in relation to the ongoing expense of in home services. In doing so, though, he is factoring in his willingness and capacity to continue to fund his father’s services personally, if necessary, into the future. Whilst this is a gracious gesture, it is not without its risks to KNU, if either his son’s generosity or capacity to pay these expenses in the future was to change. We are satisfied, though, that as any actions of a private financial manager are subject to the oversight and approval of the NSW Trustee and Guardian, this would provide appropriate independent review of the arrangements for these ongoing expenses and sufficiently ameliorate any attendant risk to KNU’s welfare and interests.

126. The third challenge to KHA’s appropriateness for appointment centred on his unwillingness to acknowledge that his father has dementia, when asked about this issue by Ms Coulton at the hearing. Certainly, there may be a danger in appointing a financial manager who does not accept that the person for whom they are appointed is unable to manage their affairs. The risk, in those circumstances, is that they may take insufficient care in ensuring that the person is protected from making ongoing financial decisions that they do not understand, and which are not in their interests. Importantly, though, KHA did not say that his father can manage his own affairs. Rather, his responses to Ms Coulton simply indicated that he does not accept that his father has dementia. Given Professor W’s advice that KNU’s cognitive impairments are not caused by dementia, nothing turns upon KHA’s view about what the cause of his father’s inability to manage his finances is, provided he is willing to act protectively in managing those affairs if appointed. Where, again, he would only be appointed subject to the advice and directions of the NSW Trustee and Guardian, we were satisfied that there was no manifest risk in this regard.

127. The last challenge to KHA’s appropriateness for appointment was expressed on JBU’s behalf as being that his appointment would be likely to exacerbate the conflict in the family law proceedings and, we infer, that they might thereby be prolonged contrary to KNU’s best interests. There are a number of reasons why this submission bears no weight. Firstly, KNU does not have a case guardian in the family law proceedings. Even if one were to be appointed in the future, it would be a matter for the Family Court to be satisfied as to the person’s appropriateness to act in that role and to maintain oversight of that issue. In the absence of specific evidence that KHA’s past conduct was indicative of an inability to act appropriately in this role, if appointed by the Family Court, we were not satisfied that it should exclude him from appointment as financial manager for KNU.

128. We also considered the allegations made by KNU and recorded by hospital staff, regarding his appointment of KHA as an enduring guardian and attorney in 2014, and the suggestion that he had been pressured into doing so. Such an allegation is, of course, concerning. It may also be that KNU’s inability to recall such issues had an impact on his decision, expressed on 22 October 2018, to appoint KHA as his attorney. On balance, though, we found insufficient evidence to decide that there was inappropriate conduct on KHA’s part. The evidence indicates that KNU has been subjected to the influence of strong and disparate views between his children on the one hand, and JBU on the other, for a number of years. That this has occurred in the context of his cognitive decline only heightens the likelihood that his views have been affected from time to time, depending on the persons whose company he was in at the time they were expressed. Again, to the extent that there is an ongoing risk posed by this issue we are satisfied that it will be ameliorated by the oversight of the NSW Trustee and Guardian.

129. For the reasons stated above, we were was satisfied that KHA has the knowledge and experience to be a suitable person to be appointed as financial manager for KNU, subject to the authorities and directions of the NSW Trustee and 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: 16 April 2019