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

1. 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

1. 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

1. 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.

1. 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 that the loan be secured by a mortgage over AGO's home. AGO's solicitor and attorney, AGQ, refused to sign the mortgage on the basis that it was not in AGO's best interests. He suggested alternative ways of securing the loan, such as placing a caveat on the property or selling a share of the property to AGQ. The appellants did not agree to any of the solicitor's proposals.

1. As a result, AGQ decided that he no longer wished to act as AGO's attorney and applied to the Guardianship Tribunal for a review of the power of attorney.

Guardianship Tribunal's decision

1. On 27 July 2011, the Guardianship Tribunal made four orders. Those orders, and the provisions under which they were made or purportedly made were as follows:

(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].

(a)   Section 36(1) of the Powers of Attorney Act 2003 confers on the Guardianship Tribunal power to decide to review the operation and effect of a reviewable power of attorney or not to carry out such a review.

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

(a)   Section 36(2) of the Powers of Attorney Act confers on the Guardianship Tribunal power to decide whether or not to make an order in respect of the power of attorney.

(b)   Section 36(4) of the Powers of Attorney Act confers on the Guardianship Tribunal power to make certain orders relating to the operation and effect of a power of attorney including an order removing a person from office as an attorney.

(3)   To treat the application made by [AGQ] for a review of the enduring power of attorney as an application for a financial management order under the Guardianship Act 1987.

(a)   Section 37(1) of the Powers of Attorney Act confers on the Guardianship Tribunal power to treat an application for review of a power of attorney as an application for a financial management order.

(b)   Section 25F of the Guardianship Act provides that the Guardianship Tribunal may make a financial management order in the course of proceedings under s 36 of the Powers of Attorney Act in respect of an enduring power of attorney given by the person, "being proceedings in which it has decided not to make an order under that section."

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

(a)   Section 25E of the Guardianship Act 1987 confers on the Guardianship Tribunal power to order that the estate of a person be subject to management under the NSW Trustee and Guardian Act 2009) and

(b)   Section 25M of the Guardianship Act confers a discretion on the Guardianship Tribunal, where it makes a financial management order, to appoint a suitable person as manager of the estate, or commit the management of the estate to the NSW Trustee.

Appeal Panel's jurisdiction to hear the appeal

1. In relation to the decisions of the Guardianship Tribunal expressly or impliedly made under the Powers of Attorney Act 2003, s 41 of that Act provides that an appeal may be made to the Tribunal against a decision of the Guardianship Tribunal made under s 36 of that Act. The decisions made, or impliedly made, under s 36 were the decisions to carry out a review of the enduring power of attorney, to make an order under s 36 and to remove AGQ from office as an attorney.

1. On the basis of these provisions, the Tribunal has jurisdiction to hear an appeal against the Guardianship Tribunal's first two orders, namely to carry out a review of the enduring power of attorney and to remove [AGQ] from office.

1. The Guardianship Tribunal's third order, to treat the application made by AGQ as an application for a financial management order, was made under s 37(1) of the Powers of Attorney Act. This Tribunal has no power to hear or determine an appeal against that decision.

1. In relation to the decisions made or purportedly made under the Guardianship Act 1987, that Act provides that an appeal may be made to this Tribunal against a decision of the Guardianship Tribunal under s 25E to make a financial management order: Guardianship Act: s 67A(1)(e). Consequently, this Tribunal has jurisdiction to hear and determine an appeal against the first part of the Guardianship Tribunal's fourth order, namely to make a financial management order. The question of whether the Tribunal also has power to hear and determine an appeal against the second part of the fourth order, the decision made under s 25M to commit the management of AGO's estate to the NSW Trustee, does not arise for consideration in these proceedings.

1. An appeal under s 41 of the Powers of Attorney Act or s 67A of the Guardianship Act is an external appeal for the purposes of the ADT Act: Powers of Attorney Act, s 41(4) and Guardianship Act, s 67A(4).

Grounds of appeal

1. The appeal is made on questions of law. Leave is also sought to appeal on other grounds: ADT Act, s 118B(1)(a) and (b).

1. The appellants challenge the orders of the Guardianship Tribunal on the basis that it erred in law on the following grounds:

(1) deciding to treat the application for review of the enduring power of attorney as an application for a financial management order under the Guardianship Act, when it had made an order under s 36 of the Powers of Attorney Act 2003;

(2) deciding to make a financial management order and to commit the management of AGO's estate to the NSW Trustee when it had made an order under s 36 of the Powers of Attorney Act;

(3)   denying procedural fairness to the appellants, by failing to notify them in sufficient time to prepare for the hearing or give them sufficient opportunity to put on evidence as to the appropriate person to be appointed financial manager of AGO's estate.

1. The appellants also seek leave to appeal on the basis that there was no evidence or insufficient evidence to find that there was "family conflict" about the issue of how AGO's property should be dealt with, or at all.

Grounds 1 and 2 - Treating the application as an application for a financial management order

1. The Tribunal does not have jurisdiction to hear and determine an appeal against the Guardianship Tribunal's decision to treat the application for review of the enduring power of attorney as an application for a financial management order. Although the Tribunal has no jurisdiction in relation to a decision under s 37(1) of the Powers of Attorney Act, it does have jurisdiction in relation to a decision made under s 25E of the Guardianship Act to make a financial management order. Below we summarise the legislative scheme and our reasons for concluding that the Guardianship Tribunal had no jurisdiction to make a financial management order.

1. Part 5 of the Powers of Attorney Act provides for reviews of powers of attorney. Section 36(1) relevantly provides that the Guardianship Tribunal may, on the application of an interested person, decide to review the operation and effect of a reviewable power of attorney, or decide not to carry out such a review. Section 36(2) provides that, as a consequence of reviewing the operation and effect of a power of attorney, the Guardianship Tribunal may decide whether or not to make an order under s 36. Section 36(3) sets out the orders that the Guardianship Tribunal may make, if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal. This list includes an order removing a person from office as an attorney: s 36(3)(b).

1. Section 37 of the Powers of Attorney Act sets out the circumstances in which the Guardianship Tribunal may treat an application for review as an application for a financial management order. It provides:

If, on a review of the making or operation and effect of a reviewable power of attorney under section 36, the Guardianship Tribunal decides not to make an order under that section in respect of the power of attorney, it may (if it considers it appropriate in all the circumstances to do so) decide to treat the application for the review as an application for a financial management order under Part 3A (Financial management) of the Guardianship Act 1987. (Emphasis added.)

1. If the Guardianship Tribunal decides not to make an order under s 36, the application is taken to be an application for a financial management order duly made in respect of the principal under the power of attorney: s 37(2).

1. Part 3A of the Guardianship Act deals with financial management. Section 25E provides that the Guardianship Tribunal may, in accordance with that Part, order that the estate of a person be subject to management under the NSW Trustee and Guardian Act 2009. Section 25F(d) provides that the Guardianship Tribunal may make a financial management order in the course of proceedings under s 36 of the Powers of Attorney Act in respect of an enduring power of attorney given by the person, "being proceedings in which it has decided not to make an order under that section." (Emphasis added.) We set out the full text of s 25F below:

The Tribunal may make a financial management order subject to and in accordance with this Part:

(a) in connection with its making a guardianship order under Part 3 in respect of the person concerned, or

(b) following (or in the course of) proceedings under Part 3 in respect of the person, being proceedings in which it decided not to make a guardianship order, or

(c) if an application for such an order has been made to it under section 25I in respect of the person (whether or not an application for a guardianship order has also been made in respect of the person), or

(d) following (or in the course of) proceedings under section 36 of the Powers of Attorney Act 2003 in respect of an enduring power of attorney given by the person, being proceedings in which it has decided not to make an order under that section.

1. Section 25F contains the jurisdictional preconditions to the making of a financial management order. The only precondition relevant to the circumstances of this case is s 25F(d). That provision only applies where the Guardianship Tribunal has decided not to make an order under s 36. In this case, the Guardianship Tribunal decided to make an order under s 36. That order was to remove AGQ from office as attorney. Having made that order, the Guardianship Tribunal had no jurisdiction to make a financial management order.

1. It follows that the first part of the Guardianship Tribunal's fourth order, to make a financial management order, should be set aside. Once that order has been set aside, the second part of the order, to commit the management of the estate to the NSW Trustee, cannot stand. This conclusion does not affect orders 1 and 2 made by the Guardianship Tribunal. The remaining grounds of appeal are addressed only to the extent that they relate to those orders.

Ground 3 - Procedural Fairness

1. The appellants also submitted that they were denied procedural fairness because the Guardianship Tribunal failed to notify them in sufficient time to prepare for the hearing. Alternatively, the appellants submitted that they were not given sufficient opportunity to put on evidence as to the appropriate person to be appointed financial manager of AGO's estate.

1. As the decisions to make a financial management order and to appoint the NSW Trustee have been set aside, we will address this ground only in relation to the question of whether the appellants were denied procedural fairness in relation to the adequacy of the notice of hearing.

1. AGQ lodged his application for review of the power of attorney on 14 March 2011. On 30 June 2011 the Guardianship Tribunal notified the appellants that a procedural hearing would be held on 8 July 2011. The appellants were joined as parties to the proceedings at the procedural hearing. On 7 July 2011 the Guardianship Tribunal notified the appellants that a substantive hearing would be held on 27 July 2011. The appellants effectively had 19 days to prepare for the hearing. There is no statutory requirement to provide notice of an application for review of a power of attorney within any particular timeframe.

1. The appellants attended and participated in the hearing.

1. We are satisfied that the appellants had a relevant interest, right or legitimate expectation that stood to be affected by the Guardianship Tribunal's decision. The only issue is whether they had adequate notice of the hearing.

1. In ADK v NSW Trustee and Guardian [2011] NSWADTAP 60, the Appeal Panel said at [19] that the purpose of providing adequate notice of a hearing is to ensure that a person whose interests are affected by the hearing can participate effectively. That is, the person must be given enough time to gather any relevant evidence and prepare submissions.

1. Whether 19 days is a sufficient period depends on the circumstances, including the complexity of the issues, the material to be considered and any need for urgency: N v Protective Commissioner & Ors [2007] NSWADTAP 68. In this case, the issues were not particularly complex and there was some urgency. AGQ no longer wished to continue as attorney and AGO had debts which needed to be paid.

1. In this case, the appellants were given 19 days notice of the hearing and were able to attend and participate in the hearing. We are satisfied that that period of notice was adequate in all the circumstances.

Leave to appeal on other grounds

1. The only ground on which the appellants submitted that the appeal should be allowed on grounds other than a question of law was that the Guardianship Tribunal made a finding in the absence of evidence or contrary to the evidence that there was family conflict. Neither order 1 nor order 2 relate to this issue. In those circumstances, we refuse leave for the appeal to proceed in relation to that finding.

Conclusion

1. None of the questions of law, nor the ground for extending the appeal to questions other than questions of law, affect orders 1 or 2. Consequently, there is no basis for setting aside or varying those orders. However, the result is that when the Appeal Panel's orders come into effect AGO will have no attorney or financial manager.

1. A decision of the Appeal Panel in relation to an external appeal takes effect on the date on which it is given or such later date as may be specified in the decision: ADT Act, s 118C(3). It is not in AGO's best interests for the Appeal Panel's orders to take effect immediately. Time should be allowed for a person with standing, including the NSW Trustee, to apply for a financial management order. In all the circumstances, we consider that the Appeal Panel's orders should not take effect until 8 weeks from the date of this decision.

Orders

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.

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Decision last updated: 01 June 2012