The saying, "prevention is better than the cure", is one that has been used across centuries and across cultures. Planning ahead for times when you may be unable to make decisions yourself is often accepted as very good advice. But like many New Year resolutions, it is not always actioned.
With life expectancy increasing, family support structures changing and the growing number of people living with dementia, this proverb is becoming increasingly relevant to Australian society.
While not always actioned ahead, it is reassuring to know that the law in Australia on guardianship and powers of attorney provides a very flexible and responsive "cure" framework. A look at some recent decisions by the Guardianship Division of the NSW Civil and Administrative Tribunal1 (Tribunal) illustrates this point.
What are the legal "basics"?2
A person who is still able to make decisions for themselves can authorise another person as their agent for purposes such as operating a bank account and dealing with a range of government agencies such as the Australian Taxation Office, Centrelink and Medicare, by signing a form. However, appointing another person for other decisions such as entering into business contracts or dealings with property will require a more formal appointment under Power of Attorney or Guardianship legislation.
The key to effective "prevention" is understanding the differences between "person responsible", a power of attorney, an enduring power of attorney, an enduring guardianship, a legal guardian and a financial manager.
Under guardianship legislation, a "person responsible" may make some decisions regarding consent for medical or dental treatment on behalf of a person who is unable to do so themselves due to a disability. In addition to a legal guardian, a "person responsible" can include:
- a spouse (including defacto and/or same sex spouses); or
- an unpaid carer; or
- a relative or friend who has a "close personal relationship" with the person.
General power of attorney
A general power of attorney is the appointment under a formal legal document of another person or legal entity (the attorney) by a person (the principal) authorising the attorney to do things in relation to legal and financial matters on behalf of the principal.
Depending on the terms of the appointment, an attorney may deal with money, bank accounts, shares, real estate and other assets of the principal. To deal with real estate, the power of attorney must be registered with Land and Property Information (LPI).
An attorney does not have powers to make decisions about personal care, medical treatment or the "lifestyle" of the principal. These decisions will generally require the appointment of a guardian.
An attorney cannot vote on the principal's behalf at elections and cannot carry out the principal's duties as a trustee for someone else.
Appointing an attorney does not limit the right of the principal to continue to make their own decisions about their money and their property, while they have the mental capacity to do so.
In NSW, the legislation governing powers of attorney is the Powers of Attorney Act 2003 and the Powers of Attorney Regulation 2011. If appointing a person, the attorney must be over the age of 18. The legislation provides a very flexible framework enabling the principal to:
- appoint an attorney for a limited time or for a limited purpose;
- appoint more than one attorney;
- nominate a substitute attorney if the attorney dies or is no longer able to act;
- specify limits and conditions on what the attorney can do; and
- revoke or change the power of attorney.
The attorney must act in the principal's best interest and in accordance with the terms of their appointment. Unless authorised by the principal to do so, the attorney cannot make gifts or donations using the principal's assets or be paid or receive a benefit sourced from the principal's assets.
Importantly, a general power of attorney automatically terminates if the principal loses the mental capacity to make decisions themselves or the principal dies. If the principal wants the power of attorney to continue after loss of mental capacity, they must make an enduring power of attorney instead.
Enduring power of attorney
Unlike a general power of attorney, an enduring power of attorney continues to operate after the principal has lost their mental capacity. As well as applying the maxim "prevention is better than cure", appointment of an enduring power of attorney enables the principal to choose who the attorney will be.
In NSW the same flexible legislative framework applies as with a general power of attorney. However, there are two important additional requirements.
The person appointed as attorney (and any subsequent attorney) must sign the form to indicate that they accept the appointment before their appointment can come into effect. The second requirement is that the principal's signature appointing the attorney must be witnessed by a prescribed witness.
Is a power of attorney made outside NSW effective in NSW and vice versa?
As a general rule, a general power of attorney can be used in NSW if made elsewhere in Australia or overseas. One made in NSW will also generally be recognised interstate. With enduring powers of attorney, due to the differing laws in other States and Territories there will be a need to check what acts are permitted under the enduring power of attorney.
If the attorney is to deal with real estate (including leasing and mortgages), the power of attorney must be registered with LPI. For an enduring power of attorney made outside NSW to be registered, LPI will require a certificate from a lawyer in that jurisdiction certifying that the enduring power of attorney was made in accordance with the applicable law in that jurisdiction.
What about disputes regarding powers of attorney?
If there is a dispute that cannot be settled otherwise, the principal needs to make an application to the Tribunal or to the NSW Supreme Court, depending on the nature of the power of attorney and the nature of the dispute.
The Tribunal has the power to review enduring powers of attorney and provides a faster and less costly means of review.
An enduring guardian is someone appointed by a person to make personal or lifestyle decisions for that person when they are not capable of making such decisions themselves. While the appointment must be made while the person has the mental capacity to understand what they are doing, the appointment only takes effect and the enduring guardian can only act, once the person becomes incapable of making the decisions.
An enduring guardian cannot make decisions about a person's money or property; this requires an enduring power of attorney or appointment of a financial manager.
In NSW, the legislation governing the appointment of enduring guardians is the Guardianship Act 1987.
As with powers of attorney, the process of appointing an enduring guardian is a relatively simple process, using the form in Schedule 3 of the Guardianship Regulation 2010. The enduring guardian must also sign the form to accept the appointment. The signing of the form by the person appointing the enduring guardian and the signed acceptance of the appointment must be witnessed by a prescribed witness.
In appointing an enduring guardian a person can specify what kinds of decisions the enduring guardian can make on their behalf. These functions can be very wide and general or specific. The appointment form under the Act has a list of functions that can be amended. The person appointing the enduring guardian can also specify that the enduring guardian must consult with other person(s) before making some decisions. Under the Act, an enduring guardian must act in the person's best interests and in accordance with the Act.
The enduring guardian must be at least 18 years old and cannot, at the time of the appointment, be:
- providing medical treatment or care to the person on a professional basis;
- providing accommodation or support services for daily living to the person on a professional basis; or
- a relative of one of the above.
More than one enduring guardian can be appointed and a person can also appoint an alternative enduring guardian who can act only if the original enduring guardian dies, resigns or becomes incapacitated.
If a person loses capacity and their appointed enduring guardian dies, resigns or becomes incapacitated, and there is no other enduring guardian or alternative enduring guardian able to act, an application will need to be made to the Tribunal for another person to be appointed as enduring guardian.
If a person has a genuine concern over what an enduring guardian is or is not doing they can apply to the Tribunal for a review of the appointment. The Tribunal can vary, revoke or confirm the appointment, including varying the functions of the enduring guardian.
Importantly, an enduring guardianship ends:
- when the person appointing the enduring guardian dies;
- if it is revoked by the person making the appointment3;
- if the person making the appointment subsequently marries (unless the marriage is with the enduring guardian);
- the enduring guardian dies or becomes incapacitated;
- the Tribunal revokes the appointment; or
- the Tribunal makes a guardianship order that suspends the appointment of the enduring guardian.
Can an enduring guardian act in other States and Territories?
Generally, the answer is yes, however it will depend on the legislation in that State or jurisdiction. NSW recognises enduring guardianship appointments validly made in other Australian States and Territories.
Recognition of enduring guardian appointments made overseas and vice versa is a much more complex issue and needs to be dealt with on a case by case basis. If the person has already lost capacity, it may be simpler for an application to be made to the Tribunal for appointment of an enduring guardian if required.
A guardian differs from a person with a power of attorney. A guardian is someone legally authorised to make personal or lifestyle decisions on behalf of a person with a decision making disability. A guardian cannot make financial or property decisions, although the same person may also have these powers under a power of attorney or under an appointment as a Financial Manager4 .
In NSW, the appointment of a guardian for a person is made by the Guardianship Division of the Tribunal. The appointment follows a hearing by the Tribunal. Applications may be made by the person themselves, a person who the Tribunal accepts has a legitimate interest in making the application or by the Public Guardian5 . The Tribunal must be satisfied that appointment of a guardian is actually necessary and that other arrangements cannot satisfactorily address the issues of concern.
Guardianship orders by the Tribunal are very flexible and can be for a limited time or for limited purposes. Depending on the functions given to the guardian by the Tribunal, a guardian can make decisions including:
- where the person should live;
- what support services the person requires and should use;
- what healthcare and other treatment the person should receive; and
- whether restrictive practices are appropriate in the management of the person's behaviour.
In making the application, the applicant can suggest a suitable person (including the applicant) to be appointed as their guardian. The Tribunal will consider this suggestion but is not bound by it.
In appointing a guardian, other than the Public Guardian, the Tribunal must be satisfied that the person is suitable, willing to take on the role and is aged over 18. The Tribunal will also consider whether there are conflicts (especially financial) between the interests of the person and the suggested guardian.
Under NSW legislation, a financial manager is someone legally authorised to make financial and legal decisions on behalf of a person who is incapable of managing their affairs. Generally, this will only be required where other arrangements are not in place, are not adequate or are not operating in the best interests of the person concerned.
In addition to an enduring power of attorney, these arrangements might include an earlier appointment by the person who does not have complex investments or property of someone as their agent for banking, Centrelink and taxation affairs for example.
If the Tribunal is satisfied that a financial manager is required, the Tribunal can make flexible orders as to the functions of the financial manager, the term of their appointment and to what assets the financial manager is authorised to manage on behalf of the person.
For jurisdictional reasons, the Tribunal can only consider applications for persons who have assets in NSW.
The applicant can suggest a suitable person (including themselves) for appointment as financial manager. The Tribunal will consider the suggestion and look at their financial management experience, their own financial history and any conflicts of interest. If the Tribunal does not have someone suitable or willing to take on the role, the Tribunal can appoint the NSW Trustee6 as financial manager for the person.
If appointing a private person as financial manager, the Tribunal will make this appointment subject to supervision by the NSW Trustee. The NSW Trustee will decide how the financial manager can deal with the assets under a formal "Directions and Authority" from the NSW Trustee.
Financial managers are generally expected to act gratuitously and cannot be remunerated or reimbursed for personal costs without the approval of the NSW Trustee or Supreme Court. The Tribunal cannot authorise remuneration or reimbursement of costs.
As the NSW Trustee will charge an annual fee based on the value of the assets being managed, careful consideration should be given to whether a financial manager needs to be appointed.
"Restrictive practices" and guardianship
The Tribunal can give a guardian a function to make decisions regarding "restrictive practices". While the Guardianship Act 1987 (NSW) does not define this term, a restrictive practice generally involves limiting the person's freedom of movement or access to places or objects, usually through some form of physical restraint. The need to consider such practices often arises in the context of challenging behaviour.
Use of medication to achieve this purpose is an issue dealt with under the consent to medical treatment provisions of the Act. While generally, this consent can be given by a "person responsible", an enduring guardian or a guardian with medical consent functions, some forms of medical treatment and some situations will require an application to the Tribunal.
At common law, restraining a person, confining them to a space or withholding their possessions is unlawful7 . Such actions are only lawful if:
- the person concerned is able to give informed consent;
- a guardian with a restrictive practice function consents;
- it is reasonably necessary to avoid death or serious harm to the person; or
- it is reasonably necessary to do so as part of self-defence.
Carers and care facilities need to give consideration to whether a guardian needs to have a restrictive practices function where a client has significant ongoing challenging behaviour.
Reviews and appeals regarding Tribunal decisions
Reviews of decisions made in the Guardianship Division of the Tribunal are undertaken by the Division. Appeals are heard by either the Appeal Panel of the Tribunal or the Supreme Court.
Reviews are not appeals. They occur where circumstances have changed warranting a review, the guardianship order is not working in the best interests of the person, there is a need for new functions or the need for a guardian no longer exists. The Tribunal will automatically review orders where the period of the order is coming to an end. The Tribunal can also undertake an "own motion" review without a need for an application from another person, if the Tribunal believes a review is required in the best interests of the person.
The Tribunal can also review the appointment of a particular financial manager rather than the financial management order itself. The Tribunal can only revoke the appointment of a financial manager if the appointed person is no longer willing to act, the best interests of the person requires a different person to be financial manager or the need for the financial management order itself no longer exists.
Appeals can be made a party to the proceedings of the Tribunal. The appeal may be on a question of law or, subject to the Appeal Panel (or Supreme Court) granting leave for the appeal, any other grounds.
An appeal must be lodged within 28 days of the later of the person being notified of the Tribunal's decision or being provided with a statement of reasons for the decision.
Some recent decisions of the Tribunal
The following six cases illustrate the flexible framework under the Tribunal, ensuring that the best interests of the person concerned are met.
AWR  NSWCATGD 42 (27 November 2014)
Here the Tribunal decided to dismiss an application from a hospital social worker for the appointment of a guardian and financial manager for a 73 year old man (Mr AWR) living with a long term friend and carer. In November 2013, the man had appointed his carer as enduring guardian and the carer's daughter as his alternative enduring guardian. They had also been appointed as attorney and substitute attorney under an enduring power of attorney.
The social worker was concerned that the carer was no longer able to provide care for Mr AWR.
As an enduring guardian had been appointed, the Tribunal needed to consider whether a guardianship order was needed. During the hearing, it became evident that Mr AWR was now accepting of the need for residential aged care and that he was happy for his enduring guardian to determine an appropriate facility. The carer confirmed that she was happy to be Mr AWR's enduring guardian.
On the basis of the above the Tribunal determined that there was no need to appoint a guardian.
The hospital social worker had also applied for a financial management order. Before making such an order, the Tribunal needs to be satisfied that it is necessary and in the best interests of the person. At the hearing, the Tribunal was satisfied with the management of Mr AWR's finances by the carer and noted that the carer remained able to do so, including after Mr AWR moved into residential aged care. The financial arrangements put in place by the carer were working well. Accordingly, the Tribunal dismissed the application for a financial management order.
This case illustrates the ability of a concerned person (the hospital social worker) to make an application to the Tribunal, with the Tribunal then gathering appropriate information and hearing from Mr AWR, his carer and health professionals by teleconference. The Tribunal was able to determine that the current arrangements and developments since the application was lodged were working and that there was no need to make the orders sought.
KMC  NSWCATGD 43 (4 December 2014)
Here, the Tribunal declared a purported revocation of an enduring power of attorney invalid, revoked a guardianship order and made a financial management order.
Mrs KMC is a 77 year old woman living in a residential aged care facility since March 2013, moving to high care in October 2014. She had lived at home with her husband Mr NTC and she had three surviving children. Mrs KMC had significant cognitive impairment.
Her daughter applied to the Tribunal in May 2013 for appointment of a guardian and financial manager. At that time, (her husband) Mr NTC was trying to have his wife leave the aged care hostel and was refusing to pay an accommodation bond. The application for the appointment of a financial manager was subsequently withdrawn after the bond was paid.
Mrs KMC had appointed Mr NTC as her attorney in August 2010 and subsequently appointed her daughter and son as attorneys under an enduring power of attorney in September 2012. In September 2012, Mrs KMC also appointed her daughter and son as enduring guardians.
Following the application to the Tribunal in May 2013, due to the conduct of the husband Mr NTC, the Tribunal had appointed the Public Guardian with functions of access and accommodation for a period of 12 months. This appointment of the Public Guardian automatically suspended the enduring guardian's functions.
In April 2014 a revocation of the enduring power of attorney was executed, signed by Mr NTC and witnessed by a solicitor. In June 2014, the solicitor acting for Mr NTC applied to the Tribunal for an adjournment of the statutory end of term review of the 12 month appointment of the Public Guardian and a 6 week adjournment was agreed.
In July 2014, the daughter and son again applied for appointment of a financial manager for their mother.
In August 2014, the Tribunal varied the guardianship order appointing the Public Guardian by renewing it for a further 12 months but narrowing the functions to decisions about what access Mrs KMC had to other persons, in view of continuing concerns over Mr NTC's behaviour when visiting the aged care hostel. The Tribunal appointed Mr NTC as guardian to make decisions about accommodation, health care and other services for Mrs KMC as there was no longer significant conflict on these issues.
In October the Public Guardian, the daughter and the son all applied to the Tribunal for reviews of the guardianship order.
The Tribunal now had six proceedings before it:
- three requests for review of the guardianship order made in August 2014;
- two requests for review of the April 2014 revocation of the enduring power of attorney; and
- the July 2014 application for appointment of a financial manager.
Under section 37 of the Powers of Attorney Act 2003 (NSW), a review of a revocation of an enduring power of attorney can be treated by the Tribunal as an application for a financial management order under the Guardianship Act 1987 (NSW).
There was no doubt that Mrs KMC was cognitively impaired and unable to manage her affairs.
The Public Guardian's application was based on "an unworkable division of authority" between the Public Guardian and Mr NTC in the order. The daughter and son had applied seeking to appoint the Public Guardian with all functions of a guardian, including the functions currently held by Mr NTC.
Evidence from the nursing home indicated that the current care arrangements were appropriate and the nursing home had not experienced difficulties with Mr NTC. Mrs KMC's children were able to visit their mother. The daughter and son advised the Tribunal that they remained concerned that their father might want to remove their mother from the nursing home and that he did not consult with them in relation to Mrs KMC's care and treatment. Their preference was that the Public Guardian have all of the guardian functions.
As the circumstances had changed and Mrs KMC was now settled in the nursing home and the nursing home and Mr NTC were working co-operatively, the Tribunal noted that there were no accommodation, care or treatment decisions that needed to be made in the foreseeable future requiring appointment of a guardian at the present time.
Accordingly, the Tribunal decided to revoke the guardianship order it had made earlier in 2013. Normally, this decision would then revive a suspended enduring guardianship.
The Tribunal turned to consideration of the purported revocation of the enduring guardianship in April 2014. Under amendments made in 2013 to the Powers of Attorney Act 2003 (NSW), the Tribunal now has the power to review revocations. The Tribunal determined that it was appropriate to review the revocation, as back in 2012 when Mrs KMC had executed enduring powers of attorney and enduring guardianships, there was no argument that she was capable of doing so and that this expressed her wishes at that time.
The solicitor who witnessed the revocation by Mr NTC advised the Tribunal that Mr NTC had instructed him that Mrs KMC lacked the capacity in 2012 to appoint enduring attorneys and guardians. On that basis, his view was that Mr NTC validly exercised his power of attorney from 2010 and was able to revoke a subsequent "invalid" instrument.
The Tribunal considered the general principles of agency law and the powers of an attorney. In relation to making a power of attorney (including an enduring power of attorney), the Tribunal noted that the Powers of Attorney Act 2003 (NSW) expressly provides that only the principal may create or revoke the power of attorney. Hence once the principal has lost capacity, no other person can create a power of attorney or revoke one. Revocation can only occur through the review mechanisms under the Act – the Tribunal or the Supreme Court. Accordingly, Mr NTC did not have the power to revoke the enduring power of attorney made by Mrs KMC in 2012 and this enduring power of attorney granted to the daughter and son remained valid.
In relation to the application for a financial management order the Tribunal considered the criteria required to be established:
- that the person concerned is not capable of managing their financial affairs;
- there is a need for another person to manage the financial affairs; and
- it is in the best interests of the person that a financial management order be made.
Mr NTC had been managing his wife's financial affairs to date. However, the daughter and son were unhappy with these arrangements, but had not to date sought to exercise their powers under an enduring power of attorney. While the Tribunal had not been asked to review the power of attorney given to Mr NTC in 2010 or the enduring power of attorney given to the daughter and son in 2012, there was a significant potential for confusion with two powers of attorney in existence.
The Tribunal determined that there was need to appoint a financial manager to manage Mrs KMC's financial affairs and then considered who that person should be. The Tribunal heard evidence supporting Mr NTC's abilities and management to date of his wife's assets. The Tribunal decided that it was appropriate in all the circumstances to now formally appoint Mr NTC as financial manager as this would resolve the potential confusion and would also bring Mr NTC's financial management of his wife's financial affairs under the supervision of the independent NSW Trustee.
SKC  NSWCATGD 39 (29 October 2014)
This case involved a review of the operation and effect of an enduring power of attorney made by Mr SKC in April 2014. Mr SKC was a 63 year old man living in supported accommodation apartments managed by a not-for-profit aged care service provider. He had appointed his niece as his attorney under an enduring power of attorney. He also appointed her as his enduring guardian.
In August 2014 the Tribunal received an application from the care manager requesting the appointment of a financial manager and a review of the power of attorney. The application stated that Mr SKC had expressed concerns to the care manager about the management of his financial affairs by his niece. The care manager proposed that the NSW Trustee be appointed financial manager and stated that the niece was happy to relinquish her role as attorney.
During the hearing the Tribunal received evidence concerning an inheritance of around $50,000 received by Mr SKC and a series of withdrawals depleting the account prior to Mr SKC alerting the care manager and a stop being placed on the account. While the niece had provided some of the withdrawn funds to Mr SKC she had used some for her own purposes. The care manager had referred the matter to the police.
Mr SKC advised that he would like his friend Mr HMX to assist him in managing his affairs in the future instead of his niece. Mr HMX was willing to take on this role and the Tribunal was satisfied that he was capable of assisting Mr SKC in managing his financial affairs.
To make an order relating to the operation and effect of an enduring power of attorney, the Tribunal must be satisfied that it is in the best interests of the person to do so and that an order would better reflect the wishes of the person.
The Tribunal noted that the niece wished to relinquish her appointment. Had she not done so, the Tribunal would have removed her. The Tribunal determined that it would be in the best interests of Mr SKC for an alternate attorney to be appointed and that such an appointment better reflected Mr SKC's wishes at the current time.
In addition to appointing Mr HMX as an enduring attorney for Mr SKC, the Tribunal considered whether Mr SKC was capable of managing his financial affairs. The Tribunal was satisfied that Mr SKC was not able to do so and the Tribunal considered that it was in Mr SKC's best interests that Mr HMX was also appointed as his financial manager for the next 12 months. This appointment would enable Mr HMX to work with the police to recover funds and would also apply the supervision of the NSW Trustee.
Due to the making of the financial management order, the enduring power of attorney is automatically suspended. The Tribunal determined that the financial management order should reviewable and for a period of 12 months. The Tribunal felt that in 12 months' time there may be no need for a separate financial management order with supervision by the NSW Trustee, and that Mr HMX could then manage Mr SKC's financial affairs under the enduring power of attorney.
BLX  NSWCATGD 36 (1 October 2014)
Mrs BLX was a 69 year old woman living with her son and carer in Sydney. Mrs BLX had a stroke in 2013. She had previously been living with her husband, but a breakdown in that relationship led to conflict regarding her living arrangements, care and contact with her husband, and conflict between her husband and her son.
An urgent application for appointment of a guardian had been made to the Tribunal by the manager of service provider to Mrs BLX.
Before making a decision, the Tribunal is required to try and resolve the issues where possible and appropriate. Following receipt of expert reports and hearing from Mrs BLX, her son, her husband and the service provider, the Tribunal determined that Mrs BLX had a disability which partially prevented her from managing herself. While able to decide what she would like to do, Mrs BLX was unable to action these decisions due to her disabilities and the conflict between her son and her husband. Mrs BLX wanted to visit her terminally ill sister in Indonesia.
The Tribunal determined that there was a need for a guardian to be appointed with limited functions to make decisions about Mrs BLX's desire to travel to Indonesia, her access to her husband and others and control of her passport. The Tribunal is unable to appoint the Public Guardian if there is a suitable private person who can be appointed guardian. Given the serious conflict between her husband and her son, the Tribunal determined that it was in Mrs BLX's best interests if the Public Guardian was appointed as guardian with these limited functions. The Tribunal determined that the order should be for a period of 6 months.
YGC  NSWCATGD 41 (27 November 2014)
This case was a review of a financial management order made in August 2014 for 3 months. Ms YGC is 17 and a resident of a secure residential facility operated by the department of Family and Community Services. In 1999, the Children's Court made Ms YGC a ward of the state under the Children (Care and Protection) Act 1987 (NSW). The Minister has parental responsibility until Ms YGC turns 18 in late 2015.
In August 2014, the Tribunal had made a financial management order appointing the NSW Trustee as financial manager, with the order to be reviewed in 3 months. On reviewing an order, the Tribunal must either confirm, revoke or vary the order. The Tribunal can only revoke the order if satisfied that Ms YGC is capable of managing her affairs and that it is in the best of interests of Ms YGC that the order be revoked.
Evidence provided to the Tribunal indicated that Ms YGC would continue to have problems with decision making and managing her financial affairs and the Tribunal determined that she was incapable of doing so. Under the Children's Court order of 1999, if the financial management order was revoked, the Minister would have responsibility for the management of Ms YGC's financial affairs as part of the Minister's parental responsibilities for wards. The Department advised the Tribunal that an option open to the Minister was to appoint the NSW Trustee as the Minister's agent for this purpose.
The Tribunal determined that it would be in Ms YGC's best interests if there was certainty as to who had the power to manage Ms YGC's financial affairs. The Tribunal determined that this power should be exercised by the Minister. Accordingly, the Tribunal revoked the financial management order of August 2014 appointing the NSW Trustee and ordered the NSW Trustee to transfer the funds it held to the Minister.
OLL  NSWCATGD 40 (27 October 2014)
This case considered the issue of whether orders as to costs should be made. The matter arose following applications in March and July 2014 to the Tribunal by Mr MBM seeking a review of appointments by Mrs OLL of her son, Mr QAT as an enduring guardian and an as enduring attorney. Mrs OLL was 94 and living at home with professional in-home carer support. Mr MBM was a long-time friend of Mrs OLL.
Under directions hearings, the Tribunal granted leave for legal representation of Mr MBM and Mr QAT. The Tribunal also ordered that Mrs OLL have separate representation. Both applications were set down for hearing on 24 July 2014.
Mr MBM had made the applications on the basis that he had understood that Mrs OLL was concerned about the restrictions placed on Mrs OLL by her son Mr QAT in relation to access by Mr MBM and access to her finances. Mr MBM was also concerned about the quality of care Mrs OLL was receiving. The independent representative for Mrs OLL advised the Tribunal that Mrs OLL did not have such concerns and did not want Mr MBM to visit her. In light of this information, Mr MBM then sought to withdraw his applications as he did not wish to act contrary to Mrs OLL's wishes. Both applications were then dismissed by the Tribunal. Mr QAT made an application for costs. The amount sought was $25,250.
Based on the detailed material that had been submitted prior to the hearing date, there was no evidence before the Tribunal of any concerns about Mrs OLL's care and welfare.
The Tribunal's power to make costs orders is under s60 of the Civil and Administrative Tribunal Act 2013 (NSW). As a starting point, the Act provides that each party pay its own costs. To make a costs order, the Tribunal must be satisfied that there are special circumstances warranting an award of costs. Factors that the Tribunal can take into account include the conduct of a party, whether the application or claim had a reasonable basis in fact or in law and the nature and complexity of the proceedings.
A review of an enduring guardianship is a review under the Guardianship Act 1987 (NSW). Costs orders in the Guardianship Tribunal (prior to the formation of the NSW Civil and Administrative Tribunal) were rare. The Guardianship Tribunal had determined that persons should not be deterred from bringing "substantial and well-motivated" applications for fear of a costs order. This approach had been endorsed in two Supreme Court cases.
Mr QAT argued that Mr MBM's application was misconceived, frivolous, lacking in substance or vexatious and that it had no tenable basis is fact or in law. His conduct over the past years demonstrated that Mr MBM did not have Mrs OLL's best interests in mind.
Mr MBM refuted the arguments and also submitted that the Tribunal not proceeding to a hearing meant that the Tribunal could not make findings as to whether there was a reasonable basis for the applications. He submitted that he had acted reasonably in making the applications and that as soon as he became aware of the independent representative's report of Mrs OLL's views, he had promptly sought to withdraw them.
The Tribunal noted that while not bound by the rules of evidence, an applicant must still provide credible evidence to support their application. It is not sufficient to "raise unsubstantiated allegations" and require the other parties to refute them. The material provided by Mr MBM was created by him and did not have independent corroboration. The Tribunal found that in relation to his main allegations, "his claims are not tenable".
Mr MBM's conduct prior to the hearing and his evident lack of understanding of the roles of attorney and enduring guardian also undermined his credibility and the basis for a number of his allegations. The Tribunal also noted that Mr MBM had filed his application for review of the enduring power of attorney 4 months after making his application for a review of the enduring guardianship and less than 2 weeks prior to the allocated hearing day. Mr MBM's claims asserting incapacity of Mrs OLL were also inconsistent with this claims asserting Mrs OLL's expressed wishes and instructions to Mr MBM.
The Tribunal found that the applications were "not reasonably commenced" and that special circumstances existed justifying a costs order being made.
These cases illustrate the flexibility in approach of the Tribunal and the Tribunal's overriding objective to determine what is in the best interests of the person who has impaired decision making ability. The Tribunal has the ability to flexibly use the roles of guardian and financial manager.
They also illustrate the importance of lawyers and health, aged care and community services managers understanding the distinctions between an attorney, a guardian and a financial manager and the process for appointing an enduring attorney and/or guardian.
They also reinforce the value of that old adage, "prevention is better than cure". Planning ahead should be on everyone's list of New Year resolutions!
1 The NSW Civil and Administrative Tribunal
(NCAT) commenced on 1 January 2014. Established under the Civil
and Administrative Tribunal Act 2013 (NSW), NCAT brought
together 22 former separate tribunals, including the Guardianship
Tribunal. NCAT deals with a broad and diverse range of matters,
from consumer claims, tenancy issues and building disputes, to
decisions on guardianship and administrative review of government
decisions. NCAT currently has four Divisions. The Guardianship
Division determines applications about people with a decision
making disability and who may require a legally appointed
substitute decision maker
2 For convenience, this article refers to the legal framework in NSW. This framework applies to persons aged 16 years and above. The framework in other States and Territories is similar, but not exactly the same. Holman Webb can provide readers in other jurisdictions with advice on local legal frameworks.
3 Revocation requires completion of a Revocation of Appointment of Enduring Guardian form, witnessed by an eligible witness and written notice to the enduring guardian of the revocation.
4 Financial Manager is the term used under the Guardianship Act 1987 (NSW).
5 A statutory office under the Guardianship Act 1987 (NSW).
6 In NSW, the NSW Trustee and Guardian was formed on 1 July 2009 following legislation to merge the former Public Trustee NSW and the Office of the Protective Commissioner.
7 Such actions might constitute assault, false imprisonment or detinue.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.