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EB v GB (No 2)

EB v GB (No 2)

Case [2022] NSWSC 1011 27 July 2022

Jurisdiction

Unconscionable Conduct

Mental Health

Enduring Power of Attorney

Enduring Power of Guardian

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: EB v GB (No 2) [2022] NSWSC 1011
Hearing dates: 21 July 2022
Decision date: 27 July 2022
Jurisdiction: Equity
Before: Robb J
Decision:
See [129]-[138] below

Catchwords:
MENTAL HEALTH — jurisdiction — Supreme Court — protective jurisdiction — applicant daughter seeks personal access to father lacking capacity living in aged care facility — access precluded by decisions of applicant’s mother and brothers and aged care facility — daughter earlier declared incapable of managing her own affairs and subject to estate management orders — father unable to communicate or perceive his circumstances — father appointed mother as enduring power of attorney and enduring guardian — whether exercise of Court’s protective jurisdiction can enjoin mother from precluding personal access of daughter to father — whether for the benefit or in the interests of father that daughter have personal access to father before death — Court cannot enjoin mother where she lacks authority to preclude personal access to father — Court cannot enjoin mother or brothers from expressing opinions to aged care provider — personal access to father in remit of aged care provider
AGENCY — enduring power of attorney — enduring power of guardian — scope of authority — whether appointee of enduring power of attorney pursuant to Powers of Attorney Act 2003 (NSW), Pts 2 and 4 has authority to preclude personal access to appointee — attorney has no such power — whether appointee of enduring power of guardian pursuant to Guardianship Act 1987 (NSW), Pt 2 has authority to preclude personal access to appointee — attorney has no such power unless specified in instrument of appointment

Legislation Cited:
Aged Care Act 1997 (NSW)
Family Court Act 1997 (WA)
Guardianship Act 1987 (NSW), Pt 2, ss 4, 5, 6, 6A, 6E, 6F, 16
Guardianship and Administration Act 1990 (WA), s 45
Guardianship and Administration Act 1995 (Tas), s 25
Guardianship and Administration Act 2000 (Qld), ss 10, 33, Sch 2 cl 2
Guardianship and Administration Act 2019 (Vic), ss 3, 38
Guardianship and Management of Property Act 1991 (ACT), ss 7, 7B
Guardianship of Adults Act 2016 (NT), ss 3, 21
NSW Trustee and Guardian Act 2009 (NSW)
Powers of Attorney Act 2003 (NSW), Pt 2, ss 9, 19, 21
Powers of Attorney Regulation 2016 (NSW), Sch 2

Cases Cited:
Chapman v South Eastern Sydney Local Health District (2018) 98 NSWLR 208; [2018] NSWSC 1231
Re AAA; Report on a Protected Person’s Attainment of the Age of Majority [2016] NSWSC 805
Re Anita (No 3) [2016] NSWSC 1959
The Hospital v S (a minor) [2019] NSWSC 642

Texts Cited:
B Collier and S Lindsay, Powers of Attorney in Australia and New Zealand (1992, Federation Press)
G E Dal Pont, Powers of Attorney (3rd ed, 2020, LexisNexis Butterworths)
N O’Neill and C Peisah, Capacity and the Law (2011, Sydney University Press)
G A Schindler and S E Sherry, Aldridge: Powers of Attorney (11th ed, 2016, Sweet & Maxwell)

Category: Principal judgment
Parties:

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 EB v GB (No 2)

Details

AGLC: EB v GB (No 2) [2022] NSWSC 1011
Case: [2022] NSWSC 1011
Decision Date: 27 July 2022

CaseChat Overview and Summary

The case of EB v GB (No 2) involved the applicant, EB, seeking personal access to her father, GB, who was residing in an aged care facility and lacked the capacity to communicate or perceive his circumstances. EB's mother and brothers had previously made decisions that precluded EB's access to GB, and the aged care facility also upheld these decisions. EB had previously been declared incapable of managing her own affairs and was under estate management orders. The court was tasked with determining whether it could exercise its protective jurisdiction to allow EB to have personal access to GB and whether such access would be in GB's best interest.

The legal issues before the court were whether the court's protective jurisdiction could enjoin EB's mother from precluding EB's access to GB, and whether it was in GB's best interest for EB to have such access. Additionally, the court needed to ascertain the scope of authority of the mother, who was appointed as GB's enduring power of attorney and enduring guardian, in precluding EB's personal access to GB. The court also examined whether the mother and brothers had the authority to express their opinions to the aged care provider regarding EB's access to GB.

The court concluded that it could not enjoin EB's mother from precluding EB's access to GB as the mother lacked the authority to do so under the Powers of Attorney Act 2003 (NSW) and the Guardianship Act 1987 (NSW). The court found that the mother, as the enduring power of attorney and enduring guardian, did not have the power to preclude personal access unless it was specifically stated in the appointment instrument. Furthermore, the court held that it could not enjoin the mother or brothers from expressing their opinions to the aged care provider, as the decision regarding personal access lay within the remit of the aged care provider. The court found that it was not in GB's best interest for EB to have personal access to him under the current circumstances.

Orders