Tribunal rejects appeal against enduring guardianship decision

In August 2013, the SMSF trustee appointed two solicitors from a firm he used for his legal matters to be his attorneys under an enduring power of attorney. He authorised them to act on a joint and several basis.

In September 2016, he appointed one of his solicitors as his enduring guardian. The solicitor commenced making decisions for the SMSF trustee as attorney upon their move to the Bupa facility.

In February 2018, the general manager of the Bupa facility brought applications to the Tribunal seeking a review of the enduring guardianship appointment, the appointment of a guardian for the SMSF trustee, and the appointment of a financial manager for the SMSF trustee.

The SMSF trustee now has a diagnosis of dementia.

In her applications, the general manager highlighted concerns that the SMSF trustee may be subject to financial abuse as the basis for seeking to have the documents reviewed and orders made.

She also noted that, in her view, the solicitor had failed or refused to act on other significant issues where it was said that those decisions were required in the SMSF trustee’s best interests.

The Tribunal made orders revoking the appointment of the solicitor and the Public Guardian was appointed as guardian for the SMSF trustee for a period of 12 months, to make decisions about his access to others, accommodation, healthcare, and to give medical and dental consents on his behalf.

The SMSF trustee’s estate was made subject to management by the NSW Trustee and Guardian.

The solicitor appealed the orders made by the Tribunal. 

In the decision made last year, the Tribunal said that it was satisfied that the solicitor displayed a complete lack of insight into the SMSF trustee’s cognitive impairment and its effect on his ability to make decisions.

“He did not communicate with [the SMSF trustee’s] medical and health professionals regarding [his] healthcare and medical needs,” the Tribunal stated in its earlier decision.

The Tribunal also noted that the solicitor had been dismissive of concerns raised by Bupa staff about a lady, identified as [ZAA] in the appeal decision, who they suspected was taking financial advantage of his client.

In evidence provided to the Tribunal for the earlier decision, Bupa staff said they believed that [ZAA] had a reputation for befriending and then taking financial advantage of older men, which was denied by the solicitor.

The Tribunal heard in the earlier decision that despite Bupa staff’s documented concerns about [ZAA’s] reputation for financial abuse of elderly men, the solicitor had provided her and her husband with unfettered access to his client’s account by providing them with a debit card.

He did not monitor expenditure on the account and did not consider it was inappropriate that his client has provided them with funds in excess of $70,000 for vehicles and renovations to their home.

These payments were separate from large regular cash withdrawals from the account, a $5,000.00 payment for a cruise and payments made by his client for all of the couple’s expenses when they went on outings or trips.

While the Tribunal did not assess whether [ZAA] did indeed have a reputation for financial abuse of elderly men, it did make the finding that the solicitor did not do enough to protect his client.  

It also found that the solicitor did not have any qualms about his client paying all the expenses for three people when they went on holidays or outings, and did not consider that the lady and the husband should bear their own expenses.

The Tribunal in its earlier decision also found that the solicitor had been dismissive of the fact that [ZAA] and her husband would not comply with Bupa’s recommendations regarding care and equipment when they took his client from the facility.

The solicitor had not visited this client until 2018 and would not be able to have any meaningful discussion with him about any healthcare decisions by telephone. He had effectively delegated this to [ZAA].

In its decision on whether to grant leave to appeal, the Tribunal said that while the solicitor disagrees with the findings from the Tribunal’s decision, “they do not represent a manifest error in the decision or decision-making process under review, which merits a grant of leave”.

As no error of law was established, the Appeal Panel refused leave to appeal the decision and dismissed the appeal.