The recent decision by the NSW Civil and Administrative Tribunal (NCAT) in Samantha (a pseudonym) [2024] NSWCATGD 26 is a timely reminder of how seriously the Tribunal takes disputes about Enduring Powers of Attorney (EPAs) and guardianship – and the high bar required to override a person’s previously expressed wishes.
What was this case about?
Samantha, a 97-year-old woman with Alzheimer’s, appointed her nephew John and great-niece Ellen as her attorneys under an EPA in March 2021. She also appointed them as enduring guardians. After John passed away in 2024, her niece Alice raised concerns about the handling of Samantha’s finances and care – including a $150,000 loan made to a family member and the sale proceeds of Samantha’s home.
Alice applied for a review of the EPA, along with guardianship and financial management orders, stating that Ellen was not fulfilling her duties properly and may have financially benefited through John’s estate.
NCAT’s decision
Following two hearings and the review of multiple declarations, bank records, and medical reports, NCAT:
- Reviewed the making and operation of the 2021 EPA
- Dismissed the application under s 36 of the Powers of Attorney Act
- Dismissed the application for a financial manager
- Dismissed the guardianship application
The Tribunal accepted that Samantha had capacity in 2021 to make her legal appointments. It found no proof of undue influence, dishonesty, or mismanagement. Ellen, although passive initially, was found to be acting appropriately and responsibly since John’s passing.
Why this matters
- NCAT won’t override your legal documents without strong evidence of abuse or mismanagement.
Even genuine concerns from close family members aren’t enough to revoke a properly executed EPA or guardianship unless there is clear evidence of misconduct or incapacity. - Attorneys can rely on co-appointees.
Where attorneys are appointed jointly and severally, one attorney may take the lead in decision-making. NCAT acknowledged Ellen’s reliance on John during his lifetime as lawful and reasonable. - Transparency and good records matter.
Although Ellen was not required to submit all financial records, the Tribunal highlighted the value of keeping good documentation. Her clear answers and active role post-2024 helped confirm her suitability. - NCAT prefers minimal intervention.
The Tribunal seeks to avoid unnecessary bureaucracy and cost. If a capable and trustworthy attorney is already acting in the person’s best interests, NCAT will not interfere.
Plan ahead with the right support
This case illustrates the importance of careful estate planning and selecting trustworthy attorneys and guardians. Having the right legal documents in place ensures your wishes are upheld – even when disputes arise.
If you or a loved one are preparing or disputing an EPA or guardianship appointment, our experienced team is here to support you with clear, compassionate advice.
DISCLAIMER
This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.