BJR[2025] QCAT 128

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   BJR is 72 years old, and he has had a successful life as a farmer where, with his wife BAM as his partner, he has accumulated substantial assets. Those assets are held in a series of superannuation trusts, controlled by corporate trustees, a Family Trust with a corporate trustee and a company which is a trustee for properties purchased for the superannuation funds. Their two sons have rural properties of their own, separate from their parents, and their daughter is no longer directly involved in any daily farming life of the family.
2. [2]
   According to documents filed in these proceedings and the written submissions by counsel representing BAM, the joint wealth of BJR and BAM on 30 June 2024 had a net worth of approximately $24,500,000.  BJR’s balance in each of the self-managed superannuation funds is 50%, with his wife’s balance being the other 50% of the superannuation funds.
3. [3]
   As both BJR and his wife are retired from working in their farming enterprises, they draw down a pension from their superannuation. The documents filed in the Tribunal reveal that the minimum annual pension obliged to be withdrawn for BJR and BAM is currently just over $575,000 or about $287,000 for each of them. 
4. [4]
   Over many years, BJR and BAM have relied on professional accounting and financial management advice from long term and trusted advisors. As a large part of their accumulated assets is constituted by rural land, the income generated by those assets is currently fundamental to funds being readily available for their pensions since BJR’s retirement as an active farmer. Their financial advisors have over time put forward alternative options to enable funds for the pensions to be generated for many years to come as BJR had stated the obvious some time ago that “you cannot eat dirt”. 
5. [5]
   In evidence given to the Tribunal, it appears there is a divergence of opinion within the family as to how the major rural landholding (WP) should be dealt with. BAM is open to the proposal put forward by the advisors that WP (either in full or in part) is sold at the best price achievable while two of the children of BJR, who are applicants in these proceedings, hold the view that BJR had always wanted WP (inherited from his parents) to remain under family control and be passed down to his children as an intergenerational asset for the benefit of future generations.  
6. [6]
   This divergence of opinion proved to be influential in the bringing of these applications. While not the sole motivation for the proceedings being initiated by the son and daughter of BJR, the concerns of these applicants, that they and their children may miss out on the benefits of inheritance of WP, were material concerns when it became clear that their mother was contemplating selling WP in June 2024 at a time when their father would not have the capacity to stop such a transaction. 
7. [7]
   For it was the case that BJR had developed cognitive decline which was described as moderate cognitive impairment in 2021.  By May 2023 a geriatrician had reported that short term memory difficulties, social isolation, problems with hygiene, urinary incontinence, attentional difficulties and reduced verbal fluency were highly suggestive of frontal lobe dysfunction and likely mixed Alzheimer’s dementia/vascular dementia. He noted a Montreal Cognitive Assessment (MoCA) score of 13/30.  While the medical evidence will be discussed in detail later in these reasons, it appeared that by 2023 the family had accepted that BJR was demonstrating cognitive impairment and that he needed supplementary care to meet his needs.
8. [8]
   BJR had acted to ensure that he had support for decision-making if he should lose capacity. On 1 August 2003 he made an Enduring Power of Attorney which appointed his wife as his attorney for health, personal and financial matters with one of his sons and his daughter as joint successive attorneys.  On 6 March 2019 he made a fresh Enduring Power of Attorney which appointed his wife as his attorney for health, personal and financial matters and then his two sons and his daughter severally as successive attorneys.  On 20 May 2022 he made a fresh Enduring Power of Attorney which appointed his wife and his daughter severally as his attorneys for health, personal and financial matters with his two sons jointly as successive attorneys.
9. [9]
   These proceedings are made in part to determine whether another, and last Enduring Power of Attorney made by BJR on 18 September 2023 is validly made. That document appointed his wife as his attorney for health, personal and financial matters with no successive attorneys appointed. 
10. [10]
    The other applications seek the appointment of guardians and administrators for BJR.   His son, BD and his daughter, BC, have applied to be his guardians and administrators, and in separate applications, his wife has applied to be his sole guardian and his administrator with one of his professional advisors.  
11. [11]
    Turning to the Enduring Power of Attorney made on 18 September 2023, the document complies with the formal requirements of s 44 of the Powers of Attorney Act 1998 (Qld) (POA) but BC and BD dispute whether BJR had the requisite capacity to grant the Enduring Power of Attorney on 18 September 2023.  The Tribunal has power from ss 113(1) and 109A of the POA to decide the validity of an Enduring Power of Attorney.  If the Tribunal declares that the document is invalid, s 114 of the POA states that the Enduring Power of Attorney is void from the start.  This would mean that any exercise of power undertaken by the attorney, reliant on the 18 September 2023 document, is void. 
12. [12]
    The Tribunal starts its deliberations based on s 111A(1) of the POA which states that the Tribunal is required to presume BJR had capacity to make the Enduring Power of Attorney until the contrary is proven. The definition of capacity to make an Enduring Power of Attorney is set out in s 41 of the POA.  Starting with that definition, there is an implicit presumption that BJR was capable of fully and freely making the Enduring Power of Attorney and that he understood the nature and effect of signing that document. 
13. [13]
    Evidence has been given to the Tribunal about BJR’s capacity and submissions have been filed by the legal representatives of the parties interpreting the evidence from the viewpoint of their respective clients. The parties impugning the validity of the Enduring Power of Attorney have the task of rebutting the presumption of capacity.  The proof needed must meet the civil standard of proof but decided authorities state that the proof must be to the Briginshaw^[1] standard.   

Evidence about BJR’s cognitive functioning

14. [14]
    The evidence about capacity to make an Enduring Power of Attorney on 18 September 2023 is made up of two kinds: direct factual evidence from both lay and medical witnesses as to the cognitive functioning of BJR and opinion evidence from medical witnesses and the witness to the signing of the Enduring Power of Attorney on 18 September 2023.  All this evidence has been taken into consideration in reaching a conclusion about BJR’s capacity to make his last Enduring Power of Attorney on that day. 
15. [15]
    The Tribunal will first examine the factual evidence about BJR’s cognitive functioning (in which I include diagnostic conclusions about the presence of medical disorders) and then secondly will examine the expert medical opinion evidence and certifying witness evidence about BJR’s capacity to sign the Enduring Power of Attorney.  It is the responsibility of the Tribunal to make a legal determination about that capacity. 

Evidence by Dr Milad

16. [16]
    The earliest medical report about BJR’s capacity given to the Tribunal is by Dr Milad, psychiatrist, dated 9 June 2021.  Dr Milad saw BJR on 20 May 2021.  Dr Milad reported that BJR complained of memory problems, especially short-term memory, which had started in about 2019 as a gradual onset.  Dr Milad tested BJR’s memory and found a clear indication of amnesia.  Dr Milad reported that BJR could register five new words after repetition, but that BJR struggled to retain and recall them.  BJR was reported to be disorientated with date, month and place.  A mini mental state examination was 24/30 and a Montreal Cognitive assessment had been 25/30 sometime recently.
17. [17]
    Dr Milad noted a substance use disorder with regular alcohol intake over many years.  He noted that BJR had a complex medical history, mainly cardiovascular in nature, and including hypertension. An MRI scan from March 2021 revealed changes in the brain consistent with chronic ischaemic foci.
18. [18]
    Dr Milad expressed his diagnosis that BJR exhibited mild cognitive impairment/early or mild neurodegenerative disorder, most likely of mixed type. Dr Milad expressed the opinion that BJR did not have significant impairment in his personality and functioning but noted BJR was reliant on his wife for financial matters and always had been. Dr Milad noted that BJR had difficulty finding his way, sometimes with driving and without the assistance of his wife, he will have difficulty finding his way.
19. [19]
    Dr Milad advised BJR to reduce his alcohol use and to have many alcohol-free days.  Dr Milad reported that most likely BJR would need an occupational therapy assessment regarding his fitness to drive.
20. [20]
    Dr Milad produced a second report on 22 July 2021.  Dr Milad noted that BJR had not cut down on his drinking and that he continued to drink in excess and in an unhealthy way. Dr Milad reported that he provided feedback about the prognosis, which he thought was unavoidably linked to the vascular health of BJR’s brain tissue and that BJR needed to address his alcohol use to prevent further decline in cognitive abilities and slow the progression towards decline because of further neurodegenerative loss. 
21. [21]
    A further report from Dr Milad was filed on 17 August 2022.  In this report Dr Milad reported changes made to BJR’s treatment by BAM which Dr Milad did not recommend. Dr Milad stated that BJR cannot give adequate answers and tended to answer by giving general statements. 

ACAT assessment

22. [22]
    An ACAT assessment was conducted in the absence of BJR on 8 December 2022. It was reported that information was given by BAM and BC. The information provided during the assessment stated that BJR had been diagnosed with vascular dementia in 2019. It noted that BJR forgets things within five minutes, he forgets to attend to personal care, to change his clothes and there is a fear of him getting lost if he goes for a walk. 
23. [23]
    It was noted that BJR required support for all community participation due to his cognitive impairment. He was completely unable to complete shopping tasks, meal preparation or domestic tasks. BJR was supported by his wife for domestic tasks, financial and medication management as he would forget to take medication or would try to take it twice. BJR needed support from his wife to set up and to be prompted to complete shower tasks and to wear appropriate clothing. BJR required support with hygiene and verbal prompting to wear and change urinary continence aids. He would often forget to eat and needed prompting. 
24. [24]
    It was reported that BJR was very withdrawn and apathetic, he did not engage in or initiate conversations and was always repeating himself. It was reported that BJR likes routine and gets very confused with a change of routine, regularly disorientated to date, place and people. He was at risk of wandering and getting lost and BJR becomes frustrated and anxious towards his wife when she is providing care to him.

Evidence of Dr Tampiyappa - geriatrician

25. [25]
    BJR attended a new geriatrician in 2023. He consulted Dr Tampiyappa on 24 May 2023. Dr Tampiyappa reported that BJR’s short-term memory was particularly affected, he was becoming more introverted and socially isolated and needed prompting for hygiene and wearing pads for urinary incontinence. Dr Tampiyappa noted significant attention issues, struggles with verbal fluency and was mostly disinterested in conversation. Dr Tampiyappa reported that given BJR’s previous work as a farmer and being then very active, he thought the current presentation was highly suggestive of a frontal lobe dysfunction. BJR scored 13/30 on a Montreal cognitive assessment. 
26. [26]
    Dr Tampiyappa diagnosed that BJR most likely had mixed Alzheimer’s vascular dementia concurrent with quite significant alcoholism. Dr Tampiyappa reported that BJR denied any depressive symptoms and just merely has avolition to do anything.

Evidence of Dr Morris - GP

27. [27]
    Dr Morris, BJR’s general medical practitioner, had recorded BJR has having agitation on 23 August 2023. Medication was prescribed for anxiety.  From the oral testimony of Dr Morris, it was revealed that BAM and BC had a telehealth call with another doctor in the practice about BJR on 15 September 2023. Dr Morris read his colleague's clinical notes as indicating that the consultation was about medication. 
28. [28]
    BJR attended his cardiac specialist, Dr Adsett, on 25 August 2023. In a report dated that day, Dr Adsett referred to the presence of memory impairment in BJR. 
29. [29]
    There was no medical assessment carried out specifically for the occasion when BJR made an Enduring Power of Attorney on 18 September 2023. 

Evidence of family members

30. [30]
    Factual evidence by non-medical witnesses about the observed cognitive functioning of BJR before 18 September 2023 was given by BAM, BC and BD. BAM told the Tribunal that she had noticed that BJR’s short-term memory had started to decline some years ago when he could not recall what they had done on a holiday just a short time earlier. When BJR retired from farming he was dealing with serious medical issues which had affected his physical wellbeing. BAM told the Tribunal that she took on more responsibilities for his care as his memory worsened and his dependence on her care increased. 
31. [31]
    By the end of 2022, BAM and BC had arranged for an ACAT assessment to be done as a step towards arranging some professional care to supplement the care that BAM was providing to BJR. BAM stated that by then BJR’s personality and behaviour had changed to such an extent that BAM felt that the person she had once known was not there anymore. BJR took no interest in the things they used to discuss. BAM stated that she had glimpses of BJR as himself and that he was deteriorating over time.  BAM stated that their marriage life together was not there anymore.
32. [32]
    BAM stated that even after carers were in BJR’s life (outside care commenced in January 2023), BJR would constantly phone BAM wondering where she was, even though a carer was with him at the time. 
33. [33]
    BAM told the Tribunal that she told BJR about her relationship with another man in August 2023. BAM knew that this news was distressing to BJR. She contacted Dr Morris in August 2023 to arrange medication for BJR to calm his anxiousness. 
34. [34]
    BC and BD had filed joint statements and during their cross-examination it was conceded by BD that most of the statements had originated from BC but that he had agreed with all the contents of the statements. Despite this, he did not appear to fully understand some of the paragraphs that he had endorsed as joint evidence. Overall, any confusion by BD about meanings of words or expressions in the filed statements did not materially detract from the sincerity of his evidence. 
35. [35]
    BC told the Tribunal that she had observed that BJR was left devastated by the news that BAM had started a relationship with a man in August 2023. BC stated that BJR had told her of his suicidal thoughts and that she found him in a state of collapse and in tears. BC stated that BJR was emotionally distressed and heartbroken by BAM’s absences when remembering intermittently that BAM had a boyfriend. Each time BAM departed from BJR, he demonstrated emotional torment. 

Findings about BJR’s cognitive functioning before 18 September 2023

36. [36]
    As set out above, factual evidence about BJR’s cognitive abilities and emotional state before 18 September 2023 was reported by two geriatricians, a cardiac specialist, an ACAT assessor and three family members. The following findings are made based on an analysis of the factual evidence:

    1. BJR had demonstrated progressive short term memory decline from 2019;
    2. Was amnesic by 2021;
    3. He struggled to retain and recall five new words;
    4. He was regularly disorientated to time, place and people;
    5. He had a substance abuse disorder with excessive and regular drinking of alcohol which added to the progressive worsening of his cognitive difficulties;
    6. He was diagnosed with mild cognitive decline/a mild neurodegenerative disorder in 2021;
    7. He was reliant on BAM in financial matters;
    8. He could not give adequate answers and tended to answer giving general statements;
    9. He would forget information after five minutes, would forget to attend to personal and hygiene cares, would forget to take his medication, he would forget to eat, and he was at risk of wandering and getting lost when going for a walk;
    10. He was unable to do the shopping, prepare meals or do domestic tasks;
    11. He was very withdrawn and apathetic, he did not initiate nor engage in conversation, he was regularly repeating himself;
    12. He liked routine and would get very confused with a change of routine;
    13. He had significant problems maintaining attention and he struggled with verbal fluency;
    14. His Montreal Cognitive Assessment score had declined from 25/30 to 13/30 from 2021 to May 2023;
    15. He was diagnosed with likely mixed Alzheimer’s/vascular dementia with quite significant alcoholism;
    16. He had demonstrated anxiety resulting in anti-anxiety medication being prescribed in August 2023;
    17. His personality had changed by the end of 2022 to the extent that BAM could not recognise him any longer as the man BJR had once been;
    18. The married life of BJR and BAM was irrevocably changed by his dementia;
    19. BJR had been distressed and emotionally devastated when told the news in August 2023 that BAM had started a new relationship with another male;
    20. He spoke of suicide, was found in tears and in a state of emotional collapse;
    21. He would forget what BAM had told him but would intermittently recall or be reminded resulting in repeated episodes of distress and emotional turmoil; and
    22. He would become distressed whenever BAM left him for a few days.  
37. [37]
    The Tribunal concludes that by 18 September 2023 BJR was demonstrating signs of advanced cognitive decline. His short-term memory was very poor. He could not register and retain day to day matters such as when he last ate or whether he had taken his medication. He operated on a routine to make sense of his daily existence and depended on others, mostly his wife, to prop up that routine and take on responsibility for all complex issues in his life. He appeared to live in the moment.  
38. [38]
    The Tribunal finds that BJR could not automatically recall the seismic news that his wife was in a relationship with another man after being told of this in August 2023 unless he was reminded of the fact by others or by his wife’s absence from home. His displays of distress when he was recalling that news were intense and remarkable but equally remarkable was his relative lack of emotion and his behavioural equilibrium at all other times.  

Steps leading to change of Enduring Power of Attorney

39. [39]
    BJR did not initiate the changing of his Enduring Power of Attorney in September 2023. BAM told the Tribunal that she had discussed with BJR about changing their Enduring Powers of Attorney and the Tribunal accepts that such a discussion was likely to have taken place. The evidence of the steps that lead up to BJR making a new Enduring Power of Attorney on 18 September 2023 is the context in which to consider his capacity to do so on that day. The facts are not disputed.
40. [40]
    BAM telephoned to the lawyers for BAM and BJR, Cooper Grace Ward, on 11 September 2023 and spoke to Yvonne Treacher who was a senior paralegal in that firm. BAM told Ms Treacher that she and BJR wanted to make amendments to their Enduring Powers of Attorney to appoint each other as attorneys but to remove some of their children as attorneys and to just keep their son, BP as successive attorney.  
41. [41]
    Drafts of new Enduring Powers of Attorney based on BAM’s telephone instructions were prepared and sent out to them by email. On 13 September 2023, BAM telephoned a partner at that firm, Clinton Jackson, and discussed how protected she was from her children acting against her. When asked for information about the context of this query, BAM disclosed that BJR had been diagnosed with dementia three years earlier. BAM told Mr Jackson that BJR was still “Ok” with his memory when doing a particular thing, but he would forget it had happened later that night or the next day.  
42. [42]
    BAM told Mr Jackson that she had a new boyfriend whom she had been seeing for six months. BAM told Mr Jackson that since then, BC had turned on her and was being very nasty. BC had accused BAM of trying to kill BJR, she wanted BAM to move out of their unit so BC could provide care for BJR, and that BC had monitored the security cameras at WP when BAM was visiting to observe what BAM was doing.  
43. [43]
    BAM told Mr Jackson that she was very hurt by this. BAM was worried what power her children could exercise over her and BJR. Mr Jackson gave advice to BAM about the effect of her current Enduring Power of Attorney and BAM outlined what changes she had already instructed the firm to make to both Enduring Powers of Attorney. Mr Jackson gave BAM advice about how to protect the assets she had accumulated from access by the man with whom she was having a relationship.
44. [44]
    On 15 September 2023, BAM had another telephone call with Yvonne Treacher. Before taking the call, Ms Treacher spoke to Mr Jackson to ensure she was up to date on the Enduring Power of Attorney issues. BAM and Ms Treacher discussed how to make changes so that BC and BD could not “gang up” on BP. BAM wanted to sign the new Enduring Power of Attorney as soon as possible as the situation was making her anxious. BAM discussed whether she and her boyfriend could instruct the firm jointly to prepare a financial agreement to protect her assets and BAM was advised that the firm could not act for them both. BAM was referred to the Family Law section of the firm for this purpose. An appointment was made for both BJR and BAM to sign the Enduring Power of Attorney documents the following week before another partner, Scott Hay-Bartlem.

Meeting with lawyers on 18 September 2023

45. [45]
    BJR and BAM attended at their lawyers in Brisbane on 18 September 2023.  According to a typewritten file note summary dated 18 September 2023, made by Mr Hay-Bartlem at some time after the interview had ended, he was aware prior to the appointment that BAM had spoken with Mr Jackson the previous week and that she had discussed “some more about their current scenario” with Mr Jackson, including that BJR had been diagnosed with dementia some three years ago.   In his oral evidence, Mr Hay-Bartlem confirmed that he was also aware that BAM was in a relationship with another man before he commenced the interview on 18 September 2023. 
46. [46]
    Mr Hay-Bartlem had not seen BAM or BJR for a few years before this appointment.  He saw them together. He took them page by page through the documents to explain the purpose and how they operated. The documents allowed for each of BJR and BAM to appoint each other as their attorney. If their sole attorney could not act, then their son BP was to act as a joint attorney with one of either BC or BD. BAM was concerned that two of the children could gang up on the third child with the result that no decisions would be made. She was satisfied after further discussion that the document as drafted was appropriate. 
47. [47]
    BAM told Mr Hay-Bartlem that she was happy to have BJR set down as her attorney in the first instance as she was satisfied that he had not yet lost capacity. 
48. [48]
    Mr Hay-Bartlem described how he took instructions from BJR. He asked BJR what document he was signing, and he replied that it was a document where others could decide things for him. Mr Hay-Bartlem asked who BJR would like to make these decisions and BJR had replied BAM first and then his son, BP “as the boss” but then equal between the other two children. When Mr Hay-Bartlem sought to clarify this response, BJR became confused and gave inconsistent instructions about who the fallback attorneys should be. 
49. [49]
    Mr Hay-Bartlem concluded that BJR was clear that he wanted to appoint BAM to make decisions for him, but he was not clear on who should be a fallback if BAM could not act. Mr Hay-Bartlem crossed out the fallback provisions in the document so that BJR’s Enduring Power of Attorney solely appointed BAM. BJR signed the document as amended.
50. [50]
    BAM also signed her Enduring Power of Attorney and a revocation of the 2022 Enduring Power of Attorney. BJR did not sign his revocation of his 2022 Enduring Power of Attorney. This was because Mr Hay-Bartlem had told them it was probably better not to have to explain to BJR another set of documents and that the new document revoked the old one anyway. Mr Hay-Bartlem told BAM that it may not be much longer that BJR is able to make Enduring Powers of Attorney so she should ensure that they were happy with the ones that they had. This comment was noted to be directed not to BJR but only to his wife.
51. [51]
    A contemporaneous handwritten file note of the interview containing what appears to be verbatim words used on 18 September 2023 was made by Ms Treacher who also attended the interview with BAM and BJR. She noted Mr Hay-Bartlem taking BAM and BJR through the pages of the Enduring Powers of Attorney and explaining their content. Ms Treacher recorded some additional comments made by BAM to those recorded in the summary made by Mr Hay-Bartlem after the interview. BAM had stated that she was concerned about the children running things on their own. She commented that she did not want the children to gang up, that they did not get along and they were turning on her. 
52. [52]
    Ms Treacher noted that BAM asked BJR for his opinion, but Ms Treacher was unable to catch what he had replied. After some more discussion about how or even whether to appoint the children, BAM said that they could review the document in two years.  Mr Hay-Bartlem asked BAM whether she thought appointing BJR as her attorney was still appropriate and BAM replied that they run things past BJR, and he can still make decisions on the day.
53. [53]
    BAM then asked BJR if he was happy with the arrangements in the Enduring Power of Attorney and his reply was “Yes.  They’re not stupid”.  Ms Treacher also recorded BJR as stating that “outside influences count” and that fairness/equality of funds is not seen the same by the children. The notes did not make it clear what those comments related to. 
54. [54]
    Ms Treacher records that Mr Hay-Bartlem then asked BJR whether he knew what document he was signing.  She noted that BJR had responded “no”. Mr Hay-Bartlem is recorded as explaining it is an Enduring Power of Attorney, and he asked BJR why he was signing the document. BJR is recorded as saying “to keep an eye on everybody”. Mr Hay-Bartlem then asked who BJR was giving power to and BJR replied “BP”. 
55. [55]
    Ms Treacher noted that Mr Hay-Bartlem asked BJR again what does an Enduring Power of Attorney do.  BJR’s response was that it “decides what to do for you”. When asked who is  first to decide , BJR responded “BAM”. When asked who would decide if BAM could not, BJR replied BP. When asked whether he wanted just BP or BP with the others, BJR’s response was that he would like the others to be there, but he wanted BP to be the “boss” of it. When asked whether BJR wanted BP to make decisions by himself, BJR replied “no” and he agreed to the question of Mr Hay-Bartlem that BP should talk to the others to decide.
56. [56]
    Ms Treacher notes that BJR was then asked if he wanted BC to make decisions now by herself, and BJR is recorded as answering “yes” but followed up that answer with the words, that he preferred that he was taken down to the gully and shot. BJR is recorded as going on to say that surely all three children could make decisions together. 
57. [57]
    Ms Treacher next records that Mr Hay-Bartlem asked whether BJR was happy for BAM to make decisions for him, and he replied “yes”. Mr Hay-Bartlem then confirmed BJR’s instructions were that the draft document was to be changed so that only BAM can make decisions. Mr Hay-Bartlem is recorded as stating that BJR knows how the new Enduring Power of Attorney would work, and that BAM was happy for BAM to make decisions. Mr Hay-Bartlem put a line through the fallback attorneys and BJR confirmed that he knew only BAM would make decisions and he was happy with that. The Enduring Power of Attorney was then signed by BJR.
58. [58]
    Three days later, on 21 September 2023, Mr Hay-Bartlem was asked by Ms Treacher whether she should arrange for BJR to sign acceptance of BAM’s grant of power to him as BAM’s attorney as that step had not been done at the 18 September 2023 meeting. Mr Hay-Bartlem replied in an email: “Ok see if (BAM) wants (BJR) to sign hers. I am not convinced he could act under it so maybe it does not matter.”
59. [59]
    BJR did not give any evidence in these proceedings. He did not attend any of the three days when the hearing took place. His appointed representative made submissions on his behalf under s 125 of the Guardianship and Administration Act 2000 (Qld) (GAA). 

Evidence after 18 September 2023 – Dr Tampiyappa

60. [60]
    Apart from the factual evidence set out above, the Tribunal received medical opinion evidence about BJR’s capacity to make a valid Enduring Power of Attorney on 18 September 2023. BJR attended his geriatrician, Dr Tampiyappa on or about 25 July 2024, more than ten months after the Enduring Power of Attorney was signed. In a report of that date, Dr Tampiyappa stated that he was asked to determine BJR’s decision-making capacity regarding appointing an Enduring Power of Attorney.  Dr Tampiyappa assessed BJR as having quite a significant dysexecutive syndrome, likely mixed Alzheimer’s vascular dementia. BJR had only scored 13/30 on a Montreal cognitive assessment score. 
61. [61]
    Addressing whether BJR had capacity to appoint an Enduring Power of Attorney, Dr Tampiyappa reported that it was clear that BJR wants BAM, his wife, to be his attorney. BJR is reported as telling Dr Tampiyappa that he did not want his children involved as “I do not want people to start fighting over money”. BJR was able to tell Dr Tampiyappa, without being provided with prompting, that an Enduring Power of Attorney is appointed to make decisions when “I am not capable of doing it for myself”. BJR was clear that he wanted his wife to do this. 
62. [62]
    Based on that assessment, Dr Tampiyappa gave an opinion that BJR had capacity on 25 July 2024 to appoint BAM as his enduring power of attorney. 
63. [63]
    In the same consultation on 25 July 2024, Dr Tampiyappa assessed BJR’s capacity to make financial decisions and his ability to carry out the role of a company director.  BJR was able to tell Dr Tampiyappa in simple and slightly inaccurate terms what property he owns, and BJR estimated his net worth at $500,000 which was 25 times less than his actual worth. Dr Tampiyappa assessed BJR as having no ability to conduct any form of multi-tasking, numerical calculations and had limited decision-making capacity. 
64. [64]
    Based on his assessment, Dr Tampiyappa expressed his opinion that on 25 July 2024 BJR did not have capacity to make financial decisions on his behalf, nor did he have capacity to carry out his role as a director.

Evidence after 18 September 2023 – Dr Morris

65. [65]
    There is one further medical report that makes direct reference to BJR’s capacity to make an Enduring Power of Attorney on 18 September 2023. Dr Morris, BJR’s general medical practitioner since 2013, provided a report dated 7 August 2024 in response to a request from Cooper Grace Ward for assessment of BJR’s decision-making capacity in July 2024. In his capacity assessment, Dr Morris referred to and adopted the second mentioned report of Dr Tampiyappa of 25 July 2024 (as to capacity to make financial decisions and to act as a director). Dr Morris did not appear to refer to, when writing his report, a copy of the first mentioned report of 25 July 2024 where Dr Tampiyappa stated an opinion that BJR had capacity to appoint BAM as his attorney. 
66. [66]
    Dr Morris stated that he was obtaining an urgent opinion from Dr Tampiyappa regarding BJR’s capacity to sign his Enduring Power of Attorney in September 2023. No further report, however, was provided to the Tribunal from Dr Tampiyappa. 
67. [67]
    In his report dated 7 August 2024, Dr Morris referred to what he called “an important side issue”. Dr Morris expressed serious concerns about BJR’s cognitive capacity at the time that the Enduring Power of Attorney was created and signed by BJR. Dr Morris concerns appear to arise from Dr Tampiyappa’s diagnosis of 24 May 2023 in which the geriatrician described BJR as having dysexecutive syndrome likely mixed Alzheimer's and vascular dementia with a Montreal Cognitive Assessment score of 13/30. 
68. [68]
    Dr Morris explained that an assessment score between 10-17 is considered to represent moderate cognitive impairment. Dr Morris expressed his concern that when the Enduring Power of Attorney was signed, BJR could similarly be considered having impaired capacity. Later in his report, Dr Morris repeated his concern that BJR had impaired capacity when the Enduring Power of Attorney was signed and probably as far back as December 2022. 
69. [69]
    Dr Morris provided one further report about BJR’s capacity to the Tribunal dated 24 October 2024 in the form of the Health Professional Report used by the Tribunal. The opinions expressed in that report do not assist with a determination of the capacity of BJR to make an Enduring Power of Attorney on 18 September 2023 as it deals only with capacity issues as of the date of his report.
70. [70]
    Dr Morris gave oral evidence at the hearing. He explained that he had voiced his concerns about BJR signing an Enduring Power of Attorney due to BJR’s impaired cognitive functioning as of 18 September 2023 when Dr Morris provided a report about BJR to Cooper Grace Ward in August 2024. He agreed with counsel for BAM in the following exchange: “Q: So you raised the flag. You said, ‘Look, there’s a geriatrician in tow.’ That is, there’s – he’s an existing patient. The concerns, if there are them – and you certainly held some, given the diagnosis, quite properly – about the efficacy or the validity of the EPA in terms of capacity, you’ll refer to Dr Tony Tampiyappa, he being a specialist in the area, for want of a better word – a better phrase, in assessing capacity, amongst other things I’m sure he’s an expert in. That’s – that would be right?   A: That’s correct.”
71. [71]
    Dr Morris was asked: “Q: And the final sentence – I won’t trouble you with the rest of it, because you know it all, in terms of the background – it just says, “(BJR) does have the capacity to appoint (BAM) as enduring power of attorney on my assessment today.” Do you have any reason to disagree with Dr Tampiyappa’s opinion? A: No. Q: Thank you. So therefore, whilst you haven’t assessed the capacity for (BJR) to have made the enduring power of attorney, you would not disagree – you have no reason to disagree – with the geriatrician who you commended or recommended he go to to have precisely that assessment undertaken? A: That’s right.”
72. [72]
    Later in his evidence, Dr Morris re-stated his concerns about BJR’s capacity to make an Enduring Power of Attorney, but he would not disagree with the opinion of Dr Tampiyappa. When questioned by counsel for BAM about retrospective assessment of capacity, the following exchange took place: “Dr Morris: People with ......dementia where their confusion and agitation can certainly become worse later in the day and early evening. Counsel: And this would, in part, be why you – first, you conducted no assessment for the purposes of determining capacity for an EPA, but second, this is why a retrospective assessment is so difficult if you’re asked to assess somebody’s capacity at a particular date in the past?  Dr Morris: Certainly. It – it’s certainly challenging and complicated, definitely.”

Evidence of certifying witness

73. [73]
    Apart from medical opinion evidence as to capacity of BJR to make an Enduring Power of Attorney on 18 September 2023, Mr Hay-Bartlem, as the certifying witness to the document, gave opinion evidence to the Tribunal. He told the Tribunal, both in his written evidence and orally, that he believed BJR understood the nature and effect of the document he was signing and that he wanted BAM to have that power. He was aware of the dementia diagnosis. He had not read any medical reports about the state of BJR’s cognitive functioning, nor had he spoken to any family members about how the dementia diagnosis had affected BJR on a practical level. He had not spoken to BJR for some years before the interview. 
74. [74]
    He said: “I spent quite some time going through the power of attorney with (BJR) and in how they wanted to run things, asking him direct questions, and he was quite specific that he was there to sign the power of attorney. He could tell me why he was there. He could tell me what he wanted it to do. He could tell me the type of document that it was. ...In my assessment, having dealt with him before, he understood all of those things and had specific wishes.”
75. [75]
    When asked why he had not sent BAM out of the room so he could ask BJR questions about the state of their relationship, Mr Hay-Bartlem replied: “So (BAM) didn’t say very much during the meeting when I was talking with (BJR). ...I was thinking, during the meeting, that their – he was adamant that he wanted (BAM) to make the decisions. That was quite clear. It seemed to me, their interests were aligned, in how they wanted to run things.”
76. [76]
    When asked what he knew about the relationship that BAM had with another man, Mr Hay-Bartlem replied: “I think, I did not have all the details. ...it was more than a friendship, but my understanding was, it hadn’t gone nearly as far as being a serious relationship between (BAM) and whoever the other person was.”
77. [77]
    Mr Hay-Bartlem agreed that he had not explored with BJR the issue of his trust in BAM in the context of her relationship with another man and the marriage being under strain. When asked whether he had taken at face value the assertion of BJR that he wanted BAM to make decisions in the context where BJR had been diagnosed with dementia, Mr Hay-Bartlem replied: “Yes. Based on the history of them working together, ...what was I thinking? It didn’t seem appropriate to raise with him, given he was adamant, and (BAM) was already an attorney.”
78. [78]
    When queried further to clarify that he had not raised with BJR that BAM was in a relationship with another man in view of BJR’s adamant assertion that he wanted BAM to be his sole decision-maker, Mr Hay-Bartlem replied: “Not solely. ...based on my history with the family and the fact (BAM) is already an attorney. (BAM) already was – and if – if – if we signed nothing that day, (BAM) would have remained an attorney.”
79. [79]
    Although Mr Hay-Bartlem had concluded his evidence on the first day of hearing, his request that he be permitted to add to his evidence on the second day of the hearing was allowed. His further evidence concentrated on why he had not raised BAM’s relationship with another man when he took instructions on BJR’s Enduring Power of Attorney.  His explanation was: “So there was thought about the effect of (BAM)’s – I’m going to call, a “friend” on (BJR), when we got the instructions through (BAM) to do the new Enduring Powers of Attorney. We didn’t raise it with (BJR) in the meeting, because that didn’t seem appropriate without any context and, with only (BAM) there with him, that would seem to be a very harsh thing to do. So I think, by that point in time, it would have been too late. And if we were to take action, it is something that should have happened before the meeting. So I don’t think that raising it in the meeting, by the time we got to that point, was an appropriate way of doing it. So that’s why it wasn’t raised in the meeting.”
80. [80]
    Further: “We thought about it and, in the context of (BAM) and (BJR)’s financial and personal relationships, still felt we were comfortable doing the power of attorney from where it was to where it was going to be. So I’ll talk about some of the factors behind all that. So the first thing that I always come back to on this one is that (BAM) has been (BJR)’s attorney for many, many, many, many, many years, and she already was an attorney. So we’re not adding somebody new on as an attorney who hadn’t been an attorney before. The effect, as I said yesterday, really was to remove (BC) as an attorney. Different situation, for example, to a spouse of two years suddenly being added as an attorney.”
81. [81]
    Further: “(BAM) already had financial control. She had financial control of everything because she was already an attorney, because she was a Director of those family entities, and (BAM) had been running these ventures very successfully for the couple and the family for a long period of time. So it would be different in other circumstances. We had acted for the family for quite a few years, and we’d seen (BAM) and (BJR)’s joint commitment to their lives together, as against the rest of the world, quite effectively for a long period of time.”
82. [82]
    Further: “So (BAM) had control of all this. For (BJR) to get control, or even to have somebody else in control with (BAM), would have taken significant – doable, but there – if that’s the point it gets to, then there would be a significant change of all of their arrangements.”  Mr Hay-Bartlem was asked whether it had not occurred to him to give BJR an opportunity to reflect on the trust he had in his wife given her new relationship or, if it had occurred to him, did he think it was inappropriate to raise the issue.  His reply was “correct”.
83. [83]
    The following exchange between BAM’s counsel and Mr Hay-Bartlem appears to sum up the perceptions held by the certifying witness at the time: “Q: That given that he was told of this relationship, might it have also been that if – would you expect a client such as (BJR) to have raised with you concerns about the appropriateness of (BAM) to be attorney if he was aware of the relationship? A: Yes. I would have.... In the context of the discussion that we had in the meeting – so I didn’t test him and say, “Do you know” and “Are you still happy with this”. I would’ve expected, given the long discussion we had about appointing and his adamant that he wanted (BAM) to be his attorney, ie, he had the opportunity, and he talked enough. Like, it’s not like he sat there muted and didn’t say anything during the course of the meeting.”
84. [84]
    A later exchange between the legal representative for BC and BD and the certifying witness contains further clarification of the perceptions held by Mr Hay-Bartlem when BJR signed his Enduring Power of Attorney: “Q: So normally in a situation where you’ve been told this, in this context, your normal process would be to do what in terms of the proposed joint meeting with them? You’ve just found out about the relationship. You still haven’t had the meeting. What would you normally do in that situation to protect your ethical obligations? A: we sent the draft documents out and we had the discussion about the nature of (BAM) being an attorney and decided that their interests – that (BJR) and (BAM)’s interests were still aligned. Because of the history of running the family enterprise together over a significantly long period of time. Q: So that suggests you had a – an overconfidence, perhaps, from that long-standing relationship that there was nothing particularly untoward about what was about to happen. A: Perhaps.”
85. [85]
    The final part of the cross-examination continues with the explanation of the certifying witness: “Q: And you never considered, for example, either cancelling their appointment or indeed separating them before they arrived? A: We considered it but we thought that an appropriate course of action was to continue in this particular circumstance.... we were trying to help them get the result they wanted.”

Analysis of evidence about capacity to sign the Enduring Power of Attorney

86. [86]
    BC and BD have sought a declaration from the Tribunal that the Enduring Power of Attorney of BJR signed on 18 September 2023 was invalid due to a lack of capacity.  To make such a declaration, the Tribunal must be satisfied that the evidence rebuts the presumption of capacity.  In paragraph 36 of these reasons, the Tribunal has set out its findings on the facts established in the evidence as to the cognitive functioning of BJR leading up to the interview on 18 September 2023. 
87. [87]
    BJR’s cognitive capacity was impaired due to mixed Alzheimer’s and vascular dementia by 18 September 2023. His short-term memory was significantly impaired, and he would tend to forget information five minutes after he was given that information.  He had been told by BAM that she had a relationship with another man in August 2023. His immediate reaction was extreme distress; being in tears, threatening suicide and exhibiting emotional collapse. However, BJR forgot what he had been told about BAM’s relationship with another man and only intermittently recalled that information when prompted by another person or by BAM’s absence. 
88. [88]
    BJR was described as very withdrawn, apathetic, and did not initiate or engage in conversation. When he did recall that BAM was in a relationship with another man, he exhibited, at those times, episodes of distress and emotional turmoil. On 18 September 2023, BJR did not exhibit any distress. He said few words, mostly in response to questions put directly to him. A reasonable inference could be drawn from these facts that the interview on 18 September 2023 took place at a time when BJR did not recall his wife was in a relationship with another man.
89. [89]
    BJR did display periods of confusion during that interview. Both Mr Hay-Bartlem and Ms Treacher, in their notes of that interview, revealed that BJR had become confused during the interview. The wording they used was not always identical.  Where there are any differences between the evidence set out in the verbatim file note of Ms Treacher and the evidence in the summary prepared later by Mr Hay-Bartlem, the Tribunal prefers, as more accurate, the evidence of Ms Treacher’s verbatim notes over the evidence of Mr Hay-Bartlem in his later summary.
90. [90]
    The confusion of BJR is more apparent in the file note of Ms Treacher. The Tribunal finds that, when first asked did he know what document he was signing, BJR’s replied that he did not know. When told it was an Enduring Power of Attorney, he was asked why he was signing that document, and his response was incorrect: “to keep an eye on everybody”. When asked who he was giving power to by signing the document, BJR’s response was again incorrect: “BP”. 
91. [91]
    It was only after Mr Hay-Bartlem repeated the questions (although it is not recorded whether further information had been given to BJR at that stage) that BJR offered responses that were recorded in the summary of Mr Hay-Bartlem. The earlier confused and inaccurate responses were not disclosed in that summary. 
92. [92]
    However, even the recording of the subsequent responses by BJR differ slightly in the notes of Ms Treacher and Mr Hay-Bartlem. Ms Treacher records that BJR’s understanding of an Enduring Power of Attorney was: “decides what to do for you”.  Mr Hay-Bartlem recorded BJR’s words as: “a document where others could decide things” for him. 
93. [93]
    According to Ms Treacher’s notes, BJR indicated he wanted BAM to be first to decide and then BP. It was when BJR was asked further questions as to the successive appointments, his answers became confusing. BJR was asked whether he wanted BC to make decisions by herself, he answered “yes”. This is not recorded in the summary made by Mr Hay-Bartlem nor is BJR’s next comment that he would prefer to be taken down to the gully and shot. Nor is BJR’s statement recorded by Mr Hay-Bartlem that surely all three children could make decisions together. All these comments and those of BAM in the telephone calls before the interview, are important to understand the mise-en-scene of that interview. 
94. [94]
    The comments made by BJR, as recorded by Ms Treacher, and BAM’s comments, allow for an analysis of what different purposes BAM and BJR had on that day. BJR comes across as generally confused about what the purpose of the meeting was, and what he was being asked to do during that interview. He had not initiated the request for a change of his Enduring Power of Attorney, and unlike BAM in her earlier call to Mr Jackson, he did not articulate any concerns about any of his children exercising power over him. 
95. [95]
    There was a clear difference in the positions articulated by BAM and BJR before and at that interview. BAM’s position arose from her concern about the control she feared that could be exerted by BC and BD, whom she had fallen out with over her new relationship. BAM had wanted to change the Enduring Powers of Attorney as soon as possible as she had told her lawyers that the situation with BC and BD was making her anxious. BJR appeared to go along with what BAM wanted, as he had done throughout his marriage, as he did not offer any explanation as to why he was changing his Enduring Power of Attorney from the position set out in the 2022 document just sixteen months earlier. Nowhere is a satisfactory explanation given as to why BJR decided to change his Enduring Power of Attorney. 
96. [96]
    Living in the moment, he answered questions as best he could. He first said he wanted BP to make decisions, presumably as his sole attorney. Then he said BAM. Then he said BC could make decisions on her own. At this stage, he made a very telling comment. At first consideration, it might look like a flippant comment made for comic relief.  However, the Tribunal concludes that by that stage of the meeting, BJR was demonstrating that he was feeling overwhelmed and very confused. 
97. [97]
    He said that he preferred to be taken down to the gully and shot. Instead of giving BJR a break or even terminating the meeting there and then, Mr Hay-Bartlem missed an opportunity to assess the reality of what BJR was able to comprehend and continued on asking questions until BJR said what was consistent with the document before him. As Mr Hay-Bartlem had said in his oral evidence, he was trying to help them get the result they wanted.  
98. [98]
    Once BJR had stated that he wanted BAM to make decisions and when the complexities emanating from conflicting fallback provisions were no longer present, it was at that stage that BJR was encouraged to sign the document. The point had then been reached when BJR was stating a position consistent with the instructions given by BAM to their lawyers at the start of the meeting, the result that Mr Hay-Bartlem believed they wanted had been achieved. However, that belief was not informed by any knowledge of the impact that the diagnosis of dementia had on BJR’s memory, attention or cognition outside of that meeting.

Whether the presumption of capacity has been rebutted

99. [99]
    The analysis of the evidence opens the possibility that BJR may not have freely and voluntarily decided to change the 2022 Enduring Power of Attorney on 18 September 2023. He had not told his lawyers that he wanted to make a change as all communication had come from BAM before the meeting, but at the same time he raised no objection during the meeting with his lawyers. The Tribunal will look further at the evidence to determine whether the presumption of capacity has been rebutted. The key is to determine what BJR thought was happening at the time.
100. [100]
     The Tribunal finds that BJR became confused when his daily routine was changed. He followed a predictable routine in his daily life set out in the evidence filed by BAM and confirmed during her oral evidence at the hearing. He had a routine for mornings at home, he went to the Surf Lifesaving Club across the road at least once, if not twice, a day and he had a routine with his homelife with BAM. He had regularly demonstrated confusion when his routine was changed. 
101. [101]
     The Tribunal concludes that BJR’s extreme short term memory impairment, his dependence on routine, his confusion and the overall decline in functioning together with his withdrawn demeanour indicated that his diagnosed dementia had become advanced and debilitating by 18 September 2023. The Tribunal has to consider how the limitation of functioning at this level is consistent with BJR’s ability to meet the legal standard of capacity to make an Enduring Power of Attorney. 
102. [102]
     That capacity standard is set out in s 41 of the POA as follows:  

1. A principal has capacity to make an enduring power of attorney only if the principal -

1. Is capable of making the enduring power of attorney freely and voluntarily; and
2. Understands the nature and effect of the enduring power of attorney.

2. Understanding the nature and effect of the enduring power of attorney included understanding the following matters-

1. The principal may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attornmey about the exercise of the power;
2. When the power begins;
3. Once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the power of attorney;
4. The principal may revoke the enduring power of attorney at any time the principal is capable of making an enduring power of attorney giving the same power;
5. The power the principal has given continues even if the principal becomes a person who has impaired capacity;
6. At any time the principal is not capable of revoking the enduring power of attorney, the principal is unable to effectively oversee the use of the power.

103. [103]
     BAM in upholding the Enduring Power of Attorney does not have to prove that BJR made the 2023 document on a free and voluntary basis and that he had demonstrated an understanding of the nature and effect of the Enduring Power of Attorney as that position is presumed by law. The parties alleging the invalidity of the document must rebut that presumption. 
104. [104]
     The medical opinions of Dr Tampiyappa and Dr Morris are not capable of rebutting the presumption of capacity. There is no conclusive medical evidence about BJR’s capacity to make an Enduring Power of Attorney on or about 18 September 2023. Dr Tampiyappa’s opinion relates to a time ten months after the document was signed. He considered BJR had capacity to make an Enduring Power of Attorney in July 2024, but he did not make a retrospective assessment as to BJR’s capacity in 2023. 
105. [105]
     It was argued that a person with capacity in 2024 could reasonably be expected to have had similar capacity at an earlier time such as in September 2023 as dementia is a progressive disorder so cognitive function gets worse over time. That argument has much cogency, but it overlooks the evidence of Dr Morris that trying to assess capacity retrospectively is challenging and complicated as the clinician cannot retrospectively factor into the assessment information usually obtained in an examination such as a person’s confusion or agitation which can become worse later in the day than in the mornings.
106. [106]
     The Tribunal does however have a serious reservation about the opinion expressed by Dr Tampiyappa. He made no comment about BJR knowing BAM had started a relationship with another man and how this squared with BJR selecting his wife as his attorney. He made no mention that BJR was distressed by his wife’s new relationship and indeed, it is not clear that Dr Tampiyappa was even aware of this development or that BAM regarded their marriage life together as not being present anymore. Dr Tampiyappa accepted what he was told by BJR but given he did not refer in his report to the changed state of BJR’s marriage life, the Tribunal is not willing to accept the opinion of Dr Tampiyappa made in July 2024 that BJR had capacity to appoint his wife as his attorney in an Enduring Power of Attorney. 
107. [107]
     That opinion is unreliable unless the opinion expressly incorporates all facts relevant to the choice of attorney, which it did not, and unless the opinion had assessed the impact of BJR’s knowledge of his wife’s relationship on his choice. For this reason, the Tribunal gives no weight to the opinion expressed by Dr Tampiyappa.   
108. [108]
     Dr Morris did not give an opinion as to BJR’s capacity to make an Enduring Power of Attorney on 18 September 2023. He raised concerns about the lack of cognitive ability for BJR to do so but Dr Morris expressly deferred to Dr Tampiyappa on this point. The evidence of Dr Morris does not rebut the presumption of capacity.       
109. [109]
     In looking at what evidence does provide a basis for rebuttal, the Tribunal has examined what was done at the meeting. Mr Hay-Bartlem had taken BJR through the document page by page to explain the purpose and how it operated. From that initial explanation, Mr Hay-Bartlem moved to who BAM and BJR appointed in the draft document that was being considered by them at the meeting. 
110. [110]
     A perusal of the Enduring Power of Attorney signed by BJR reveals that the document does not contain all of the six matters required by s 41(2) of the POA. Going through the pages of the document will not in itself result in a principal obtaining and then demonstrating the required level of understanding to satisfy the definition of capacity in s 41 of the POA. When a principal has made three previous Enduring Powers of Attorney, in this case from 2003 to 2022, he may remember and know all of the required factors from previous interviews with his lawyers. However, the Tribunal is not satisfied this would be a reasonable assumption in this case when the principal’s memory is so badly impaired by dementia.
111. [111]
     Based on the file note summary of Mr Hay-Bartlem and also from the verbatim notes of Ms Treacher, the Tribunal concluded that BJR had not been taken through the s 41(2) matters and as a result, the certificate of Mr Hay-Bartlem that BJR had demonstrated his understanding of the required matters in s 41(2) was unreliable. The explanation of the document in the meeting was on who was appointed, when the powers start, how any successive attorneys are appointed, notification to advisors about financial decisions and why there are conflict of interest clauses. Having reached that conclusion, however, does not inevitably decide that the presumption of capacity is rebutted as BJR may have understood all the s 41(2) matters despite not having the matters explained to him on the day.  Other evidence is more relevant.
112. [112]
     BAM in seeking to uphold the validity of BJR’s Enduring Power of Attorney, submits the Tribunal ought to take cognizance of the observation expressed by the Supreme Court of Queensland in the decision of Lambourne v Marrable.^[2] She submitted that Enduring Powers may be exercised when symptoms of mental incapacity have begun to manifest, including where the principal may not be able to manage his affairs on a regular basis. She submitted that this ought not affect that person’s ability and power to take advantage of the opportunity afforded to him by the POA to make an Enduring Power of Attorney and have his affairs managed by an attorney of his choice. The Tribunal agrees. 
113. [113]
     She further submitted, on the authority of Lambourne v Marrable, the fact that a principal is no longer able to engage in complicated business affairs does not prevent him having capacity to make an Enduring Power of Attorney. The Tribunal accepts that can be the case. The issue is whether it was the case for BJR on 18 September 2023  
114. [114]
     There are unique facts in BJR’s case that were not present in Lambourne v Marrable. Those facts relate to BJR not knowing (because he could not recall) that BAM was in a relationship with another man. His choice to have his wife make decisions and manage his financial affairs was based on the way things had been arranged during the married life he had enjoyed for almost 50 years. His lawyers assumed this situation was ongoing and appropriate and so did BJR. However, reality was quite different.
115. [115]
     The Tribunal concludes that the evidence supports a finding that BJR did not recall that BAM was in another relationship when he attended at Cooper Grace Ward’s offices on 18 September 2023.
116. [116]
     The evidence establishes at that time BJR would act in a distressed state whenever he recalled that information but that he would be withdrawn and calm at other times.  BJR had been told of this relationship, but he did not retain that information in his memory unless reminded by someone else. Due to his amnesic state and his reliance on routine, the Tribunal is satisfied that BJR continued to regard his life with his wife as unchanging when she was with him. This was the perception demonstrated by BJR on 18 September 2023.
117. [117]
     BJR had always trusted his wife to manage their day-to-day financial affairs and to take the lead with their financial advisors, lawyers and accountants. He performed the farming work and BAM handled the business side of things. That was the settled routine on the evidence given by BAM. That was the context in which BJR wanted BAM to be his attorney when he had no memory that there had been a significant change in the family dynamics. When he did recall this information, he was fearful that his wife’s relationship could result in his assets being accessed by another man. The Tribunal is satisfied that BJR did not want BAM to be in control of his finances at those times when he had recall of his wife's relationship. That is, when he lacked trust in his wife due to her new relationship.  
118. [118]
     Mr Hay-Bartlem gave evidence that he was aware on 18 September 2023 that BAM had some form of relationship with another man, he was aware that BJR had been diagnosed with dementia three years earlier, but he had not read any medical reports as to the impact of that diagnosis on BJR’s cognitive capacity, including on his short-term memory. He did not know, nor did he take any opportunity to find out, that at the interview on 18 September 2023 BJR did not recall that BAM had a new relationship. He proceeded on an assumption, which the Tribunal finds was wrongly based, that BJR made his choice of attorney with this knowledge to hand as it was consistent with many years of family arrangements.
119. [119]
     This is clear from the evidence when Mr Hay-Bartlem told the Tribunal that he would have expected that BJR, knowing of his wife’s relationship, would have raised any concerns he had about BAM continuing as his attorney if that issue was relevant to BJR’s choice of attorney. That assertion neglected to factor, into the actions of BJR, the reality of his dementia impacts, particularly on his short-term memory and presupposed that BJR could make rational and fully considered choices. 
120. [120]
     Mr Hay-Bartlem certified that BJR had capacity to understand the nature and effect of the Enduring Power of Attorney signed by him on 18 September 2023. The Tribunal has found that that certification is unreliable. The Tribunal concludes that BJR had not made, and could not have made, a considered choice of BAM as his attorney on that day without being cognizant at the time of his wife’s relationship which had been forgotten by him because of his advanced cognitive decline. BJR could not recall or understand that his wife regarded their marriage life was over and that the dynamics of their marriage had irrevocably changed. He was not given an opportunity to make another choice of attorney at that meeting.
121. [121]
     The evidence is that there was a deliberate strategy by his own lawyers not to reveal BAM’s relationship with another man to BJR and thereby not to test his choice of attorney. The evidence was that they considered such a revelation as inappropriate given the history of reliance by BJR on BAM and his long-time appointment of his wife as his attorney. It was also considered inappropriate because BJR had no support at the meeting other than BAM. 
122. [122]
     However, the Tribunal finds that the revelation should have been made as it was essential information to the instructions he was giving that day. His lawyers failed to test their instructions even though they knew or should have known of factors that objectively would have had a decisive impact on BJR’s instructions.   
123. [123]
     The Tribunal is satisfied that BJR had selected BAM as his attorney under the incorrect belief that nothing material had changed from the situation that had existed for over 40 years before August 2023. He appointed BAM as his attorney and thus followed his usual routine of trusting his wife with his finances and with the family business where she had been his partner as well as his attorney since at least 2003. I find that, based on his reported concerns after August 2023 to protect his assets from BAM’s boyfriend, it was more likely than not BJR did not make an informed choice of attorney armed with all relevant information about that choice.
124. [124]
     I am confirmed in that conclusion by the evidence of BC which, on this point, was not effectively challenged.  In their statement in support of their applications, BC and BD stated that BJR had made repeated requests to BAM not to return to their marriage.  They stated that BJR is dumbfounded by BAM having a boyfriend. Since June 2024, BJR has voiced support for the legal action taken by BC and BD and has thanked them for helping him in the wake of BAM’s choices.  
125. [125]
     It is entirely credible that BJR had voiced concerns about the risk he perceived to his stable and long-standing financial position when he understood that his wife was in a relationship with another man. It is credible that, on the occasions when he could recall his wife’s relationship choices, he was not only emotionally distressed but also fearful for his financial stability. It is also credible that, on most other occasions when he could not recall his wife’s relationship, he reverted to a belief in things as they had been for many years.    
126. [126]
     The Tribunal concludes that, had BJR been reminded by his lawyers of his wife’s relationship at the interview on 18 September 2023, it is more likely than not that he would not have continued with wife as one of his attorneys, let alone his sole attorney.  Appointing BAM as his attorney was not a full and free exercise of his will as he was under a disadvantage such that he could not understand the nature and effect of that choice while ignorant of the change of circumstances in his marriage arising from his wife’s relationship with another man. His disadvantage was compounded by the strategy of his lawyers to not raise his wife’s relationship with him when finalising his instructions.
127. [127]
     The Tribunal is reminded of the words of Mason J in Commercial Bank of Australia Ltd v Amadio^[3] and quoted in Hanna v Raoul^[4]: “I qualify the word ‘disadvantage’ by the adjective ‘special’ in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasize that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.” 
128. [128]
     BJR was in effect in a position of disadvantage as his lack of recall about his wife's relationship when signing his Enduring Power of Attorney seriously affected BJR’s ability to make a judgement as to his own best interests, when his lawyers knew of that circumstance and should have known its likely effect on BJR’s choice of attorney.  
129. [129]
     The Tribunal finds that the evidence, discussed in paragraphs 114 onwards, supporting the conclusion that BJR did not understand the nature and effect of his choice of attorney rebuts the presumption of capacity in his making an Enduring Power of Attorney on 18 September 2023. I have had regard in reaching this conclusion, to the words of Sofronoff P in Leigh v Bruder Expedition Pty Ltd^[5]: “...it must be borne in mind that the case does not establish a third standard of proof which lies between the civil and criminal standards. Briginshaw establishes that, when applying the civil standard of proof, it is only common sense for a rational tribunal of fact which is deciding whether evidence actually proves a fact to bear in mind the seriousness of the allegation in issue, or the gravity of the consequences of a finding, when considering the probative value of the evidence.”  
130. [130]
     The Tribunal is aware of the serious consequences of deciding that the Enduring Power of Attorney of 18 September 2023 is invalid for lack of legal capacity. It sets aside the decision-making support relied on for BJR since that date. It has inherent criticisms of the lawyers acting for BJR in providing the certification required under s 44(4) of the POA when the information for that certification was limited and in failing to test BJR’s choice of attorney based on an erroneous assumption (that could have been easily corrected) that the interests of BJR and his wife were aligned. However, the consequences for BJR are also serious. He has had, for 18 months, been subject to decision-making by an attorney he did not trust when reminded of this situation.   
131. [131]
     The Tribunal concludes that the Enduring Power of Attorney made on 18 September 2023 was invalid due to a lack of capacity by BJR to make a new Enduring Power of Attorney on that day.
132. [132]
     The effect of this conclusion is that the Enduring Power of Attorney dated 20 May 2022 is in force as it was not subsequently revoked by BJR. BC and BD have submitted that they have no objection to the 2022 document being the basis for ongoing decision-making support for BJR. BAM submissions do not cover keeping the 2022 Enduring Power of Attorney in place.     
133. [133]
     As a preliminary position, the Tribunal is not at this stage convinced that, under s 12(1)(c) of the GAA, BJR needs an appointment of a guardian and an administrator when he has an Enduring Power of Attorney in place. The Tribunal will seek submissions as to an alternative option to keep the 2022 document unchanged, or to use the power under s 116 of the POA to remove and replace BAM with a new attorney or to make some other arrangements for the 2022 document to be workable. This issue was not specifically raised during the hearing and the parties, including the appointed representative for BJR, should have the opportunity to address the Tribunal on what further orders, if any, should now be made.  
134. [134]
     The Tribunal directs BJR (through his representative), BAM and BC and BD to file in the Tribunal written submissions within 28 days on the following issues:

     1. Whether BAM and BC can effectively discharge their duties as attorneys under the Enduring Power of Attorney dated 20 May 2022 in its current form;
     2. Whether the Tribunal should change the terms of that Enduring Power of Attorney and /or remove BAM as attorney for BJR;
     3. If BAM is to be removed as attorney for BJR, who should be appointed as a replacement attorney, if anyone; and
     4. Whether there are any options to give appropriate decision-making support to BJR apart from appointment of a guardian and administrator. 
135. [135]
     Further hearing of any applications not determined by the order made today is adjourned and the parties will be notified whether the resumed hearing is by way of a further oral hearing or conducted on the papers based on the filed submissions.