DSD - [2015] NSWCATGD 45

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DSD [2015] NSWCATGD 45
Hearing dates: 27 October 2015
Date of orders: 27 October 2015
Decision date: 27 October 2015
Jurisdiction: Guardianship Division
Before: R Booby, Senior Member (Legal)
L Tong, Senior Member (Professional)
E McAlpine, General Member (Community)
Decision:
The principal did not have mental capacity to revoke the enduring power of attorney. The power of attorney instrument remains valid because the principal did not have the capacity necessary to revoke it.

Application to withdraw financial management application refused.
Financial management application adjourned for approximately four months.
Catchwords:
ENDURING POWER OF ATTORNEY – application for review of revocation – standing of attorney to bring application for review of revocation – exercise of Tribunal’s powers under s 36 of the Powers of Attorney Act 2003 (NSW) – whether principal has “mental capacity” to revoke the enduring power of attorney – evidence of capacity considered by the Tribunal – dispute as to appropriateness of capacity assessments

FINANCIAL MANAGEMENT – insufficient time to adequately deal with the application – hearing adjourned
INTERLOCUTORY ISSUES – whether persons are statutory parties to the proceedings - consideration of s 3F(5) of the Guardianship Act 1987 (NSW) as to who “has the care of another person” – request to withdraw financial management application – where there has been a breakdown in the relationship between principal and attorney – complexity of subject person’s affairs – Tribunal decided that the application should proceed
Legislation Cited: Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)
Cases Cited: Gibbons v Wright (1954) 91 CLR 423
Scott v Scott [2012] NSWSC 1541
Szozda v Szozda [2010] NSWSC 804
Category: Principal judgment
Parties: Ms DSD (principal and subject person)
Mr EPG (applicant, carer, and attorney appointed under an enduring power of attorney)
The NSW Trustee and Guardian
Representation: Separate Representative

File Number(s): 60155
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

What the Tribunal decided - Review of Revocation of Enduring Power of Attorney

The Tribunal decided under section 36(1) of the Powers of Attorney Act 2003 (NSW) to carry out a review of the revocation on 7 September 2015 of the enduring power of attorney made by Mrs DSD on 15 October 2013.
As a consequence of reviewing the revocation of the enduring power of attorney, the Tribunal decided under section 36(2) of the Powers of Attorney Act to make the following orders under section 36.

The Tribunal declared that Mrs DSD did not have mental capacity on 7 September 2015 to revoke the enduring power of attorney dated 15 October 2013

The Tribunal declared that the power of attorney remains valid because Mrs DSD did not have the capacity necessary to revoke it.

What the Tribunal decided - Financial Management Application

The Tribunal refused…

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

AGLC: DSD [2015] NSWCATGD 45
Case: [2015] NSWCATGD 45
Decision Date: 27 October 2015

CaseChat Overview and Summary

In the matter of DSD, the dispute involved the revocation of an enduring power of attorney. The application for review of the revocation was brought before the Tribunal. The principal’s capacity to revoke the power of attorney was central to the dispute, with the attorney challenging the revocation on the grounds that the principal lacked the necessary mental capacity.

The key legal issues the court had to resolve included whether the attorney had standing to bring the application for review, the interpretation of the Tribunal’s powers under section 36 of the Powers of Attorney Act 2003 (NSW), and the assessment of the principal's mental capacity to revoke the enduring power of attorney. Additionally, the court had to determine the appropriateness of the capacity assessments conducted and whether certain individuals were statutory parties to the proceedings under section 3F(5) of the Guardianship Act 1987 (NSW).

The Tribunal found that the principal did not possess the requisite mental capacity to revoke the enduring power of attorney. The evidence presented suggested that the principal's cognitive abilities were insufficient to understand the implications of revoking the power of attorney. As a result, the enduring power of attorney remained valid. The application to withdraw the financial management application was refused, and the financial management application was adjourned to allow more time to address the complexities of the principal’s affairs. The Tribunal acknowledged the breakdown in the relationship between the principal and the attorney but determined that the application should proceed to ensure the principal's best interests were protected.

The final orders were that the principal did not have the mental capacity to revoke the enduring power of attorney, the power of attorney instrument remained valid, the application to withdraw the financial management application was refused, and the financial management application was adjourned for approximately four months.

Orders

Orders of the court

The principal did not have mental capacity to revoke the enduring power of attorney. The power of attorney instrument remains valid because the principal did not have the capacity necessary to revoke it.

Application to withdraw financial management application refused.

Financial management application adjourned for approximately four months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	DSD [2015] NSWCATGD 45
Hearing dates:	27 October 2015
Date of orders:	27 October 2015
Decision date:	27 October 2015
Jurisdiction:	Guardianship Division
Before:	R Booby, Senior Member (Legal) L Tong, Senior Member (Professional) E McAlpine, General Member (Community)
Decision:	The principal did not have mental capacity to revoke the enduring power of attorney. The power of attorney instrument remains valid because the principal did not have the capacity necessary to revoke it. Application to withdraw financial management application refused. Financial management application adjourned for approximately four months.
Catchwords:	ENDURING POWER OF ATTORNEY – application for review of revocation – standing of attorney to bring application for review of revocation – exercise of Tribunal’s powers under s 36 of the Powers of Attorney Act 2003 (NSW) – whether principal has “mental capacity” to revoke the enduring power of attorney – evidence of capacity considered by the Tribunal – dispute as to appropriateness of capacity assessments FINANCIAL MANAGEMENT – insufficient time to adequately deal with the application – hearing adjourned INTERLOCUTORY ISSUES – whether persons are statutory parties to the proceedings - consideration of s 3F(5) of the Guardianship Act 1987 (NSW) as to who “has the care of another person” – request to withdraw financial management application – where there has been a breakdown in the relationship between principal and attorney – complexity of subject person’s affairs – Tribunal decided that the application should proceed
Legislation Cited:	Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW)
Cases Cited:	Gibbons v Wright (1954) 91 CLR 423 Scott v Scott [2012] NSWSC 1541 Szozda v Szozda [2010] NSWSC 804
Category:	Principal judgment
Parties:	Ms DSD (principal and subject person) Mr EPG (applicant, carer, and attorney appointed under an enduring power of attorney) The NSW Trustee and Guardian
Representation:	Separate Representative
File Number(s):	60155
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)).