Zoe (a pseudonym)

[2025] NSWCATGD 7

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Zoe (a pseudonym) [2025] NSWCATGD 7

Hearing dates:

27 June 2025

Date of orders:

4 July 2025

Decision date:

04 July 2025

Jurisdiction:

Guardianship Division

Before:

S L Handebo, Principal Member
Dr M Kyriagis, Senior Member (Professional)
A Healy, General Member (Community)

Decision:

FINANCIAL MANAGEMENT APPLICATION

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

2. The management of the estate of Zoe is committed to the NSW Trustee and Guardian.

3. This order be reviewed by the Tribunal within 12 months.

GUARDIANSHIP APPLICATION

1. A guardianship order is made for Zoe.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 4 July 2025.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Access

To decide what access Zoe has to others and the conditions of access.

b) Accommodation

To decide where Zoe may reside.

c) Health care

To decide what health care Zoe may receive.

d) Services

To make decisions about services to be provided to Zoe.

CONDITIONS:

6. The condition of this order is:

a) Standard Condition

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

REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT

In relation to the enduring guardian appointment made by Zoe on 18 September 2024 appointing Isobel, the Tribunal orders, directs or declares:

The appointment of Isobel as an enduring guardian is revoked.

REVIEW OF ENDURING POWER OF ATTORNEY

In relation to the enduring power of attorney made by Zoe on 18 September 2024 which appointed Isobel as attorney, the Tribunal determines, orders or declares:

Not to carry out a review of the enduring power of attorney.

Catchwords:

GUARDIANSHIP – review of an enduring guardianship appointment – guardianship application – whether the subject person is in need of a guardian – person of advanced age – no evidence of a cognitive disorder – concerns regarding functional capacity – subject person entirely dependent on their guardian for all lifestyle and financial matters – concerns of significant neglect and control –accommodation decisions needing to be made – hoarding – evidence from the Ageing and Disability Commission regarding squalor of home – the subject person is in need of a guardian – who should be the guardian – current enduring guardian deemed unsuitable – enduring guardianship revoked – Public Guardian appointed.

FINANCIAL MANAGEMENT – review of enduring power of attorney – no evidence that the subject person lacked the legal capacity to make an enduring power of attorney – no evidence that the enduring attorney acted improperly in her role – Tribunal declined to review the making, operation or effect of the EPOA – financial management application – subject person found to be incapable of managing her financial affairs – entirely dependent on the attorney to manage her financial affairs – the state of the subject person’s financial affairs is unclear – concerns regarding an intermingling of funds between the subject person and the attorney – NSW Trustee appointed as financial manager.

Legislation Cited:

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

Powers of Attorney Act 2003 (NSW) ss 36(1)-(2), 50(3)

Cases Cited:

C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)

CJ v AKJ [2015] NSWSC 498

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

IF v IG [2004] NSWADTAP 3

P v D1 & Ors [2011] NSWSC

P v NSW Trustee and Guardian [2015] NSWSC 579

P v R [2003] NSWSC 819

PB v BB [2013] NSWSC 1223

Re B [2011] NSWSC 1075

Re D [2012] NSWSC 1006

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

YJC v Public Guardian [2024] NSWCATAP 160

Texts Cited:

Physiopedia, “Clinical Frailty Scale,”

21 July 2025

Category:

Principal judgment

Parties:

001: Review of an Enduring Power of Attorney

Zoe (the person)
Kathryn (applicant)
Isobel (attorney)
NSW Ageing and Disability Commission (joined party)
NSW Trustee and Guardian

002: Financial Management Application

Zoe (the person)
Kathryn (applicant, proposed financial manager)
Isobel (carer, attorney)
NSW Ageing and Disability Commission (joined party)
NSW Trustee and Guardian

003: Guardianship Application

Zoe (the person)
Kathryn (applicant, proposed guardian)
Isobel (carer, enduring guardian)
NSW Ageing and Disability Commission (joined party)
Public Guardian

004: Review of an Enduring Guardianship Appointment

Zoe (the person)
Kathryn (applicant)
Isobel (carer, enduring guardian)
NSW Ageing and Disability Commission (joined party)
NSW Trustee and Guardian
Public Guardian

Representation:

M O’Kane, separate representative of Zoe

File Number(s):

NCAT 2025/00002587

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

INTRODUCTION

1. Zoe is an 85-year-old woman who ordinarily resides in her own home with her daughter, Isobel in regional NSW. Since her discharge from hospital earlier this year Zoe and Isobel have been residing with a friend at an undisclosed address in regional NSW.

2. Zoe has two other children, namely her daughter, Kathryn, and her son, Evan. Sadly, Evan passed away in 2024.

3. On 28 September 2024, Zoe made an Enduring Power of Attorney (“the EPOA”) and an Enduring Guardianship Appointment (“the EGA”) in which she appointed Isobel as her attorney and enduring guardian. Copies of these instruments have been provided to the Tribunal.

4. On 3 January 2025, the Tribunal received applications from Kathryn for review of the EPOA and review of the EGA. On 6 January 2025, the Tribunal received further applications from Kathryn for a guardianship order and a financial management order. Kathryn subsequently requested to withdraw these applications; however, by order dated 15 January 2025, the Tribunal did not consent to the withdrawal.

5. Various Directions Hearings were conducted to progress the matter to Hearing. On 18 March 2025 the Tribunal, inter alia, granted leave for Isobel to be legally represented in the proceedings [1] , and joined the NSW Ageing and Disability Commission (“ADC”) as a party to the proceedings.

   1. The Tribunal notes that although leave was granted to Isobel to be legally represented, she represented herself at Hearing.

6. The Hearing was listed on 2 May 2025. On this date the Tribunal, partially differently constituted, noted the absence of medical and allied health evidence in support of the applications, and determined to adjourn the proceedings to enable further evidence to be obtained. On this date the Tribunal directed that Zoe be separately represented in the proceedings and made directions with respect to the filing of further evidence. Mary O’Kane (“Mary”) has accepted the appointment as Zoe’s separate representative.

7. The Hearing was again listed on 27 June 2025. The Hearing was conducted from the Tribunal’s Sydney Registry, with some participants attending in person and others by telephone. Due to technical issues in the Hearing Room which could not be resolved in a timely manner, remote appearances were by way of telephone rather than video. No one sought to adjourn the Hearing on account of these technical difficulties, with remote attendees confirming their willingness to proceed by telephone.

8. The Hearing was attended by Zoe and Isobel in person, accompanied by a friend and support person. At the commencement of the Hearing, Isobel identified that the support person was her solicitor, however, the support person advised the Tribunal that she does not act for Isobel and was attending the Hearing in a passive support capacity. The Hearing was attended by telephone by Kathryn, Mary, a representative of the ADC, and Zoe’s son-in-law.

9. At the commencement of the Hearing, Isobel identified that she and Zoe had only received a bundle of documents containing medical records the day prior to the Hearing. It was unclear to the Tribunal whether that bundle of documents had included the report from a Geriatrician, dated 28 May 2025, or the Health Professional Report Form from a General Practitioner (GP), dated 29 May 2025 [2] . Subject to the opportunity to review those reports, neither Isobel nor Zoe objected to the Hearing proceeding. The Tribunal stood the matter down and provided copies of these reports to Isobel and Zoe to review.

   2. Date is handwritten, and it may be the case that the day identified above is incorrect, but in any event the report is dated in late May 2025.

10. Upon resuming the Hearing, the Tribunal took the opportunity to obtain evidence from Zoe in the absence of the other parties (save for the separate representative) and thereafter provided a summary of the evidence to the parties when the Hearing resumed.

11. In circumstances where the parties had been afforded the opportunity to provide written evidence and submissions to the Tribunal, and where an hour of the allocated hearing time had been exhausted attending to the preliminary issues identified above, upon the recommencement of the Hearing the Tribunal informed the parties that:

1. A time limit would be placed on the presentation of oral evidence and submissions; and,

2. The Tribunal would take evidence and submissions jointly on the application to review the EGA and the application for a guardianship order, and thereafter the Tribunal would take evidence and submissions jointly on the application to review the EPOA and the application for a financial management order.

12. The Hearing was made difficult by the poor conduct of a number of participants in the Hearing, with the Tribunal regularly required to intervene to remind parties of the Tribunal’s expectations regarding the conduct of the Hearing and the behaviours of the parties during the Hearing.

13. At the conclusion of the Hearing the Tribunal determined to reserve its decision.

14. Subsequently, on 4 July 2025, the Tribunal made orders to the following effect:

1. The Public Guardian was appointed as Zoe’s guardian for an initial period of twelve months with the functions of accommodation, services, health care and access.

2. Isobel’s appointment under the EGA was revoked.

3. The NSW Trustee and Guardian (“NSW Trustee”) was appointed as Zoe’s financial manager, with the order to be reviewed by the Tribunal within twelve months.

4. The Tribunal declined to undertake a review of the EPOA.

15. These Reasons for Decision outline the basis for the Tribunal’s decision regarding each of the substantive applications before the Tribunal.

16. The Tribunal has read and considered all the written material provided to the Tribunal, and the oral evidence and submissions presented at Hearing. Voluminous written material was provided to the Tribunal (approximately 1,000 pages), however, much of the material had little relevance on the issues to be determined by the Tribunal, save for assisting the Tribunal to understand the context of Zoe’s circumstances and the complex family dynamics within Zoe’s family. Only salient aspects of the evidence are referred to herein; however, failure to reference particular aspects of the evidence should not be construed as a failure of the Tribunal to consider that material.

LEGAL PRINCIPLES – GUARDIANSHIP APPLICATION AND REVIEW OF EGA

Review of EGA

17. 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 then proceeding as if an application for guardianship or an application for financial management (or both) had been made.

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

1. the enduring guardian requests the revocation; or

2. the Tribunal is satisfied it is in the best interests of Zoe that the appointment be revoked.

19. 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 Zoe to do so.

Guardianship Application

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

• Is Zoe someone for whom the Tribunal could make a guardianship order?

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

• Who should be the guardian and how long should the order last?

21. Section 14 of the Guardianship Act 1987 (NSW) (“the Act”) provides that we may make a guardianship order for a person if we are satisfied that the person is “a person in need of a guardian”.

22. A person in need of a guardian is “a person who, because of a disability, is totally or partially incapable of managing their person”: the Act, s 3(1). The disability must restrict them in one or more major life activities to the extent that they require supervision or social habilitation: the Act, s 3(2).

23. Section 14(2) of the Act outlines a number of equally important factors for us to consider and balance in the exercise of our discretion. 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 may be guided by the principles that are set out in section 4 of the Act (see IF v IG [2004] NSWADTAP 3).

24. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. He or she must:

1. have a personality generally compatible with the personality of the person under guardianship;

2. have no undue conflict of interest (particularly financial) with those of the person; and

3. be able and willing to exercise the functions of the order.

25. 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 section 4 of the Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep, and Re B [2011] NSWSC 1075, [66]).

26. In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.

27. The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can be appointed: the Act, s 15(3).

28. 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, [25]).”

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

LEGAL PRINCIPLES – FINANCIAL MANAGEMENT APPLICATION AND REVIEW OF EPOA

Review of EPOA

30. The Tribunal may, on the application of an interested person, decide to review the making or the operation and effect of a reviewable power of attorney, or not to carry out such a review: Powers of Attorney Ac 2003 (NSW), section 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 section 36 of the Powers of Attorney Act: section 36(2).

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

“On an application for s 36 review such as this the Court must first exercise a discretion under Powers of Attorney Act, s 36(1) to decide whether or not to conduct a s 36 review. In my view the Court does not have to conduct a full review of all documents associated with the operation of the subject power of attorney to do this. Something short of a full review must be able to justify the exercise of the s 36(1) discretion as to whether or not the Court should conduct a full s 36 review. In the circumstances of this case the Court can glean sufficient information to exercise the s 36(1) discretion by undertaking a general survey of what... (a party )...has produced.”

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

• An order declaring that Zoe did or did not have mental capacity to make a valid power of attorney

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

1. Zoe 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 Powers of Attorney 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 Zoe to make the order; and

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

34. These orders include, but are not limited to:

• An 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 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 section 36 of the Powers of Attorney Act, it may, if it considers it appropriate in all of the circumstances to do so, decide to treat the application for review as an application for a financial management order under Pt 3A of the Act.

Financial Management Application

36. Section 25G of the Act provides that the Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person’s capability to manage his or her own affairs and is satisfied that:

1. The person is not capable of managing those affairs, and

2. There is a need for another person to manage those affairs on the person’s behalf, and

3. It is in the person’s best interests that the order be made.

37. In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person’s own capacity to do what they are proposing to do [58]. White J used a “rational appreciation” of assets test to determine a person’s capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances:

“… is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person’s property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person’s property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter [26].”

38. In PB v BB [2013] NSWSC 1223, Justice Lindsay confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]:

“Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack ‘mental capacity’ or be ‘mentally ill’; or (b) particular reasons for an incapacity for self-management.”

39. The test for determining a person’s capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]–[308]):

“Is a person 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?

…

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

40. In considering whether the person is “able” in this sense, consideration may be given to:

• past and present experience as a predictor of the future course of events;

• support systems available to the person; and

• the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498 at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579 at [309].

41. 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 section 4 of the Act.

42. 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 Trustee.

43. 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 Trustee now exercises the role of the Protective Commissioner.

44. In considering who to appoint as a person’s financial manager the Tribunal is not restricted to considering the appointment of the NSW Trustee as an appointment of last resort. Rather, the decision as to whether to appoint a private person or the NSW Trustee is to be guided by the principles under section 4 of the Act: YJC v Public Guardian [2024] NSWCATAP 160.

SUMMARY OF MEDICAL AND ALLIED HEALTH EVIDENCE

The Hospital Records

45. The ADC provided the Tribunal with a bundle of documents obtained from Hospital A and Hospital B produced under summons (“the Hospital Records”). The bundle comprises almost 400 pages.

46. The Discharge Summary from Hospital A outlines the following:

1. Zoe presented to hospital via the Emergency Department on 19 December 2024 for a “wheeze”. She also presented with right sided chest pains and shortness of breath.

2. “A bedside echo revealed trace pericardial effusion with severe aortic sclerosis and reduced leaflet mobility, mitral valve anterior leaflet also reduced mobility, moderate to severe systolic dysfunction and IVC dilated and minimal respiratory variation. CT chest/abdo/pelvis revealed large bilateral pleural effusions at least 4cm in depth at the lung bases and adjacent passive atelectasis with no convincing malignancy identified. It was concluded that the large bilateral pleural effusions, subcutaneous flank oedema and periportal oedema were likely secondary to congestive cardiac failure.”

3. Zoe was admitted to ICU following a diagnosis of aspiration pneumonia. She “was also investigated for dysphagia with an MRI brain which revealed multiple lacunar infarcts. She received speech pathology input and was also placed on NG feeds as per dietician.”

4. After receiving clearance from cardiology, Zoe was also required to undergo a gynaecological procedure involving “Hysteroscopy +D+C+Endometrial Biopsy + Mirena insertion”.

5. During her admission, Zoe was also investigated and treated in relation to (amongst other things) severe hyponatremia, UTI with transient delirium and hyperkalaemia.

6. Zoe was cleared for discharge to Hospital B on 5 March 2025 with recommendations made for follow-up appointments in the community with a Gynaecologist and a Cardiologist, and continued allied health input.

47. The Discharge Summary from Hospital B outlines the following:

1. Zoe was a patient from 5 March 2025 until 19 March 2025, when she was cleared for discharge.

2. During her admission to Hospital B, Zoe was found to be hyperkalaemic, and her medications were adjusted accordingly.

3. Recommendations on discharge include the following:

1. Review by GP within one week, with referrals required for specialist follow up.

2. Specialist follow-up required with the gynaecologist in four weeks, and the cardiologist in two to three months (for consideration of Transcatheter Aortic Valve Implantation).

3. Follow up of outstanding gynaecological lesion biopsy taken in Hospital A.

4. Completion of Videofluoroscopic Swallow Study as an outpatient to assess swallowing.

48. Occupational Therapy notes outline the following:

1. On 8 January 2025, during her admission to Hospital A, cognitive screening was undertaken by way of a Montreal Cognitive Assessment (“MOCA”) in which Zoe scored 21/30. The Tribunal notes, however, that this screening was undertaken whilst Zoe was quite unwell and may not be a true reflection of her cognitive functioning.

2. On the same date, in relation to completion of a Home Safety Questionnaire, the following is reported:

“Patients responses to safety and judgment questions indicate pt is heavily reliant on daughter [Isobel]. Pt has basic understanding on safety responses however would likely have difficulty problem solving home safety situations if home alone/left unsupported… (sic)”

3. Notes from 17 January 2025 outline the following:

“OT reviewed home environment photos. ++ Hoarding and rubbish noted throughout house and property. From photos appears to be limited circulation space/access to kitchen, bathroom and bedrooms, particularly for equipment and aids would they need to be prescribed on d/c. Also concerning is there is no access to electricity or hot water to the property.”

4. Notes from 10 March 2025 outline the following:

“DISCUSSION RE SERVICES

- Pt reports nil need for services for personal care on D/C as daughter will be able to assist with dressing and showering and IADLs. Daughter does not work full time – quite flexible with hours.

- Pt reports that her other daughter has made up regarding no power or water at home – [Zoe] reports that her home is usable. The reasons for D/C to a friends house is that [Isobel] is clearing out the place since the passing of a family member and so there are boxes everywhere.

- Pt reports nil concerns regarding her daughter providing assistance with ADLs and IADLs.

- Pt hesitant regarding OT review in home environment post discharge as it is her friends house.

…

RECOMMENDATIONS

Pt not suitable for D/C from OT POV.

Would benefit from ongoing conversations regarding level of care that daughter can provide on discharge.”

5. Occupational Therapy progress notes dated 11 March 2025 outline the following:

“Current Care Needs

- Current care needs fluctuating however at times pt is requiring – 1 x A bed mobility, 1 x A incontinence pad management, 1 x A with showering and dressing. And will need 1 x A with most IADLS.

- [Isobel] confirmed that she will be able to provide this level of care on D/C. [Isobel] reports that at most pt will be home alone for 2 hours. [Isobel] is not currently working.

- OT explained hope that pt functioning may continue to improve on D/C in home environment. Offered OT SpACT follow up – pt and [Isobel] declined the need for same.

- OT explained option for services to assist with care needs – pt and [Isobel] again declined Isobel reporting that they will manage care needs.

…

IMPRESSION

Pt safe for D/C from OT POV

Pt’s daughter able to provide current level of care needs.

Daughter and pt declining further OT follow up or services for D/C.”

GP Report

49. The Tribunal was provided with a Health Professional Report Form from the GP, who reports having been Zoe’s General Practitioner for 28 years.

50. In response to the question “Does the person have a disability?”, the GP has answered “no”. He then identifies that Zoe lives with a number of health concerns including Type 2 diabetes, aortic valve stenosis, and congestive heart failure.

51. Under the heading of “Other relevant information”, the GP reports the following:

“The house that [Zoe] + [Isobel] live in is squalid. [Isobel] is a hoarder. While she has assured me that the clean-up is substantially underway, I asked that she SMS me a couple of photos to show progress but she refused. The house that I visited in 2022 would be a significant fall, fire and disease risk if nothing has changed since 2022.

Daughter [Isobel] is well known to me and appears to have a Personality Disorder. Her mother is a little afraid of upsetting Isobel as she then becomes very irate, loud and at times offensive. While I consider that [Zoe] has sufficient cognition to make her own health + lifestyle decisions, I feel that [Zoe] would always agree with [Isobel] to make for a peaceful life. I have significant concerns about financial management as I suspect that [Isobel] who I believe has no income of her own, lives off the pension of [Zoe], and has a large loan taken out by [Zoe] some years ago that is not being repaid – just interest only.”

The Geriatrician’s Report

52. The Tribunal was provided with a report from a geriatrician dated 28 May 2025.

53. The geriatrician notes that Zoe was referred for a comprehensive geriatric assessment and was reviewed in the clinic “in the context of worsening bilateral leg swelling over the past three weeks, mild chest discomfort, and a noticeable upper airway noise”. It was estimated that Zoe had an estimated fluid retention of 4-5kg.

54. The geriatrician’s report relevantly identifies the following:

“Cognitive screening with the Mini-Mental State Examination (MMSE) yielded a score of 27 out of 30. Mild cognitive impairment was noted, which appears to be secondary to hearing difficulties rather than a true neurocognitive disorder. There was no clinical evidence of dementia. Her mood was appropriate, and no concerns were raised during the consultation.

Using the Clinical Frailty Scale, [Zoe] was assessed as mildly frail CFS-5. This is likely reflective of her recent hospitalisation and underlying cardiac condition, which have diminished her physiological reserve.

The most pressing clinical concern is fluid overload, likely secondary to heart failure in the setting of valvular heart disease. Additional issues include her recent bereavement and subsequent loss of social support, mild frailty, and lack of engagement with community services. She is not currently registered with My Aged Care, despite an increasing need for practical and social support. She currently expresses a desire to remain at home and maintains capacity to make these decisions, and is open to support and assistance as able. A detailed capacity assessment for other functions was not undertaken today.

…

In terms of broader support, I recommend initiating registration with My Aged Care so that she may access domestic assistance, transport support, and potentially psychological or bereavement counselling…”

55. The Tribunal notes that a Clinical Frailty Score of CFS-5 is indicative of the following [3] :

“These people often have more evident slowing, and need help in high order IADLs (finances, transportation, heavy housework, medications). Typically, mild frailty progressively impairs shopping and walking outside alone, meal preparation and housework.”

3.

ACAT Assessment

56. The material available to the Tribunal outlines that various recommendations have been made for Zoe to participate in an ACAT assessment. Recommendations have been made to this effect by the ADC (including prior to Zoe’s hospital admission), at various times during Zoe’s recent hospital admission, and by the geriatrician.

57. When the previous Hearing on 2 May 2025 was adjourned, the Tribunal discussed the benefit of Zoe undertaking an ACAT assessment during the adjourned period and made a notation confirming the recommendation that this occur.

58. At Hearing, the Tribunal was informed that an ACAT assessment has still not been undertaken for Zoe.

EVIDENCE FROM THE ADC

59. The Tribunal was provided with a report from the ADC dated 13 March 2025 which outlines the following:

1. The ADC became involved with Zoe following a report made to them on 14 October 2024 identifying concerns “about self-neglect, medical neglect, lack of home care supports and financial abuse of [Zoe] by her daughter [Isobel]”. It appears that this complaint was instigated by the NSW Police.

2. The ADC provided to the Tribunal photographs of the condition of Zoe’s home taken by the NSW Police prior to the ADC’s involvement. Some of these photographs are included at Appendix A to these Reasons for Decision [Appendix removed for publication.].

3. The ADC made contact with the geriatrician on 12 November 2024, who indicated that he is aware of the concerns regarding the squalid conditions of the house. The geriatrician also reported that although Zoe has not been subject to a geriatrician’s assessment, “she is fully dependent for her lifestyle and financial decision on [Isobel]”. The geriatrician also reported age-related cognitive changes.

4. The ADC undertook an initial meeting with Zoe and Isobel in a public location on 13 November 2024 [4] . It is reported that although Zoe appeared to understand the questions asked, her responses were prompted by Isobel throughout the discussion. Zoe “had very minimal information about her finances and said that [Isobel] manages her finances”.

   4. The date of this meeting is inconsistently reported in the ADC, with subsequent references made to the meeting occurring on 13 December 2024.

5. During the first meeting with Isobel and Zoe the ADC provided Isobel with information regarding My Aged Care. The ADC report the following:

“We consider the provision of services, including to address the hoarding and squalor in the home, to be necessary for [Zoe’s] safety and wellbeing, however to date [Isobel] has not taken action to arrange home care supports for [Zoe]. We note that based on our interactions with [Zoe] she would be unable to organise and coordinate these services herself and deferred to [Isobel] in regard to this issue.”

6. Zoe is reported to decline a meeting with the ADC at her house. Ultimately the ADC were required to issue a notice of requirement to Isobel to allow the ADC to meet with Zoe at her home, undertake a home inspection, and obtain a view from Zoe independent of Isobel. The ADC conducted a home visit on 17 December 2024. On this date the visit was conducted in the front yard in circumstances where Zoe and Isobel denied the ADC entry to the property. The ADC report outlines the following regarding that visit:

“[Isobel] was extremely combative in her response to our visit, despite receiving written notice, and advised that she would contact her lawyer. Her distress and attitude towards the ADC appeared to influence [Zoe] who was concerned at her daughter’s level of distress. Initially [Isobel] refused to allow the ADC staff to speak privately with [Zoe], however after extensive discussions reluctantly agreed to move away from the area of the front yard that [Zoe] was sitting in, to allow us to speak with some privacy.

…

[Zoe] said that she is managing her pension by herself and [Bank B] account. She owns the house and confirms reverse mortgage which was being paid off jointly with [Isobel]. She was not aware about the details of mortgage such as amount and the reason of the mortgage.”

7. The ADC have taken steps to try to ascertain the nature of Zoe’s financial affairs. Their report outlines the following:

1. Zoe’s property at regional NSW is owned in Zoe’s sole name and is listed as the office address for a real estate company (a business run by Zoe and Isobel). The property has an estimated median value of $1.6 million according to the Domain website.

2. Zoe has a credit card account and a mortgage account with Bank A. The mortgage account had a balance of $333,521 with repayments on an interest only basis. The loan was taken out in 2005.

3. Zoe has a bank account with Bank B. She receives around $26,490 annually from Centrelink, which is paid into the account. Zoe’s ongoing expenses, as determined by review of her bank statement, are around $12,000 annually, with a further $36,000 annually by way of mortgage repayments.

4. At a meeting at Hospital A on 24 January 2025, Isobel confirmed that she is managing Zoe’s affairs pursuant to her appointment under the EPOA but refused to provide any information about Zoe’s financial affairs.

5. The ADC have been unable to obtain further information regarding arrangements for the repayment of Zoe’s mortgage or other expenses as Isobel and Zoe have declined to meet with the ADC to discuss the issues further.

8. In relation to the need for a substitute decision-maker the ADC report that “from our meetings with [Zoe], ADC have observed that she is fully dependent on [Isobel] for her lifestyle decision and financial management. We also note that [Isobel] appeared to exert a high level of control over [Zoe].”

60. The Tribunal was provided a further report from the ADC dated 24 April 2025. This report outlines:

1. The ADC issued a further Notice of Requirement on 3 April 2025 requiring Zoe and Isobel to meet with the ADC at Zoe’s residence on 16 April 2025. This meeting was postponed multiple times, with the ADC eventually meeting with Zoe and Isobel at the property they are currently residing at on 23 April 2025.

2. Prior to this visit the ADC attended Zoe property. From the outside of the property “the condition of the house (externally) appeared unchanged with hoarding and rubbish visible. We spoke with one of [Isobel’s] friends who was present there and informed us that they are helping [Isobel] to reduce the rubbish and there was evidence of items having been burnt.”

3. Isobel showed the ADC a copy of the Bank A mortgage statement with additional payments totalling $39,777 in the month of February 2025. The description listed against these additional repayments is stated as “Legal Loan from [Isobel]”.

4. Notwithstanding these additional payments the ADC hold concerns regarding the sustainability of these arrangements in circumstances where Zoe’s expenses far exceed her income. The ADC reports that “[Isobel] has declined to provide the ADC information about her employment/income source/s or confirm how she will continue to contribute towards [Zoe’s] mortgage payments”.

CONSIDERATION – ISSUES RELATING TO MANAGEMENT OF ZOE’S PERSON

Review of EGA

61. Discussed below, in relation to the guardianship application, the Tribunal has made findings that:

1. Zoe is a person in need of a guardian; and,

2. Isobel does not meet the requirements under the Act to be appointed as Zoe’s guardian.

62. Consequent to these findings, the Tribunal finds that the continued appointment of Isobel as Zoe’s enduring guardian pursuant to the EGA is inconsistent with Zoe’s best interests. The Tribunal is satisfied that such appointment should be revoked and ordered accordingly.

Guardianship Application

63. The issue of whether or not Zoe is a person in need of a guardian is a vexed issue.

64. On the one hand the Tribunal was presented with evidence that Zoe’s cognition is intact, with only mild, age-related cognitive impairment identified. The geriatrician notes that Zoe shows no sign of a dementing illness, and she returned a score of 27/30 on a MOCA as recently as May 2025.

65. On the other hand, Zoe is a person of advanced age. On geriatric review, Zoe was assessed with a Clinical Frailty Score of CFS-5, indicative of a need for help in relation to higher level IADLs.

66. The evidence presented by the ADC outlines significant concerns with respect to Zoe being fully dependent on Isobel for all lifestyle and financial matters. These concerns are consistent with the GP’s observations.

67. When taking evidence from Zoe in the absence of other parties the Tribunal spoke to Zoe about the nature of any supports she may require. Zoe was unable to identify any support that she may need, indicating that Isobel does everything she needs. When asked how she might go about organising additional supports should the need arise, Zoe appeared unable to comprehend that she may require any kind of assistance other than that provided to her by Isobel, and accordingly was unable to elaborate on how she might organise and implement any necessary support services.

68. At other stages during the Hearing, Zoe was consistently unable to independently answer questions regarding her personal circumstances, regularly turning to Isobel for prompting. Even after the Tribunal explained the importance of Zoe answering questions herself, and that it was okay if her answers were not correct, Zoe continued to turn to Isobel, and Isobel continued to prompt Zoe despite the Tribunal’s cautions.

69. The Hospital Records consistently identify the need for Zoe to receive various supports to live and function safely in the community. These recommendations align with recommendations made by the ADC (pre-dating and post-dating her admission to hospital) and the recommendations made by the geriatrician.

70. Zoe has been unable or unwilling to identify the need for additional supports and/or take steps to implement such supports.

71. Whilst the Tribunal acknowledges that Zoe’s cognitive abilities may be sufficient for her to make various lifestyle decisions, her ability to plan and implement such decisions is compromised having regard to her frailty and her complete dependence on others.

72. The Tribunal is satisfied that Zoe has a disability as defined by s 3(2) of the Act, namely advanced age.

73. As a consequence of Zoe’s advanced age, and her associated clinical frailty, she is restricted in one or more lifestyle activities to the extent that she requires supervision or social habilitation. The lifestyle activities that are restricted as a consequence of Zoe’s advanced age include access to necessary support services and allied health services, and access to safe, stable and suitable accommodation consistent with her care needs.

74. The Tribunal is satisfied that Zoe is a person in need of a guardian. She is, accordingly, a person for whom the Tribunal could make a guardianship order.

75. Having determined that Zoe is a person for whom the Tribunal could make an order, it is necessary for the Tribunal to consider whether an order should be made, in the exercise of the Tribunal’s discretion.

76. Zoe did not support a guardianship order being made. She was consistent in her views that she was happy with Isobel as her carer and did not want that to change. The Tribunal outlined that a carer and a guardian are not the same thing and attempted to explain to Zoe the role of a guardian. In response, Zoe asserted that she does not need someone to make important lifestyle decisions on her behalf, and in the event that she did, that Isobel could make those decisions. Despite consistent recommendations from a range of medical and allied health practitioners to the contrary, Zoe did not agree that she needed any supports other than what Isobel could provide her.

77. Isobel did not support a guardianship order being made. She was adamant that the EGA had not yet been enacted, and that Zoe does not currently need a guardian to make important decisions on her behalf. This is at odds, however, with the Hospital Records which consistently identify that Zoe’s treating team have consistently engaged with Isobel regarding necessary decisions to be made to support Zoe upon her discharge, and where Isobel was consistently declining recommendations for follow up allied health care and support services. When asked her thoughts regarding Zoe’s ability to independently source and implement any necessary support services she may require, Isobel’s answers to the Tribunal’s questions were not overly responsive to the questions asked.

78. Due to an unwillingness or an inability, either independently or with the assistance of Isobel, Zoe has been unable to implement any support services in response to consistent recommendations regarding the need for same. The Tribunal finds that it would be impracticable for services to be provided to Zoe in the absence of a guardianship order.

79. There is no evidence before the Tribunal with respect to any particular cultural or linguistic considerations relevant to the Tribunal’s determination.

80. It is unclear to the Tribunal the extent, if at all, that the making of a guardianship order would have on Zoe’s existing family relationships. On the one hand, an order appointing a guardian other than Isobel may have an impact on the complex relationship dynamics between Zoe and Isobel. On the other hand, the appointment of an independent decision-maker may assist in promoting Zoe’s relationship with other members of her extended family, including her grandchildren. To the extent that the making of an order may have a detrimental impact on Zoe’s existing family relationships, the Tribunal finds that such risks are outweighed by the benefit of ensuring that Zoe receives necessary and appropriate care.

81. The evidence before the Tribunal outlines the need for appropriate accommodation decisions to be made on Zoe’s behalf. Since her discharge from hospital, she has been residing on a temporary basis with a friend, with the intention of returning to her home in due course.

82. There are conflicting reports regarding the suitability of Zoe’s home for her ongoing accommodation needs. There are (disputed) allegations that Zoe’s home is without necessary utility supplies, and that the home is an unsafe environment for Zoe to return to on account of the extent of hoarding and squalor. From Zoe and Isobel’s perspective it was asserted that the reason that Zoe is not currently living in the home is because Isobel is undertaking a clean-up and basic renovations consequent to Evan’s passing. In circumstances where the only objective evidence regarding the condition of Zoe’s home is contained in the ADC reports (namely the photograph’s taken by NSW Police – see Appendix A to these Reasons for Decision [Appendix removed for publication.]) due to Zoe and Isobel denying the ADC’s further requests to inspect the property, the Tribunal finds that it is more likely than not that Zoe’s home is currently an unsafe environment for her to return to. Accordingly, there is a need for accommodation decisions to be made to support Zoe’s ongoing care. Aside from Zoe and Isobel, the consensus of those actively participating in the Hearing was that it would be preferable for Zoe to return to her home, provided that it is safe for her to do so.

83. Mary, as the Separate Representative, supported the making of a guardianship order but only with the function of accommodation. Mary opined that Zoe is well-supported by Isobel with respect to all other lifestyle matters and that there was no need for the inclusion of any other functions.

84. With no disrespect intended, the Tribunal cannot accept Mary’s submission. There are clear and consistent recommendations made by various members of Zoe’s multidisciplinary treating team that she requires various support services and allied health services to live safely in the community. To date, Isobel and/or Zoe have proved unable or unwilling to implement these recommendations. At Hearing, Isobel did not accept the current need for such services. She informed the Tribunal that it was her understanding that others (namely the ADC) were intending to organise an ACAT assessment, and when she became aware that this was not the case, she indicated a willingness to organise the assessment so as to ensure that Zoe could access support services should the need arise at a later time. Even if the Tribunal were to accept that Isobel misunderstood the ADC’s initial recommendations, the need for either herself or Zoe to organise an ACAT assessment has clearly been articulated on the available written material, and indeed was re-enforced by the Tribunal was the previous Hearing was adjourned.

85. The Tribunal is satisfied that there is a need for a guardian to make decisions on Zoe’s behalf regarding her access to necessary support services and allied health services. Accordingly, the functions of services and health care should be included in any order made by the Tribunal.

86. With respect to the issue of consent to medical and dental treatment, the Tribunal is satisfied that Zoe is currently providing her own consent to treatment and that no concerns have been identified on the evidence regarding her ability to make informed decisions regarding consent to treatment. Should Zoe’s condition deteriorate substitute consent to treatment may be made by a ”person responsible” or otherwise an application can be made to the Tribunal for consent to such treatment.

87. Kathryn outlined ongoing concerns regarding the ability of herself and other extended family members to freely visit Zoe and/or communicate with her. It was suggested to the Tribunal that Isobel has improperly restricted Zoe’s access to others. Zoe and Isobel denied that Zoe has been denied access to others, outlining various behaviours and events that have resulted in a reluctance from Zoe’s part to engage with her extended family. It is unnecessary (and impossible on the current evidence) for the Tribunal to make any findings as to the factors contributing to Zoe’s fractured relationship with other members of her extended family. The appointment of a guardian with an access function, however, will provide an opportunity for independent consideration as to whether Zoe distancing herself from other family members is a reflection of her genuinely held views, or whether it is a consequence of Isobel’s influence.

88. In all of the circumstances the Tribunal was satisfied that a guardianship order should be made with the functions of accommodation, services, health care and access.

89. The Tribunal was required to consider the suitability of Isobel’s continued appointment as Zoe’s guardian (either pursuant to a guardianship order or pursuant to her appointment under the EGA). At Hearing, there were no alternative proposals made for the appointment of a private guardian, with Kathryn, Mary, and the ADC representative supporting the appointment of the Public Guardian.

90. It is difficult for the Tribunal to make an assessment of whether Isobel and Zoe have generally compatible personalities. On the one hand it is evident that Zoe and Isobel have a close relationship, having lived together for many years, with Zoe explicitly indicating her support for Isobel continuing to be her carer, and with Zoe having appointed Isobel as her enduring guardian. On the other hand, the GP, who has known both Zoe and Isobel for many years, reports that Zoe is afraid of upsetting Isobel and will generally agree with her to ensure a peaceful life. It is ultimately unnecessary for the Tribunal to make a finding as to whether Isobel and Zoe have generally compatible personalities.

91. Discussed below in the context of the financial management application, there are concerns regarding the appropriateness of Isobel managing Zoe’s finances. Isobel is reported to be financially dependent on Zoe, and any accommodation decisions made by a guardian regarding Zoe’s future accommodation will likely have an impact on the stability of Isobel’s ongoing accommodation. Isobel has denied the opportunity to provide any evidence of her own financial circumstances in response to the concerns identified by the ADC. It is not necessary, in the current circumstances, for the Tribunal to make a positive finding as to whether these concerns amount to an undue conflict of interest.

92. The issue of Isobel’s suitability for appointment as Zoe’s guardian ultimately turns on the issue of whether she is willing and able to exercise the functions of guardianship. This requires consideration of whether Isobel is able to make decisions objectively, without conflict of interest, and whether Isobel is able to demonstrate insight. For the reasons outlined below, the Tribunal finds that Isobel is not willing and able to exercise the functions of guardianship, and accordingly the Tribunal cannot be satisfied that she is a suitable person to be appointed as Zoe’s guardian.

93. In support of this finding the Tribunal notes the following:

1. Isobel has been uncooperative with the ADC in their investigation of complaints made regarding concerns for Zoe’s welfare. The ADC is a statutory body mandated to promote the rights of older people to live free from abuse, neglect and exploitation. The fact that Isobel has failed to meaningfully cooperate with the ADC to undertake their investigation demonstrates her inability to act objectively to promote Zoe’s welfare and interests.

2. Isobel has failed to act on consistent recommendations from an array of professionals as to the need for Zoe to access appropriate support services in the community, and declined referrals made for appropriate allied health support in the community consequent to Zoe’s discharge from hospital [5] . At Hearing Isobel continued to deny the need for same [6] . If the Tribunal accepts that Isobel was acting under the belief that the EGA had not been enacted and that any decisions regarding these matters were decisions for Zoe to make herself, the evidence clearly indicates Zoe’s dependence on others, particularly surrounding her discharge from hospital. There is no evidence that Isobel, in her capacity as Zoe’s carer, has taken any steps to support Zoe to implement these recommendations herself, or to encourage Zoe to do so. At Hearing, Isobel was asked whether, on reflection, she would have done anything different to support Zoe upon her discharge from hospital. In response to this question, rather than reflecting on her conduct, Isobel became combative with the Tribunal and demanded that the Tribunal articulate what it is she should have done [7] .

3. As discussed above, Isobel is not receptive to acting on professional advice as it relates to promoting Zoe’s welfare and interests.

4. Isobel was often evasive to the Tribunal’s questioning, with the Tribunal regularly needing to bring Isobel back to the questions asked and insist on an answer that was responsive to the question.

5. The fractured relationships amongst Zoe’s daughters are evident on the material before the Tribunal, and the conduct of both Isobel and Kathryn at Hearing re-enforced those concerns. Whilst the Tribunal acknowledges that these issues are likely contributed to by multiple parties, having regard to the nature of the relationships between Isobel and her extended family the Tribunal cannot be satisfied that Isobel would be able to exercise the functions of guardianship in a manner consistent with the s 4 principles in the Act, including promoting Zoe existing family relationships and ensuring that she consults with significant important people in Zoe’s life when making important decisions on Zoe’s behalf.

   5. The Tribunal notes that Isobel confirmed that she had facilitated Zoe’s attendance on follow up medical consultations, including with the cardiologist, however she had not implemented the recommendations regarding the need for support services and various allied health interventions.

   6. Isobel told the Tribunal that she would register Zoe for My Aged Care “in case she needed something, but she doesn’t need anything”.

   7. In a raised voice Isobel said words to the effect of “What could I do differently?”

94. Whilst the Tribunal has had regard to Zoe’s clear wish for Isobel to be her guardian, the evidence does not support that Isobel meets the requirements under the Act to fulfill these responsibilities, and the Tribunal cannot be satisfied that Isobel continuing in her appointment under the EGA would sufficiently promote Zoe’s welfare and interests.

95. Absent a suitable private person to be appointed as Zoe’s guardian the Tribunal decided to appoint the Public Guardian.

96. Mary initially proposed that a guardianship order be made for an initial period of twelve months based on her believe that twelve months was a minimum term that could be included in a guardianship order. Upon the Tribunal explaining that twelve months is the maximum term for an initial order (subject to some exceptions) Mary amended her proposal in support of a shorter order being made. That proposal, however, was in the context of her recommendation that the order be made with the sole function of accommodation.

97. There were no other clear proposals made at Hearing regarding the length of a guardianship order.

98. Having regard to the nature of the functions included in the order, and likely delays that will be incurred with respect to undertaking an ACAT assessment and thereafter sourcing the appropriate supports, the Tribunal determined that a longer order would best promote Zoe’s interests. Accordingly, the Tribunal made a guardianship order for an initial period of twelve months.

CONSIDERATION – ISSUES RELATING TO MANAGEMENT OF ZOE’S AFFAIRS

Review of EPOA

99. In her application Kathryn sought that the Tribunal undertake a review of the making of the EPOA and the operation and effect of the EPOA. She proposed that the Tribunal “make myself, and granddaughters EPOA, after review and explaination (sic) by tribunal that we will not be laible (sic) for any debts inccurred (sic) by my mother and sister”.

100. The Tribunal has a discretion as to whether or not to undertake a review of the EPOA. This discretion may be informed by a general survey of the evidence produced.

101. To the extent that Kathryn requests the Tribunal to undertake a review of the making of the EPOA, there is no evidence produced to the Tribunal to the effect that Zoe lacked the requisite legal capacity to make the EPOA, and there is insufficient evidence to ground a finding that the making of the EPOA is invalidated for any other reason. Accordingly, the Tribunal declined to undertake a review of the making of the EPOA.

102. The Tribunal ultimately determined that it would be in Zoe’s best interests for a financial management order to be made, and that her interests would best be promoted by the appointment of the NSW Trustee as her financial manager. The effect of this decision is that the operation of the EPOA will be suspended whilst the financial management order is in effect: Powers of Attorney Act, s 50(3). The basis for the Tribunal’s decision to make a financial management order is discussed below. For present purposes the Tribunal notes that the evidence provided to the Tribunal in support of the application does not support a finding that Isobel has acted with impropriety in her appointment under the EPOA, however it also does not support a finding that Isobel has been managing Zoe’s affairs in a manner consistent with Zoe’s best interests.

99. Although the written material provided to the Tribunal, and the oral evidence presented at Hearing, raises concerns as to the efficacy and appropriateness of Isobel making decisions regarding the management of Zoe’s affairs at the current point in time, her appointment is reflective of Zoe’s clear and unambiguous wishes that Isobel be responsible for the management of her financial affairs. Absent clear evidence of mismanagement by Isobel warranting the revocation of her appointment, the Tribunal determined that there is an insufficient basis to undertake a review of the operation and effect of the EPOA. Accordingly, the Tribunal declined to undertake a review of the operation and effect of the EPOA.

100. Noting that the Tribunal determined that the financial management should be reviewed by the Tribunal within twelve months, the preservation of the EPOA ensures that, following a period of intervention from the NSW Trustee, appropriate consideration can be given by the Tribunal on review to the issue of whether or not it is consistent with Zoe’s best interests for the order to be revoked on the basis that her affairs could be managed by Isobel pursuant to her appointment under the EPOA. Such an outcome is not, however, consistent with Zoe’s interests at the current time.

Financial Management Application

105. Zoe’s financial circumstances, so far as they can be ascertained by the Tribunal, are reported above in relation to the evidence provided by the ADC.

106. At Hearing it was difficult for the Tribunal to obtain an understanding, from Zoe’s perspective, of the nature of her financial affairs. Consistent with reports from other sources, Zoe was reliant on Isobel to provide answers regarding her financial circumstances. The Tribunal explained that the questions being asked were to assist the Tribunal to understand Zoe’s understanding of her circumstances and stressed the importance of Zoe being able to provide her answers without influence from others, even if her answers were incorrect. Despite these comments from the Tribunal, Isobel continued to prompt Zoe in her responses, leaving the Tribunal with considerable doubt as to whether Zoe has a proper appreciation of the nature of her financial affairs.

107. The Tribunal identified that Zoe’s income is insufficient to continue to service the mortgage over her property, and that it appears that there are works that need to be undertaken on the property that will have financial implications. The Tribunal asked Zoe regarding her plans surrounding the ongoing expenses for managing the household and her ability to service the mortgage. Zoe identified an intention for her to sell off some of Evan’s belongings to contribute to payments towards the mortgage but was otherwise unable to identify any concrete plans regarding the ongoing maintenance of the mortgage.

108. The Tribunal notes that in circumstances where Isobel lives with Zoe it may be reasonably expected that Isobel contributes to the costs associated with maintaining the household and servicing the mortgage, however, save for what is reported below, there is no evidence before the Tribunal to suggest that Isobel is contributing in such a manner [8] . Various reports have been made that Isobel is reliant on Zoe’s pension payments and has no independent source of income. Isobel has consistently denied requests from the ADC to provide clarity around her financial circumstances, and at Hearing did not volunteer evidence relating to these issues.

     8. This arrangement may be consistent with agreements reached between Isobel and Zoe, however there is a lack of transparency to assist the Tribunal in assessing this issue.

109. It was alleged by Kathryn that the mortgage had been taken out by Zoe, at least in part, because Isobel required financial support from Zoe. When this was put to Isobel, she denied that the funds from the mortgage were used completely for her benefit, but did not offer any evidence regarding the extent, if any, of the financial support provided to her by Zoe attributable to the mortgage.

110. The ADC outlined that although Zoe’s mortgage has been reduced by around $30,000 to $40,000 in recent months, the reduction in the mortgage is a consequence of lump sum payments made by Isobel (discussed below) and insurance payouts. There is no evidence of any sustainable arrangements in place to meet Zoe’s ongoing financial needs.

111. Isobel asserted that the EPOA has not been enacted and that Zoe maintains responsibility for the management of her own affairs. Despite the Tribunal advising that the terms of the EPOA provide for the EPOA to take effect upon acceptance by the attorney, Isobel maintained her position that the EPOA had not yet been enacted.

112. Regardless of whether Isobel has been acting pursuant to her appointment under the EPOA, Zoe’s own evidence supports that she is reliant on Isobel in relation to the management of her financial affairs, and that Zoe has little independent understanding of her own financial circumstances. These observations are supported by the GP and the ADC.

113. The Tribunal finds that as a consequence of her frailty, mobility issues, and lack of understanding of her financial circumstances, Zoe is incapable of managing her affairs and requires another person to manage her affairs on her behalf.

114. The issue of whether or not it is in Zoe’s best interests for a financial management order to be made turns on whether the Tribunal is satisfied that the operation of existing EPOA, without the involvement of the NSW Trustee, is sufficient to promote Zoe’s welfare and interests.

115. The Tribunal explained to all parties that if a financial management order were to be made the Tribunal may appoint a private person to the role, subject to the authorities and directions of the NSW Trustee, or otherwise the Tribunal may commit the management of Zoe’s estate to the NSW Trustee.

116. Kathryn proposed that she be appointed as Zoe’s financial manager, and indicated her willingness and ability to work under the supervision of the NSW Trustee.

117. Zoe and Isobel opposed any variations to the current arrangements, proposing that Isobel maintain her appointment under the EPOA and manage Zoe’s finances in this capacity.

118. The Tribunal made various attempts to obtain Isobel’s views with respect to whether, if a financial management order were to be made, she proposed her appointment under the order. Isobel was combative in her response to the Tribunal, firstly opposing the making of a financial management order, then demanding that the Tribunal inform her of the quantum of fees to be charged by the NSW Trustee under such an order. The Tribunal explained that the fees charged by the NSW Trustee are set by the NSW Trustee and that the Tribunal cannot provide an accurate summary of the associated fees. The Tribunal reiterated that the question being asked of Isobel is not whether she agreed to a financial management order being made, but rather, in the event that a financial management order was to be made, whether she wished to be considered for appointment as the financial manager. After pressing Isobel to provide a “yes” or “no” response to the question, Isobel advised that she would seek to be appointed in the event that an order were to be made.

119. In response to the Tribunal’s usual probity questions Isobel informed the Tribunal:

1. She has not been charged or convicted of any criminal offences involving fraud or dishonesty.

2. She has previously been bankrupt because of the actions of her ex-spouse, however, she has been discharged from bankruptcy for a considerable period of time.

3. Isobel denied any inter-related property interests between herself and Zoe, including denying that there have been any loans made from Zoe to herself, or vice versa.

120. Upon hearing the submissions from the ADC the Tribunal returned to Isobel to provide her an opportunity to comment on evidence that is adverse to her case. In particular, the ADC addressed the Tribunal in relation to a number of transactions on Zoe’s bank account from February 2025 with the description “Legal Loan from [Isobel]”. Those transactions account for a large portion of the mortgage balance paid down in recent months.

121. Isobel initially told the Tribunal that she has no comment to make regarding those transactions, that she would want to receive legal advice before answering any questions of that nature, and that she can’t be made to answer the question. The Tribunal explained to Isobel that the Tribunal was not going to compel Isobel to comment on the transactions, though outlined that the evidence contained within the bank statements is entirely inconsistent with her oral evidence, and that in fairness she should be provided the opportunity to comment on the issues. Isobel presented as quite animated and combative, and maintained her position that she would not provide further comment on the issue.

122. In response to the Tribunal’s usual probity questions, Kathryn informed the Tribunal:

1. She has not been charged or convicted of any criminal offences involving fraud or dishonesty.

2. She has not been bankrupt or involved in bankruptcy proceedings.

3. She does not have any inter-related financial interests with Zoe.

123. Zoe and Isobel each raised issues regarding a previous loan made to Kathryn by Zoe. The Tribunal was informed that years ago, when Kathryn was a single mother, Zoe borrowed funds to assist Kathryn and provided her a sum of money of about $7,000. Zoe and Isobel asserted that this was a loan that remained unpaid. Kathryn asserted that she had always understood these funds to have been advanced to her as a gift and was not aware, prior to the Hearing, that Zoe had taken a loan to advance these funds, or that there was an expectation for the funds to be repaid.

124. Without the need to make a finding as to whether the disputed $7,000 gives rise to a conflict of interest, the Tribunal finds that the appointment of Kathryn as Zoe’s financial manager would not promote Zoe’s best interests. Kathryn’s appointment is contrary to Zoe’s firmly held views, and having regard to the fractured family relationships referred to above, the Tribunal cannot be satisfied that Kathryn’s appointment as financial manager would be practicably workable or promote the maintenance of Zoe’s existing family relationships.

125. With respect to Isobel’s suitability to manage Zoe’s financial affairs at the current time, the Tribunal cannot be satisfied that this arrangement (whether by appointment as financial manager or maintenance of the EPOA) would be consistent with Zoe’s best interests. In support of this finding the Tribunal notes:

1. There is a complete lack of transparency on Isobel’s behalf with respect to the extent to which her financial circumstances and Zoe’s financial circumstances are intertwined.

2. Isobel’s evidence was not credible so far as it relates to a purported loan made by her to Zoe, and whether there is an expectation of repayment of such funds.

3. Despite reluctantly conceding her willingness to manage Zoe’s financial affairs under the supervision of the NSW Trustee, having regard to her conduct and demeanour towards the Tribunal at Hearing, and her unwillingness to engage with other safeguards, such as the ADC investigation, the Tribunal cannot be positively satisfied that Isobel would conduct herself in a manner consistent with the requirements imposed by the NSW Trustee.

4. Decisions made by Zoe’s guardian may have financial implications for both Zoe and Isobel. For example, if a decision is made by Zoe’s guardian that she would not be safe to return to her home, such decisions will have financial implications for Zoe (potentially extending to the need for her home to be sold and/or payment towards alternative accommodation) and Isobel (in terms of necessitating the need for her to find alternate accommodation without financial support from Zoe). If tasked with managing Zoe’s financial affairs there are lingering doubts as to whether Isobel would make financial decisions in aid of decisions made by Zoe’s guardian if she were not in agreement with such decisions and/or if such decisions were contrary to her own interests.

126. In all of the circumstances the Tribunal was satisfied that Zoe’s best interests would best be served by the appointment of the NSW Trustee as her financial manager, ensuring that objective and transparent decisions can be made in her best interests.

127. The Tribunal notes that a significant concern at this point in time relates to objectivity and transparency of Zoe’s financial circumstances. The Tribunal formed the view that the appointment of an independent financial manager is required, at least at the current point in time. The Tribunal decided that the appointment of a financial manager should be reviewed by the Tribunal at a time when:

1. There has been an opportunity for an independent financial manager to appropriately investigate the nature of Zoe’s financial affairs, including the nature of any interrelated financial interests between Zoe and Isobel; and,

2. Following the implementation of any major decisions regarding Zoe’s ongoing care by her guardian.

128. In these circumstances the Tribunal decided that the financial management order should be reviewed at the same time that the Tribunal undertakes its statutory review of the guardianship order. Accordingly, the Tribunal decided that the financial management order should be reviewed by the Tribunal within twelve months.

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Endnotes

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: 18 August 2025