YJD

[2024] NSWCATGD 18

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

YJD [2024] NSWCATGD 18

Hearing dates:

23 February 2024 and
3 April 2024

Date of orders:

26 February 2024 (Review enduring guardianship)
3 April 2024 (Review enduring power of attorney)

Decision date:

03 April 2024

Jurisdiction:

Guardianship Division

Before:

J Moir, Senior Member (Legal)
M Bain, Senior Member (Professional)
P Davidson, General Member (Community)

Decision:

Review Enduring Guardianship (26 February

2024)

In relation to the application to review an enduring guardian appointment made by Noel on 18 October 2023, appointing Susan, the Tribunal orders, directs or declares:

The application to review the enduring guardianship made on 18 October 2023 is treated as an application for a guardianship order.

1. A guardianship order is made for Noel

2. Violet of [address removed for publication], is

appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 26 February 2024.

4. This is a limited guardianship order giving the guardian custody of Noel to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a)   Accommodation

To decide where Noel may reside.

b)   Health care

To decide what health care Noel may receive.

c)   Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where Noel is not capable of giving a valid consent.

d)   Services

To make decisions about services to be provided to Noel.

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring Noel to an understanding of the issues and to obtain and consider his views before making significant decisions.

Review Enduring Power of Attorney (23 February 2024)

Today’s hearing is adjourned, part heard.

By 27 February 2024, Susan is to send the Tribunal, the Separate Representative and other parties copies of any reports from Dr Andrew Milne, subsequent to his report of 4 September 2023.

The Tribunal notes that parties are not expected to file any further evidence or submissions, with the exception of the documents referred to above, prior to the hearing on 3 April 2024. If there is further evidence or submissions not already included in the material submitted to date, it should be cross served and submitted no later than 19 March 2024. Material submitted after this date may not be accepted into the hearing papers.

Review Enduring Power of Attorney (3 April 2024)

In relation to the enduring power of attorney made by Noel on 18 October 2023 which appointed Susan as attorney the Tribunal determines:

Not to make an order under section 36 of the Powers of Attorney Act 2003. The application for review of the enduring power of attorney is treated as an application for a financial management order under Part 3A of the Guardianship Act 1987 (NSW).

No later than 10 April 2024, Susan and Ms Timms are directed to handover or pay over all of the estate of Noel, including details of his bank/building society/credit union accounts to Violet. The Tribunal notes Ms Timms undertaking at the hearing to assist in this process.

1. The estate of Noel is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2.   Violet of [Address removed for publication.] is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

The Tribunal notes that as a financial management order is now in place, all Enduring Powers of Attorney are suspended, and the attorneys are not entitled to operate under that authority.

Catchwords:

REVIEW OF AN ENDURING POWER OF ATTORNEY – application to review an enduring power of attorney – request for revocation – allegations of financial exploitation – whether subject person had capacity to appoint an enduring power of attorney – whether the tribunal should make orders under s 36 of the Powers of Attorney Act – subject person incapable of managing their own affairs – application for review of enduring power of attorney treated as an application for a financial management order – suitability of private manager – private financial manager appointed – enduring power of attorney suspended – order made

REVIEW OF ENDURING GUARDIANSHIP – subject person in aged care accommodation – enduring guardian not present at hearing – consideration of adjournment – adjournment refused – finding that appointed guardian not suitable – decision to treat application to review an enduring guardianship appointment as an application for a guardianship order – whether subject person is a person in need of a guardian – private person suitable to be appointed – order made

Legislation Cited:

Civil Administrative Tribunal Act 2013 (NSW), ss 4, 36, 38, 51

Guardianship Act 1987 (NSW), ss 3(1)-(2), 3A, 4, 6HB, 14, 14(2), 15(3), 17(1), 25M

Mental Health Act 2007 (NSW)

Powers of Attorney Act 2003 (NSW), ss 36, 36(1)-(2), 76

Guardianship Regulation 2016 (NSW), Sch 1

Cases Cited:

Application by AMAM; Re SAM [2011] NSWSC 503

Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227

P v NSW Trustee and Guardian [2015] NSWSC 579

W v G [2003] NSWSC 1170

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

003: Review of an Enduring Guardianship Appointment

Noel (the person)
Violet (applicant, carer, enduring guardian)
Susan (enduring guardian)
Ms Timms (enduring guardian)
NSW Trustee and Guardian
Public Guardian

004: Review of an Enduring Power of Attorney

Noel (the person)
Violet (applicant)
Susan (attorney)
Mr Timms (attorney)
NSW Trustee and Guardian

Representation:

N Cruz, Solicitor for Noel (23 February 2024 only)
B Lu, Separate Representative for Noel

File Number(s):

NCAT 2023/00332195

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

REVIEW OF ENDURING POWER OF ATTORNEY AND REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT

Background

1. Noel is a 79-year-old divorced man who lives with his dog Juno, in a supported living unit in a retirement village in northern NSW. Noel has independent carers who attend and provide him with assistance with household tasks, some care and community access. Noel is reported to have been diagnosed with dementia and has a number of chronic medical conditions.

2. Noel has two daughters, Susan who lives in a regional town in northern NSW and Violet who lives in northwest Sydney. There is significant conflict between them. It is also reported that there had been periods where Noel has been estranged from his daughters, however at the time of these proceedings both daughters are actively involved in his life. Meaning no disrespect, for the remainder of these reasons for decision Noel’s children will be referred to by their first names only.

3. Noel has executed a number of powers of attorney (EPOA) and enduring guardianship (EndG) instruments over the last four years, variously appointing one of his daughters, and on one occasion his ex-wife, Linda, as enduring attorneys and enduring guardians. Some of these instruments have been revoked and some have not. The details of these instruments are set out below.

4. On 18 October 2023 the Tribunal received an application from Susan seeking to review an EPOA that Noel had made in July 2022 appointing Violet as enduring attorney. She asked that the EPOA be revoked and that Violet provide accounts to the Tribunal to be audited. Susan alleges that Violet had removed a substantial sum of money from Noel’s account ($50,000 - $60,000) whilst she was attorney. On the same day as Susan’s application, Noel executed a new EPOA appointing Susan as enduring attorney. On 8 December 2023 Susan asked to withdraw her application to the Tribunal, on the basis that she was now able to address her concerns about Violet’s actions, as she had been appointed as attorney.

5. On 14 December 2023, the Tribunal received applications from Violet seeking a review of the 18 October 2023 EPOA and a review of an EndG instrument said to have been executed on 18 October 2023. Violet states that Noel was diagnosed with Alzheimer's dementia in 2022 and questions his capacity to have made enduring instruments in October 2023. She asks that these instruments be revoked.

6. At a directions hearing on 20 December 2023, the Tribunal consented to the withdrawal of Susan’s application, and it was dismissed. The Tribunal also ordered that Noel should be separately represented in proceedings and made directions in relation to cross service of evidence.

7. On 17 January 2024, Violet asked to withdraw her applications. She expressed that her father had told her he was happy with the current arrangements, and she also expressed concern about the legal costs to him of proceeding. At a directions hearing on 6 February 2024, Violet advised she no longer wanted to withdraw her applications. The Tribunal granted leave for Noel to be represented by his own lawyer in these proceedings. The Tribunal confirmed the directions made on 20 December 2023 in relation to the cross service of documents and the time frame for this.

8. The Tribunal conducted a hearing on 23 February 2024, and made orders in relation to the application to review the EndG. However, there was insufficient time to consider the application to review the EPOA and the Tribunal adjourned those proceedings, part heard to 3 April 2024.

9. These reasons for decision arise from both of these hearings.

The hearings

10. Both hearings were held in Sydney but most participants were by video and telephone.

11. The participants at the hearing on 23 February 2024 were Noel, Susan, Violet, Mr Tyson, friend of Susan’s, and Ms Timms, another friend of Susan’s. Mr Nicholas Cruz, solicitor acting for Noel attended in person and Ms Barbera Lu, Separate Representative participated by video.

12. At the time of this hearing Noel was staying with Susan at her home. Because Noel has some hearing impairment, it was not possible for him to hear and contribute based on the sound quality available from the speaker on Susan’s computer. There was considerable time taken at the start of the hearing to ensure that Noel was able to hear the proceedings and participate in an informed way. After some efforts by Susan and Mr Tyson who were both with Noel, and the Tribunal providing suggestions and feedback, a solution was found where Noel confirmed that he was able to hear what was being discussed and was therefore able to provide his views. The Tribunal was satisfied that Noel was given the best opportunity to participate meaningfully in these proceedings and was satisfied that the views that he expressed were based on him having heard what was explained and discussed.

13. The participants in the hearing on 3 April 2024 were Noel, Violet, Ms Timms, Ms Lu, and a support worker. On this occasion Noel was at his home in the retirement village and the support worker was present with him to assist him with the call. Mr Cruz had earlier written to the Tribunal to advise that he was no longer acting for Noel and would not be participating.

14. On 13 March 2024 the Tribunal received an email from Susan in response to the notice of hearing being sent out for the hearing on 3 April 2024. Her email states "Dear Registrar, I am not available on this date. I will be available on the 3rd April 2024. I will be available after the 15th April 2024. Kind regards [Susan]." The officer preparing the matter for hearing advised Susan verbally and by email that she should provide confirmation of why she was unable to participate. Susan advised it was due to medical reasons, but did not wish to put her reasons in writing. On 25 March 2024 Susan submitted a form for the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal (NCAT), seeking an adjournment, stating the grounds for her request were that "there was never a question for a date and as such there was no opportunity to advise that there are prior commitments until the middle to end of April. These commitments have been in place for several months. Means there is no availability to attend and then this would mean an unfair hearing to support [Noel]." There was no supporting material attached with this application such as confirmation of appointments preventing Susan’s participation. The Tribunal called Susan at the time of the hearing but she did not answer.

Adjournment 3 April 2024

15. The Tribunal considered whether or not the proceeding should be adjourned on Susan’s request. As noted above, Susan had advised she was unavailable to participate, but had provided nothing to substantiate this. She had also reported in an email of 25 March that Noel’s health had declined since the Tribunal appointed Violet as his guardian. Susan had also submitted a further Affidavit with some supporting material dated 2 April 2024, responding to Violet’s Affidavit dated 19 March 2024.

16. Noel said he preferred to get the hearing over and done with, but was not strongly opposed to it being adjourned. Violet said that she had asked her father earlier about the possibility of an adjournment and he had said that he wanted it settled now and did not want it to be put off. He is frustrated by the current situation with Susan’s handling of his financial affairs. He has to ask Susan for money because he has insufficient money available to him on his card. Violet said that in the week prior to the hearing his card was declined when he tried to buy some groceries. This was not the first time this had happened and his support workers have sometimes had to help him out with small purchases from their own money. He finds the situation confusing and embarrassing. The Tribunal asked Noel about this and he said he didn't recall he had had much of a problem with purchases being declined.

17. The support worker said that he sees Noel most days and confirmed that there have been multiple occasions where they have been at the shops and Noel’s card has not had sufficient funds, and a transaction has been declined. The support worker said that he has paid for the items for Noel, and that Noel is frustrated and embarrassed by this lack of access and control of his own funds.

18. Ms Timms did not express a view about an adjournment. As one of the current attorneys, she explained that Noel does receive an allowance for his own use, and was aware of only one occasion where his card was declined.

19. Ms Lu submitted that the proceeding should not be adjourned, as there were insufficient grounds to do so. She noted that Susan had not provided any evidence supporting her statement that she was unable to attend. Ms Lu noted that the Tribunal had the benefit of written submissions from Susan expressing her views. She noted the concerns regarding Noel’s lack of access to his finances at present.

20. The Civil Administrative Tribunal Act 2013 (NSW) (CAT Act) provides the basis on which the Tribunal conducts its proceedings. Section 51 of the CAT Act gives the Tribunal broad discretion to adjourn matters. This discretion, of course, is tempered by the guiding principle of the CAT Act, set out in s 36. This provides that the guiding principle is that the Tribunal is to facilitate the just, quick, and cheap resolution of the real issues in the proceedings.

21. Section 38 of the CAT Act sets out the procedure of the Tribunal generally. Of relevance in this matter is that the Tribunal determines its own procedure, "is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice". The Tribunal is to take "such measures as are reasonably practicable" to ensure that the parties "understand the nature of the proceedings", and "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".

22. This application is brought under the terms of the Powers of Attorney Act 2003 (NSW) (POA Act), and the powers given to the Tribunal under the POA Act intersect with the provisions of the Guardianship Act 1987 (NSW) (the Act) because the Tribunal has the discretion to treat an application of this kind as though it is an application for a financial management order, which is an order made under the Act. The principles contained in s 4 of the Act provide that the welfare and interests of the person with a disability (Noel in this case) are the paramount consideration of the Tribunal. In addition to this, any decision the Tribunal makes must include consideration of the need to protect Noel from abuse, neglect and exploitation and balance this with the need to observe the principles to restrict his freedom of decision and freedom of action as little as possible and encourage self-reliance. The Tribunal must consider his views and recognise the importance of preserving his family relationships and cultural heritage.

23. Susan provided no confirmation that she was unable to participate nor any other information in support of her request for an adjournment. This would not have been difficult to do, if her unavailability was due to a prior appointment as suggested. The application has been in process now for a number of months and the parties had around a month's notice of this hearing date. Susan and Violet have both provided a great deal of written evidence, and submissions expressing their views. The Tribunal was confident that Susan had sufficient opportunity to consider the evidence and put her views to the Tribunal regarding this application. The matter was part heard from February 2024 and Susan had participated in that hearing and provided her views.

24. Adjourning the hearing to allow Susan to participate may have been fairer to her, but there was no indication that it would make the process fairer for the other parties, and to Noel in particular. The Tribunal gave considerable weight to his preference for the hearing to proceed, as well as the evidence from Violet and the support worker that Noel is being disadvantaged by the current arrangement for managing his finances. The Tribunal was satisfied that the potential for disadvantage to Noel if the hearing was adjourned outweighed the disadvantage to Susan in not adjourning the proceedings. The Tribunal was satisfied that this approach was also consistent with the guiding principle to provide a just, quick, and cheap resolution of the real issues in the proceedings. On this basis, the Tribunal therefore decided not to adjourn, but to proceed with the hearing.

Procedural issues regarding Susan’s written material

25. By way of general observation, Susan’s written material was presented in a style which did not assist the Tribunal focusing on the real issues in the case, and possibly also clouded the other parties and the Tribunal's understanding of her submissions. She raises many issues of a technical nature particularly regarding Violet’s evidence and Ms Lu's submission. Susan included links and submitted copies of whole pieces of legislation (for example, the Copyright Act 1968 (Cth), the Privacy Act 1988 (Cth), the Surveillance Devices Act 2007 (NSW), the Telecommunications Act 1997 (Cth)) without any reference to the provisions within this legislation she claimed to be offended by Violet’s evidence or Ms Lu's submissions. Nonetheless, Susan submits, amongst other things that there are transgressions of these laws which are sufficient for the Tribunal to disregard unspecified parts of Violet’s evidence and Ms Lu's submissions. Susan also makes a number of esoteric assertions, for example, that Noel (whom she refers to throughout her documents as [name removed for publication]) is not a "person". Rather than engage directly with Susan’s submissions of legal transgressions, the Tribunal focussed its attention on the Guiding Principle of the CAT Act, and the provisions of s 38 of the CAT Act, both referred to above

25. Given these provisions, and that this is a jurisdiction in which parties are generally not legally represented, the Tribunal will generally accept evidence and submissions made by parties, even if this might, in other jurisdictions, be excluded on the basis of some technical non-compliance with form. This is not to say that any of Violet’s evidence or Ms Lu's submissions fell short in this regard - rather that the Tribunal did not turn its mind to this possibility. There is a wide range of material submitted in Guardianship Division proceedings. Not all evidence is of equal quality or value, and it is a matter for the Tribunal to consider what weight should be given to particular evidence. Ultimately in doing this, the Tribunal strives to have regard to the s 36 Guiding Principle in the CAT Act, the "fairness" provisions in s 38 of that Act and the s 4 principles of the Act, which place Noel’s interests and welfare as the paramount consideration.

What does the Tribunal have to decide?

Review enduring guardianship

27. On reviewing the appointment of an enduring guardian, the Tribunal may

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

• proceed as if an application for guardianship or an application for financial management (or both) had been made or

○ revoke the appointment, with or without proceeding as if an application for guardianship or an application for financial management (or both) had been made.

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

• the enduring guardian requests the revocation; or

• the Tribunal is satisfied it is in the best interests of Noel that the appointment be revoked.

29. The Tribunal may only proceed as if an application for guardianship or an application for financial management (or both) had been made if it considers it is in the best interests of Noel to do so.

30. The questions to be decided by the Tribunal when considering whether to make a guardianship order are:

• Is Noel someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

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

• Who should be the guardian?

• How long should the order last?

Review enduring power of attorney

31. The Tribunal may decide whether or not to review the making or the operation and effect of a reviewable power of attorney: POA 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 POA Act (s 36(2)).

32. 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 Noel 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. Noel did not have the capacity necessary to make a valid enduring power of attorney;

2. the enduring power of attorney did not comply with the requirements of the POA Act;

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

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

• that it would be in the best interests of Noel to make the order

• that it would better reflect the wishes of Noel to make the order

34. These orders include:

• order varying a term of, or a power conferred by, the power of attorney

• an order removing a person from office as attorney

• an order appointing a substitute attorney to replace an attorney who has been removed from office or who otherwise vacates the office

• 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

• an order directing the attorney to:

○ furnish accounts to the Tribunal or someone nominated by the Tribunal

○ lodge a copy of all records and accounts of dealings and transactions made under the power

○ requiring that the records and accounts be audited and that a copy of the report of the auditor be furnished to the Tribunal

○ submit a plan of financial management for approval

• an order revoking all or part of the power of attorney

• such other orders as the Tribunal thinks fit

35. If on a review of the enduring power of attorney, the Tribunal decides not to make an order under s 36 of the POA 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 Act.

Financial management

36. The questions to be considered by the Tribunal when deciding whether to make a financial management order were:

• Is Noel incapable of managing his affairs?

• Is there a need for another person to manage Noel’s affairs and is it in his best interests for a financial management order to be made?

• If so, who should be appointed financial manager?

Details of enduring guardianship and enduring power of attorney appointments

37. Noel has made a number of power of attorney appointments and enduring guardian appointments since June 2020. It appears that on some occasions he has revoked previous instruments when he has made new instruments, but on other occasions he appears not to have done so.

38. In her applications Violet seeks review of the EPOA and EndG instruments made on 18 October 2023. However there is no evidence before the Tribunal that Noel made an EndG instrument at that time, although he did make an EPOA appointing Susan on that date.

39. The following is a table setting out a summary of the best evidence available to the Tribunal about these instruments.

Instrument	Date	Appointee	Status
General power of attorney	20 June 2020	Susan	not revoked
Enduring power of attorney	20 August 2020	Susan	Revoked by general revocation 25 October 2023
Enduring guardianship	20 August 2020	Susan	Not revoked
Enduring power of attorney	24 August 2020	Violet	Revoked by general revocation on 25 October 2023
Enduring guardianship	24 August 2020	Violet	Not revoked
Enduring power of attorney	27 August 2020	Linda	Revoked 19 July 2022
Enduring guardianship	27 August 2020	Linda	Revoked 19 July 2022
Enduring power of attorney	19 July 2022	Violet	Revoked by general revocation on 25 October 2023
Enduring guardianship	19 July 2022	Violet	Not revoked
Enduring power of attorney	18 October 2023	Susan	Not revoked

40. In addition to these instruments, at the start of the hearing on 23 February 2024 the Tribunal received a copy of a new EPOA dated 24 January 2024, by which Noel sought to appoint Susan and Ms Timms jointly and severally as attorneys.

41. During the adjournment of the proceedings, between February 2024 and April 2024, the Tribunal received a copy of an EndG instrument dated 24 January 2024, by which Noel sought to appoint Susan and Ms Timms jointly and severally as enduring guardians. The Tribunal received no further revocation instruments in relation to previous EPOA and EndG. As the 24 January 2024 instruments post-dated Violet’s applications to the Tribunal, they are not under review. However their existence is relevant to the Tribunal's decision about what action to take in relation to Violet’s applications.

42. The Tribunal notes that Violet sought to resign from her role as attorney and enduring guardian on 3 November 2023, but the resignation as enduring guardian at least, is not valid as it does not meet the requirements set out in s 6HB of the Act or Sch 1 of the Guardianship Regulation 2016 (NSW). This means that the EndG appointing her dated 19 July 2022 remains in place as it has not been revoked.

43. The best available evidence, therefore, was that as of 23 February 2024 and 3 April 2024, Noel had:

1. four unrevoked EndG instruments made between 20 August 2020 and 24 January 2024, appointing Violet, Susan, and Ms Timms;

2. one unrevoked general POA, and two unrevoked EPOA's appointing Susan and Ms Timms.

Relevant background

44. This is a summary of generally agreed facts providing some background to Noel’s life over the last four years. It provides useful context to understanding his circumstances during the period relevant to these applications. This information is collated from various documents submitted to the Tribunal and is intended to provide an uncontroversial chronology.

45. By all accounts Noel is a fiercely independent individual. For a number of years prior to the period relevant for these proceedings, he was living in makeshift accommodation (a mixture of caravans and sheds) on a block of land he owned in the McLean region of northern NSW with Juno, his dog. Noel is a former builder. He is reported to have been a heavy drinker for much of his life. He has had periods of estrangement from both of his daughters over the years but despite this they both remain deeply loyal to him and want to help him. In 2020 Noel asked for some help from his daughters. Susan provided some assistance pursuing unpaid rent from a man who had been living on the block. He executed the General Power of Attorney on 20 June 2020 so she could assist him in this regard.

46. In July 2020 Violet was involved in advocating for him to see a Geriatrician, and have an ACAT assessment and some HomeCare support put in place. In August 2020 he contacted Susan in some distress, and she and Linda drove up to collect him and bring him to Sydney. It seems there was a plan that he could live with Susan, but this did not work out. During this period he executed the EPOA and EndG of 20 August 2020 appointing Susan, then the EPOA and EndG of 24 August 2020 appointing Violet and then the EPOA and EndG of 24 August 2020 appointing Linda.

47. Noel returned to the McLean region of northern NSW, and with assistance from Violet and her family, cleaned up the block of land and sold it. He purchased a caravan which could be towed, and lived in a caravan park in the northern NSW area until he experienced a heart attack in early 2021. Violet brought him to Sydney and located respite accommodation for him, which would accept Juno, but this lasted for a short time only. He does not like living in cities and wanted to move back to the northern NSW area, but it was difficult to find suitable accommodation that would accept Juno. In the meantime, family assisted in moving his caravan to a property in northwest Sydney owned by his former sister-in-law, Ms Grey and her husband, and he lived there with Juno until July 2022.

48. At this point a unit became available at the retirement village, back in northern NSW, where he had been on a waitlist for some time. With Violet and Linda’s assistance, he moved there on 15 July 2022. Within two weeks he had fallen and was hospitalised with a fractured pelvis. After a number of weeks, he returned to his unit with a transitional care package (TACP), and when this ceased, his Home Care Package level 2 recommenced, with carers visiting six days a week.

49. Prior to his return to northern NSW, Noel had been on a restricted driver's licence for some time, limiting him to driving in daylight hours and restricting his range to 50kms. In August 2022 based on notification by his GP, his licence was cancelled. Nevertheless, Noel was reported to continue to drive at times. After discussion with his GP and Geriatrician in September 2023, Violet took his car keys so he could no longer drive. She then removed his car. Violet states that both of these actions were discussed with Noel a number of times before they happened and that whilst he was not happy about it, he did understand the reason, at least for a period of time.

50. Noel sought legal advice, and a lawyer, Mr David Noonan from MJO Legal provided advice to Noel about reporting the issue to the police on the basis that he had not agreed to the car being removed and on 26 September 2023 wrote to Violet about returning the car. Violet wrote to Mr Noonan on the same date, explaining her father's loss of licence, diagnosed dementia, refusal to stop driving and provided a copy of the letter from Dr Milne about the risks of him continuing to drive unlicenced.

51. On 18 October 2023 Noel executed a new EPOA, appointing Susan.

52. On 26 October 2023, Noel purported to revoke all EPOAs he made prior to 18 October 2024, appointing Violet.

Professional evidence regarding Noel’s health, care needs and cognition

53. There was, unfortunately, no recent, detailed assessment of Noel’s cognitive capacity, nor his general health status available for either hearing. During the hearing on 23 February 2024 Susan said that Noel had been assessed by Dr Milne, Geriatrician, in January 2024, but the Tribunal was not provided with a report from that appointment until after the hearing on 23 February 2024. As it happens, it did not add anything to the previous evidence, as Dr Milne confirms his previous view and states he had not conducted a cognitive assessment of Noel.

54. A summary of the available professional reports is as follows:

Dr Muppala, GP, 7/7/20

“Very mild cognitive impairment. He has enough mental capacity to make decisions for Power of Attorney, enduring guardianship and legal will at this stage.”

Dr Tyagi, Geriatrician, regional NSW, 7/7/2020

Attended with Violet who reported Noel had memory problems ongoing for a year, forgetting recent information and repetition of information. Scored 26/30 Montreal Cognitive Assessment (MOCA) CT scan of the brain revealed mild subcortical ischaemic vascular changes and subtle cerebellar atrophic changes. On assessment he had some difficulties in recall of information, subtle abnormalities on the clock drawing task. Diagnosed mild cognitive impairment, vascular with possible impact from alcohol use.

ACAT 14/7/20, and 2021

Violet was with Noel at the time of this assessment. It states that Noel was referred to my aged care by his GP Dr Mapala because of concerns raised by his daughters about his health and safety given his living conditions and memory loss. He was reportedly making plans with his daughters to move to supported accommodation closer to Sydney. He had recently had an admission to a district hospital in northern NSW for cellulitis in both legs which continued to need review. He had a heart attack in 1996, history of depression and is prescribed antidepressant medications. He has a hearing impairment, osteoarthritis with painful knee and hip, gout and hypertension. Refers to diagnosis of mild vascular cognitive impairment by Dr Tyagi. He scored 26/30 on the Montreal Cognitive Assessment (MOCA) and assessment with 3MS was 87/100. His excessive alcohol intake may contribute to this and he's been encouraged to reduce this. His memory impairment at that time was affecting his ability to take his medications and he recently decided to cease taking any medications.

His living situation was making it difficult for him. He was living in two old caravans and a corrugated iron shed and a concrete area under a tarpaulin. Electricity was provided with extension cords running from a builders pole and there was one outside tap. He had been living on that block of land for about four years and had no supports in place. He was reported to be gaining some insight that his current living situation was not sustainable and needed to change. He was recommended for a Home Care Package level 2 and residential respite.

ACAT from 2021 was in similar terms.

Associate Professor Martin Brown, Cardiologist, 8 March 2021

Medical summary refers to dementia, with mini mental state examination (MMSE) 22/30

Dr Benito, Geriatrician, Sydney, 21/4/ 2021 and 28/4/2021

Attended with Violet. Refers to recent history of his hospitalisation after a cardiovascular incident and his move down to Sydney where he was living in caravan on acreage in a rural suburb north-west of Sydney. He observes that Noel has “No insight into why people are concerned about his cognition” and states “With regard to his cognition I share your concern about his cognitive function, looking at the history and his cognitive screening. He has a rich history of cardiovascular risk factors and the fact that he's had an acute coronary event more recently. Although not very typical of how vascular impairment presents, he's showing some indication of mental inflexibility and impulsivity.” Referred him for MRI of the brain.

At the second appointment, Noel scored a total score of 86/100 on Addenbrooke’s cognitive examination version 3 (ACE III), primarily losing points on fluency and memory. Dr Benito concludes “Overall, although he has his cardiovascular risk factors, I do not think there is an established neurocognitive disorder consistent with the dementing process. He would certainly have risks for it moving forward and has signs of being mentally inflexible, mental concreteness which is consistent with the vascular nature of injury. I'm happy to report that they are of minimal clinical significance at present. It would be very good to keep an eye on him and monitor his trajectory moving forward.” Dr Benito acknowledges the concerns about his driving and said that if necessary he would ask for him to “undergo a practical test to ascertain his capacity”

Dr Benito makes no reference to Noel having previously been assessed by a geriatrician and having previously been diagnosed with cognitive impairment, despite Dr Tyagi’s involvement the year before.

Dr Benito states that he is “very much reassured that [Noel] is well supported by [Violet] and the rest of the extended family.”

Dr Benito, Geriatrician 30/3/2022

Violet attended with Noel and reported some concerns about him becoming very impulsive and that is day-to- day life was being impacted by mental concreteness. However Noel was not concerned about any significant deterioration of his memory. Noel scored 27/30 MMSE, losing 2 points in orientation and 1 point in attention. He notes that Noel passed the practical driving test and has a restricted licence, daytime only and 50 kilometre radius. He states “I think his cognitive impairment is still mild and it has minimal day-to-day impact.”

ACAT 25 July 2022

Noel was in a public hospital at the time, following a fall, resulting in a fracture of the inferior public rami. He had just moved back to northern NSW on 15 July 2022 after 18 months living in Sydney and was living in the semi support living unit where he currently resides. His accommodation provides lunch and dinners six days a week and Noel was reported to be able to prepare light meals. He was independent with handling cash. He had started to drink zero alcohol beer.

Diagnosed with mild vascular cognitive impairment by Dr Benito in April 2022 (MMSE 27/30). 16/30 on the MoCA on 25 July 2022 (in hospital). He has a score of 7/14 on the Older Americans Resources and Services (OARS) indicating moderately impaired instrumental activities of daily living capacity. He required repeated instruction, showed impairments in memory, delayed recall, attention, and orientation.

He was experiencing low mood due to being in hospital.

His HCP lvl2 was being self-managed by Violet, and he was seeking transition Care Services (TACPS) to assist on discharge from hospital. Violet is EPOA and EndG and is assisting Noel with accommodation, home care and financial arrangements. His contact with Susan is reported to be irregular, and he remains in contact with Linda.

He has a restricted driving licence, up to 50kms with no driving between dusk and dawn and his family reported concerns about his ability to continue driving.

He was approved for Transition care.

Dr Fahey GP 31/8/2022

Form completed regarding fitness to drive. States Noel is no longer fit to drive due to vision, cardiovascular condition, and neurological condition – dementia

Dr Milne, Geriatrician, 4/9/2023

Seen with Violet and a support worker Jo. He has lost his drivers licence but is reported to continue driving occasionally. Dr Milne advised him that this is illegal and said he will raise this with the police in the future if it continues. Dr Milne refers to Dr Tyagi's assessment in 2020 and noted Noel’s short-term recall has noticeably declined, particularly over the past 6 to 12 months. He can be very repetitive and forgetful of recent events and has difficulty remembering to take his medications. There is some sundowning and he’s often distressed in the afternoon. Violet has been helping manage his financial affairs for the past few years. He has been delirious on a couple of occasions whilst in hospital with cellulitis after hip fracture. Scored 22/30 on the MOCA with deficits particularly in executive function and delayed recall. Dr Milne suspects that Noel’s more recent cognitive changes are likely due to Alzheimer's disease in the context of underlying cerebrovascular disease, as well as alcoholic brain injury. He prescribed an antidepressant to assist with anxiety and sundowning.

Dr Moghadam GP 16/12/22,

Addressed to whom it may concern, “Based on the assessments [Noel] is assessed as Level 3 cognitive capacity and he has early dementia and in my opinion he is unable to make his own decisions. The letter is written as per request of his daughter [Violet] as [Noel] is unable to drive.”

Dr Milne, Geriatrician, 11/9/23

Addressed to Dr Moghadam GP and states that he had received an email from Violet stating that Noel has continued to drive unlicensed, despite doctor's advice this is illegal. States that over the weekend Violet had obtained his keys and he is no longer able to drive. Observed that Noel appeared to be taking it in his stride.

Dr Moghadam GP 25/10/23

To whom it may concern “Thank you for attending to [Noel]. This letter is to certify that [Noel] has the capacity to make decisions for himself per his request”

Dr Moghadam GP 7/2/2024

Addressed “Dear… Thank you for attending to [Noel]. This letter is to certify that [Noel] has been assessed by me as capable of making decisions. The assessment was also confirmed by the geriatrician Dr Milne on 25/10/2023 and today during a phone conversation. I had previously written a letter on 16/12/2022 when [Violet] his daughter wanted to clarify his capacity to drive. He is unable to drive based on his specific specialist assessment. He does not have the capacity to drive but this does not necessarily influence his capacity in other aspects such as employing a lawyer and managing his own finances. [Noel] has been my patient since 16/12/2022 and previously was under Dr Andrew Fahey”

Carers notes 2022- 2023 various

These are daily records which refer regularly to Noel experiencing memory difficulties, losing items, confusion, missed medications, fluctuating mood and intermittent alcohol use.

Dr Milne 19 December 2023 and 23 January 2024. Submitted after February hearing and so were not available to the Tribunal when the EndG was reviewed.

The letter of 19 December states “I have not performed any capacity assessments on [Noel] and I'm unable to comment on his capacity at the moment. I would be happy to review [Noel] to discuss his capacity if requested.”

Letter dated 23 January 2024 states that Noel’s CT brain showed mild small vessel disease and that his FDG/PET scan did not show any significant pathology. “I again advised [Susan] and [Noel] that I have not performed any formal capacity tests on [Noel] and am unable to comment on his capacity with regards to any specific questions at the moment. I have advised [Noel] and [Susan] that my opinion is that [Noel] suffers from mild cognitive impairment secondary to cerebral vascular disease and a history of excessive alcohol intake.”

ACAT dated 23 February 2024 was conducted in the regional town in northern NSW on 22 February 2024. It was submitted after the February 2024 hearing and so was not available to the Tribunal when the EndG was reviewed.

Information obtained from Susan and available records. Noel has been staying with Susan who manages his finances, monitors his well being and makes sure that the care he receives from his provider meets his increasing and changing needs. Susan has been providing 12 hours a day support during this time. Refers to declining independence and increased care needs, Diagnosis of vascular dementia and cognitive impairment with impairments in memory, delayed recall, attention and orientation. Scored 72/100 on 3MS and 19/30 on MMSE. OARS score of 3/14 indicated severe impairment on instrumental activities of daily living (IADLS). Requires instructions and prompting with all IDLS on a daily basis. Needs prompting to go to the toilet, with urinary and faecal incontinence at times. Swallowing difficulties, coughing after drinking fluids, and unable to manage his medications due to decreased cognition. Will be returning to his home in northern NSW next week, requiring increased services to support his independence at home. Home care package Level 3 does not have capacity to meet his needs and he is at risk of premature admission to residential care without an increased care package. Recommended for a home care package level 4.

55. In addition to this the Tribunal noted letters from David Noonan, Solicitor from MJO Legal, one dated 28 November 2023 addressed to Noel, stating "I confirm I was unable to take instructions from you this morning as I believed you did not have the necessary capacity on this occasion. Thank you for the information about your current circumstances and the documentation you provided regarding your daughter [Susan]. I will be happy to see you again if you require further assistance."

56. The other letter was dated 6 February 2024 and states that Noel had been unable to give them instructions on 5 February 2024 as he was unable to advise why he needed legal assistance. The letter states "It is unlikely that he would ever be able to give any instructions to a solicitor as his capacity has declined significantly in the last 5 months". This was in response to an email sent by Violet to Mr Noonan expressing concern about Noel being represented by Mr Cruz in these proceedings, stating that her father does not know what it is about and that Mr Cruz is taking instructions from Susan.

Summary of submissions, orders sought and evidence from the parties

Violet

57. Violet submitted sworn Affidavits with annexures dated 19 December 2023 and 15 February 2024. She also submitted a third sworn Affidavit with annexures, dated 19 March 2024 which was available for the hearing on 3 April 2024. Violet also gave oral evidence at both hearings.

58. At the hearing Violet confirmed that she was seeking either to be reappointed somehow as enduring guardian, or to be appointed as guardian for Noel. At the hearing on 24 February 2024, she was unsure what orders she was seeking in relation to the management of Noel’s finances. At the hearing on 3 April 2024, she said that she wanted a financial management order to be made appointing her as financial manager for her father. In her view, she would still be acting as enduring attorney and enduring guardian had she not taken her father's car keys and car away. His anger with her about this was because he did not recall or understand his situation. Others have facilitated his anger and misunderstanding about this, rather than reassuring him it was for his benefit.

1. In summary, Violet considers that Noel has been cognitively impaired and unable to understand his situation sufficiently to make important decisions for himself for some time and at the latest since Dr Milne's diagnosis in September 2023. She does not believe that he had the capacity to execute the EPOA or EndG, or the revocation of the previous EPOAs in October 2023 and January 2024.

2. At the hearing she stated that his capacity has declined since 2020, most noticeably since fracturing his pelvis in 2022 and particularly in the past six months. He needs reminders for medications and appointments and does not fully take in what is being explained to him, for example, at doctor's appointments. She has been asked to provide consent for treatment by his cardiologist and in hospital and believes that he needs a substitute decision-maker for decisions about his treatment and support services.

3. In her written material, Violet details the actions she has taken to support Noel’s living arrangements, including establishing his HomeCare supports, attending medical appointments with him, and managing his financial affairs, particularly since his move to the retirement village, but prior to this also.

4. Violet sees the roles of enduring attorney and enduring guardian as supporting Noel, rather than restricting him. She has endeavoured to discuss everything with him and allow him as much autonomy as possible in managing his own day-to-day spending and his own day-to-day life. She supported him by making arrangements to enable him to live as independently as possible. By her account it was not until his move back to the northern NSW area in mid-2022 that she has needed to make some decisions for him as opposed to facilitating decisions he was making for himself. For example, he made the decision for himself about moving his caravan onto the Grey’s block in north-west Sydney, whilst Violet, Susan and others made the necessary arrangements and did the work for this move to happen.

5. In relation to a number of the criticisms Susan makes of her actions as enduring attorney and enduring guardian, Violet explains that she has always consulted with Noel about what he wants and thinks and has generally tried to work with his wishes. The first decision she made which he did not agree with was removing his car key and car, because he did not understand the risks of continuing to drive unlicenced. She consulted with his GP, Geriatrician, and the police about this. She states that Susan was aware of this.

6. Violet states that she and Susan have a long history of intermittent estrangement. They reconnected in late August/early September 2023 when Susan asked for her support whilst she was in hospital considering treatment for a malignant brain tumour. They communicated by text message and the Tribunal was provided with transcribed copies of these messages from 3 September 2023 onwards. The tone is amicable and cooperative. They both acknowledge the challenges of dealing with Noel, and his confusion and memory issues. Violet shares information about removing Noel’s car keys and they discuss what to do with the car and caravan. Violet explains she had purchased Noel’s trailer after discussion with him. This cooperative communication continued until 29 September 2023. On 29 September 2023, Violet refers in a frustrated tone to correspondence from Mr Noonan, and states that if her father continues with his threat of legal action about her removing his car, she will use his money to pay her legal expenses. Susan takes great issue with this, on the basis that it is outside her authority as attorney, and from this point their communication deteriorates. There was a marked deterioration in the tone and content of their messages after this.

7. On 18 October 2023 Noel made a new EPOA. On 20 October 2023, Susan emailed Violet stating that Noel wants them to work together as attorneys, and that henceforth, all decisions must be made jointly. She asks for information about the whereabouts of the car and trailer and money from Noel’s account and insists that they all be returned as Noel did not agree to whatever Violet had done with these items. Violet wrote a detailed "handover" email to Susan dated 30 October 2023. She returned money to Noel’s account ($50,000) which she had invested for him, with his agreement, in a high interest earning account in her name.

8. On 1 November 2023, Violet wrote a brief letter, seeking to resign as enduring guardian and enduring attorney on the basis that she could not work with Susan. She objected to Susan purporting to speak on Noel’s behalf and her repeated insistence on information being provided to her. Violet asserted that if Susan believes Noel has capacity, then Violet would provide him with the information if he asked. She also asserts that Susan knew the answers to many of the questions she was asking - such as the whereabouts of the car and trailer.

9. Violet made her applications to the Tribunal because her father told her he did not want Susan in these roles, but then sought to withdraw them when he told her he didn't mind Susan being in these roles. She then decided she did not want to withdraw them when her father told her again he did not want Susan in these roles. He saw Mr Noonan apparently to try and change his EPOA arrangements, but Mr Noonan did not consider he was capable of giving instructions.

10. Violet said that Noel has stayed with Susan at the regional town in northern NSW for over a week on two occasions since mid-October 2023. This has been unsettling and confusing for Noel. Susan does not consult or communicate with Violet about this. Violet states that Susan has blocked her number from Noel’s phone on three occasions, claiming that Noel does not want contact with her and has also blocked others, including Linda and the Grey’s. Susan has written to her purporting to be Noel and asking for information. Susan has sacked two of Noels established Home Care supports because they facilitated contact between Noel and Violet when Susan had determined it should not occur.

11. Violet provided a copy of a letter dated 30 October 2023 from Noel to a police station in the regional town of northern NSW, reporting that Violet had said she was borrowing his car overnight and would bring it back, but has not done so and that he never gave her permission to take it. She told him on 28 October that she had taken it to Sydney, though she had no permission for that. He requires the car to be returned. She states that Noel was assisted to make this report to the police, although Susan had known for some time where the car was and the reason it had been taken.

12. Violet provided a copy of a letter dated 6 November 2023 from Ms Nicole Benbow, Solicitor, Sharon Moss Legal. She states she is acting for Susan. She confirms Violet’s revocation as enduring attorney and requests information which Susan had already requested (and which Violet states she had already provided). Purporting to act on Noel’s wishes, she declines authorisation for payment of repairs to Noel’s car ($140) and refers to the return of his trailer. The letter concludes "You are no longer to contact [Susan] or [Noel] nor act in any matter on his behalf and if you do so our client will report this to the police and seek further criminal actions including but not limited to apprehended violence order against you."

13. Violet states that despite Susan’s actions, Noel calls her daily and his ongoing confusion and memory loss is very evident. He tells her that he does not want Susan managing things for him.

14. Violet also raises concerns about Susan’s capacity to undertake the responsibilities of enduring attorney and enduring guardian. She provides information about Susan diagnosis with a stage 3 brain tumour in August 2023, for which she underwent surgery on 4 September 2023, reportedly removing 80% of the tumour. Violet states that Susan’s capacity to continue as enduring attorney and enduring guardian is in doubt because of her brain tumour, and the likely poor prognosis because she has declined further treatment. She noted a Statutory Declaration by Ms Timms dated 31 January 2024 submitted by Susan, that demonstrates the impact of her own health conditions and indicating that she is not capable of being enduring guardian or attorney for Noel. This is referred to in more detail later.

15. Violet also asserts that Susan intends to move Noel to the regional town in northern NSW, and isolate him from other people whom she does not want to have to deal with.

16. At the hearing Violet said that she has never interfered with Noel’s relationship with Susan and would not do so. She just wants to resume responsibility for ensuring that he receives the care he needs and supporting his independence.

17. Violet also submitted written statements from Linda, Ms Grey, Lara (her cousin) and Sabina, a longstanding friend and Registered Nurse who has been involved and visited Noel on occasion with her. These provide accounts of their own dealings with Noel and other family members over the years. They are all supportive of Violet's role as enduring guardian and enduring attorney. They all assert that Susan has blocked them from calling Noel and have removed their numbers from his phone so he cannot call them.

Susan

59. Susan submitted Affidavits with annexures dated 9 February 2024 and 16 February 2024. She also submitted an Affidavit with annexures dated 2 April 2024, which was considered only at the hearing on 3 April 2024.

60. At the hearing Susan said that she wanted orders which reflected whatever Noel wanted. She said that he wants Ms Timms and her to be enduring attorneys and enduring guardians so things should be left as they are with the 24 January 2024 instruments. Alternatively, if the Tribunal considered it was necessary to make a guardianship order and/or a financial management order, she and Ms Timms should be appointed in these roles.

61. In summary, Susan’s submissions are:

1. There is no formal diagnosis that Noel has dementia or that he is unable to make decisions for himself, nor any evidence that any of his EPOA or EndG are not validly made or revoked. She states that Dr Milne told her in January 2024 that a CT scan and PET scan performed on 12 January 2024 showed "no signs of Alzheimer's nor dementia" (The Tribunal notes that no radiological report of these scans has been submitted and that Susan did not submit Dr Milne's report of this consultation until after the February 2024 hearing);

2. At the hearing Susan reinforced her view, that there is no evidence that Noel has cognitive impairment impacting on his decision-making. She refers to Dr Moghadam's letters of October 2023 and February 2024 in which he "corrected" his previous advice that Noel lacked capacity. She said that Dr Milne had only given a "likely" diagnosis of dementia, which was not conclusive. However on further exploration Susan conceded that Noel does need assistance in making decisions, as he can have difficulty recalling things and that he would not be able to make arrangements for himself, such as for HomeCare. She considered his capacity fluctuates depending on his stress levels, and whether he has been eating well and drinking enough;

3. Noel has never revoked Susan’s appointments as attorney or enduring guardian, indicating that he wants her to act in these roles;

4. Violet pushed Susan out of these roles, and subjected her to verbal and written abuse in August 2020. Susan had to step away from the situation to avoid further abuse from Violet;

5. Violet has repeatedly told her that she does not want the role of caring for and making arrangements for Noel. When they have had the opportunity to work together in these roles, Violet has refused to do so. Since having her appointments revoked, Violet has refused to cooperate with Susan when she made reasonable requests to Violet for information about Noel’s affairs;

6. Violet has been abusive towards Noel in multiple ways, including pressuring him to change his EPOA and EndG arrangements, overriding his wishes, verbally abusing him, invading his privacy by tracking his whereabouts on his phone, and recording and transcribing his phone calls with her and with Susan;

7. Violet has dealt with Noel’s property in ways of benefit to herself, including selling his trailer to herself at a reduced price, when he did not want to sell it, removing his car to Sydney without his permission; and removing his savings of around $55,000 from his account to an account in her own name. Whilst she has transferred funds back to him, she has not transferred the full amount. Susan asserts that Violet has not kept nor provided reasonable records of her actions as attorney. Since Susan has taken over as enduring attorney, Violet has incurred "unauthorised" expenses, such as repair of the window of Noel’s car.

8. Violet has not made the best use of Noel’s HomeCare Package and could and should have managed it differently. For example, Violet facilitated the purchase of three mobility scooters out of Noel’s own money, whilst a preferrable way to do this would have been to purchase these items from his HomeCare Package after an OT assessment. Similarly she states that Violet should not have purchased furniture and equipment for Noel’s unit at the retirement village from his own money, as it could have been paid for from his HomeCare Package after an OT assessment. Violet was not effective in maximising Noel’s HomeCare entitlements.

9. Susan has now been responsible for managing Noel’s affairs and care for 17 weeks, and in this time, with Ms Timms 's assistance, has been able to increase his home care support from 5.5 hours a week to 15.5 hours a week. She has also appointed better carers, and taken action in relation to return of his assets. She denied that she has interfered with Noel’s contact with Violet or anyone else. In her view, his health has improved, and he is more relaxed because of her involvement.

10. Susan also provided statements from two friends, Mr Harvey and Mr Tanner, who both describe conversations they have had with Noel, and conclude that he does not appear to them to have any cognitive difficulties. She also provided statements from friends, Ms Traffle and Ms Aley who attest to their relationship with Susan and to their understanding of Susan’s explanation of the situation with Noel and Violet.

Noel

62. Mr Cruz submitted a Statement from Noel, dated 9 February 2024 and some supporting documents.

63. At the start, the statement indicates that it was made over the phone to Mr Cruz and that Noel had reviewed it with his carer to confirm that it is accurate. In the statement:

1. He provides his details, his current situation, living in his unit in northern NSW with Juno and with carers who visit him. He states that Susan’s guardianship arrangement is working well as he can trust her and converse with her. He states he has not had any problems with Susan as his guardian. He does not recall whether he wanted to change the power of attorney or enduring guardianship arrangement in October 2023. He does not recall interacting with a law firm called MJO Legal in November 2023 about wanting to change the current arrangements.

2. He describes his relationships with Susan and Violet, noting that Susan is calm and stable and has helped look after him in the past when he has needed it. He refers to his relationship with Violet as more "fully charged", stating that he has "had a few bounds (sic) with [Violet] but she has settled down now" He says he was disappointed when Violet took his car and trailer when she wasn't supposed to and observed that she was "…a little bit disjointed at the time". He also notes that Violet has taken a considerable amount of money around $50,000 out of his account. He doesn't think it has all being returned but believes that she has made an effort to repay it.

3. He wants Susan to remain as his guardian but also wants whatever has happened with Violet to be forgotten and smoothed over. He states “I feel that if I became ill that [Susan] would be reliable to take care of me. [Susan] has been stable all her life.” He also states that he would like Ms Timms to be jointly appointed with Susan. He states that he does not want the NSW Trustee and Guardian (NSW TAG) to be his guardian because he doesn't know where they would send him and someone told him that if they were appointed he would not be able to keep his dog Juno.

64. At the hearing Noel said that he can make his own decisions although he agreed he has mild dementia and can forget things. He recalled making the recent EPOAs. He thinks he is "fairly able" but not "fully able". He estimated he was about 75-78% able to manage for himself. He would manage with no help but wouldn't be as comfortable if there was no support. Susan and Ms Timms can help him with things if he needs.

65. Asked about his understanding of his current arrangements with EndG and EPOA, he said that he does not recall why he changed things recently, though he probably had a reason. He was not sure who he appointed to look after his money, but thought it was probably Susan. He said that he thought that Violet was still enduring guardian and attorney. She has been there the longest and he wants her to stay in this role - he hoped that he had not revoked her appointment, but didn't think he had. He would like his daughters to be able to work together, but they don't seem to be able to stop fighting.

Ms Timms

66. Ms Timms provided two Statutory Declarations dated 31 January 2024. One is clearly related to these proceedings, and in this one, Ms Timms states that she has known Noel for 46 years. She is the daughter of a close friend of his. She is a very close friend of Susan’s and provides considerable support to her and Noel and they are in daily telephone contact. She lives in Victoria and works as an Endorsed Enrolled Nurse (EEN), and works as a Care manager, assisting people with HomeCare Packages. Ms Timms refers to telephone conversations she was part of, between Susan and Violet. She has become involved in making recommendations relevant to Noel’s HomeCare Package, including OT assessment, and being involved in his annual assessment of his HomeCare Package. She says she understood that recommendations made for his HomeCare service had been "blocked" and that she interprets the OT report to be saying that his bed and chair are too small. She states that she has spoken to him whilst he has been staying with Susan and he seems calmer and Susan has told him he is eating and drinking well and not drinking alcohol. He has told her he is happy.

66. In the other Statutory Declaration of 31 January 2024, Ms Timms repeats her credentials and the length and quality of her relationship with Susan. She states that she has had to support Susan with every medical appointment via phone. She then provides a list of 17 items, which relate to Susan’s account, and her observation of Susan’s functional, cognitive, psychological, and interpersonal limitations. Of relevance to these proceedings, Ms Timms states that Susan is "unable to take in what is being said and has required me to be the individual that can direct her in how to move forward with this health condition". In addition to limitations in her ability to attend to activities of daily living (cooking, eating sufficiently, clean and maintain her property, do grocery shopping, maintain her animals attend to personal hygiene), Ms Timms states that Susan is unable to have social contact outside the home, maintain healthy relationships with those outside the immediate circle, walk without stumbling and getting dizzy, hold conversations without losing her thought processes and keep her mental health in balance. Ms Timms states that she has been on the phone with Susan several times when her mental health has been critical.

67. At the hearing the Tribunal asked about Ms Timms' Statements, and in particular the second Statement, as it seemed incongruous with all of the other evidence being presented about Susan’s competence to act as Noel's enduring attorney and enduring guardian. Ms Timms said that Susan is less fatigued than when she wrote that statement, and that she feels she may be improving. Susan confirmed that she had sent both of these statements to the Tribunal. The second statement had been sent to the Tribunal in error and had been prepared in support for Susan’s National Disability Insurance Scheme (NDIS) application. She said that this is no longer accurate and that she is improving and dealing better with stress. She does not believe she is struggling from a cognitive perspective.

68. Susan said that her health issues are private and not relevant to these proceedings, and accused others of breaching her privacy if it was raised. The Tribunal was sympathetic with this and recognises that Susan’s medical situation is her personal business. On this basis, the Tribunal gave little regard to evidence submitted by others which provides details of her medical condition beyond a fairly simple account. For example, the Statutory Declaration from her cousin, Lara which relates primarily to Susan’s period in hospital and photocopies of brain scans submitted by Violet. However the second Statutory Declaration from Ms Timms was submitted by Susan, and is relevant both in relation to her own capabilities and the reliability of her evidence.

69. Ms Timms said that she was willing to work with Susan as enduring guardian and enduring attorney, and would also be able to work with Violet, and assist in the communication between the sisters.

Submission by Nicholas Cruz

71. Mr Cruz submitted written submissions and also spoke at the hearing. He submitted there is no dispute that Noel is "a person in need of a guardian" under the meaning of s 14 of the Act. He states the issue in contention is who should be appointed as guardian for Noel. Based on Noel’s statement of 9 February 2024 he recommends that Susan and Ms Timms could be jointly appointed as guardians. In relation to the review of the EPOA, Mr Cruz submits that the Tribunal ought not exercise its discretion to review the instrument because he wants Susan to make important life and financial decisions for him. If the Tribunal does decide to exercise its discretion, then it should decide not to make any orders.

72. At the hearing Mr Cruz said that he had not been made aware of the new EPOA and EndG made on 24 January 2024 until the afternoon of the hearing.

73. Mr Cruz restated that it is not at issue that Noel needs a guardian and someone to manage his financial affairs. He has the capacity to understand what is happening, and knows what he wants, but does not have capacity in relation to more complex matters, such as how to resolve a situation like the carer not turning up, or something breaking down.

74. He noted that despite the difficult circumstances in Noel’s life, he is currently comfortable in his living arrangements. He has good home care arrangement, and he is well supported and also has a good amount of independence. He is terrified of the idea of moving into "state care", or of losing Juno. He submitted that the only difficulty with the current arrangement is the conflict between his daughters.

Submission by Ms Lu

75. Ms Lu states that she was unable to speak with Noel as she was denied the opportunity to meet with him in person despite the Tribunal making orders that the parties facilitate a meeting with the separate representative. In an email to the Tribunal dated 8 February 2024, Ms Lu requests a further directions hearing be called, noting order 3 from 6 February 2024, and stating that Susan (with whom Noel was staying at the time) would not allow her to see him in person. Susan’s unwillingness to allow this is confirmed in her email to the Tribunal on 8 February 2024 in which she states she does not consent to a further directions hearing, accusing Ms Lu of vexatious behaviour and stating that Noel is able to have a support person present, and that she, as enduring attorney and enduring guardian will be present at any meeting. She concludes with the puzzling comment "It appears that Barbara Lu is unaware of Admiralty Law and consent.” In other documents sent to the Tribunal she accuses Ms Lu of coercion for calling Noel and says she will be trespassing if she comes onto the property.

76. Ms Lu did not consider it appropriate to speak with Noel over the phone given that he has hearing impairment and there are allegations of coercive control. By the time the opportunity was offered for her to meet with Noel in person, without Susan present, she had no availability. Given this, Ms Lu made her written submission based on the written evidence. She then made an oral submission having heard the evidence at the hearing.

77. Ms Lu notes that Noel has appointed and revoked his EndG and EPOA at least eight times in the previous four years. She states that it is open to the Tribunal to conclude that the frequency of the changes suggests that Noel may be easily influenced and incapable of making his own decisions. Ms Lu notes the medical assessments from 7 July 2020, all reporting at least mild cognitive impairment, concluding in Dr Milne's 4 September 2023 diagnosis of "Alzheimer's disease in the context of underlying cerebral vascular disease and alcoholic brain injury". In Ms Lu's view, this means that "…every appointment in revocation after 7 July 2020 should have been supported by a doctor's certificate to attest to his capacity to make his own decisions. The fact that a doctors certificate is found wanting suggests that the Tribunal cannot safely conclude that he had the capacity to make his own decisions when the appointments end revocations were made."

78. Given the uncertainty of the validity of the instruments, Ms Lu submits that the Tribunal should treat these applications as applications for guardianship and financial management orders and appoint the Public Guardian and the NSW TAG respectively.

79. Ms Lu submits that Noel is a person in need of a guardian as he is advanced in age, turning 80 this year and the most recent expert report from Dr Milne, Geriatrician dated 4 September 2023 provides the diagnosis of Alzheimer's disease. She said that Noel is therefore a person in need of a guardian as he is elderly and has a cognitive impairment.

80. Ms Lu states that Noel’s daughters have both "worked tirelessly to care for their ailing father" and want the best for him, happy, safe, and free from conflict. However they have very different management styles and have reached a point where their differences are irreconcilable, levelling accusations against each other. In her view these are deep seated grievances which will not resolve with the passage of time. She recommends that both Susan and Violet are unsuitable to be appointed as guardians or financial managers. She states that Susan is unsuitable because of her recent brain surgery, unclear prognosis and whether this impacts on her capacity to make sound decisions. Ms Lu submits that Violet is unsuitable because her appointment would be rejected by Susan, there would be no finality in the proceedings and family relationships would deteriorate further. This would not be consistent with the principle of preserving her family relationships. Ms Lu notes that Maria, who had been proposed by Violet as a potential appointee was unsuitable because she would be too closely aligned with Violet and this would be rejected by Susan. Similarly, she notes that this Ms Timms would be unsuitable she is too closely aligned with Susan and this would be rejected by Violet.

81. At the hearing Ms Lu said that she confirms her written submissions. The evidence at the hearing was even stronger in relation to Noel’s incapacity. She noted that he could not recall why he made new instruments. A person who cannot recall information like this is reliant on other people to provide information, which makes them vulnerable to influence. This is a problem particularly when, as with Noel, there is conflict amongst the people around them. Ms Lu restated her recommendation that guardianship and financial management orders be made appointing the Public Guardian and NSW TAG because of their independence.

82. Susan provided a detailed written response to Ms Lu's written submission, rejecting it in every material respect. She restated her disagreement at the hearing.

Review enduring guardianship

Should the Tribunal proceed as if a guardianship application had been made?

83. As noted above Violet's application states that she wants the Tribunal to review an EndG made on 18 October 2023, appointing Susan. However there was no EndG instrument made on that date. Even so, as noted above, there are three EndG instruments in effect, appointing Susan and Violet which predate Violet's application, and one that has been made since then appointing Susan and Ms Timms. The existence of multiple enduring guardians is not in Noel’s interests unless there is minimal risk of the appointees being in conflict with each other about what is best for him if they are called on to make decisions.

84. The Tribunal noted Noel’s statement that he would like his daughters to be able to work together and that he was also happy for Ms Timms to be involved. On this basis, the Tribunal explored with Susan, Violet and Ms Timms whether there was any realistic possibility that they would be able to work cooperatively as enduring guardians. Having spent some time on this, the Tribunal was not persuaded that there was any such possibility, or that it would be in Noel’s best interests to allow this situation to continue.

85. As noted, there was no EndG made on the date indicated in the application. Noting that this is a protective jurisdiction the Tribunal considered it was open to treat Violet's application as though it was an application for a guardianship order, if it was in Noel’s best interest to do so. In the circumstances, the Tribunal was satisfied that the only alternative open to it is to treat this application as though it is an application for a guardianship order to be made. This approach is consistent with the guiding principle, by seeking to focus on the real issues in the case, being the means by which substitute decisions can be most effectively made for Noel if necessary.

Guardianship

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

86. Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he 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": the Act, s 3(1). A person with a disability is a person who is:

• intellectually, physically, psychologically or sensorily disabled;

• of advanced age;

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

• otherwise disabled;

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

87. This question relates to Noel’s current situation, and not his situation at some point in the past. The available professional evidence is set out in some detail above. Noel has consistently been diagnosed with mild cognitive impairment over the past four years. The most recent specialist evidence, from Dr Milne available for the hearing in February 2024 is that Noel likely has Alzheimer's dementia in the context of underlying cerebrovascular disease, as well as alcoholic brain injury. A diagnosis of dementia alone is not a capacity assessment. There is no neuropsychological assessment, nor any other kind of detailed capacity assessment before the Tribunal.

88. The Tribunal noted to Dr Moghadam's letters of December 2022, October 2023 and February 2024. Having previously stated that Noel is not capable of making decisions for himself Dr Moghadam changes his view and states that Noel is capable of making decisions for himself. He seeks to explain this change in opinion with reference to the context of the situation. However he provides no explanation of how he has come to either of these conclusions and the Tribunal does not give weight to his evidence where it is in conflict with evidence from specialists or more detailed assessments.

89. Mr Cruz and Ms Lu both submit is that it is not in issue that Noel is a "person in need of a guardian". He has been diagnosed with Alzheimer's dementia, is of advanced age and is restricted in major life activities to such an extent that he requires supervision or social habilitation.

90. The Tribunal noted that Noel’s written statement and oral evidence reflects his memory deficits and confused understanding of his situation. In his written statement, Noel makes no reference to previous estrangement from Susan, does not recall changing his EPOA in October 2023, nor to seeing a lawyer since November 2023. He makes no reference to Susan’s recent major surgery and ongoing health challenges, which is inconsistent with his statement that Susan would be "…reliable to take care of him if he became ill as she has been stable all her life". He states he wants Ms Timms to be appointed as joint guardian, making no reference to the EPOA and EndG instruments he executed on 24 January 2024 by which he purportedly appointed her.

91. In his oral evidence, Noel did not recall whether he had revoked Violet's appointments, stating that he did not think he had and had not intended to. He could not recall whether he made changes to his EPOA and EndG, or why he would have done so. He did acknowledge that his memory wasn't great, and that he benefits from support in arranging his personal and financial affairs.

92. Violet was clear in her view that Noel is experiencing deteriorating cognition and is a person in need of a guardian. Although Susan initially maintained that Noel had no clear diagnosis of dementia, or decision-making incapacity, after some discussion she confirmed that she agreed with Mr Cruz’s view. Ms Timms also confirmed she agreed with Mr Cruz’s view.

93. Based on all the evidence available to the Tribunal for the hearing on 23 February 2024, the Tribunal was satisfied that as a consequence of cognitive decline arising from Alzheimer's on a background of vascular dementia, Noel is at least partially incapable of managing his person, including making important life decisions. He is a person for whom the Tribunal could make a guardianship order.

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

94. The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order:

• the views (if any) of:

○ the person,

○ the person's spouse,

○ the person's carer, and

• the importance of preserving the person's existing family relationships,

• the importance of preserving the person's particular cultural and linguistic environments, and

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

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 Act. When undertaking this task the Tribunal is guided by the principles that are set out in s 4 of the Act.

96. As noted above, Noel has four EndG instruments in place, with enduring guardians who, based on the recent history, are unlikely to agree on important matters regarding his care and support. Given the recent opportunity to work with each other, Susan, in particular, has taken an antagonistic and accusatory approach towards Violet, including instructing solicitors to write to Violet threatening her with criminal charges if she tries to contact Noel or Susan. In discussions during the hearing, they could not demonstrate any means by which they would be able to work cooperatively as enduring guardians. Because of the potential for conflict and confusion, it was therefore not consistent with Noel’s interests and welfare to allow the current arrangement to continue. By making a guardianship order, the enduring guardianship instruments are all suspended.

97. Ms Lu submitted that the guardianship order should include the usual functions - decisions about Noel’s accommodation, services, health care and to consent to his medical and dental treatment. The Tribunal notes that these are the functions included in the enduring guardianship instruments. The hearing participants agreed that there will be ongoing decisions to be made about Noel’s services, health care and to consent to his medical and dental treatment. Noel’s accommodation in the retirement village is suitable, and for the foreseeable future at least, decisions about his accommodation were likely to relate to staying with Susan in the regional town in northern NSW, or going on holidays - for example, a boat trip on the Murray River. Susan thought that decisions of this kind could be managed informally, without inclusion in a guardianship order. However Violet considered that this was an area in which there could be differences in views about what is best for Noel and that authority for these decisions should be included in the guardianship order.

98. Undoubtedly there will be decisions to be made about his support services, his healthcare and medical and dental treatment over the next 12 months. It is also likely that there will be decisions about his accommodation, at least in relation to short term stays or holidays. Given the history of the relationship between Susan and Violet, there will be an opportunity for conflict about any kind of decision that needs to be made for Noel. On this basis, the Tribunal was satisfied that it was consistent with Noel’s welfare and interests to effectively replicate the functions in the EndG instruments in the guardianship order.

99. Noel did not offer a clear view about a guardianship order being made, either in favour, or in opposition. Once it was apparent that the situation with multiple enduring guardians was not consistent with Noel’s welfare and interests, Violet, Susan and Ms Timms were in support of a guardianship order being made. The Tribunal was satisfied that a guardianship order will be supportive of Noel’s family relationships, because it will provide greater certainty about where authority lies for decisions, and therefore, reduce the opportunity for conflict which could impact on Noel. There was no indication that Noel identifies with any cultural or linguistic environment which would be impacted by a guardianship order.

95. The Tribunal decided on the basis of all of this evidence that a guardianship order should be made and the guardian given authority to make decisions about Noel’s accommodation, services, health care and to consent to his medical and dental treatment.

Who should be the guardian?

101. The Tribunal was asked to consider appointing Violet, or to appoint Susan and Ms Timms as guardians for Noel. The Tribunal was also asked to consider appointing the Public Guardian. The Tribunal cannot appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: the Act, s 15(3).

102. The Tribunal must be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. They must:

• have a personality generally compatible with the personality of the person under guardianship,

• have no undue conflict of interest (particularly financial) with those of the person and

• be able and willing to exercise the functions of the order

103. In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act, demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

104. The Supreme Court has held that:

“the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170 at [25]).”

105. In addition to the written evidence about their respective involvement with Noel, the Tribunal asked the proposed guardians to each address their suitability as guardian. Violet said that Noel still thinks that she is the enduring guardian. She made all of the arrangements and decisions to establish him in his accommodation at the retirement village, including arranging his GP and specialists. She has been with him to all medical appointments, or arranged for his carers to go with him. She works collaboratively with him, respecting his views, and, with the exception of removing his car keys and car, she does not impose decisions on him. She is generally able to resolve her differences with him. In response to Susan’s assertion that she had not adopted clinical recommendations for Noel’s support, she explained that she had already implemented some of the recommendations, and others were rejected by Noel as unnecessary. She considered that these were decisions he was entitled to make for himself. In response to allegations by Susan that she has put tracking devices on his phone in breach of his rights, she said that this was discussed and approached by Noel on a number of occasions because he has become lost several times in the community.

106. In response to questions about how she would have regard to preserving his family relationships, Violet said that she has not, and would not, as guardian interfere in his relationship with Susan or anyone else. In relation to communicating with Susan about important matters, Violet said that she acknowledged that there have been periods where they did not communicate. Susan then asked her to be next of kin whilst she was in hospital, so their relationship does fluctuate, and when they are in contact, there is no difficulty with their communication. She said that she will make a practice of emailing Susan about important matters and will consider her views.

107. Susan told the Tribunal that her father's health and circumstances have improved in the 17 weeks that she has been EndG. She has increased his HomeCare funding and believes that she has contributed to an improvement in his health and wellbeing. Susan does not accept that Violet would consult with her if she was appointed as guardian, as she has not done so in the past, saying she does not need to consult. Susan denied that she has blocked contact with Violet, but Violet has blocked her. She said that Violet has done "nothing but" abuse her for years. In terms of her own willingness to support Noel’s family relationships, she suggested setting up a WhatsApp group to communicate with Violet and others. In relation to the statements from others that she had blocked their contact with Noel, Susan said that she had only done this because Noel said he did not want contact with them. She said that her father wants her as his guardian.

108. Ms Timms proposed that if she were appointed, she would be able to communicate with Noel and with Susan and Violet. Violet indicated that she did not trust that Ms Timms would be able to act in good faith, noting that she had heard back through her mother that Ms Timms had been telling other people that she had treated her father shamefully. At that point she elected not to have contact with Ms Timms.

109. As noted above, Noel was willing for Susan, Violet, and Ms Timms to act as his guardians. However he was not able to assist with any suggestions how to resolve the issue of their incompatibility.

110. Bearing in mind the undisputed evidence that Noel’s relationship with both of his daughters has been problematic at times, the Tribunal considered that each of the three proposed guardians had personalities which were generally compatible with Noel. Despite allegations by Susan regarding Violet's actions in managing Noel’s affairs, the Tribunal was satisfied that there was no persuasive evidence that any of the three proposed guardians had an undue conflict of interest, financial or otherwise which would impact on their ability to act as guardian. All three of them have indicated their willingness to undertake the role and demonstrated a reasonable understanding of what is involved.

111. The Tribunal considered their respective ability to undertake the role. In Violet's case, the Tribunal accepted the evidence of the very active and thorough role she has played in assisting Noel’s transition from independent living to supported living, particularly over the past two to three years. This evidence is consistent with the statements by Linda, Ms Grey and Sabina. It is also consistent with the numerous references in medical reports, ACAT reports, and the carer reports to Violet's active participation with her father's care and support. For some of this period she was his enduring guardian and enduring attorney but for the earlier part, she was not, and she undertook this role informally, in accordance with Noel’s wishes. The Tribunal accepted her undertakings that she would not interfere with her father's relationships with others, and to communicate with Susan and saw no persuasive evidence that she had interfered in the past. The Tribunal was satisfied that Violet is able to undertake the role of guardian, consistently with the principles of the Act and that she is therefore a suitable person to be appointed as guardian for Noel.

112. The Tribunal accepts that Susan has implemented some changes for Noel in the period she has been acting as enduring guardian. However the Tribunal considers that the approach she has adopted in bringing about these changes has been unnecessarily antagonistic. For example she has engaged lawyers who have threatened her sister with legal action, seeking answers to questions that she had already been given. This has come at considerable expense to Noel’s family relationships and likely his own emotional state. The issue is well described in Linda’s statement as follows: "[Susan] appears to believe being appointed as an attorney on a POA gives her the power to control all of the affairs, personal and otherwise of the appointer, in exclusion of all others who may be assisting them. An example of this is her cutting off communication between [Noel] and myself, [Violet] and many of his friends. [Noel] and I had regular phone conversations. I was blocked along with others. [Noel] got someone to fix this for him. The next step was that [Susan] purchased a new phone, changed his number and told him he could call the people she had put in his contacts. [Noel] managed to find numbers of those he wished to speak to but another new number was given to him to prevent him contacting anyone whom [Susan] considered unsuitable. [Noel] loves to talk to his old friends about the life we knew."

113. This is consistent with Violet's evidence, as well as the evidence of Ms Grey. Susan said she only blocked access with Noel from people he did not want to hear from. However the Tribunal is not persuaded by this explanation, given Noel’s own evidence at the hearing about his trusting relationship with Violet and enjoyment in speaking with Linda.

114. The Tribunal also observed that that Susan was not straightforward in her evidence, and presented whatever account might best suit her purpose at the time. For example, the text messages between her and Violet from 3 September 2023 until 29 September 2023 clearly show that Violet has told her about the details of the purchase of Noel’s trailer, the whereabout of his car and her difficulties in helping him understand why she had taken it from him. Susan also states that he had called her about his car and that it is good that Violet was keeping her informed. However after their relationship deteriorated, she asked Violet to account for these matters as though she had not been part of these discussions, claiming this was because Noel wanted these answers, although she was well aware that his memory is impaired and he is often confused.

115. A further example is the inconsistencies in Susan’s evidence regarding the support she is providing for Noel and the information in Ms Timms' Statutory Declaration of 31 January 2024 prepared for the purpose of Susan’s NDIS application. By one account she is a highly functional and organised carer, and by the other account she is unable to function at the most basic level for herself. The marked disparity in Susan’s evidence, depending on the purpose to which it was to be put calls into question the reliability of her evidence generally.

116. On balance, the Tribunal was satisfied that Susan has demonstrated an inconsistent understanding of her father's capacity and needs, and the role of enduring guardian. She has not acted to preserve his existing family relationships, but has inflamed existing tensions. She was not able to demonstrate that the approach she would take as guardian would be consistent with the principles of the Act, particularly having regard to preserving his existing family relationships. On this basis, she is not a suitable person to be appointed as guardian.

117. In relation to Ms Timms’ suitability, whilst the Tribunal was satisfied that she is generally well intentioned, the Tribunal considered that her very close relationship with Susan has influenced her understanding of Noel’s situation. The Tribunal considers she would struggle to undertake the role of guardian without continuing to be strongly influenced by her. In any event, even if Ms Timms is a suitable person to be appointed, the Tribunal was satisfied that it was more consistent with Noel’s interests and welfare to appoint his daughter, Violet who has a proven track record in organising and making decision on behalf of her father in his interests.

118. On the basis of this evidence, the Tribunal was satisfied that Violet meets the requirements to be appointed as the private guardian for Noel and appointed her in this role.

How long should the order last?

119. An initial guardianship order can be made for a period of up to one year from the date on which it was made.

120. The Tribunal decided to make an order for 12 months as this will provide a reasonable period of stability before the order is reviewed again and consideration given to whether there is a further role for a guardian for Noel.

Review Enduring Power of Attorney

Should the Tribunal conduct the review?

121. The Tribunal decided to conduct a review of the EPOA because there is considerable conflict regarding the management of Noel’s affairs under successive EPOA.

Should the Tribunal make any orders under s 36?

122. In her application, Violet asks that the EPOA made on 18 October 2023 be revoked and that the revocation of the EPOA from July 2022 appointing her be reinstated. At the 3 April 2024 hearing, she asked the Tribunal to make a financial management order and appoint her as financial manager.

123. Violet said that the period of time since she was appointed as guardian has highlighted how unworkable the current situation is because of the relationship between Susan, as attorney, and herself as guardian. She cites a number of examples illustrating the ongoing difficulties and argument about matters such as Noel’s telephone and ability to contact others. For example, Violet advised Susan in an email dated 13 March 2024 that she visited the retirement home and Noel asked her to do some shopping for him. He gave her his card to pay and the card was declined because of insufficient funds. She paid the $41.95 in groceries with her own money. She observed he had open wounds on his legs, and, at a pharmacy, purchased some wound care items, some non-drying soaps (in accordance with recommendations in the ACAT assessment of 22 February 2024) and some cough medicine, as he had a cold. This came to a total of $97.01 which she paid with her own money. She emailed Susan the details of these purchases, with receipts and her bank details for the refund. As at the date of this hearing, Violet confirmed that Susan has refused to reimburse her.

124. In her Affidavit of 2 April 2024, Susan refers to these purchases. She states that this was "unauthorised expenditure" and that Violet had "disregarded that she could not simply spend money without authorisation and without it being valid". Susan suggests that the items purchased are not Noel’s expense and should be funded through his Aged Care Package. She says that Violet should have engaged the RN via his Aged Care Package. Susan states that Noel "does not have the funds for this disregard of his funds" and that Violet is aware that he has limited resources. Susan also accuses Violet of bullying behaviour by raising this issue with the Tribunal. Susan also raised a number of other matters demonstrating that she and Violet are unable to work effectively together in attorney/guardian roles.

125. At the hearing Ms Timms explained that Susan is primarily managing Noel’s finances, but does keep her informed. From memory, his rent, some meals, and his water rates are direct debited. There is about $300 left of his pension per fortnight and Susan divides this as an allowance over this period. She was not sure of the details. Ms Timms confirmed she was aware of the issue regarding the items Violet had purchased. She said that whilst better quality receipts were required, she had told Susan to reimburse Violet. She said that she would follow up with Susan.

126. At the hearing, Ms Timms suggested that the current arrangement could remain in place. She acknowledged that there are challenges in the communication between Violet and Susan but said that Violet could approach her directly rather than Susan and she could assist. However after some exploration of how she could assist in this situation, she agreed that it was probably better to make a financial management order. She considered that the independent oversight of the actions of the financial manager would be helpful.

127. Ms Lu submitted that the Tribunal should make no orders and treat the application as an application for a financial management order.

128. Prior to this hearing, Susan and Mr Cruz had submitted that the Tribunal should make no orders and leave the status quo in place.

129. Noel said that he ran his own building business and can manage money. However he wants some help with looking after his money now. He suggested that his carers may be able to do this with his day-to-day money, and that maybe he could look after the larger matters himself. He did not express a view about whether there should be changes to his EPOA.

130. Having considered the submissions and evidence, the Tribunal determined not to make any orders under s 36 of the POA Act. There are a number of reasons for this. The current arrangement is clearly dysfunctional and not meeting Noel’s need for clarity and consistency about who is managing his affairs, and access to money for his own day to day expenses. As there are multiple EPOA in effect, reviewing the EPOA made on 18 October 2023 (as requested) would not change the fact that there was a subsequent EPOA made on 24 January 2024, which is not under review. In addition to this, there was no application before the Tribunal to review the revocation of the EPOA made in July 2022. The Tribunal considered that the outcome that would be most consistent with Noel’s best interests could not be achieved by making orders under s 36 of the POA Act. Noel’s interests are likely to be best served by a financial management order where the management of his finances is overseen by NSW TAG, to try and alleviate concern about financial abuse.

131. The Tribunal was satisfied that the application should be treated as though it is an application for a financial management order.

Financial management

Is Noel incapable of managing his affairs?

132. The test for determining a person's capability to manage his or her affairs has been described as being whether a person is "reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests". This involves the person being able to deal with their own financial affairs in a reasonable, rational and orderly way with regard to their current and future wants and needs, "without undue risk of neglect, abuse or exploitation". (P v NSW Trustee and Guardian [2015] NSWSC 579 at [307]-[308]):

133. In considering whether the person is "able" in this sense, it is relevant to consider their history, the supports they have in place and their vulnerability to exploitation or abuse.

134. The evidence regarding Noel’s diagnosis of dementia is set out earlier and is relevant to this issue. In addition to this, the Tribunal considered evidence from Violet and Linda regarding Noel’s history of financial difficulties, as well as more recent evidence that his memory deficits have led to him becoming very confused when trying to do his banking.

135. At the hearing Violet said that Noel is able to do some financial activities for himself. He can withdraw money at the ATM and do some shopping, However he is not able to do internet banking or transfer funds or remember to pay bills. He likes to go to the bank and obtain statements to go through. His memory problems mean that he can't always recall what has been explained to him. He is not able to budget, and would spend all of his money quickly, without forward planning if there was no oversight or management.

136. Ms Timms agreed with Violet that Noel is not able to budget and would spend all of his money in a couple of days if there was no one managing it for him. She said that he calls her regularly and expresses frustration about not being told things, but he has probably forgotten what has been explained.

137. As noted above, Noel agreed that whilst he might be able to do it for himself, he needs some help managing his money.

138. Susan’s written evidence makes it clear that she has elected to manage Noel’s finances very closely. This was not consistent with her initial submissions that Noel has no cognitive impairment or dementia, but the Tribunal noted that she did change this view during the hearing on 24 February 2024. The Tribunal noted that the ACAT assessment of 22 February 2024, records that Noel has a much more advanced incapacity than had previously been recorded, and that this information had come from Susan. Given this evidence, the Tribunal consider that it was likely that Susan would agree with Ms Timms that Noel is not capable of managing his own financial affairs.

132. Based on the medical evidence of mild cognitive impairment impacting his memory, as well as Noel’s own presentation and the observations of those who have been involved in supporting him for some time, the Tribunal is satisfied that he is not "reasonably able to manage his own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests" (P v NSW Trustee and Guardian [2015] NSWSC 579 at [307]). Accordingly, the Tribunal is satisfied that he is not capable of managing his financial affairs.

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

140. As noted above, the current arrangements by which Noel’s financial affairs are managed under an EPOA are not meeting his needs. This is, in part because of the incompatible relationship between the attorneys and the guardian. However in the circumstances, even if the attorney and guardian were the same person, the Tribunal was satisfied that the level of distrust is such that Noel’s interests will best be met by management of his financial affairs under external oversight.

141. The Tribunal was satisfied that there is a need to appoint someone to manage Noel’s affairs and that it is in his best interests that a financial management order be made.

Who should be appointed as financial manager?

142. In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Act.

143. Section 25M of the Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW TAG.

144. In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court's broad discretion in deciding who should be financial manager but also set out possible considerations as to the competing advantages of the then Protective Commissioner and a family member as the manager of an estate. The NSW TAG now exercises the role of the Protective Commissioner.

145. On the side of the then Protective Commissioner was seen to be the manifest independence of the statutory office, the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person, expertise, and experience in managing estates, an impeccable reputation and the security provided to an estate against loss or damage.

146. The advantages of the appointment of a family member were more economic management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.

147. The Court considered that interrelated property interests in a family situation, where a conflict of interest and duty may be "more apparent than real", should not necessarily present an absolute bar to appointment of a family member who is otherwise appropriate. However, when appointing a family member, a decision-maker must be satisfied that the estate, income, and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.

148. In Application by AMAM; Re SAM [2011] NSWSC 503 Hallen AsJ stated at [34]:

“It would be unwise to attempt any definition of the matters that may legitimately be enquired into to determine whether the applicant is suitable. Each case must depend upon its own circumstances. Needless to say, however, the Court must consider, at least, the proposed manager's character, honesty and ability to manage, diligently, the managed person's property in the managed person's best interest.”

149. Violet proposed that she be appointed as financial manager. She has been managing Noel’s affairs for a number of years, working cooperatively with him without difficulty, until the issue arose with his car. It would be better for him if the same person was guardian and financial manager because it would ensure things can happen more quickly if needed and there are no communication gaps between the two roles.

150. Susan made a number of allegations about Violet's actions whilst she was attorney, and prior to her being attorney. In response, Violet has provided detailed explanations, supported by documentation where available, regarding the car, her purchase of the trailer and her investment of his $50,000 savings into an account in her name, to ensure that he did not spend it impulsively. She has confirmed that these actions were all undertaken after consultation and agreement with Noel, even though he does not necessarily recall this after some time. She has also provided confirmation that Susan had been made aware of these matters prior to the events leading to these applications. In Linda’s statement, she confirms that she and Susan were both involved in discussions with Violet in November 2022 about depositing Noel’s savings into an account in Violet's name to ensure Noel did not spend it impulsively and that they were all in agreement with this.

151. It would have been preferable for Violet to have invested Noel’s savings in an account in his name, with appropriate controls on his access (such as two to sign) rather than in an account in her name. However the Tribunal accepts her evidence, supported by Linda’s evidence that this approach was discussed and agreed to by Noel and Susan at the time. Violet has explained that in the circumstances it was simpler for her to open a new account in her name exclusively for this purpose, rather than a new account in his name. She confirmed with the Tribunal that she had never used this account for herself and that Noel’s funds were at all times kept separate from her own.

152. The trigger for these proceedings appears to have been Violet's remark in a text message of 29 September 2023 that she would use her father's money for her legal costs if he pursued legal action against her regarding his car. The Tribunal saw this as an expression of her frustration about the situation, rather than something she would actually do. There is no persuasive evidence available that Violet has previously used Noel’s money to meet her expenses and the Tribunal considered that to do so would be inconsistent with the approach Violet has demonstrated in dealing with her father's affairs.

153. The Tribunal has carefully considered all of the available material in relation to Violet's previous handling of her father's finances affairs and has no concern about the appropriateness of her management of his affairs.

154. Violet told the Tribunal that if she were appointed as financial manager, she would return to managing the way she had been, with two bank accounts only, where there are always funds available in the account he uses for his spending. He likes to be able to easily look and see the balance of his account and she would arrange for this. She noted how difficult it is for anyone to budget whilst living on a pension and said that she would support him being able to access some of the funds he has in savings to supplement his pension income. She also noted that there should be money available to him from the sale of his car (apparently purchased by Susan) and his caravan, but Violet has not been advised of these details. Violet confirmed her understanding and willingness to comply with the requirements of the NSW TAG, and satisfied the Tribunal's usual probity questions. She has a work background in business analysis and project management and so is accustomed to managing budgets and expenditure.

155. Ms Timms proposed that she could be financial manager. Noel calls her very often and she has a close relationship with him. For example he called her recently because he was experiencing chest pain. She said she would be able to communicate with Violet in her role as guardian and would be able to communicate with her about what Noel had told her that he wants. She said that she understands and is willing to work with the NSW TAG and satisfied the Tribunal's usual probity questions.

156. Noel said that he would be happy with either Violet or Ms Timms.

157. Violet said that she did not accept that the communication between her and Ms Timms would be effective. She noted some recent examples where Ms Timms had failed to contact her about important matters regarding Noel that were relevant to her role as guardian, such as Noel experiencing chest pain. She said that whilst she would like her communication and relationship with Ms Timms to be "authentic" she did not believe that it was as Ms Timms is too influenced by Susan. She saw no benefit to Noel in appointing Ms Timms as financial manager when she was able and willing to undertake this role.

158. The support worker said that managing Noel’s finances is not complex but he does need this support because of his impulsive spending. He said that there is supposed to be $100 a week deposited in his account for spending, but feels that this does not happen automatically as it is not always there on the same day. This is causing some difficulties with carers having to use their money to buy him things and there being delays in being reimbursed. The support worker said that from the carers perspective it is easier to have one point of contact, rather than having to approach different people for different things, particularly if they don't communicate between them. More than one point of contact is not effective or practical for Noel.

159. Ms Lu's written submission was that NSW TAG should be appointed as financial manager. However at this hearing she supported Violet's suitability for appointment as financial manager. Ms Lu did not support Ms Timms being appointed, referring to her as the "meat in the sandwich" and observing that it would be difficult for her to work cooperatively with Violet without compromising her relationship with Susan. She also agreed with the support worker that it is preferable to have a single point of contact for carers to communicate with and that it is therefore preferrable for one person to be both guardian and financial manager.

160. The Tribunal did consider whether in the circumstances there would be some benefit to Noel in appointing the NSW TAG, rather than a private manager, but decided that this would not be the case. Although there is some advantage in an independent financial manager in circumstances of conflict and distrust, this would come with the disadvantage of reduced accessibility and flexibility for Noel which is an unnecessary imposition on his autonomy. Given Violet's suitability for the role, her experience in record keeping, and her demonstrated responsiveness to her father's needs, the Tribunal was satisfied that her appointment as financial manager strikes an appropriate balance between accessibility and accountability. For the record, the Tribunal notes that the need for external oversight is not because of any identified shortcoming in Violet's previous handling of her father's affairs.

161. The Tribunal was satisfied that Violet is a suitable person to be appointed as financial manager for Noel subject to the authorities and directions of the NSW TAG and appointed her in this role.

162. All EPOA are suspended whilst there is a financial management order in place.

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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: 30 January 2025