An enduring power of attorney can give another person significant control over your financial affairs. An enduring guardian can also make important decisions about your health, accommodation and services.
But what happens if there are concerns that the person did not have the capacity to make those appointments in the first place?
The NSW Civil and Administrative Tribunal (NCAT) considered this issue in Sarah (a pseudonym) [2025] NSWCATGD 26, ultimately revoking both the enduring power of attorney and the enduring guardian appointment.
What happened?
“Sarah”, aged 74, had a long history of epilepsy and had suffered a traumatic brain injury as a child.
In February 2025, she was admitted to hospital following non-convulsive status epilepticus after choosing not to take prescribed antiepileptic medication. While in hospital, health professionals identified significant cognitive difficulties.
Applications were subsequently made to NCAT seeking the appointment of a guardian and financial manager.
However, while those proceedings were underway, Sarah signed an enduring power of attorney and appointment of enduring guardian on 1 June 2025.
The documents had been prepared and witnessed by one of Sarah’s brothers, who was a legal practitioner. Another brother was appointed as her enduring guardian and attorney, while one of Sarah’s sons was appointed as substitute attorney.
One of Sarah’s daughters challenged the appointments, arguing that her mother did not have the necessary capacity when she signed them.
What did the medical evidence show?
A central issue was whether Sarah had capacity on 1 June 2025.
NCAT considered evidence from members of Sarah’s treating team and other health professionals.
A neuropsychologist had identified “relatively widespread cognitive difficulties” and concluded that Sarah would not have been able to handle complex financial matters without substantial support.
A doctor also gave evidence that Sarah did not have the capacity to grapple with complex decisions concerning her long-term health and personal safety and would not have capacity to make financial decisions.
Although Sarah had not undergone a formal capacity assessment on the exact day she signed the documents, the doctor had seen her shortly before and after that date.
NCAT accepted the treating team’s evidence and inferred that Sarah lacked the necessary capacity when the documents were signed.
Family views versus independent evidence
Sarah herself maintained that she had capacity, and some family members agreed with her.
However, NCAT preferred the evidence of the treating health professionals, noting their professional expertise, independence and objectivity.
The Tribunal found that Sarah did not have capacity to make either enduring appointment and revoked both.
Importantly, there were also allegations that Sarah had been pressured into signing the documents. The Tribunal did not need to determine those allegations because there were already sufficient grounds to revoke the appointments.
Who would make decisions for Sarah?
NCAT then considered whether Sarah required a guardian and financial manager.
It found that decisions needed to be made concerning her accommodation, health care, medical and dental treatment and services.
There was also significant conflict within Sarah’s family.
While family conflict does not automatically prevent a relative from being appointed, NCAT considered that appointing a family member in Sarah’s particular circumstances was likely to exacerbate that conflict.
The Public Guardian was appointed as Sarah’s guardian for 12 months, with specified decision-making functions.
NCAT also found that Sarah was not capable of managing her financial affairs and committed management of her estate to the NSW Trustee and Guardian.
What does this decision mean?
Capacity is not simply a question of whether someone can communicate their wishes.
As this case demonstrates, a person may appear capable of expressing a clear view but still lack the capacity required to understand and make a particular legal decision.
Capacity is also decision-specific and time-specific. When significant legal documents such as an enduring power of attorney or appointment of enduring guardian are being prepared, careful consideration of capacity can be critical.
As Conrad Curry explains:
“Enduring appointments can give another person significant authority over someone’s life and finances. Where capacity is uncertain, obtaining appropriate evidence at the time the documents are prepared can be extremely important. This case also demonstrates the weight NCAT may give to independent medical evidence when family members hold very different views.”
If you have concerns about an enduring power of attorney, enduring guardian appointment, guardianship or financial management arrangements, obtaining legal advice early can help you understand the options available.
At The Law Office of Conrad Curry, we advise clients throughout New South Wales on guardianship, financial management, powers of attorney and related disputes.
DISCLAIMER
This article reflects the current law at the time of publication. Please note that cases may have been the subject to appeal or subsequent judicial consideration since the date of posting. The decisions referred to are summarised for general understanding only. It is intended for informational purposes only and does not constitute legal advice. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.