EVN - [2017] NSWCATGD 16

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EVN [2017] NSWCATGD 16
Hearing dates: 17 January 2017
Date of orders: 17 January 2017
Decision date: 17 January 2017
Jurisdiction: Guardianship Division
Before: J Currie, Senior Member (Legal)
Dr S McSwiggan, Senior Member (Professional)
D Crowley, General Member (Community)
Decision:
1. The application by Mr SZC for a financial management order in relation to the estate of EVN is dismissed.

Catchwords: FINANCIAL MANAGEMENT – application for financial management – need for a financial management order – separate representative’s views considered – duties of attorney appointed under Enduring Power of Attorney – continuation of current attorney in best interests – application dismissed
Legislation Cited: Powers of Attorney Act 2003 (NSW), ss 13(1), 36, 38
Cases Cited: CJ v AKJ [2015] NSWSC 498
G v G [2016] NSWSC 511
McD v McD (1983) 3 NSWLR 81
Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106
Category: Principal judgment
Parties: Ms EVN (person under consideration)
Mr SZC (applicant)
Mrs BMH (appointed attorney of Ms EVN)
The NSW Trustee and Guardian
Representation:
Separate Representation:
N Danis (Ms EVN)
Legal Representation:
J Muscat (Mrs BMH)
K Ridley (Mr SZC)

File Number(s): 63391
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

FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

The Tribunal decided to dismiss the application.

Background

Ms EVN is a 58-year-old woman who ordinarily lives in her own home in Southern Sydney with her son, Mr CFN. Ms EVN has been diagnosed with moderate to severe early-onset dementia and it is reported that she requires significant assistance with her activities of daily living. She obtains in-home support services from a charitable organisation and is in receipt of a disability support pension.
Mr SZC is Ms EVN’s father and Mr UGC is her brother. Ms EVN is a widow, her husband having taken his own life in 2007. Her son, Mr DXN, died in 2013. Mr CFN is her surviving son. Mrs BMH is Ms EVN’s long-term friend and carer.
By two separate instruments dated 12 March 2013, Ms EVN appointed Mrs BMH as her enduring guardian and her attorney. The instrument under which she appointed Mrs BMH as attorney (the Power of Attorney) is an enduring power of attorney.
On 12 August 2016, the Guardianship Division Registry received from Mr SZC two applications which sought respectively the appointment of a guardian and of a financial manager for Ms EVN. On 31 October 2016, the Tribunal ordered that Ms EVN be separately represented in all proceedings pending before the Tribunal.
On 13 December 2016, the Tribunal heard the guardianship application and made a guardianship order which appointed the Public Guardian as Ms EVN’s guardian for six months with the authority to make decisions about her accommodation.…

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 EVN

Details

AGLC: EVN [2017] NSWCATGD 16
Case: [2017] NSWCATGD 16
Decision Date: 17 January 2017

CaseChat Overview and Summary

The case involved Mr SZC, who sought a financial management order concerning the estate of EVN. EVN, who was suffering from dementia, had an Enduring Power of Attorney appointing Mr SZC as her attorney. The dispute arose when Mr SZC applied to the court for a financial management order, arguing that he needed assistance in managing EVN’s financial affairs due to her incapacity. The application was opposed by another individual who had been appointed as a separate representative to advise the court on the matter.

The primary legal issue before the court was whether a financial management order was necessary, given that Mr SZC was already appointed as EVN’s attorney under the Enduring Power of Attorney. The court also had to consider the views of the separate representative, who recommended that Mr SZC should continue as the attorney. The court needed to weigh the benefits of appointing a new financial manager against the continuation of Mr SZC’s role.

In dismissing the application, the court considered the duties and responsibilities of the attorney under the Enduring Power of Attorney and concluded that Mr SZC was fulfilling his obligations. The court emphasised that appointing a separate financial manager would not necessarily serve EVN’s best interests better than continuing with Mr SZC in his current role. Consequently, the application for a financial management order was dismissed. The court found that it was in EVN’s best interests for Mr SZC to remain as her attorney.

The final order was that the application by Mr SZC for a financial management order in relation to the estate of EVN was dismissed, and Mr SZC was to continue in his role as attorney under the Enduring Power of Attorney. This decision upheld the importance of considering the best interests of the incapacitated individual in determining the necessity of additional financial management.

Orders

Orders of the court

1. The application by Mr SZC for a financial management order in relation to the estate of EVN is dismissed.

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:	EVN [2017] NSWCATGD 16
Hearing dates:	17 January 2017
Date of orders:	17 January 2017
Decision date:	17 January 2017
Jurisdiction:	Guardianship Division
Before:	J Currie, Senior Member (Legal) Dr S McSwiggan, Senior Member (Professional) D Crowley, General Member (Community)
Decision:	1. The application by Mr SZC for a financial management order in relation to the estate of EVN is dismissed.
Catchwords:	FINANCIAL MANAGEMENT – application for financial management – need for a financial management order – separate representative’s views considered – duties of attorney appointed under Enduring Power of Attorney – continuation of current attorney in best interests – application dismissed
Legislation Cited:	Powers of Attorney Act 2003 (NSW), ss 13(1), 36, 38
Cases Cited:	CJ v AKJ [2015] NSWSC 498 G v G [2016] NSWSC 511 McD v McD (1983) 3 NSWLR 81 Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106
Category:	Principal judgment
Parties:	Ms EVN (person under consideration) Mr SZC (applicant) Mrs BMH (appointed attorney of Ms EVN) The NSW Trustee and Guardian
Representation:	Separate Representation: N Danis (Ms EVN) Legal Representation: J Muscat (Mrs BMH) K Ridley (Mr SZC)
File Number(s):	63391
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)).