QMT

[2015] NSWCATGD 44

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

QMT [2015] NSWCATGD 44

Hearing dates:

14 December 2015

Date of orders:

14 December 2015

Decision date:

14 December 2015

Jurisdiction:

Guardianship Division

Before:

B Tearle, Senior Member (Legal)
L Tong, Senior Member (Professional)
M Smith, General Member (Community)

Decision:

Leave for Solicitor A to represent Mr DAX in these proceedings refused.

 

Reviewed enduring guardianship appointment and confirmed the appointment.

Declared under s 36(3)(a) of the Powers of Attorney Act 2003 (NSW) that Mrs QMT did have the mental capacity to make a valid enduring power of attorney.

Catchwords:

REVIEW OF APPOINTMENT OF ENDURING GUARDIAN – no evidence that decision making by enduring guardian not in principal’s best interests – views of principal taken into account – appointment confirmed

 

REVIEW OF ENDURING POWER OF ATTORNEY – application seeking revocation of enduring power of attorney on the grounds principal did not have capacity – principal diagnosed with severe vascular dementia – evidence from solicitor who explained instrument to principal – Tribunal satisfied principal had capacity to make enduring power of attorney – declaration of mental capacity

  PRACTICE AND PROCEDURE – application for legal representation by a party – leave refused

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), section 45(1)
Guardianship Act 1987 (NSW), ss 4, 6K(2)
Powers of Attorney Act 2003 (NSW), ss 35, 35(1), 36(1), 36(3)(a); Sch 6, Cl 5
Civil and Administrative Tribunal Rules 2014 (NSW), Rule 31(1)

Category:

Principal judgment

Parties:

to the review of the enduring guardianship appointment:

 

Mrs QMT (subject person)
Mrs TPC (applicant)
Mr DAX (enduring guardian)

 

to the review of the enduring power of attorney:

  Mrs QMT (principal)
Mrs TPC (applicant)
Mr DAX (appointed attorney)

Representation:

NIL

File Number(s):

60984

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identity any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS for decision

APPLICATION TO REVIEW THE APPOINTMENT OF AN ENDURING GUARDIAN

APPLICATION FOR REVIEW OF AN ENDURING POWER OF ATTORNEY

What the Tribunal decided

1. The Tribunal refused leave for Solicitor A to represent Mr DAX in these proceedings.

2. The Tribunal reviewed the enduring guardianship appointment made by Mrs QMT on 15 October 2015, and confirmed the appointment of Mr DAX as the enduring guardian for Mrs QMT. The Tribunal did not vary the functions Mrs QMT gave to her enduring guardian.

3. The Tribunal declared under section 36(3)(a) of the Powers of Attorney Act 2003 (NSW) that Mrs QMT did have the mental capacity to make a valid enduring power of attorney on 13 October 2015.

Background

4. Mrs QMT, who is 89 years old, is now a resident of the Aged Care Facility A in Northern Sydney. Mrs QMT had, until recently, been living in at the Aged Care Facility B, in Regional NSW. Mrs QMT is reported to have dementia.

5. Mrs QMT's second husband, Mr UBT, died on 10 October 2015. Mrs QMT has a son, Mr DAX, and two stepchildren: Mrs TPC and Mr XGT.

6. On 13 October 2015, Mrs QMT appointed her son, Mr DAX, to be her attorney under an enduring power of attorney. Very soon afterwards, on 15 October 2015, Mrs QMT appointed Mr DAX as her enduring guardian.

7. Mrs TPC, Mrs QMT's stepdaughter, applied to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) in October 2015 for a review of Mrs QMT's appointment of an attorney under an enduring power of attorney. In November 2015, Mrs TPC lodged a second application seeking a review of that enduring power of attorney. The Tribunal understands that Mrs TPC had lodged that second application in error. Three days later, the Tribunal received from Mrs TPC an application to review Mrs QMT's appointment of an enduring guardian.

Conduct of the hearing on 14 December 2015

8. Mrs QMT attended the hearing on 14 December 2015 in person, and participated to some extent. Nevertheless, the Tribunal records that Mrs QMT appeared to be asleep in some of the early stages of the hearing. Her son, Mr DAX, and Solicitor A, Solicitor, each informed the Tribunal that Mrs QMT was in some considerable pain at the time.

9. The question of how best to assist an ageing family member with arrangements for her care, and the management of her financial affairs, are matters on which people of good will may quite legitimately differ.

10. It was evident to the Tribunal that there was a certain degree of conflict among some members of Mrs QMT’s family concerning the arrangements for her care, and the management of her financial affairs. This conflict was referred to in the written material supplied to the Tribunal before the hearing, and in some of the comments made during the hearing itself by various participants.

11. At this stage, it would not be in Mrs QMT’s interests for the Tribunal to recite the details of the past or present disagreements. The Tribunal does not consider it either necessary or helpful to summarise here the range of views expressed, unless specifically relevant to an issue before the Tribunal. The Members of the Tribunal carefully considered the views that were expressed, and took account of those views when making the Tribunal's determinations.

12. Before the Members of the Tribunal spoke with Mrs QMT in the absence of the other participants, the Tribunal had encouraged the parties to talk genuinely among themselves. The Tribunal invited the parties to see whether they might, with good will, and a focus on Mrs QMT’s best interests and welfare, be able to resolve their previous differences. The parties were not able to resolve their differences.

13. A list of the parties to the proceedings and witnesses at the hearing is contained in an appendix to these Reasons for Decision. [Appendix removed for publication]

Legal representation refused

14. On 7 December 2015, Solicitor A, Solicitor, wrote to the Tribunal, seeking leave to represent Mr DAX, Mrs QMT's son, enduring guardian and appointed attorney, in these proceedings. Solicitor A submitted that, if she were to represent Mr DAX, there would be a reduced level of conflict during the hearing. Solicitor A also submitted that legal representation would assist the participants to focus on the relevant issues.

15. At the commencement of the hearing on 14 December 2015, Solicitor A spoke to her submission. Mr DAX confirmed that he wanted Solicitor A to represent him in these proceedings.

16. Mrs TPC opposed the granting of leave to Solicitor A to represent Mr DAX. Mrs TPC noted that she had not had time to arrange legal representation for herself.

17. In proceedings before the NSW Civil and Administrative Tribunal, a party has the carriage of that party's case, and is not entitled to be represented by any person. A party may be represented by another person only if the Tribunal grants leave for that person, or for a particular Australian legal practitioner, or for any Australian legal practitioner, to represent the party (Civil and Administrative Tribunal Act 2013 (NSW), section 45(1)).

18. In other words, representation (whether legal representation or by an agent) is only permitted with the Tribunal's leave. The Tribunal may, at its discretion, grant or refuse leave to represent a party in the proceedings, and may revoke any leave that it has granted (section 45(3)).

19. Only the person who wishes to represent a party may apply for leave to represent that party. An application for leave to represent a party may be made orally or in writing at any stage of the proceedings (Civil and Administrative Tribunal Rules 2014 (NSW), Rule 31(1)).

20. The Tribunal noted that Mr DAX’s rights were not significantly in issue in these proceedings. Instead, the proceedings affected the rights of his mother, Mrs QMT. Further, it appeared to the Tribunal that no unusual legal issues would arise in the proceedings. The Tribunal also noted that neither Mrs QMT herself, nor the applicant, Mrs TPC, would have legal representation.

21. For these reasons, the Tribunal decided not to grant leave for Solicitor A to represent Mr DAX in these proceedings. However, the Tribunal made it clear to Solicitor A that she was free to remain throughout the hearing as a McKenzie friend, and that she would be able to give advice and assistance to Mr DAX in that capacity. Solicitor A did indeed remain throughout the hearing, and did provide advice and assistance to Mr DAX in that way.

Mrs QMT's own views

22. The Members of the Tribunal indicated to Mrs QMT, and to the other participants in the hearing, that they saw merit in being able to speak with Mrs QMT in the absence of the other participants. No party or participant raised any concerns about the Tribunal speaking with Mrs QMT in the absence of the other participants. Mrs QMT agreed to speak with the Tribunal in the absence of the other participants.

23. Mrs QMT spoke candidly with the Tribunal. She stated that she was not sure who might be her enduring guardian. Nevertheless, when the Tribunal asked Mrs QMT whom she would trust to make important personal decisions on her behalf, she immediately replied "my son". Similarly, when the Tribunal asked Mrs QMT whom she would trust to look after her money or her property for her, she replied that she would trust "only my son."

24. Mrs QMT said that she does not like living where she is now, and she would prefer to be living in her own home. Mrs QMT then acknowledged that she is not now able to walk.

25. After Mrs QMT had expressed these views to the Tribunal, the other participants returned to the hearing room. With the permission of Mrs QMT, the Tribunal then summarised for the other participants the views that Mrs QMT had expressed.

Principles underpinning the Tribunal’s decisions

26. Parliament has provided guidance as to the principles to be observed when the Tribunal exercises its functions. In reaching its decision, the Tribunal sought to give effect to the guiding principle for the Civil and Administrative Tribunal Act and the procedural rules, in their application to proceedings in the Tribunal. The guiding principle is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (Civil and Administrative Tribunal Act, section 36(1)).

27. The Tribunal, when exercising its Division functions for the purposes of the Guardianship Act 1987 (NSW) in relation to persons who have disabilities, is also under a duty to observe the principles referred to in section 4 of that Act (Civil and Administrative Tribunal Act, schedule 6, clause 5).

28. The Tribunal records that, in reaching its decisions, the Tribunal had particular regard to the following principles:

• Mrs QMT’s welfare and interests should be given paramount consideration;

• the freedom of decision and freedom of action of Mrs QMT should be restricted as little as possible;

• Mrs QMT should be encouraged, as far as possible, to live a normal life in the community;

• Mrs QMT’s views in relation to the exercise of those functions should be taken into consideration;

• the importance of preserving Mrs QMT’s family relationships should be recognised;

• Mrs QMT should be encouraged, as far as possible, to be self-reliant in matters relating to her personal, domestic and financial affairs; and

• Mrs QMT should be protected from neglect, abuse and exploitation.

THE EVIDENCE AND THE TRIBUNAL'S REASONING

REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT

Reasons for this application

29. On 15 October 2015, Mrs QMT appointed Mr DAX as her enduring guardian. In November 2015, the Tribunal received from Mrs TPC an application to review Mrs QMT's appointment of an enduring guardian.

30. In her application, Mrs TPC expressed the view that Mr DAX has not been making sound decisions about his mother's care and accommodation. Mrs TPC stated that Mrs QMT had been living at the Aged Care Facility B for three years, but Mr DAX had decided to move her to Sydney.

31. Mr DAX opposed the application lodged by Mrs TPC.

Orders sought by the applicant

32. Mrs TPC indicated that she would like to be involved in decision-making concerning Mrs QMT's ongoing health and care needs. More specifically, Mrs TPC stated that she and her brother, Mr XGT, would like to become joint enduring guardians with Mr DAX.

What must be proved

33. The Tribunal noted that it does not have the authority to make orders appointing enduring guardians. The Legal Member took the opportunity to explain carefully to the participants the role of the Tribunal, the range of orders that the Tribunal might properly make, and the effect of those possible orders.

34. When reviewing an enduring guardianship appointment, the Tribunal may:

• revoke the appointment, and/or

• if it considers that it is in the best interests of Mrs QMT to do so, deal with the review as if:

• an application for a guardianship order, or

• an application for a financial management order, or

• applications for both such orders, had been made in respect of Mrs QMT, or

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

35. The Tribunal must not revoke the appointment of an enduring guardian unless:

• the enduring guardian requests the revocation; or

• the Tribunal is satisfied it is in the best interests of Mrs QMT that the appointment be revoked (Guardianship Act, section 6K(2)).

Clinical evidence

36. The Tribunal had before it some clinical evidence concerning Mrs QMT, and the issue as to whether or not she is cognitively impaired, or otherwise has a disability.

37. Dr Z, a general practitioner at Regional NSW, stated in a certificate prepared on 12 October 2012 that Mrs QMT was then "suffering from a medical condition", and was unable to sign her name.

38. Dr Y, Mrs QMT's most recent general practitioner at Regional NSW, stated in a certificate dated 15 August 2014 that Mrs QMT has vascular dementia. The Tribunal also considered a later report prepared on 19 November 2015 by Dr Y. In that report, Dr Y stated that Mrs QMT has had severe vascular dementia since 2007. Dr Y also reported that Mrs QMT has a history of depression and anxiety, and she experiences chronic pain. Mrs QMT's medication regime includes Endone for pain relief.

39. A member of Dr Y’s administrative staff advised the Tribunal on 20 November 2015 that Dr Y would not be attending the hearing.

40. The Tribunal did not consider it necessary to make a formal finding as to whether or not Mrs QMT is a person with a disability within the meaning of the Guardianship Act. The principal issue was whether or not it would be in the best interests of Mrs QMT to revoke her appointment of her enduring guardian.

Appointment of the enduring guardian confirmed

41. Mrs TPC submitted that Mrs QMT wished to return to live in her own home. Mrs TPC claimed that Mrs QMT is isolated now that she lives in Sydney, away from her friends.

42. Mr DAX asked the Tribunal to confirm his appointment as Mrs QMT's enduring guardian.

43. Mr DAX stated in a submission prepared on 4 December 2015 that Ms X, the Director of Nursing of the Aged Care Facility B, had suggested to him, following the death of Mr UBT, that an enduring guardianship appointment, and an enduring power of attorney, would assist Mrs QMT with her financial, health care, and service needs. Mr DAX stated that staff of the nursing home telephoned some local solicitors concerning that possibility, and, based on availability, arranged for Solicitor B to meet Mrs QMT.

44. Mr DAX stated that Mrs QMT has consistently expressed the wish that she wanted him to look after her. According to Mr DAX, Mrs QMT has not ever expressed a wish for anyone other than himself to make decisions on her behalf. Mr DAX also specifically denied that Mrs QMT had been confused or agitated after meeting Solicitor B on 13 October 2015.

45. Mr DAX gave written evidence that, following the death of Mr UBT, Mrs QMT had told him that she would like to come and live with Mr DAX and his wife in Sydney. Mr DAX explained to Mrs QMT that she would now need a high level of care, and proposed that she move into an aged care facility in Sydney. According to Mr DAX, Mrs QMT informed Ms X of her wish to move to Sydney.

46. Mr DAX provided the Tribunal with a detailed list of the actions he has undertaken since he was appointed as his mother's enduring guardian. He also outlined his future plans, which would include, if possible, facilitating Mrs QMT's transfer to a private room. Mr DAX gave evidence that he visits his mother every day at the Aged Care Facility A in Northern Sydney.

47. Solicitor B, the Solicitor who witnessed the execution by Mrs QMT of the instruments appointing Mr DAX as her enduring guardian and attorney, participated in the hearing by telephone as a witness. Solicitor B stated that he attends the Aged Care Facility B quite often. He confirmed that Ms X had asked him whether he would be available to discuss with Mrs QMT the execution of an enduring power of attorney.

48. Solicitor B gave evidence that he had asked Ms X about Mrs QMT's health, and Ms X had informed him that Mrs QMT has early onset dementia.

49. Solicitor B outlined, in very considerable detail, the steps he had taken in obtaining instructions from Mrs QMT, and the manner in which he had satisfied himself that Mrs QMT had, on 13 and 15 October 2015, the necessary capacity to execute the instruments of appointment.

50. Solicitor B stated that he was "absolutely satisfied" that Mrs QMT had the capacity to execute her enduring guardianship appointment on 15 October 2015. According to Solicitor B, Mrs QMT had quite a good understanding of that instrument of appointment. Solicitor B also confirmed that he is aware of the Capacity Guidelines issued by the Law Society of NSW. Solicitor B volunteered the information that he has significant disabilities himself, and he is a member of the Board of an aged care service provider.

51. In answer to a question asked by Mrs TPC, Solicitor B gave evidence that he had spent:

• at least one hour and 20 minutes with Mrs QMT explaining the enduring power of attorney to her, and obtaining her instructions; and

• at least one hour and 45 minutes with Mrs QMT explaining the enduring guardianship appointment to her, and obtaining her instructions.

52. In a report prepared on 10 December 2015, Ms X, the Director of Nursing of the Aged Care Facility B, stated that, in several discussions, Mrs QMT had told her personally that she wished to be near her son, Mr DAX, who lives in Sydney. Ms X was satisfied that Mrs QMT understood the key elements of the instruments by which she was to appoint Mr DAX to be her attorney, and her enduring guardian.

53. Mr DAX insisted that Mrs QMT did have the capacity to appoint him as her enduring guardian on 15 October 2015. Mr DAX acknowledged that his mother's health had deteriorated in the two weeks preceding the hearing on 14 December 2015, and that her capacity on 14 December 2015 was certainly diminished. Nevertheless, Mr DAX remained of the view that his mother did have the capacity to appoint him as her enduring guardian on 15 October 2015.

54. As was noted above, the Tribunal must not revoke the appointment of an enduring guardian unless:

• the enduring guardian requests the revocation; or

• the Tribunal is satisfied it is in the best interests of Mrs QMT that the appointment be revoked (Guardianship Act, section 6K(2)).

55. The Tribunal carefully considered all of the written and oral evidence available to it, as well as the submissions on behalf of the parties. The Tribunal could find no reason to conclude that it could properly overturn or revoke the appointment of Mr DAX as Mrs QMT's enduring guardian.

56. The Tribunal accepted the evidence concerning Mrs QMT's wish to move to Sydney to be near her son, Mr DAX. There was no evidence before the Tribunal to suggest that Mrs QMT is not receiving the health care that she needs, or that she is missing out on any services to which she should have access. The Tribunal was not satisfied that, in making decisions on Mrs QMT's behalf, Mr DAX did anything that was not in her best interests.

55. The Tribunal attached particular weight to Mrs QMT's own wishes, and to the evidence that Mrs QMT herself chose Mr DAX to be her enduring guardian. During the hearing, Mrs QMT clearly told the Tribunal that he would trust her son to make important personal decisions on her behalf.

56. The Tribunal was not satisfied that it would have been in Mrs QMT's best interests to revoke the appointment of Mr DAX as her enduring guardian.

57. For the reasons stated above, the Tribunal confirmed the appointment of Mr DAX as Mrs QMT's enduring guardian. The Tribunal did not vary the functions that Mrs QMT gave to her enduring guardian. The Tribunal notes that the effect of its decision is to leave intact Mrs QMT's own arrangements concerning enduring guardianship.

REVIEW OF ENDURING POWER OF ATTORNEY

Reasons for this application

60. On 13 October 2015, Mrs QMT appointed her son, Mr DAX, to be her attorney under an enduring power of attorney. Mrs TPC, Mrs QMT's stepdaughter, applied to the Tribunal in October 2015 for a review of Mrs QMT's appointment of an attorney under an enduring power of attorney. In November 2015, Mrs TPC lodged a second application seeking a review of that enduring power of attorney. The Tribunal understands that Mrs TPC had lodged that second application in error.

61. In her application, Mrs TPC stated that Mrs QMT has been diagnosed with dementia. Mrs TPC believed that Mrs QMT would not have had the capacity to have appointed an attorney under an enduring power of attorney on 13 October 2015. Mrs TPC claimed that Mrs QMT had no recollection of having signed an enduring power of attorney in favour of her son, Mr DAX. Mrs TPC indicated that she wished to be appointed with Mr DAX as a joint financial manager of Mrs QMT, so as to ensure that decisions concerning Mrs QMT's property are in line with the wishes of Mrs TPC's late father, Mr UBT, and those of Mrs QMT.

62. Mrs TPC specifically identified in her application her wish "to protect the family interest regarding [the property at Regional NSW now owned by Mrs QMT]". Mrs TPC acknowledged that the Regional NSW property would need to be sold. She stated that the proceeds of sale should be placed in a trust account until the passing of Mrs QMT, and then the funds should be disbursed according to "both wills". In context, the Tribunal understood Mrs TPC to be referring to the will of her late father, Mr UBT, as well as to Mrs QMT's own will.

63. Mr DAX opposed the application lodged by Mrs TPC. He submitted that Mrs QMT's funds should not be placed into a trust account so as to benefit her stepchildren.

What must be proved

64. To make an order relating to the making of the enduring power of attorney by Mrs QMT, the Tribunal must be satisfied that:

• The applicant, Mrs TPC, is an interested person within the terms of section 35 of the Powers of Attorney Act; and

• Mrs QMT did or did not have the mental capacity to make a valid enduring power of attorney.

Is Mrs TPC entitled to apply for this review?

65. The Tribunal’s authority to review the making, or the operation and effect, of a reviewable power of attorney arises when it receives an application from an “interested person”: Powers of Attorney Act, section 35(1). That Act specifies that each of the following persons is an “interested person” for this purpose:

(a)  an attorney,

(b)  the principal,

(c)  any person who is:

(i) a guardian of the principal (whether under the Guardianship Act 1987 or any other Act or law), or

(ii) an enduring guardian of the principal under the Guardianship Act 1987,

(d)  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 [section 35(1)].

66. The Tribunal was satisfied that Mrs TPC has a genuine concern for the welfare of Mrs QMT. Mrs TPC is an “interested person”, and is accordingly entitled to apply to the Tribunal in this way.

Did Mrs QMT have the mental capacity to make a valid enduring power of attorney on 13 October 2015?

67. Mrs TPC submitted that Mrs QMT would not have had the capacity to have appointed an attorney under an enduring power of attorney on 13 October 2015. Indeed, at the commencement of the hearing on 14 December 2015, Mrs TPC claimed that the execution of the enduring power of attorney had been "unlawful".

68. The Tribunal had before the clinical evidence, referred to above, that Mrs QMT has had severe vascular dementia since 2007.

69. Solicitor C, participated in the hearing as a witness. She gave evidence that she had visited Mrs QMT at the Aged Care Facility B in January 2013 to discuss the possible preparation of an enduring power of attorney. Solicitor C stated that it was her recollection that Mrs QMT did not then have sufficient capacity to provide instructions for an enduring power of attorney. Solicitor C acknowledged that she has not seen Mrs QMT since that time.

70. As was noted above, Solicitor B, the Solicitor who witnessed the execution by Mrs QMT of instruments appointing Mr DAX as her enduring guardian and attorney, participated in the hearing by telephone as a witness. Solicitor B confirmed that Ms X had asked him whether he would be available to discuss with Mrs QMT the execution of an enduring power of attorney. Solicitor B gave evidence that he had asked Ms X about Mrs QMT's health, and Ms X had informed him that Mrs QMT has early onset dementia.

71. Solicitor B outlined, in very considerable detail, the steps he had taken in obtaining instructions from Mrs QMT, and the manner in which he had satisfied himself that Mrs QMT had, on 13 and 15 October 2015, the necessary capacity to execute the instruments of appointment.

72. In particular, Solicitor B stated that he had explained to Mrs QMT the proposed enduring power of attorney, "sentence by sentence," and that Mrs QMT had asked him relevant questions about that document. Solicitor B said that he was "absolutely satisfied" that Mrs QMT had the capacity to execute the enduring power of attorney on 13 October 2015. According to Solicitor B, Mrs QMT had quite a good understanding of that instrument of appointment. Solicitor B also confirmed that he is aware of the Capacity Guidelines issued by the Law Society of NSW. Solicitor B volunteered the information that he has significant disabilities himself, and he is a member of the Board of an aged care service provider.

73. In answer to a question asked by Mrs TPC, Solicitor B gave evidence that he had spent:

• at least one hour and 20 minutes with Mrs QMT explaining the enduring power of attorney to her, and obtaining her instructions; and

• at least one hour and 45 minutes with Mrs QMT explaining the enduring guardianship appointment to her, and obtaining her instructions.

74. After hearing from Solicitor B, the Tribunal invited Mrs TPC to submit any further evidence she wished to present concerning Mrs QMT's capacity to have executed the enduring power of attorney on 13 October 2015. Mrs TPC replied that all of her evidence was to be found in the documents she had already submitted to the Tribunal, and she had no further evidence to submit. Mrs TPC repeated her view that Mrs QMT had lacked the capacity to have executed that document on 13 October 2015.

75. In a report prepared on 10 December 2015, Ms X, the Director of Nursing of the Aged Care Facility B, stated that she was satisfied that Mrs QMT understood the key elements of the instrument by which she was to appoint Mr DAX to be her attorney.

76. Mr DAX insisted that Mrs QMT did have the capacity to appoint him as her attorney on 13 October 2015. Mr DAX acknowledged that his mother's health had deteriorated in the two weeks preceding the hearing on 14 December 2015, and that her capacity on 14 December 2015 was certainly diminished. Nevertheless, Mr DAX remained of the view that his mother did have the capacity to appoint him as her attorney on 13 October 2015.

77. In reaching its decision, the Tribunal accepted the very detailed evidence of Solicitor B, the solicitor who had witnessed Mrs QMT's execution of the enduring power of attorney on 13 October 2015. Further, it was readily apparent to the Tribunal on 14 December 2015 that Mrs QMT still identifies Mr DAX as the only person whom she would trust to manage her money or her property. It was clear from Mrs QMT's own statements that she still trusts Mr DAX to act as her appointed attorney. The Tribunal was satisfied that Mrs QMT did have the mental capacity to make a valid enduring power of attorney on 13 October 2015.

78. For these reasons, the Tribunal declared under section 36(3)(a) of the Powers of Attorney Act that Mrs QMT did have the mental capacity to make a valid enduring power of attorney on 13 October 2015.

FORMAL FINDINGS

79. The Tribunal made the following formal findings:

Review of enduring guardianship appointment

• It is not in the best interests of Mrs QMT to revoke her appointment of Mr DAX as her enduring guardian, made on 15 October 2015.

• It is in the best interests of Mrs QMT to confirm that appointment.

Review of enduring power of attorney

• Mrs TPC is an interested person within the terms of section 35 of the Powers of Attorney Act; and

• Mrs QMT did have the mental capacity to make a valid enduring power of attorney on 13 October 2015.

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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: 03 March 2016