Samantha (a pseudonym)

[2024] NSWCATGD 26

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Samantha (a pseudonym) [2024] NSWCATGD 26

Hearing dates:

12 August 2024

Date of orders:

12 August 2024

Decision date:

12 August 2024

Jurisdiction:

Guardianship Division

Before:

B M Shipp, Senior Member (Legal)
W E Blaxland, Senior Member (Professional)
Dr Susan Barnes, General Member (Community)

Decision:

In relation to the enduring power of attorney made by Samantha on 30 March 2021 which appointed Ellen and John as attorney(s) the Tribunal determines, orders or declares:

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

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

c)    the application to appoint a financial manager is dismissed after hearing; and

d)    the application to appoint a guardian is dismissed after hearing.

Catchwords:

ENDURING POWER OF ATTORNEY – applicant has genuine concern for the subject person – whether the Tribunal should conduct a review – whether it is in the best interests of the subject person to conduct a review – review of the making, operation, and effect of the instrument – not satisfied that the subject person lacked the capacity to make the instrument – not satisfied that it would be in the best interests of the subject person or that it would better reflect their wishes to make an order under s 36(4) of the Powers of Attorney Act 2003 (NSW).

FINANCIAL MANAGEMENT – whether the subject person is incapable of managing their affairs – subject person currently lacks the capacity to manage their affairs – whether there is a need for a financial management order – the current attorney has undertaken their role in an acceptable fashion – the appointment of a financial manager would increase bureaucracy and management cost – there is not a need for a financial management order – application dismissed.

GUARDIANSHIP – whether the subject person is someone for whom the Tribunal could make an order – the subject person is unable to manage their person due to cognitive impairment – whether the Tribunal should make an order – the subject person has arrangements in place for substitute decisions – there is not a need for a guardianship order – application dismissed.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2); Pt 3A

Powers of Attorney Act 2003 (NSW), ss 19, 36, 36(1)-(2), 36(4)

Cases Cited:

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

Szozda v Szozda [2010] NSWSC 804

Re K[1988] Ch 310

Scott v Scott[2012] NSWSC 1541

IF v IG [2004] NSWADTAP 3

Texts Cited:

The Law Society of New South Wales, “Questions for preparing an Enduring Power of Attorney” (2018)

Category:

Principal judgment

Parties:

Guardianship Application

Samantha (the person)
Alice (applicant)
Ellen (enduring guardian)
Public Guardian

Financial Management Application

Samantha (the person)
Alice (applicant)
Ellen (attorney)
NSW Trustee and Guardian

Review of an Enduring Power of Attorney

Samantha (the person)
Alice (applicant)
Ellen (attorney)
NSW Trustee and Guardian

Representation:

Nil.

File Number(s):

NCAT 2024/00134834

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 carry out a review of operation and effect, and the making of a power of attorney. As a consequence of that review, the Tribunal decided to make no orders under the Powers of Attorney Act 2003 (NSW).

2. The Tribunal also decided to dismiss the guardianship and financial management applications.

Background

3. Samantha is a 97-year-old woman with mild to moderate Alzheimer’s dementia. She has resided in an an aged care facility (‘the ACF’) for a number of years.

4. Samantha has never married and has no children. She had a sister, Lucy, who died in 2020. Lucy’s children are John and Alice (Samantha’s nephew and niece). John died in March 2024. Alice is married to James. Alice has four children – Ellen, Maria, Catherine, and Chris (Samantha’s great nieces and great nephew).

5. For the sake of convenience and meaning no disrespect, we shall refer to Samantha’s family members by their given names.

6. The Tribunal was informed that Samantha made an Enduring Power of Attorney appointing Lucy and John on 3 October 2019. We have not received a copy of this document.

7. On 30 March 2021, Samantha made an Appointment of Enduring Guardian appointing John and Ellen as her joint enduring guardians (‘the 2021 AEG’). On the same day, Samantha made an Enduring Power of Attorney appointing John and Ellen as her attorneys, jointly and severally (‘the 2021 EPA’). The 2021 AEG specifies that the death of one or more of the joint enduring guardians does not operate to terminate the appointment of any other joint enduring guardian.

8. In April 2024, Alice submitted applications for the appointment of a guardian and a financial manager, and for a review of the 2021 EPA. In relation to the review of the 2021 EPA, and the financial management application, Alice suggests that John had been using Samantha’s funds for his own purposes, and that the surviving attorney, Ellen, has benefited from this, and is therefore not acting in accordance with her responsibilities as an attorney. She particularly questions the use of Samantha’s funds to lend monies to Maria, and the use of the proceeds of sale of Samantha’s home in Inner West Sydney sold in 2020. The guardianship application appears to have been made principally due to concern that Ellen wishes to move Samantha from the ACF in which she currently resides, against her wishes and interests.

9. Alice notes that her initial applications were made in ignorance of the existence of the 2021 EPA and the 2021 AEG. She only became aware of these appointments later.

10. The matters first came before the Tribunal for hearing on 14 June 2024. In an email to the Tribunal some days before that hearing, Alice indicated that she no longer wished to proceed with the guardianship and financial management applications, and did not seek to replace Ellen in these roles. We sought to clarify her position at the start of the hearing. Alice indicated that she wished to proceed with all three of her applications, and that she wishes to be appointed as guardian and financial manager and/or the new attorney.

11. In the Reasons for Decision which followed the June hearing, there is reference to a number of preliminary matters we had to consider including clarifying the position of the parties, and the production of a late redacted report from a geriatrician, Dr Nguyen. In relation to the report, we noted that the contents were potentially highly relevant to the applications being considered, but could be given only very limited weight in its redacted form. Ellen had submitted this document, and we indicated that she might consider returning to the author for an unredacted version dealing only with the particular issues we needed to know regarding Samantha’s current conditions, and the effect on her capacity to manage her affairs and make decisions in the significant areas of her life.

12. We proposed adjourning to allow time to obtain this report, and because, having dealt with the preliminary matters, there was then insufficient time to take evidence on the substantive applications. We then considered whether any delay in hearing the matters could prejudice Samantha’s interests. We considered Alice and James’s concerns that adjourning the proceedings may result in the payment out of John’s estate funds (to Ellen) that properly belonged to Samantha. Alice and James also asked the Tribunal to consider requiring Ellen to more fully account for her actions as attorney. We noted that there is power under the Powers of Attorney Act to direct or require an attorney to furnish accounts and other information. We considered whether it was appropriate to exercise that power, and we took some evidence from Alice, James, and Ellen about this. We also received evidence from Vincent, the solicitor who had prepared the 2021 AEG and the 2021 EPA, and who had also acted on the sale of Samantha’s home in 2020.

13. Having heard this evidence, we decided there was insufficient forensic reason to exercise the power under s 36(4)(e) of the Powers of Attorney Act to require Ellen to submit her records and accounts. We adjourned the hearing part-heard with directions regarding the provisions of the unredacted report and any further material.

Further material received for 2^nd hearing

14. We received the following further material for this hearing:

1. Statutory Declarations (and attachments) from Alice dated 12 July 2024 and 28 July 2024

2. Maria’s statement dated 27 July 2024

3. Maria’s statutory declaration of 11 July 2024

4. Statutory Declaration of Catherine dated 12 July 2024

5. Report of Dr Nguyen, Geriatrician, dated 14 July 2024

6. Email from Ellen dated 15 July 2024

7. Affidavit of Ellen dated 10 August 2024

15. Although most of the above documents were not received in accordance with the timetable set in the last hearing, we note that no one took objection to the receipt of these documents, and we confirmed that all parties had received documents submitted by the others.

16. Alice’s main declaration further addresses what she sees as the deficiencies in the role Ellen has undertaken as Samantha’s attorney, some concern about the circumstances in which the 2021 EPA and 2021 AEG were made, and the alleged conflict of interest inherent in Ellen now acting as both executor of John’s Will and the surviving attorney for Samantha. Alice and her husband, James, were given the opportunity to further develop these arguments at the hearing. We heard from Ellen in response.

17. We dealt with the financial issues first, and then with issues concerning guardianship.

The hearing and participants

18. At the end of these Reasons for Decision is a list of the parties to the application [Appendix removed for publication].

19. Alice and her husband, James, attended the hearing in-person. Ellen participated by video. Vincent, Solicitor, participated by phone. Tara, solicitor, was with Ellen, attending as a McKenzie Friend. Samantha did not participate. She was in hospital with pneumonia at the time of the hearing. We were urged to proceed with the hearing. Samantha had slept through the first hearing. It was common ground that she could not meaningfully participate in the hearing given her cognitive limitations, even if physically well.

REVIEW OF 2021 ENDURING POWER OF ATTORNEY

What did the Tribunal have to decide?

20. 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, 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)).

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

1. An order declaring that Samantha did or did not have mental capacity to make a valid power of attorney;

2. An order declaring that the power of attorney is invalid (either in whole or in part) if the Tribunal is satisfied:

1. Samantha did not have the capacity necessary to make a valid enduring power of attorney; or

2. the enduring power of attorney did not comply with the requirements of the Powers of Attorney Act; or

3. the enduring power of attorney is invalid for any other reason, for example, dishonesty or undue influence.

22. 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 Samantha to make the order; or

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

23. 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:

1. To furnish accounts to the Tribunal or someone nominated by the Tribunal;

2. To 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. To Submit a plan of financial management for approval;

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

7. Such other orders as the Tribunal thinks fit.

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

Does Alice have standing to make the application?

25. 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; or

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;

3. 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.

26. Though we have ultimately decided not to make the orders sought by Alice, we were satisfied she was motivated in making the application by a genuine concern for Samantha.

Should the Tribunal conduct the review?

27. In Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516, Slattery J stated [at 80]:

“[o]n 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.”

28. Alice has made various assertions which suggest that Ellen has a conflict of interest which should prevent her from acting as Samantha’s attorney. These matters are set out in [24] of the last Reasons for Decision and are further dealt with below. Ellen has denied the substance of these allegations and any suggestion that she is acting other than in Samantha’s best interests. It is not in Samantha’s best interests for her affairs to be managed by someone whose interests and motivations have been so maligned, without any attempt to investigate these matters. For this reason, we decided that it is in Samantha’s best interests to conduct a review of the enduring power of attorney.

29. Alice sought a review of the 2021 EPA on both bases: review of the making of the instrument, and review of the operation and effect. We took evidence on both matters.

Evidence and Findings relating to Making of the 2021 EPA

30. Alice suggests in submissions and oral evidence that, as of 30 March 2021, Samantha would have been unable to read Ellen’s name on the EPA, and it is likely that she was not aware that she was appointing Ellen. Alice indicates that Samantha in conversations with her was unaware that she has anyone appointed as her attorney, since John’s death. This, Alice suggests, lends greater weight to the suggestion that Samantha did not have the capacity to make the 2021 EPA, or that it was obtained by some form of coercion or undue influence.

31. Alice also asks the Tribunal to take into consideration that Ellen was not in attendance with the solicitor, Vincent, on 30 March 2021 when Samantha signed the 2021 EPA, and John accepted his appointment. Ellen did not sign to accept her appointment until 10 November 2021. Alice describes Samantha as being hard of hearing and unable to read fine print. She submits that this fortifies her claim that Samantha did not intend to appoint Ellen and was unaware that she had done so.

32. In response, Ellen denies she or anyone else exerted any coercion or undue influence on Samantha in her decision to make the 2021 EPA. She suggests that Samantha wanted to appoint another attorney after her sister Lucy died. She (Ellen) always had a close relationship with her great aunt Samantha, and the decision to appoint her (with Samantha’s nephew John) was understandable. She agrees she did not accept her appointment until November 2021, but she was aware she had been appointed. John was taking the principal manager role, and she had no need or reason to intervene. Ellen believes Samantha had a clear understanding of what she was doing when she appointed her and John as her joint attorneys under the 2021 EPA.

33. Vincent was responsible for preparing the 2021 EPA and the 2021 AEG. He gave the following evidence about the circumstances in which these documents were made (he relied on contemporaneous records in giving this evidence):

1. On 17 March 2021, Samantha initially called the office and spoke to his wife. She stated she wished to change her Power of Attorney. She stated: “[n]ow that [Lucy] has died, I need to change my Will, Power of Attorney and Enduring Guardianship”. She stated she wished to appoint John and Ellen.

2. He attended on Samantha at the nursing home on 30 March 2021. John was present in the room with her at all times. Ellen was not there. He went through all the documents he had prepared (EPA, AEG, and Will). Samantha “seemed alert and responsive”. He was satisfied that Samantha “knew what she was doing”.

3. Samantha confirmed the instructions she had given in the earlier phone call – namely to appoint Ellen and John as attorneys and enduring guardians. She gave reasons for choosing to appoint them in these roles.

4. John was in the room at all times. Vincent did not feel it necessary to exclude him, as Samantha was “very capable of expressing herself”.

34. The test for capacity to grant a general and enduring power of attorney was considered in Szozda v Szozda [2010] NSWSC 804. Barratt J stated, “[i]t is the nature of the act (by which I mean to include its ramifications and consequences) that the donor must sufficiently understand”. Barratt J approved of the approach taken by Hoffman J in the English case of Re K [1988] Ch 310, that a donor should have understood the nature and effect of the power being granted by a general and enduring power of attorney:

“[f]irst, if such be the terms of the power, that the attorney will be able to assume complete authority over the donor’s affairs; second, if such be the terms of the power, that the attorney will in general be able to do anything with the donor’s property which he himself could have done; third, that the authority will continue if the donor should be or become mentally incapable; fourth, that if he should be or become mentally incapable, the power will be irrevocable without confirmation by the court: Re K [1988] Ch 310”

35. By contrast, in Scott v Scott [2012] NSWSC 1541, Lindsay J considered the test for capacity to make a power of attorney and referred to the necessity to examine each case on its own facts, consideration of the events leading up to the execution of the instrument as well as the time of its actual execution. Lindsay J stated:

“[a]ttention must be focussed on all the circumstances of the case, including the identities of the donor and donee of a disputed power of attorney; their relationship; the terms of the instrument; the nature of the business that might be conducted pursuant to the power; the extent to which the donor might be affected in his or her person or property by an exercise of the power; the circumstances in which the instrument came to be prepared for execution, including any particular purpose for which it may ostensibly have been prepared; and the circumstances in which it was executed: [199].”

The Law Society Guidelines – “Questions for preparing an Enduring Power of Attorney”

36. The Law Society have published guidelines (see The Law Society of New South Wales, “Questions for preparing an Enduring Power of Attorney” (2018)) on questions for solicitors who are preparing an enduring power of attorney for a client. The guidelines on capacity include the following statements:

“Did you see the client alone?

To minimise the risk of undue influence it is preferable to see the client alone. If another person is present make a file note of the person’s name and relationship to the client and the reason for their presence…

Did you explain the effect of the power of attorney?

This is required for the certificate for the purposes of section 19 of the Powers of Attorney Act 2003. In particular, the client should understand:

1.   That the document is only effective while the client is alive and has no effect after their death;

2.   That they can revoke (cancel) the power at any stage, as long as they have mental capacity;

3.   That the power that they are giving another person (the attorney) will extend after the client has lost the mental capacity to revoke (cancel) the enduring document;

4.   That they must appoint the attorney of their own free will and without any undue influence on the part of a third party;

5.    That they are giving power to another person to manage their financial affairs, and this power includes things like:

a)    buying and selling property on their behalf (including their own home);

b)    depositing and withdrawing money from their account/s; and

c)    buying and selling shares with their money.

Did the client appear to understand the effect of the power of attorney?

This is required for the section 19 certificate. If you are not satisfied as to the client’s understanding, consider obtaining a medical opinion, and do not give the certificate [Footnote removed for publication.].

It is recommended that you ask open-ended questions (examples include: Why do you want to appoint someone as your attorney? Tell me about your family and friends. Who do you want to appoint as your attorney/s and why are you choosing them? What sort of decisions will your attorney be able to make?) and record the questions and the client’s answers in a file note.

It is recommended that you discuss with your client the importance of choosing an attorney who is trustworthy and responsible, and discuss the extent of the proposed attorney’s qualifications for the role, either because of their prior knowledge and involvement in the client’s affairs or by reason of having appropriate skills and experience.”

37. Vincent did not follow the procedure recommended by the Law Society chapter and verse. He did not exclude John from the room to avoid the risk of undue influence (however he detected nothing that would indicate the presence of such influence). He did take contemporaneous notes and he relied on those when giving his oral evidence. He completed the s 19 certificate indicating that Samantha appeared to understand the effect of the power of attorney, without requiring a further medical opinion. The statement that Samantha gave reasons for choosing to appoint John and Ellen as her attorneys suggests that Vincent asked at least some open-ended questions.

38. We also note the evidence Vincent had given at the June 2024 hearing indicating he had acted on the sale of Samantha’s home in the first half of 2020. James suggested at the current hearing (and Alice did not disagree) that Samantha was “functioning at almost full capacity” at that time, and that they had frequent discussions at that time about her affairs. Vincent had the benefit therefore of knowing Samantha over a period of time and being able to compare over time her capacity to undertake legal transactions or execute instruments.

39. We have been provided with no medical evidence dating from about the time when the 2021 EPA was made. Nor is there any medical evidence which retrospectively assesses her capacity at that time. The redacted version of Dr Nguyen’s report from March 2024 refers to a previous geriatrician report of Dr Kirsten from January 2023. That report from Dr Kirsten appears as an annexure to the Statutory Declaration of Ellen dated 24 May 2024. Dr Nguyen notes that he has been requested to express an opinion “as to whether [Samantha] has the mental capacity to understand the following changes and attend to the execution of [redacted]”. Dr Nguyen makes some reference to Dr Kirsten’s January 2023 report, and a mini mental state examination from that time in which she scored 18/30 with principal deficits in orientation and recall, but no commentary about her past capacity.

40. We have reviewed Dr Kirsten’s report. It refers to a review of Samantha’s cognition and capacity. Samantha told Dr Kirsten that she was unaware of her current financial position, and that John manages her finances. Samantha is reported to have stated to Dr Kirsten that she:

“… was satisfied with the current arrangement and felt confident in him continuing to manage this for her. She was unaware of the expenses involved with living at the facility. She reported not getting a pension and that she was managing off what her mother left her and what she had earned.”

[Samantha] reported that there had been issues in the past with her finances, stating that her niece’s husband had tried to take control … but this was reviewed by a judge who stated that the arrangement should remain as such with [John] managing it … this occurred 5-6 years ago. [We note that [James] specifically denied these suggestions.]”

41. Dr Kirsten’s report also notes that she obtained collateral history from John who indicated that Samantha’s family had noticed some memory loss and confusion in the last 12 months, but that Samantha was “still able to recognise family members”. John told Dr Kirsten that Samantha had appointed him and Ellen with joint power of attorney two years earlier. He confirmed there was earlier court proceedings but not regarding Samantha’s financial affairs. Dr Kirsten summarises that Samantha’s presentation, collateral history and cognitive assessment is consistent with a diagnosis of mild Alzheimer’s dementia. She concludes:

“[Samantha] had an understanding of power of attorney and was clear that she wished for the current arrangement with [John] being her power of attorney to continue. She does not have the capacity to manage her finances independently.”

42. Dr Nguyen expresses the view (in both the redacted and unredacted versions) that Samantha (at the time of the report in March 2024) exhibits functional and cognitive decline with significant amnestic features commonly associated with Alzheimer’s dementia. He also states that her “impairment in her ability to extract, recall and retain information, which is essential for her to consider vital information such as who her surviving family and their relationship with her [redacted]”. The extent of the redacted information makes it difficult to understand Dr Nguyen’s full reasoning, but (contrary to the above assessment) he does also indicate that Samantha has “consistently demonstrated an understanding of the reason she requires [redacted], its function and the role of [redacted]”. He concludes (for reasons which are not clear due to the redaction) that “[Samantha] has the mental capacity to appoint her enduring power of attorney”.

43. In his unredacted report from 14 July 2024, Dr Nguyen writes that he has further assessed Samantha on 11 July and 14 July 2024. He confirms that based on his previous and more recent assessments, Samantha does not have the capacity to make significant lifestyle and financial decisions. There is nothing in the reports of Dr Nguyen, or in the previous geriatrician assessment to which he refers which is sufficient to displace the presumption that Samantha had the capacity to make the 2021 EPA.

44. Having considered these matters, we are not satisfied that Samantha lacked the capacity to make the 2021 EPA in March 2021. Under the common law, capacity to make decisions or enter into transactions is assumed, and the contrary must be established on the balance of probabilities. While Vincent may not have followed the Law Society guidelines to the letter, we were satisfied that his general management of the process enabled him to make a reasonable assessment of Samantha’s capacity to make the 2021 EPA at the time of its execution. In particular, he at all times took instructions directly from Samantha, he confirmed those instructions after he had prepared the documents, and he sought and obtained reasons from Samantha as to why she had made the choices of who to appoint. A person’s capacity to make a power of attorney must be determined on the basis of their capacity at that time. A lack of capacity cannot be directly derived from a finding that she lacked that capacity at some later time, without some specific connection with that earlier time.

45. In these circumstances, we do not find that:

1. Samantha did not have the capacity necessary to make a valid enduring power of attorney on 30 March 2021; or

2. that the enduring power of attorney was invalid for any other reason, for example, dishonesty or undue influence.

46. We also note that the 2021 EPA is in a standard form. For these reasons, we dismiss the application to make orders under s 36 of the Powers of Attorney Act based on the making of this document.

Evidence and Findings relating to the Operation and Effect of the 2021 EPA

47. Alice’s initial application was made in ignorance of the fact that Samantha had appointed John and Ellen under the 2021 EPA. She believes that Ellen was “attempting to manipulate [Samantha] into appointing her [as] attorney and guardian”, noting that “[Ellen] has had little to do with [Samantha] prior to the last few months”, and that “[Ellen] has benefitted from a misuse of [Samantha’s] money by [John] as attorney during his life”. Alice confirmed at the previous hearing that she wished to proceed with her applications, in spite of the fact that she had since become aware that Ellen had been appointed under the 2021 EPA and the 2021 AEG.

48. In support of her suggestion that Ellen has personally gained from the misuse of Samantha’s money by the other attorney John, Alice and James provide the following evidence in their statutory declarations and oral evidence. They also rely on evidence given in the form of statutory declarations by her daughters, Maria and Catherine. Reference is made to all relevant parts of these declarations below.

Wrongful loaning of Samantha’s monies to Maria

49. It is not in dispute that Samantha loaned $150,000 to her great-niece, Maria, in or around September 2020. Maria states in her declaration from 2 April 2024 that this was for home renovations. This loan occurred at the time when Lucy and John were Samantha’s joint attorneys (prior to the making of the 2021 EPA which is the subject of this review). Maria states that she believed the funds were coming from Lucy, not Samantha. The total funds were deposited into her daughter’s bank account. Lucy told her to make repayments into Samantha’s account. Maria understands that this is because the loan proceeds were originally transferred from Samantha’s account by virtue of Lucy and John’s position as attorneys. In an email to Alice and James dated 27 July 2024, Maria states she became aware that the funds had come from Samantha’s account “once [Lucy] transferred the money to me and requested I pay back the loan into [Samantha’s] account.” Maria states in her April 2024 declaration that she commenced repayments on or around 15 October 2020, and there was $15,000 outstanding. In a subsequent Declaration from 31 May 2024, Maria refers to a conversation with Lucy in September 2020 when Lucy agreed to lend her $150,000, for five years. She states she never had an argument with John about repayment of this money. She only spoke to him once about this loan in October 2023, and he was not concerned.

50. Alice suggests that the loan to Maria was drawn from Samantha’s account without Samantha’s knowledge. She and James indicate that Samantha moved to the ACF in November 2019. From that time onwards, her financial affairs were managed entirely by Lucy and John under the previous EPA. In her Statutory Declaration of 28 July 2024, Alice states that the loan was arranged by Lucy and John. She writes:

“[John] had sufficient resources of his own to make such a loan, as did [Lucy] … yet they chose to take the money from [Samantha’s] account in direct contravention of the legal requirements of an attorney.”

51. It is common ground that the loan to Maria has now been all but fully repaid and is part of Samantha’s funds. Alice and James suggest Samantha has suffered lost interest on this loan.

52. In oral evidence at the June 2024 hearing, Alice and James suggested there was “no way” that Samantha would have willingly loaned $150,000 to Maria. They stated that Samantha “was not that sort of person” and that the relationship between Samantha and Maria was alienated to the extent that she would not have willingly done this.

53. We formed the view at the time of the first hearing that the suggestion that the then attorneys, John and Lucy, had breached their fiduciary duty – as a result of making this loan, and in their dealings with the proceeds of sale of Samantha’s home (for which, see below) – was based on speculation and supposition rather than anything else of forensic value. We gave Alice and James the opportunity to make any further submissions about these matters at the second hearing. In relation to the loan, they again indicated that it was perfectly feasible for Lucy and John to have made the funds available from their own wealth, rather that choosing to use their authority as attorneys to loan the funds from their principal, Samantha. They suggest that the loan was effectively done behind Samantha’s back. By choosing to use their principal’s funds to make this loan, they benefited themselves in a way that contravenes their fiduciary duty. James acknowledged Samantha was “functioning at almost full capacity” in 2020 when this loan was made but had no control of her financial affairs and had left everything to John and Lucy.

54. James and Alice also suggest that, although the loan predates the appointment of Ellen under the 2021 EPA, it impacts on her suitability to manage Samantha’s affairs. They claim:

1. After Ellen became joint attorney (with John) in March 2021, she failed to ensure that Maria properly repaid this debt. Ellen effectively took no action to enforce the repayment of the loan.

2. It was not sufficient that Ellen left everything in the hands of John, until after John died.

3. Ellen should have asked Samantha whether she was aware that the loan was made to Maria. Samantha was in a condition in October 2023 (when Ellen says she first became aware of the loan) to have answered this. A reasonable attorney would also have immediately contacted the debtor (Maria) to discuss the repayment of the loan.

4. A reasonable attorney would have asked John to pay the balance of the loan to Samantha immediately (given the circumstances in which it was paid) and have Maria repay him.

5. For these reasons, Ellen has neglected her duties and should have her status as attorney removed in Samantha’s best interests.

Wrongful dealings with proceeds of sale of Samantha’s home, and general failure of attorneys to account for Samantha’s assets and investments

55. It is common ground that Samantha’s Inner West Sydney home was sold in 2020. Alice and James suggest this was again done by the then attorneys (John and Lucy) without the knowledge of Samantha who was by then a resident of the nursing home. Alice indicated in her application and associated declarations and documents that the home sold for $2.7 million. They state there is no information about the location of the proceeds of sale, or Samantha’s considerable share portfolio.

56. Vincent gave evidence at the last hearing. He acted on the sale. He confirmed the adjusted sale price of $2.632 million on settlement in July 2020, with $545,000 of these proceeds being paid to the aged care facility, and the balance of just over $2 million into Samantha’s bank account. Alice and James suggest that John and Lucy may have directed funds from the sale of the Inner West Sydney property to themselves. They are concerned that Ellen has chosen to provide no documentation confirming the proper investment of these funds with Samantha, and how these funds have been subsequently expended. They note that the one document provided by Ellen – a statement from Samantha’s bank account dated 1 September 2020 – redacts the balance in the account. There are three accounts indicated on this statement: an Everyday Direct Account, a Cash Management Account and a Term Deposit. The balance of the Direct Account is not redacted, only the other two accounts. Again, in the Statutory Declaration of 31 May 2024 (responding to Ellen’s Declaration of 24 May 2024), Alice suggests that the account totals in Samantha’s bank account have been redacted and appears to draw the conclusion that there is something to hide. She writes: “I am concerned that the proceeds of sale of [Samantha’s] house were not fully accounted for, and I urge the Tribunal to seek production of all financial records.” Later in the same Declaration, Alice suggests that the fact that John was, for a time, residing in Ellen’s home makes it more likely that she “benefited from his misappropriation”.

57. In his Declaration of 31 May 2024, James makes the following further points:

1. Samantha and Lucy’s parents owned a second home in Inner West Sydney. On their death, the second home was left to Lucy while the home in which Samantha lived was left to her. James states he had heard Lucy say on several occasions that she was entitled to half the sale price of the home which was left entirely to Samantha, as it was the original family home. Alice and Samantha had also heard Lucy say this. He concludes: “[f]or this reason, I believe that [Lucy] under her EPOA may have redirected substantial funds from the sale to her accounts”.

2. The bank statement produced by Ellen from September 2020 indicates receipt of a pension payment two months after the sale of the property. Her assets should have placed her well over the cut-off for pension eligibility, unless a large part of her assets were redirected away from accounts in her name. He concludes: “[t]his again gives me cause for concern that a substantial portion of the income from the sale of [address removed for publication] was redirected away from [Samantha] without her approval”.

3. The same bank statement shows 2 cash withdrawals of $500, a fortnight apart. There is no evidence indicating that this money was spent on her. James concludes: “[t]his may be indicative of regular withdrawals for the benefit of the holders of the EPOA without consent spending for the benefit of [Samantha]”.

Response of the Attorney

58. In her Declaration of 24 May 2024, Ellen writes:

1. She had no involvement in the loan to Maria.

2. She was not a signatory to any of Samantha’s accounts prior to John’s death in March 2024.

3. John told her that Lucy had loaned money to Alice and Maria on several occasions.

4. In October 2023, John stated he had a disagreement with Maria and suggested she repay the money she had borrowed.

5. In March 2024, she located amongst John’s personal papers a receipt for a withdrawal from Samantha’s bank account on 9 September 2020 for the sum of $150,000, which was signed by John. She attaches a copy of the receipt which indicates that the payment came from the cash management account.

6. At the same time, she located a handwritten note in John’s writing which refers to $150,000 and account details for an account in Maria’s daughter’s name. She annexes a copy of this note.

7. She has also checked Samantha’s bank account and has identified that $150,000 was withdrawn on or about 9 September 2020. She annexes the bank statement, to which reference has already been made.

8. She was not involved in the sale of Samantha’s Inner West Sydney home and has never benefited financially from the sale proceeds or from her position as attorney.

9. She was not involved in any financial decisions made by John or Lucy. She is aware that John used to show Samantha her monthly bank bank statements, and she heard her say to John words to the effect: “[u]se whatever money you need from my [bank] account for expenses you have incurred to look after me”.

10. She believes John was financially independent of Samantha and had no need to borrow funds from her.

11. She has reviewed the statements of Samantha’s bank accounts and does not have any concerns as to how her money has been managed while John acted as attorney. She has not identified any transaction which suggest that funds from Samantha’s accounts have been transferred to any accounts in John’s name.

59. In a latter unsworn statement dated 15 July 2024 (an email to the Tribunal, copied to Alice), Ellen attaches the unredacted version of Dr Nguyen’s report referred to above, and makes the following further statements/clarifications:

1. She overheard the conversation between Maria and John around October 2023 when Maria contacted John for his birthday. John requested she pay back the borrowed money. John thought it was all paid back even though more money was deposited.

2. She understood that Maria had agreed to repay the loan in the sums of $200 per fortnight, but after the disagreement it was paid back much sooner “in large sums.”

60. In her most recent Affidavit of 10 August 2024, Ellen writes:

1. She has again reviewed Samantha’s bank account to cross-check the payments Maria claims to have made to Samantha’s account as set out in Attachment B to Alice’s Declaration of 12 July 2024. She has discovered 73 payments of $200, each by Maria, into Samantha’s bank account between 15 October 2020 and 3 August 2023, totalling $14,600.

2. Maria claims to have made the following additional lump-sum payments in repayment of the loan:

05.09.23   $25,000

07.09.23   $400

08.09.23   $25,000

26.09.23   $25,000

25.10.23   $25,000

28.11.23    $25,000

26.12.23    $10,000

07.03.24   $10,000

3. Ellen states she was able to reconcile all but the payment allegedly made on 5 September 2023. She wrote to Maria about this seeking further details. She encloses copies of the correspondence between them. Maria provides no further details of this payment.

61. In further evidence at the hearings, Ellen states that:

1. She always had full faith in John’s management of Samantha’s affairs. He was not unwell until 2023 and was fully capable of making sound decisions. She therefore did not see the need to further involve herself. They were appointed jointly and severally.

2. She became aware of the loan between Samantha and Maria in October 2023, but did not know the full details until she examined the accounts after John died. In total she can see payments by Maria in repayment of the loan totalling $145,000.

3. Samantha was receiving a pension when she was living alone in her home. Her entitlement ceased soon after selling her home. She is a self-funded retiree.

4. There was nothing sinister in the delay in her signing to confirm her appointment as attorney under the 2021 EPA. She could not attend earlier due to the COVID-19 restrictions of the time. Samantha knew what she was doing when she appointed her as one of her attorneys in March 2021. Contrary to Alice and James’s claims, she and Samantha had a close relationship.

5. It is true that Lucy and John were independently wealthy. So was Samantha. Samantha was also a generous person, and it is not unusual that she would have chosen to lend the money to Maria. When Ellen found out more details about the loan to Maria, she spoke to Samantha about it. Samantha was “not flustered about it”.

6. Since John died, she has examined Samantha’s accounts for the last three years in more detail. She has copies of monthly bank statements. She also has a folder of all expenses and receipts since she took over as attorney. John was also very organised and kept a similar folder. She has not found any out of the ordinary expenses.

7. She is unable to state what the two $500-withdrawals were for in the bank statement from September 2020. They did not continue. There were also some $1000 withdrawals for unspecified purposes. They may have been to purchase clothing for Samantha. Most of the transactions were clearly for nursing home fees or other related expenses.

8. She has now set up internet banking which enables her to have an ongoing record of Samantha’s affairs

62. We asked Ellen about Samantha’s current financial position. She stated that Samantha’s assets include the $545,000 Refundable Accommodation Deposit paid to the nursing home, shares valued at $205,000 and three separate accounts with her bank. The current funds in those accounts are:

Direct account            $96,800

Cash Management Account      $325,000

Term Deposit            $1,600,000

She noted that Samantha derives her income from the interest earned on these accounts, particularly the term deposit. This is sufficient to cover her expenses. The nursing home fees are paid by direct debit, and Ellen ensures there are sufficient funds in the main account to cover these costs.

Consideration

63. In summary, Alice and James suggest that Ellen should be removed as the sole surviving attorney because:

1. she has failed in her responsibilities as an attorney; and

2. she is compromised by the financial advantages that have or will accrue to her as a result of the misuse of Samantha’s funds by Lucy and John.

Claim that Ellen has failed in her responsibilities as an attorney

64. Alice and James suggest that it is a significant part of an attorney’s responsibility to keep a record of all expenditure. They say that Ellen’s own evidence indicates she has not done this. It is more than just ensuring there are sufficient funds to pay her regular expenses, as they suggest Ellen’s evidence indicates. She has, in neglect of her responsibilities, relied entirely on her co-attorney, until his death in 2024. Alice writes: “[i]n my observations of [John] (as his sister) [he] was not computer literate.”

65. Alice and James suggest that Ellen should have ensured that Samantha’s affairs were properly managed. Had she paid attention to her responsibilities at an earlier time, she would have become aware of the loan from Samantha to Maria at a much earlier time. She could then have required Maria to repay this to Samantha and required the funds to be paid by John. The failure to take action earlier regarding the loan has resulted in the loss of interest that Samantha would otherwise have earned.

Claim that Samantha is compromised in her role as attorney by the financial advantages that have accrued to her or will accrue as a result of the misuse of Samantha’s funds by Lucy and John

66. Alice and James’ argument appears to proceed as follows:

1. Lucy and/or John have misappropriated some or all of the proceeds of sale of Samantha’s Inner West Sydney home, and by unnecessarily reducing the funds available to Samantha by approving the loan to Maria.

2. John was the principal beneficiary under his mother Lucy’s Will, and has therefore been financially advantaged, and Samantha disadvantaged.

3. Ellen is the executor and principal beneficiary under John’s Will (a copy of the Will was provided) and will therefore gain the benefit of this misfeasance. Ellen has a substantial conflict of interest between her role as executor of John’s Will and her role as Samantha’s attorney.

67. Alice and James also point to what they suggest are a number of inconsistencies in Ellen’s evidence which throw doubt on her evidence as a whole. These appear mainly in Alice’s Declaration of 28 July 2024. James also referred in oral evidence to Ellen’s summary of Samantha’s finances outlined in [62]. He states that the total of the funds Ellen has indicated is in Samantha’s three bank accounts is $2.02 million, whereas the amount should be closer to $2.20 million based on Vincent’s evidence about the dispersal of the proceeds of sale of Samantha’s Inner West Sydney home.

68. Ellen’s general responses to these claims have been set out above. In summary, she states that:

1. She had no role in the loan to Maria. The decision to make Samantha’s funds available to Maria is consistent with her nature and personality.

2. There is no evidence that either John or Lucy benefited personally by having any of the proceeds of sale of Samantha’s Inner West Sydney home directed to them, or that either have subsequently used her funds in contravention of their responsibilities as attorney.

3. She has not misappropriated any of Samantha’s funds and has not benefited in any other way that would create any conflict of interest in continuing to act as Samantha’s attorney.

69. Alice and James’ claim that Ellen’s position as attorney is compromised relies on a finding that John and/or Lucy have redirected Samantha’s funds for their own use. To establish this, Alice and James rely on the following facts:

1. John and Lucy chose to loan $150,000 to Maria from Samantha’s funds (rather than their own) without consulting with Samantha or seeking her approval. There was no reason to do this.

2. Lucy was motivated to access a greater share of the proceeds of sale of Samantha’s Inner West Sydney home due to a sense of unfulfilled entitlement. The fact that Samantha was receiving a pension in September 2020 may suggest that some of her assets were directed into an account in someone else’s name.

3. Ellen’s decision not to provide comprehensive financial records for the hearing (and to redact the only bank statement she did provide) is an indication that there is something to hide.

4. Samantha’s savings and assets should be greater than the amount indicated by Ellen in her evidence, based on the sale price of her home and Vincent’s evidence about the amounts disbursed.

70. We find the suggestion that the loan to Maria from Samantha’s funds was without her approval and not consistent with her wishes to not be supported by the evidence. The loan was made in September 2020 at a time when James suggests Samantha was “functioning at almost full capacity”, including being able to discuss her financial affairs. In those circumstances, it is surprising that she would have been completely unaware of the withdrawal of $150,000 from her account. Maria states her discussions about the loan were mainly with Lucy. She had assumed Lucy would be the lender but became aware after discovering that her repayments would be made into Samantha’s account. She did not query this at any time or seek to raise this issue with Samantha directly. Such enquiry would be expected if she was concerned that Samantha had been taken advantage of. The fact that she raised no issue supports the finding that Samantha acting as her creditor was not inconsistent with the relationship between them.

71. Even in a view of the evidence which most strongly supports Alice and James’ position, it cannot be said that the then attorneys John and Lucy, benefited financially from the loan to Maria. There is no dispute that all repayments were made into Samantha’s account. The claim that Samantha’s loss is the loss of interest on the funds she lent also relies on a finding that she did not authorise this loan (and/or that it was not consistent with her relationship with Maria).

72. It is not necessarily inconsistent with an attorney’s fiduciary duty to lend the principal’s funds to a family member, if this is authorised by the principal herself, or is consistent with that person’s prior practices, and does not impoverish her to an extent that she has insufficient funds for her own needs. We have no evidence to clearly indicate Samantha’s wishes or specific authorisations. However, there is no suggestion that the making of this loan had any impact on her ability to meet her own regular expenditure. It was perhaps unwise for the loan not to be supported by any written agreement confirming the parties to the loan and the conditions of repayment. This would have produced the best evidence of the intentions of the parties. Nevertheless, we find that the surrounding circumstances do not indicate any malfeasance on the part of the then attorneys which is now relevant to the suitability of the current attorney, Ellen.

73. We are also not satisfied to the extent of comfortable persuasion that John and/or Lucy breached their fiduciary duty by having an undefined portion of the sale proceeds of Samantha’s Inner West Sydney home directed to them, or by subsequently accessing portions of her invested wealth. Vincent acted on the sale of the property. We have no reason to doubt the veracity of the evidence he gave about the settlement figures and/or the dispersal of the proceeds of sale. Ellen’s evidence about the balances held in Samantha’s three bank accounts is consistent with Vincent’s evidence that “just over $2 million” was paid into Samantha’s account. It is certainly not evidence of any significant depletion of her funds in a way that Alice and James were suggesting.

74. We found Ellen generally to be a witness of truth. She gave her evidence in a straight-forward manner, without any attempt to conceal information. Alice and James refer to certain inconsistencies in her evidence relating to matters including when and how she became aware of the loan, and her knowledge of the repayments. They suggest this should throw doubt on the veracity of her evidence as a whole. In other comments, they challenge the accuracy of the claims Ellen has made about matters irrelevant to these proceedings, such as the level of contact between her sisters and John, as he became ill. We have examined these matters and have found only minor inconsistencies in the relevant matters. We do not accord this great weight, and do not detract from our general acceptance of Ellen’s evidence.

75. Alice and James highlight Ellen’s unwillingness to produce financial records to the Tribunal to corroborate her evidence. In the Reasons for Decision which followed the last hearing, we explained why we chose not to invoke the powers under s 36(4)(e) of the Powers of Attorney Act to require the attorney to furnish the relevant financial records. We indicated there was not a sufficient forensic reason to require the provision of these records. We remain of that view despite the further evidence obtained at this hearing. The Tribunal may have been assisted to make positive and clearer findings had Ellen produced such banking and other records. However, we accept her evidence that after John died, she undertook a careful examination of the records that he kept and that she also now has internet access, and she can find no unusual transactions or anything to suggest misuse of Samantha’s funds. There are some individual withdrawals and transfers that she cannot explain, but they are not at a level that cause her concern for any systematic malfeasance. We also accept Ellen’s explanation for Samantha’s receipt of a pension in September 2020 but not thereafter once Centrelink was updated as to her assets. We do not regard this as supporting a suggestion Samantha’s funds were directed away from her account.

76. We note that Alice and James have not suggested that Ellen has personally breached her fiduciary duties as an attorney to keep Samantha’s funds and her own separate. Any conflict of interest, they say, derives from her benefiting from the wrongful actions of John and Lucy. For the reasons indicated above, we do not find that John and/or Lucy engaged in such wrongful actions. There is no conflict between her own interests and those of the principal whose interests she must prioritise.

77. We turn finally to the suggestion that Ellen has not complied with the attorney’s responsibility to keep a record of all expenditure. The 2021 EPA appoints Ellen and John to act jointly and severally. This is explained in the document to mean that “[y]our attorneys may act individually, or together with the other attorneys if they choose”. Ellen’s evidence is that she relied on John to properly manage Samantha’s affairs. We find this was not unreasonable. John was the continuing attorney. We accept Ellen’s evidence that he had a folder of information and kept all records. She observed him going to the nursing home with some of these records to discuss them with Samantha. There was nothing in his behaviour as attorney that should have caused any alarm, such that Ellen should have taken a more active role. As the surviving attorney, Ellen has now taken an active role, including setting up internet banking, arranging direct debits, and clarifying the position regarding the loan to Maria. We do not find Ellen’s actions as joint and several attorney (and now as sole surviving attorney) to have been so negligent that it would be in Samantha’s interests to remove her.

78. In summary we are not satisfied on our view of the evidence that that it would either be in the best interests of Samantha or that it would better reflect the Samantha’s wishes to make any of the orders in s 36(4) of the Powers of Attorney Act.

FINANCIAL MANAGEMENT

79. The questions to be considered by the Tribunal are:

1. Is Samantha incapable of managing her affairs?

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

3. If so, who should be appointed financial manager?

Is Samantha incapable of managing her affairs?

80. The leading cases say that in determining whether a person is or is not capable of managing his or her financial affairs, it is necessary to focus attention on the personal circumstances of that person, and the ability of that person to undertake the particular tasks which their circumstances require. The questions to be considered are:

1. Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a protected estate manager charged with a duty to protect his or her welfare and interests?

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

In considering whether the person is “able” in this sense, attention may be given to: (a) past and present experience as a predictor of the future course of events; (b) support systems available to the person; and (c) the extent to which the person can be relied upon to make sound judgements about his or her welfare and interests.

81. Whether a person is or is not “capable of managing his or her own affairs” will usually depend upon whether:

1. He or she is reasonably able to determine what is in his or her best interests, and to protect his or her own welfare and interests, in a normal, self-reliant way without the intervention of a protected estate manager; and/or

1. He or she is in need of protection from neglect, abuse or exploitation.

82. The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future.

83. Dr Nguyen’s more recent report makes it clear that Samantha currently lacks the capacity to manage her affairs. We note that no one disputed this assessment. We find that Samantha is a person for whom we can appoint a financial manager.

Is there a need for a financial management order? Is it in Samantha’s best interest that a financial management order be made?

84. Alice’s reason for appointing a financial manager were the same as those for seeking to review the 2021 EPA. She seeks to be appointed to manage Samantha’s affairs in place of Ellen. She believes Ellen has demonstrated neglect of her responsibilities, and that being a beneficiary of the misappropriation by others of Samantha’s funds makes her continuing role as attorney untenable.

85. For the reasons indicated above, we have not found the above assertions to have been established. We find on the evidence that Ellen has undertaken her role as attorney in an acceptable fashion and with a proper focus on the best interests of Samantha. We have found that Samantha deliberately chose to appoint Ellen as one of her two joint attorneys. Ellen is willing to continue in her role as attorney. It is not in Samantha’s best interests to interfere with the choices she has made.

86. The appointment of anyone as financial manager would add a level of bureaucracy and cost to the management of Samantha’s estate which is not justified by the circumstances.

87. The application to appoint a financial manager is dismissed.

GUARDIANSHIP

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

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

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

3. Who should be the guardian?

4. How long should the order last?

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

89. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he or she is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: Guardianship Act, s 3(1). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: Guardianship Act, s 3(2).

90. Dr Nguyen’s unredacted report now makes it clear, consistent with his earlier report, that Samantha does not have the capacity to make significant lifestyle decisions. This is based on his own assessments and interviews with Samantha, and on his review of previous evidence including the report of Dr Kirsten from January 2023. There was no evidence to the contrary and we note this assessment was not in dispute.

91. We were satisfied that Samantha’s cognitive impairment due to her dementia causes her to be at least partly unable to manage her person, in the sense of making informed decisions about significant issues in her life. She is therefore a person for whom a guardian can be appointed.

Should the Tribunal make a guardianship order and what order should be made?

The Legal Principles

92. In making decisions under the Guardianship Act, the Tribunal is required to have regard to the general principles set out in s 4 of that Act. There are eight principles set out here which provide as follows in relation to the person with a disability:

1. The welfare and interests of such persons should be given paramount consideration;

2. The freedom of decision and freedom of action of such persons should be restricted as little as possible;

3. Such persons should be encouraged … to live a normal life in the community;

4. The views of such persons … should be taken into consideration;

5. The importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised;

6. Such persons should be encouraged … to be self-reliant in … their personal, domestic and financial affairs;

7. Such persons should be protected from abuse neglect and exploitation; and

8. The community should be encouraged to apply and promote these principles.

93. In addition, the Guardianship Act sets out in s 14(2) some specific considerations to be applied when considering whether to make a guardianship order. The Tribunal is directed to have regard to:

1. the views of the person, their spouse (if a continuing and close relationship exists), and the person who has the care of the person;

2. the importance of preserving existing family relationships;

3. the importance of preserving cultural and linguistic environments; and

4. the practicability of services being provided to the person without the need for making such an order.

94. Essentially, the Tribunal is directed to positively consider whether the circumstances of the life of the person under consideration requires the appointment of a legally authorised substitute decision-maker, or whether their need for appropriate decision-making can be achieved in other less formal ways.

95. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

96. The 2021 AEG appoints John and Ellen as joint and several enduring guardians to make decisions about where Samantha lives, what health care she receives, to consent to medical or dental treatment, and to decide what personal services she receives. Alice’s application was made in ignorance of the 2021 AEG. She was concerned that Ellen was trying to manipulate Alice into appointing her, so that she could move Samantha to another facility “even though [Samantha] has expressed a clear desire to remain where she currently lives.”

97. In their oral evidence and in written submissions, Alice and James note some concerns about the level of care at the nursing home at which Samantha lives. James described the nursing home as “very aged” and “sombre”. They agree, however, that it is now Samantha’s home, and it is too late to consider any alternative.

98. Alice and James also refer to other issues. Chief amongst these is the fact that Ellen has instructed the staff of the nursing home not to communicate with them about any issues concerning Samantha. For example, Alice told us at the hearing that Ellen should have informed them of Samantha’s current hospital admission. Alice also suggests that Samantha is quite malnourished. If Alice was appointed as guardian, she would ensure Samantha receives the very best of care.

99. In response, Ellen told us:

1. She has no intention of using her authority as enduring guardian to move Samantha from the ACF. The nursing home was chosen by Lucy and Samantha has been there for nearly five years.

2. She is content with the nursing care Samantha is receiving at the facility. She remains in contact with the staff to ensure her care needs are met. There is no higher level of care within the facility. Samantha has seen a dietician since she has been there.

3. She has never advised the staff or management of the facility to refrain from contacting or providing information to Alice.

4. She has stayed overnight with Samantha at hospital since she was admitted. Samantha only agreed to go to hospital after she (Ellen) went to the nursing home to convince her. Since being in the hospital, she has tried to persuade Samantha to agree to investigations. Samantha was previously refusing to allow the hospital nurse to take her temperature. Samantha has no current discharge date.

Consideration

100. We were satisfied on the evidence that:

1. There are now important decisions to be made in Samantha’s life about her health care, and medical and dental treatment.

2. Samantha is unable to make these decisions in an informed way due to her dementia-related cognitive impairment.

3. There are no decisions to be made about Samantha’s accommodation as all parties now agree that there is no realistic alternative to the current placement.

4. Samantha also appears to be receiving all services that she requires through the facility in which she resides.

5. Ellen is using her authority as enduring guardian under the 2021 AEG to make the health care and medical and dental treatment decisions. She was with Samantha at the hospital at the time of the hearing, and we accept she has been actively liaising with staff of the nursing home and hospital in relation to Samantha’s health issues.

6. Ellen is willing to continue to exercise her authority as enduring guardian.

101. In these circumstances, we have found there is no need to appoint a guardian. Samantha has put arrangements in place for substitute decisions to be made in exactly the circumstances that she now finds herself in. The person she has appointed appears to be undertaking this role diligently and in Samantha’s best interests.

102. The application to appoint a guardian is dismissed.

Concluding comments

103. We have not found it necessary to make any orders which vary the decision-making arrangements Samantha put in place in 2021.

104. We have also not found it necessary to refer to other evidence of Alice, Ellen and others, which appears mainly in Statutory Declaration or Affidavit form relating to a range of topics not relevant to the issues to be determined in these proceedings. This includes evidence about the events which transpired at John’s funeral, the alleged attempts by various parties to have Samantha complete further legal documentation in or about March 2024, and the disputed evidence regarding contacts between John, Maria and Catherine.

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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 June 2025