Aak v NSWTG and ABH

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AAK v NSWTG and ABH [2011] NSWADT 161
Hearing dates:	3 March 2011
Decision date:	01 July 2011
Jurisdiction:	General Division
Before:	J Millar, Judicial Member
Decision:	Decision affirmed
Catchwords:	Protected Estates - review of NSWTG's decision not to investigate Power of Attorney, not to pursue recovery of monies
Legislation Cited:	Administrative Decisions Tribunal Act, 1997 Guardianship Act, 1983
Cases Cited:	Commissioner for Children & Young People v. FZ (2011) NSWCA 11
Category:	Principal judgment
Parties:	AAK (Applicant) NSW Trustee & Guardian (First Respondent) ABH (Second Respondent)
Representation:	AAK (Applicant in person) NSW Trustee & Guardian (Respondent) ABH (Respondent in person)
File Number(s):	103316
Publication restriction:	S126 of the Administrative Decisions Tribunal Act 1997 applies

REASONS FOR DECISION

1. GENERAL DIVISION (J MILLAR (JUDICIAL MEMBER)): AAK is the applicant for review a decision by the NSW Trustee & Guardian (NSWTG) to take no further action in regard to further investigation of a power of attorney given by his mother and recovery proceedings against ABH or AAK. The NSWTG and ABH both oppose AAK's application and seek that the decision under review be affirmed.

HISTORY

1. On 29 July 2009 the Guardianship Tribunal made an order that the estate of AAK's and ABH's mother be subject to management under the provisions of the NSW Trustee & Guardian Act, 2009 and that management of her estate be committed to the NSW Trustee. On the same date the Guardianship Tribunal, on the application of ABH that the Tribunal revoke an enduring power of attorney dated 15 January 2008 which appointed AAK as attorney for their mother, reviewed the making and the operation and effect of the power of attorney and determined not to make any order. On the same date, in respect of an application by AAK requesting the Guardianship Tribunal to revoke an enduring power of attorney dated 11 October 2001 by which ABH was appointed attorney for their mother, the Tribunal reviewed the making an operation and effect of the power of attorney and determined not to make any order in respect of it, and instead in all of the circumstances, treated the application for review as an application for a financial management order pursuant to Part 3A of the Guardianship Act, 1987.

1. At the time of making those orders the Tribunal found that AAK's and ABH's mother was not capable of managing her financial affairs, that she needed to have a financial manager appointed and that it was in her best interests that such an order be made. Management was committed to the NSW Trustee. An application for appointment of a financial manager made by AAK did not need to be determined in view of the other orders made by the Guardianship Tribunal and accordingly it was dismissed.

1. At the time of the hearing before the Guardianship Tribunal AAK's and ABH's mother was aged 86 years and was residing in a nursing home at Pendle Hill where she had been located since 2004.