MZN

[2024] NSWCATGD 3

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

MZN [2024] NSWCATGD 3

Hearing dates:

29 February 2024

Date of orders:

29 February 2024

Decision date:

29 February 2024

Jurisdiction:

Guardianship Division

Before:

S Pinto, Senior Member (Legal)
S E Taylor, Senior Member (Professional)
Emeritus Professor P J Foreman AM, General Member (Community)

Decision:

REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT

The application for a review of the enduring guardianship instrument is dismissed after hearing.

REVIEW OF AN ENDURING POWER OF ATTORNEY

In relation to the enduring power of attorney made by MZN on 11 April 2022 which appointed OYE as attorney(s) the Tribunal determines, orders or declares:

to carry out a review of the making and operation and effect of the enduring power of attorney.

Not to make an order under section 36 of the Powers of Attorney Act 2003 (NSW) and dismiss the application.

FINANCIAL MANAGEMENT APPLICATION

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

2. QKE, of [Address removed for publication.], is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

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 – where enduring power of attorney not operating in the principal’s best interests – decision to treat application to review an enduring power of attorney as an application for a financial management order – principal incapable of managing own financial affairs – suitability of proposed private manager – private financial manager appointed – order made

REVIEW OF ENDURING GUARDIANSHIP – principal resides in an aged care facility – principal diagnosed with dementia – finding that the enduring guardian is making decisions in the principal’s best interests – no evidence that the enduring guardian is preventing access to the principal – decision not to carry out a review of the enduring guardianship appointment – no order made – application dismissed

Legislation Cited:

Guardianship Act 1987 (NSW), ss 4, 6HB, 6J, 6K, 6K(2)-(3), 6MA; Pt 3A

Powers of Attorney Act 2003 (NSW), ss 33(2), 36(1), 36(3)-(4), 37(1), 50(3)

Cases Cited:

Gibbons v Wright (1954) 91 CLR 423

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

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Review of an Enduring Guardianship Appointment

MZN (the person)
NAN (applicant)
OYE (enduring guardian)
Public Guardian
NSW Trustee and Guardian

003: Review of an Enduring Power of Attorney

MZN (the person)
NAN (applicant)
OYE (attorney)
QKE (joined party, other non-party)
NSW Trustee and Guardian

004: Financial Management Application

MZN (the person)
NAN (applicant)
OYE (attorney)
NSW Trustee and Guardian

Representation:

Nil.

File Number(s):

NCAT 2023/00247651

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

What the Tribunal decided

1. The Tribunal decided to review the enduring power of attorney made by MZN on 11 April 2022. The Tribunal did not make any orders under s 36(4) of the Powers of Attorney Act 2003 (NSW) (POA Act) and dismissed the application.

2. The Tribunal made a financial management order for MZN and appointed her son-in-law, QKE, as her financial manager, subject to the direction and supervision of the NSW Trustee and Guardian.

3. The Tribunal dismissed the application for a review of the enduring guardianship instrument after the hearing.

Background

4. MZN is 81 years old. Her husband, Mr Z, died in 2020. MZN has two children: OYE and NAN.

5. MZN has been diagnosed with dementia.

6. On 16 October 2006, MZN signed an enduring guardianship and enduring power of attorney appointing Mr Z, OYE and NAN jointly and severally as her enduring guardians and attorneys.

7. On 11 April 2022, MZN revoked the enduring power of attorney and enduring guardianship instruments she made in October 2006. On the same day, she executed an enduring power of attorney and an enduring guardianship instrument appointing OYE as her sole enduring guardian and attorney.

8. On 7 November 2023, NAN made applications for a review of the enduring power of attorney; a review of the enduring guardianship instrument and an application for a financial management order. He stated that there is a disagreement between himself and his sister regarding his mother’s assets. He also believes his mother is subject to controlling behaviour from his sister.

9. On 7 November 2023, the Tribunal made orders at a directions hearing regarding the provision of documents, including loan agreements between MZN and her son; copies of the enduring power of attorney and guardianship and revocation documents; medical reports regarding MZN, including geriatrician and general practitioner’s reports; copies of bank and credit card statements; contracts for the sale of property; the payment of the refundable accommodation deposit (RAD); and a full account of the balance of the proceeds and sale of MZN’s property.

10. A request for OYE to be legally represented was refused.

The hearing

11. MZN participated in the hearing by videoconference. She was accompanied by Ms Y, her former carer.

12. NAN and OYE participated in the hearing in person. Mr X participated in the hearing as a McKenzie friend for OYE.

13. Other persons who participated in the hearing, primarily as observers or supporters, included Ms W; Mr V; Ms U; Mr T; QKE; Ms S; Mr R; Ms Q; Mr P; Ms O; Ms N and Ms M.

14. Mr K participated in the hearing by telephone for part of the hearing.

15. A list of the parties and hearing participants is at the end of these reasons for decision. [Appendix removed for publication.]

GENERAL PRINCIPLES

16. The Tribunal must consider s 4 of the Guardianship Act 1987 (NSW) (the Act) which sets out the general principles that everyone exercising functions under the Act in respect of persons with disabilities must observe. These principles include that the person’s welfare and interests should be given paramount consideration; freedom of decision and action should be restricted as little as possible; his or her views should be taken into consideration; the importance of preserving cultural and linguistic environments should be recognised; and he or she should be protected from neglect, abuse and exploitation.

REVIEW OF THE ENDURING POWER OF ATTORNEY

17. The Tribunal’s jurisdiction to consider an enduring power of attorney is set out in s 33(2) of the POA Act:

33 Reviewable powers of attorney

… Both the Civil and Administrative Tribunal and the Supreme Court have jurisdiction to deal with an application under this Division in respect of an enduring power of attorney (including a revocation of an enduring power of attorney).

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

19. 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.”

20. The Tribunal is able to review the making of a power of attorney and to make orders declaring that the principal did or did not have capacity to make a valid power of attorney or to find that the power of attorney did not comply with the requirements of the Act; or the principal was induced to make it by dishonesty or undue influence: POA Act, s 36(3).

21. The Tribunal’s powers in relation to a review of the operation and effect of a power of attorney are set out in s 36(4) of the POA Act:

36   Interested persons may apply for review

…

… A review tribunal may, if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal, make any one or more of the following orders relating to the operation and effect of a power of attorney:

(a)   an order varying a term of, or a power conferred by, the power of attorney,

(b)   an order removing a person from office as an attorney,

(c)   an order appointing a substitute attorney to replace an attorney who has been removed from office by a review tribunal or who otherwise vacates the office,

(d)   an order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of an attorney and appointing a substitute attorney to replace the attorney who vacated the office,

(e)   an order directing or requiring any one of the following:

(i)   that an attorney furnish accounts and other information to the tribunal or to a person nominated by the tribunal,

(ii)   that an attorney lodge with the tribunal a copy of all records and accounts kept by the attorney of dealings and transactions made by the attorney of dealings and transactions made by the attorney under the power,

(iii)   that those records and accounts be audited by an auditor appointed by the tribunal and that a copy of the report of the auditor be furnished to the tribunal,

(iv)   that the attorney submits a plan of financial management to the tribunal for approval,

(f)   an order revoking all or part of the power of attorney,

(g)   such other orders as the review tribunal thinks fit.

22. If the Tribunal decides not to make any orders, the Tribunal is permitted to treat the application as an application for the appointment of a financial manager under Pt 3A of the Act “if it considers it appropriate in all the circumstances to do so”: POA Act, s 37(1).

Medical documents

23. The Tribunal was provided with medical reports for MZN, including the following:

Report from Dr J, dated 12 March 2022

24. Dr J refers to the conflict between OYE and NAN due to accusations from OYE that her brother had taken up to $75,000 from their mother’s bank account. The report indicates that OYE advised of a noticeable decline in her mother’s memory and expressed concerns she was not taking her medication.

25. MZN scored 19/30 on a Montreal Cognitive Assessment (MoCA). Dr J stated MZN has reduced cognition, predominantly in memory domains with evidence of a functional decline. Dr J stated that “based on collateral history she meets a diagnosis for dementia, possibly of mixed aetiology but this would have to be confirmed by a CT scan.”

26. Dr J also commented that there is a clear conflict between family members regarding financial management, guardianship and power of attorney. Dr J indicated that she wished to “stay out of this” as her focus was on medical management but if there are concerns regarding MZN’s testamentary capacity this should be independently assessed.

ACAT assessment – undertaken on 12 September 2022

27. The ACAT assessment states that MZN presented as well-groomed, pleasant, and cooperative but had little insight into her situation, and was repetitive throughout, struggling to recall basic information. The report states that MZN required assistance with domestic tasks and transport. She scored 14/30 on a MoCA. The assessment concluded that MZN has a significant cognitive impairment. She was approved as eligible for high level respite care, permanent residential care and a home care package, level 3.

Further report by Dr J, dated 7 March 2023 and 3 May 2023

28. In subsequent reports, Dr J confirmed her previous diagnosis of MZN. She stated that there were reports that alcohol was a problem and a source of conflict, although MZN denied drinking. Dr J concluded that MZN would be most safe in an environment with 24-hour care, but at that stage she had declined.

Application and statement by NAN

29. NAN stated in the applications for review of the enduring power of attorney and a financial management order that his sister has mismanaged their mother's finances and given away or taken all her furniture and personal belongings and sold her house under the pretence it was being renovated. This made their mother very upset, particularly because he was prepared to care for her at home. MZN's home was sold but, according to NAN, it is unknown where the sale money has been placed.

30. In the application for a review of the enduring power of attorney, NAN stated that he is seeking a review of the making, operation, and effect of the enduring power of attorney. He stated that his sister has been mismanaging MZN’s finances and he is concerned she has misappropriated his mother’s jewellery worth $50,000. He wishes the Tribunal to make orders that MZN did not have capacity to execute the enduring power of attorney; to reinstate a lapsed enduring power of attorney; and for documents to be furnished.

31. NAN stated that his sister has refused to attend mediation and has said he can come and get anything he wants from her storage shed. He referred to his concern regarding the whereabouts of a Honda motor vehicle and his father’s fob watch which his sister has in her possession; payments to solicitors; and letters advising him he could not stay at his mother’s home.

32. NAN provided a statement from his lawyers in which it was submitted that MZN agreed to gift jewellery to OYE valued at more than $50,000 and she in turn gifted him $49,600. He had looked after MZN and purchased food and other provisions for her before she entered a nursing home.

33. NAN stated that it is untrue that he took $50,000 from his mother’s bank account without her consent. NAN requested that he is advised of medical and financial decisions, and that his sister return jewellery to MZN.

34. NAN suggested that a financial management order should be made, and the NSW Trustee and Guardian is appointed.

Statement by OYE

35. In a statement, dated 18 January 2024, OYE referred to her brother’s actions as attorney. She stated that in January 2022, she received a call from her mother claiming she had been scammed. She became aware that $56,409 had been transferred to NAN from their mother’s bank account. She has since become aware that in early 2020, NAN changed the password to access her mother's bank account, without notifying her or their mother. She became aware that NAN had been transferring money to himself. He admitted to taking the money and apologised for his actions. OYE stated that her brother has been unemployed for several years and struggles with addiction.

36. After discovering that NAN had been taking money, MZN made an appointment with Mr K, solicitor, which she attended on 21 March 2022. On 11 April 2022, OYE attended a conference with her mother and Mr K at her mother’s request. Mr K asked her to leave the room so he could confirm MZN’s instructions. MZN signed a revocation of the 2006 enduring guardianship and enduring power of attorney and executed new documents, listing her as sole attorney and enduring guardian.

37. On 11 April 2022, MZN signed a loan agreement which had been drafted by Mr K requiring that NAN repay the amounts he had taken from her account. OYE also stated that she became aware that NAN had taken at least $50,000 and not $25,000 as he had claimed. She also became aware that when NAN stayed overnight with their mother, he would take her ATM card to check her balance and use the funds in the account for himself. After NAN had taken her mother's funds, she had very little available personal funds and became reliant on her fortnightly age pension.

38. In mid-2023, OYE made the decision to sell her mother's home to pay the refundable accommodation deposit (RAD). OYE and her husband, QKE, made various out of pocket expenses towards their mother’s care and living expenses which were subsequently reimbursed.

39. OYE stated that NAN has made various untrue allegations regarding her conduct as an attorney and guardian. She has not been mismanaging her mother's finances and her mother’s property was sold to fund her care in the nursing home because caring for her at home was no longer an option. Most of the furniture from their mother's home was thrown away, with the remaining placed in storage at her home. The motor vehicle is not worth any money and is due to be scrapped by the wrecker. OYE stated that she has not misappropriated her mother's jewellery. MZN stated in her will that during her lifetime the jewellery was to be made available to OYE.

40. OYE stated that she opposes the appointment of the NSW Trustee and Guardian as this would be create fees which would be unnecessary, and she is fulfilling her obligations as an attorney.

41. Documents provided by OYE included:

1. Letters from Mr K solicitors to NAN and MZN regarding the revocation of the enduring power of attorney and new appointments, including details of amounts withdrawn by NAN of an additional $25,000 that he acknowledged was unauthorised.

2. Further solicitor’s letter advising NAN that he has withdrawn $64,163 from his mother’s bank account for his own purposes and benefit.

3. Solicitors’ letters from May 2023 advising NAN that a full-time carer had been engaged for MZN and he was unable to stay at his mother’s home.

4. Loan agreements between MZN and QKE.

5. Contract for the sale of MZN’s home, dated 1 September 2023, and other documentation indicating settlement for the property occurred on 12 October 2023 for $2.475 million, with MZN obtaining $2 million after costs and a reverse mortgage was discharged.

6. Bank statements from 2020 to 2023 for MZN’s bank accounts.

7. Receipt for the RAD of $500,000 paid to the nursing home on 16 October 2023.

8. MZN’s last will and testament, signed on 3 July 2020, confirming that she has given OYE her jewellery to use during her lifetime. It also indicates that a fob watch belonging to Mr Z, and inherited from him by MZN, has been bequeathed to Mr R.

Response by NAN

42. In a response to OYE’s statement, dated 6 February 2024, NAN stated that his mother believed she was being scammed because Mr R had changed her password. He then transferred money from MZN’s account to NAN’s account and back to her account and he was accused of stealing it. He denies he changed his mother’s password. He also stated that he transferred money from his mother’s account with her consent. He referred to an attached video which was witnessed by Mr H and Ms L who have known their family for many years, with an attached transcript of a conversation.

43. NAN also stated that he disputes his sister’s allegations, and he has a work history because he worked for a waste and recycling company for many years and his sister, OYE, has not worked for 25 years. A statement of his employment history was attached.

44. NAN stated that he did go to Mr K solicitors to discuss a loan of $25,000 which was to come out of his mother’s estate, with the remaining amount gifted to him. He has kept receipts and invoices for his mother’s account after she moved to the nursing home. His sister has not provided an account of his mother’s possessions or jewellery she has taken from her. While he was staying with his mother, she asked him to check her account and take her card to do shopping and buy food for her.

Hearing discussion

45. During the hearing, we advised the parties that we would first discuss issues raised in relation to MZN’s capacity to execute the enduring power of attorney in April 2022 (the making of the power of attorney) and we would then discuss the operation and effect as requested by NAN in his application.

The making of the enduring power of attorney

46. We asked MZN if she could recall making the enduring power of attorney in 2022. She said she would need to have to think about it and she loves both her children. She said “I do not know about that” when asked who is currently looking after her money.

47. Mr K asked about his involvement in witnessing the enduring power of attorney in April 2022. He said he has perused his notes and on 21 March 2022 he met with MZN to discuss her concerns about her son's financial transactions on her accounts. In relation to MZN's capacity, it was apparent that there were some “red flags”. However, he was satisfied after considering the matter that MZN had capacity to revoke the instruments and execute new ones. She gave him instructions to revoke the enduring power of attorney and to appoint OYE. MZN initially said she wanted to treat her children equally and to appoint NAN as her enduring guardian but changed her mind about this. They also had discussions about her last will and testament and a loan agreement with NAN regarding the repayment of the money he had taken.

48. On 11 April 2022, OYE took MZN to Mr K’s officers. Mr K said he explained the enduring power of attorney and MZN agreed she wanted to revoke it and thought it was best for OYE to be the sole attorney. She explained what he had told her back to him in her “own way” and in her words, and he was satisfied she understood it. Mr K said that although there were some obvious issues about her capacity, he was satisfied she understood that OYE would be helping her with her banking and other aspects of her money.

49. Mr K said it would be his usual practice to ask for any medical records. He said he was not given any in relation to MZN’s capacity. He indicated that he is uncertain if he would have witnessed the document if he had been given the medical report from Dr J, but it was very clear that MZN was concerned about the conflict between her children and wanted the matter resolved.

50. Mr K confirmed his evidence that, despite some concerns about MZN's capacity, he was satisfied she understood she was revoking her previous power of attorney and appointing her daughter as her attorney under a new enduring power of attorney to manage her financial affairs.

51. NAN was asked his views on his mother’s capacity and what he is seeking form the Tribunal. NAN said he wants transparency. He said he tried to negotiate with his sister, but she would not speak with him. He said he only wants to be “kept in the loop”. He said he does not believe his mother had capacity to change the enduring power of attorney and there were “certain people and family members influencing her.” He said his mother’s long-term memory was very good but her short-term memory was fading. She was approaching 80 and forgetting things.

52. OYE agreed that she had taken her mother to the geriatrician in March 2022 at which time her mother was diagnosed with dementia. However, OYE said she does not recall if she had received the report from Dr J before her mother went to see the lawyer to revoke the document. OYE said she did not have concerns about her mother's capacity to change the enduring power of attorney or make a new one at that time. Her mother was still “doing things” and driving. OYE said her mother was very concerned and upset, and feared she would lose her home because of NAN’s actions. She said she did not suggest to her mother that she should change the documents, and this was suggested by Mr K. OYE referred to the letter of advice she had provided from Mr K.

The operation and effect of the enduring power of attorney

53. We proceeded to discuss NAN's concerns regarding the operation and effect of the enduring power of attorney. NAN again said he wants transparency, and he believes his sister spent excessive amounts of money, including, for example, on cushions. She also changed the locks on her mother's home and disposed of furniture and photographs of him. He also indicated that there are many transactions which are unexplained, and he queried the need for a loan to their mother of $100,000 with a six per cent interest rate. He also expressed his concerns about OYE using $4,730 of MZN’s money for her own legal costs.

54. We advised OYE that there are several unexplained transactions on her mother's account from the time that she became the attorney in April 2022. OYE said after the enduring power of attorney was signed, she changed her mother's lawyers to her lawyers. She said her mother paid for her legal fees because it was in relation to the enduring power of attorney, even though the invoice was addressed to her and QKE, and not to her mother.

55. OYE was also asked to explain the transactions on her mother’s bank account, and we queried the reason for numerous deductions of $5,000 and one of $25,000. OYE indicated that she did not know and had difficulty explaining the transactions, and said she was paying for various expenses and the money may have been deposited into her mother’s other account, but she does not know. She said she has another book at her home where she has recorded all the transactions, but she cannot explain them now.

56. When asked if anyone else was accessing her mother's accounts, OYE denied this. When asked if Centrelink was advised that her mother's home had been sold, OYE said she was not aware that she had to do so. She also said she was not aware that her mother's home was no longer excluded from her pension assessment after it was sold. Nor was she aware that the funds in her mother's bank account may mean her Centrelink pension had been significantly overpaid since October 2023. She said that she was not aware that her mother’s pension was means tested.

57. We allowed OYE to have a break to consult with Mr X who was present in the hearing as a McKenzie friend.

58. After the break, OYE said she was paying for many of her mother's expenses, and she repaid them directly to herself. She said at that time she was doing her best and getting used to doing it. She said she has it all written down, but she was very upset at that time because her mother had just been diagnosed with dementia. We advised OYE that her evidence as to the transactions is contrary to our assessment undertaken during the hearing break which indicates that the money from her mother's e-saving account was transferred into her daily account, and it did not indicate she repaid herself directly for expenses. We expressed our concerns that OYE continued to misunderstand how she was operating her mother's accounts.

59. QKE said his wife is not an accountant and she was doing her best to manage her mother's finances.

60. Mr X said he had discussions with OYE during the hearing break and he advised her that it is best that a financial management order is made. He said it is apparent that would be in MZN's best interests and an appropriate way for her finances to be properly monitored.

61. We queried whether the parties are proposing for the NSW Trustee and Guardian or a private financial manager to be appointed. We also queried whether QKE would be appropriate for appointment, given that he has experience managing money through the operation of a business.

62. QKE said MZN had previously asked him to manage her finances and everything was in place, but at the last minute she decided she wanted to manage them herself. He said MZN has approximately $1.5 million remaining from the sale of her house which is in an account where it has been held until the Tribunal hearing is complete. QKE said he would be happy to take on the management of MZN's finances and he would ask the financial manager of his business to ensure the payment of MZN’s regular expenses. He said MZN's finances are now relatively simple and there would be very few transactions required each month.

63. QKE said he has managed a waste management company for 30 years. He said he is “good with numbers”. He has never been bankrupt or convicted of fraud or any money related offences. He also indicated he understood and accepts the reporting and accountability requirements of the NSW Trustee and Guardian if a financial management order was made.

64. QKE acknowledged NAN’s concerns regarding a wish to be informed of his mother’s financial affairs. QKE indicated that to alleviate NAN’s concerns he could ask his financial manager to send NAN a statement of accounts in relation to his mother's financial affairs on a regular basis, or at least six monthly.

65. OYE indicated that she agreed with the appointment of her husband as a financial manager. She said that she had been very upset because of her mother's diagnosis of dementia and she had done her best to help her.

66. NAN initially indicated that he had some concerns about QKE managing his mother's finances. However, after some discussion he indicated that he believes this situation could be workable, given the oversight requirements of the NSW Trustee and Guardian.

Our consideration

67. As above, we must first consider whether we should review the enduring power of attorney. If we decide to review the enduring power of attorney, we must decide whether MZN had capacity to make a valid power of attorney or if the power of attorney complied with the requirements of the Act; or if MZN was induced to make it by dishonesty or undue influence.

68. Having considered all the evidence, we are satisfied that sufficient issues have been raised in relation to the enduring power of attorney such that we should conduct a review.

69. We have first considered the issue relating to MZN’s capacity to execute the enduring power of attorney on 11 April 2022 appointing OYE as her sole attorney.

70. There is no test for the capacity to make an enduring power of attorney in the POA Act. Accordingly, we are required to have regard to common law when determining applications. The authoritative statement for the test of capacity history found in the joint judgement of Dixon CJ, Kitto and Taylor JJ in Gibbons v Wright (1954) 91 CLR 423 at 438:

“The mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being affected by means of the nature of the instrument and may be described as the capacity to understand the nature of this action when it is explained.”

71. Thus, a person's capacity to make an enduring power of attorney is determined by his or her ability to understand both the nature and effect of the document when it is explained to the person. A person must be able to demonstrate his or her understanding by communicating this back to the person who did the explaining.

72. The evidence discussed above indicates that at the time MZN revoked the enduring power of attorney she had made in 2006, and executed a new document in April 2022, she had been diagnosed with dementia. Although OYE's evidence in relation to the information provided to Mr K was somewhat vague, we accept that she did not deliberately conceal Dr J’s letter from Mr K. Although it would have been preferable that she informed Mr K that her mother had undertaken testing for dementia, her evidence that she had not yet received the letter, which was dated only a short time before her mother's appointment with Mr K, was reasonable. We also accept OYE's evidence that her mother was still driving and going about her usual activities, despite requiring some increasing assistance with her daily activities.

73. Mr K’s evidence regarding MZN’s capacity and the steps he took to ascertain whether she had capacity to execute the new power of attorney was persuasive. Mr K indicated that although he had some “red flags” and concerns about MZN's capacity, he explored this in some depth before deciding to witness the revocation and the making of the new enduring power of attorney. Mr K’s evidence indicated that he asked MZN to explain his advice back to him and she did so clearly and in her own words, without any influence from others.

74. We accept NAN's evidence that his mother was undoubtedly experiencing some short-term memory issues at the time she revoked the 2006 enduring power of attorney and executed a new document in April 2022. However, we are not satisfied there is sufficient evidence to conclude that MZN lacked the capacity to execute a valid power of attorney. Nor are we satisfied that there is evidence indicating she did so because of undue influence.

75. We have also considered the operation and effect of the enduring power of attorney and whether we should make any orders under s 36(4) of the POA Act. NAN has not sought to be appointed as an attorney and the application indicates that he is seeking for OYE to be removed as an attorney and/or for a financial management order be made.

76. NAN raised several concerns regarding OYE's operation of the enduring power of attorney. These include his sister’s access to their mother’s jewellery, the whereabouts of their mother’s furniture and other items and her motor vehicle. During the hearing, NAN raised additional concerns regarding OYE's use of their mother's money to pay her own lawyers’ fees and several thousands of dollars missing from MZN's accounts, that had not been explained.

77. We have had regard to NAN's concerns in relation to the furniture, jewellery, and motor vehicle. However, we are satisfied that OYE has given a satisfactory explanation for these items.

78. Our main concerns regarding the operation of the enduring power of attorney arose because of numerous transactions on MZN’s bank account from the time OYE became the attorney. These were not explained in her statement to the Tribunal and her evidence during the hearing did little to alleviate our concerns.

79. We acknowledge that the transactions and debits from MZN’s savings account were transferred to her everyday account and there was no misappropriation by OYE of her mother's funds. However, we found it concerning that OYE could not explain this, even after a break in the hearing where she had the opportunity to consult with Mr X. This raised serious concerns as to whether OYE was in fact operating the accounts, as we consider it reasonable for her to have some knowledge of transactions of $5,000 on several occasions and on one occasion a transaction of $25,000.

80. We also had concerns regarding OYE’s lack of knowledge of Centrelink requirements. We consider it incumbent on OYE to have made inquiries with Centrelink when her mother’s home was sold to ensure her mother was receiving the correct entitlement and to avoid overpayments. These are likely to have accrued due to OYE’s failure to make these inquiries and advise Centrelink accordingly. OYE’s actions in changing her mother's lawyer to her own lawyer, without considering any issues related to a conflict of interest, and subsequently using her mother's funds for advice she received from her lawyer, are also concerning.

81. We are satisfied that OYE did not misappropriate her mother’s money for her own benefit, and we accept she was attempting to act in her best interests. We also accept that the circumstances of OYE’s mother’s dementia and dispute with her brother were onerous and stressful. However, for the reasons above and having considered all the evidence, we are satisfied it is in MZN's best interests that we do not make any orders under s 36(4) of the POA Act.

82. As discussed below, we have decided it is in MZN's best interest that we make a financial management order. These issues are discussed below.

APPLICATION FOR A FINANCIAL MANAGEMENT ORDER

What does the Tribunal have to decide?

83. The issues to be considered by the Tribunal are:

• Is MZN incapable of managing her finances?

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

• Who should be appointed as the financial manager?

84. The Supreme Court of NSW has considered the issue of capacity in relation to a person’s ability to manage his or her affairs. These cases have confirmed that of significance is a person’s “functionality of management capacity” and whether a person is reasonably able to manage his or her own affairs in a competent fashion, without the intervention of a financial manager. The relevant cases also indicate that the Tribunal should focus on the capability of a particular person to deal with his or her actual assets, and to do what he or she is proposing to do with them.

Our consideration

85. OYE’s evidence during the hearing indicates that her mother currently has approximately $1.5 million in her e-savings account and approximately $40,000 in her working account. We are not satisfied that MZN has the capacity to manage this money, given her diagnosis of dementia. The evidence indicates that OYE has been acting under the enduring power of attorney for some time due to her mother’s inability to make informed decisions about her financial affairs. We are satisfied, therefore, that the evidence discussed above indicates that MZN does not have capacity to manage her financial affairs.

86. We are also satisfied there is a need for the appointment of a financial manager, and it is in MZN’s best interests that we make a financial management order. As above, MZN has substantial funds requiring management. A financial manager will be required to determine how best to invest these funds for MZN’s financial benefit. She will also need access to these funds to ensure her ongoing welfare and comfort and the payment of any additional daily fees, pharmacy accounts and other expenses. MZN has access to considerable funds, which can and should be used to enhance her current quality of life.

87. As discussed above, we canvassed during the hearing whether QKE may be appropriate for appointment as a private financial manager. When making the application for a financial management order, NAN indicated that he was seeking the appointment of the NSW Trustee and Guardian. However, his evidence during the hearing indicated he did not oppose QKE’s appointment and his main concerns were in relation to transparency and accountability in terms of his mother’s finances.

88. We are satisfied that the appointment of QKE as private financial manager for MZN is in her best interests. The evidence before us indicates that MZN is distressed at the conflict between her children and one of her main concerns is for this to be alleviated. We are hopeful that the appointment of QKE, who has considerable experience managing financial affairs and has undertaken to manage his mother in law’s finances, will assist in reducing further damage to very strained relationships between MZN’s children. We are satisfied that our decision is consistent with our obligations in s 4 of the Act to ensure, where possible, that family relationships are preserved.

89. We have, therefore, decided to make financial management order. We are not satisfied we should appoint the NSW Trustee and Guardian. We consider that this would attract additional fees and it is further unnecessary because we are satisfied that QKE is suitable for appointment to manage his mother in law’s financial affairs. He has considerable experience in business and managing financial affairs and his appointment was strongly supported by MZN, with OYE and NAN agreeing to his appointment.

90. We have, therefore, decided to appoint QKE as private financial manager for his mother-in-law, MZN, subject to the supervision and direction of the NSW Trustee and Guardian.

91. The financial management order is ongoing, and the effect of the making of the order is that the Enduring Power of Attorney executed by MZN on 11 April 2022 is suspended: POA Act, s 50(3).

REVIEW OF THE ENDURING GUARDIANSHIP INSTRUMENT

The Tribunal’s jurisdiction and legislative basis

92. The Tribunal's jurisdiction in relation to the review of an enduring guardianship appointment is set out in s 6K and s 6MA of the Act.

93. Section 6J of the Act provides that the Tribunal may (on its own motion) and must (at the request of any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the principal) review the appointment of an enduring guardianship.

94. On reviewing the appointment of an enduring guardian, the Tribunal may under s 6K of the Act:

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

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

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

95. The Tribunal must not revoke the appointment unless it is satisfied that it is in the best interests of the appointer that the appointment is revoked: the Act, s 6K(2).

96. Under s 6MA of the Act, the Tribunal may appoint a substitute enduring guardian to replace an enduring guardian who has died, resigned, or become incapacitated. The Tribunal may, if it considers it is in the best interests of the appointer, consider the application as if an application for a guardianship order has been made or as if an application for a financial management order, or both orders have been made: the Act, s 6K(3).

97. Under s 6HB of the Act, an enduring guardian must obtain the approval of the Tribunal to resign if the appointer remains in need of a guardian.

Statement and application by NAN

98. In his application for a review of the enduring guardianship instrument, NAN stated that this is needed because his sister is not allowing him to spend time with their mother in circumstances where he was previously caring for her, and they have a very close relationship. OYE is not allowing NAN to take his mother out of the nursing home and restricting him spending time with her. He is seeking the “public trustee” to be appointed to be her carer, so he does not have unreasonable rules when all he wants to do is spend time with his mother. OYE is also not keeping him informed in relation to their mother’s health and wellbeing.

99. In his statement to the Tribunal, NAN stated that the overnight carer looking after their mother was not qualified and she commenced her shift at 5:30am to 6:00am at a café, so he stayed at his mother’s house to care for her because the other carer did not start until 10:00am. He also stated that his sister did not discuss the arrangements to move their mother into care and he only learned of this after the event. MZN believed her home was being renovated and she would return to her home after two weeks.

Statement by OYE

100. In a statement to the Tribunal, OYE stated that when her mother's ability to care for herself declined, she arranged for two carers to look after her for about four hours a day from Monday to Saturday. This commenced in around September 2021. OYE was eventually able to arrange for a carer to live with her mother so she could receive care overnight in her own home. The carer came and went during the day as she had another job working in a café.

101. Although her mother always expressed a strong preference to remain at home and did not want to move into what nursing home, OYE believes she did everything she could to facilitate her mother’s wishes for as long as possible. However, in mid-2023 it became very evident she could not remain at home. Accordingly, OYE arranged for her mother to move into an aged care facility.

102. OYE stated that her brother has alleged that she has not allowed him to spend time with their mother. She has done nothing to prevent him from spending time with her mother. However, he is no longer a guardian, and he has no legal entitlement to make decisions regarding their mother’s health and lifestyle or be informed of decisions. OYE stated that she opposes the application to have a guardian appointed because she believes she is fulfilling her obligations as her mother's guardian.

Hearing discussion

103. During the hearing, NAN said his main concern in relation to guardianship issues is that he is kept informed of any matters relating to his mother's health and welfare. He also believes he has been prevented from taking his mother out of the aged care facility. As an example, he had planned to collect his mother and bring her to the hearing. He was advised by the aged care facility that he was not permitted to do this. On previous occasions, when his mother was first admitted to the aged care facility, he was also prevented from taking her out. However, he indicated that he and some other relatives recently took MZN out for lunch and on an outing. He also acknowledged that OYE sent a text message to his wife relatively recently informing him that their mother had fallen.

104. NAN also referred to his concerns that he has not been advised if there is a COVID-19 or gastro outbreak at the facility and he has travelled three hours from his home and when he arrived, he was advised he could not enter. He said he is only seeking to be informed about these matters. He would also like to be able to speak to nursing staff at the aged care facility about his mother. NAN said he was advised that his sister had been asked to sign a permission form in relation to his visits, and to enable him to take his mother on outings, but this has not been signed.

105. OYE said her mother entered the aged care facility in June 2023. She was advised by the facility that it was best for her mother to remain in the facility without leaving for at least two weeks to enable her to settle. Her brother has visited their mother three times since she entered the aged care facility. She said she has never stopped or prevented him from visiting their mother and she has encouraged his visits. OYE said she felt it was best that her mother participates in the hearing by video conference. In relation to NAN bringing his mother to the city for the Tribunal hearing, OYE said that her mother is quite immobile, and she would have had to leave the facility very early to be in the Sydney CBD in time for the hearing.

106. OYE indicated that she has not been asked by the facility to sign anything in relation to her brother taking her mother out. She agreed that her brother should be informed of significant matters in relation to their mother's health and wellbeing. However, she said since her mother has been in the facility the only incident was when she had a fall and she advised NAN’s wife of this by a text message.

107. OYE undertook to sign any documentation required to enable the facility to provide information to NAN or to allow him access to their mother, or for him to take her on outings. OYE acknowledged that the enduring guardianship instrument does not give her the authority to restrict her brother's access to their mother and said she would not wish to do this.

108. NAN's wife agreed that she had received a text message about MZN's fall. She said she appreciates everything OYE has done for MZN.

109. We attempted to speak to a nurse or clinical care manager in relation to the issues regarding NAN's access to his mother, but we were unsuccessful.

110. MZN agreed that she would like her daughter to continue to make lifestyle and medical decisions on her behalf.

Our consideration

111. Having considered all the evidence, we are not satisfied we should make any orders in relation to the enduring guardianship instrument.

112. We are satisfied that the evidence indicates that as the sole enduring guardian since April 2022, OYE has made sound and appropriate decisions in relation to all aspects of her mother's care. This includes the arrangements for her mother to have an ACAT assessment where she was found to be eligible for a level 3 home care package. OYE's evidence during the hearing indicated that, due to difficulties in obtaining any services through the ACAT package, she undertook to source private care for her mother in her home. This occurred for several months until MZN had increasing difficulties managing in her home and the decision was made to move her to aged care. MZN's evidence indicates that she is very happy and well settled in the aged care facility and has no desire to move.

113. We accept that, despite MZN’s concerns about NAN having taken money from her account without her permission, they maintain a close relationship. We acknowledge that NAN is anxious for this to continue and wishes to be advised of any matters affecting MZN's health and wellbeing. However, we are not satisfied that the evidence indicates that NAN has been denied access to his mother or he will be in the future. We accept OYE's evidence that she does not wish to prevent her brother’s ability to see their mother or for them to continue with their relationship. We also accept that OYE has undertaken to formalise this, if it is required by the aged care facility.

114. We are not satisfied, therefore, that it is in MZN's best interests that we make a guardianship order or that we make any orders removing OYE as an enduring guardian. As above, we are satisfied that OYE has always acted in her mother’s best interests and the decisions she has made on her mother’s behalf have been sound and appropriate. We are satisfied she will continue to do so, and she should remain as the sole enduring guardian.

115. We have, therefore, dismissed the application for a review of the enduring guardianship instrument.

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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: 24 May 2024