Laura (a pseudonym)

[2025] NSWCATGD 12

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Laura (a pseudonym) [2025] NSWCATGD 12

Hearing dates:

7 April 2025

Date of orders:

7 April 2025

Decision date:

07 April 2025

Jurisdiction:

Guardianship Division

Before:

S L Handebo, Principal Member
Dr K J Banerjee, Senior Member (Professional)
M Black, General Member (Community)

Decision:

PROCEDURAL ORDERS

The request by Steve to adjourn the hearing on 7 April 2025 is refused.

Laura is allowed to be legally represented.

REVIEW OF REVOCATION OF ENDURING POWER OF ATTORNEY

In relation to the enduring power of attorney made by Laura on 3 June 2021 which appointed Steve and Nicole as attorney(s) the Tribunal determines, orders or declares:

not to carry out a review of the revocation of the enduring power of attorney.

FINANCIAL MANAGEMENT APPLICATION

The application for a financial management order is dismissed after hearing.

Catchwords:

EVIDENCE – medical evidence as to person’s capacity – person diagnosed with Alzheimer’s dementia – multiple sets of medical evidence – whether evidence is contradictory – where subsequent evidence showing improvement in condition – whether assessment of a psychiatrist preferred to neuropsychologist – role of neuropsychologist in assessing capacity –

neuropsychologist qualified to administer neuropsychological assessment of capacity – diagnosis of Alzheimer’s dementia does not automatically result in a lack of capacity – evidence not contradictory.

FINANCIAL MANAGEMENT – application for a review of revocation of enduring power of attorney – Tribunal has discretion to decide whether to undertake a review – Tribunal permitted to undertake general survey of evidence produced before deciding whether to exercise discretion – lack of medical evidence that subject person lacked capacity to revoke enduring power of attorney – circumstances around application – evidence of publication of potentially defamatory material by applicant – complaints made by applicant against various legal and medical professionals – multiple applications by applicant – application lacking in substance – application dismissed.

FINANCIAL MANAGEMENT – financial management application – whether subject person incapable of managing affairs – Alzheimer’s diagnosis does not automatically result in incapability to manage affairs – Tribunal required to assess the impact of diagnosis on functional capacity – evidence that subject person able to articulate her financial circumstances and affairs – executive functioning largely intact – Tribunal not satisfied that person incapable of managing her affairs – application dismissed.

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 38(5)-(6), 45(1)(a)-(b), 45(2), 51, 55(1)(b), 65

Civil and Administrative Tribunal Rules 2014 (NSW), r 31(2)

Court Security Act 2005 (NSW), ss 9, 9A-B

Guardianship Act 1987 (NSW), ss 4, 4(d), 4(g), 25G, 25M, 101; Pt 3A

Powers of Attorney Act 2003 (NSW), ss 36, 36(1)-(2), 36(3A)(a)

Cases Cited:

CJ v AKJ [2015] NSWSC 498

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

P v NSW Trustee and Guardian [2015] NSWSC 579

P v R [2003] NSWSC 819

PB v BB [2013] NSWSC 1223

Re D [2012] NSWSC 1006

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

Texts Cited:

Law Society of NSW, When a Client’s Capacity is in Doubt: A Practical Guide for Solicitors, Accessed 2 October 2025

Sydney University, Sydney Neuropsychology Research Clinic, clinic.html#:~:text= Neuropsychological%20assessments,-A%20neuropsychological%20assessment&text= This%20provides%20the%20clinical% 20neuropsychologist,between%20brain%20function% 20and%20behaviour, Accessed 2 October 2025

Lise Berry and Dr Jane Lonie, Capacity, dementia and neuropsychology, %20capable,are%20likely%20to%20remain %20intact.&text=d)%20Fluctuations%20in %20cognitive%20function,disease%20or%20Primary% 20Progressive%20Aphasia, Accessed 2 October 2025

Category:

Principal judgment

Parties:

003: Financial Management Application

Laura (the person)
Steve (applicant)
Nicole (attorney)
Christopher (attorney)
NSW Trustee and Guardian

004: Review Revocation of an Enduring Power of Attorney

Laura (the person)
Steve (applicant, attorney)
Christopher (attorney)
Nicole (attorney)
NSW Trustee and Guardian

Representation:

Solicitors:

Mr M, solicitor for Laura

File Number(s):

NCAT 2024/00012703

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

INTRODUCTION

1. [In these Reasons for Decision, to not disclose their identity, the parties and some of the participants in the proceedings have been given fictitious names].

2. Laura is a 76-year-old widowed woman who resides in a low level residential aged care facility in Sydney’s Upper North Shore. Laura holds a Bachelor of Architecture and a Master of Architecture from the University of Sydney and is reported to have worked full time as an architect until her retirement at the age of 65 years old.

3. Laura’s family include (but is not limited to) her son, Steve, her sister, Nicole, and her brother-in-law, Christopher.

4. On 3 June 2021, Laura executed an Enduring Power of Attorney in which she appointed Steve and Nicole as her attorneys on a joint and several basis (“the 2021 EPOA”). A copy of the 2021 EPOA was in evidence before the Tribunal and on the face of the document it appears to have been validly executed. Nicole accepted her appointment as attorney on 3 June 2021. Steve accepted his appointment as attorney on a later date, sometime in 2022. [1]

   1. The date recorded for Steve’s acceptance of his appointment on the file copy of the 2021 EPOA is unclear – it identifies that Steve accepted his appointment on the 29th day of a month in 2022, but it is unclear on account of the poor copy quality whether the acceptance occurred in May, June or August. Nothing turns on the date of acceptance.

5. On 17 August 2023, Laura executed a further Enduring Power of Attorney (“the 2023 EPOA”). Laura appointed Steve, Nicole and Christopher as her attorneys on a joint and several basis “with any two to sign”. A copy of the 2023 EPOA was before the Tribunal. Nicole and Christopher each accepted their appointment on 17 August 2023. Steve has not accepted his appointment under this instrument. The Tribunal was informed that this instrument has subsequently been revoked by Laura, however, there was no evidence of the revocation before the Tribunal and it was unclear whether each of the appointed attorneys (including Steve, noting however that his appointment has not taken effect on account of his decision not to accept the appointment) have been provided written notice of the revocation.

6. On 23 August 2023, Laura executed a document revoking the 2021 EPOA. There was no dispute that each of the named attorneys were provided with notice of this revocation.

7. It is reported that on 27 November 2024, Laura executed further enduring instruments, namely an Enduring Power of Attorney (“the 2024 EPOA”) and an Enduring Guardianship, each appointing Nicole and Christopher.

8. On 19 November 2024, Steve submitted an application for a financial management order. Subsequently, on 21 January 2025, Steve submitted an application to review the revocation of the 2021 EPOA.

9. These Reasons for Decision relate to the applications submitted by Steve on 19 November 2024 and 21 January 2025.

RELEVANT PROCEDURAL HISTORY

10. On 9 January 2024, Steve submitted an application for a financial management order. This application was determined by a differently constituted Tribunal on 14 March 2024. On this date, the Tribunal dismissed the application consequent to a finding on the available evidence that Laura is not incapable of managing her affairs. [2]

    2. See in particular [40]-[50] of the Reasons for Decision for the orders made on 14 March 2024 in relation to the Tribunal’s previous findings.

11. The Tribunal has had regard to the Tribunal’s previous Reasons for Decision but is not bound by the findings made by the Tribunal on 14 March 2024.

12. On 13 May 2024, Steve submitted a further application for a financial management order. This application was listed for a Directions Hearing on 15 August 2024 and was subsequently dismissed by the Tribunal (differently constituted) on 12 September 2024 pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (“CAT Act”) (namely on the basis that the Tribunal determined that the application was lacking in substance).

13. On 19 November 2024, Steve submitted an application for a financial management order. Subsequently, on 21 January 2025, Steve submitted an application to review the revocation of the 2021 EPOA.

14. On 23 January 2025, the Tribunal made Chambers Directions in relation to the filing of evidence and service of the applications and supporting evidence. The matter was otherwise set down for Hearing.

THE HEARING

15. The Hearing was listed on 7 April 2025 and was conducted from the Tribunal’s Sydney Registry.

16. The Hearing was attended by Laura, Steve, Nicole, Christopher and Mr M, solicitor for Laura. Steve attended the Hearing by telephone, and all other participants attended the Hearing in person.

17. At the commencement of the Hearing, the Tribunal explained to each of the participants, in general terms, the following restrictions [3] :

1. The provisions of ss 9, 9A and 9B of the Court Security Act2005 (NSW);

2. The provisions of s 65 of the CAT Act; and,

3. The provisions of s 101 of the Guardianship Act1987 (NSW).

   3. The Tribunal considered this necessary on account of written evidence before the Tribunal suggestive that particulars of previous proceedings, including unauthorised audio recordings of the proceedings, may have been improperly published online.

18. Each of the participants in the Hearing confirmed their understanding of the restrictions referred to and agreed to comply with such restrictions.

19. A number of procedural issues were identified at the commencement of the Hearing which required determination by the Tribunal. These included:

1. An application made on behalf of Laura to be legally represented in the proceedings; and,

2. An application made by Steve for an adjournment of the financial management application, noting that he sought to proceed with the application to review the revocation of the 2021 EPOA.

20. For the reasons identified below, the Tribunal decided:

1. To grant leave for Laura to be legally represented in the proceedings; and,

2. To decline the request made by Steve to adjourn the Hearing of the financial management application.

21. The Tribunal initially reserved its decision and subsequently decided:

1. Not to undertake a review of the revocation of the 2021 EPOA; and,

2. To dismiss the application for a financial management order.

PROCEDURAL ISSUE – LEAVE FOR LAURA TO BE LEGALLY REPRESENTED

22. Each party to proceedings in the Tribunal is responsible for their own case and is not entitled to be represented by any other person: CAT Act, s 45(1)(a). A party may be legally represented by an Australian legal practitioner if the Tribunal grants leave to a particular legal practitioner or to any legal practitioner: CAT Act, s 45(1)(b). The Tribunal has discretion as to whether it will grant leave, and may refuse or revoke leave: CAT Act, s 45(2). If leave is granted, the Tribunal may impose such conditions on the grant of leave as it thinks fit: Civil and Administrative Tribunal Rules 2014 (NSW), r 31(2).

23. Proceedings in the Guardianship Division are conducted in accordance with the principles in s 4 of the Guardianship Act. These principles are applicable when determining an application by a party for leave to be represented by another person. The Guardianship Division Procedural Direction on Representation provides guidance as to the factors that may be considered by the Tribunal when determining whether to grant leave.

24. On 27 March 2025, the Tribunal received a written request from Laura (dated 24 March 2025) seeking leave to be legally represented in the proceedings. Amongst other things Laura identified that:

1. This is the third application made to the Tribunal by Steve in approximately twelve months;

2. Laura does “not want to be declared mentally or financially incompetent”;

3. Laura does not trust Steve to be in charge of her financial affairs, and reports that Steve “can be verbally aggressive towards [her]”;

4. Laura feels “very intimidated, oppressed and exhausted” by the application and in the circumstances does “not think that [she] can adequately express [her] opinions and resist [Steve] without assistance”.

25. Mr M made oral submissions in accordance with the written submissions referred to above. In response to questions raised by the Tribunal as to the possibility of providing assistance in the capacity as a “McKenzie Friend” rather than as an advocate, Mr M outlined that as a McKenzie Friend he would not have the ability to make submissions on legal and factual matters relevant to the findings the Tribunal needs to make, which would be of particular assistance in the particular circumstances of this matter.

26. Nicole did not express a concluded view on the issue of whether or not Laura should be legally represented, though did not oppose the application. Christopher supported the application.

27. Steve provided his conditional support for the application. He told the Tribunal that he does not oppose Laura being legally represented subject to Mr M disclosing to the Tribunal the nature of his relationship with Dr Z and her legal representative. [4] Although the Tribunal was reluctant to require such disclosures, Mr M indicated a willingness to address the issue raised by Steve. Mr M indicated that he does not have a relationship with Dr Z and is unaware whether she has a legal representative or who that legal representative may be.

    4. Dr Z’s role in relation to Laura is discussed further below.

28. In all of the circumstances the Tribunal was satisfied that it would be in Laura’s best interests to permit her to be legally represented in the proceedings. In reaching this decision the Tribunal had regard to, inter alia: the difficulties Laura reports in ensuring that she is able to adequately express her views at Hearing; the absence of any objections to Laura being legally represented; and, the principles under s 4 Guardianship Act, including but not limited to the need to ensure that Laura’s views are taken into consideration.

PROCEDURAL ISSUE – REQUEST TO ADJOURN THE HEARING REGARDING THE FINANCIAL MANAGEMENT APPLICATION

29. The Tribunal may adjourn proceedings to any time and place: CAT Act, s 51. When considering whether to adjourn proceedings, the Tribunal has regard to the guiding principle of the CAT Act: which is to facilitate the just, quick and cheap resolution of the issues in the proceedings: CAT Act, s 36(1). The Tribunal may also consider the principles in s 4 of the Guardianship Act, including that the paramount concern is the welfare and interests of the person who is the subject of the proceedings.

30. The Tribunal is required to take such steps as may be reasonably practicable to ensure that the parties understand the nature of proceedings and have a reasonable opportunity to be heard or otherwise have their submissions considered: CAT Act, s 38(5). The Tribunal is also required to ensure that all relevant material is disclosed to the Tribunal to enable it to determine all of the relevant facts in issue in the proceedings: CAT Act, s 38(6).

31. Steve sought that the financial management application be adjourned but proposed that the review of the revocation of the 2021 EPOA proceed. In support of this request Steve outlined that he does not currently have visibility of Laura’s bank accounts (due to his appointment as attorney having purportedly been revoked) and that an adjournment of the financial management application would be necessary to allow him to obtain relevant evidence of Laura’s financial dealings (and/or the financial dealings undertaken by Laura’s attorneys). This application was premised on the assumption that the Tribunal would determine that the revocation of the 2021 EPOA was invalid, and thereafter, Steve’s appointment under the 2021 EPOA would be enlivened to give him the access he seeks to Laura’s bank accounts.

32. There was no suggestion from Steve that an adjournment would yield further medical evidence in relation to Laura’s capacity.

33. Steve’s adjournment request was opposed by each other (active) [5] party to the proceedings.

    5. Noting that the NSW Trustee and Guardian is a statutory party to the applications but did not participate in the Hearing.

34. The Tribunal notes that this is the third financial management application made by Steve within a period of twelve months. The current application has been pending for over four months. Steve has had sufficient time to gather evidence in support of his application, including if necessary, requesting the issue of a summons in accordance with NCAT Procedural Direction 2. He did not avail himself of these processes.

35. As outlined above, the Tribunal is required to ensure that all relevant material is disclosed to the Tribunal to enable it to determine all of the relevant facts in issue in the proceedings: CAT Act, s 38(6). Although the Tribunal acknowledges that Steve raises concerns about certain financial dealings, on the papers the critical issue in this matter is the threshold issue of Laura’s capability to manage her own affairs. There was no suggestion that an adjournment of the Hearing would result in the availability of further or better evidence in this regard.

36. In the event that the adjournment was not granted and the Tribunal was ultimately satisfied that Laura was incapable of managing her affairs, it remained open to the Tribunal to revisit the issue of whether an adjournment should be granted (i.e. adjourning the proceedings on a part heard basis) if such action became necessary to ensure that sufficient evidence were available to finally determine the application.

37. The Tribunal was not convinced that an adjournment of the proceedings would yield any evidence that would have a material impact on the issues the Tribunal was required to consider. The Tribunal did not consider that Steve had had insufficient ability to prepare his case in advance of the proceedings.

38. In all of the circumstances the Tribunal was not satisfied that an adjournment of the proceedings would be consistent with either the guiding principle under the CAT Act or the principles under s 4 of the Guardianship Act. The Tribunal concluded that it was manifestly in Laura’s best interests for the Hearing to proceed as scheduled.

39. For the avoidance of doubt, the Tribunal notes that at no time during the Hearing was there evidence presented or submissions made which would warrant the Tribunal reconsidering the issue of an adjournment (and whether it was necessary to adjourn the Hearing on a part-heard basis due to the unavailability of necessary evidence).

RELEVANT LEGAL PRINCIPLES

Review of Revocation of Enduring Power of Attorney

40. The Tribunal may, on the application of an interested person, decide to review the revocation of a reviewable power of attorney, or not to carry out such a review: Powers of Attorney Act 2003 (NSW), s 36(1).

41. 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.”

42. As a consequence of reviewing the revocation of a reviewable power of attorney, if the Tribunal decides to conduct a review, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act: s 36(2). The Tribunal may make a number of orders relating to the revocation of a power of attorney including the following:

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

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

1. The principal did not have the capacity necessary to revoke it; or

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

43. If on a review of the revocation of the enduring power of attorney, the Tribunal decides not to make an order under s 36 of the Powers of Attorney 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.

Financial Management Application

44. Section 25G of the Guardianship Act provides that the Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person’s capability to manage his or her own affairs and is satisfied that:

1. The person is not capable of managing those affairs; and

2. There is a need for another person to manage those affairs on the person’s behalf; and

3. It is in the person’s best interests that the order be made.

45. In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person’s own capacity to do what they are proposing to do [58]. White J used a “rational appreciation” of assets test to determine a person’s capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819, who said that the task of the Court in these circumstances:

“… is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person’s property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person’s property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter [26].”

46. In PB v BB [2013] NSWSC 1223, Justice Lindsay confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]:

“Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack ‘mental capacity’ or be ‘mentally ill’; or (b) particular reasons for an incapacity for self-management.”

47. The test for determining a person’s capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]):

“Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests?

…

[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.”

48. In considering whether the person is “able” in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events

• support systems available to the person, and

• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498 at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579 at [309].

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

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

51. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court’s broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.

THE MEDICAL EVIDENCE

52. The Tribunal was provided with a number of medical reports in relation to the issue of Laura’s capacity, including the following:

1. Report from Dr Y, Consultant Neurologist at Sydney Adventist Hospital, dated 8 April 2021 (“the Dr Y Report”).

2. Report from Dr Z, Clinical Neuropsychologist at a University health centre, dated 7 September 2023 (“the 2023 Dr Z Report”).

3. Report from Dr Z dated 13 June 2024 (“the 2024 Dr Z Report”).

53. The 2023 Dr Z Report was in evidence before the Tribunal at the time the Tribunal dismissed the first financial management application on 14 March 2024. [6] The Tribunal understands that the Dr Y Report was not presented to the Tribunal in support of the earlier application, and at that time the 2024 Dr Z Report had not yet been prepared.

    6. See [22]-[26] of the Reasons for Decision for the 14 March 2024 orders.

54. Much turns on the Tribunal’s assessment of the available medical evidence, including the extent (if any) to which the evidence may conflict, and in the event of conflicting evidence, which evidence should be preferred by the Tribunal. In these circumstances it is prudent to recount in some detail the nature of the medical evidence presented to the Tribunal.

The Dr Y Report

55. Dr Y’s Report, prepared in April 2021, outlines the following:

“The MRI scan of the brain showed mild age-related cortical cerebral atrophy and a mild degree of white matter ischaemic change. There was no disproportionate temporal lobe or hippocampal atrophy.

On the perfusion study, there were mild perfusion defects in the associated parietal cortices bilaterally extending into the precuneus bilaterally. The reduced patterns of perfusion in this distribution are suggestive of mild Alzheimer’s disease. There is also a cerebral vascular component due to areas of mildly reduced cerebral perfusion reserved at a number of sites…” (emphasis in original)

56. Dr Y outlines a number of cognitive screening tools he administered with Laura, including:

1. The Addenbrooke’s Cognitive Examination (ACE) in which Laura scored 82/100. [7]

2. A Mini Mental State Examination (MMSE) in which Laura scored 23/30. [8]

3. A Montreal Cognitive Assessment (MOCA) in which Laura scored 22/30 [9] (it is reported that this assessment was administered “previously” without clear indication as to when this assessment was administered).

   7. The Tribunal notes that scores below 88/100 may be an indication of cognitive impairment, and scores below 61/100 may indicate moderate dementia.

   8. The Tribunal notes that scores below 24/30 may be an indication of cognitive impairment, and scores between 10-21/30 may indicate moderate dementia.

   9. The Tribunal notes that scores below 26/30 are suggestive of mild cognitive impairment, and scores below 22/30 may indicate cognitive impairment.

57. Dr Y notes that “there was primarily ready forgetfulness and difficulties with tasks requiring abstraction and executive function”.

58. Dr Y makes various recommendations, including referral to a Dr X, Old Age Psychiatrist, and various other supports (including a neuropsychologist).

The 2023 Dr Z Report

59. The Tribunal notes that Dr Z’s assessment of Laura was undertaken on 7 September 2023 (approximately two weeks after her revocation of the 2021 EPOA).

60. Dr Z’s report outlines that Laura was referred to her by Dr X “for comprehensive neuropsychological testing and assessment of capacity to manage her financial affairs”. The introductory paragraph of her report acknowledges a diagnosis of Alzheimer’s disease and references a MOCA undertaken in January 2023 with a score of 24/30.

61. Dr Z notes that Laura has been under Dr X’s care since April 2021 and was formally diagnosed with Alzheimer’s disease in August 2021 (when Laura was commenced on Donepezil).

62. Laura and Nicole (who accompanied Laura to her appointment) reported to Dr Z that Laura was experiencing memory problems, which were getting worse, and they each denied any changes in Laura’s language, concentration, problem-solving or decision-making.

63. Dr Z reports that Laura was able to provide a concise and accurate summary of her financial circumstances, demonstrate an appropriate understanding of the nature of a power of attorney, and clearly articulated her reasoning for the decision to revoke the 2021 EPOA and execute the 2023 EPOA.

64. Dr Z reports having conducted various neuropsychological tests during her assessment of Laura (as outlined in detail in her report).

65. On the Addenbrooke’s Cognitive Examination (ACE-III) Laura scored 75/100 (below the cutoff of 88/100 for dementia). It is reported that on this assessment Laura lost the most points in the domains of attention/orientation, memory and fluency.

66. Dr Z reports the following with respect to Laura’s executive functioning:

“[Laura] performed within the Average to High Average range on tests of executive function. She demonstrated preserved reasoning skills on tests of special reasoning (High Average) and abstract verbal reasoning (Average). On the spatial reasoning test, [Laura] was easily able to use feedback to adapt her responses according to the changing demands of the test. [Laura] also demonstrated intact mental flexibility on alternating semantic fluency test (Average). [Laura] showed intact planning and organisational skills in her approach to copying a complex geometric figure.”

67. Dr Z offers the following opinion:

“The neuropsychological profile of this 75-year-old woman revealed impairments in orientation, verbal memory, and verbal fluency. There was some fluctuation in [Laura’s] attention, but no impairment per se, and she demonstrated otherwise preserved cognition in the areas of working memory, language skills (apart from verbal fluency), visuospatial and constructional skills, visual memory, and executive function. [Laura’s] score of 75/100 on the ACE-III was in keeping with the comprehensive neuropsychology results.

The history, presentation, and neuropsychology results supported [Laura’s] diagnosis of early-stage Alzheimer’s disease“ (emphasis added).”

68. In relation to Laura’s capacity to manage her financial affairs, Dr Z reports the following:

“[Laura] understood the role of Power of Attorney and Enduring Power of Attorney and gave a reasonable account of her current financial position and assets. [Laura] provided a consistent and detailed account of the changes she recently made to her Power of Attorney, and her reasons for the changes, at both the start and the end of the assessment, with a three-hour interval between the accounts. Formal testing demonstrated that [Laura’s] reasoning and decision-making skills remained intact in the Average to High Average range, and she was able to appropriately adapt her responses when the information, or situation, changed. Based on these findings, it was my opinion that [Laura] retained capacity to understand and weigh up information, options, and consequences required for financial decision-making capacity.

At this stage, [Laura] does not have a level of cognitive impairment that would require her Enduring Power of Attorney to be enacted, but she does require some support and assistance with day-to-day financial matters due to her unreliable verbal memory. [Laura] is currently supported by her sister [Nicole] and [Nicole’s] son-in-law with paying bills and managing her financial accounts. [Laura] was insightful regarding her memory problems and aware that she needed assistance to keep track of her money and bill payments. [Laura] was appreciative of the current supportive family arrangement in this regard.”

The 2024 Dr Z Report

69. This assessment was conducted on 13 June 2024 and was instigated by Laura in the context of having engaged a new legal representative who had requested an update review of Laura’s “cognitive capacity to make her own decisions regarding legal matters”.

70. The report outlines a number of neuropsychological tests administered, and a comparison of the results against Laura’s previous results in 2023.

71. On this occasion, Laura showed an improvement on the Addenbrooke’s Cognitive Examination (ACE-III), returning a score of 84/100 (compared to 75/100 on previous testing) with continued impairments in the domains of memory, verbal fluency, and orientation.

72. In relation to Laura’s executive functioning Dr Z reports:

“[Laura] continued to demonstrate very robust executive functioning skills, with improvement on some tests compared to the previous assessment. She demonstrated excellent reasoning and problem-solving skills on tests of spatial reasoning/problem-solving (High Average to Superior performance) and abstract verbal reasoning (High Average). Her capacity for mental switching and multi-tasking was Average, and her verbal generativity on tests of letter fluency was Average. Consistent with the previous assessment, [Laura] demonstrated intact planning and organisational skills in her approach to copying a complex geometric figure.”

73. Dr Z offers the following opinion:

“The neuropsychological profile of this 75-year-old woman revealed impairment in verbal memory and mild reductions in orientation and semantic (category) fluency. This occurred against a background of otherwise preserved cognition, including attention, working memory, processing speed, naming, comprehension, visuospatial and constructional skills, visual memory, and executive functions (reasoning skills, problem-solving, mental flexibility, letter fluency, and planning/organisational abilities). [Laura’s] score of 84/100 on the ACE-III dementia screening tool remained below the dementia cut-off (<88) but had improved compared to the previous assessment when she scored 75/100. [Laura] also showed improvement on neuropsychology tests of verbal memory, attention, orientation, and verbal fluency compared to the previous assessment.

The history, presentation, and cognitive profile remained consistent with the diagnosis of early-stage Alzheimer’s disease. It is possible that the mild improvements in some aspects of [Laura’s] cognition compared to the previous assessment are secondary to the improvement in her self-reported anxiety and stress compared to the previous assessment.”

74. With respect to Laura’s “capacity to manage financial affairs, make own decisions, and instruct a lawyer” Dr Z concludes as follows:

“[Laura] understood the role of a Power of Attorney/Enduring Power of Attorney and Guardian/Enduring Guardian. She gave a detailed and accurate account of her current appointments of family members in these positions, her reasons for choosing these people, and her reasons regarding her current decision to add her brother-in-law [Christopher] as a third Guardian/Enduring Guardian. Her reasoning remained consistent and logical at the start of the assessment and at the end of the assessment, with a three-hour interval between these discussions. Formal testing demonstrated that [Laura’s] reasoning and decision-making skills remained entirely intact, and in the High Average to Superior range. Based on all these findings, it remained my opinion that Laura retained capacity to understand and weigh up information, consider options and consequences, and make her own decisions. It was also my opinion that [Laura] retained capacity to instruct a lawyer and make her own decisions regarding Power of Attorney/Enduring Power of Attorney and Guardianship/Enduring Guardianship (emphasis in original).

[Laura’s] cognitive impairment remained mild and specific to her verbal memory. She does not have a level of cognitive impairment that would require enactment of Enduring Power of Attorney or Enduring Guardian. [Laura] has insight regarding her memory difficulties and appreciated the ongoing support provided by her sister [Nicole] and [Nicole’s] son-in-law [Mr W] who assist her with day-to-day financial matters.”

Steve’s Arguments About Conflicting Medical Evidence

75. Steve relies on the Dr Y Report in formulating his arguments that Laura has lacked capacity since at least 2021. Although not articulated in these terms, Steve’s argument appears to be grounded as follows:

1. The Dr Y Report supports Steve’s assessment that Laura lacked capacity as early as 2021.

2. Dr Y and Dr Z’s assessments are contradictory.

3. Dr Y’s assessment should be preferred to Dr Z’s in circumstances where Dr Z is not a medical doctor.

76. Evidence provided to this effect includes the following:

1. In his application form for review of the revocation of the 2021 EPOA, Steve states the following:

“Medical evidence from [Dr Y] (dated 08/04/2021) shows my mother lacked capacity prior to the revocation. His report documents:

●    MMSE score of 22/30 (below standard threshold of 24/30);

●    Montreal Cognitive Examination score of 22/30 (below normal threshold of 26/30)

●    Diagnosis of mild Alzheimer's disease with cognitive impairment

●    My mother suffered a serious stroke on 10/05/2022, further impacting her cognitive abilities.

Given her progressive Alzheimer’s diagnosis in 2021 and subsequent stroke in 2022, my mother lacked the required mental capacity to legally revoke the original 2021 power of attorney in August 2023 based on the work of [Dr Y].”

2. In his application for a financial management order Steve states the following:

“Medical Evidence:

●    [Dr Y’s] 2021 report confirmed Alzheimer’s diagnosis

●    Recent cognitive assessments show scientifically impossible improvements

●    New medical evidence justifies fresh consideration”

3. In an email to the Tribunal dated 19 December 2024 Steve states the following:

“… I have a medical doctor who stated that my mother required help back in 2021. NCAT has repeatedly dismissed my hearings based on [Dr Z]. [Dr Z] is NOT a medical doctor! This is how confident I am that her work is rubbish [provides a link to a website – link omitted from these Reasons for Decision].”

4. In a further email to the Tribunal dated 20 December 2024, Steve states the following:

“Medical Evidence of Exploitation:

●    [Dr Y’s] 2021 report shows clear, objective evidence of cognitive decline:

○    Diagnosed Alzheimer’s disease with brain scan evidence

○    Multiple cognitive test scores showing impairment

○    MMSE: 23/30

○    Montreal Cognitive: 22/30

○    ACE: 82/100

●    [Dr Z’s] reports appear problematic:

○   Claims of improvement despite Alzheimer’s being a degenerative condition

○    Potentially using your mother as a recurring revenue source

○    Medical opinions that conflict with objective earlier evidence

○    No explanation for how cognitive improvement is possible post-stroke”

5. The website referred to in Steve’s 19 December 2024 emails states the following:

“Breaking! Alzheimers dementia can be reversed by [Dr Z] and [a University health centre]!

…

Incredible news! The brilliant [Dr Z] and [a University health centre] have achieved what was thought impossible, reverse the devastating regression of Alzheimer’s dementia!”

6. In his oral submissions at Hearing, Steve outlined (in summary) the following:

1. He relies on the medical facts contained within the Dr Y Report, which supports that Laura did not have capacity as early as 2021.

2. He reports that Dr Z has falsely claimed that she can cure Alzheimer's dementia.

3. He contends that the “I’ve been right this entire time… medical facts align with my assessment”.

The Role of a Neuropsychologist in Assessing Capacity

77. Before assessing the available medical evidence, and Steve’s arguments in relation to same, it is important for the Tribunal to comment on the role of neuropsychologists in assessing capacity.

78. The Law Society of NSW has released a publication called “When a Client’s Capacity is in Doubt: A Practical Guide for Solicitors”. [10] Under the section “When to Refer and to Whom” the guide notes that there are a number of different professionals who may be involved in a capacity assessment and that “[t]he critical question in making a referral is how much experience does the medical professional have in the area of mental capacity assessment of older people or people with a possible mental illness/ intellectual disability/ acquired brain injury?” The guide outlines a number of different types of experts and summarises the expertise of such experts. It includes the following:

“Neurologist: A scientist who specialises in the study of the structure, functioning and diseases of the nervous system.

Neuropsychologists: A psychologist skilled in conducting assessments that determine the presence or nature of brain dysfunction, for example after a head injury or where dementia is suspected. The assessment is conducted through interview, observation and psychological testing and generally involves the administration of tests of memory, concentration, other thinking skills and language.”

10. mental capacity.pdf

79. The Sydney Neuropsychology Research Clinic provides useful information about the role of neuropsychological assessment and intervention. [11] This includes the following:

“What is a Clinical Neuropsychologist?

A clinical neuropsychologist is a psychologist who has undergone specialised training in administering and interpreting neuropsychological tests. They understand the types of neuropsychological profiles that are associated with certain conditions (e.g., Traumatic Brain Injury, Dementia, Stroke, etc) and understand the complex interplay between brain function and behaviour.

Neuropsychological assessments

A neuropsychological assessment is an assessment of one’s cognitive skills; that is, their ‘thinking skills’. An assessment involves various standardised neuropsychological tests to evaluate different areas of thinking: overall intelligence, attention, memory and learning, language, perception, higher-level ‘executive functions’ (e.g., planning, organising, concept-formation), social cognition and mood. The results from the testing are compared to average population scores (i.e., ‘normative test data’) and are used in combination with information about the individual’s medical history, and psychosocial background, education and work history, and current environment. This provides the clinical neuropsychologist with comprehensive information about the person’s cognitive strengths and weaknesses.

What is a neuropsychological assessment used for?

A neuropsychological assessment can be used to assist with diagnosis and to provide understanding of a person’s cognitive strengths and weaknesses following injury to the brain or changes in the brain arising from medical conditions (e.g., neurodegenerative disease, surgery). It is also important for informing treatment programs and tailoring them to the individual. An assessment can also be conducted for medicolegal purposes, and to provide information on an individual’s capacity to manage their affairs such as finances and medical care.”

11. assessments,-A neuropsychological assessment&text=This provides the clinical neuropsychologist,between brain function and behaviour

80. In an article written for the Law Society Journal [12] , titled “Capacity, dementia and neuropsychology” Lise Berry and Dr Jane Lonie outline the following:

“It may surprise lawyers to learn that some specialist medical practitioners, such as geriatricians, neurologists and old age psychiatrists, who are frequently called upon to provide opinion pertaining to legal capacity in the elderly, are not trained in cognitive (neuropsychological) assessment beyond administration of brief, low-level cognitive screening measures (comprising general questions relating to the date, current prime minister, and later recall of three objects). Nor have they had clinical training in the use of techniques to enhance cognitive performance (ie cognitive rehabilitation).

Without the use of objective formal assessment measures (which allow for detailed examination and precise quantification of a client’s cognitive abilities and disabilities in relation to their age peers), clinicians are wholly reliant on information of a qualitative or observational nature in arriving at what is then ultimately a subjective opinion as to a client’s cognitive capacity. The objective assessment of a client’s cognitive ability is especially important where the question of capacity arises within a context of wider family conflict. In these situations, information provided by family members may be incongruent or incomplete, making it impossible to rely on subjective accounts of a client’s capabilities.

As a discipline, geriatric neuropsychology is uniquely placed to assess capacity in the elderly, combining a knowledge base of neurodegenerative disease with extensive training in the administration and interpretation of standardised/objective cognitive and functional tests and the application of rehabilitative strategies to maximise cognitive function and client involvement in decision making.”

12. is your client capable,are likely to remain intact.&text=d) Fluctuations in cognitive function,disease or Primary Progressive Aphasia

81. In most cases the role of a neurologist and a neuropsychologist are complementary. Each professional has their own skills and training relevant to their respective disciplines, and each can offer unique insights.

Assessment of the Medical Evidence

82. Contrary to Steve’s firm belief, the Tribunal is not persuaded that the Dr Y Report is inconsistent with either the 2023 Dr Z Report or the 2024 Dr Z Report.

83. On the face of the Dr Y Report, Dr Y did not diagnose Laura with Alzheimer’s dementia. Dr Y reviewed the results of Laura’s MRI and offered an opinion that the results were “suggestive of mild Alzheimer’s disease” (emphasis in original).

84. Dr Y administered a number of cognitive screening tools, but nowhere in his report does Dr Y suggest that he has undertaken a detailed assessment of Laura’s capacity. Furthermore, Dr Y makes no comment in his report of the impact of Laura’s cognitive impairment on her capacity to execute an enduring instrument or her ability to manage her financial affairs. Dr Y appropriately makes referrals for Laura to be assessed and assisted by other practitioners, inclusive of a psychiatrist and a neuropsychologist.

85. The Tribunal is satisfied that Dr Z, as a clinical neuropsychologist, is appropriately qualified to assess the impacts of Laura’s cognitive decline on her capacity to execute an enduring instrument and her ability to manage her own affairs.

86. Contrary to Steve’s assertions, in neither of Dr Z’s reports does she suggest (either explicitly or implicitly) that she has found a cure for Alzheimer’s dementia. Dr Z explicitly acknowledges in her reports that Laura has been diagnosed with Alzheimer’s dementia, and she does not express any views inconsistent with such diagnosis.

87. Dr Y, as a neurologist, is not qualified to administer a neuropsychological assessment. The capacity screening undertaken by him identifies the need for further assessment, and that assessment was undertaken comprehensively in 2023 and 2024 by Dr Z, who holds appropriate qualifications to undertake that assessment.

88. A diagnosis of Alzheimer’s dementia does not, of itself, equate to a lack of capacity. It is the impact of the cognitive decline associated with such diagnosis that is relevant in assessing the issue of capacity. Capacity is decision specific and may fluctuate from time to time.

89. Dr Y’s report, at its highest, identifies the likelihood of a diagnosis of Alzheimer’s dementia and identifies initial concerns with respect to an emerging cognitive impairment.

90. Subsequent to Dr Y’s assessment, Laura was treated by Dr X, Old Age Psychiatrist, who diagnosed her with Alzheimer’s dementia and referred her for a comprehensive neuropsychological assessment.

91. Dr Z’s assessments were comprehensive, involved the administration of neuropsychological testing as well as necessary psychosocial assessment, considered Laura’s capacity in a decision specific context, and provides useful comparative analysis over a period of time.

92. Ultimately the Tribunal finds that Dr Y’s report does not, in any way, contradict Dr Z’s reports. The reports are complimentary with different focuses attributable to their different disciplines.

93. For completeness, however, in the event of any discrepancies between Dr Y’s evidence and Dr Z’s evidence the Tribunal prefers the evidence of Dr Z in circumstances:

1. Where Dr Z is, objectively, more qualified to make an assessment of capacity (whereas Dr Y is more qualified to make a diagnosis);

2. Where Dr Z’s assessments relied on more comprehensive testing;

3. Where Dr Z’s reports are more recent (including relatively contemporaneous with the revocation of the 2021 EPOA); and,

4. Where Dr Z’s assessments of capacity are focussed specifically on Laura’s capacity to manage her financial affairs (the 2023 Dr Z Report) and her capacity to make changes to her enduring instruments (the 2024 Dr Z Report).

REVIEW OF REVOCATION OF THE 2021 EPOA

94. As outlined above, the Tribunal is not obliged to carry out a review of the nature sought by Steve. The Tribunal has a broad discretion in considering whether or not to undertake a review, and it is permissible for the Tribunal to undertake a general survey of the evidence produced to inform itself whether or not a full review should be conducted.

95. The application made by Steve to review the revocation of the 2021 EPOA is made in circumstances where he asserts that Laura lacked capacity to revoke the 2021 EPOA.

96. As discussed above, the medical evidence does not support a finding that Laura, as at the time of the revocation, lacked capacity to do so. The revocation was made in close proximity to Laura’s attendance on Dr Z in 2023. Dr Z’s evidence has been discussed in detail above, and based on this evidence, the Tribunal accepts that Laura had the requisite capacity required to revoke the 2021 EPOA as at the time of revocation in 2023.

97. It is important to note that this application is not made in a vacuum, and the Tribunal has had regard to the circumstances surrounding the application.

98. During the course of the Hearing, Mr M made submissions to the effect that “any person who does not agree [with Steve] is public enemy”. This was a reference to Steve’s conduct to those who disagree with his firm and unshakable view that Laura lacks capacity (and has done so since at least 2021) and is being exploited by others.

99. There was evidence before the Tribunal of Steve’s very public opposition to those that do not share his views with respect to the above (including publication of potentially defamatory material on various websites which are said to be attributable to Steve). Such evidence includes:

1. Complaints and/or public comment [13] on the actions of two accountants engaged to assist Laura, namely Mr V and Mr U (with Mr U also subject to a formal complaint to CPA Australia);

2. Complaints and/or public comment [14] on the actions of two legal representatives engaged by Laura, namely Mr M, and Mr T (with Mr T apparently subject to a formal complaint to the Law Society of NSW);

3. Complaints and/or public comment [15] about Dr Z, with formal complaints having been made to Dr Z’s employer, a University health centre, and the Health Care Complaints Commission, and with Dr Z being required to apply for an Apprehended Violence Order against Steve;

4. Complaints made to Bank A, and subsequently to the Australian Financial Complaints Authority, with respect to the bank’s refusal to act on advice from Steve following the revocation of the 2021 EPOA.

   13. Including: [Website removed for publication]

   14. Including: [Website removed for publication] and [Website removed for publication]

   15. Including: [Website removed for publication]

100. There was also evidence before the Tribunal of Nicole having successfully obtained a no contact Apprehended Violence Order against Steve.

101. Ultimately, when viewed in the context of Steve’s conduct referred to above, and in circumstances where there is no objective evidence to support Steve’s assertion that Laura lacked capacity to revoke the 2021 EPOA. Steve’s application is essentially lacking in substance. The Tribunal is not satisfied that Steve has demonstrated a sufficient basis to warrant the Tribunal conducting a review of the revocation of the revocation of the 2021 EPOA. The application is dismissed accordingly.

102. For completeness the Tribunal notes that had the Tribunal exercised its discretion to undertake a review of the revocation of the 2021 EPOA, the evidence referred to herein would have otherwise supported an order being made pursuant to s 36(3A)(a) of the Powers of Attorney Act declaring that Laura had capacity to revoke the 2021 EPOA.

FINANCIAL MANAGEMENT APPLICATION

103. Steve declined to make any further submissions in support of his application for the appointment of a financial manager apart from his complaints detailed above regarding Dr Z’s evidence and his assertion that Dr Y’s evidence supported a finding that Laura lacks capacity to manage her own affairs. Steve was prompted by the Tribunal on multiple occasions to provide further submissions in support of his application, re-iterating that his adjournment request had been declined, but he did not take advantage of the opportunity to do so.

104. There is no doubt on the available evidence that Laura lives with Alzheimer’s dementia and associated cognitive impairment.

105. Laura’s diagnosis does not, of itself, make her incapable of managing her affairs. The Tribunal is required to consider the impact of Laura’s diagnosis on her functional capacity to reasonably manage her affairs.

106. Despite her diagnosis, Dr Z’s reports outline that Laura’s cognitive decline is primarily in the domain of memory recall rather than executive function. During each assessment with Dr Z Laura was able to provide a relatively accurate account of her financial circumstances and the supports she has in place to manage her affairs.

107. The Tribunal was able to engage well with Laura during the Hearing and she readily provided answers to the Tribunal’s questions to help understand Laura’s appreciation of her financial circumstances. Without the need to refer to any notes or otherwise seek input from other people in the room, Laura was able to clearly articulate her understanding of her financial circumstances, which included the following:

1. Laura owns real property (her former home at [Address removed for publication.]) which is valued at approximately $2.4 million. The property is rented out at $730 per week. Although Laura was unable to comment with precision on the nature of the outgoings for the property, she appropriately outlined that the property is managed by an agent who is responsible for taking care of those matters.

2. Laura paid a RAD to an aged care facility approximately five years ago, valued at $625,000.

3. Laura has a bank account with Bank B with a balance of approximately $130,000, and another with Bank A (a term deposit) with a balance of approximately $580,000.

4. Laura holds a share portfolio valued, in total, at about $778,000.

108. Laura told the Tribunal that she receives informal support from Nicole to manage her affairs. Most payments are set up to be paid by direct debit, and for any expenses which are not set up in this manner, Laura forwards the bills to Nicole to attend to payment of her bills. Laura also receives professional accounting assistance to manage her affairs.

109. Laura’s account of her affairs was consistent with the documented evidence before the Tribunal and otherwise confirmed as accurate by Nicole (who is also one of Laura’s attorneys with visibility over her financial affairs).

110. Laura, on 27 November 2024, prepared a Statutory Declaration for the purpose of ensuring that her views can be appropriately considered (both with respect to the current application and any subsequent applications that may be made to the Tribunal). In this Statutory Declaration, Laura clearly and unambiguously outlines the following:

1. She agrees with her diagnosis of Alzheimer’s dementia, reporting a deterioration in her memory.

2. She denies any present difficulties in managing her own financial affairs other than with respect to attending to internet banking.

3. She outlines clearly her opposition to Steve managing her affairs, and the rationale behind her decision-making process [which the Tribunal considers unnecessary to outline in detail herein]. Laura also notes the following:

“While I have criticised [Steve] in this statutory declaration I do so with deep regret and only out of necessity because of [Steve’]s actions to date. He is my son and I love him.”

111. In considering whether or not Laura is incapable of managing her affairs, the Tribunal finds as follows:

1. The medical evidence available to the Tribunal confirms that Laura lives with diagnosis of Alzheimer’s dementia with identified deficits in her cognitive functions.

2. Notwithstanding the identified deficits, Laura’s executive functioning remains largely intact at the present time, though experiences ongoing difficulties with respect to memory recall.

3. Laura has a reasonable appreciation of her financial circumstances and is able, with appropriate formal and informal supports, to manage her financial affairs in a reasonably competent fashion.

4. Laura is able to demonstrate insight with respect to the impacts of her cognitive impairment and provide clear and unambiguous reasoning regarding her decision for Steve to have no involvement in the management of her financial affairs.

112. In all of the circumstances the Tribunal is not satisfied that Laura is incapable of managing her affairs. In circumstances where this threshold issue has not been established, the application for a financial management order must be dismissed.

113. Due to the above finding it is unnecessary for the Tribunal to consider in detail the other limbs of the test provided for in s 25G of the Guardianship Act, or the matters raised in s 25M of the Guardianship Act. Notwithstanding this, the Tribunal considers it appropriate to make brief comment on these matters, in the event that the Tribunal has reached an incorrect conclusion on the threshold issue of whether Laura is incapable of managing her affairs.

114. In considering whether there is a need for another person to manage Laura’s affairs, and whether it is in her best interests for a financial management order to be made, the Tribunal is satisfied that there are appropriate formal arrangements in place, through the appointment of Nicole and Christopher as Laura’s attorneys. Accordingly, if the Tribunal had found Laura to be incapable of managing her affairs, the Tribunal was otherwise satisfied that the application ought to be dismissed on these discretionary grounds.

112. Furthermore, in the event that the Tribunal had determined that a financial management order should be made for Laura, the Tribunal was not satisfied that Steve should be appointed to such role.

113. In reaching this conclusion the Tribunal notes the following:

1. Laura has very firm objection to the appointment of Steve to manage her affairs. Although the Tribunal is not bound by Laura’s views, the Tribunal is obliged to take Laura’s views into account in making any decisions under the Guardianship Act: s 4(d). The evidence provided by Laura outlines a rational explanation for her views in opposition to Steve’s appointment.

2. Steve has fixed views about the management of his mother’s financial affairs, is not receptive to competent medical advice, and is dismissive and obstructive with respect to legal determinations relating to this issue. It is evident to the Tribunal that this lack of objectivity would impact Steve’s ability to make dispassionate decisions about Laura’s finances. Laura’s written evidence to the Tribunal outlines that, on account of Steve’s abuse, several professionals have declined to continue to work with Laura.

3. The Tribunal has an obligation, to the extent possible, to ensure that Laura is protected from neglect, abuse and exploitation: Guardianship Act, s 4(g). The appointment of Steve as Laura’s financial manager would be inconsistent with this obligation. In reaching this conclusion the Tribunal finds that Steve’s conduct towards his mother is entirely inconsistent with the expectations of an appointed financial manager. In support of this conclusion the Tribunal notes, inter alia, the text messages provided to the Tribunal by Laura which are purported to have been sent to her by Steve on 7 October 2024 (“Annexure EWU 3” to the statement prepared by Laura dated 27 February 2025), some of which are extracted below:

“I don’t care if I see you again, I will destroy [Nicole], [Mr W], [Mr U] and [Mr T] for the pain in misery they have put me through. A pain in misery which you are f**** exacerbating” (sic; censorship in original).

I’m sick of you and your f*** dementia. You’re a fool and you’ve got f** dementia and you have no idea what the f** going on you just keep talking at the same f*** s** over and over again” (censorship in original).

F*** dementia f** you” (censorship in original).

You make me want to f**** kill myself (censorship in original).

I f**** hate everything because of you (censorship in original).

You kill Dad and now you’re going to kill me.

I don’t know why he [dad] put up with you, I can’t stand being around you. You always want to start a fight and I f**** hate it” (censorship in original).

You f**** failure” (censorship in original).”

117. Although not expressed in these words, Laura also raised concerns about a possible conflict of interest in Steve’s appointment as her financial manager. At Hearing, Laura expressed a view to the Tribunal with words to the effect of “my son is upset that I am spending his inheritance”. In her Statutory Declaration (at [10(vi)]) Laura also states “[Steve] wants to be totally in control of my finances. He is not able to co-operate with others. It is my opinion that he thinks that I am spending his inheritance”.

118. In her statement dated 27 February 2025, Laura also states the following (at paragraph [20]):

“[Steve] has expressed concern about amounts totalling $25,000 that have been withdrawn from my account. [Steve] has not disclosed that I have given him lump some (sic) amounts during that period. I had a (strikethrough in original) separately been making payments of $1000 per week to [Steve]. These payments commenced in June 2024. [Steve] took me to my bank so that the payments could be made by direct debit from one of my bank accounts. I stopped payments to [Steve] in January this year after [Steve] made his current application.”

119. Laura’s observations about Steve’s concerns about her “spending his inheritance” are not without merit. In a document submitted to the Tribunal on 16 January 2025 titled “Summery of events” (sic) Steve, when addressing concerns about Laura’s accountant (who at the time was also Steve’s accountant), states the following:

“Concerned, I asked my accountant for an explanation, especially considering my future inheritance and my mother’s memory challenges.”

CONCLUDING COMMENTS

120. The Tribunal has no doubt that Steve will be deeply saddened by the outcome of his applications, and very likely will not agree with the Tribunal’s decision.

121. It is evident to the Tribunal that Laura has much love for her son, and that Steve has much love for his mother. It is also evident to the Tribunal that Steve’s continued applications to the Tribunal have the unintended effect of further jeopardising the relationship between Laura and Steve.

122. The Tribunal urges Steve to reflect on the Tribunal’s Reason’s for Decision, consider the detrimental impact his actions are having on his relationship with his mother, and consider whether the significant effort he has expended in progressing these applications could be more appropriately expended on repairing his relationship with Laura before her cognitive decline progresses to a point where such repair may no longer be possible.

**********

Endnotes

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 October 2025