BDN

[2014] NSWCATGD 15

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BDN [2014] NSWCATGD 15

Hearing dates:

27, 28 February and 3 April 2014

Decision date:

27 May 2014

Jurisdiction:

Guardianship Division

Before:

Redfern J, Principal Member
Martin K, Senior Member (Professional)
Johnston S, General Member (Community)

Decision:

Enduring guardianship appointment confirmed.

Limited guardianship order made for a period of six months; Public Guardian appointed with services, advocacy and access functions.

Financial management order made; NSW Trustee and Guardian appointed reviewable in six months.

Applications for review of enduring power of attorney dismissed.

Catchwords:

GUARDIANSHIP - dispute about capacity - family conflict - deterioration in previously good family relationship - need for independent advocacy.

FINANCIAL MANAGEMENT - capacity to manage finances - inconsistent medical evidence - mismanagement of estate by attorney - suitability for appointment as financial manager - conflict of interest.

ENDURING POWER OF ATTORNEY - review of operation and effect - termination of joint power of attorney on death of one attorney - jurisdiction - whether instrument can be reinstated - not in best interests to reinstate power of attorney.

ENDURING GUARDIANSHIP - appointment suspended pending limited guardianship order - not in best interests to revoke - confirmed.

Legislation Cited:

Conveyancing Act 1919 (NSW)
Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)

Cases Cited:

Re GHI (a protected person) [2005] NSWSC 581
PY v RJS [1982] 2 NSWLR 70
H v H (Supreme Court Equity Division Protective List (NSW), Young J, 20 March 2000, unreported)
Re D [2012] NSWSC 1006
P v R [2003] NSWSC 819
Holt v Protective Commissioner (1993) 31 NSWLR 227

Texts Cited:

Collier and Lindsay, Powers of Attorney in Australia and New Zealand (1992, The Federation Press)
Oxford Concise Dictionary

Category:

Principal judgment

Parties:

Mrs BDN
Mrs TFX (Applicant)
Mr MPN (Applicant, Enduring Guardian and Attorney)
The NSW Trustee and Guardian
The Public Guardian

File Number(s):

54466

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

1. These Reasons for Decision are for the orders of the Tribunal made on 27 May 2014 concerning Mrs BDN.

WHAT THE TRIBUNAL DECIDED

1. The Tribunal:

(a)   appointed the Public Guardian as guardian for Mrs BDN for a period of six months to make decisions for her about her services, access to others, and to advocate for her;

(b)   committed the estate of Mrs BDN to the NSW Trustee and Guardian; and

(c)   directed that the financial management order be reviewed in six months.

1. The Tribunal confirmed the appointment of an enduring guardian made by Mrs BDN on 16 March 2006 appointing Mr MPN as her enduring guardian.

1. The Tribunal dismissed the applications made by Mrs TFX and Mr MPN for review of the operation and effect of the enduring power of attorney made by Mrs BDN on 25 July 2003.

INTRODUCTION

1. Mrs BDN…