AGM v NSW Trustee and Guardian - [2012] NSWADTAP 18

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: AGM v NSW Trustee and Guardian [2012] NSWADTAP 18
Hearing dates: 24 February 2012
Decision date: 01 June 2012
Jurisdiction: Appeal Panel - External
Before: Magistrate N Hennessy, Deputy President
Ms L Goodchild, Judicial Member
Ms A Wunsch, Non-Judicial Member
Decision:
1. The following orders of the Guardianship Tribunal are affirmed:
(1) To carry out a review of the operation and effect of the enduring power of attorney made by [AGO] on 10 December 1999 which appointed [AGQ].
(2) To remove [AGQ] from office as attorney under the enduring power of attorney made by [AGO] on 10 December 1999.
2. The following order of the Guardianship Tribunal is set aside;
(1) To make a financial management order and to commit the management of the estate of [AGO] to the NSW Trustee.
3. These orders come in to effect 8 weeks from the date of this decision.

Catchwords: APPEAL - question of law - Guardianship Tribunal's jurisdiction to make a financial management order when considering an application under the Powers of Attorney Act 2003
Legislation Cited: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Rules 1998
Guardianship Act 1987
Powers of Attorney Act 2003
Cases Cited: ADK v NSW Trustee and Guardian [2011] NSWADTAP 60
N v Protective Commissioner & Ors [2007] NSWADTAP 68
Category: Principal judgment
Parties: AGM (First Appellant)
AGN (Second Appellant)
AGO (Respondent)
AGP (Respondent)
AGQ (Respondent)
NSW Trustee and Guardian (Respondent)
Guardianship Tribunal
Crown Solicitor's Office (Solicitor Assisting)
Representation: Counsel
M Pringle (Appellants)
PJ Ellis (Appellants)
Crown Solicitor's Office (Assisting Tribunal)

File Number(s): 118010
Publication restriction: S126 of the Administrative Decisions Tribunal Act
Decision under appeal

Citation:

Unreported

Date of Decision:

2011-07-27 00:00:00

Before:

Guardianship Tribunal

File Number(s):

C/47150; 2011/2045

REASONS FOR DECISION

Introduction

AGO is an elderly woman who lives in a nursing home. On 27 July 2011, the Guardianship Tribunal made certain orders in relation to AGO's financial affairs. The niece and nephew of AGO's sister, AGP, have appealed to this Tribunal against the Guardianship Tribunal's decision.

Crown Solicitor's role

The Appeal Panel appointed the Crown Solicitor as a person to assist the Tribunal in these proceedings, pursuant to s 67(2C) of the Administrative Decisions Tribunal Act 1997 (ADT Act) and r 41A(2) of the Administrative Decisions Tribunal Rules 1998. Ms Sanders, solicitor, appeared on behalf of the Crown Solicitor to make submissions and assist the Appeal Panel in the appeal.

Background

Before AGO moved to the nursing home, her sister, AGP, sold her own home to live with and care for AGO. AGP remained living in AGO's home after AGO moved to a nursing home. AGO had granted her solicitor, AGQ, power of attorney. AGP granted her niece and nephew, the appellants, powers of attorney.

AGO needs to pay a bond to the nursing home. AGP wishes to lend her sister the money for the bond. The appellants, on legal advice, proposed that AGP loan her sister the money for the bond and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWADTAP 18
Decision Date: 01 June 2012

CaseChat Overview and Summary

The parties involved in this appeal are AGM, as the appellant, and NSW Trustee and Guardian, as the respondent. The dispute revolves around the Guardianship Tribunal's jurisdiction to issue a financial management order when considering an application under the Powers of Attorney Act 2003. This case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the Guardianship Tribunal had the authority to make a financial management order in the context of an application under the Powers of Attorney Act 2003.

The court examined the statutory framework and the powers granted to the Guardianship Tribunal under the relevant legislation. It was determined that the Guardianship Tribunal did not have the jurisdiction to make a financial management order when considering an application under the Powers of Attorney Act 2003. The court found that the relevant statutory provisions only permitted the Guardianship Tribunal to review the operation and effect of an enduring power of attorney and to remove an attorney from office, but did not extend to making a financial management order. Therefore, the court set aside the order made by the Guardianship Tribunal to make a financial management order and to commit the management of the estate of AGO to the NSW Trustee.

The court affirmed the orders of the Guardianship Tribunal to carry out a review of the operation and effect of the enduring power of attorney made by AGO on 10 December 1999, which appointed AGQ, and to remove AGQ from office as attorney under the enduring power of attorney. However, the order to make a financial management order and to commit the management of the estate of AGO to the NSW Trustee was set aside. These orders came into effect eight weeks from the date of the decision.

Orders

Orders of the court

1. The following orders of the Guardianship Tribunal are affirmed:

(1) To carry out a review of the operation and effect of the enduring power of attorney made by [AGO] on 10 December 1999 which appointed [AGQ].

(2) To remove [AGQ] from office as attorney under the enduring power of attorney made by [AGO] on 10 December 1999.

2. The following order of the Guardianship Tribunal is set aside;

(1) To make a financial management order and to commit the management of the estate of [AGO] to the NSW Trustee.

3. These orders come in to effect 8 weeks from the date of this decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	AGM v NSW Trustee and Guardian [2012] NSWADTAP 18
Hearing dates:	24 February 2012
Decision date:	01 June 2012
Jurisdiction:	Appeal Panel - External
Before:	Magistrate N Hennessy, Deputy President Ms L Goodchild, Judicial Member Ms A Wunsch, Non-Judicial Member
Decision:	1. The following orders of the Guardianship Tribunal are affirmed: (1) To carry out a review of the operation and effect of the enduring power of attorney made by [AGO] on 10 December 1999 which appointed [AGQ]. (2) To remove [AGQ] from office as attorney under the enduring power of attorney made by [AGO] on 10 December 1999. 2. The following order of the Guardianship Tribunal is set aside; (1) To make a financial management order and to commit the management of the estate of [AGO] to the NSW Trustee. 3. These orders come in to effect 8 weeks from the date of this decision.
Catchwords:	APPEAL - question of law - Guardianship Tribunal's jurisdiction to make a financial management order when considering an application under the Powers of Attorney Act 2003
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules 1998 Guardianship Act 1987 Powers of Attorney Act 2003
Cases Cited:	ADK v NSW Trustee and Guardian [2011] NSWADTAP 60 N v Protective Commissioner & Ors [2007] NSWADTAP 68
Category:	Principal judgment
Parties:	AGM (First Appellant) AGN (Second Appellant) AGO (Respondent) AGP (Respondent) AGQ (Respondent) NSW Trustee and Guardian (Respondent) Guardianship Tribunal Crown Solicitor's Office (Solicitor Assisting)
Representation:	Counsel M Pringle (Appellants) PJ Ellis (Appellants) Crown Solicitor's Office (Assisting Tribunal)
File Number(s):	118010
Publication restriction:	S126 of the Administrative Decisions Tribunal Act
Decision under appeal	Citation: Unreported Date of Decision: 2011-07-27 00:00:00 Before: Guardianship Tribunal File Number(s): C/47150; 2011/2045