SNC (No 2) - [2014] NSWCATGD 21

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: SNC (No 2) [2014] NSWCATGD 21
Hearing dates: 10 April 2014
Decision date: 10 April 2014
Jurisdiction: Guardianship Division
Before: Simpson J, Senior Member (Legal)
Jamieson G, Senior Member (Professional)
Whaite A, General Member (Community)
Decision:
Refusal to review guardianship order.
Removal of attorney appointed under enduring power of attorney.

Catchwords:
GUARDIANSHIP - application to review guardianship order - no new evidence - no new issues - no grounds to warrant review.

ENDURING POWER OF ATTORNEY - application to review making of and review operation and effect of an enduring power of attorney - capacity to make - alleged misuse of power - alternative attorney removed.
PROCEDURAL FAIRNESS - disclosure of evidence - non-disclosure of evidence to parties - adjournment request - adjournment refused.
Legislation Cited: Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Category: Principal judgment
Parties: Mr SNC (subject person)
Mr NBC (enduring guardian and attorney)
Mr KBK (alternative enduring guardian and alternative attorney)
The Public Guardian
File Number(s): 55277
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

reasons for decision

What the Tribunal decided

The Tribunal refused Mr KBK's request that it conduct a review of the guardianship order in relation to Mrs SNC.

The Tribunal reviewed the power of attorney made by Mrs SNC on 13 June 2013 and her revocation of the same date of a power of attorney she had made in 2011. The Tribunal decided to make no order in relation to the revocation of the 2011 power. The Tribunal removed Mr KBK from his position as an attorney under the 2013 power.

Background

Mrs SNC is a 69-year-old woman who is being supported by her husband of 43 years in their home at Regional NSW. Mr and Mrs SNC have two surviving sons, Mr DBC and Mr KBK. In the last year, there has been very limited contact between Mr DBC and his family.

In November 2012, Mr KBK moved into the family home to assist with carer responsibilities.

In June 2013, Mrs SNC executed an appointment of enduring guardian and an enduring power of attorney, in each case appointing Mr NBC with Mr KBK as alternative guardian and attorney. Mrs SNC also signed a revocation of a previous power of attorney that she had signed in February 2011 appointing Mr NBC.

During 2013, there was a deterioration in the relationship between Mr KBK and his father and this came to a head at the end of that year. In December, Mrs SNC had a period in a regional hospital and then a period of respite at an aged care facility. The local police took out a provisional apprehended domestic violence order against Mr KBK on behalf of Mr NBC.

Mr KBK expressed major concerns about Mr NBC's actions in relation to Mrs SNC and applied for review of the appointment of enduring guardian. The matter came on to hearing in early 2014 and the Tribunal adjourned it with directions. Mr NBC then lodged an application for review of the 2013 power of attorney with a view to Mr KBK being removed as alternative attorney.

At a hearing on 27 February 2014, the Tribunal revoked the 2013 appointment of enduring guardian and made a guardianship order for 12 months. The order appointed Mr NBC to make decisions about his wife's accommodation, health and services and appointed the Public Guardian to make decisions about Mr KBK's access to his mother.

The Tribunal needed to adjourn the power of attorney review. The Tribunal noted that there were clear issues about Mrs SNC's capacity to sign enduring documents in June 2013 and accepted Mr NBC's verbal application for review of the June 2013 revocation of the 2011 power of attorney.

The Tribunal now had to deal with the power of attorney reviews. The Tribunal also had to deal with a request made by Mr KBK on 18 March 2014 for it to review the guardianship order.

REVIEW OF GUARDIANSHIP ORDER

The first issue for the Tribunal was whether it should refuse to review the guardianship order. Section 25A of the Guardianship Act 1987 (NSW) says that the Tribunal may refuse a request to review a guardianship order if, "in the opinion of the Tribunal, the request does not disclose grounds that warrant a review."

Here, Mr KBK lodged his request less than three weeks after the guardianship order was made and before the Tribunal had produced its reasons for making the order.

Mr KBK's request was for the Tribunal to replace Mr NBC as guardian with the Public Guardian. The request stated:

Further information has surfaced which supports my original application. This information contradicts verbal information given to the Tribunal by Mr NBC during the last hearing.

In his accompanying e-mail, Mr KBK raised three issues:

(1) He questioned evidence given by Mr NBC in relation to financial issues at the February hearing and expressed concern about money withdrawn in cash from a joint bank account. He said that this would explain why Mr NBC, "removed mum from a nursing home to avoid having to pay the entry contribution." Mr KBK provided a list of transactions on a joint bank account from November 2013 to March 2014.

(2) Mr KBK said that he had requested court documents from a previous AVO hearing that would prove that a written statement Mr NBC provided to the Tribunal was different from the statement he submitted to the court.

(3) Mr KBK said that he had requested a complete PBS history for Mrs SNC from Medicare to verify the medications that Mr NBC obtained for her, "medications known to be fatal when administered concurrently." In the hearing, Mr KBK explained that he wanted to see if Mr NBC had obtained more of, or had a further prescription for, two antidepressants, the interaction of which he saw as having had a very negative impact on his mother's health.

In the hearing, Mr KBK raised a further issue in relation to difficulties of Mr NBC accepting the authority of the Public Guardian in relation to access decisions.

Mr NBC saw nothing new in what Mr KBK had raised in his review request.

The Tribunal notes that the issue of whether Mr NBC had acted inappropriately in relation to administration of two antidepressants to his wife had been considered in detail at the February hearing and the Tribunal had accepted Mr NBC's evidence that the two antidepressants were being administered on the advice of general practitioner Dr Z and that Mr NBC had stopped administering them when the dual antidepressants appeared to lead to Mrs SNC becoming ill. The Tribunal accepted that Mr NBC had not restarted the medications.

Mr KBK was now seeking to reopen this issue without having any new evidence on it, only a desire to obtain PBS records.

The issue of what letter or letters Mr NBC had provided to the local court in AVO proceedings in September 2013 had also been dealt with in detail in the previous hearings. Again, Mr KBK was asking the Tribunal to reopen this issue without having any new evidence, only a desire to obtain it.

The financial issues raised by Mr KBK were more relevant to the power of attorney reviews than to guardianship. Mr KBK did assert that the financial issues explained why Mr NBC had removed Mrs SNC from a respite aged care placement, allegedly to avoid paying an entry contribution. However, there was no evidence that any entry contribution would have been payable. Mrs SNC had approval from the Aged Care Assessment Team for high level residential care. At the previous hearing, the Tribunal had considered whether Mr NBC had inappropriately removed his wife from the aged care facility and not been satisfied that Mr NBC had acted inappropriately.

The Tribunal was clear in its opinion that Mr KBK's request did not disclose grounds that warranted a review of the guardianship order.

Subsequent to making his request, Mr KBK also raised the issue of Mr NBC's apparent reluctance to cooperate with the Public Guardian in relation to its access function. The Public Guardian's job is to decide whether or not access should occur and, if access is to occur, to decide about the terms of it. Mr NBC has recently made very strong statements that he will not allow access to occur. However, the Tribunal noted that its reasons for decision had only just been finalised and these will provide a basis for the Public Guardian to further consult and form a view about whether or not access should occur. In the hearing, the representative from the Public Guardian said that the Public Guardian had only just received the Tribunal's reasons and had not yet met the parties. The issue of access was a complex one to be resolved over time.

At the very least, it was premature for the Tribunal to be reviewing the guardianship order on the basis of Mr NBC's current attitude to the issue of access. Section 25A is focused on whether the review request disclosed grounds that warranted a review. Even if this extended to the access issue now being raised by Mr KBK at the hearing, the Tribunal would not have seen a review as warranted.

The issue of access remains for the Public Guardian to consider over the year of the guardianship order. Some of what is said below in relation to the power of attorney reviews may add to the relevant information for the Public Guardian to consider in relation to whether or not access should occur, at least while Mrs SNC is still living at home.

POWER OF ATTORNEY REVIEWS

In view of issues about Mrs SNC's capacity for the 2013 documents, the extremely negative relationship between the two attorneys and Mr KBK's recent use of the 2013 power of attorney without apparent authority (see below), the Tribunal was clear that it should carry out a review of the 2013 power and of the 2013 revocation of the 2011 power.

The powers of attorney

In February 2011, Mrs SNC signed an enduring power of attorney appointing her husband Mr NBC. Mr NBC holds a copy of this power of attorney but recent attempts to locate the original have been unsuccessful.

In June 2013, Mrs SNC signed a revocation of the 2011 power of attorney and a new enduring power of attorney. The new power appointed Mr NBC and Mr KBK on the following basis:

I appoint my husband [Mr NBC] as my attorney to act severally and if he is unable or unwilling to so act then I appoint my son [Mr KBK] as my attorney to act severally.

The addition of Mr KBK as an alternative attorney was the only significant difference between the two powers.

Recent use of the 2013 power of attorney by Mr KBK

Mr KBK recently used the 2013 power of attorney to obtain bank statements and to withdraw $1000 from an account of his parents. When the Tribunal questioned him about this, he said that the $1000 was to pay for his expenses to attend the Tribunal hearings in Sydney. (This money had subsequently been returned to the account.)

The Tribunal was most concerned that Mr KBK had used the power of attorney at all, given that his authority only arose if Mr NBC was unable or unwilling to act, and particularly concerned that he had used it to obtain money for his own use.

In the hearing, Mr KBK sought to justify his actions on the basis that his father was unwilling to act in Mrs SNC's best interests. This was a very strained and incorrect interpretation of "unable or unwilling to act."

The Tribunal restricted evidence to be disclosed to Mr KBK

Prior to the April hearing, Mr NBC expressed great offence at being asked to account for his and his wife's money and complained that he had been asked about financial information when Mr KBK was present at a previous hearing.

At the April hearing, the Tribunal saw itself as needing to obtain some further financial evidence from Mr NBC. The Tribunal considered whether it should make an order under section 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) so that this evidence would not be disclosed to Mr KBK. Mr NBC emphasised his grievances in relation to Mr KBK and said that his and his wife's finances were nothing to do with Mr KBK. He was furious that the bank had released the banks statements to Mr KBK.

Mr KBK said that he did not object to the Tribunal obtaining financial evidence from Mr NBC in private and keeping it private.

In view of Mr KBK's non objection, the private nature of financial affairs, Mr KBK's recent misuse of the power of attorney and his history of unsubstantiated allegations in relation to his father (as dealt with in the Tribunal's guardianship reasons), the Tribunal made the order under section 64.

Mrs SNC's financial affairs and management of them

At the February hearing, Mr NBC told the Tribunal that he and his wife jointly own their own home with no mortgage. His wife owns shares from an inheritance. She also received approximately $500,000 cash from an inheritance. Some of this money was used to pay debts and house expenses. Mrs SNC's inheritance and his money had gone into one kitty. Both their money goes into one pool from which expenses are paid. There is now about $200,000 in joint names. Mr NBC has always managed the family money. He had always managed his wife's money. She had not wanted to. Mrs SNC receives a part pension but this may become a full pension soon. Mr NBC receives an aged pension.

Mr KBK told the Tribunal that a 1997 inheritance of his mother had been abused. His mother held a power of attorney for her aunt who also willed all her estate to Mrs SNC. However, the money ran out before the aunt died. Mr NBC denied this version of events. The Tribunal accepted his denial.

In advance of the April hearing, Mr KBK provided the Tribunal with copies of bank statements on a joint account of Mr and Mrs SNC. These showed various transfers of money between accounts and considerable withdrawals. At the hearing, Mr KBK said that, when he was assisting with the care of his mother in 2013, he had access to financial information in relation to all of his parents' bank accounts. He said that now a new account had been opened by his father in his own name.

The Tribunal obtained further evidence from Mr NBC in relation to Mrs SNC's financial affairs on the basis that it would not be disclosed to Mr KBK. This evidence reassured the Tribunal in relation to how Mr NBC is managing his and his wife's money.

Late in the hearing, Mr KBK made a further allegation against his father. He suggested that, when Mr NBC had been treasurer of the local RSPCA, he had been involved in misappropriation of money. Mr NBC denied this. If this was a serious allegation with some basis, the Tribunal was surprised that it was not made much earlier. Mr KBK then sought an adjournment to obtain further evidence on this matter. The Tribunal refused an adjournment. Mr KBK had had adequate time to gather evidence.

Mrs SNC's capacity for the June 2013 documents

The Tribunal had concerns about whether Mrs SNC had capacity to make the 2013 power of attorney and execute at the same time a revocation of the 2011 power of attorney.

These concerns were not allayed by the evidence of Ms SIO, solicitor who prepared the 2013 documents. She said that she had not been aware that Mrs SNC had dementia. She had taken initial instructions from Mr NBC and then prepared the documents. Mr and Mrs SNC and Mr KBK then came in for execution of the documents. At least Mr and Mrs SNC were in the room when this happened. Ms SIO had asked Mrs SNC who she wanted as attorney and she had indicated her husband. Ms SIO had asked who she wanted as second attorney and she indicated her son. Ms SIO had said that it was a powerful document and Mrs SNC had responded, "Yes I know." Ms SIO had explained what the documents related to but she had not asked Mrs SNC to explain back to her the nature and effect of the documents. Ms SIO was concerned that she had not been aware that Mrs SNC had a cognitive disability. She had been told there was a physical disability. (If Ms SIO had been aware that Mrs SNC had a cognitive disability, presumably she would have consulted one of Mrs SNC's doctors about her capacity.)

Mr NBC said that he believed his wife was able to understand the 2013 power.

Dr X is a geriatrician who has known Mrs SNC since mid-2011. He provided a report to the Tribunal in January 2014. He had last seen her in February 2013. She had a posterior cortical variant of Alzheimer's disease. She had a moderately severe dementia with deficits in areas including orientation, praxis, memory and visuospacial difficulties. She needed assistance with activities and this was being provided by her husband. She lacked capacity to organise financial affairs.

In Dr X's report from when he had seen Mrs SNC in February 2011, he noted that her cognition had been declining. He spoke with her about a trial of alternative cholinesterase inhibitors but she was not particularly keen given severe confusion which she felt had been caused by Aricept. Dr X saw this as a reasonable point of view.

In the hearing, Dr X said that it was very hard to determine whether Mrs SNC lacked capacity to sign the enduring power of attorney and revocation in June 2013. She was in a progressing stage of her dementia. In February 2013, she was still functioning independently in some tasks.

Dr W has been Mrs SNC's long-standing general practitioner and was seeing her until she changed to another GP in the latter part of 2013. In the hearing, Dr W also found it difficult to express a view about Mrs SNC's capacity for the June 2013 documents. She still had some degree of capacity despite her decline.

What orders could the Tribunal make?

The Tribunal had a range of options to consider as set out in sections 36-37 of the Powers of Attorney Act 2003 (NSW). These included:

Deciding whether Mrs SNC had the mental capacity to sign the 2013 enduring power of attorney and/or revocation of the 2011 power (sub-sections 36(3) and (3A)). If the Tribunal decided that Mrs SNC lacked capacity for these documents, the 2013 power of attorney could not be used and the 2011 power of attorney would no longer be revoked.
If the 2013 power remains on foot, considering whether to remove Mr KBK as alternative attorney as advocated by Mr NBC. To take this course, the Tribunal would need to be satisfied that it was in Mrs SNC's best interests or would better reflect her wishes (sub-section 36(4)).
Considering whether to make a financial management order and appoint a family member as manager (under the usual oversight and direction of the NSW Trustee and Guardian) or appoint the NSW Trustee and Guardian as manager. Mr KBK asked the Tribunal to appoint the NSW Trustee and Guardian. The Tribunal can consider making a financial management order if it decided not to make any order in relation a power of attorney (section 37).

In deciding which option to take, the Tribunal found the following factors important:

Mrs SNC certainly did have well-established dementia at the time she signed the 2013 documents. Unfortunately, no health professional was asked to assess her capacity at the time she was signing the documents. Both her long-standing general practitioner and her geriatrician were unable to express any clear opinion as to whether or not she had capacity to sign the documents.
If Mrs SNC did lack capacity to sign the 2013 documents, then the 2011 power of attorney would remain valid. The only significant difference between the two powers of attorney was the addition of Mr KBK into the 2013 power with authority to act if Mr NBC was unable or unwilling to do so.
Mr and Mrs SNC's long marriage and Mr NBC's uncontradicted evidence that his wife has always relied on him to look after their finances.
The Tribunal saw no evidence that Mr NBC has acted imprudently in looking after his wife's and his finances.
In determining the guardianship aspects of the matter in February, the Tribunal accepted that Mr NBC was a conscientious and competent carer for his wife of 43 years. Dr W had always seen Mr NBC as a dedicated and caring husband who supported his wife extremely well. In his report to the Tribunal, Dr X supported continuation of Mr NBC's role as decision maker for his wife.

Mr NBC has a very challenging role as carer for his wife. As he wrote on 2 April:

I am caring for my wife on a 24/7 basis. When she was in respite in December 2013 3x8 shifts of nurses did the same job. Therefore as you can imagine it is no easy feat and I don't deny it is hard going. However for my wife's sake I am trying desperately to keep her at home (other than respite care) ensuring that her welfare and her health are not compromised. The stress of this situation is significant and takes all of my reserve to maintain the situation.

Mr KBK had acted without authority in accessing Mr and Mrs SNC's bank records and withdrawing $1000 of their money for his own use.
Mr KBK's relationship with his father has become very conflictual. Mr KBK made very serious allegations against his father including neglect as a carer, misuse of prescribed medication and inappropriately discharging Mrs SNC from a respite placement. In the guardianship proceedings, the Tribunal was not satisfied that these allegations were well founded and the Tribunal did not see evidence now that would lead it to a different view.

Making a retrospective point in time determination of capacity for particular transactions is often very challenging as shown here by the evidence of Mrs SNC's geriatrician and longstanding general practitioner. The Tribunal also noted that, if it had been satisfied that Mrs SNC lacked capacity for the 2013 documents, this would have revived the 2011 power which had Mr NBC as sole attorney.

The course that seemed to the Tribunal most appropriate was to remove Mr KBK from the 2013 power. This course would go against Mrs SNC's wishes as reflected in that document but only to the extent of removing an alternative attorney whose authority would only arise if Mr NBC was unable or unwilling to act, a scenario that appeared very unlikely to arise. In terms of Mrs SNC's interests, the Tribunal was not satisfied that Mr NBC has acted inappropriately in managing his and his wife's finances, a role that she has relied on him to perform throughout their 43 year marriage. Mr NBC's devotion to his wife was clear from the conscientious role that he has been taking as carer in recent years, including now when she is eligible for high level aged care accommodation.

It was in Mrs SNC's interests that her husband be able to carry out his demanding role as carer with as little distraction and intrusion as possible. It was therefore contrary to Mrs SNC's interests for Mr KBK to be in a position where he could seek to interfere in financial matters as he has recently. It would also have been an unnecessary intrusion and distraction for Mr NBC to have had to deal with the NSW Trustee and Guardian whether as supervisor of him as financial manager or as financial manager itself.

The Tribunal accepted that it was in Mrs SNC's interests to remove Mr KBK from the 2013 power of attorney.

The Tribunal made no order in relation the revocation of the 2011 power of attorney.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 21 October 2014

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Citations

SNC (No 2) [2014] NSWCATGD 21

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Medium Neutral Citation:	SNC (No 2) [2014] NSWCATGD 21
Hearing dates:	10 April 2014
Decision date:	10 April 2014
Jurisdiction:	Guardianship Division
Before:	Simpson J, Senior Member (Legal) Jamieson G, Senior Member (Professional) Whaite A, General Member (Community)
Decision:	Refusal to review guardianship order. Removal of attorney appointed under enduring power of attorney.
Catchwords:	GUARDIANSHIP - application to review guardianship order - no new evidence - no new issues - no grounds to warrant review. ENDURING POWER OF ATTORNEY - application to review making of and review operation and effect of an enduring power of attorney - capacity to make - alleged misuse of power - alternative attorney removed. PROCEDURAL FAIRNESS - disclosure of evidence - non-disclosure of evidence to parties - adjournment request - adjournment refused.
Legislation Cited:	Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Category:	Principal judgment
Parties:	Mr SNC (subject person) Mr NBC (enduring guardian and attorney) Mr KBK (alternative enduring guardian and alternative attorney) The Public Guardian
File Number(s):	55277
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).