EB v GB (No 2)

1. [1]

   The primary issue addressed by the parties in this matter is whether the Court has jurisdiction to require a mother, against her wishes, to authorise a daughter to have personal access to her father who is almost entirely unable to communicate or perceive his circumstances by reason of advanced Alzheimer's disease. As will be seen, upon closer analysis, the issue becomes somewhat more complex than has just been stated.

2. [2]

   Given the sensitive nature of the issues raised by the application, I will refer to the people involved as the daughter, the father, the mother and the two brothers.

Relief claimed

1. [3]

   The daughter filed a notice of motion in these proceedings on 24 June 2022 in which her mother and two brothers are named as respondents. The relief sought in the notice of motion is collateral to the relief sought in the original proceedings, which have now been determined, but no issue has been taken by the respondents that the notice of motion is not an appropriate procedure to seek the relief claimed.

2. [4]

   The daughter initially sought the following relief in her notice of motion:

3. [5]

   I understood that the daughter did not ultimately pursue relief in this form at the hearing that took place on 21 July 2022. My understanding was derived from the email from the daughter’s solicitor to my Associate which described the alternative relief that the daughter would seek as the “proposed amended relief”. However, it appears from the final supplementary written submissions provided for the daughter that in fact she wishes to pursue prayer 1 of her notice of motion and her amended relief in the alternative.

4. [6]

   The daughter did not pursue the relief initially claimed in prayer 2. At the initial hearing of the motion on 24 June 2022, and in subsequent correspondence, the daughter's solicitor advised the respondents that relief would only be sought by the daughter based upon the Court's parens patriae jurisdiction. Prayer 2 sought relief based upon the premise that the mother had not validly exercised her authority under a power of enduring guardian executed in her favour by the father. Furthermore, the written submissions served on behalf of the daughter included a claim that the mother was incapable, by reason of her medical condition, of exercising the power of enduring guardian in the way that she had purported to do. The respondents had not been given due notice of these claims and the daughter elected not to pursue prayer 2 at this time.

5. [7]

   At the beginning of the hearing, I drew to the attention of counsel for the daughter the fact that prayer 1 seeks a prohibitory injunction in absolute and indefinite terms restraining the respondents from precluding access by the daughter to the father in the aged care home in which he has resided since about February 2019. I suggested that it may be doubtful that, even if this is a proper case for the exercise of the parens patriae jurisdiction, it would be appropriate for the Court to order a prohibitory injunction in the general terms sought.

6. [8]

   The daughter responded by amending her claim in prayer 1 to claim the following orders:

Relevant instruments

1. [9]

   As I have mentioned, the father is now 98 years of age and is suffering from Alzheimer's disease. I will outline the effect of the evidence concerning the father's cognitive and physical circumstances more fully below.

2. [10]

   The father executed a document called Appointment of Enduring Guardian on 27 June 2016. Relevantly, the document provided:

3. [11]

   In her submissions, the daughter relied upon the fact of her alternate appointment as the father’s enduring guardian as evidence demonstrating the father’s attachment to the daughter at the time the appointment was made.

4. [12]

   Although clause 9(b) is concerned with the end-of-life circumstance where the father's life is sustained only because of the use of artificial means of life support, it is of some significance that the objective of the provision is to allow the father "to die in peace and with dignity."

5. [13]

   The father also executed an Enduring Power of Attorney on 8 May 2017 in which he appointed the mother and the brothers jointly and severally to be his attorneys with the following powers, as stated in clause 2:

6. [14]

   This grant of power was preceded by a preamble that provided:

7. [15]

   These clauses have been taken from the prescribed form of enduring power of attorney: see Powers of Attorney Regulation 2016 (NSW), Sch 2. This instrument created an enduring power of attorney for the purposes of the Powers of Attorney Act 2003 (NSW) as it was expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument: see s 19(1)(a). Section 21(1) provides that an act done by an attorney that is within the scope of the power conferred by an enduring power of attorney is effective even if the act is of such a nature that it is beyond the understanding of the principal through mental incapacity at the time of the act.

8. [16]

   On 27 June February 2019, the father entered into an agreement called ‘Residential Agreement for Residential Care’ with the aged care provider in respect of his residence at the aged care home (Resident Agreement). The Resident Agreement was signed on the father's behalf by the mother under the Enduring Power of Attorney.

9. [17]

   In the Summary of Key Terms, the mother was identified as the father's ‘resident representative’.

10. [18]

    Clause 4 of the Resident Agreement contained the following provisions concerning the position of the resident representative:

11. [19]

    In relation to the rights of visitors and guests having access to the father at the aged care home, the Resident Agreement provided:

12. [20]

    The Act referred to in clause 4.1(a) is defined in clause 20.1 as the Aged Care Act 1997. No term of that Act is material for the purposes of these reasons.

13. [21]

    The only relevant Care Facility Rule as stated in Schedule 10 is:

14. [22]

    Under clause 12.1 of the Resident Agreement, the aged care provider agreed to provide to the father the ‘Care Services’ which were described in detail in Schedules 6 to 9.

Earlier proceedings

1. [23]

   The present application is the distant derivative of a number of proceedings commenced in this Court by the daughter against the other members of her family, and a number of companies controlled by the family. The claims made by the daughter were complex and contentious and it is not necessary to describe the nature of those claims in any detail. It appears that the proceedings were commenced in 2018 and included a claim by the daughter for an order that the other members of her family acquire the daughter's shares in a family company for fair value and a claim by the daughter that the sale by the two brothers of shares in a family trust company was unauthorised and an order that a new trustee be appointed. It appears that the mother and the two brothers obtained an order in the NSW Civil and Administrative Tribunal – Guardianship Division (the Tribunal) that the daughter was incapable of managing her affairs, and by separate proceedings in this Court commenced in 2018 the daughter sought to appeal from the Tribunal's orders and requested that the Court inquire into and determine the capacity of the daughter to manage her financial affairs.

2. [24]

   After substantial forensic effort had been expended and considerable legal costs incurred, on 18 March 2020 I am made orders including a declaration that the daughter is incapable of managing her affairs and an order that the estate of the daughter be subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

3. [25]

   The Court was advised that the parties had reached an agreement in principle to settle their dispute, and I made a notation that senior counsel for the daughter would provide to the Court a confidential opinion as to the appropriateness of the settlement.

4. [26]

   On 7 May 2020, I made orders by consent that had the effect of determining the disputes between the parties. I appointed a new manager of the estate of the daughter and made orders that approved the terms of heads of agreement executed by or on behalf of the parties on 8 and 9 March 2020.

Daughter’s requests to visit the father

1. [27]

   The prosecution of those proceedings by the daughter was capable of causing an alienation of the daughter from the other members of her family, and it is evident from the following extract from a letter dated 17 June 2020 by the solicitor for the respondents to the notice of motion to the solicitor for the daughter that it did so:

2. [28]

   That letter was in apparent response to a letter from the daughter's solicitor dated 15 June 2020. That was part of a series of communications between the respective solicitors that commenced on about 19 May 2020 when the daughter's new financial manager asked her solicitor to assist in arranging for the daughter to be able to visit her father. This request was apparently made after the daughter had unsuccessfully attempted to arrange to visit the father by her own efforts. The mother's response to the request made through her solicitor was initially that the mother was seeking medical advice from the father's general practitioner.

3. [29]

   This chain of correspondence led to the daughter's solicitor's 15 June 2020 letter, which included the following:

4. [30]

   The continuing negotiations between the parties' solicitors did not bear fruit.

5. [31]

   On 8 July 2020, the daughter's solicitor asserted to the solicitor for the respondents that: "Apart from the families (sic) determination to deny [the daughter] access to see [the father], there seems to be no legal or medical reason for that access to be denied." The daughter's solicitor asked to be advised of the name of the psychogeriatrician whom the respondents intended to appoint to advise on the suitability of the daughter visiting the father and when the assessment was likely to be completed. The daughter's solicitor's email continued: "Absent advice on these matters we expect instructions to make an application to Robb J when the matter next comes before him for appropriate orders and we will rely on this correspondence on the question of costs."

6. [32]

   This communication was supported by an opinion expressed in the daughter's psychiatrist's letter to her solicitor dated 1 July 2020 that was provided to the solicitor for the respondents.

7. [33]

   The respondents’ solicitors responded by email dated 13 July 2020 that advised that: "it is [the mother], as [the father's] guardian, who is making the decision as to [the daughter's] request, not the family, as suggested in your email below."

8. [34]

   On 6 August 2020, the proceedings came before me to make directions in relation to issues unrelated to the daughter's attempts to visit the father. Before the directions hearing, my Associate had received a draft notice of motion from the solicitor for the daughter that sought various orders to facilitate her having access to the father. I was advised by senior counsel for the respondents that the mother was still considering the request and certain information provided to her in its support. Senior counsel requested the Court to defer dealing with the issue and I complied with that request.

9. [35]

   It did not become necessary for the Court to resolve the dispute, as on 18 August 2020 the solicitor for the respondents wrote to the solicitor for the daughter to confirm that the parties had agreed to a Zoom videoconference between the daughter and the father on certain terms, including that an employee of the aged care home be present throughout the meeting to monitor any impact on the father's well-being, and that the meeting would be terminated if the father showed any signs of distress or the daughter raised for discussion identified subjects related to the litigation between the parties.

10. [36]

    The daughter's evidence was that she has not physically seen the father since 2017. She has had a 10-minute telephone conversation with him in August 2018, and the first Zoom meeting took place on 20 August 2020. The daughter gave evidence that she was greatly distressed to have received on 10 September 2020 an email from the COO of the aged care home stating that the window of opportunity for her to communicate with the father had passed, due to his deteriorating health, rare moments of lucidity, and his inability to communicate. The daughter gave evidence of unsuccessful attempts to communicate with the father for Father’s Day in 2020. A second Zoom meeting occurred on 7 December 2020. The daughter's evidence was that during this meeting the father made a clear statement that he loved her. The daughter received a text message from her niece on 19 May 2022 about the father's ill-health. She said she is seriously concerned about her father's health and his apparent deteriorating condition. She said that she would be deeply upset if she missed an opportunity to say goodbye to her father. The daughter called the dementia ward of the aged care home on 24 May 2022 in an attempt to speak to the father. She was permitted to speak to him but understood there was a possibility he would not have the ability to speak. When she told the father who was speaking "he let out an almighty scream like he was trying so hard to speak, but couldn't. I told my Father that I loved him and missed him, I said I was sorry I could not see him and hug him in person, and he gave another almighty scream." The daughter had her third and final Zoom meeting to date with the father on 25 May 2022. The daughter's evidence was that she asked the father whether he would like her to visit and he made another almighty noise that the daughter believed was an affirmative response by the father.

11. [37]

    Since that date the daughter has made a number of unsuccessful attempts to visit the father.

12. [38]

    On 1 June 2022, the daughter's solicitor sent an email to the solicitor for the respondents that said:

13. [39]

    The respondents' solicitor responded on 20 June 2022 to advise that the mother was seriously unwell and the solicitor had not been able to obtain instructions on the issue. The response noted that the solicitor had instructions to accept service of the foreshadowed notice of motion.

14. [40]

    For obvious reasons, the continuation of the COVID-19 pandemic prevented the daughter visiting the father in person, but those restrictions have now been relaxed, at least in their absolute form.

15. [41]

    The daughter has provided evidence that she has been properly immunised against COVID-19.

16. [42]

    The respondents' solicitor responded further on 5 July 2022 by advising the daughter's solicitor that the mother is the father's guardian, and that the brothers have not precluded and cannot preclude the daughter's access to the father.

17. [43]

    By email dated 12 July 2022, the daughter's solicitor referred to a recent conversation with the respondent's solicitor in which he had been told that the respondents' solicitor had not been able to speak with the mother but that her current instructions were to defend the daughter's application. The daughter's solicitor urged the respondents to consent to the daughter having physical access to see her father, and for that purpose enclosed proposed draft short minutes of order.

18. [44]

    The respondents' solicitor replied on 14 July 2022 to confirm that she had not been able to obtain instructions from the mother regarding the daughter's requests or with respect to defending the matter, because of the mother's ill-health. On that basis, the respondents were not in a position to enter into consent orders.

19. [45]

    The daughter stated in her final affidavit sworn on 20 July 2022:

Respondents’ evidence

1. [46]

   The respondents served their evidence in defence of the daughter's application on 18 July 2022.

2. [47]

   Notwithstanding the fact that the respondents have taken the position that it is the mother as the enduring guardian of the father who has the right to decide whether the daughter is permitted to visit the father in person and that the mother is too physically ill to give final instructions as to whether to resist the daughter's application, it is clear that the respondents have in fact resisted the application adamantly and for that purpose they retained the services of senior counsel.

3. [48]

   It will be necessary now to outline the evidence relied upon by the respondents. I will deal with that evidence in the order in which it appears in the court book.

4. [49]

   The respondents’ solicitor swore an affidavit on 24 June 2022. The solicitor deposed that both the mother and the father reside in the same residential aged care facility, although in different wings of the facility due to their differing needs. The solicitor gave evidence on information and belief from one of the brothers to the effect that the mother had been caused considerable stress and distress as a result of being told that on about 31 May 2022 the daughter tried to visit the father in person.

5. [50]

   The brother also advised the solicitor that on 22 June 2022 the mother made statements about wanting to end her life. The mother has been examined in hospital but has not yet received a diagnosis. The brother reported that doctors had said that stress was a contributing factor to the mother being unwell and that the mother had been referred to a geriatrician. The brother claimed that: “[The mother] knowing that [the daughter] is trying to get in to see [the father] using a false name has significantly heightened her stress."

6. [51]

   The brother advised the solicitor that the issue of the daughter wanting access to the father had not been raised with the mother again because she is too unwell to deal with the additional stress.

7. [52]

   The solicitor referred to her letter to the daughter's solicitor dated 20 October 2020 as "'setting out [the mother's] position regarding [the daughter's] request."

8. [53]

   The solicitor also said that she had been instructed by the brothers that they do not oppose the daughter arranging a Zoom meeting with the father as that aligned with the mother's position as of late last year.

9. [54]

   It thus appears that the mother may not presently be capable of giving up-to-date instructions to the solicitor and that the brothers have taken the view that they should instruct the solicitor to oppose the daughter's application on the basis that such opposition would be consistent with the stance adopted by the mother in 2021. I will refer below to additional evidence that suggests that the mother at a later time authorised one of the brothers to instruct the solicitor to oppose the daughter’s application.

10. [55]

    As the respondents do not oppose the daughter having a Zoom meeting with the father, the issue at the heart of this application has become whether the Court has power to make an order that the meeting between daughter and father should take place in person and if so whether that order should be made.

11. [56]

    The effect of the solicitor's affidavit was to revive the statements in the solicitor's 20 October 2020 letter as being the grounds upon which the mother resists the Court making the orders sought by the daughter.

12. [57]

    The essence of those reasons is contained in the following extract from the solicitor's letter:

13. [58]

    Given that there is an issue concerning the nature of the daughter's psychological disabilities, it is also worthwhile noting the following additional extract from the respondents' solicitor's 20 October 2020 letter (emphasis in original):

14. [59]

    Although there has been ample opportunity for the mother to say so if it were the case, she has not justified her prohibition of the daughter visiting the father in person by relating any statement made to her by the father that the father did not want to be visited by the daughter or to speak to her again.

15. [60]

    The respondents tendered a report dated 18 July 2022 by the general practitioner who is the doctor for both the mother and the father.

16. [61]

    The doctor said that the father was diagnosed in February 2018 as suffering from moderate to advanced Alzheimer's type dementia with a possible vascular component. The doctor said:

17. [62]

    The doctor expressed the opinion that the father would be unaware of the visit by the daughter. That is, he is unable to recognise anyone, and though he may have very brief periods where he seems to acknowledge the presence of a person, he is incapable of verbally responding to the person present.

18. [63]

    The doctor also gave evidence of the likely effect on the mother of the daughter being permitted to visit the father in person. The doctor gave evidence of the mother's medical condition, but it is not necessary to set out that evidence in detail. The doctor said:

19. [64]

    The doctor added:

20. [65]

    The doctor asserted that a visit by the daughter to the father "would severely impact [the mother's] wellbeing" and "[i]t appears that [the mother's] illness is directly related to ongoing family issues, in particular, [the mother's] unresolved conflicts with [the daughter]."

21. [66]

    In a letter dated 15 July 2022 to the respondent's solicitor, the person who I have described in these reasons as the COO of the aged care home said that he has a Diploma of Applied Science (Nursing), a Bachelor of Health Administration and a Master of Public Health degree, together with certain legal qualifications.

22. [67]

    The COO described the father's present physical and emotional circumstances, and made the following report concerning his participation in one of the Zoom meetings between the daughter and the father:

23. [68]

    In a further letter to the solicitor for the respondents dated 15 July 2022, the COO of the aged care home gave evidence concerning his understanding of the current physical and mental state of the mother.

24. [69]

    The COO said that he had observed a change in both the mother's appearance and demeanour in the last six months. He said that the mother's underlying medical conditions and the continued deterioration of her husband's health is contributing to her own health challenges. He suggested that her situation probably flows from a physiological cause and not a psychological one.

25. [70]

    Asked to express an opinion as to whether the mother was mentally or physically unable to give evidence on the daughter's application, the COO gave a response that included:

26. [71]

    The COO was also asked to comment on the impact on the mother of a visit to the father by the daughter. The COO responded (emphasis in original):

27. [72]

    In an affidavit made on 18 July 2022, the Director of Nursing at the aged care home gave evidence about an attempt made by the daughter on 31 May 2022 to visit the father. The witness felt unable to permit the visit. The daughter was unable to provide proof of vaccination. The witness deposed to a conversation that included:

28. [73]

    The witness also provided the following opinion:

29. [74]

    One of the brothers gave evidence in an affidavit made on 19 July 2022. The brother confirmed the other evidence concerning the mother's physical and mental condition. In particular, the brother gave the following evidence:

30. [75]

    The brother also echoed the other evidence concerning the possible effect of a visit by the daughter to the father on the mother. He added his own perception of the historical relationship of the daughter to the other members of the family. The brother finished by saying:

Some observations on the application

1. [76]

   It is something of a tragedy that the daughter's attempt to visit her father in person has led to this impasse and an application for judicial intervention that could never have been the most suitable way to resolve the situation. It is a precept that must attain almost universal acceptance that a parent has a moral right to expect love and support from their children in their final days where it is possible for that to be given, and that a child has both a moral right and duty to give that love and support in person where that can be done.

2. [77]

   Given that, on the evidence, the mother rarely visits the father these days, it should have been possible by arrangements with the aged care provider made between the solicitor for the daughter and the solicitor for the respondents to let the daughter see her father in person occasionally, subject to appropriate practical arrangements to ensure that the visits were not unduly burdensome on the father. It appears that the respondents and the aged care provider have taken the view that the authority to determine who has access to the father resided in the mother under the appointment of enduring guardian. In conformity with that view, the aged care provider became subject to a prohibition, made by the mother, of the daughter having access in person to the father. The relaxation of that prohibition was thought to require the approval of the mother. The mother maintains a level of antipathy against the daughter as a result of her long and short-term behaviour that the mother has not overcome sufficiently to permit the daughter to visit her father before he dies. A consequence of the understanding that the entitlement of the daughter to visit her father depends upon the mother's permission is that visits have not been able to be arranged in a way that would avoid the mother suffering stress and disappointment as a result of learning that visits had taken place.

3. [78]

   Any access that the daughter is given to her father must take place at the aged care home, which is the property of the aged care provider. The aged care provider has general property rights which include the right to decide which strangers will be permitted to enter the aged care home. In the submissions made on her behalf, it was explicitly accepted by the daughter that no order made by this Court on her application will bind the aged care provider, who has not been made a party to the application.

4. [79]

   That has the result that even if this Court were to decide that it has the jurisdiction to make an order directed at allowing the daughter personal access to her father, and that such an order should in principle be made, the Court must also consider whether the making of the order would be futile, as it cannot on this application require the aged care provider to facilitate the daughter's access to the father.

Authority of the mother to control access to the father

1. [80]

   During the course of the hearing, it became apparent to the Court that the parties were proceeding upon an unproven premise that one effect of the appointment of enduring guardian was to give the mother a unilateral and unfettered right to decide who had access to the father. That realisation led to an examination of the effect of the appointment of enduring guardian and the enduring power of attorney.

2. [81]

   Those issues arose in a collateral way and were not the subject of any claim for relief in the notice of motion. The Court is not called upon to make any final or binding determination of the legal effect of either instrument. The issue has only arisen as a step in the process of determining whether the Court has jurisdiction to make the alternative orders sought by the daughter and whether those orders should be made.

3. [82]

   The issue is nonetheless important because, in the practical manner that I have outlined above, the aged care provider appears to have taken the view that the mother has imposed an effective prohibition on the daughter being given access to the father and that that prohibition must be respected unless it is withdrawn or some paramount order is made so that the prohibition is superseded. The legal effect of the appointment of enduring guardian and the enduring power of attorney may therefore have some practical significance to the proper resolution of the present conflict.

4. [83]

   It should be noted that clause 4.1(a) of the Resident Agreement, which is set out above at [18], only states that "any decisions as to Your health and financial affairs may be determined by Your enduring attorney or enduring guardian". There is thus a real question as to whether decisions as to access, divorced from genuine health considerations, are to be made by the mother as the enduring guardian or the mother and the brothers as the enduring attorneys.

5. [84]

   It is clear from clause 5 of the appointment of enduring guardian that the mother has authority to decide where the father shall live and what health care the father should receive and to decide what other kinds of personal services he receives. There is an issue as to whether that authority extends to prescribing the circumstances in which other people will be entitled to have access to the father either generally or as an adjunct to procedures intended to maintain the father’s health.

6. [85]

   As this issue has given rise to unexpected complications, I will begin by summarising my conclusions.

   1. (1)

      First, the father could have included in the appointment of enduring guardian and authority to determine who could have access to him, but he did not do so.

   2. (2)

      Secondly, the authorities that were given to the mother by the appointment of enduring guardian do not extend to prohibiting the aged care provider from permitting any person to have access in person to the father.

   3. (3)

      Thirdly, even though the mother has the authority to decide what health care the father should receive, that authority probably does not extend to prescribing the circumstances in which the aged care provider allows access to the father.

   4. (4)

      Fourthly, in the absence of the requisite authority in the appointment of enduring guardian, that authority is not supplied by the enduring power of attorney.

   5. (5)

      Fifthly, the decision as to whether and if so in what circumstances the daughter should be given access in person to the father falls within the authority of the aged care provider under the Resident Agreement. The obligations of the aged care provider to the father under this agreement may be complex and do not arise for determination on this application.

   6. (6)

      Finally, as the father did not give the mother authority to determine who had access to him, that authority could only be vested in the mother or some other suitable person by order made by the Tribunal under s 16 of the Guardianship Act 1987 (NSW).

7. [86]

   I will now briefly set out my reasons for reaching these conclusions.

8. [87]

   Part 2 of the Guardianship Act governs the appointment of enduring guardians. Section 6 of the Guardianship Act provides that a person of or above the age of 18 years may, by instrument in writing, appoint a person as his or her guardian. A person so appointed is appointed as an enduring guardian: Guardianship Act, s 6A(2). The person appointing the enduring guardian is termed the ‘appointor’ and the enduring guardian is termed the ‘appointee’: Guardianship Act, s 5.

9. [88]

   Sections 6E and 6F of the Guardianship Act explain the functions of enduring guardians. For relevant purposes, those sections provide:

10. [89]

    Clause 5 of the appointment of enduring guardian gives the authority to the mother that is set out in s 6E(1)(a)-(d) of the Guardianship Act. It does not authorise any other function as is permitted by s 6E(1)(e). There are no exclusions from the authority given as is permitted by s 6E(2).

11. [90]

    The plain meaning of the text of ss 6E and 6F of the Guardianship Act leads to the conclusion that these sections are exclusive as to the functions, and therefore the authority, of the enduring guardian in respect of the appointor. An enduring guardian has no power in respect of the appointor by virtue of the Guardianship Act unless authorised by those sections.

12. [91]

    There is some utility in considering briefly the equivalent statutory provisions in the other States and Territories given the respondents' submission that a strict or narrow interpretation of the authority given by the father to the mother in the appointment of enduring guardian will leave a gap or lacuna in the mother's capacity to act as the father's guardian.

13. [92]

    The statutes in respect of enduring guardianship and like arrangements of other States and Territories frame the functions of enduring guardians in a different manner to that of the Guardianship Act of this State. For example, the Guardianship and Administration Act 2000 (Qld) operates by classifying ‘matters’ of an appointor’s life into categories of ‘personal matters’, ‘special personal matters’, ‘special health matters’, and ‘financial matters’: Guardianship and Administration Act 2000 (Qld), s 10. Section 33(1) of that Act, for example, then authorises the guardian to do, in accordance with the terms of the guardian’s appointment, anything in relation to a personal matter that the adult could have done if the adult had capacity for the matter when the power is exercised. The Act then defines ‘personal matter’ in Sch 2, cl 2:

14. [93]

    The Northern Territory legislation, the Guardianship of Adults Act 2016 (NT), and the Victorian legislation, the Guardianship and Administration Act 2019 (Vic), use a similar scheme. The Northern Territory legislation includes as an example of its statutory concept of ‘personal matters’, “[r]elationships with other people, including decisions about who may or may not visit [the appointor]”: Guardianship of Adults Act 2016 (NT), s 3, and see also s 21. The Victorian legislation includes as an example of its statutory concept of ‘personal matters’, “other persons with whom [the appointor] associates”: Guardianship and Administration Act 2019 (Vic), s 3(1), and see also s 38(1)(a).

15. [94]

    The Western Australian legislation, the Guardianship and Administration Act 1990 (WA), also uses the language of association. Under that Act, a ‘plenary guardian’ is given all the functions in respect of the appointor as would have a person in whose favour certain parenting orders have been made under that State’s Family Court Act 1997 (WA), except to chastise or punish: Guardianship and Administration Act 1990 (WA), s 45(1). Section 45(2) then provides:

16. [95]

    The Tasmanian legislation, the Guardianship and Administration Act 1995 (Tas), achieves an apparently similar outcome in a more direct way. Section 25 of that Act relevantly provides:

17. [96]

    The manner in which the Australian Capital Territory legislation, the Guardianship and Management of Property Act 1991 (ACT), grants functions to guardians involves the ACT Civil and Administrative Tribunal appointing the guardian with the powers that the ACAT is satisfied are necessary or desirable to make decisions for the person in accordance with the decision-making principles: Guardianship and Management of Property Act 1991 (ACT), s 7(2). That Act provides examples of such powers in s 7(3), which, like the New South Wales Act, do not include an express reference to association or visitation of the appointor. Section 7B of that Act provides the limits on the powers that the ACAT can grant a guardian, none of which point directly to those matters either.

18. [97]

    I have undertaken this survey of other legislative schemes to highlight the apparent silence of the New South Wales Act on the subject of association and visitation of the appointor in the granting of functions to the enduring guardian. That silence seems to have the effect that it is up to the appointor to decide whether or not to authorise the appointee to determine who may have access to the appointor by exercising the right created by s 6E(1)(e) of the Guardianship Act to include any other function relating to the appointor’s person that is specified in the instrument, being relevantly in this case the authority to control access to the appointor.

19. [98]

    In relation to the authority granted to the mother by clause 5(b) of the appointment of enduring guardian to decide what health care the father receives, which is apposite to the function granted by s 6E(1)(b) of the Guardianship Act, the respondents submitted that a necessary incident of deciding what health care should be received by the father is deciding who should have access to the father, at least if there is concern that such access may affect the father’s health. The respondents submitted that the guardian's decisions about the health care to be provided may be frustrated if extraneous circumstances (for example, visitors and care conditions) would otherwise impact on the efficacy of those decisions. Further, the respondents submitted in relation to the authority granted to the mother by clause 5(a) of the appointment of enduring guardian to decide where the father lives, which is apposite to the function granted by s 6E(1)(a) of the Guardianship Act, that authority not only authorises the guardian to select the aged care home in which the father lives, but also the terms of the agreement with the aged care provider, which would include rights regulating access.

20. [99]

    The respondents submitted that in the present case, the mother would not need to form a view, before any particular visit, as to whether the proposed visitor would, more likely than not, inadvertently do something to discomfort or upset the father. For present purposes, they submitted, it suffices that there is a real possibility of that occurring, having regard to past events when the daughter has visited in person. The past events referred to in this submission were the occasions when the daughter became upset when she was refused access to her father, and when she raised her voice to try to communicate with the father during the Zoom meeting that has been referred to above.

21. [100]

    I am prepared to accept that the authorities granted by an appointment of enduring guardian should be given a generous construction, having regard to the subject matter of the authority and to make the exercise of the authority as efficacious as possible.

22. [101]

    However, there will always be a question of whether in fact the exercise of the grant of authority falls sufficiently within the authority actually granted for the exercise to be accepted as being valid. While proper exercise of the authority should be effective and the appointee should largely be left to decide the circumstances in which the authority should be exercised, it is necessary to remember that the authority involves the exercise of a personal right of the appointor, and it must be assumed that the appointor has made a careful determination of how the personal rights of the appointor should be exercised during times when the appointor is incapable of managing the appointor's person.

23. [102]

    I do not accept the respondents’ submission that upon the proper construction of clause 5 of the appointment of enduring guardian or s 6E of the Guardianship Act, either on their own terms or with the aid of the ancillary power in s 6F of the Guardianship Act, impliedly authorises the mother to decide who has access to the father or on what terms that access should take place. The authority to decide where a person lives does not naturally extend to who has access to that person at the place of residence. Nor does the right to decide what health care a person should receive extend to deciding when a particular person should be refused access to that person because of some concern that the person may be alarmed or discomfited. I have been assisted in reaching these conclusions by my reading of N O’Neill and C Peisah, Capacity and the Law (2011, Sydney University Press) (O’Neill and Peisah), which contains a review of the limited legal sources that are available relevant to this issue. In particular the authors discuss at [7.5.2], [7.5.3] and [7.5.6] the separate considerations that have been thought to arise in respect of the authorisation of a guardian to control the subject person’s accommodation, health care and access to that person respectively. It will be helpful to extract the observations made by the authors on the subject of access at [7.5.6] (footnotes omitted):

24. [103]

    The manifestation of the possibility that the appointment of enduring guardian may not authorise the mother to impose a general prohibition on the daughter having personal access to the father led the respondents to make an alternative submission that the power to determine who has access to the father is vested in the mother as one of the attorneys of the father under the enduring power of attorney.

25. [104]

    As noted above at [13], the enduring power of attorney granted by the father on 8 May 2017 authorised the mother, as one of the three joint and several attorneys, to "exercise the authority conferred by Part 2 of the Powers of Attorney Act 2003 to do anything on my behalf I may lawfully authorise an attorney to do." Relevantly, s 9 of the Powers of Attorney Act 2003 (NSW) provides:

26. [105]

    The wording of s 9 of the Powers of Attorney Act and clause 2 of the enduring power of attorney begs the question of what the appointor may lawfully authorise an attorney to do.

27. [106]

    But the wording of clause 2 of the enduring power of attorney must be construed in that context of the whole instrument, which includes the preamble extracted above at [14] which includes an express statement that an attorney under an enduring power of attorney cannot make decisions about the father’s lifestyle or health. Decisions on those issues can only be made by a guardian, whether appointed by the father or the Tribunal. The Court cannot construe the enduring power of attorney as vesting authority in the mother and the brothers when that authority is expressly excluded by its wording.

28. [107]

    In any event, the better view is that at common law a principal may not confer on an attorney, under a power of attorney, authority to bind the principal in the determination of such a personal matter as who may have access to the principal or the terms upon which access may be had. As was observed in B Collier and S Lindsay, Powers of Attorney in Australia and New Zealand (1992, Federation Press) at 42 (footnotes omitted):

29. [108]

    In G E Dal Pont, Powers of Attorney (3rd ed, 2020, LexisNexis Butterworths), the learned author says at [1.23] (footnotes omitted):

30. [109]

    The learned author further observed at [5.26] (footnotes omitted):

31. [110]

    Dal Pont relied upon the extract from Collier and Lindsay set out above for these propositions.

32. [111]

    In G A Schindler and S E Sherry, Aldridge: Powers of Attorney (11th ed, 2016, Sweet & Maxwell), the learned the editors appear to reach a similar conclusion at [1-01], [1-18] and [2-05].

33. [112]

    These considerations do not have the result that there is a lacuna in the authority of an appropriate guardian of the father to make decisions about access to him. The Tribunal has power under s 14 of the Guardianship Act to appoint the mother or some other appropriate person as the father’s guardian, and s 16(1)(c) provides that the guardianship order may be expressed to be plenary or limited, and in the latter case may specify the functions conferred on the guardian.

34. [113]

    The result is that, as matters stand, the issue of whether the daughter should be given access in person to the father is a matter to be decided by the aged care provider under the Resident Agreement and any provisions of the general law that may be applicable.

Factual findings

1. [114]

   On the evidence tendered on this application, the daughter's claim should be determined on the basis of the following findings of fact.

   1. (1)

      The daughter has a genuine and intense desire to see her father in person at least once before he dies, and, if possible, on as many reasonably spaced occasions as the remaining number of his days permits.

   2. (2)

      It will cause the daughter significant grief if she is refused the right to see her father while he still lives, to hold his hand and hug him and tell him in person that she loves him, and to make whatever peace with him that she can, even if the reality is that the father's present circumstances almost totally impair the father's capacity to understand or respond in any meaningful way.

   3. (3)

      The evidence on the present application did not venture in any detail at all into the issue of the daughter's physical and psychological disabilities. It will be remembered that extracts from the respondents' solicitor's 20 October 2020 letter, which are set out above at [57] and [58], convey some information concerning the mother's understanding of the daughter's circumstances. The evidence in the earlier proceedings satisfied the Court that a financial management order ought to be made in respect of the daughter's estate.

   4. (4)

      The evidence justifies a conclusion that there is an enhanced risk that, as compared with the capacity for self-restraint of persons generally with ordinary emotional stability, the daughter will find it difficult to control her emotions when faced with the reality of the father's present circumstances during a visit in person. However, I do not accept that that risk is excessive or that it cannot be ameliorated by appropriate arrangements to ensure that any visit is properly supervised and can be terminated, if that course is warranted.

   5. (5)

      I have recorded that the daughter has offered an undertaking to the Court that she will conduct herself lovingly and respectfully with her father and will in no way upset the staff at the aged care home.

   6. (6)

      I do not accept that the evidence, such as it is, of the daughter's responses to being denied personal access to her father when she made impromptu attempts to do so demonstrate that there is any unacceptable risk that the daughter will misbehave during any personal access to her father, particularly if the daughter is appropriately supported during the visit. It is perfectly natural for a daughter to become emotionally upset when denied personal access to her dying father, and I do not accept that this relatively inconsequential conduct proves that the daughter will not behave properly during a visit with her father. Furthermore, I do not accept that the evidence of the daughter's conduct during the Zoom meeting demonstrates an unacceptable proclivity to become emotional or behave improperly. The thought of what is involved in a psychologically challenged daughter trying to conduct a Zoom meeting with an unresponsive father who may be near death is more than a little bizarre. One aspect of the Zoom meeting is that the daughter could only attempt to communicate orally, so it may be understood why, in attempting to do so, she may have raised her voice in an inappropriate way.

   7. (7)

      The evidence does not support a conclusion that a meeting between the daughter and the father will per se be damaging to the father's health. That follows from the fact that Zoom meetings were permitted. The only question can be whether it will make a difference if the meeting is in person. Given that one of the strongest lines of the respondents' argument was that the father is likely to be unresponsive during the meeting, it should follow that the personal presence of the daughter will have no ill effect on the father's health. The only issue can be whether the father may suffer as a result of inappropriate conduct on the part of the daughter, and whether the circumstances in which the meeting in person takes place will not permit that risk to be managed satisfactorily.

   8. (8)

      On the evidence, the father is not yet moribund and insensate. The mother has decided that the father's future should be managed conservatively, and he should not be transferred to palliative care. I have outlined the evidence above that the father occasionally makes limited responses to stimuli. In fact, the evidence is entirely incomplete concerning the real capacity of the father, notwithstanding that he is in extremis, to appreciate stimuli such as a hug, or his hand being held, or the presence of a daughter.

   9. (9)

      The evidence does not support a finding that the mother has decided to prohibit the daughter having access to her father in order to preserve the father's health. The best explanation of the mother's reasons is as set out above at [57] and [58], in the extracts from the solicitor's 20 October. 2020 letter.

   10. (10)

       I accept that, even though the evidence does not show that the reason why the mother will permit the daughter having a Zoom meeting with the father but has prohibited her having a visit in person is that there is a real risk that a personal meeting will be injurious to his health, it is possible in fact that, if the daughter did not conduct herself properly, that could cause the father to suffer discomfort and alarm. That is a relevant circumstance to the consideration of the basis upon which the daughter might be permitted to visit the father in person.

Relevant legal principles

1. [115]

   As I have recorded above, the daughter has put her claim for orders that will facilitate her having access to her father in person on the basis of the Court’s parens patriae jurisdiction. Because of the obvious need for these reasons to be completed promptly, I have not had an opportunity to give proper consideration to the intersection of the parens patriae jurisdiction and the general inherent protective jurisdiction of the Supreme Court.

2. [116]

   I cannot do better in the circumstances than to repeat part of the extract from the comprehensive judgment of Lindsay J in Re AAA; Report on a Protected Person’s Attainment of the Age of Majority [2016] NSWSC 805 that I set out in my judgment in Re Anita (No 3) [2016] NSWSC 1959 at [46], in which his Honour explained the process of convergence of the different historical strands in the Court’s protective jurisdiction, which has preserved the Court’s inherent jurisdiction in order to deal with unforeseen or extraordinary problems. As was the case in my earlier judgment, I have respectfully edited his Honour’s comprehensive explanation of the protective jurisdiction by omitting the commentary that is more relevant to the making of protected estate management orders. Lindsay J said:

3. [117]

   As I have earlier said in Re Anita (No 3) concerning the nature and ambit of the Court’s parens patriae jurisdiction:

4. [118]

   Fagan J in Chapman v South Eastern Sydney Local Health District (2018) 98 NSWLR 208; [2018] NSWSC 1231 (Chapman) added:

5. [119]

   In Chapman, Fagan J held that the Court could not make an order in exercise of the parens patriae jurisdiction authorising the removal of sperm from an unconscious patient who had died by the time the order was required to be made because the jurisdiction could only be exercised for the benefit and well-being of the person upon whom the procedure was to be performed. The application for the order was made by the wife of the patient who wanted to conceive a child with his sperm. The interests of any child that might be conceived as a result of the extraction procedure were irrelevant. So were the interests of the wife. His Honour said:

6. [120]

   The respondents relied upon this passage as authority for the proposition that the Court could not make the orders sought by the daughter based upon her interest in being able to visit her dying father in person. The daughter responded by submitting that it also supports the Court declining to uphold the mother’s decision to prohibit the daughter visiting her father insofar as that decision was based on the mother’s personal attitude and antipathy to the daughter. However, the obvious point of distinction between the present case and Chapman is that the father remains alive, although in a much-diminished state, and may have his own interests in meeting and being comforted by his daughter in his remaining time.

7. [121]

   In The Hospital v S (a minor) [2019] NSWSC 642, I made declarations to the effect that the plaintiff may lawfully discontinue all life-sustaining treatment and medical support measures designed to keep the child who was the first defendant alive in his current state. I said:

8. [122]

   I refer to this decision in order to illustrate the proposition that the exercise of the Court’s protective jurisdiction is not circumscribed in any way by the capacity of the person in need of protection having the sentience necessary to understand and appreciate the benefit of the order. The Court may protect the person to his or her very last breath even if the only real consequence of the order is to preserve the person’s right to dignity in death.

Consideration

1. [123]

   If I had reached the conclusion that the appointment of enduring guardian had authorised the mother to issue to the aged care provider the prohibition of the daughter having any visit with the father in person that she has apparently issued, I would have considered that the Court's parens patriae jurisdiction empowered the Court to make an order countermanding that prohibition on appropriate conditions concerning the circumstances in which the daughter would be permitted to make personal visits to her father in the aged care home. The order would have been made in the father's interest in having an opportunity to spend time with his daughter before he dies. That, in my view, is of sufficient value, even to a father in extremis as the evidence shows the father in this case is. Even the small comforts that may still be available to a person in the position of the father have sufficient value to call for the Court's protection.

2. [124]

   It follows that I would not have accepted the respondents' argument that it would not be in the interests of the father for the Court to make orders that facilitated a visit in person by the daughter because the father's state of consciousness is not sufficient for him to appreciate in a truly sentient way the possible benefits of the visit.

3. [125]

   I hope the stage has not been reached where it is required of a Supreme Court judge to express solemn reasons why a Zoom meeting between a daughter and a father in the state of consciousness of the father in this case is an absolutely inadequate replacement for a visit in person by the daughter to the father.

4. [126]

   Had I concluded that orders should be made against the mother to facilitate visits in person by the daughter to the father, I would have formulated those orders, in principle, but would not have made final orders until the aged care provider had been given an opportunity to consider the proposed orders and to make any representations to the Court that were thought by the aged care provider to be appropriate concerning any possible unsatisfactory consequences of the orders.

5. [127]

   In formulating the orders, I would have had regard to the following general principles as stated in s 4 of the Guardianship Act:

6. [128]

   I would also have had regard to the considerations concerning the maintenance of family access to older people with a disability contained in the extract from O'Neill and Peisah that is set out above.

7. [129]

   However, for the reasons given above, I have found that the appointment of enduring guardian in this case did not vest authority in the mother to regulate access to the father.

8. [130]

   A consequence of my conclusion that the appointment of enduring guardian did not authorise the mother to control access to the father is that any prohibition that she has conveyed to the aged care provider was outside her authority and does not bind the aged care provider. The Court cannot sensibly order that the respondents be restrained from precluding access by the daughter to the father, or alternatively direct the mother to provide written consent for the daughter to visit the father at the aged care home, if none of the respondents have any authority to control access to the father.

9. [131]

   As it has happened, the decision whether or not the daughter's request to visit her father in person should be approved is a matter to be decided by the aged care provider. There may be legal constraints on the basis upon which the aged care provider should exercise its right to approve or deny the daughter's request, but that is not a matter that should be addressed in the absence of the aged care provider.

10. [132]

    I note that Schedule 11 of the Resident Agreement contains what is called a "Charter Care of Recipient's Rights and Responsibilities – Residential Care". Some of those rights may be relevant to how the aged care provider should respond to a request by the daughter to be permitted to visit her father in person.

11. [133]

    The aged care provider would be entitled to canvass the opinions of the father's family members, which would include the daughter.

12. [134]

    There could be no legal impediment to the respondents expressing opinions to the aged care provider to persuade it not to approve the daughter's request, or to do so on particular conditions. The Court could not properly in the exercise of its parens patriae jurisdiction deny the respondents' right to express their own opinions on a family matter concerning the welfare of the father.

13. [135]

    The only course that is now available to the Court is to publish these reasons to the parties without making any orders at this stage. The parties have leave to relist the notice of motion for a further directions hearing by arrangement with my Associate, or alternatively they may agree to provide supplementary written submissions to my Associate. That must be done very promptly.

14. [136]

    I would respectfully recommend that these reasons be brought to the attention of the aged care provider and its views solicited as to how it would react to a request by the daughter for permission to visit her father in person, given my finding that it is not bound by any prohibition of the daughter's access to the father that has been issued by the mother. I would hear representations from the aged care provider if, of its own volition, it wished to involve itself in the application.

15. [137]

    It follows from my consideration of the Court's parens patriae jurisdiction that it would be within the Court's power to make an appropriate order against the aged care provider, but that is plainly not an issue that should be considered in the absence of the aged care provider.

16. [138]

    In due course, it will be necessary for me to receive submissions on the issue of costs, but that is a question that must abide the final practical outcome of the application.