The case of Mr T[1] involved his nomination of attorneys managing Enduring Powers of Attorney [EPOA] and was decided in February 2026 by three members of the New South Wales Civil & Administrative Tribunal Guardianship Division [NCATGD].
Friends and relatives
T was 85 years old at the time of the NCATGD hearing and was a resident at an aged care facility in Southern Sydney. T had a niece by marriage, W, who lives in Queensland. W’s father was the brother of T’s late wife, Ethel, who passed away on 7 January 2000.
T and his wife bought a house in Sydney in the 1980s. Ms Y and Mr Z lived across the road from them. They had a daughter, J. T knew her since she was a little girl. He made an EPOA appointing J in 2019 and again in 2025.
The house, the promise of care and making wills
Concerns arose primarily from a Deed of Family Arrangement creating a Granny Flat Interest in 2025 under which T transferred title to his house to J in return for a life interest in the property, the right to reside in the home, and J’s promise to “look after” T for the rest of his life both financially and personally.
In 2002, T made a will appointing J as his executrix and trustee. He bequeathed all his real and personal estate situated in Cyprus to his nephew and the rest and residue of his estate to J. The effect of this will was that J was the sole heir to T’s estate in Australia.
In 2019, T revoked the will and executed a new will, the effect of which was to remove his nephew and bequeath the whole of his estate wheresoever situated to J. He again appointed J as his executrix and trustee.
In December 2024 renovations were made on T’s home and J paid the cost of approximately $80,000. Other evidence in 2025 showed that T had no cognitive impairment scoring 25/30 in an [mini mental state examination] MMSE, an assessment made by his GP of some 30 years. The doctor said he was “fit and sound mind and perfectly capable of making legal and financial decisions.”
W becomes concerned about possible elder abuse
W wrote to NCAT drawing attention to multiple concerns. The communication included that J was acting in her own and her family’s interests rather than T’s interests. Her conduct raised serious concerns, including elder abuse, coercion, manipulation, conflict of interest, and potential preparation for financial inheritance or will changes.
W referred to several incidents which she says raise concerns that J may have breached her duties as attorney:
- use and sale of T’s car;
- apparent mixing of funds regarding the renovation and leasing of another property owned by T;
- lack of transparency with rental income;
- lack of documentation of an arrangement whereby J pays the balance of T’s aged care fees;
- lack of consultation with family members.
The case came before the NCATGD
The key issue for the Tribunal was whether J acted in breach of her fiduciary duties as t’s attorney in relation to the Agreement and subsequent transfer of title of the house property from T to her in 2025.
The Agreement omitted terms to account for T’s current circumstances and to safeguard his interests and welfare:
- the possibility that the principal did not reside in the house property, but resided permanently in an aged care facility;
- termination or transfer of the granny flat agreement;
- loan provisions;
- provisions if there is a relationship breakdown between Principal and Attorney;
- provisions of the EPOA if J passes away; or
- provisions in the event of J’s marital relationship breakdown.
The Tribunal considered the relevant law
At common law, the fiduciary duties of an enduring attorney are as follows:
- to act in the best interests of the principal;
- not to place themselves in a position of conflict with the principal, nor to obtain a profit or benefit from their fiduciary position without having first obtained the fully informed consent of the principal: that was a principle arising from the High Court case of Hospital Products Ltd v United States Surgical Corporation [1984] 156 CLR;
Against those issues which required some attention the Tribunal considered:
- T’s wills going back to 2002 are evidence of his long-standing wish to benefit J:
- T made three wills over more than two decades in which he made clear that J would inherit substantially the estate he left her;
- T structured his financial affairs to ensure his real estate did not need to be sold. He sought legal advice and saw his long-term GP for an assessment of his capacity to do so.
- After the transfer of the Southwest Sydney property into her name, J borrowed money, secured against the property, to help pay for T’s care.
- J contributes more than $2100 each month for his nursing home accommodation.
The decision and its effect
In September 2025, T and J entered a Supplementary Deed which provided additional, enforceable protections securing T’s position. Those obligations included the provision of accounts by J (with supporting documents) to T’s solicitors every three months.
The Tribunal approved of that deed and found that was adequate to safeguard T’s interests. Accordingly, the application failed.
This case shows the thorough assessment of the claims and the response with the facts, which left T with the financial security the Tribunal considered was necessary and having made those orders, dismissed the application brought by his niece W.
The Tribunal however decided it would not be in T’s best interests to appoint J as his financial manager under the supervision of NSWTAG. J is a schoolteacher and a mother of two young children. Supervision by NSWTAG would place an unnecessary burden on her. No one presented evidence at the hearing that J was mismanaging T’s affairs.
A relationship between attorney and principal is, by definition, a close relationship of trust and confidence. In addition to the formal relationship of attorney and principal, the evidence established that T and J had a longstanding close relationship of trust and confidence.
There was strong evidence that the transaction was not procured by undue influence or unconscionable conduct when the weaker party receives independent legal advice. T obtained legal advice from his solicitor before entering into the Agreement.
W brought serious claims. Tribunals across the various State and Territory jurisdictions commonly scrutinise similar cases. The Tribunal members also weighed the alternative when reaching their decision. In their view, that alternative would leave T’s financial management in the hands of the NSWTAG. That outcome often hands total management to a statutory organisation the NSW State Government funds. To outsiders, that organisation appears underfunded and understaffed.
[1] T (a pseudonym) [2026] NSWCATGD 13
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
Article Written by Rodney Lewis, Special Counsel
