CKJ - [2022] NSWCATGD 16

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CKJ [2022] NSWCATGD 16
Hearing dates: 6 September 2022
Date of orders: 6 September 2022
Decision date: 06 September 2022
Jurisdiction: Guardianship Division
Before: D Jay, Senior Member (Legal)
C M Kennedy, Senior Member (Professional)
S Fogg, General Member (Community)
Decision:
The application to appoint a financial manager is dismissed after hearing.
In relation to the enduring power of attorney made by CKJ on 7 June 2022 which appointed FZN as attorney(s) the Tribunal determines, orders or declares:
not to carry out a review of the operation and effect of the enduring power of attorney and dismissed the application.

Catchwords:
FINANCIAL MANAGEMENT – application for a financial management order – subject person is of advanced age – whether subject person is incapable of managing their own affairs – evidence taken from the subject person in private – subject person able to explain her current financial situation – sensible management of assets and liabilities – no evidence of subject person being unable to manage own finances – application dismissed.
REVIEW OF ENDURING POWER OF ATTORNEY – application to review an enduring power of attorney – changes to long-standing appointment of attorney – subject person capable of making informed decision to appoint an attorney – decision not to carry out a review of the enduring power of attorney – application dismissed.

Legislation Cited:
Guardianship Act 1987 (NSW), Pt 3A
Powers of Attorney Act 2003 (NSW), ss 36, 36(1)–(2)

Cases Cited:
CJ v AKJ [2015] NSWSC 498
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Financial Management Application

CKJ (the person)
DTD (applicant)
FZN (attorney)
NSW Trustee and Guardian

003: Review of an Enduring Power of Attorney
CKJ (the person)
DTD (applicant)
FZN (attorney)
NSW Trustee and Guardian
Representation:
O Salmon, as legal representative for CKJ
R McCourt, as legal representative for DTD

File Number(s): NCAT 2022/00180686
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

FINANCIAL MANAGEMENT APPLICATION

Background

CKJ is 87 years old and lives with her son pending a move to her home she recently purchased in Suburb AB in regional NSW. She purchased that home with the proceeds of sale of her former home at Suburb YZ, also in regional NSW. CKJ has two children – DTD and FZN.
In 1987, CKJ executed an Enduring Power of Attorney appointing DTD as her attorney. On 7 June 2022, CKJ executed a new Enduring Power of Attorney revoking all previous instruments and appointing FZN as her attorney (the 2022 EPOA).
On 21 June 2022…

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.

Continue reading CKJ

Details

AGLC: CKJ [2022] NSWCATGD 16
Case: [2022] NSWCATGD 16
Decision Date: 06 September 2022

CaseChat Overview and Summary

The case involved CKJ, who was the subject of an application for a financial management order and a review of an enduring power of attorney. The application was heard in the relevant tribunal, where it was determined whether CKJ was incapable of managing her own affairs and if the enduring power of attorney should be reviewed. The evidence included observations of CKJ in private, where she demonstrated an understanding of her financial situation and the ability to manage her assets and liabilities sensibly. The tribunal considered the capacity of CKJ to make informed decisions regarding her financial affairs and the enduring power of attorney.

The legal issues the tribunal had to decide included whether CKJ was incapable of managing her own financial affairs to the extent that a financial manager should be appointed, and whether there was sufficient evidence to review the enduring power of attorney. The tribunal examined CKJ’s capacity to understand and manage her financial situation, and the decision-making process regarding the appointment of an attorney. It was crucial to determine if CKJ’s long-standing appointment of an attorney reflected her current wishes and capabilities.

The tribunal concluded that CKJ was capable of managing her financial affairs, as evidenced by her sensible management of assets and liabilities, and her ability to explain her financial situation. There was no evidence to suggest that CKJ was unable to manage her own finances. Regarding the enduring power of attorney, the tribunal found that CKJ was capable of making an informed decision to appoint an attorney, and therefore, there was no need to review the operation and effect of the enduring power of attorney. Consequently, the application for a financial management order was dismissed, and the application to review the enduring power of attorney was also dismissed.

The tribunal issued orders dismissing the application to appoint a financial manager and declined to review the enduring power of attorney made by CKJ on 7 June 2022, which appointed FZN as attorney(s). The decision recognised CKJ’s capacity to manage her own affairs and maintain her long-standing appointment of an attorney.

Orders

Orders of the court

The application to appoint a financial manager is dismissed after hearing.

In relation to the enduring power of attorney made by CKJ on 7 June 2022 which appointed FZN as attorney(s) the Tribunal determines, orders or declares:

not to carry out a review of the operation and effect of the enduring power of attorney and dismissed the application.

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

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Medium Neutral Citation:	CKJ [2022] NSWCATGD 16
Hearing dates:	6 September 2022
Date of orders:	6 September 2022
Decision date:	06 September 2022
Jurisdiction:	Guardianship Division
Before:	D Jay, Senior Member (Legal) C M Kennedy, Senior Member (Professional) S Fogg, General Member (Community)
Decision:	The application to appoint a financial manager is dismissed after hearing. In relation to the enduring power of attorney made by CKJ on 7 June 2022 which appointed FZN as attorney(s) the Tribunal determines, orders or declares: not to carry out a review of the operation and effect of the enduring power of attorney and dismissed the application.
Catchwords:	FINANCIAL MANAGEMENT – application for a financial management order – subject person is of advanced age – whether subject person is incapable of managing their own affairs – evidence taken from the subject person in private – subject person able to explain her current financial situation – sensible management of assets and liabilities – no evidence of subject person being unable to manage own finances – application dismissed. REVIEW OF ENDURING POWER OF ATTORNEY – application to review an enduring power of attorney – changes to long-standing appointment of attorney – subject person capable of making informed decision to appoint an attorney – decision not to carry out a review of the enduring power of attorney – application dismissed.
Legislation Cited:	Guardianship Act 1987 (NSW), Pt 3A Powers of Attorney Act 2003 (NSW), ss 36, 36(1)–(2)
Cases Cited:	CJ v AKJ [2015] NSWSC 498 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Financial Management Application CKJ (the person) DTD (applicant) FZN (attorney) NSW Trustee and Guardian 003: Review of an Enduring Power of Attorney CKJ (the person) DTD (applicant) FZN (attorney) NSW Trustee and Guardian
Representation:	O Salmon, as legal representative for CKJ R McCourt, as legal representative for DTD
File Number(s):	NCAT 2022/00180686
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.