Guardianship Division Case Digest Issue 1 of 2023
The Guardianship Division Case Digest provides a summary of relevant and interesting case law of significance to the work of NCAT's Guardianship Division.
This issue feature case summaries of decisions from the Guardianship Division and the NCAT Appeal Panel. | | NCAT Guardianship Division | R H Booby, Senior Member (Legal) –16 February 2023
In sum: In December 2022, the Quality of Care Principles 2014 (Cth) were amended to introduce a ‘hierarchy’ of restrictive practices decision makers who can consent to the use of restrictive practices in residential aged care. In this decision, the Tribunal found that the new ‘hierarchy’ of decision makers in the amended Principles does not generally have effect in NSW. Therefore, there is an ongoing need for an appointed guardian to consent to the use of an environmental restraint to manage the subject person’s behaviour.
Facts: The subject person (JUW) is 80 years old and lives at an aged care facility. JUW has been the subject of guardianship and financial management orders since December 2020. On 4 February 2022 the Tribunal reviewed and confirmed the guardianship order appointing the Public Guardian for 12 months to make decisions about JUW’s accommodation and the use of an environmental restraint to manage her behaviour. On 16 February 2023 the Tribunal conducted an end-of-term review of the guardianship order.
The Public Guardian submitted that there is no further need for a guardian to be appointed to make accommodation decisions for JUW because she is now well settled at an aged care facility. The Tribunal received evidence that JUW has been placed in a Memory Support Unit from which she is unable to exit on her own accord. The facility advised that JUW’s spouse provided consent for the use of the environmental restraint and that this consent complies with the requirements of the facility for consent to such restraint.
Issues and outcome: (i) The use of restrictive practices in aged care is governed by the Quality of Care Principles 2014 (Cth). The use of a restriction placed on a “care recipient’s” free access to all parts of the environment is categorised as an environmental restraint under s 15E of the Quality of Care Principles. Section 15FA(1)(f)(ii) of the Quality of Care Principles provides that where a care recipient is unable to provide consent to the use of a restrictive practice, consent must be provided by a “restrictive practices substitute decision maker” ([21]-[22]).
(ii) The Quality of Care Principles were recently amended by the Quality of Care Amendment (Restrictive Practices) Principles 2022 (the Amended Principles) which provides guidance on who is considered to be a “restrictive practices substitute decision maker”. A “restrictive practices substitute decision maker” is defined in s 5B(1) of the Amended Principles to mean an “individual or body [who] has been appointed, under the law of the State or Territory in which the care recipient is provided with aged care, as an individual or body that can give informed consent to the use of the restrictive practice in relation to the care recipient if the care recipient lacks capacity to give that consent” ([23]).
(iii) Section 5B(2) of the Amended Principles sets out a hierarchy of people who can consent to the use of a restrictive practice. The hierarchy lists a number of possible restrictive practices decision makers, including a nominee, partner, relative or friend, with specific conditions attached to the appropriateness of people who might fit those categories ([28]).
(iv) The hierarchy in s 5B(2) only has effect where there is no individual or body appointed as the restrictive practices substitute decision maker and there is no clear mechanism for appointing such decision maker under the law of the State or Territory, or an application has been made to appoint a restrictive practices substitute decision maker and the application has been met with a significant delay ([24]).
(v) In NSW, there is a mechanism for appointing a restrictive practices decision maker and in the matter of JUW there has not been a delay in processing an application for such an appointment. Accordingly the table referred to in s 5B(2) of the Amended Principles has no operation. It is not within the Tribunal’s jurisdiction to determine if there has been a significant delay in deciding an application seeking the appointment of a guardian to consent to restrictive practices. That is a matter for the aged care facility or applicant to consider ([25]-[26]).
(vi) The Tribunal renewed the guardianship order appointing the Public Guardian with a restrictive practices function for a further three years, taking into the account the ongoing need for a guardian to consent to the application of the environmental restraint to manage JUW’s behaviour, as required by the Quality of Care Principles ([39]). | S Barnes, Senior Member (Legal), A M Matheson, Senior Member (Professional), Emeritus Professor P J Foreman AM, General Member (Community) – 4 April 2023
In sum: The Tribunal reviewed an appointment of enduring guardianship and decided to deal with the application as if an application for a guardianship order had been made. However, the Tribunal decided not to make a guardianship order, finding that it would not be in the principal’s best interests to vary the appointment made by the principal. The Tribunal also decided not to carry out a review of an enduring power of attorney.
Facts: KXD is a 58-year-old woman reported to have been diagnosed with early onset dementia in 2019 and to now have severe Alzheimer’s dementia. Prior to January 2023, KXD lived in her own home with QXJ who claims to be KXD’s partner and carer. KXD now lives with one of her three sisters, TYD.
On 29 April 2021 KXD executed an enduring power of attorney (EPOA) and an appointment of enduring guardianship (EGA), appointing her three sisters jointly and severally as her attorneys and enduring guardians. KXD included in the EPOA, a “condition” that her appointed attorneys should include QXJ in discussions regarding her welfare and well-being. This condition was not included in the EGA.
On 16 January 2023, QXJ lodged applications for review of the EPOA and EGA. QXJ sought the removal of TYD from office as attorney and enduring guardian. Over the course of the proceedings, the conflict between QXJ and TYD was apparent. In March 2023, QXJ lodged a caveat on KXD’s property and directed that any communication with TYD about KXD’s property, including his “rights and conditions of occupancy”, be made through his solicitor ([39]).
Issues and Outcome: (i) The Tribunal decided not to review the EPOA finding that there is no basis on which to conduct a review. In the application, QXJ did not assert that the EPOA was invalid, or that KXD’s finances have been mismanaged by her attorneys. QXJ focused on the fact that KXD had moved from her own home, where he said he lived, and suggested that his relationship and communication with KXD had been “compromised” ([24]). QXJ also expressed general concern about what he saw as TYD’s “aggressive manner” towards KXD. This concern was unsupported by KXD’s evidence at hearing in which she indicated that she was happy to live with her sister and for her sisters to continue looking after her money ([25]).
(ii) The Tribunal found that it would not be in KXD’s best interests to revoke the appointment of any or all of the appointed enduring guardians under the EGA ([66]-[70], [78]). Both QXJ and the separate representative for KXD raised proposals that a guardianship order be made. In order to consider these proposals, the Tribunal decided to deal with the application for review of the EGA as if an application for a guardianship order had been made: s 6K of the Guardianship Act ([80]).
(iii) The Tribunal considered QXJ’s proposal that he be appointed as KXD’s guardian. QXJ claimed that he made the application for review of the EGA to “protect the interests of KXD in relation to her welfare, accommodation and liberty”. The Tribunal could not be satisfied that there is no undue conflict between QXJ’s interests (particularly his financial interests) and those of KXD. This is especially so where there is a continuing legal dispute about QXJ’s occupancy and interest in KXD’s property ([92]).
(iv) The separate representative for KXD proposed that the Tribunal make a short-term guardianship order for the sole purpose of imposing a condition akin, but broader than, the condition in the EPOA, which would give QXJ “something akin to a voice” and “keep the parties honest” and that this could be monitored by the Tribunal at the end of term review ([81]). The Tribunal noted that there is already a provision in the EPOA expressing KXD’s “wish/desire/expectation” that QXJ should be included in “discussions” regarding her welfare and wellbeing, albeit that discussions between TYD and QXJ had ceased when he chose to direct all correspondence to his solicitor ([96]). The Tribunal also noted that the inclusion of the “special condition” would require the involvement of QXJ as a decision-maker, despite the fact that he was not appointed by KXD as an enduring guardian ([97]). The Tribunal was not satisfied that the making of a guardianship order subject to such a condition would be in KXD’s best interests or consistent with KXD’s welfare ([97]).
(v) The Tribunal noted that there was no suggestion that there is a need for any functions not already conferred on the enduring guardians by the EGA ([90]). As it was not satisfied that a guardianship order should be made, the Tribunal dismissed the application. | S Barnes, Senior Member (Legal), M J Staples, Senior Member (Professional), P J McGirr, General Member (Community) – 20 July 2022
In sum: The Tribunal made guardianship and financial management orders in respect of a 17-year-old subject person, under the care of the NSW Minister for Families, Communities and Disability Services. The order is to take effect when the subject person turns 18.
Facts: The subject person (GKC) is 17 years old. GKC has been diagnosed with Autism Spectrum Disorder, with associated selective mutism and avoidant restrictive food intake disorder. Between July 2018 and February 2019, the Children’s Court made several interim care orders allocating parental responsibility for GKC to the NSW Minister for Families, Communities and Disability Services (the Minister). On 3 April 2020 the President of the Children’s Court made final orders under s 79(1)(b) of the Children and Young Persons (Care and Protection) Act 1988 (NSW) (the Care Act) allocating all aspects of parental responsibility for GKC to the Minister until GKC turns 18. GKC’s mother (the Mother) attempted to have the orders set aside on appeal to the Supreme Court of NSW and the NSW Court of Appeal. The history of the court proceedings in relation to the care orders are summarised by the Tribunal at paragraphs [22]-[26].
GKC has been living in a residential placement managed by a disability service provider since mid-2020. GKC’s parents are reported to be separated or divorced. His mother lives in regional NSW and his father lives in Queensland.
Four months before GKC’s eighteenth birthday, a caseworker with the NSW Department of Communities and Justice (DCJ) made an application to the Tribunal seeking guardianship and financial management orders to be made in respect of GKC. The caseworker proposed the appointment of the Public Guardian as guardian and the NSW Trustee and Guardian as financial manager for GKC.
The Tribunal made several pre-hearing directions and orders. The Tribunal refused a request by each of GKC’s parents to be joined as a party to the proceedings. However, both GKC’s parents participated in the hearing as witnesses and gave oral evidence in the proceedings.
The Mother sought the dismissal of the proceedings under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on the grounds that she had sought recission of the Children’s Court orders and had commenced proceedings in the Supreme Court to have GKC returned to her care.
Issues and outcome: (i) Under s 15 of the Guardianship Act 1987 (NSW), the Tribunal does not have jurisdiction to make a guardianship order in respect of a person who is the subject of an order made by the Children’s Court under s 79A of the Care Act ([28]). The Tribunal was satisfied that the restriction in s 15 of the Guardianship Act did not apply in this case because the Children’s Court did not make an order in respect of GKC under s 79A of the Care Act ([32]). In any event, as the applicant did not seek any orders which would be in effect before GKC turns 18, any orders made by the Tribunal would not conflict with the parental responsibility orders under the Care Act. In addition, the Tribunal’s jurisdiction would not be affected even if the mother was to succeed in her application for recission of the care orders, which are only in effect until GKC turns 18 ([29], [30], [32]).
(ii) In so far as the Mother sought dismissal of the proceedings on the grounds that she had commenced proceedings in the Supreme Court, there is nothing in the Guardianship Act that limits the power of the Supreme Court to make orders in its parens patriae jurisdiction, in respect to the guardianship of persons. The Tribunal noted that if the Supreme Court did make an order appointing a guardian for GKC which was to operate after he turned 18, the Tribunal’s order would be suspended while any such Supreme Court order was in effect ([34]). The Tribunal was satisfied that it was in GKC’s best interests that the hearing of the applications for guardianship and financial management orders should proceed on the date appointed ([37]). The Tribunal is a proper forum in which to seek guardianship and financial management orders to take effect when GKC turns 18 ([40]).
(iii) In deciding whether to make a guardianship order, the Tribunal took into consideration the views of GKC and the Mother. GKC believed that he could make decisions for himself regarding important personal matters such as where he would live after he turned 18. He indicated that he wanted to live alone, and not in shared accommodation, although he did not appear to reject the need for future in-home carers ([54]-[55]). The Mother did not think that GKC needed a guardian and appeared to be of the view that GKC did not need assistance to manage in the community ([56]). However, the Tribunal preferred the evidence given by GKC’s treating doctor, psychiatrist, and other allied health professionals responsible for GKC’s care (summarised at paragraphs [60]-[84]). The consistent evidence was that GKC has severe autism and is unable to live independently ([85]¬). All the other witnesses at the hearing commented that “GKC has impaired-decision making capacity and requires supervision in the community and/or services to help him function normally in community with others” ([87]). On the basis of this evidence, the Tribunal found that GKC is a person for whom the Tribunal could make a guardianship order because he is “partially incapable of managing his person and needs supervision or assistance to function in society” ([94]).
(iv) The Tribunal was satisfied that it would be in GKC’s interests and consistent with his welfare for a guardian to be appointed with accommodation, services, health care, and medical and dental consent functions. The Tribunal was not satisfied that the Mother was a suitable person to be appointed as GKC’s guardian because of a conflict between her personal interests and those of GKC. For example, the Mother’s insistence that GKC should live with her. The Mother showed no insight or ability to make decisions objectively and did not explain how she would act to avoid the conflict between her wishes and those expressed by GKC ([126]). The Tribunal was not satisfied that GKC’s father could be appointed guardian for GKC. The father gave clear evidence that he would not have regard to the views or wishes of the mother. The Tribunal found that if the father were to be appointed as guardian, the prospect of ongoing disputation between GKC’s parents interfering with decision making in relation to his access to needed services would not be in GKC’s interests and could potentially damage GKC’s important ongoing relationship with his father ([130]-[132]). As there was no private guardian suitable to be appointed, the Tribunal appointed the Public Guardian for a period of 12 months ([133]).
(v) The Tribunal decided to make a financial management order in respect of GKC. Whilst GKC said that he wanted to “stay in control” of his money, he was unaware of how the cost of his accommodation would be met after he leaves the care of the Minister and seemed to rely only on the fact that he had accumulated savings that he could access to meet his future needs ([143]-[144]). The Mother was of the view that with the support of his family (other than his father), GKC was capable of managing his financial and legal affairs ([148]). However, the evidence given by support workers and GKC’s father was that GKC was not capable of managing his financial affairs independently ([145]-[147],[149]-[155]). The Tribunal found that GKC lacks very basic money management skills. In so far that GKC manages his money, he does so with extensive support from service providers in circumstances where his basic needs are met by DCJ. As this support will cease once GKC turns 18, the Tribunal could not be satisfied that GKC is reasonably capable of managing his financial affairs in a reasonably competent manner without the intervention of a financial manager charged with protecting his welfare and interests ([157]).
(vi) The Tribunal considered the proposals by GKC’s mother and father that they each be appointed as GKC’s financial manager. However, in the context of family conflict and disagreement, the Tribunal was satisfied that it was in GKC’s interests to appoint an impartial third party as financial manager, rather than any member of GKC’s family ([165]-[168]). The Tribunal decided to make the financial management order reviewable in two years. As submitted by the applicant, this would allow for the possibility that if GKC is able to undertake some budget and financial management training, he may acquire and demonstrate some financial management skills, at least in relation to managing his disability support pension ([170]).
Reviews of enduring powers of attorney following the death of the principal From time to time, the Tribunal receives applications for the review of enduring power of attorney instruments after the death of the principal. This section of the Case Digest provides summaries of recent decisions of the Tribunal on this subject.
When determining these applications, the Tribunal has applied the following principles:
• The death of the principal terminates an enduring power of attorney (EPOA) (UQH [2014] NSWCATGD 37 at [17]). However, the Powers of Attorney Act 2003 (NSW) (POA Act) does not prevent the Tribunal from reviewing an EPOA after the principal has died (KFE [2021] NSWCATGD 42 at [12]).
• Under s 36(4) of the POA Act, the Tribunal may make 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 the principal to do so or that it would better reflect the wishes of the principal.
• Whilst the Tribunal is unable to act in the welfare or best interests of a deceased principal, it can make orders if satisfied that the order/s would better reflect the principal’s wishes prior to their death (UQH at [43]-[44]).
• When exercising the discretion as to whether or not to conduct a review of the EPOA, the Tribunal should have regard to the purpose and utility of the review, as well as the guiding principle under s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) to facilitate the just, quick and cheap resolution of the real issues in the proceedings (KFE [2021] NSWCATGD 42 at [59]; HKE [2021] NSWCATGD 43 at [40](1)). | L Organ, Senior Member (Legal), Dr J Law, Senior Member (Professional), S Johnston, General Member (Community) – 6 July 2022
In sum: The Tribunal received an application to review an enduring power of attorney after the death of the principal. The Tribunal conducted a review of the EPOA but decided not to make any orders under s 36(4) of the Powers of Attorney Act 2003 (NSW) (POA Act), finding that there is no clear justification for the orders sought by the applicant and no utility in making any orders.
Facts: In 2017, the late KNE executed an enduring guardianship appointment (EGA) and an enduring power of attorney (EPOA) appointing two of her sons, EDN and OKN, as her guardians and attorneys (the 2017 instruments). In 2021, KNE revoked the appointment of OKN as her enduring guardian and attorney. She also made another EPOA and EGA appointing EDN and her other son, NTN as her attorneys and enduring guardians (the 2021 EPOA).
In 2022, after the death of KNE, OKN made an application to review the 2021 EPOA. OKN alleged that his mother was “coerced” into revoking the 2017 instruments and that EDN and NTN had put pressure on their mother at the time. OKN alleged that his mother’s home, which had in previous wills been left solely to him, was also offered to KNE’s other children to purchase, purportedly to “mitigate the potential of the contesting of [KNE’s] last will and testament due to her changing this from previous wills which left the property solely to OKN” ([12](iii)). In addition, OKN alleged that the attorneys exposed their mother’s estate to unnecessary costs due to contractual agreements entered into unwisely just prior to their mother’s death.
Issues and Outcome: (i) The Tribunal is empowered to review the 2021 EPOA executed by KNE. In UQH [2014] NSWCATGD 37, the Tribunal held that it has jurisdiction to review an EPOA under the POA Act, even if the principal has passed away prior to the hearing. In that case, the Tribunal found that, given the nature of relief under s 36(4) of the POA Act, the Tribunal could only make orders that would have practical utility. In addition, it could only make orders under s 36(4) if it was satisfied about the threshold matters required to enliven the jurisdiction. The Tribunal could make an order under this section if it was satisfied that the order would better reflect the principal’s wishes prior to their death ([17]-[19]).
(ii) The Tribunal noted that a principal who made a POA would wish authority under that power to be exercised appropriately. It would better reflect the wishes of the principal for their assets, and ultimately their estate, not to be dissipated or transferred for the benefit of the attorney or another. A principal who executes a will setting out their wishes as to how their estate is to be distributed would have an interest in ensuring their wishes could be given effect and not circumvented by the dissipation of their assets before their death, other than for their own benefit ([20]-[21]). On this basis, the Tribunal decided to conduct a review of the EPOA.
(iii) The Tribunal found that on its face, the 2021 instrument executed by KNE was validly made. There is a presumption that a principal has capacity to make the appointment unless that presumption is displaced by cogent and compelling evidence. There was no evidence that KNE did not have capacity or was coerced into signing the 2021 EPOA. The instrument was properly accompanied by a certificate under s 19 of the POA Act, indicating that a solicitor had explained the effect of the instrument to KNE and was satisfied that she appeared to understand the nature and effect of the instrument. The instrument was also signed by the two attorneys, taking effect on the same date ([23](i)).
(iv) The Tribunal found that there was a lack of evidence indicating financial mismanagement or maladministration by either attorney ([23](ii)). In addition, there was no compelling evidence that KNE’s property was exposed to unnecessary costs or sold at an undervalue by the attorneys ([23](iv)). Further, the Tribunal considered that any disputes about the terms of KNE’s will or actions of other executors of the estate are not matters for the Tribunal and are within the jurisdiction of the Supreme Court ([23](v)). Therefore, the Tribunal decided that there is no practical utility in conducting a full review of the EPOA and dismissed the application. | J Moir, Senior Member (Legal), Dr M Jarrett, Senior Member (Professional), K J McIvor, General Member (Community) – 26 May 2021
In sum: The Tribunal received an application for the review of an enduring power of attorney (EPOA), after the principal had died. The Tribunal decided not to conduct a review of the EPOA, finding that there was no utility in making any orders because of the lack of evidence to indicate the mismanagement of the principal’s funds by the attorney.
Facts: In 2000, KFE appointed her son and daughter as her attorneys under an EPOA. In 2010 she revoked the appointment made in 2000 and appointed her daughter as her attorney and her son-in-law as her substitute attorney. This instrument remained in place until KFE died in 2017. The administration of KFE’s estate has been the subject of two proceedings in the Supreme Court, initiated by the son.
In 2021, the son applied to the Tribunal for a review of the EPOA made in 2010. The son raised concerns about the daughter’s actions as attorney. The son sought an order compelling the daughter to give him financial documentation relating to KFE’s affairs, asserting that there is around $50,000 of transactions on KFE’s account that she should account for during the time that she was acting as attorney. The son initially raised concerns about the validity of the EPOA, but this was not pursued at the hearing. The issue of KFE’s financial capability had already been considered by the Tribunal in a previous application for a financial management order, which was dismissed.
Issues and Outcome: (i) The son has standing to make the application under s 35 of the Powers of Attorney Act 2003 (NSW) (POA Act) as an “interested person”. In making that application, the son had relied on a “Fact Sheet” produced in 2014 by Land and Property Information, a division of the NSW Department of Finance and Services, which broadly states that “anyone interested in the [principal’s] affairs” can require the attorney to produce proper accounts and records. Though that information is incorrect, the Tribunal was satisfied that the son is operating, at least in part, because of a genuine belief that he has a legitimate interest in ensuring that his late mother’s affairs were properly managed ([18], [42]).
(ii) The death of a principal terminates an EPOA. However, the POA Act does not prevent the Tribunal from reviewing an EPOA after the death of the principal ([12]). Most orders the Tribunal may make under s 36 of the POA Act, including revoking the instrument, removing an attorney, and changing the terms of the powers, are irrelevant once the instrument is no longer in effect. However, the Tribunal may make orders directing the attorney to furnish accounts to the Tribunal, and to lodge a copy of all records and accounts of dealings with transactions made under the power ([17]).
(iii) The Tribunal found that the financial records produced by the daughter in evidence are detailed and the expenses appear reasonable. The evidence did not indicate any abuse of the daughter’s authority as attorney, particularly given that her mother continued to play a significant part in her own financial decisions for much of the period. As there was no basis for concern that the attorney was not acting in KFE’s financial interests, the Tribunal found that there would be no useful purpose in conducting a review ([54]).
(iv) Under s 36(2) of the POA Act, the Tribunal may make 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 the principal, or if it would “better reflect the wishes of the principal”. It is not possible to make an order in the “best interests” of the principal, after the principal had died. Therefore, the basis for the exercise of the Tribunal’s discretion is whether orders would “better reflect” the principal’s wishes ([16]). The Tribunal found that there is compelling evidence that KFE did not want the son to be involved in her financial affairs, and an order giving him access to information about KFE’s financial affairs would not “better reflect her wishes” ([56]-[58]). The decision not to conduct a review of the EPOA is consistent with s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” ([59]). | R H Booby, Senior Member (Legal); S Flanagan, Senior Member (Professional); I Ferreira, General Member (Community) – 1 July 2021
In sum: The Tribunal received an application to review two enduring powers of attorney instruments (EPOAs). The application was received whilst the principal was still alive. However, the principal died before the hearing date. The Tribunal decided not to conduct a review of the EPOAs, finding that there was no utility in making an order under the Powers of Attorney Act 2003 (NSW) (POA Act) as disputes about the estate of a deceased person fall within the jurisdiction of the Supreme Court, and not the Tribunal.
Facts: In 2013 HKE made an EPOA appointing his son GZK as his attorney (the 2013 EPOA). In 2016 HKE made an EPOA appointing his other son, BAK, as his attorney (the 2016 EPOA). In 2019 HKE revoked the 2016 EPOA and again appointed GZK as his attorney under a new EPOA instrument (the 2019 EPOA).
In August 2020 BAK made an application to the Tribunal for review of the 2013 EPOA and 2019 EPOA. BAK alleged that there had been a number of dealings with HKE’s estate from which GZK has benefited, at the expense of HKE. These allegations include that GZK used HKE’s funds for the maintenance of his own beach house, redirected rental income from HKE’s properties to himself, transferred funds to himself, and made a number of unexplained cash withdrawals from HKE’s bank accounts. These allegations were refuted by GZK.
HKE died before the Tribunal hearing. As the EPOAs terminated on the death of HKE, the parties agreed that there would be no utility in seeking an order to review the making of the instruments. The hearing focussed instead on the issue of whether the Tribunal should conduct a review of the operation and effect of the EPOAs.
Issues and Outcome: (i) On the death of a principal, the Tribunal may review the operation and effect of an EPOA and make orders under s 36(4)(e) of the POA Act if to do so would reflect the wishes of the principal prior to his or her death ([33]). The Tribunal is unable to act in in accordance with the best interests or welfare of a deceased principal (UQH [2014] NSWCATGD 37; KBX [2015] NSWCATGD 2; DPT [2015] NSWCATGD 3).
(ii) The Tribunal considered the evidence presented by GZK and BAK, including that it was HKE’s practice to gift large sums of money from his estate to his children and that he would not have wished for a close accounting of his affairs that was for the purpose of investigating such gifts. However, HKE would have benefited from increased levels of care prior to his death and that due to the depletion of his assets he could not afford that care. The Tribunal found that if it were to embark on a review of the operation and effect of the EPOAs, it might be possible to ascertain with greater certainty, whether it would be in accordance with HKE’s wishes for an order to be made under s 36(4)(e) of the POA Act ([37], [38], [40]).
(iii) However, the Tribunal decided that even if HKE would have wanted an order to be made under s 36(4)(e), there is no utility in making an order. In DPT [2015] NSWCATGD 3, the Tribunal decided not to make an order even though the evidence showed that the attorneys had taken benefits from the estate, because it is the duty of the executor(s) of the estate to take steps to recover moneys owing to the estate ([39]).
(iv) The Tribunal noted the shift in the purpose of an application to review an EPOA after the principal has died. When HKE was alive, the real issue before the Tribunal was the administration of his estate under the EPOAs. However, now that HKE’s estate is that of a deceased person, any concerns about the depletion of that estate are matters to be addressed in an appropriate jurisdiction, such as the Supreme Court ([40](2)).
(v) Further, even if the Tribunal makes orders under s 36(8)(b) of the POA Act for inquiry and report on the conduct of the attorney, such an order would not remedy any deficiency in the management of HKE’s estate when he was alive ([40](5)). In deciding not to conduct a review, the Tribunal had regard to s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) to “facilitate the just, quick and cheap resolution of the real issues in the proceedings” ([40](7)).
Procedures in the Tribunal The Tribunal often makes procedural decisions in the course of determining substantive applications. This section of the Case Digest provides summaries of recent decisions made in the Tribunal in relation to summonses, costs, and the conduct of hearings in the absence of the subject person.
• Summonses – In GJQ [2023] NSWCATGD 1 the Tribunal set out the common law principles followed by the Tribunal in relation to summonses. According to those principles, the materials requested under a summons must have “sufficient apparent connection” to the issues in the proceedings. The decision in MXC [2023] NSWCATGD 8 demonstrates how the Tribunal balances considerations of the subject person’s welfare, interests, and privacy, against the relevance of the documents sought to the issues in the proceedings.
• Costs – The starting point in s 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW) is that each party is to pay its own costs. Despite this rule, s 60(2) of that Act gives the Tribunal discretion to award costs where it is satisfied that there are “special circumstances” that warrant an award of costs. In KHT [2023] NSWCATGD 4, the Tribunal considered whether to award costs arising out of an application for a financial management order. The Tribunal dismissed the costs application, finding that there were no “special circumstances” which warrant a costs order being made. A summary of a decision by the Appeal Panel about costs is also contained under the Appeal Panel Decisions of this Case Digest. See ZXJ v ZXK [2022] NSWCATAP 371.
• Procedural fairness - The Tribunal must afford procedural fairness to all parties to proceedings. This includes a requirement to give the parties adequate notice of a hearing and an opportunity to participate in a hearing. In addition, the Tribunal must consider the views of the subject person. However, procedural fairness requirements must be balanced against the Tribunal’s duty to give paramount consideration to the welfare and interests of the subject person: s 4 of the Guardianship Act. In SGX [2023] NSWCATGD 6, the Tribunal decided to proceed to conduct a hearing in the absence of the subject person, and to make short-term reviewable guardianship and financial management orders. | A Britton, Deputy President – 8 March 2023
In sum: The Tribunal heard an application to refuse access to material provided under a summons to the other parties in the proceedings. The Tribunal refused the application and decided to grant access to all parties, finding that the Summons material had a “sufficient apparent connection” to the issues in the proceedings.
Facts: The Sydney Local Health District (SLHD) made applications to the Tribunal for guardianship and financial management orders in respect of GJQ (the subject person) who was an inpatient at a public hospital. Employees of the SLHD had recorded concerns that GJQ may be the subject of elder abuse and/or financial exploitation. The SLHD requested the Tribunal to issue a summons to a bank for the production of GJQ’s bank records to the Tribunal. It was submitted that these records were relevant to the Tribunal’s determination of two factual issues. Firstly, the records would indicate whether GJQ’s financial affairs are being properly managed. Secondly, the presence of any unusual transactions may indicate whether GJQ has been the subject of financial abuse.
The Tribunal issued the summons at the request of the SLHD, and the bank subsequently produced the records to the Tribunal (the Summons material). Solicitors acting on behalf of GJQ filed written submissions opposing access to the Summons material being given to any party except GJQ.
Issues and outcome: (i) In exercising the power to make decisions about the issue and setting aside of summonses and refusal to permit access to documents produced under summons, NCAT and its predecessor Tribunals have consistently applied the common law principles developed in respect of subpoenas ([17]). In Colombini v De Berigny [2021] NSWSC 374, Ward CJ in Eq explained at [126] that it must be shown (by reference to the particular case or issue) that there is a legitimate forensic purpose for the issue of a subpoena. Her Honour stated at [127] that a subpoena will be presumed to have been issued for a legitimate forensic purpose if the documents sought have a “sufficient apparent connection to justify their production or inspection”. Further, her Honour stated at [128] that where there is no legitimate forensic purpose for the issue of a subpoena, then it may readily be seen to be a “fishing expedition” ([18]).
(ii) Accordingly, the question to be decided by the Tribunal is whether the Summons material has “sufficient apparent connection” to the issues in the proceedings to justify access being given to the SLHD and the other parties. The authorities make clear that the SLHD does not need to establish that the produced documents will definitely advance its case in respect of the identified issues or be admissible in evidence. The issue to be decided is whether there is apparent relevance between the produced material and the identified issues ([26], [35]).
(iii) The identified issues in the application include: whether the Subject Person is not capable of managing his financial affairs, whether there is a need for another person to manage those affairs on behalf of the Subject Person, whether it is in the Subject Person’s best interests that a financial management order be made, and whether the Subject Person is, or has been, subject to financial exploitation by another person ([34]).
(iv) The Tribunal found that it cannot be reasonably argued that the produced material fails to meet the “relatively low threshold of relevance”: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [71] (Per Bell P) ([36]). The Tribunal was satisfied that it is likely that the Summons material will have apparent relevance to the issue of whether GJQ is capable of managing his finances ([37]). In addition, although there is no direct evidence supporting the allegation that GJQ is, or has been, subject to financial exploitation by the Carer, it cannot be said that there is no “reasonable basis beyond speculation” that the produced material will materially assist to establish the likelihood of the truth of those reports ([39]). The Tribunal decided to grant access to the Summons material, concluding that that material had apparent relevance to the identified issues, and that there is a legitimate forensic purpose in issuing the summons and granting access to the produced material ([41]). | J D’Arcy, Senior Member (Legal) – 11 May 2023
In sum: The Tribunal heard an application to issue three summonses, and decided to only issue two of those summonses after the schedules had been amended to limit the scope of the requests. In making this decision, the Tribunal balanced the privacy, welfare and best interests of the subject person, against the relevance of the material sought to the issues in the proceedings arising out of an application for a financial management order.
Facts: MXC is a 72-year-old woman who is reported to have a diagnosis of dementia. MXC has a son and two daughters, TBD and DZC. In June 2018 MXC made an enduring power of attorney (EPOA) and an enduring guardianship appointment (EGA), appointing TBD as her attorney and enduring guardian. In February 2023, DZC applied for a review of those appointments.
DZC’s agent, Mr Singh, submitted applications to the Tribunal to issue three summonses for the production of documents. The summonses were addressed to MXC’s treating doctor, Dr Z, The Proper Officer of a NSW Government agency, and to The Proper Officer of a commercial bank. The summonses called for a very wide range of documents to be produced to the Tribunal, including medical documents dated six months before the EPOA and EGA were executed. The summons to The Proper Officer of a NSW Government Agency called for a range of documents concerning the cancellation of MXC’s driver’s license in June 2017, including correspondence received by the agency from MXC’s treating doctor regarding MXC’s ability to drive. The schedules to the summonses are set out in the Tribunal’s decision at paragraph [6].
Mr Singh applied to the Tribunal for a review of the registrar’s decision not to issue the summonses based on the broad nature of the schedules and the apparent lack of relevance to the issues in dispute to be determined by the Tribunal ([7]).
Issues and outcome: (i) Under s 48(1) of the Civil and Administrative Tribunal Act 2013 (NCAT Act), the Registrar has the power to issue a summons on the application of the party to the proceedings or at the direction of the Tribunal. The rules for the issue of a summons are contained in r 34 of the Civil and Administrative Tribunal Rules 2014. Where the registrar decides not to issue a summons, a party can apply to the Tribunal to decide whether a summons should or should not be issued ([8],[10]).
(ii) When considering applications for summonses made to the Guardianship Division of NCAT, the Tribunal must apply the principles in s 4 of the Guardianship Act 1987 (NSW). The Tribunal must balance the welfare, best interests and privacy of the subject person, against the request for information to facilitate the hearing ([9], [17]). The relevant issue in the applications before the Tribunal concerned MXC’s cognitive capacity at the time that she signed the EPOA and EGA ([18]).
(iii) The Tribunal decided to approve the issues of the summonses to Dr Z and to The Proper Officer of the commercial bank, after the schedules had been amended. In relation to the summons to Dr Z, the Tribunal limited the scope of the schedule to “clinical notes on [MXC]’s cognitive and decision-making capacity from 28 June 2018 to 30 March 2023” ([13]). The Tribunal noted that the amended schedule captures the required information about MXC’s cognitive capacity from the date she executed the EPOA and EGA ([19]).
(iv) In relation to the summons to The Proper Officer of the commercial bank, the Tribunal limited the scope of the schedule to “copies of bank statements for all accounts in the name of [MXC] in her sole name or held jointly with another or other parties from 28 June 2018 to 30 March 2023” ([13]). The Tribunal noted that the amended schedule effectively covers all of the information required to determine whether the attorney has operated under the EPOA in MXC’s best interests, and includes all accounts held by MXC both solely and jointly with others ([20]).
(v) In order to protect MXC’s privacy, the Tribunal did not approve the issue of a summons to The Proper Officer of a NSW Government agency about the reason for cancellation of MXC’s licence. The Tribunal noted that the requisite information about MXC’s cognitive capacity is sufficiently covered by the amended schedule of the summons to be issued to Dr Z, who is best placed to provide the medical evidence ([21]). | A R Boxall, Senior Member (Legal) – 11 April 2023
In sum: The Tribunal dismissed an application for costs arising out of proceedings in relation to an application for a financial management order. The Tribunal found that there were no “special circumstances” which warranted a departure from the general principle that parties are to pay their own costs.
Facts: The applicant made a costs application seeking an order that her legal costs incurred in preparing and bringing the financial management application relating to her mother, KHT, be paid on an indemnity basis out of KHT’s estate. The total cost amounted to $19,301.07.
The applicant submitted that she was required to seek independent legal advice and representation to bring an application to the Tribunal for financial management in respect of her mother, because of her late father’s neglect or refusal to discharge his responsibility as his wife’s main carer and person responsible. The applicant claimed that her late father failed to make financial arrangements for her mother’s permanent accommodation in an aged care facility, did not arrange for her mother’s income and assets to be assessed (thus exposing her to higher accommodation costs than what otherwise might have been the case) and did not ensure payment in full of her mother’s monthly care fees ([35]).
Issues and outcome: (i) The general rule in s 60(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) is that parties before the Tribunal are responsible for their own costs. This general rule is modified by s 60(2) of the NCAT Act which provides that the Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs ([23]-[24]).
(ii) The Tribunal noted that s 60(3) of the NCAT Act provides guidance on the factors that may be considered by the Tribunal in deciding whether there are special circumstances, “without fettering its ability to consider all matters that appear relevant”. The Tribunal also noted that the list “merely indicates factors that may be considered in deciding whether there are special circumstances”. The presence of one or more of these factors does not necessarily mean that a costs order must be made ([25]).
(iii) The Tribunal found that KHT’s circumstances during the months before the making of a financial management order do not of themselves amount to special circumstances for the purpose of s 60(2) of the NCAT Act. The Tribunal noted that it is not unusual for the Tribunal to hear applications for financial management orders in similar circumstances, where a spouse has failed – whether through incapacity, malice, neglect, unwillingness, or death – to make adequate arrangements to ensure the care of the other spouse who happens to be incapable of addressing his or her own needs ([35]).
(iv) The Tribunal found that “none of the specific considerations set out in paragraphs (a)-(d) or (f) of s 60(3) of the NCAT Act, as potential indicators of special circumstances, was enlivened in relation to the financial management application”. The Tribunal observed that “[t]hose paragraphs share a common broad theme, of a costs order being made against a party in circumstances where that party’s conduct of or approach to the proceedings is less than observant of the guiding principle in s 36 of the NCAT Act”. No such criticism could reasonably be directed towards the other parties in the proceedings ([37]).
(v) In addition, the Tribunal stated that “[p]aragraph (e) of s 60(3) of the NCAT Act, which refers to the nature and complexity of the proceedings, must also be considered”. However, the Tribunal found that the proceeding, which focused on the reasonableness and appropriateness of making a financial management order for KHT, was not particularly complex, despite the complexity of KHT’s financial situation. They clearly indicate matters that the financial manager, once appointed, should investigate further ([38]).
(vi) The fact that a party incurs costs as a result of representation does not amount to a special circumstance under s 60(2) of the NCAT Act. It does not follow that because the Tribunal had exercised its discretion under s 45(1) of the NCAT Act to allow the applicant to be represented in the proceedings, that the applicant’s legal costs will be imposed on the estate of the person whom the application concerns ([41]). | A R Boxall, Senior Member (Legal) – 19 April 2023
In sum: The Tribunal decided to make guardianship and financial management orders in respect of the subject person, despite the fact that none of the parties, except for the Public Guardian, participated in the hearing. This course of action was taken due to the risk to the subject person of homelessness and financial exploitation.
Facts: SGX is a 61-year-old man of Aboriginal heritage. SGX has an intellectual disability and is a participant in the National Disability Insurance Scheme (NDIS). He is reported to be living in a rented unit in regional NSW. On 9 November 2022, the Tribunal made a guardianship order in respect of SGX appointing the Public Guardian as SGX’s guardian for a period of six months to make decisions about his accommodation, health care and services.
On 6 April 2023, the Public Guardian made an application to the Tribunal for a financial management order to be made in respect of SGX. On 19 April 2023 the Tribunal held a hearing to consider that application and to conduct an end of term review of the guardianship order. SGX did not attend the hearing and was unable to be contacted by telephone. In addition, neither of the two disability care providers which provided care to SGX could tell the Tribunal where SGX was or to provide alternate contact details.
Mr Yakenian, a solicitor, claiming to have been instructed the previous evening by SGX, arrived at the Tribunal after the hearing had started. The Tribunal allowed Mr Yakenian to represent SGX at the hearing, noting that any future representations required a grant of leave. Mr X, who claimed to be a representative of SGX’s care providers, appeared at the Tribunal briefly but departed before the hearing started. Mr Z who claimed to be an associate of the care provider, could not be contacted.
Mr Yakenian requested that the hearing be adjourned. However, the Tribunal decided not to adjourn the hearing. Despite the absences of all parties, except for the Public Guardian, the Tribunal decided to proceed with the hearing without further delay. The Tribunal noted that the decision to proceed with the hearing is consistent with the Tribunal’s obligations under s 4 of the Guardianship Act 1987 (NSW), and that any concerns could be minimised by limiting the duration and extent of the orders.
Issues and outcome: (i) In its report, the Public Guardian recommended that the guardianship order be renewed for a further two years. Amongst the numerous issues raised, it was reported that due to concerns about the quality of care provided by a previous service provider, the Public Guardian made arrangements with another service provider to move SGX to other accommodation. However, those arrangements broke down because the service provided encountered difficulties in finding SGX. As a result, SGX is at risk of homelessness or may possibly already be homeless. In addition, the Public Guardian raised concerns that SGX’s disability service providers have charged disproportionately large amounts to his NDIS package over a short period, purportedly in connection with the provision of emergency accommodation ([21]).
(ii) As there was no participation by any representative of either the disability service provider or disability care provider, the Tribunal did not have the opportunity to obtain their views. Despite this, the Tribunal considered that, having regard to its paramount duty to look to SGX’s interests and welfare, it should renew the guardianship order for SGX with the functions of advocacy, accommodation (with the power to authorise others to bring accommodation decisions into effect), health care, services and legal services ([22]).
(iii) In relation to the financial management application, the Tribunal considered evidence including an Occupational Therapy Functional Assessment report concerning SGX, a Behaviour Support Plan for SGX, and SGX’s own reports to the Public Guardian. The Tribunal noted that this evidence indicates that “SGX’s ability to manage his financial affairs prudently and successfully is compromised, that he is to some degree dependent on others to do so for him, and that he is thus – in part at least – incapable of managing his affairs” ([32]).
(iv) The absence of all other parties, other than the Public Guardian, meant that the Tribunal could only rely on evidence given by Ms V, representative for the Public Guardian. Nevertheless, the Tribunal noted that the evidence from the Public Guardian, “indicates that, at the very least, SGX is vulnerable to the risk of financial exploitation and there is no countervailing evidence to indicate that there are any effective structures or efforts directed at mitigating that risk” ([34]). In addition, the Tribunal found that there is a need for someone to manage SGX’s affairs, and it is in the best interests of SGX that a financial management order be made. As there was no private candidate available to act as financial manager, the Tribunal committed the management of SGX’s estate to the NSW Trustee and Guardian, to be reviewed in six months. Noting the failure of any party to participate in the hearing, other than the Public Guardian, the Tribunal decided that it was not appropriate to make a lengthy order ([35]-[39]). | | NCAT Appeal Panel | A Britton, Deputy President; L Organ, Senior Member; F Given, Community Member – 6 July 2023
In sum: The Appeal Panel dismissed an appeal against the decision of the Tribunal, finding that there was no error of law in the Tribunal’s exercise of its discretion to revoke an enduring power of attorney and to make guardianship and financial management orders appointing the Public Guardian and the NSW Trustee and Guardian as the Subject Person’s guardian and financial manager.
In exercising its discretion to make orders under s 36(4) of the Powers of Attorney Act 2003, the Tribunal is not confined to considering the past or present actions of an attorney. The Tribunal is entitled, in all the circumstances of the case, to assess the likelihood of an attorney, in future, using an enduring power of attorney in a manner inconsistent with the duties owed by an attorney to the principal.
Facts: In May 2018, now 91-year-old YCS (the Mother) executed an enduring power of attorney (EPOA) appointing one of her daughters (the Daughter) as her attorney. On the same day, she executed an appointment of enduring guardianship (EGA) appointing the Daughter and the Daughter’s husband jointly and severally as her enduring guardians (the 2018 instruments).
On 14 March 2022, the Mother revoked the 2018 instruments, and made a new EPOA and EGA appointing her son (the Son) and Daughter-in-Law as her attorneys and guardians (the 2022 instruments).
In May 2022, the Daughter applied to the Tribunal, seeking review of the operation and effect of the 2022 instruments. The Daughter claimed that the Mother did not have the requisite capacity to make the 2022 instruments, and that the Son and Daughter-in-Law are not acting in the best financial interests of the Mother.
The high level of conflict between the Daughter and the Son was apparent throughout the proceedings before the Tribunal, with each making allegations against the other. The allegations made by the Son include that the Daughter neglected the mother over the last 20 years and had stolen $238,000 from the Mother. The Son stated that he will commence legal action to recover the money alleged to have been solen by the Daughter.
The Tribunal decided to revoke the 2022 instruments, and to exercise the discretion to make a guardianship order, appointing the Public Guardian as the Mother’s guardian. The Tribunal was not satisfied that the Son or Daughter-in-law were able to act as guardians “because the conflict within the family would prevent them from being able to make decisions” ([23]). The Tribunal also made a financial management order committing the management of the Mother’s estate to the NSW Trustee and Guardian. The Tribunal decided that it would not be in the Mother’s interests to appoint the Son and Daughter-in-law as her financial managers on the basis of concerns about the Son’s judgment, influence and conflict of interest with the Mother ([28]).
In reaching these conclusions, the Tribunal made several factual findings, which were adverse to the Son. This included that “the Son is unable to separate his mother’s interests from his own interests in punishing his sister” and that if he were to continue to act as attorney, the Son “may seek to act on his threats of legal action to recover money he claims his sister has stolen from [the Mother]” and that “his personal animosity towards his sister would be likely to cloud his judgement about the benefits of such action to his mother” ([32]).
An appeal against the Tribunal’s decisions was lodged in the name of the Mother and supported by the Son and Daughter-in-Law. The Solicitor representing the Mother (the Solicitor) raised several appeal grounds alleging that the Tribunal fell into legal error in revoking the 2022 EPOA and not appointing the Son as the Mother’s guardian. The focus of the appeal was on the contention that the Tribunal’s factual findings, which were adverse to the Son, were made without evidence, and were irrational or against the weight of evidence.
Held (dismissing the appeal): (i) In making the decision to revoke the EPOA, the Tribunal was not confined to considering direct evidence, including the past and present actions of the Son in his role as attorney. The Tribunal was entitled to consider all the evidence and to draw inferences from that evidence about the likelihood of the Son’s animosity towards the Daughter infecting his judgment and causing him to be unable to separate his own interests from those of his mother ([45]). The inferences the Tribunal made were reasonably open to the Tribunal on the available material, which included evidence of the intense nature of the Son’s animosity towards his sister, the “manifestly outlandish” nature of the claims made by the Son about the money he alleged was owed by his sister to his mother, together with the Son’s “relentless focus” on the Daughter’s “alleged criminality in her dealing as attorney” ([46]).
(ii) Section s 36(4) of the Powers of Attorney Act 2003 (NSW) (POA Act) gives the Tribunal a discretion to make any of the orders listed in s 36(4) of that Act, including an order revoking all or part of a power of attorney (s 36(4)(f) of the POA Act), “if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal”. The Appeal Panel noted that there is nothing in the text, context or purpose of the POA Act that support the contention that in determining whether to revoke an EPOA, the Tribunal is confined to considering how the EPOA has been used to date. Although the Solicitor contended that there was no evidence of impropriety in the Son’s actions as attorney, the Tribunal was entitled to assess the likelihood of the Son, in future, using the EPOA in a manner inconsistent with the duties owed by an attorney to the principal ([51]-[52]).
(iii) The Appeal Panel rejected the Solicitor’s contention that there was no rational connection between the evidence of the animus between the siblings and the finding that it may drive improper use of the 2022 EPOA by the Son. The material that the Tribunal took into account included the expression by the Son of a high degree of animosity towards the Daughter, the Son’s “fervent” belief that the Daughter had stolen money from the Mother, the nature of the claims on which that belief was based, found by the Tribunal to be “manifestly outlandish”, and the Son’s statement to the Tribunal that he intended to commence recovery proceedings and to involve Police. It could not be said that there was no logical connection between the material before the Tribunal and the findings made by the Tribunal, which were adverse to the Son ([52]-[55]).
(iv) The Tribunal found that the Son and Daughter-in-law were not suitable to be appointed as the Mother’s guardians because the requirements in s 17(1)(c) of the Guardianship Act 1987 (NSW) were not satisfied. The Tribunal found that as enduring guardians, the Son and Daughter-in-law are not able to fulfil their responsibilities as guardians for the Mother with regard to the Principles in s 4 of the Guardianship Act, in particular the importance of preserving the Mother’s existing family relationships. That finding was reasonably open to the Tribunal to make, based on the material available to the Tribunal, which indicated that the Son and Daughter-in-Law “had no intention of trying to assist [the Mother] to have any kind of relationship with the Daughter” ([62]-[65]).
(v) The Appeal Panel also rejected the remaining grounds of appeal: that the Tribunal erred by relying on findings made by a geriatrician that the Son had subjected the Mother to “elder abuse” ([67]-[75]), that the Tribunal failed to have regard to the views of the Mother ([76]-[90]), and that the Tribunal failed to give adequate reasons ([91]-[100]). The Tribunal found that there was no error of law in the Tribunal’s decision, and no issue of general principle or public importance that would warrant granting leave to appeal ([110]-[112]). | A Britton, Deputy President, C P Fougere, Principal Member, J L Newman, General Member – 21 February 2023
In sum: Under s 25P(2) of the Guardianship Act 1987 (NSW), the Tribunal may revoke a financial management order only if (a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or (b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked.
The Appeal Panel dismissed an appeal against the Tribunal’s decision to refuse to revoke a financial management order, finding no error in the Tribunal’s conclusions that the appellant had not regained capacity to manage her affairs, nor was it in the best interests for the order to be revoked.
Facts: ZBG (the appellant) has been the subject of a financial management order made by the Tribunal since 2011. In August 2022, the appellant made an application to the Tribunal requesting that the financial management order be revoked. The Tribunal refused the appellant’s request to revoke the order because there was insufficient evidence to support a finding that the appellant “had regained the capability to manage her financial affairs”.
The Tribunal considered it significant that the appellant had not articulated an effective plan for the future management of her funds and had not demonstrated a capacity to budget so as to ensure that her funds are available for her long-term needs ([28]). In addition, the Tribunal found that it was not in the appellant’s best interests that the financial management order be revoked as the available evidence indicates that the appellant is a vulnerable person by reason of her enduring mental illness. Previous attempts to provide the appellant with a greater degree of independence and autonomy also resulted in a substantial sum of money ($100,000) being expended over a short period “without anything to show for it.” In addition, the Tribunal found that the financial management order “played an important role in maintaining secure housing for the appellant and in ensuring that her essential expenses are being met” ([31]).
The appellant lodged an appeal against the Tribunal’s decision, contending that the Tribunal’s findings were against the weight of evidence (ground 1) and/or unfair (ground 2).
The appellant also requested that the Appeal Panel exercise its power under s 80(3)(a) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) to deal with the appeal by way of a new hearing on the basis that there was “fresh evidence”. In support of this request, the appellant referred to material obtained after the Tribunal hearing including bank statements, medical evidence and a Centrelink statement, which according to the appellant, support her claim that she is now capable of managing her financial affairs ([43]).
Held (dismissing the appeal): (i) As neither of the asserted errors identified by the appellant identify a ‘question of law’, the appellant required leave to appeal the decision. The Appeal Panel refused leave to appeal. In relation to the first ground of appeal, the Appeal Panel found that the Tribunal’s findings were not against the weight of evidence. The Tribunal had given comprehensive, cogent and persuasive reasons for each finding, and had proper regard to the principles in s 4 of the Guardianship Act ([35]-[36]).
(ii) In relation to the second ground of appeal, the Appeal Panel found that there is no evidence to suggest that the decision was unfair, finding that the appellant’s contention was in truth “an expression of disagreement” with the challenged findings and the ultimate decision of the Tribunal. The Tribunal correctly stated that the power to revoke the financial management order could only be exercised if the Tribunal is satisfied that the appellant was either capable of managing her affairs or that it did not consider it to be in her best interests to exercise the power to revoke the financial management order. Neither ground was established ([37]-[38]).
(iii) The Appeal Panel found that there would be no useful purpose to be served by exercising the discretion to deal with the appeal by way of a new hearing and refused the request. The material the appellant relied on failed to address key concerns identified by the Tribunal. These concerns included that the appellant has a history of impulsive spending, has demonstrated little apparent understanding of how she spends her allowance and Centrelink benefits, has demonstrated an inability or unwillingness to understand the impact of her long-term financial security if a car or new place of residence was purchased from her limited assets, and has consistently failed to meet requests by the Trustee to submit a budget in support of her application for funds to be made available to enable her to purchase a new property ([46]-[48]). | A Suthers, Principal Member; L Organ, Senior Member; J Newman, General Member – 20 February 2023
In sum: The Appeal Panel refused leave to appeal against the decision of the Tribunal to dismiss an application for a guardianship order and an application to review and revoke a financial management order. The Appeal Panel found that there was no utility in granting leave to appeal, in circumstances where the appellant raised no error in the Tribunal’s decision.
Facts: In 2020, following an application made by a social worker, the Tribunal made a financial management order committing the management of ZTJ’s estate to the NSW Trustee and Guardian. The Tribunal was satisfied that ZTJ has a delusional disorder and is unable to manage her affairs. At the time of the application, ZTJ was at risk of immediate eviction and homelessness. She mistakenly believed that she owned her social housing property and refused to pay rent for it, breaching an order made by the Consumer and Commercial Division of NCAT.
In March 2022, ZTJ lodged an application to the Tribunal to revoke the financial management order. She also lodged a guardianship application, seeking to be appointed as her own guardian, apparently in an attempt to resume control of her affairs ([6]).
In August 2022, the Tribunal dismissed the guardianship application on the basis that it was misconceived and lacking in substance. The Tribunal also dismissed the application for revocation of the financial management order under s 55(1)(d) of the NSW Civil and Administrative Tribunal Act 2013 (NCAT Act) because there had been a want of prosecution in the proceedings. The Tribunal found that ZTJ had not provided evidence of her regained capacity to manage her financial affairs or evidence that it is in her best interest to revoke the financial management order ([8]). ZTJ appealed against those decisions.
Held (refusing leave to appeal): (i) A decision to dismiss an application under s 55(1) of the NCAT Act is an interlocutory decision. An appellant can only bring an appeal against an interlocutory decision of the Tribunal if leave is granted by the Tribunal under s 80(2) of the NCAT Act. In Collins v Urban [2014] NSWCATAP 17 at [82]-[84], the Appeal Panel held that in order for leave to be granted, an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact, which might indicate that a grant of leave is warranted ([14], [16]). In considering whether to grant leave, additional obligations are imposed on the Guardianship Division, including the need to take s 4 of the Guardianship Act 1987 (NSW) into account: P v NSW Trustee and Guardian [2015] NSWSC 579, at [191] (Lindsay J) ([17]).
(ii) ZTJ did not identify in the Notice of Appeal, or in her submissions, how the Tribunal erred in finding that her guardianship application was misconceived. Nor did she demonstrate that there was error in the Tribunal’s finding that she had failed to prosecute her application to revoke the financial management order. Instead, ZTJ reiterated her assertions that she owns her social housing property. It was apparent that the appeal was brought by ZTJ as a vehicle to regain control of her finances, which the application could not have achieved ([20]-[23]).
(iii) Written reasons are not required for interlocutory decisions made by the Tribunal, unless requested: cl 11(2)(c) of Sch 6 to the NCAT Act. In the absence of reasons, the Appeal Panel could not be satisfied that the Tribunal made an error of law, or that the decision was unreasonably or plainly unjust ([30]).
(iv) As ZTJ failed to raise any apparent errors in the Tribunal’s decision, the Appeal Panel found that there would be no utility in granting leave to appeal. This is especially the case where there is no evidence that the appellant has moved from her position that she should not be obliged to pay for her social housing ([31]). | A Britton, Deputy President; I Coleman SC ADCJ, Principal Member; F Given, General Member – 3 February 2023
This appeal relates to the decision made by the Tribunal in GKC [2022] NSWCATGD 23, summarised earlier in this Case Digest. In this appeal, the subject person is referred to by the pseudonym ‘Arwyn’.
In sum: The Appeal Panel dismissed an appeal against the Tribunal’s decision to refuse to join the appellant as a party to the Guardianship Division proceedings, and to make guardianship and financial management orders in respect of Arwyn.
Facts: Arwyn is an 18-year-old man who has been diagnosed with an extreme form of autism and selective mutism. Arywn had been under the parental responsibility of the NSW Minister for Communities and Justice since 2020. Four months before Arwyn’s eighteenth birthday, a caseworker with the NSW Department of Communities and Justice made an application to the Tribunal seeking guardianship and financial management orders to be made in respect of Arwyn.
Arwyn’s mother, ZZT (the appellant), made a request to be joined as a party to the guardianship and financial management applications. On 9 June 2022, the Tribunal refused her application to be joined as a party (the Joinder decision). On 20 July 2022, a differently constituted Tribunal made a guardianship order appointing the NSW Public Guardian as the guardian for Arwyn for a period of 12 months, and a financial management order committing the management of Arwyn’s estate to the NSW Trustee and Guardian, to be reviewed in two years. Those orders are to take effect when Arwyn turns 18.
The appellant brought an appeal against the Joinder decision, and the decision of the Tribunal made on 20 July 2022. The appellant raised several appeal grounds alleging that the Tribunal had fallen into legal error in refusing to exercise its discretion to join her as a party to the proceedings. The appellant alleged that the Tribunal failed to provide written reasons for the Joinder decision, proceeded to determine the joinder application in her absence, and failed to recognise that as his mother, the appellant was Arwyn’s legal guardian and therefore a party to the guardianship proceedings. In addition, the appellant contended that the Tribunal lacked the power to determine the application in circumstances where Arwyn was the subject of orders made by the Children’s Court and the Supreme Court, and where the caseworker lacked standing to make the application.
Held (dismissing the appeal): (i) Clause 11 of Sch 6 to the NSW Civil and Administrative Tribunal Act 2013 (NCAT Act) requires the Tribunal, when exercising Guardianship Division functions, to give reasons for any decision it makes in the proceedings, except interlocutory decisions. However, if written reasons are requested under s 62(2) of the NCAT Act, the Tribunal must provide a statement of written reasons within 28 days of the request ([26]-[28]). The Tribunal did not provide reasons for the Joinder Decision as it was an interlocutory decision made under s 44(1) and cl 7 of Sch 6 to the NCAT Act. There was no evidence before the Appeal Panel, either on the Tribunal’s records or the appellant’s submissions, that a request for written reasons had been made. As the appellant failed to establish that she requested the Tribunal to provide a statement of written reasons for the Joinder decision, the Tribunal was not required to provide a statement of reasons for that decision ([29]-[34]).
(ii) The Tribunal was obliged to comply with the rules of natural justice (procedural fairness), as per s 38(2) of the NCAT Act, including taking such measures as are reasonably practicable to ensure that parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5). The appellant was notified of, and given the opportunity to attend, the hearing at which the Joinder application was decided. She was also informed that the application may be determined in her absence. The appellant was not denied procedural fairness on the basis that the joinder application was determined in her absence, because she had not availed herself of the opportunity to attend the hearing, irrespective of her asserted reasons for her non-attendance ([35],[49]).
(iii) Section 15(1)(b) of the Guardianship Act imposes restrictions on the Tribunal’s power to make guardianship orders in respect of a person who is the subject of an order made by the Supreme Court, except with the consent of the Court. Section 15(1)(c) of that Act imposes similar restrictions if an order has been made under s 79A of the Children and Young Persons (Care and Protection Act) 1998 (the Care Act). The Tribunal did not require the consent of either the Supreme Court or the Children’s Court to make a guardianship order in respect of Arwyn. The restriction under s 15(1)(b) is only enlivened where the Supreme Court has made a relevant order, and not merely where a request for an order has been made to the Court ([52]-[57]). In addition, the restriction under s 15(1)(c) is not enlivened because no orders were made under s 79A of the Care Act in respect of Arwyn. The orders allocating parental responsibility for Arwyn to the Minister until he attains 18 years of age, were made under s 79(1)(b) of the Care Act. Therefore, the appellant’s contention that s 15(1) of the Guardianship Act operated to restrict the Tribunal’s power to make a guardianship order is misconceived ([58]-[61]).
(iv) The Tribunal did not err in finding that the caseworker had standing to bring the guardianship application. Contrary to the appellant’s submissions, the question of whether the caseworker was entitled to apply to NCAT for a guardianship order in respect of Arwyn did not turn on whether the Minister did or did not hold “legal or financial guardianship for Arwyn”. The caseworker had standing to make the guardianship application as “a person, who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person”: s 9(1) of the Guardianship Act ([65]).
(v) The appellant’s contention that she should be treated as a party as she was Arwyn’s “legal guardian” is misconceived. Parties to proceedings in the Guardianship Division are prescribed by s 3F of the Guardianship Act. Under this provision, a non-carer parent or guardian of a person is not deemed to be a party to proceedings commenced under the Guardianship Act, even where the person the subject of an application for orders under that Act is under 18 years of age ([66]-[68]).
(vi) The Appeal Panel refused leave to appeal as the appellant had failed to establish any of the grounds in support of her application. In making its decision, the Appeal Panel said that while the mother was not joined as a party to the guardianship proceedings, she was nonetheless permitted by the Tribunal to fully participate in the hearing of the application and had availed herself of the opportunity to give evidence and to make submissions ([71]). In addition, the Appeal Panel refused the application for a stay of the guardianship order, finding that even if the appellant was entitled to an order staying proceedings, the Appeal Panel would decline to exercise that power. The Appeal Panel found that the Tribunal had given cogent reasons for why it was not satisfied that the appellant was suitable to be appointed as guardian ([75]-[79]). | A Britton, Deputy President; A Boxall, Senior Member; M Bolt, General Member – 28 November 2022
In sum: The Appeal Panel set aside a decision of the Tribunal not to award costs in proceedings arising out of an application for a financial management order. Finding that “special circumstances” under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) have been made out, the Appeal Panel awarded the appellant “costs thrown away” up until the eve of the hearing, in preparing to address issues other than the capacity of the appellant to manage her affairs.
Facts: ZXJ (the appellant) is 79-years-old. ZXJ has two daughters (the Daughters) and a son. In 2004, the appellant appointed her son and one of her daughters (Daughter 1) as her attorneys under an enduring power of attorney (EPOA). In 2017 the appellant revoked those appointments. In July 2019 the appellant appointed the Son as her sole attorney under a new EPOA.
Daughter 1 made an application to the Tribunal seeking a financial management order to be made in respect of the appellant. Daughter 1 stated that she was making the application because of her concerns that her mother is “lacking capacity and is quite vulnerable [which] could lead to possible exploitation” ([11]). The appellant’s other daughter (Daughter 2) also made applications to the Tribunal seeking the review and revocation of the EPOAs made by the appellant in 2004 and 2019. In separate statements submitted to the Tribunal, the Daughters stated that their mother “has been confused” and had been isolated from them ([12]).
On 16 September 2021, the Tribunal held a hearing to determine the applications made by the Daughters. The Tribunal considered evidence given by two of the appellant’s general practitioners who indicated that the appellant has no cognitive impairments, is not subject to undue influence, and has capacity to manage her financial affairs. The Tribunal found that the available material did not establish that the appellant was incapable of managing her affairs and dismissed the application for a financial management order. The Tribunal also decided to dismiss the applications for review of the 2004 EPOA and the making of the 2019 EPOA, finding that the instruments were validly made and were in accordance with the wishes, views and preferences of the appellant.
The appellant made an application for costs arising out of the proceedings before the Tribunal, under s 60 of the NCAT Act. In October 2021, the Tribunal decided not to award costs and dismissed the application.
The appellant lodged an appeal against the decision not to award costs. Amongst the several grounds of appeal, the appellant argued that the Tribunal denied her procedural fairness by failing to consider a “substantial, clearly articulated argument relying upon established facts” (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26; 77 ALJR 1088 (Dranichnikov) at [24]).
Held (allowing the appeal in part): (i) Section 60(1) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) creates the general rule that each party is to pay their own costs. Section 60(2) gives the Tribunal power to award costs upon it being “satisfied that there are special circumstances warranting an award of costs” ([26]). The meaning of “special circumstances” was considered by the NSW Court of Appeal in Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81. Santow JA observed at [60] that “[i]t suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional” ([27]). In exercising the discretion to award or to decline to award costs under s 60 of the NCAT Act, there are no matters that the Tribunal is bound to consider: Kaye v The Owners – Strata Plan No 4350 [2022] NSWSC 1386 (per Basten AJ) ([35]).
(ii) In finding that there were no special circumstances warranting an award of costs, the appellant argued that the Tribunal failed to have regard to the manner in which the Daughters conducted the proceedings, including their failure to comply with s 36(3) of the NCAT Act to promote the just, quick and cheap resolution of the real issues raised in the proceedings. The appellant argued that the Tribunal failed to have regard to the submission that the Daughters had submitted a voluminous amount of material to the Tribunal, then waited until the eve of the hearing to announce their decision to request the Tribunal to confine, at least initially, the scope of issues to be determined to the appellant’s decision-making capacity. As a consequence, the appellant had incurred significant and unnecessary costs because the appellant’s legal representatives had no option but to review and to prepare to meet the multiple issues raised in the voluminous material filed by the Daughters, which were ultimately abandoned at the hearing ([32]).
(iii) The Appeal Panel found that the Tribunal had regard to aspects of the appellant’s submission concerning the Daughters’ conduct of the proceedings. Whilst the Tribunal found that the Daughters’ repeated failure to comply with the timetable for the submission of evidence disadvantaged the appellant, the Daughters’ decision to initially to confine the hearing to the issue of whether the appellant lacked capacity to manage her affairs was “appropriate and reduced the hearing time of the proceedings”. However, the Tribunal failed to have regard to the appellant’s argument that as a consequence of that decision being made on the eve of the hearing, the appellant’s legal representatives had been obliged to review and be prepared to meet an “enormous amount” of material that was ultimately not relied upon ([45]). This was “a substantial, clearly articulated argument relying upon established facts” that the Tribunal was obliged to consider. The Tribunal’s failure to consider this argument constituted an error of law ([47]-[48])
(iv) Whilst it is not unusual for parties to file material largely irrelevant to the real issues in the proceedings in the Guardianship Division, the Tribunal was satisfied that the Daughters’ actions in delaying until the eve of the hearing to announce their decision to request the Tribunal to initially determine the question of the appellant’s capacity to manage her financial affairs, amounts to special circumstances warranting an award of costs. It was significant that nine months prior to the hearing, the Tribunal had put the Daughters on notice of its view that the real issue in the proceedings was the capacity of the appellant to manage her financial affairs. However, in the intervening period, the Daughters filed significant amounts of material largely irrelevant to that question. It was not unreasonable for the appellant to prepare her case on the basis that she would be required to address those issues ([75]-[76]).
(v) Having rejected the appellant’s remaining grounds of appeal, the Appeal Panel allowed the appeal in part. The Appeal Panel ordered the Daughters to pay to the appellant the “costs thrown away up until 16 September 2021, in preparing to address issues raised by the Daughters unrelated to the appellant’s capacity to manage her financial affairs” ([77]). The Appeal Panel ordered the parties to use their best endeavours to reach agreement on the amount of costs payable by the Daughters ([78]).
In March 2023, the Appeal Panel made a costs order, after the parties failed to reach agreement on the issue of the amount of costs payable by the Daughters. In ZXJ v ZXK (no 2) [2023] NSWCATAP 76, the Tribunal exercised the discretion to fix costs under s 60(4) of the NCAT Act, finding that it was possible on the available material to exercise the power to fix costs in a manner that is “logical, fair and reasonable”: at [26]. A summary of this decision is contained in the NCAT Appeal Panel Decisions Digest Issue 3 of 2023, available on the NCAT website. | A Boxall, Senior Member; R Booby, Senior Member; M Bolt, General Member – 14 November 2022
In sum: The Appeal Panel allowed an appeal against the Tribunal’s decision to make a financial management order committing the management of the subject person’s estate to the NSW Trustee and Guardian, and remitted the matter to the Tribunal for reconsideration. In concluding that the appellant was not suitable to be appointed as financial manager, the Tribunal failed to give a balanced consideration to the appellant’s evidence, and instead focused on a potential conflict of interest between the appellant and the subject person.
Facts: The subject person (the Aunt) is 83 years old and lives in an aged care facility. She was diagnosed with dementia and diabetes and has presented to hospital on multiple occasions. In April 2021, the Aunt executed an appointment of enduring guardianship (EGA), and an appointment of enduring power of attorney (EPOA). Under both instruments, she appointed her nephew (the appellant), and her cousin jointly and severally as her enduring guardians and attorneys (2021 appointments).
In March 2022, while the Aunt was an inpatient at a public hospital, the Illawarra Shoalhaven Local Health District lodged applications to the Tribunal requesting reviews and revocations of the EPOA and EGA.
In separate hearings held in May and June 2022, the Tribunal reviewed the EGA and EPOA and decided it was in the Aunt’s best interests to revoke the appointments and to make guardianship and financial management orders appointing the Public Guardian as the Aunt’s guardian for six months, and the NSW Trustee and Guardian as the Aunt’s financial manager. The Tribunal decided not to appoint the appellant to these roles because it found that it was unlikely that the appellant would make informed and reasoned decisions concerning the Aunt’s accommodation and support. In addition, the Tribunal found that the there was a potential conflict of interest for the appellant in acting as the Aunt’s financial manager.
The appellant brought appeals against both decisions. The focus of the appeal was on the Tribunal’s decision not to appoint the appellant as the Aunt’s guardian or financial manager.
Held (allowing the appeal in part): (i) The Appeal Panel dismissed the appeal in relation to the guardianship order. In deciding not to appoint the appellant as the Aunt’s guardian, the Tribunal found that the Appellant had formed the view that the Aunt should return home on discharge from hospital, and was thus unlikely to make informed and reasoned decisions concerning her accommodation and support. The Appeal Panel rejected the appellant’s contention that in making this finding, the Tribunal had failed to take proper account of the care plan for the Aunt and other evidence provided by him as to his intentions for the Aunt’s care and accommodation ([30]). The Tribunal’s Reasons made plain that it did consider the appellant’s care plan and other proposals for the Aunt’s accommodation and care following her discharge from hospital. Nevertheless, the Tribunal decided to appoint the Public Guardian, as the Aunt’s guardian, as it found that the Public Guardian would more likely approach the relevant decisions in a more objective way then would the appellant since it was unencumbered by the appellant’s preconceptions concerning the Aunt’s interests and welfare ([36],[37]).
(ii) In relation to the financial management order, the appellant contended there was “no evidence” to support the Tribunal’s finding that there is a potential conflict of interest if the appellant were to act as the Aunt’s financial manager. The Tribunal’s decision not to appoint the appellant as the Aunt’s financial manager was based on several findings including that if the Aunt were to become a permanent aged care resident, the appellant would no longer be paid the carer’s allowance. Further, if the Aunt’s home was sold to fund her care, it could potentially devalue his expected future inheritance from the Aunt, and he would be required to live elsewhere. The Tribunal also made a finding that if the Aunt’s guardian decided that she should enter an aged care facility, there was a real risk that the appellant as her enduring attorney might impede implementation of that decision through his control of her property and financial affairs ([46]-[49]).
(iii) The Appeal Panel was not satisfied that the Tribunal’s conclusions were supported by the evidence available to the Tribunal, as the Tribunal failed to balance the appellant’s evidence against the “theoretical conflict”. The Tribunal did not consider the appellant’s evidence that he would approach the prospect of the sale of his Aunt’s property and the loss of his carer’s allowance with equanimity. The appellant had given evidence that he was only staying at the Aunt’s property to look after it for the Aunt, and if need be, he would return to Sydney. In addition, the Tribunal failed to consider the appellant’s other financial resources or sources of income, so that the Tribunal only considered one side of the appellant’s financial ledger, rather than its totality ([51]).
(iv) As the Tribunal’s conclusions were affected by legal error, the Appeal Panel allowed the appeal in relation to the financial management order and remitted the matter to the Tribunal for reconsideration ([52]). |
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