EKD - [2024] NSWCATGD 22

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EKD [2024] NSWCATGD 22
Hearing dates: 26 September 2024
Date of orders: 26 September 2024
Decision date: 26 September 2024
Jurisdiction: Guardianship Division
Before: E M Connor, Senior Member (Legal)
Dr F Duffy, Senior Member (Professional)
M Watson, General Member (Community)
Decision:
001 Review of an Enduring Guardianship Appointment
The application is dismissed because DZT has withdrawn the application and the Tribunal consents.
002 Review of an Enduring Guardianship Appointment
In relation to the enduring guardian appointment made by EKD on 26 March 2020 appointing DZT and KAD the Tribunal orders, directs or declares:
1. The resignations of DZT and KAD as an enduring guardian are approved.
2. EJT and KNP are appointed to replace DZT and KAD.
003 Guardianship Application
1. A guardianship order is made for EKD.
2. EJT is appointed as the guardian.
3. KNP, of [Address removed for publication.], is appointed as the alternative guardian.
4. This is a continuing guardianship order for a period of 12 months from 26 September 2024.
5. This order will not be reviewed at the end of the above period.
6. This is a limited guardianship order giving the guardian(s) custody of EKD to the extent necessary to carry out the functions below.
FUNCTIONS: EJT
7. EJT has the following functions:
a) Accommodation
To decide where EKD may reside.
b) Health care
To decide what health care EKD may receive.
c) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where EKD is not capable of giving a valid consent.
d) Services
To make decisions about services to be provided to EKD.
e) Other Function
Community Access: To decide where, when and with whom EKD can access the community.
CONDITION:
8. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring EKD to an understanding of the issues and to obtain and consider their views before making significant decisions.
004 Financial Management Application
1. The estate of EKD is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. EJT and KNP, of [Address removed for publication.], are appointed jointly and severally as the financial managers of the estate.
NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.
005 Review of an Enduring Power of Attorney
In relation to the enduring power of attorney made by EKD on 6 November 2006 which appointed EJT and CYT as her joint and several attorneys. The Tribunal determines, orders or declares:
1. To carry out a review of the making of the enduring power of attorney.
2. The enduring power of attorney is invalid wholly.

Catchwords:
REVIEW OF ENDURING GUARDIANSHIP – application for review of enduring guardianship appointment – request to withdraw application – application accepted – resignation of…

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: EKD [2024] NSWCATGD 22
Case: [2024] NSWCATGD 22
Decision Date: 26 September 2024

CaseChat Overview and Summary

In the matter of EKD, the NSW Civil and Administrative Tribunal (NCAT) considered several applications related to the guardianship, financial management, and enduring power of attorney of the subject person, who has been diagnosed with dementia. The Tribunal was asked to review an existing enduring guardianship appointment, appoint a new guardian, review an existing enduring power of attorney, and appoint financial managers for EKD's estate. The subject person's daughter, DZT, had previously applied for the review of the enduring guardianship appointment but subsequently withdrew the application, leading to its dismissal. However, the resignations of the existing enduring guardians, DZT and KAD, were approved, and new guardians, EJT and KNP, were appointed. The Tribunal also appointed a new guardianship order for EKD, designating EJT as the primary guardian and KNP as the alternative guardian, with specific functions including decisions about accommodation, health care, medical consent, services, and community access. The order includes a condition that the guardian must consider EKD's views before making significant decisions.

The legal issues before the Tribunal involved the validity and appropriateness of the existing enduring guardianship and power of attorney appointments, as well as the necessity and suitability of new appointments. The Tribunal determined that the enduring guardianship appointment was suitable and that the resignation of the existing guardians was in the best interest of EKD. The Tribunal also found that the existing enduring power of attorney was invalid due to non-compliance with formal requirements, but this did not impact the appointment of new guardians. Furthermore, the Tribunal concluded that a financial management order was necessary for the best interests of EKD and appointed EJT and KNP as joint and several financial managers. The Tribunal's decisions were based on the need to ensure that EKD, who has dementia, receives appropriate care and that her interests are protected through suitable guardianship and financial management arrangements.

Orders

Orders of the court

001 Review of an Enduring Guardianship Appointment

The application is dismissed because DZT has withdrawn the application and the Tribunal consents.

002 Review of an Enduring Guardianship Appointment

In relation to the enduring guardian appointment made by EKD on 26 March 2020 appointing DZT and KAD the Tribunal orders, directs or declares:

1. The resignations of DZT and KAD as an enduring guardian are approved.

2. EJT and KNP are appointed to replace DZT and KAD.

003 Guardianship Application

1. A guardianship order is made for EKD.

2. EJT is appointed as the guardian.

3. KNP, of [Address removed for publication.], is appointed as the alternative guardian.

4. This is a continuing guardianship order for a period of 12 months from 26 September 2024.

5. This order will not be reviewed at the end of the above period.

6. This is a limited guardianship order giving the guardian(s) custody of EKD to the extent necessary to carry out the functions below.

FUNCTIONS: EJT

7. EJT has the following functions:

a) Accommodation

To decide where EKD may reside.

b) Health care

To decide what health care EKD may receive.

c) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where EKD is not capable of giving a valid consent.

d) Services

To make decisions about services to be provided to EKD.

e) Other Function

Community Access: To decide where, when and with whom EKD can access the community.

CONDITION:

8. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring EKD to an understanding of the issues and to obtain and consider their views before making significant decisions.

004 Financial Management Application

1. The estate of EKD is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. EJT and KNP, of [Address removed for publication.], are appointed jointly and severally as the financial managers of the estate.

NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.

005 Review of an Enduring Power of Attorney

In relation to the enduring power of attorney made by EKD on 6 November 2006 which appointed EJT and CYT as her joint and several attorneys. The Tribunal determines, orders or declares:

1. To carry out a review of the making of the enduring power of attorney.

2. The enduring power of attorney is invalid wholly.

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

Full text does not contain this section.

Medium Neutral Citation:	EKD [2024] NSWCATGD 22
Hearing dates:	26 September 2024
Date of orders:	26 September 2024
Decision date:	26 September 2024
Jurisdiction:	Guardianship Division
Before:	E M Connor, Senior Member (Legal) Dr F Duffy, Senior Member (Professional) M Watson, General Member (Community)
Decision:	001 Review of an Enduring Guardianship Appointment The application is dismissed because DZT has withdrawn the application and the Tribunal consents. 002 Review of an Enduring Guardianship Appointment In relation to the enduring guardian appointment made by EKD on 26 March 2020 appointing DZT and KAD the Tribunal orders, directs or declares: 1. The resignations of DZT and KAD as an enduring guardian are approved. 2. EJT and KNP are appointed to replace DZT and KAD. 003 Guardianship Application 1. A guardianship order is made for EKD. 2. EJT is appointed as the guardian. 3. KNP, of [Address removed for publication.], is appointed as the alternative guardian. 4. This is a continuing guardianship order for a period of 12 months from 26 September 2024. 5. This order will not be reviewed at the end of the above period. 6. This is a limited guardianship order giving the guardian(s) custody of EKD to the extent necessary to carry out the functions below. FUNCTIONS: EJT 7. EJT has the following functions: a) Accommodation To decide where EKD may reside. b) Health care To decide what health care EKD may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where EKD is not capable of giving a valid consent. d) Services To make decisions about services to be provided to EKD. e) Other Function Community Access: To decide where, when and with whom EKD can access the community. CONDITION: 8. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring EKD to an understanding of the issues and to obtain and consider their views before making significant decisions. 004 Financial Management Application 1. The estate of EKD is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. EJT and KNP, of [Address removed for publication.], are appointed jointly and severally as the financial managers of the estate. NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian. 005 Review of an Enduring Power of Attorney In relation to the enduring power of attorney made by EKD on 6 November 2006 which appointed EJT and CYT as her joint and several attorneys. The Tribunal determines, orders or declares: 1. To carry out a review of the making of the enduring power of attorney. 2. The enduring power of attorney is invalid wholly.
Catchwords:	REVIEW OF ENDURING GUARDIANSHIP – application for review of enduring guardianship appointment – request to withdraw application – application accepted – resignation of…