Sandra (a pseudonym)
[2025] NSWCATGD 13
•24 July 2025
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New South Wales |
Case Name: | Sandra (a pseudonym) |
Medium Neutral Citation: | [2025] NSWCATGD 13 |
Hearing Date(s): | 24 July 2025 |
Date of Orders: | 24 July 2025 |
Decision Date: | 24 July 2025 |
Jurisdiction: | Guardianship Division |
Before: | A Britton, Deputy President |
Decision: | In relation to the enduring guardian appointment made by Sandra on 30 March 2023 appointing Victor and Liza the tribunal orders, directs or declares: |
Catchwords: | GUARDIANSHIP – requested review of enduring guardianship appointment – subject person with early onset Alzheimer’s disease – powers available to Tribunal upon review – insufficient evidence to revoke appointment of the guardians and/or to vary the appointment – principal’s welfare and interests not adversely affected – enduring guardianship appointment confirmed. |
Legislation Cited: | Civil and Administrative Tribunal Act 2013 (NSW), Sch 6, cl 5 |
Cases Cited: | Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820 |
Texts Cited: | None cited. |
Category: | Principal judgment |
Parties: | 001: Review of an Enduring Power of Attorney |
Representation: | Nil. |
File Number(s): | NCAT 2025/00123144 |
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
Sixty-six-year-old Sandra lives with her daughter, Liza, and her son-in-law in their home on the NSW Central Coast. In 2023, Sandra was diagnosed with Alzheimer’s dementia.
In March 2023, Sandra appointed Liza and her son, Victor, as her enduring attorneys (the EPoA). On the same day she appointed Liza and Victor as her enduring guardians (the EGA). In each appointment, Sandra authorised Liza and Victor to act jointly and severally.
In applications made to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) on 31 March 2025, Victor sought review of the EPoA and the EGA. Among other things he claimed that Liza had been making decisions about their mother’s personal and financial affairs without informing him; used over $100,000 of their mother’s money to pay for renovations to her home (Liza’s home); and, missed monthly instalments payments on a mortgage on their parents’ home. Liza lives with her husband and two small children.
In a separate application made to NCAT, Victor sought review of the enduring power of attorney made by his father, Mr Z. Made in March 2023 and in the same terms as the instruments of appointment made by his wife, Mr Z appointed his son and daughter as his enduring guardians and attorneys.
For the reasons that follow, we decided to make a financial management order in respect of Sandra and to confirm the EGA. Because they raise common issues, parts of these reasons are identical to those given for our decision to make a financial management order in respect of Mr Z.
Review EPoA
On the application of an “attorney”, NCAT may decide to review the operation and effect of a “reviewable power of attorney”, or to not carry out such a review: Powers of Attorney Act 2003 (NSW) (the Act), ss 35, 36(1). A “reviewable power of attorney”, is an “enduring power of attorney”: the Act, ss 33(1)-(2). The EPoA made by Sandra is an enduring power of attorney: the Act, s 35.
Section 36 of the Act provides:
36 Interested persons may apply for review
(1) Tribunal may review making or operation and effect of power A review tribunal may, on the application of an interested person, decide to review the making, revocation or the operation and effect of a reviewable power of attorney or not to carry out such a review.
(2) As a consequence of reviewing the making, revocation or operation and effect of a reviewable power of attorney, a review tribunal may decide whether or not to make an order under this section.
...
(4) Orders relating to operation and effect of power A review tribunal may, if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal, make any one or more of the following orders relating to the operation and effect of a power of attorney:
(a) an order varying a term of, or a power conferred by, the power of attorney,
(b) an order removing a person from office as an attorney,
(c) an order appointing a substitute attorney to replace an attorney who has been removed from office by a review tribunal or who otherwise vacates the office,
(d) an order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of an attorney and appointing a substitute attorney to replace the attorney who vacated office,
(e) an order directing or requiring any one or more of the following:
(i) that an attorney furnish accounts and other information to the tribunal or to a person nominated by the tribunal,
(ii) that an attorney lodge with the tribunal a copy of all records and accounts kept by the attorney of dealings and transactions made by the attorney under the power,
(iii) that those records and accounts be audited by an auditor appointed by the tribunal and that a copy of the report of the auditor be furnished to the tribunal,
(iv) that the attorney submit a plan of financial management to the tribunal for approval,
(f) an order revoking all or part of the power of attorney,
(g) such other orders as the review tribunal thinks fit.
...
As explained by Slattery J in Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 at [42], ss 36(1), 36(2) of the Act give NCAT a two-step discretion. NCAT may first exercise a discretion to “decide to review” the operation and effect of a reviewable power of attorney or “not to carry out such a review”: the Act, s 36(1). If NCAT decides to exercise that discretion, it may exercise a further discretion “whether or not to make an order under [s 36]”: the Act, s 36(2). If satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal, NCAT may make one or more of the orders listed in s 36(4) of the Act.
Alternatively, following review of the operation and effect of a reviewable power of attorney, if NCAT decides not to make an order under s 36 of the Act, it may (if it considers it appropriate in all the circumstances to do so) decide to treat the application for the review as an application for a financial management order under Pt 3A (Financial management) of the Guardianship Act 1987 (NSW): the Act, s 37.
In exercising the power to review the EPoA we must observe the principles in s 4 of the Guardianship Act (the section 4 principles): Civil and Administrative Tribunal Act 2013 (NSW), Sch 6, cl 5. Section 4 of the Guardianship Act states:
4 General principles
It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:
(a) the welfare and interests of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c) such persons should be encouraged, as far as possible, to live a normal life in the community,
(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and exploitation,
(h) the community should be encouraged to apply and promote these principles.
Background facts
In June 2023, Sandra was referred for assessment to clinical neuropsychologist, Dr Y, by her employer, a major Australian retailer, because of concerns about her work performance and memory changes. Sandra was then 64 years of age and had been working for her employer for thirty years.
In a report dated 19 June 2023, Dr Y said on assessment of Sandra there was “evidence of global cognitive decline”, showing a “striking impairment in encoding information into memory, with further loss over time, and almost no recollection of performing tasks”. In her opinion, Sandra had “younger early onset Alzheimer’s disease”.
Sandra was then living with her husband, Mr Z, in their jointly owned home on the NSW Central Coast. Around the same time as Sandra’s diagnosis, Mr Z was also diagnosed with dementia. In January 2024, he commenced living in residential aged care. He continues to do so.
In 2023, Sandra became a participant in the National Disability Insurance Scheme (NDIS). Under the first 12-month NDIS plan which commenced in July 2023, Sandra received assistance with daily living and “social, economic and community participation”. That plan recorded that Sandra was also receiving support from her children, primarily Liza.
In April 2025, Sandra was admitted to a district hospital following a fall. A couple of weeks later, Liza removed Sandra from hospital and took her to Liza’s home. In a report filed in these proceedings, a social worker wrote that Liza removed Sandra from hospital against medical advice. Liza claims that when she visited her mother in hospital, she was agitated, begged to be taken home and not to be sent to aged care. Liza said she was “disgusted” by the lack of care being provided to her mother. She said when she was informed by the “geriatrics doctor” that there was no plan to undertake any further tests, and, following a general set of observations undertaken by a nurse, everything “appeared fine”, she took Sandra back to Liza’s home. Liza claimed that she endeavoured to consult with Victor about removing Sandra from hospital but was unable to contact him.
Sandra continues to live with Liza, her son-in-law, and grandchildren in Liza’s home. In addition to the support and care provided by Liza, Sandra receives NDIS-funded care and support from external care providers.
Liza claims that Sandra is well cared for and enjoys living with her family.
Victor alleges financial abuse
Victor alleges that acting in her role as attorney, Liza has withheld information from him about decisions she made in relation to their parents’ financial affairs. He alleges that Liza has been using their parents’ money for her own purposes. Liza disputes those allegations. She said that until recently, Victor has shown no interest in the management of their parents’ financial affairs, and she has shouldered the burden of paying bills, negotiating with aged care and service providers, Centrelink and the NDIS. She contends that she has always acted in the best interests of her mother and has gone to great lengths to support her mother and to enable her to live her “best life”.
We set out below the main allegations made by Victor and Liza’s response to those allegations:
Allegation 1: that Liza has used over $127,000 of their mother’s money, including her entire superannuation payout ($105,000) to pay for renovations on Liza’s home
Liza claims that:
(1)with Victor’s agreement she used $87,000 of her mother’s money towards the cost of renovating her home, not $127,000 as he claimed;
(2)after her mother was diagnosed with Alzheimer’s disease in 2023, at a family meeting her mother agreed that when she required 24/7 care, she would move in with Liza and contribute to the cost of renovating Liza’s home to enable her to live there comfortably;
(3)she discussed with her mother the possible uses of her superannuation: to pay off the mortgage on her home (about $100,000), or, to contribute to the renovation of Liza’s home;
(4)her mother consented to her superannuation payout being used to fund renovations to Liza’s home and said that when she passed, as a beneficiary under her will, Victor would receive an amount equivalent to the amount she gave Liza to renovate her home. The balance of her estate would then be distributed equally to her two children;
(5)the above arrangement was agreed to by Victor but never put in writing. When that agreement was reached, she and Victor had a great relationship. Liza said that she never anticipated that Victor would accuse her of financial abuse.
Victor disputes that he agreed to the above arrangement. He claims that in 2023 he and Liza agreed that $50,000 from their mother’s superannuation pay out would be used to pay off the mortgage on their parents’ home and the balance would be left for their mother’s own use. He alleges that despite undertaking to do so, Liza did not pay $50,000 towards their parents’ mortgage. He claimed that he agreed that Liza could use $25,000 of their mother’s money to complete the renovations on Liza’s home and did not discover until late 2024 that Liza had in fact used over $100,000 of their mother’s money to renovate Liza’s home. He said he did not check his parents’ bank accounts and trusted Liza to do the “right thing”.
Allegation 2: that their mother no longer has access to her pension or bank account and is often left with two dollars in her account
Liza denies this allegation and claims that:
(1)she always ensures that her mother has cash in her wallet and access to money to pay for cigarettes, outings, etc.
(2)she uses her mother’s pension ($1,140 pf) to pay for rates and other expenses on her parents’ property and expenses incurred by her mother for groceries, medication, clothing, etc.
(3)her mother lives rent free in Liza’s home.
(4)she obtained legal advice which was to the effect that she was not required to keep receipts for the purchase of groceries and other small items purchased on behalf of her mother.
Allegation 3: we are unable to effectively communicate. Liza refuses to respond to his request for information about the use of his mother’s finances
Liza claims that despite her efforts to include him in decisions about their mother’s financial affairs, for the past two and a half years, Victor has shown little or no interest. She claims that she has always responded to his requests for information in a timely manner.
Obligations owed by attorney to the principal
An attorney owes the obligations of a fiduciary to the person who appointed them as attorney: Reilly v Reilly [2017] NSWSC 1419 (Reilly) at [111]. A foundational duty of a fiduciary is to act in the interests of a beneficiary, in good faith: Bale v Kimberley Developments Pty Ltd [2022] NSWSC 820 at [664]. As a fiduciary, a manager must avoid a conflict, or sensible possibility of conflict, between his or her personal interests and his or her duty to the principal a manager must not place him or herself in a position of conflict between his or her personal interests and his or her duty to the principal: Garslev Holdings Pty Ltd v Overdean Developments Pty Ltd [2023] NSWCA 259 at [161]. Nor is an attorney entitled to make a gift of the principal’s estate to him or herself or to others: Turner v O’Bryan-Turner [2021] NSWSC 5 at [514]; Reilly at [114].
The above obligations are reflected in the Act which states that unless the instrument creating a prescribed power of attorney expressly provides otherwise, an attorney cannot give a gift of all or part of the principal's property to another person, or confer a benefit on themselves: the Act, ss 11, 12.
In accepting their respective appointments under the EPoA, Victor and Liza accepted the above obligations. Their respective signatures appeared below the following clause:
“7 Acceptance by attorney
(a) I accept that I must always act in the principal’s best interests.
(b) I accept that as attorney I must keep my own money and property separate from the principal’s money and property.
(c) I accept that I should keep reasonable accounts and records of the principal’s money and property.
(d) I accept that, unless expressly authorised, I cannot gain a benefit from being an attorney.
(e) I accept that I must act honestly in all matters concerning the principal’s legal and financial affairs.”
Should orders be made under s 36(4) of the Act?
In his application seeking review of the EPoA (the Application), Victor sought the revocation of the EPoA and the variation of the terms of the EPoA so that any decision concerning the sale of their parents’ property would need to be made jointly. In addition, he sought several other orders, including that Liza be required to give to the Tribunal accounts of Sandra’s finances and to arrange for those accounts to be audited. At the hearing, he requested us to make a financial management order. Liza on the other hand requested that she be permitted to continue to act as her mother’s attorney.
To remove Liza or Victor as attorney, we must be satisfied that it is in Sandra’s best interests to do so, or, that it would better reflect her wishes.
We are not satisfied that it would be in Sandra’s best interests to remove Liza or Victor as attorneys and leave the other as sole attorney, largely because the evidence reveals that each sibling misapprehends the role of the attorney. At a time when each were of the opinion that their mother lacked capacity to manage her financial affairs and that the EPoA had come into effect, they agreed that it was appropriate that Liza be permitted to use some of Sandra’s money to fund renovations to Liza’s home. Whether as claimed by Victor it was agreed that that contribution be capped at $25,000, or that the amount actually spent, was $85,000 (as claimed by Liza), or $125,000 (as claimed by Victor), is not to the point. It was a substantial sum.
We accept that Liza holds the genuine belief that she was entitled to use her mother’s money to improve her home because it would, and in fact has been to the benefit of Sandra. However, as the summary set out above of the obligations owed by an attorney to a principal reveal, in doing so, she acted in breach of her duties as attorney, by mixing her own finances with those of her mother, and by conferring a financial benefit on herself.
While Victor has been highly critical of Liza’s actions as attorney, he admits agreeing to Liza using their mother’s funds to renovate Liza’s home. In addition, for over 12 months he took no steps to ensure that his mother’s financial affairs were being appropriately managed.
Finally, we are not satisfied that it would better reflect Sandra’s wishes to remove one of her children as her attorneys. At a time when apparently, she had capacity to make decisions about who to appoint to manage her affairs when she was no longer able to do so, she decided to appoint both children.
Other orders sought
In addition, we decided not to make the other orders sought by Victor. As we explain below, the current EPoA has become unworkable. Varying the terms of the EPoA by requiring any decision about the sale of their parents’ home to be made jointly by the attorneys, is likely to be unworkable. As we have decided to commit the management of Sandra’s estate to the NSW Trustee and Guardian, no useful purpose would be served in requiring Liza to produce accounts to NCAT and to arrange for them to be audited.
To treat the application to review the EPoA as an application for a financial management order
Having decided not to make an order under s 36(4) of the Act, we decided it appropriate to treat the Application as an application for a financial management order.
To exercise the power to make a financial management order in relation to Sandra, we must be satisfied:
(1)Sandra is incapable of managing her affairs.
(2)There is a need for another person to manage Sandra’s affairs; and
(3)It is in Sandra’s best interests for a financial management order to be made.
In considering whether to exercise the discretion to make, or not to make, a financial management order, we must have regard to the section 4 principles.
Sandra is incapable of managing her affairs
The question of whether Sandra is not capable of managing her finances requires consideration of the nature of her estate.
Sandra receives the disability support pension (DSP), about $1100 per fortnight. She owns a residential property estimated to be worth about $650,000 jointly with her husband. That property has a mortgage of about $100,000 (see, Exhibit A1). Since 2023, Sandra’s financial affairs have been managed by Liza.
Despite their simple nature, the medical evidence indicates that Sandra is unable to manage her finances in a reasonably prudent fashion. Liza and Victor agree.
Is there a need for a person to manage Sandra’s affairs?
The current arrangement whereby Liza and Victor are jointly and severally appointed to manage Sandra’s financial affairs has become unworkable. Each believe that the other is not acting in Sandra's best interests. Each allege that the other has abused Sandra’s trust. Victor alleges that Liza has used their mother’s money to benefit herself. Liza makes much the same allegation about Victor and alleges, among other things, that he lived rent free in their mother's property in 2024 and provided her with little support or care at a time when her cognition was in decline. Liza is particularly aggrieved that in 2024 when her own son was very ill and hospitalised, Victor did little to assist her to manage their parents' financial and personal affairs. She points out that she applied to the National Disability Insurance Agency so that their mother would receive much needed care support as her cognition declined. It was she who arranged for care to be provided to their mother, before and after she moved to live with Liza’s family.
Within the next 18 months it will be necessary to sell the Sandra’s home to fund the refundable aged care deposit payable to the facility in which Mr Z resides. It is improbable that Liza and Victor will be able to reach agreement on the myriad of decisions that will need to be made to enable that to occur.
We are satisfied that there is a need for another person to manage her financial affairs.
Is it in Sandra's best interests that a financial management order be made?
In circumstances where Sandra is unable to manage her finances, there is a need for another person to do so, and, where the EPoA has become unworkable, we find that it is in Sandra’s best interests that a financial management order be made.
We are satisfied that the preconditions to making a financial management order are met. We decided to exercise the discretion to make a financial management order in respect of Sandra.
Who should be appointed to manage Sandra’s estate?
Victor urges us to commit the management of Sandra’s affairs to the NSW Trustee and Guardian. Liza submits that the EPoA should be permitted to continue, and, in the alternative, if NCAT decides to make a financial management order, she seeks to be appointed as manager. She contends that she has diligently managed her mother’s financial affairs for the past two or so years and if appointed manager would continue to do so.
Liza appears to have the necessary knowledge and organisation skills to act as manager of her mother’s estate. However, we could not be satisfied that if she were to be appointed as manager that she would comply with the obligations owed by a manager to the person the subject of the financial management order. As discussed above, we find that Liza lacks an appreciation that the relationship between an attorney and the principal is in the nature of a fiduciary relationship with consequent duties owed under that relationship. Like an attorney, a manager owes the obligations of a fiduciary to the principal, the person who appointed them as attorney: P v NSW Trustee and Guardian [2015] NSWSC 579 at [51]. We could not be reasonably satisfied that Liza would comply with those obligations if appointed as manager.
No other individual has nominated to act as manager of Sandra’s estate. Therefore, her estate must be committed to the management of the NSW Trustee and Guardian.
Review EGA
In the application seeking review of the EGA, Victor requested the Tribunal to make a guardianship order and to appoint the NSW Public Guardian. He said Liza failed to consult him in relation to any decision she made in respect of their mother. He claims that in April 2025, Liza removed their mother from hospital against medical advice.
In oral submissions, Victor said he agreed with Liza that their mother was settled and happy living with Liza’s family, that the services being provided to Sandra were appropriate and that her health care needs were being well managed. His main complaint was Liza’s failure to consult him about decisions she had made in exercise of her authority as enduring guardian. While not squarely put, we understood from his submission made at the hearing that he no longer pressed for the EGA to be revoked.
The powers available to us on review of the EGA include:
(1)to confirm the EGA and vary or not vary the functions given to the enduring guardians under that appointment: Guardianship Act, s 6K(1)(b);
(2)if requested by Victor or Liza, or if we consider it to be in Sandra’s best interests, to revoke their respective appointments: Guardianship Act, ss 6K(1)(a), 6K(2);
(3)if we consider that it is in the best interests of Sandra, to deal with the review as if it was an application for a guardianship order: Guardianship Act, ss 6K(1)(a), 6K(3)(a).
The only example given by Victor of a concerning decision made by Liza about their mother’s personal affairs was the decision to remove Sandra from hospital in April 2025. Liza gave a reasonable explanation for removing her mother from hospital before a formal discharge decision was made. Reasonable minds might differ about the merit of that decision. However, of itself that could not be said to evidence that Liza lacked judgment, was unable to discharge the functions of an enduring guardian in a manner consistent with the obligations to give paramount consideration to Sandra’s interests.
As Victor conceded, he has no concerns about any other decisions made by Liza in respect of their mother’s personal affairs, only the lack of consultation. Given that Victor has now indicated a greater willingness to be involved in decisions about his mother’s personal affairs, we recommend that he and Liza endeavour to reach agreement on the types of decisions he wishes to be consulted about and the method of consultation.
At this stage, poor communication between the guardians of itself does not warrant exercising the power to revoke the EGA. In reaching that conclusion we consider significant that there is no evidence which might tend to suggest that Sandra’s welfare and interests have been adversely affected by any decision made by her daughter in exercise of her power as enduring guardian or the lack of communication between the guardians.
We decided to confirm the EGA.
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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
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