SBJ v The Public Guardian[2022] QCATA 117

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   SBJ seeks leave to appeal or appeal against the Tribunal’s decision which declared that WIJ did not have capacity for financial matters and that the enduring power of attorney she made on 25 May 2018 was invalid.
2. [2]
   SBJ also seeks leave to rely on fresh evidence or material that was not before the Tribunal at first instance.
3. [3]
   By way of background, the substantive proceedings had their genesis in an Investigative Report completed by the Public Guardian regarding the circumstances surrounding the capacity of WIJ and various transactions she had entered into. On 4 January 2019, following completion of that Report, the Public Guardian applied to the Tribunal in the following terms:

What matter does this declaration of capacity concern?

There is medical information obtained by the Office of the Public Guardian (OPG) regarding [WIJ’s] capacity which rebuts capacity, however the attorney, [SBJ] is of the opinion [WIJ] has capacity, therefore he has not commenced his powers as an attorney for financial and personal/health matters. Allegations have been raised regarding the management of [WIJ’s] finances by [SBJ] and contact between [WIJ] and her daughters are being controlled by [SBJ].

The Public Guardian is also seeking for a declaration about:

1. –[WIJ’s] current capacity to make decisions -in relation to personal/health and financial affairs; and
2. –[WIJ’s] capacity to make an Enduring Power of Attorney document dated 22 May 2018.

4. [4]
   On 24 April 2019, the Tribunal made the following Order:

DECLARATION ABOUT CAPACITY

1. 1.[WIJ] does not have capacity for financial matters and executing an Enduring Power of Attorney dated 24 May 2018.

ENDURING POWER OF ATTORNEY

1. 2.The following Enduring Power of Attorney for [WIJ] is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000:

1. (a)
   The Enduring Power of Attorney dated 24 May 2018 appointing [SBJ] as attorney for financial matters.

5. [5]
   The learned Member’s reasons are set out in the Transcript of Proceedings In the matter of WIJ.^[1]
6. [6]
   SBJ has appealed that decision.
7. [7]
   In the application for leave to appeal or appeal, SBJ summarises his grounds of appeal as follows:

Member Ellis ruled that [WIJ] did not have capacity to sign an Enduring Power of Attorney on 24 May, 2018 but no definitive reasons were given by the Member who only expressed concerns, one of which was financial and did not even relate to an EPOA (see attached document).

8. [8]
   SBJ asks the Tribunal to make the following orders:

To review the case and reverse the decision that [WIJ] did have capacity to sign the Enduring Power of Attorney on 24 April 2018.

9. [9]
   It is important to identify at the outset whether each of the grounds raise questions of law only, in which case SBJ may appeal as of right,^[2] or questions of fact or of mixed law and fact, in which case SBJ needs leave to appeal.^[3] The categorisation of the grounds also affects the way in which the appeal is conducted and the orders that are made. An appeal only on a question of law must proceed under s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and involves no element of rehearing. If determination of the appeal does not determine the proceeding, then the matter must be remitted for determination.
10. [10]
    An appeal decided on a question of fact or of mixed law and fact must be decided under s 147 of the QCAT Act by way of rehearing, with or without the hearing of additional evidence as decided by the Appeal Tribunal. The Appeal Tribunal has held, in considering the meaning of ‘rehearing’ for the purposes of s 147 that ‘it is clear, as a matter of law, that on an appeal which proceeds by way of rehearing, as in the present case, “judgment may be given as ought to be given if the case came at that time before the court of first instance”’.^[4]
11. [11]
    If different grounds of appeal raise questions of law and questions of fact or of mixed law and fact, it is appropriate to address first the grounds involving questions of fact and mixed law and fact. If leave to appeal is granted, then the appeal must be decided by way of rehearing and all matters subject to the grounds of appeal dealt with in the rehearing.^[5]
12. [12]
    In his application for leave to appeal or appeal or in subsequent submissions, SBJ does not clearly identify his grounds of appeal. Neither does he seek to characterise the grounds as errors of law or of fact or of mixed law and fact.
13. [13]
    We would summarise SBJ’s grounds of appeal as follows:

    1. (a)
       The Member did not give adequate reasons;
    2. (b)
       The Member did not properly apply the presumption of capacity;
    3. (c)
       The Member mis-categorised the making of an enduring power of attorney as a ‘complex’ matter;
    4. (d)
       The Member erred because there was no evidence to support a finding of impaired capacity;
    5. (e)
       The Member should have preferred the evidence of Dr Bailey (psychologist) and Messrs Power (solicitors) to the medical evidence;
    6. (f)
       The Member relied on irrelevant medical evidence;
    7. (g)
       The Member took into account irrelevant considerations; and
    8. (h)
       That aspects of the Hearing were unfair to SBJ.
14. [14]
    Each of the errors alleged is, in our opinion, an alleged error of law. That being so, leave to appeal is not necessary.
15. [15]
    The Tribunal may proceed under s 146 to either confirm or amend the decision; set aside the decision and substitute its own decision; or, set aside the decision and return the matter to the Tribunal or other entity who made the decision for reconsideration with or without the hearing of additional evidence as directed by the Appeal Tribunal.

Background and the decision at first instance

16. [16]
    WIJ moved to live with SBJ in 2011.
17. [17]
    In 2015, WIJ scored 12/22 on a MOCA exam.^[6]
18. [18]
    In May 2016, WIJ was diagnosed with Alzheimer’s dementia and Vascular dementia and prescribed Donepezil. WIJ underwent a Mini-Mental State Exam (‘MMSE’) and achieved a score of 15 out of 28. The doctor administering the test noted clear cognitive decline.
19. [19]
    SBJ’s family company went into receivership in 2016. He has no source of income apart from a nominal pension he received from the UK government and a pension from a company in the UK.
20. [20]
    In July 2016, WIJ achieved a score of 20 out of 28 on the MMSE.
21. [21]
    On 1 December 2016, WIJ entered into an Enduring Power of Attorney appointing SBJ and NM, her daughter, as attorneys for financial and personal/health matters (‘the first EPOA’). The power of the attorneys for financial matters was expressed to take effect immediately.^[7] The attorneys were to make their decisions severally.^[8]
22. [22]
    On 4 December 2017, WIJ started paying SBJ’s mortgage of approximately $3 000 a month. SBJ’s house is in his name only. The home had been sold by WIJ to SBJ and his then wife after WIJ’s former partner passed away. WIJ also pays for all their household and living expenses.
23. [23]
    On 8 March 2018, SBJ and WIJ married. At that point, pursuant to s 52 of the Powers of Attorney Act 1998 (Qld), the enduring document was revoked to the extent it gave power to someone other than the principal’s husband. From then, SBJ was the sole attorney. NM was not notified of the marriage.
24. [24]
    On 12 March 2018, WIJ’s apartment at Sunrise Beach was sold for approximately $900 000. Half of the proceeds were invested in Commonwealth Bank Bonds, PERLS X, while the remainder of the funds were deposited into WIJ’s MLC account. SBJ says the MLC account is ‘managed’ by WIJ’s financial advisor.
25. [25]
    On 19 March 2018 and 17 April 2018, WIJ was seen by Dr Henshaw, Consultant Physician, and underwent further testing, achieving 11 out of 26 for the MMSE and 7 out of 22 for the MOCA. Dr Henshaw concluded in his report of 21 April 2018 that WIJ had significant cognitive deficits in multiple domains and expressed the opinion that she lacked capacity to manage her own financial affairs.
26. [26]
    WIJ met with her solicitor on two occasions, on 18 May 2018 and 25 May 2018 in relation to an enduring power of attorney. On 25 May 2018, WIJ entered into a second Enduring Power of Attorney appointing SBJ, WK (her deceased former de facto partner’s nephew) and SJX (SBJ’s son) as her attorneys (‘the second EPOA’). Under the section ‘How do you prefer that they make their decisions?’ against ‘Other’ it is said:

I wis (sic) my First attorney to hold my decision making power. If he is unable then I wish my second and third attorneys to hold that power jointly.

27. [27]
    In our view, that is a statement by the principal that she wishes the power of the attorneys (first followed by second and third together) to be exercised successively.^[9]
28. [28]
    On 29 May 2018, the Public Guardian received a referral regarding alleged conduct of SBJ in relation to WIJ. On 2 January 2019, the Public Guardian issued an Investigation Report in accordance with its role to investigate complaints and allegations about actions by an attorney.^[10] In that Report the Public Guardian made a preliminary assessment at least that WIJ lacked capacity which is a preliminary requirement for them to conduct an investigation. The Report stated that the Office was seeking to have the Queensland Civil and Administrative Tribunal (‘QCAT’) determine whether WIJ has/had the capacity to:

1. –Manage her personal/health and financial affairs; and
2. –Make an Enduring Power of Attorney on 22 May 2018 appointing [SBJ], [WK] and [SJX] as attorneys, severally [sic]^[11](with the second and third attorney, jointly) for financial and personal/health matters. The power of attorney for financial matters commenced when [WIJ] loses capacity.

29. [29]
    On 28 August 2018, WIJ was seen by Dr Harrington, Geriatrician, who reported that she scored 13 out of 27 on the MMSE and 3 out of 22 on the MOCA that day. Dr Harrington completed a Health Professional Report on 11 December 2018 which reported that, in her opinion, WIJ’s impairment from dementia was severe and that she had no capacity to manage complex decisions for her personal/health care and financial matters on her own. Further, that WIJ currently does not have the capacity to execute an enduring power of attorney document.

Application for fresh evidence

30. [30]
    SBJ made an application dated 16 January 2020 to adduce fresh evidence in support of his appeal. Prior to making the application, SBJ filed submissions in relation to the new evidence that he wished to be considered on appeal.^[12] We have taken those submissions and the submissions of MS in response, into account.
31. [31]
    SBJ wishes to rely upon the following:

    1. (a)
       Prior to attending her solicitor to make the new enduring power of attorney, WIJ reviewed her previous 2016 enduring power of attorney and that WIJ contacted her friend WJX to see whether she would be an attorney but WJX declined; and
    2. (b)
       Evidence to show the limited contact NM has had with her mother since the hearing at first instance.
32. [32]
    SBJ says that the reason he has not submitted the evidence beforehand was due to his age (81 years) and his ‘inability to present the best case at the time’.
33. [33]
    The circumstances as to how WIJ came to settle upon her attorneys sheds little light on the issue of her capacity. In any event, SBJ cannot give evidence about a conversation his wife supposedly had with WJX.
34. [34]
    The evidence that WIJ reviewed her 2016 enduring power of attorney prior to signing the later enduring power of attorney, is, presumably, raised by SBJ because he considers it shows that WIJ was familiar with enduring powers of attorney, having executed them before. The Tribunal was aware that WIJ had executed an enduring power of attorney in 2016.^[13] In any event, we consider it of little relevance that WIJ made other earlier enduring powers of attorney. 
35. [35]
    Further, we note that SBJ’s application for appeal raised some matters not raised in the Hearing below, in particular, relating to the reliability of testing undertaken by various medical professionals. We did not find that evidence persuasive and, in any event, had SBJ made an application to adduce it, we would have refused the application on the basis the material could have been raised at the Hearing below and, in any event, was of limited probative value or relevance. We have not taken those matters into account.
36. [36]
    The application for fresh evidence is accordingly dismissed.

Grounds of appeal

37. [37]
    We turn now to consider each of SBJ’s grounds of appeal. Before doing so, we deal with two aspects of the decision raised by SBJ in his submissions.

    1. (i)
       The decision leaves WIJ in the ‘unsatisfactory position’ of having to rely on the first EPOA.
38. [38]
    SBJ says that the position is unsatisfactory because under the first EPOA there is no alternative attorney, given that WIJ’s marriage to SBJ negated the joint attorney appointment.
39. [39]
    This is not a valid ground of appeal. Whether the arrangement under the first EPOA is satisfactory is not relevant to the validity of the second EPOA. There is no error of law demonstrated by this ground.

1. (ii)
   The Member could not make a decision on the day and did not deliver the decision for several days.

40. [40]
    There is no obligation to deliver a decision immediately following a Hearing. The Member reserved her decision to enable her to properly consider all the material and the outcome, which she was entitled to do. There is no error demonstrated by this ground.
41. [41]
    If the point SBJ is trying to make is that she was indecisive and that this somehow indicates the decision is not sound, this also is without substance. The issue is whether the decision when made is affected by error.

Ground 1: The Member did not give adequate reasons

42. [42]
    SBJ contends that the Member did not give sufficient reasons for her decision that WIJ had impaired capacity, but instead had merely arrived at her finding due to ‘three main concerns’.
43. [43]
    In summary, SBJ submits that the Member arrived at the finding of impaired capacity because:

    1. (a)
       WIJ had the ability to appear ‘strong-minded’ to mask a lack of capacity;
    2. (b)
       The evidence of Dr Schwabe and Dr Henshaw;
    3. (c)
       WIJ did not understand complex financial decisions and an enduring power of attorney is complex.
44. [44]
    SBJ raises arguments as to why the Member erred in basing her decision on each of these ‘concerns’.
45. [45]
    The Tribunal has an obligation to give reasons for a final decision.^[14] The content and detail of the reasons has been said to depend on ‘the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision’.^[15] In the Tribunal, it has been held that reasons generally should contain three elements: appropriate and sufficient reference to the relevant evidence; the material findings of fact that were made (and the reasons for making those findings); and, the applicable law and the reasons for applying it in the way expressed in the decision.^[16]
46. [46]
    The Member approached the matter as an application for a declaration as to capacity under s 146(1) of the Guardianship and Administration Act 2000 (Qld) (‘the GA Act’) relating to two points in time: as at the hearing (current capacity) and at 28 May 2018, when the second EPOA was entered into.^[17] Upon finding WIJ had impaired capacity as at 28 May 2018, the Member made a declaration that the second EPOA was invalid. The application for a declaration about capacity by the Public Guardian makes it clear that a declaration was being sought from the Tribunal as to WIJ’s capacity to make the enduring power of attorney on 28 May 2018. The Member did not set out the Tribunal’s power to make a declaration of capacity under section 111 of the Powers of Attorney Act 1998 (Qld). However, for the reasons that follow, we do not consider that the Member’s failure to do so, led the Member into error.
47. [47]
    In our opinion, the Member gave adequate reasons for the decision. It is tolerably clear that the expression of ‘concerns’ was in effect reasons for the decision. The learned Member based her assessment on the medical evidence which she accepted, and articulated that in her reasons. We dismiss this ground of appeal.

Ground 2: The Member erred in not properly applying the presumption of capacity

48. [48]
    The Member applied the presumption of capacity in s 7(a) of the GA Act^[18] and referred to the definition of capacity in schedule 4 to the GA Act. The Member referred to the three limbs of the definition and held that if any of the elements were missing, a person would have impaired capacity.^[19]
49. [49]
    Importantly, for the purposes of this appeal, the Member acknowledged that capacity is assessed in the context of a particular matter.^[20] The Member declared that WIJ did not have capacity for financial matters as at the date of the hearing and that she did not have capacity to execute an enduring power of attorney on 24 May 2018. 
50. [50]
    The Member began by focussing on whether WIJ had capacity for ‘financial matters’ as defined by the GA Act.^[21] The Member held:

The relevant matter in this case is that of financial, though the application also sought for personal – clarification in relation to personal and health. A financial matter for an adult is a matter relating to the adult’s financial or property, including a matter relating to one or more of the following: paying accommodation expenses, paying the adult’s debts, receiving and recovering money, carrying on a trade or business, performing contracts, discharging a mortgage, paying rates, insuring the adult’s property, otherwise preserving or improving the adult’s estate, investing in authorised investments, continuing investments, undertaking a real estate transaction, dealing with land and undertaking a transaction for the adult involving the use of the adult’s property, a legal matter, withdrawing money or depositing money into an account.

The issue I need to determine is whether [WIJ] had impaired capacity in relation to decisions concerning any of those transactions described above. If she does, she will have impaired capacity. I am entitled to take into account any relevant medical history and, based on that history, what is likely to occur in the foreseeable future.^[22]

51. [51]
    The Member considered all the evidence and concluded that WIJ had impaired capacity for financial decisions, including the decision to enter into the second enduring power of attorney in May 2018. It may be, as SBJ contends, that the Member thought the making of an enduring document was a ‘financial matter’ within the meaning of the GA Act. We deal with this in ground 3 below.
52. [52]
    Hence, the learned Member assessed the evidence and formed the view that WIJ did not have capacity and, accordingly, that the presumption of capacity was rebutted. That was a finding which she was entitled to make. We find no error.

Ground 3: The Member mis-categorised the making of an enduring power of attorney as a complex and/or financial matter

53. [53]
    Section 10 of the GA Act categorises ‘matters’ as either personal, special personal, special health or financial. Schedule 2 defines each type of matter. Schedule 2, Part 2 which deals with all types of personal matters, defines a ‘special personal matter’ as a matter relating to, relevantly, making or revoking an enduring power of attorney.
54. [54]
    That said, assuming there was a mis-categorisation, we do not consider it materially affected the outcome. The matters categorised as ‘special personal matters’ are all relatively complex matters and not, we note, matters that a principal can delegate to an attorney. The Member turned her mind to the relevant and more specific question, which was whether WIJ had capacity to make the enduring power of attorney. The answer to this did not depend upon whether it was categorised under the legislation as a ‘special personal matter’ or ‘financial matter’.
55. [55]
    SBJ submits that the Member erred in considering the making of an enduring power of attorney to be a ‘complex matter’. SBJ contends that a decision to ask someone else to be in control of your finances is not the same as decisions made in the course of managing a complex investment strategy. SBJ submits that an enduring power of attorney is a ‘very simple matter’ which can be reduced to:

    1. (a)
       Who do you trust and appoint to look after your finances for you if you are unable to look after them yourself?
    2. (b)
       Who do you trust and appoint to look after you (sic) medical decisions if you are unable to look after them yourself?
    3. (c)
       If your primary attorney is unable to fulfil the role, who do you wish to take his or her place?
56. [56]
    In our view, no error of law is disclosed by the Member referring to complexity in the context of assessing WIJ’s capacity to make the second EPOA. The Member referred to complexity in the following context:

Turning to the issue of the nature and extent – sorry – the types of decisions that need to be made and the complexity of those decisions, [WIJ] has a significant financial resource. She has in excess of $2 million. That financial resource is contained within a semi-complex investment strategy. It is not simply an – a circumstance where she has a simple financial resource – financial circumstances. I am concerned at her ability to understand the transactions and I’m concerned that her ability to understand the transactions that took place in May 2018 to be able to retain information and, on all of the evidence, it appears that her retention of information, both now and back in 2018, is impaired and her ability to, therefore, use that retention of information to be able to process facts and circumstances in a complex financial structure, to be able to make decisions that are best for her.^[23]

57. [57]
    In our view, the Member did not categorise the making of an enduring power of attorney as ‘complex’. The Member in referring to complexity was, in our view, referring to the extent of WIJ’s financial resource and to her ‘semi-complex investment strategy’. In any event, we do not consider it to be an error for the Member to have concluded, in the context of ‘complex’ financial affairs, that capacity to make an enduring document in respect of those affairs required at least a broad understanding of the principal’s property and finances in order to properly appreciate the nature and effect of a decision that gave full control over those financial resources to an attorney. Further, the Member made clear that she was distinguishing between WIJ’s capacity for simple and complex matters and that, in terms of that distinction, the making of an enduring power of attorney was complex. We do not disagree and we find no error in so concluding.

Ground 4: The Member erred because there was no evidence to support a finding of impaired capacity

58. [58]
    Whether there is any evidence of facts sufficient to justify a particular conclusion of law is a question of law. Posing this as a ground of appeal does not, however, mean that the Appeal Tribunal can simply re-consider the evidence and decide whether the Tribunal came to the correct conclusion in fact.
59. [59]
    An appeal is not an opportunity to re-argue a case. The Member, in arriving at her decision, preferred the evidence of Dr Schwabe and Dr Henshaw to that of Dr Bailey. In our view, the Member did not err in so doing.
60. [60]
    In our view, there was ample evidence that WIJ did not have capacity. Accordingly, the Member did not err in that regard.

Ground 5: The Member should have preferred the evidence of Dr Bailey (psychologist) and Mr Power (solicitor) over the medical evidence

61. [61]
    The learned Member assessed the evidence of the witnesses and accepted the other medical evidence over the evidence of Dr Bailey and Mr Power. The learned Member was entitled to do so. Her findings are not glaringly improbable, indeed, in our view, they are correct. There is no error of law demonstrated.

Ground 6: The Member relied on irrelevant medical evidence

62. [62]
    SBJ says that the evidence of Dr Schwabe should not have been considered, in effect, because Dr Schwabe’s evidence was purely opinion and not based on any scientific or legal tests. SBJ takes objection to Dr Henshaw’s evidence on the basis Dr Henshaw’s testing only went to cognitive function and not capacity.
63. [63]
    Dr Schwabe’s professional medical opinion about the capacity of WIJ is admissible and not irrelevant evidence. It is not necessary that the evidence be based on scientific or legal tests. Dr Schwabe was qualified to express an opinion on the issue of capacity which she did.
64. [64]
    Dr Henshaw’s professional medical opinion about the capacity of WIJ is also admissible and not irrelevant evidence. The fact that Dr Henshaw used cognitive tests as one of the bases for his conclusion does not render that evidence irrelevant.
65. [65]
    We dismiss this ground of appeal.

Ground 7: The Member took into account irrelevant considerations

66. [66]
    SBJ submits that the Member was influenced by the fact that she thought WIJ was a person who was, in the words of the Member: ‘able to present herself as … a strong-minded individual, but perhaps not understanding to the extent necessary to demonstrate capacity’.^[24]
67. [67]
    The Member expressed this as a concern but then proceeded to consider whether she was indeed a person who understood the ‘transactions’ in May 2018. We see no error in that approach.
68. [68]
    SBJ also appears to contend that the Member had improperly taken into account the fact that WIJ could not recognise her signature on the enduring document during the hearing when WIJ had a visual impairment. We do not accept that the Member placed much, if any, weight on this fact. The Member said:

[WIJ], firstly, did not know what an enduring power of attorney was; secondly, did not recognise her enduring power of attorney document, though I accept that she – her eyesight would make that very, very difficult in any event. She did not recognise her signature on that document. Thirdly, she – and, most importantly for me, at least initially, she did not know who her alternative enduring power – sorry – her alternative attorneys were and, in particular, with [SS’s] son, who is named on the enduring power of attorney, thought this his long and hyphenated name was actually two people.^[25]

69. [69]
    We dismiss this ground of appeal.

Ground 8: That aspects of the Hearing were unfair to SBJ

70. [70]
    SBJ takes issue with the fact that only Mr Virgil Power Junior was called to give evidence and not his father, Mr Virgil Power Senior, who they saw initially about the enduring power of attorney.
71. [71]
    Mr Power Jnr was the solicitor who met twice with WIJ and SBJ and who was the witness to the enduring power of attorney. He was clearly the appropriate person to be called in relation to providing evidence of his opinion as to her capacity at the time of executing the document. In any event, we note that the Member accepted the evidence by Mr Power Jnr but in the end preferred the medical evidence.
72. [72]
    There is no merit to this argument.
73. [73]
    SBJ contends that it was unfair that MS, who was not an active party, had an opportunity to participate in the hearing in a significant way, as did her solicitor.
74. [74]
    Although we agree that WIJ’s daughter should have been joined formally to the proceedings, we do not consider that any prejudice was caused to SBJ. The questioning may have strayed on occasions to irrelevant considerations, but this did not affect the Member’s reasoning.
75. [75]
    There was no failure to afford procedural fairness to SBJ.
76. [76]
    We dismiss this ground of appeal.

Other matters

77. [77]
    We observe that the only application before the Member was the application for a declaration about capacity filed by the Public Guardian. The orders made by the Member included an order that the enduring power of attorney made 28 May 2018 was invalid. That order followed the Member’s determination that WIJ did not have the capacity to make the enduring power of attorney on 28 May 2018.  While it would have been desirable for the Member to have initiated an application for an order about an enduring power of attorney to ensure such an application was before the Member, we do not consider that there was any denial of procedural fairness in the order being made in the absence of such an application. The applicant was legally represented at the hearing before the Member. No other applications were filed in the Tribunal by him seeking any particular orders. WIJ was also present at the hearing.

We consider the declaration of invalidity was contemplated by the Public Guardian given the content of its application for a declaration about capacity. The application clearly identified that the Public Guardian sought declarations about capacity at two points in time: at the time of the hearing and at the time that the enduring power of attorney from 28 May 2018 was made. The application to the Tribunal also referred to the need ‘to bring certainty regarding [WIJ’s] formal arrangements to ensure her future rights and interests are being adequately and appropriately protected’. WIJ was provided with a copy of that application and was present at the hearing when the Member spoke to the parties about the practical effect of an order declaring the enduring power of attorney invalid.^[26] We are satisfied that that order flowed from the decisions made by the Member about WIJ’s capacity, and that the active parties were aware this order might be made.

Conclusion

78. [78]
    As we do not find any error of law, the appeal is dismissed.