KXD

[2023] NSWCATGD 5

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KXD [2023] NSWCATGD 5

Hearing dates:

4 April 2023

Date of orders:

4 April 2023

Decision date:

04 April 2023

Jurisdiction:

Guardianship Division

Before:

S Barnes, Senior Member (Legal)
A M Matheson, Senior Member (Professional)
Emeritus Professor P J Foreman AM, General Member (Community)

Decision:

In relation to the enduring power of attorney made by KXD on 29 April 2021 which appointed TYD, EZD and KAD as attorney(s) the Tribunal determines, orders or declares:

not to carry out a review of the making and operation and effect of the enduring power of attorney.

The application for review of the appointment of an enduring guardian made by KXD 29 April 2021 is dismissed after hearing.

Catchwords:

REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – principal’s partner seeks the removal of one of the appointed attorneys – principal expressed clear wishes for all appointed attorneys to continue making decisions on her behalf – no evidence of mismanagement of the principal’s funds – no evidence that appointed attorneys are not acting in the principal’s best interests – decision not to carry out a review of the enduring power of attorney – no order made – application dismissed

REVIEW OF ENDURING GUARDIANSHIP – application to review an enduring guardianship appointment – principal diagnosed with early onset dementia – principal’s partner seeks revocation of the enduring guardianship appointment – decision to treat the application as an application for a guardianship order – whether a guardianship order should be made – whether the Tribunal should include a special condition in a guardianship order requiring the principal’s partner to be included in discussions about the principal’s welfare – no decisions to be made which cannot be made under existing appointment – finding that the principal’s partner is not suitable to be appointed as guardian – undue conflict of interest – not in the principal’s best interests that a guardianship order be made – appointment of enduring guardians confirmed – no orders made

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 6J(1)(b), 6K(2), 14, 14(2), 15(3), 17(1)(b), Pt 3A

Powers of Attorney Act 2003 (NSW), ss 35, 36, 36(1)-(2)

Cases Cited:

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

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Review of an Enduring Power of Attorney

KXD (the person)
QXJ (applicant)
EZD (attorney)
KAD (attorney)
TYD (attorney)
NSW Trustee and Guardian

002: Review of an Enduring Guardianship Appointment

KXD (the person)
QXJ (applicant)
TYD (carer, enduring guardian)
KAD (enduring guardian)
EZD (enduring guardian)
Public Guardian
NSW Trustee and Guardian

Representation:

Separate representative for KXD: B Fogarty, barrister

Counsel for TYD: L Hammond

Solicitor/s for TYD: S Ougham, Skinner Associates

File Number(s):

NCAT 2023/00015633

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

REVIEW OF ENDURING POWER OF ATTORNEY AND REVIEW OF AN ENDURING GUARDIAN APPOINTMENT

What the Tribunal decided

1. The Tribunal decided, under s 36(1) of the Powers of Attorney Act 2003 (NSW) (the POA Act) not to carry out a review of the enduring power of attorney made by KXD on 29 April 2021 and dismissed that application on that basis.

2. The Tribunal reviewed the enduring guardianship appointment made by KXD on 29 April 2021. As explained below, the Tribunal dismissed the application after hearing.

Background

3. KXD is 58 years old. She is reported to have been diagnosed with early onset dementia in 2019 and to now have severe Alzheimer’s dementia. She has three sisters, TYD who lives in regional NSW, EZD who lives in regional NSW and KAD who lives in regional NSW.

4. Since 6 January 2023 KXD has lived with TYD. Previously she lived in her own home. It is reported that QXJ, who claims to be KXD’s partner, also lived in her home, although the circumstances in which he did so are disputed.

5. On 29 April 2021 KXD executed an enduring power of attorney (the EPOA) and an enduring guardianship (EG). She appointed her three sisters jointly and severally as her attorneys. She also appointed her three sisters jointly and severally as her enduring guardians. In addition, she appointed her niece, Ms Z, as her substitute enduring guardian. All the appointees accepted their appointment.

6. In the EPOA, KXD placed what were described as conditions and/or limitations on the authority of her attorneys as follows:

“1.    The cars, motorbikes and all items associated with the cars and motorbikes, remain the property of [QXJ].

2.    All ‘general use’ household items such as arm chairs, refrigerator, washing machine and utensils, are for the use of [QXJ].

3.    It is my wish/desire/expectation that [QXJ] is included in discussions regarding my welfare, well-being.”

7. There were no equivalent provisions in the EG.

8. On 16 January 2023, QXJ lodged applications for review of the EPOA and the EG appointment. On 16 February 2023 the Tribunal ordered that KXD should be separately represented. Ben Fogarty, barrister was appointed separate representative.

9. TYD’s solicitor sought leave to represent her. On 7 March 2023 the Tribunal ordered that each of QXJ and TYD were allowed to be legally represented in relation to both applications. TYD was represented by Ms Susan Ougham of Skinner Associates and Mr Luke Hammond of Counsel.

10. QXJ did not engage a legal representative. He participated in the hearing with the informal assistance of Fr Y, Anglican rector in regional NSW, who supported QXJ’s application.

11. The matters were listed for hearing together in Wagga Wagga on 4 April 2023. The hearing was conducted by video and telephone link as none of the participants attended in person.

The hearing

12. At the end of these Reasons for Decision is a list of the participants in the hearing. [Appendix removed for publication.] KXD participated and expressed her views.

Settlement

13. The Tribunal may, where it considers appropriate, use resolution processes to bring the parties to a settlement. There was some conflict in this matter and the Tribunal was unable to resolve the differences between the parties to reach agreement.

REVIEW OF THE EPOA

What did the Tribunal have to consider?

14. 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: the POA 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 of the POA Act; s 36(2).

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

• An order declaring that KXD did or did not have mental capacity to make a valid power of attorney; and/or

• An order declaring that the power of attorney is invalid (either in whole or in part).

16. The Tribunal may make a number of orders relating to the operation and effect of a power of attorney if it is satisfied:

• that it would be in the best interests of KXD to make the order; or

• that it would better reflect the wishes of KXD to make the order.

17. These orders include:

• An order varying a term of, or a power conferred by, the power of attorney;

• An order removing a person from office as attorney;

• An order appointing a substitute attorney to replace an attorney who has been removed from office or who otherwise vacates the office;

• An order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of power of attorney and appointing a substitute attorney to replace the attorney who vacated office;

• An order directing the attorney to:

1. Furnish accounts to the Tribunal or someone nominated by the Tribunal;

2. Lodge a copy of all records and accounts of dealings and transactions made under the power;

3. Requiring that the records and accounts be audited and that a copy of the report of the auditor be furnished to the Tribunal;

4. Submit a plan of financial management for approval;

• An order revoking all or part of the power of attorney;

• Such other orders as the Tribunal thinks fit.

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

Does QXJ have standing to make the application?

19. In submissions, both the separate representative and counsel for TYD conceded that it was open to the Tribunal to find that QXJ had standing to make the application to review the EPOA under s 35 of the POA Act and also standing to make the application to review the EG under s 6J(1)(b) of the Act.

20. We were satisfied that QXJ had standing to seek review of the EPOA as a person who has a proper interest in the proceedings. In this respect we had regard not only to his evidence as to his wish to protect the interests of KXD but also to the wishes of KXD at the time she executed the EPOA that her appointed attorneys should include QXJ in discussions regarding her welfare and well-being.

Should the Tribunal conduct the review of the EPOA?

21. 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.”

22. In his review application QXJ sought review of both the making and the operation and effect of the EPOA. However there was no evidence lodged to suggest that there was any basis on which to challenge the making of the EPOA or its operation and effect such as to warrant a review. In essence, QXJ sought review of the EPOA for the same reasons that he sought review of the EG.

23. In support of the proposition that the Tribunal should remove TYD (and possibly also her fellow attorneys) from the office of attorney, QXJ did not assert that the EPOA was invalid or raise any concerns as to the manner in which KXD’s finances have been managed by her attorneys.

24. Indeed in the EPOA review application QXJ did not seek any orders in relation to the making of the EPOA or indicate any current risks to KXD in relation to management of her finances. He expressly denied that her money was about to be spent or her assets sold or transferred in a way that was not in her best interests. He focused on the fact that KXD had moved from her home where he said that he lived and suggested that their relationship and communication had been compromised. QXJ claimed that there was a difference in how he and KXD’s sisters saw the changes in her mental state.

25. While QXJ sought the removal of an attorney from office and appointment of what he described as an ‘impartial person or body’ either alone or jointly, he provided no relevant evidence to support the application for review of the EPOA. At the hearing he expressed general concern about what he saw as TYD’s ‘aggressive manner’ and took issue generally with the manner in which she spoke to KXD. In contrast KXD’s consistent evidence as reported by the separate representative and at the hearing indicated no dissatisfaction with her relationship with TYD. She said that she was happy living with her sister and that she did not want to make any changes in this respect. She also indicated that she was happy for her sisters to continue to look after her money and that she did not want anyone other than her sisters as decision-makers. She volunteered that they loved her and that they would do that was best for her.

26. The evidence and allegations by QXJ provide no basis on which to review the EPOA. He did not dispute KXD’s evidence as to the steps taken to manage KXD’s financial affairs or suggest any deficiencies in this respect. Insofar as there is a suggestion in written submissions that the appointed attorneys and guardians have been acting in their best interests rather than the interests of KXD, there was no evidence to support this assertion in relation to the EPOA.

27. Mr Fogarty as separate representative and Mr Hammond, as counsel for TYD, submitted that the Tribunal should decide not to conduct a review in the absence of supporting evidence.

28. Neither before nor at the hearing did QXJ point to any matters that warranted review of the making or the operation and effect of the EPOA.

29. The Tribunal decided not to conduct a review of the enduring power of attorney.

REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT

Does QXJ have standing to make the application?

30. 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; the Act, s 6J(1)(b). It may also do so on its own motion.

31. Mr Fogarty submitted that QXJ did have a genuine concern for the welfare of KXD, even if this was disputed by the appointed attorneys and guardians. Mr Hammond conceded that it was open to the Tribunal to make such a finding. We understood that it appeared that KXD’s sisters may doubt the genuineness of QXJ’s concern for her welfare for reasons connected with a ‘real estate dispute’ and a difference of opinion as to whether he is in fact her spouse. According to Ms Ougham (solicitor for TYD) this dispute has been on foot since March 2022. It appears that it relates to disputed circumstances in relation to QXJ’s residence on KXD’s property and/or the fact that in May 2022 he lodged a caveat on the title to that property asserting an equitable interest under a constructive trust. TYD provided the Tribunal with a copy of an Occupation Certificate issued by the local council on 19 July 2019 in relation to a Colourbond shed on KXD’s property and a residential tenancy agreement in relation to the shed, driveway and carport/garage parking entered into between KXD and QXJ on 3 September 2021. However we understand that QXJ is in fact living in the home.

32. There was limited evidence in relation to the precise nature of the dispute and the relationship between QXJ and KXD. He makes bare assertions in that respect. It is neither necessary nor appropriate in the present proceedings to determine whether QXJ and KXD were in a genuine spousal relationship as he claims. We do note however that while he stated that they had been in such a relationship for some five years, in April 2021 KXD chose, at a time when she was living in her own home and her capacity is not disputed, to appoint her sisters as her enduring attorneys and enduring guardians. However QXJ expressed concern about KXD’s welfare in his evidence. We accepted that he had standing to make the application.

What did the Tribunal have to decide?

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

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

• proceed as if an application for a guardianship order or an application for a financial management order (or both) had been made; or

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

34. 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 KXD that the appointment be revoked.

35. The Tribunal may only proceed as if an application for guardianship or an application for financial management (or both) had been made if it considers it is in the best interests of KXD to do so.

QXJ’s evidence and submissions

36. In the application to review the EG appointment QXJ acknowledged that KXD has what he described as ‘younger onset dementia’. He claimed that he was her spouse and carer, that he had known her for 10 years and lived with her for a number of years prior to 6 January 2023.

37. QXJ sought review of the 2021 EG under which KXD’s three sisters were appointed as her enduring guardians. He claimed that he had made the application:

“to protect the interests of [KXD] in relation to her welfare, accommodation and liberty. It is clear that [KXD]'s medical state is deteriorating rendering her extremely vulnerable and in that state she has been removed from her own dwelling where her de facto partner also resides. She is in the dwelling owned by her sister [TYD], her liberty to continue the personal relationship with her partner has been compromised. Furthermore [TYD] has removed [KXD] from her home at a time when she is most vulnerable. [KXD] is now unable to communicate with her partner or any other person independent of [TYD]’s supervision. There are serious concerns for her immediate welfare. The unfamiliar environment given her dementia, will have a long term effect on her mental and physical wellbeing and her ultimate outcomes.”

38. In response to the question in the application form as to what attempts had been made to resolve these problems, QXJ referred to his attempts to contact KXD and what he saw as a lack of communication and an ‘intolerable’ loss of liberty and compromise of her relationship with him. He reported that he had engaged the services of a solicitor to protect his relationship with KXD.

39. In March 2022 QXJ gave TYD written notice that all future communications and correspondence in relation to his rights and conditions of occupancy and all other matters concerning the real property, goods and chattels, including what he described as his ‘right to free unencumbered enjoyment of that property’ to his solicitor and put her on notice that ‘any future interference with my property or my person will be defended at law’. In May 2022 he lodged a caveat on KXD’s property. It is not clear how this action was directed at resolving the perceived problems. Unsurprisingly QXJ and TYD have not been involved in joint discussions about KXD’s welfare and well-being since that time.

40. QXJ sought that the EG appointments should be revoked, and a guardianship order and a financial management order made. In a written submission it was suggested that it seemed that the exercise of the present appointment ‘was working in the best interests of the person who holds that appointment rather than the best interests of [KXD]’. This submission contended that the current exercise of the appointment was ‘directed at extinguishing the domestic and emotional relationship between [KXD] and her partner [QXJ]’.

41. In support of the application QXJ himself completed a health professional report form, despite not being a health professional. He was of the view that KXD’s dementia was mild and progressing slowly. In the EPOA application suggested that the matter was urgent because the current situation (that is, KXD living with her sister) may impact on her ability to return to her own familiar environment and ‘normal state of mind’. QXJ’s written and oral submissions suggested that KXD had been ‘very well in her own home’ and would be safe living there. He seemed to be of this view despite the evidence that her dementia has progressed significantly, and she is said by her GP to need continuous care and supervision. QXJ’s volunteer work at a church occupies three or four days a week.

38. QXJ did not accept that KXD’s condition had significantly deteriorated in the last one to two years. During the hearing he expressed surprise at the medical evidence (discussed below). He wanted to be one of the guardians or for the Public Guardian to take on this role. He wanted KXD to return to her former home. He acknowledged that he was paying rent under the residential tenancy agreement in relation to the shed but also that he was in fact living in the home.

39. QXJ highlighted an incident on 13 March 2023 when he said he found KXD walking alone on the street. He provided photographs of KXD hugging him. He expressed concern about whether she was being cared for properly by TYD and whether she was being prevented from having telephone contact with him.

Evidence and submissions from the EGs

44. TYD explained that as she lives in regional NSW, she has had primary day to day responsibility as enduring guardian. She and her sisters were appointed jointly and severally. She consults them on major issues.

45. Through her counsel TYD sought that the EG appointments should be confirmed or that the application should be dismissed. If the Tribunal was minded to make a guardianship order and/or a financial management order it was proposed that TYD should be appointed guardian. It was submitted that QXJ had a conflict of interest given his claim to an equitable interest in KXD’s property, that there was likely to be a genuine dispute about this and that hence he could not be appointed guardian or financial manager.

46. TYD disputed any suggestion that QXJ was KXD’s partner or de facto and suggested that it had been intended that he should live in the shed on her property as he had sold his own house. Contrary to QXJ’s view, she was of the view that KXD had only intended QXJ to live in the house while the shed was being built.

47. TYD provided the Tribunal with a copy of an Occupation Certificate issued by the local council on 19 July 2019 in relation to a Colourbond shed on KXD’s property and the residential tenancy agreement entered into on 3 September 2021 between KXD and QXJ in relation to the shed, driveway and carport/garage parking. This was intended to allow QXJ to occupy and live in the shed for which he paid rent of $160 per fortnight. He continues to reside in the house and is said not to be paying any other financial contribution. TYD’s evidence was that KXD was not happy about this.

48. It was not suggested that it was the role of the Tribunal in these proceedings to determine any dispute in this respect.

49. According to TYD, by mid-2021 she saw that KXD’s condition was deteriorating, that she was not taking all her medication and that her personal hygiene was not maintained. She and her sisters organised an ID bracelet and tracker and registered her as a vulnerable person.

50. According to TYD, she took her sister to see her doctor in December 2022 after she observed that she looked noticeably more dishevelled and very confused. She also became concerned that her sister was missing medication.

51. After discussions among the sisters, EZD and TYD made arrangements to move KXD into TYD’s home. They were of the view that she could not live by herself, as she was not looking after herself, was missing medications and had severe cognitive decline.

52. TYD elaborated on the care she provides her sister. On the one day a week she works in an office, her daughter or granddaughter stays with KXD. She reported that she was aware that as KXD’s condition continues to deteriorate there will come a time when she is no longer able to care for her at home. She and the other EGs are researching care facilities in regional NSW.

53. As to the incident on 13 March 2023 TYD reported that she allowed her sister to go for short walks when the tracker was on. She saw from the tracker that her sister had stopped walking and then that she was in a vehicle. TYD was just leaving her home to find her sister when QXJ and Fr Y pulled up with KXD in a car. QXJ hugged KXD several times and then left.

54. TYD is now of the view that it is no longer safe for her sister to walk by herself.

55. QXJ and TYD have differing views about communication issues. QXJ feels that KXD is being prevented from communicating with him. TYD’s evidence was that when QXJ tried to ring her sister, she either did not remember him or thought that he was a friend and said that she did not want to ring him back. According to TYD, from about the time of her diagnosis with dementia, her sister had said that she wanted her sisters to care for her. In recent times she was reported to have said that she did not want to live with ‘the man living in her house’.

56. EZD and KAD supported TYD’s evidence and reiterated their concern for KXD’s best interests and view that they were motivated to make decisions in her best interests.

KXD’s views

57. Bearing in mind the paramountcy of Ms Campton’s interests and welfare, it is important to have regard to her views of relevance to the application to review the EG. In pre-hearing submissions QXJ expressed concerns as to the extent to which KXD’s expressed views may be affected by the presence of TYD.

58. However this was addressed by the fact that in his capacity as separate representative, Mr Fogarty spoke with KXD by telephone call to a Legal Aid office in regional NSW. TYD was not present with her sister during this conversation. We accepted Mr Fogarty’s contemporaneous record of what was said.

59. Mr Fogarty reported that he explained his role and the applications. His view was that KXD’s understanding of what was happening was basic and superficial at best. He was of the impression that she was easily susceptible to suggestion from those around her and to emotional manipulation, whether intentional or unintentional. She had an awareness of her dementia, limited cognitive capacity and memory troubles.

60. According to Mr Fogarty, when discussing the hearing KXD did not appear to remember QXJ’s name until promoted. She said that they had a past relationship and that he wanted to live with her but that she did not want to live with him and had not seen him for a long time. She knew that he had been living in ‘one of her houses’. She minimised the length and nature of their relationship (which she described as ‘going out for a few weeks’ and to have been long over). She said she did not understand why he was going to the Tribunal. She told Mr Fogarty that her sister EZD had said that QXJ thought he would get a house if she went back and lived with him.

61. KXD also told Mr Fogarty that she did not want to be with QXJ. She was critical of Fr Y’s involvement in helping QXJ.

62. KXD was aware that she had been living with her sister for several months. She told Mr Fogarty that TYD had always looked after her and that she was in regular contact with her other two sisters who visit her. She said that she trusted her sisters 100%, that they would always do their best for her and that they had always looked after her. She said that she was happy living at TYD’s. TYD helped her with her medication and meals and made sure she was not left alone.

63. At the hearing KXD gave consistent oral evidence, reporting that she recalled giving her sisters the power to make decisions for her, that she was happy with their decision making and with living with TYD who takes care of her needs. She said that she does not want to live anywhere else.

64. KXD also agreed that she was happy for her sisters to continue making decisions for her about lifestyle and financial matters. She thought that they wanted to help her and to look after her, that they loved her and did what was best for her. She did not want anyone else to make decisions for her.

Medical evidence

65. In a report of 19 December 2022, Dr X, KXD’s GP, reported that KXD had moderately severe Alzheimer’s’ dementia diagnosed in 2019 which had ‘progressed significantly since then’. Her December 2022 Mini Mental State Examination score of 16/30 was said to indicate severe cognitive decline. Dr X expressed the opinion that she required ‘constant supervision and care’ and that it appeared that this would be best achieved by her living with her sister.

66. On 27 March 2023 Dr X prepared an up-to-date assessment. He explained that his report was based on having been KXD’s GP since early 2019 and previous 2019 assessments by a consultant neuropsychiatrist and a neuropsychologist and their subsequent follow up.

67. Dr X reported that KXD’s current disabilities include ‘severe’ Alzheimer's dementia which has been ‘progressive over the last five years’. The diagnosis had been confirmed after the 2019 neuropsychiatric and neuropsychological assessments. At that time KXD’s mini mental state examination score was 28/30. He reported the subsequent decline. On 12 December 2022 it was 16/20 and on 24 March 2023 it was 13/20. In addition, KXD’s most recent cognitive assessment on 24 March 2023 using the Addenbrooke’s Cognitive Examination revealed a total score of 25/100 which was said to indicate severe cognitive impairment.

68. Dr X was of the view that KXD had showed a significant decline since her formal psychiatric and neuropsychological assessments in 2019. He noted that she had particular issues in the domains of attention, memory, semantic fluency, language and visuospatial function.

69. KXD was also said to have depression which had improved with medication, hypertension which was currently stable as well as gastroesophageal reflux and osteoarthritis. In the past she had had gastric band erosion causing pneumoperitoneum which had improved and was under assessment by a gastrointestinal surgeon.

70. Dr X considered that given the progressive nature of KXD’s early onset Alzheimer's dementia and the low scores on her most recent capacity assessments, especially her poor attention, memory and recall, she does not have the capacity to make decisions about her lifestyle, including those relating to her welfare and wellbeing. He was also of the view that she was not capable of making her own personal decisions, making decisions about her finances or managing her affairs. He did not consider that another neuropsychiatric assessment was clinically warranted.

Orders sought

71. In essence QXJ wants the EG to be revoked and for the Tribunal to make a guardianship order and a financial management order. His aim is for KXD to return to live with him in her home (which he is presently occupying). Aspects of his submissions appear to suggest that he is of the view that as he claims to be her partner he should decide where she lives, despite the fact that she appointed her three sisters as her substitute decision-makers.

Revocation

72. We were not satisfied on the evidence before us that we should revoke the appointment of any of the appointed enduring guardians. None of the enduring guardians requested a revocation and we were not satisfied that it was in the best interests of KXD that their appointments, or any of their appointments, should be revoked: see the Act, s 6K(2).

73. Their appointment was joint and several and the appointed enduring guardians have made the practical decision that TYD, who lives in regional NSW, should have primary day to day decision-making responsibility for their sister. They support each other and KXD. She appointed them at a time when her capacity to do so was not disputed. She has consistently said that she wants her sisters to continue as her decision makers. She clearly trusts them.

74. While QXJ expressed a wish that KXD should return to living in her home, it was of concern that he appeared not to accept the expert medical evidence as to the impact of her dementia, the recent decline in her condition, and her need for need for constant supervision and care.

75. The evidence did not establish actions or inactions on the part of any of the enduring guardians that were such that we could be satisfied that they were not acting in accordance with the principles in s 4 of the Act, including giving paramountcy to KXD’s interests and welfare.

76. The 13 March 2023 incident occurred in circumstances where TYD was, consistent with s 4 of the Act, trying to restrict her sister’s freedom of decision and action as little as possible and to encourage her, as far as possible, to live a normal life in the community. She was followed on the tracker. TYD was aware of her sister’s wish to walk and to engage with the community. She tried to encourage and facilitate this while possible. However she now recognises, consistent with the cognitive decline observed by Dr X, that it is no longer safe for KXD to go walking alone.

77. As Mr Fogarty submitted, the separate representative submitted, we were not satisfied that it would be in KXD’s best interests to revoke the appointment of any or all of the appointed enduring guardians.

78. The medical evidence makes it clear that KXD is now unable to make informed lifestyle decisions for herself. She needs a substitute decision-maker.

Whether to deal with the review as if an application for a guardianship order and/or an application for a financial management order had been made

79. First, there is simply no basis in the evidence to treat the application to review the enduring guardianship as if an application for a financial management order had been made. QXJ did not explain why he sought such an approach. KXD has appointed substitute financial decision-makers under the EPOA. There was no evidence to raise any concern as to how the appointed enduring attorneys are performing those roles.

80. It is open to the Tribunal to deal with the review as if an application for a guardianship order, with or without revoking an EG appointment, if we consider that it is in the best interests of KXD to do so. As indicated, we are not satisfied that we should revoke he appointment of any of the enduring guardians. However QXJ and Mr Fogarty raised issues that could only properly be addressed in the context of considering an application for a guardianship order. To deal with the review on this basis would not compel us to make a guardianship order. However it would enable us to consider whether we should make a guardianship order (which would suspend the operation of the EG while in effect) and in that context to consider QXJ’s proposal at the hearing that he should be appointed one of KXD’s guardians or that the Public Guardian should take on that role.

81. Further, by dealing with the review as if a guardianship application had been made, we could also consider the proposal of Mr Fogarty that we make a short term guardianship order for the sole purpose of imposing a condition akin to, but broader than, the condition/limitation in the EPOA in which KXD expressed the wish/desire/ expectation that QXJ should be consulted about her ‘welfare, wellbeing’. It was suggested that a short-term guardianship order with such a condition would give QXJ ‘something akin to a voice’ and ‘keep the parties honest’ and that this could be monitored by the Tribunal on end of term review.

82. We decided that rather than simply confirming the EG appointment it was in KXD’s best interests for us to deal with the application as if an application for a guardianship order had been made.

What did the Tribunal have to decide?

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

• Is KXD someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

• Should the Tribunal make a guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

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

84. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that the person 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”: the 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: the Act, s 3(2).

85. The medical evidence from Dr X is clear. While QXJ did not seem to accept it fully, there was no expert evidence to the contrary. KXD has severe and progressive Alzheimer’s dementia, and we accepted Dr X’s opinion that she lacks the capacity to make decisions about her lifestyle. The Tribunal is satisfied that KXD has a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a guardianship order.

Should the Tribunal make a guardianship order, what order should be made, who should be the guardian, and should any special conditions be imposed?

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

87. These matters have no hierarchy or weighting, and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise in its consideration of the matters in s 14(2) of the Act. We must have regard to the principles in s 4 of the Act.

88. KXD is happy with the present decision-making arrangements. She trusts her sisters. When QXJ suggested that he should be involved in face-to-face discussions about decisions to be made for KXD, she interjected to say that she did not want to sit around and talk things through. However she had no objection to her sisters talking to QXJ.

89. QXJ asserts that he is KXD’s spouse and carer. We did not have sufficient evidence to determine whether he is in fact KXD’s de facto partner. He is not presently her carer. However we had regard to his views.

90. There is no suggestion by QXJ or by any of the other participants in the hearing that there is a need for any functions not already conferred on the EGs by the enduring guardianship. In any event, the evidence that led us to the view that the appointments should not be revoked also satisfied us that it is practicable for KXD to be provided with needed services without the need for a formal order. The appointed guardians are willing and able to make the needed decisions. We must have regard to this factor.

91. QXJ wants the appointed EGs to be replaced by a guardian or guardians appointed by the Tribunal, not for the purpose of conferring additional functions, but so that someone other than the persons chosen by KXD could be appointed her substitute decision-makers.

92. In so far as QXJ proposed that he should be appointed as a guardian, we could not be satisfied (as required under s 17(1)(b) of the Act), that there is no undue conflict between his interests (particularly his financial interests) and those of KXD. He makes this proposal in the context of an as yet unresolved dispute as to the basis on which he occupies her property and whether he has an interest in her property. While a legal dispute continues there must be a concern that his views in relation to matter such as where KXD should live and how any accommodation costs should be met (matters relevant to her welfare and wellbeing) will be filtered through the prism of his self-interest (as evidenced by the caveat).

93. Moreover, we cannot appoint the Public Guardian as guardian (QXJ’s alternate proposal) in circumstances in which such an order can be made appointing a person other than the Public Guardian: the Act, s 15(3). The evidence that satisfied us that the existing enduring guardians were acting in a manner consistent with KXD’s best interests and welfare also satisfied us that if we made a guardianship order we could properly appoint any or all of the enduring guardians as guardians for KXD.

87. We bore in mind the need to restrict KXD’s freedom of decision as little as possible. She chose her sisters to be her substitute decision-makers. As elaborated on below, we were of the view that we should not overlook her past intention and present wishes to make a guardianship order for the purpose of imposing a suggested condition in the guardianship order to give a person who is not an appointed guardian (and would not meet the s 17 requirements) an involvement in decision-making. Moreover, the evidence did not satisfy us that the differences of opinion between QXJ and the enduring guardians as to what was in KXD’s best interests would be more satisfactorily resolved were they to be made by decision-makers appointed by the Tribunal.

88. We considered the effect of making or not making a guardianship order on KXD’s existing family relationships. The mere fact of making an order should not have a negative effect. There is no relevant cultural or linguistic environment.

89. However, we were concerned that if we made an order on either of the bases proposed (to change the decision-makers to include QXJ or to impose a condition to include QXJ ‘in discussions about and decisions made’ about KXD’s ‘welfare and wellbeing’ and to “keep written records of same”) this would be contrary to KXD’s wishes and counterproductive as the parties are so far apart in their views. In the past there were discussions between TYD and QXJ. These ceased when he chose to direct all correspondence to his solicitor. There is already a provision in the EPOA expressing KXD’s wish/desire/expectation that QXJ should be included in ‘discussions’ regarding her welfare, well-being. This should be possible without the imposition of a condition in a guardianship order of the nature suggested.

90. The suggested special condition would appear to require the involvement of QXJ as a decision-maker, despite the fact that he is not an enduring guardian and would not satisfy the criteria to be appointed by the Tribunal as guardian for KXD. We bore in mind the protective nature of our jurisdiction and the possibility that the apparent tension and conflict between QXJ and TYD and any appointed guardian could adversely affect the interests and welfare of KXD. We were not persuaded that the making of an order subject to such a condition would be in KXD’s best interests and consistent with her welfare.

Conclusion re EG review application

98. 98   As we decided not to revoke the appointment of any enduring guardian, dealt with the application as if a guardianship application had been made, but decided not to make a guardianship order, we dismissed the application.

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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: 22 June 2023