OBQ

[2020] NSWCATGD 59

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

OBQ [2020] NSWCATGD 59

Hearing dates:

11 September 2020 and 25 September 2020

Date of orders:

25 September 2020

Decision date:

25 September 2020

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
K Laurence, General Member (Community)

Decision:

In relation to the enduring power of attorney made by OBQ on 9 October 2017 which appointed DZC as attorney/s. The Tribunal determines, orders or declares:

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

In relation to the enduring power of attorney made by OBQ on 6 April 2018 which appointed LAQ and TYQ as attorney/s. The Tribunal determines, orders or declares:

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

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

Catchwords:

REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – whether adequate records kept – whether attorneys gained personal benefit – whether conflict of interest arises – subject person retains capacity to instruct – not in subject person’s interests to overturn subject person’s decisions – no order made.

REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the revocation of an enduring power of attorney – subject person possibly influenced but will not overborne – no evidence of weight indicating undue influence – no evidence of weight indicating the subject person was confused or misled – decision not to review revocation.

Legislation Cited:

Guardianship Act 1987 (NSW), Pt 3A

Powers of Attorney Act 2003 (NSW), ss 36, 36(1)-(2), 12(1)

Cases Cited:

Re R [2000] NSWSC 886

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

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

Tulloch (deceased) v Braybon (No 2) [2010] NSWSC 650

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Review of an Enduring Power of Attorney

OBQ (the person)
DZC (applicant)
TYQ (attorney)
LAQ (attorney)
NSW Trustee and Guardian

002: Review Revocation of an Enduring Power of Attorney

OBQ (the person)
DZC (applicant, attorney)
LAQ (attorney)
WBX (attorney)
TYQ (attorney)
NSW Trustee and Guardian

Representation:

Counsel:
C Simpson for OBQ

Solicitors:
J Kambas as separate representative for OBQ
S Radburn for OBQ

File Number(s):

NCAT 2020/00155195

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

Background

1. OBQ is 86-years-old and lives at an aged care facility in regional NSW. His wife died in 2017. He has four adult children who are LAQ, TYQ, DZC and WBX.

2. On 9 October 2017 OBQ made an enduring power of attorney appointing DZC as the attorney and WBX as the substitute attorney.

3. On 12 February 2018 OBQ executed a Revocation of Power of Attorney, revoking the power of attorney appointing DZC as the attorney. The date of the power of attorney is not recorded in the revocation.

4. A copy of letter to DZC dated 14 March 2018 from a law firm, advises that DZC’s appointment as OBQ’ss attorney had been revoked.

5. On 28 March 2018 OBQ executed a Revocation of Power of Attorney, revoking the power of attorney dated 9 October 2017 appointing DZC as the attorney. On that day OBQ also executed a revocation of the appointment of DZC as his enduring guardian.

6. A copy of a letter dated 29 March 2018 addressed to DZC advises of the revocation of the enduring guardianship appointment.

7. On 6 April 2018 OBQ made an enduring power of attorney appointing LAQ and TYQ as the attorneys.

8. On 25 May 2020 the Tribunal received an application from DZC seeking a review of the enduring power of attorney made on 6 April 2018 appointing LAQ and TYQ as the attorneys. In the application DZC seeks a review of the operation and effect of the enduring power of attorney.

9. On 9 July 2020 the Tribunal received an application from DZC seeking a review of the revocation of the enduring power of attorney that appointed her as the attorney.

10. On 2 July 2020 at a Directions hearing, the Tribunal ordered that OBQ be separately represented at the hearing and made directions regarding the filing and serving of documents.

11. At a Directions hearing on 31 July 2020 the Tribunal consented to OBQ being legally represented by Sean Radburn, refused an application by LAQ and TYQ for legal representation and ordered that OBQ be assessed by a geriatrician.

12. On 11 September 2020 the Tribunal convened to conduct the hearing which it adjourned on a part-heard basis.

13. The Tribunal reconvened and finalised the hearing on 25 September 2020.

The hearing

14. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

OVERVIEW OF THE EVIDENCE

Concerns raised by DZC

15. DZC claimed that over time, and before the revocation of the enduring power of attorney appointing her and the making of the enduring power of attorney appointing her brothers, LAQ had borrowed large sums of money from OBQ, including a loan of $250,000 and a loan of $25,000 that had been being repaid by Ms Z, the partner of LAQ. She also advised that LAQ had been declared bankrupt in 2014.

16. OBQ’s property at [Address removed for publication.] (“the Property”) was let after OBQ entered the aged care facility. DZC noted that the rent was paid by cash from18 October 2018 until 12 July 2019 and on her calculations, should have generated an income of approximately $13,850 based on weekly rental of $350. She was of the view that those funds have not been properly accounted for.

17. DZC raised a number of concerns about the sale of the Property by the attorneys and the sale of the furniture and effects from the house, including:

1. She was of the view that OBQ was unaware of the sale of the property;

2. The refundable accommodation deposit (RAD) at the aged care facility had not been paid despite funds being available from the sale of the property;

3. A bank account from Bank YZ had been opened for OBQ. The funds from the sale of the Property had been placed in that account instead of in OBQ’s existing savings account from Bank AB. In her view, it was not necessary to open the new bank account;

4. Funds had been removed from OBQ’s Bank YZ account following the sale of the Property. Specifically two withdrawals of $193,500 had been made and were transferred to accounts later identified as being those of the attorneys;

5. The disbursements note that a sum of $3898 was used to discharge a Retail and Small Business Loan from Bank WX for which payment instalments had previously been made by Ms Z, the partner of LAQ.

18. Further issues raised regarding dealings with OBQ’s affairs were:

1. In April 2020 a total of $17,000 was transferred from OBQ’s account to that of TYQ;

2. Further transfers of funds amounting to $31,500 were made in April 2020;

3. The aged care facility account had frequently been in arrears and OBQ’s Bank AB account had six incidents of dishonoured withdrawals or overdrawn funds between 17 May 2019 and 3 April 2020;

4. Some $800 had been spent as unclassified expenses;

5. There have been extensive dealings with OBQ’s affairs and the attorneys have not kept proper records;

6. The estate has been diminished by the actions of the attorneys.

19. DZC was also concerned about the whereabouts of OBQ’s motor vehicle and the fact that the rates on OBQ’s property had been overdue.

20. DZC expressed the view that her contact with OBQ had been restricted by LAQ who had blocked her telephone number on her father’s telephone and had diverted calls to that telephone to his own telephone. In her view OBQ was misled into revoking the enduring power of attorney appointing her and making the new appointment of her brothers because he had been told by her brothers that she had not sought contact with him.

21. DZC also advised that she was told by TYQ that LAQ had a taxation debt of some $500,000 in which he had implicated his parents and that TYQ was intending to pay the parents’ half share.

22. In respect of the revocation of the power of attorney appointing her as the attorney:

1. DZC was of the view that OBQ executed that document believing that he was revoking an enduring guardianship appointment. For some time during the hearings DZC asserted that there was no revocation of an enduring guardianship appointment and that therefore when he was intending to revoke the enduring guardianship OBQ had in fact executed the revocation of the enduring power of attorney. In her view this situation amounted to OBQ being misled into revoking the enduring power of attorney. She also noted that there was no evidence that a Greek interpreter had assisted OBQ when executing those documents;

2. She believes that her brothers influenced OBQ to revoke her appointment as the attorney and appoint them on the basis that she had not been in contact with him, when, in fact, the telephone diversions had prevented her contacting him;

3. She denied removing items from OBQ’s home without his permission.

Evidence and submissions of OBQ

23. At the hearing on 11 September 2020 the Tribunal asked a number of questions of OBQ. His responses were to the following effect:

1. He did not specifically remember making a power of attorney appointing DZC but thought that he had done so 15 to 20 years ago;

2. When he moved to live in another part of the State, he decided that he wanted his sons to manage his affairs;

3. His sons do not run his affairs because he is still running his own affairs;

4. When asked if he gave his sons permission to access his bank account and buy and sell property for him he said “Yes” about 10 to 15 years ago;

5. When asked if he previously gave his daughter similar consent he said words to the effect of “30 years ago, I don’t know, I know that for the last 10 to 15 years my sons have run the business”.

24. When asked about the rental of the Property he said that LAQ was collecting the rent and he was unaware whether the rent was paid in cash or otherwise.

25. When asked what he knew about the sale of the Property, OBQ said that the house was empty and needed to be sold. He did not recall when it was sold but thought that it was sold for $440,000 to $450,000 and that the proceeds had been placed in the bank. When asked which bank he said that we should ask LAQ, but that it was in a bank in the names of LAQ and TYQ. When asked why this was the case he said words to the effect of “because I gave them permission”.

26. When the placement of the net proceeds of the sale of the Property was discussed OBQ commented with words to the effect of “My two sons, [LAQ] and [TYQ], hold the money for me.”

Evidence and submission of LAQ

27. LAQ expressed the view that OBQ retains the ability to direct his attorneys regarding the management of his affairs and that as the attorney he has acted on those instructions.

28. In respect of specific matters raised by DZC, LAQ offered evidence and made the statements and submissions to the following effect:

1. He denied that a loan of $25,000 taken out by his parents was for his benefit. He states that part of the funds was given to his sister, WBX, and he assumes that the remainder of the funds was used by his parents. He stated that he and Ms Z have been repaying the loan with the agreement with his parents, because “that is what families do,” and that the loan was discharged on the sale of the Property;

2. He advised that he was declared bankrupt on 2 May 2014 and was discharged from bankruptcy in 22 July 2017. He provided documentary evidence of the discharge;

3. He denied having a taxation debt of $500,000 and states that he has contacted the Australia Taxation Office who have confirmed that he does not and has never owed such a debt;

4. In respect of the cash rental income from the Property of OBQ’s, the money was used for OBQ’s expenses. However from May 2019, the tenant requested to pay the rent directly into the bank account and all the funds were directed to the nursing home fees as OBQ was receiving a reduced aged care pension;

5. He had OBQ’s car registered in his own name because WBX had told him that a family member was looking to take it;

6. In respect of the furniture and other items in the Property, he advised that some was sold and some disposed of. He provided the Tribunal with copies of internet communication regarding sale of some property and list of property that was disposed of;

7. He advised that OBQ’s aged care fees had gone into arrears when a freeze was placed on his Bank AB account. This occurred due to an administrative error resulting from OBQ’s previous Greek residency status and concerns regarding his Foreign Tax Residency. LAQ provided a copy of a letter dated 18 July 2019 to OBQ at the address of the Property, that refers to issues about foreign tax residency and states that until information was provided regarding that matter a restriction could apply to the account as a result of which he would be unable to transact on the account other than to make deposits or repayments. When LAQ realised what was causing the restrictions on the account he had completed necessary documents at the bank and the restriction was lifted and nursing home fees were paid;

8. In respect of the sale of the Property:

1. OBQ knew about the sale of the property and asked his sons to sell it for him. OBQ had instructed his sons to accept an offer of $470,000 for the property. OBQ signed the discharge of mortgage on 17 March 2020. This indicates that he was aware of the sale, contrary to DZC’s concerns that on 6 April 2020 OBQ was not aware of the sale;

2. He signed the contract of sale as OBQ’s attorney and settlement took place on 31 March 2020. Net sale proceeds were $446,737.18 which were disbursed as follows:

1. $20,000 repaid to him and his partner for costs incurred on behalf of OBQ for expenses including rates and water accounts, car registration, insurance and medical bills. This amount was paid by way of deposit of $10,000 on 10 April 2020 and $10,000 on 12 April 2020. He had not provided the Tribunal with receipts for the expenses as he had not been asked to do so;

2. The remaining funds are held in two accounts in trust for OBQ. The accounts each have $193,500. One account is in his name and the other account is in the name of TYQ. This action was taken to protect OBQ’s funds because DZC had previously accessed his Bank AB account.

9. A decision had not yet been made about paying the refundable accommodation payment as opposed to paying a daily accommodation fee;

10. He has asked DZC to sign over burial plots purchased for her parents and put into DZC’s name because he believes that they belong to OBQ and as his attorney he wants to hold the title to the plots;

11. He did divert OBQ’s landline to his number and that of his brother because after the death of his wife, OBQ often stayed with his sons and was rarely at his own home. When OBQ first moved into the aged care facility he asked the family not to telephone too often to assist with OBQ settling into the aged care facility.

29. In relation to the revocation of the appointment of DZC as OBQ’s attorney and the appointment of him and his brother to that role, in his written and oral statements LAQ indicated the following:

1. Whilst OBQ’s wife was in palliative care, DZC had removed items from the Property. OBQ was often away from the home over this period, staying with family, and when he returned and took stock of the situation after the death of his wife he was upset about the removal of items and had asked his lawyer to seek their return.

2. He had decided to appoint his sons as his attorneys when he was contemplating living with his daughter, WBX, in Sydney and this arrangement would have allowed his sons/attorneys to manage his assets in regional NSW. However he had not been able to remain at WBX’s home and had returned to another area in regional NSW.

Evidence and submissions of TYQ

30. In his written and oral evidence TYQ provided evidence, statements and submissions to the following effect:

1. He denied influencing OBQ to make the enduring power of attorney and noted that he was not present when the appointment was made. In this respect he noted that he did not accept the appointment until 22 June 2018;

2. He denies telling DZC that LAQ had a taxation debt of $500,000 in which he had involved his parents. He has no knowledge of the business affairs of LAQ since they ended a partnership in 2005. He has no knowledge of a proposal that he pay half the debt ion behalf of his parents;

3. OBQ was distressed by the actions of DZC and WBX who removed items from his home when his wife was in palliative care;

4. He denies that OBQ was unaware of the sale of the home. He had discussed the sale with his father in March 2020. He believes that OBQ told DZC that the sale was not her business and not, as DZC advises, that he was unaware of the sale;

5. He is holding half the net house sale proceeds in trust for OBQ in an Bank WX account. He opened that account because the Credit Union of Bank YZ advised that it did not operate accounts held on trust for others;

6. OBQ had not reached a decision about paying the refundable accommodation deposit and has since decided not to do so;

7. He had paid out funds on behalf of OBQ including a contribution to the disputed burial plots. He was repaid for his expenses by payment of $17,000 after the sale of the Property;

8. Over many years there have been financial arrangements entered into by himself and OBQ including that he has paid a number of OBQ’s expenses. When his parents first left Sydney to go to regional NSW he paid to purchase their new home when the sale of the previous home fell through. He was later reimbursed and did not charge his parents interest.

The capacity of OBQ

31. We were provided with a letter from Dr Y, a geriatrician, dated 30 August 2020 addressed to Mr Radburn and incorporating Dr Y’s assessment of OBQ’s capacity when seen on 20 August 2020. He advises the following:

1. OBQ scored 23/30 on the Mini Mental State Examination (MMSE) and this score represents mild cognitive impairment;

2. During the assessment OBQ had no problems with speech or comprehension and gave a reasonable account of his past and present medical and legal issues;

3. OBQ said that he had appointed his sons as his attorneys under an enduring power of attorney. When asked if he wanted to make any changes to the appointment he said that he did not want to do so. He mentioned that his daughter was interested in taking over the role and that he was not inclined towards that outcome. When asked his reasons he expressed dissatisfaction for reasons that Dr Y has recorded elsewhere but which were not provided to the Tribunal;

4. OBQ understood that nature of a will and said that he has left his estate to each of his four children and that he did not want to make any changes to the will.

5. When asked about assets OBQ was aware that he has no property in his name. He was able to name his bank and an amount and to provide information about his bank balance.

6. OBQ said that he was happy at the aged care facility. He was also aware of his medical conditions and has made appropriate decisions regarding his treatment.

7. Overall, OBQ was able to comprehend questions asked and topics discussed and was able to reflect upon them and to express his wishes clearly. He was aware of his financial standing, his assets and his will and did not want to make any changes. He expressed some concern about family dynamics and interference with his decision making. Dr Y has recorded detail elsewhere in documentation that was not provided with the report.

1. In Dr Y’s opinion, OBQ was able to make decisions regarding his enduring power of attorney and to decide about any revocation.

2. Due to his mild cognitive impairment and diagnosis of cancer with a limited prognosis, OBQ is likely to be vulnerable to influence from family members.

Mr X

32. During the hearing Mr X, the son of TYQ and the grandson of OBQ, read from a document. He said that he was reading the document on behalf of LAQ and TYQ. In addition the matters already canvassed this statement included the following:

1. There has been long standing conflict between DZC and her siblings for reasons which no party had disclosed in the current matter;

2. Prior to the current enduring power of attorney appointment OBQ’s affairs had been neglected and his pension income was halved;

3. Respect for OBQ’s freedom of action and freedom of decision making requires that the Tribunal not intervene with the appointments he has made.

Evidence of Mr V

33. In an affidavit dated 22 September 2020 Mr V, solicitor of a law firm, provided evidence to the following effect:

1. On or about 12February 2018 OBQ instructed Ms W to prepare an enduring power of attorney and an enduring guardianship appointment appointing his sons to those roles and about that time also instructed Ms W to revoke the enduring power of attorney appointing DZC. On 14 March 2018 a copy of the revocation of the enduring power of attorney was posted to DZC.

2. After Ms W had left the firm Mr V had noticed that the revocation of the enduring power of attorney prepared by Ms W did not have a registration number and on 28 March 2018 OBQ had instructed him to prepare a new revocation of enduring power of attorney and a revocation of enduring guardianship. On 29 March 2020 those documents were sent to the firm’s Sydney agent for registration.

3. On 29 March 2018 Mr V sent a letter to DZC advising of the revocation of the enduring guardianship appointment.

Evidence of Mr U

34. In a statutory declaration dated 19 August 2018 Mr U, a solicitor, makes statements to the following effect:

1. He is a principal at another law firm. In August 2019 OBQ and LAQ attended his office following the death of OBQ’s wife. They provided a number of documents including the power of attorney appointing DZC and the registered revocation of that appointment dated 28 March 2018 and a current registered power of attorney appointing LAQ and TYQ as the attorneys. He was asked to lodge a death notice regarding OBQ’s wife with the NSW Land Registry Services so that OBQ would be recorded as the sole registered proprietor of the land.

2. He recalls that after meeting with OBQ and LAQ together he then met with OBQ alone as is his usual practice in matters such as these. He noted that English was not OBQ’s first language, but was satisfied that with repeating and rewording OBQ understood questions asked and information given. Mr U confirmed that OBQ knew that LAQ was given authority to act for him under the enduring power of attorney and that he understood the procedure involved in sending the death notice to the Land Registry Service.

3. When alone with OBQ he asked who he wanted to be contacted in relation to the matter being handled and OBQ said words to the effect of “yes please deal with [LAQ] about this stuff. I don’t want to be bothered with paperwork. I trust [LAQ] to do what I want.”

4. In December 2019, the firm was approached regarding the sale of the Property. Mr U was comfortable dealing with LAQ on the transaction because OBQ had said that he wanted his office to take instructions from LAQ in relation to his affairs.

Submissions of the separate representative

35. Mr Kambas submitted the following:

1. He believes that OBQ has executed the power of attorney and revocation with capacity. In three conferences he has consistently indicated that in 2017 he was happy for DZC to be his attorney. However he was unhappy about the removal of property from his home and issues around the burial plot and upon moving back to the other part of the State, he had decided to appoint his sons as his attorneys and he was happy with the decision.

2. DZC has not provided evidence of undue influence in respect of the appointment and revocation, and the affidavit of Mr V does not support a suggestion of undue influence.

REVIEW OF ENDURING POWER OF ATTORNEY

What did the Tribunal have to consider?

36. The Tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney, or not to carry out such a review: Powers of Attorney Act 2003 (NSW), s 36(1). As a consequence of reviewing the making or operation and effect of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act (s 36(2)). In her application DZC seeks a review of the operation and effect of the enduring power of attorney.

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

1. that it would be in the best interests of OBQ to make the order;

2. that it would better reflect the wishes of OBQ to make the order.

38. These orders include:

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

2. An order removing a person from office as attorney;

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

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

5. An order directing the attorney to:

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

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

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

4. Submit a plan of financial management for approval.

6. An order revoking all or part of the power of attorney;

7. Such other orders as the Tribunal thinks fit.

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

Does DZC have standing to make the application?

40. A person may apply for an enduring power of attorney to be reviewed if he or she is:

1. an attorney (including an attorney whose appointment has been purportedly revoked);

2. the principal;

3. any person who is:

1. a guardian of the principal (whether under the Guardianship Act or any other Act or law); or

2. an enduring guardian of the principal under the Guardianship Act;

4. any other person who, in the opinion of the review tribunal, has a proper interest in the proceedings or a genuine concern for the welfare of the principal.

41. We were satisfied that as OBQ’s daughter with an ongoing relationship with him, and a person previously appointed as an attorney, DZC has standing to bring the application.

Should the Tribunal conduct the review?

42. 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.”

43. The Tribunal decided to conduct a review of the enduring power of attorney because the application raised issues regarding the depletion of OBQ’s estate and unexplained dealings with the proceeds from the sale of the Property. We were satisfied that these were matters that were within the scope of the Tribunal to consider and had been brought properly before the Tribunal.

Should the Tribunal make any orders under section 36?

44. The Tribunal then proceeded, pursuant to s 36(2) of the Powers of Attorney Act, to consider whether or not to make an order under s 36 of that Act.

The operation and effect of the enduring power of attorney

Duty to keep records and to account

45. There is no statutory requirement that the attorney keep records and accounts. However a general law obligation exists. This was considered by Slattery J in Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 as follows:

“The attorney's obligation is really one to keep accurate primary accounting records, for which the principal can call, if necessary, for the principal's examination. If the principal then wishes to produce secondary accounts, or full financial accounts, that is a matter for the principal” [at 64].

46. In our view there was a paucity of financial records made available to the Tribunal particularly in respect of funds that the attorneys asserted to have expended on behalf of OBQ that were subject to repayment upon the sale of the Property.

47. In our view, however, if OBQ has the capacity to authorise and instruct the attorneys in relation to his estate then the presentation of financial records as a basis for recompense is a matter for him. The evidence before the Tribunal is that Dr Y assessed OBQ as being able to instruct his attorneys and Mr U and Mr Kambas were of the view that he understood his affairs. Whilst we are of the view that OBQ’s orientation as to time was limited in his evidence regarding the making of the enduring powers of attorney, we are satisfied that he was able to correctly described the sequence of the appointments. We were satisfied that during the hearing OBQ was able to outline his affairs and the general dealings with those affairs. In our view it is not in the best interests of OBQ, or in keeping with his wishes, to demand more of the attorneys than he has done with capacity.

Fiduciary duty

48. An attorney is in a fiduciary relationship with the person whose affairs they manage. An attorney must act in the best interests of the principal and must not obtain a personal benefit other than specifically provided for in the executed enduring power of attorney: Powers of Attorney Act, s 12(1).

49. We are concerned that the funds from the sale of the Property have been banked in the names of the attorneys, albeit, according to their evidence, in trust for OBQ. However OBQ has told us that he authorised this arrangement and as noted above, he has been found by Dr Y to understand his affairs sufficiently to instruct his attorneys and Mr U and Mr Kambas have also been satisfied about his understanding of his affairs. During the hearing OBQ was able to outline his affairs and the general dealings with those affairs.

50. Our concern is ameliorated to some extent by the acknowledgement of the attorneys that the funds are held in trust for OBQ, and having received that acknowledgement it is our view that it is not in the best interests of OBQ or in accordance with his wishes, to make orders that could have the effect of overriding an arrangement put in place with his agreement.

Conflicts of interest

51. The Tribunal was required to consider all relevant circumstances, including whether there was evidence of any conflict of interest facing the attorney. As noted in Re R [2000] NSWSC 886, to allow an attorney

“With conflicts of interest to continue is something that … has to be watched carefully. If it has to be watched carefully, then it seems to me that it is just a question of fact and degree as to whether in all the circumstances it is in the best interests of the incapable person that that situation continues.”

52. Our concerns as noted above caused us to consider whether there is a conflict of interests between OBQ and his attorneys. However as noted, OBQ has given evidence that the attorneys have acted on his instructions and the medical evidence is to the effect that he is able to provide those instructions. As it is now acknowledged that the funds held in the names of the attorneys are held in trust for OBQ we are satisfied that it is not in his best interests to make an order that could change the arrangements made with his consent.

53. We note that Dr Y is of the view that OBQ could be liable to influence from family members. In our view taking into account that OBQ has a limited prognosis due to his cancer and has expressed some disappointment at the actions of DZC, it is possible that he has been influenced by the attorneys in the instructions he has given to them.

54. In the matter of Tulloch (deceased) v Braybon (No 2) [2010] NSWSC 650 at [39] and [40], Brereton J considered the concept of undue influence as that concept applies to dispositions made in circumstances of undue influence:

“it must go beyond one of mere confidence and influence, to one involving dominion or ascendancy by one over the will of the other, and correlatively dependence and subjection on the part of the other. …But more is required than the ‘influence’ that any person might have on another by making an recommendation or giving advice. What is required, as a minimum, is that one have some element of authority or superiority (which may be moral or practical as distinct from legal) over the other.”

55. In our view whilst OBQ might have been influenced by his sons and accepted their advice in instructing them to handle his affairs in the way that they have, the consistent evidence before us is that OBQ has an understanding and interest in his affairs such that his will has not been overborne by the attorneys.

56. In our view where OBQ retains capacity to instruct his attorneys it is not in his best interests to overturn his decisions and to do so clearly is not in accordance with his wishes. Therefore we made no orders in respect of the operation and effect of the enduring power of attorney and we were not of the view that it was in his best interests to make a financial management order.

Review of Revocation of Enduring Power of Attorney

What did the Tribunal have to consider?

57. 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, s 36(1). As a consequence of reviewing the revocation of a reviewable power of attorney, the Tribunal may decide whether or not to make an order under s 36 of the Powers of Attorney Act (s 36(2)).

Should the Tribunal conduct a review of the revocation of the enduring power of attorney?

58. As noted above, DZC was of the view that OBQ was influenced in his decision to revoke the appointment by:

1. the actions of LAQ in blocking her telephone access to OBQ and then asserting to OBQ that she was not interested in contacting him; and

2. some misunderstanding or misleading information that resulted in him being confused about the revocation of the enduring guardianship as opposed to revocation of the enduring power of attorney.

59. As noted in the section of these Reasons dealing with the review of the operation of the enduring power of attorney, Mr Kambas was of the view that OBQ has capacity to manage his affairs and the Tribunal should not intervene in his affairs.

60. We are of the view that the evidence discloses some inconsistency about the catalyst for the revocation of the appointment of DZC as the attorney and the appointment of her brothers, in that it was submitted both that these documents were executed because OBQ was moving to Sydney and his sons could attend to his assets in regional NSW and that they were executed because he had moved back to the other part of the State. It is our understanding that the documents were executed prior to OBQ moving back to the other part of the State and into the aged care facility.

61. As noted above, we are of the view that it is possible that OBQ is now influenced by his sons because he places some reliance and trust in their views, but in our view his will is not overborne by theirs. We accept that DZC’s contact with OBQ was reduced when his telephone was diverted following the death of his wife at a time when he was not always living in his home. However we do not accept that DZC was prevented from contacting or seeing OBQ. Whilst we are of the view that OBQ’s decision to revoke the appointment of DZC is likely to have included disappointment at limited contact from her, we are also of the view that OBQ was influenced by disappointment about her removing items from the home and also by the issues around the burial plots.

62. In our view OBQ’s decision to revoke the appointment of DZC as his attorney may have been informed by a number of factors and DZC has not brought to the Tribunal evidence of weight indicating undue influence to warrant review of the decision.

63. DZC submitted that OBQ was misled about the document that he executed as he had thought that he had revoked her appointment as his enduring guardian. We have been provided with copies of two revocations of the enduring power of attorney appointing DZC and a copy of the revocation of her appointment as the enduring guardian. In our view DZC has not brought to the Tribunal any evidence of weight that OBQ was confused or misled about the effect of these documents or that he mistook one for the other.

64. We are also of the view that the evidence of Dr Y and of the solicitors who have had dealings with OBQ about his affairs, and OBQ’s evidence about the revocation, do not provide a basis for a further examination of OBQ’s capacity to revoke the appointment. Accordingly in our view we should not review the revocation on that basis.

65. Having considered the evidence it is our view that there is insufficient evidence to warrant the Tribunal’s intervention in this matter. Accordingly we decided not to conduct a review of the revocation of the enduring power of attorney.

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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: 09 June 2021