EYL - [2022] NSWCATGD 8

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EYL [2022] NSWCATGD 8
Hearing dates: 20 June 2022
Date of orders: 20 June 2022
Decision date: 20 June 2022
Jurisdiction: Guardianship Division
Before: B L Adamovich, Senior Member (Legal)
M J Staples, Senior Member (Professional)
A Healy, General Member (Community)
Decision:
Review of Enduring Guardianship Appointment:
In relation to the enduring guardian appointment made by EYL on 18 September 2021 appointing DZD the Tribunal orders, directs or declares:
The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for EYL.
Review of Enduring Power of Attorney:
In relation to the enduring power of attorney made by EYL on 13 August 2021 which appointed USD as attorney(s) the Tribunal determines, orders or declares:
to conduct a review of the operation and effect of the enduring power of attorney.
Not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW). The application for review of the enduring power of attorney is treated as an application for a financial management order under Pt 3A of the Guardianship Act.
Guardianship order:
1. A guardianship order is made for EYL.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 20 June 2022.
4. This is a limited guardianship order giving the guardian(s) custody of EYL to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Access
To decide what access EYL has to others and the conditions of access.
b) Accommodation
To decide where EYL may reside.
c) Health care
To decide what health care EYL may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where EYL is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to EYL.
CONDITIONS:
6. The condition of this order is:
a) Standard Condition
In exercising this role, the guardian shall take all reasonable steps to bring EYL to an understanding of the issues and to obtain and consider their views before making significant decisions.
Financial Management order:
1. The estate of EYL is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. USD of [Address removed for publication.] is appointed as the financial manager of the estate.
NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:
REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – person of advanced age – changes to long standing appointment of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – no order made – decision to…

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 EYL

Details

AGLC: EYL [2022] NSWCATGD 8
Case: [2022] NSWCATGD 8
Decision Date: 20 June 2022

CaseChat Overview and Summary

In the matter of EYL, the New South Wales Civil and Administrative Tribunal (NCAT) considered applications regarding the review of an enduring power of attorney and an enduring guardianship appointment. The subject person, EYL, is an elderly individual with significant cognitive impairment, necessitating decisions about their access, accommodation, health care, and consent for medical and dental treatment. The Tribunal's task was to determine whether the enduring power of attorney and the enduring guardianship appointment remained suitable, and if not, to make orders for financial management and guardianship.

The legal issues before the Tribunal included whether the enduring power of attorney should be reviewed and whether an order should be made under section 36 of the Powers of Attorney Act 2003 (NSW). Additionally, the Tribunal had to decide if the enduring guardianship appointment should be reviewed and, if so, whether a guardianship order should be made under the Guardianship Act 1987 (NSW). The Tribunal also needed to determine whether EYL was incapable of managing their own affairs, thereby requiring a financial manager, and whether they were in need of a guardian.

The Tribunal found that while the enduring power of attorney required review, it declined to make an order under section 36, treating the application as one for a financial management order. The Tribunal deemed the enduring guardianship appointment review application as an application for a guardianship order, as there was no authority to make decisions about access under the existing appointment. Given EYL's cognitive impairment and the conflict within their family, the Tribunal concluded that EYL required a guardian to make decisions in their best interests. Consequently, the Tribunal appointed the Public Guardian as EYL's guardian for a limited period, with specific functions relating to access, accommodation, health care, medical and dental consent, and services. The Tribunal also appointed a financial manager to manage EYL's estate.

The final orders of the Tribunal included treating the application to review the enduring guardianship appointment as an application for a guardianship order, appointing the Public Guardian as the guardian for a period of 12 months, and appointing a financial manager to manage EYL's estate. The guardian's role includes deciding access, accommodation, health care, and consent for medical and dental treatment, with a condition that the guardian must seek EYL's understanding and views before making significant decisions. The financial manager is required to obtain necessary authorities before dealing with the estate, except to protect the assets.

Orders

Orders of the court

Review of Enduring Guardianship Appointment:

In relation to the enduring guardian appointment made by EYL on 18 September 2021 appointing DZD the Tribunal orders, directs or declares:

The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for EYL.

Review of Enduring Power of Attorney:

In relation to the enduring power of attorney made by EYL on 13 August 2021 which appointed USD as attorney(s) the Tribunal determines, orders or declares:

to conduct a review of the operation and effect of the enduring power of attorney.

Not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW). The application for review of the enduring power of attorney is treated as an application for a financial management order under Pt 3A of the Guardianship Act.

Guardianship order:

1. A guardianship order is made for EYL.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 20 June 2022.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Access

To decide what access EYL has to others and the conditions of access.

b) Accommodation

To decide where EYL may reside.

c) Health care

To decide what health care EYL may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to EYL.

CONDITIONS:

6. The condition of this order is:

a) Standard Condition

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

Financial Management order:

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

2. USD of [Address removed for publication.] is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

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:	EYL [2022] NSWCATGD 8
Hearing dates:	20 June 2022
Date of orders:	20 June 2022
Decision date:	20 June 2022
Jurisdiction:	Guardianship Division
Before:	B L Adamovich, Senior Member (Legal) M J Staples, Senior Member (Professional) A Healy, General Member (Community)
Decision:	Review of Enduring Guardianship Appointment: In relation to the enduring guardian appointment made by EYL on 18 September 2021 appointing DZD the Tribunal orders, directs or declares: The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for EYL. Review of Enduring Power of Attorney: In relation to the enduring power of attorney made by EYL on 13 August 2021 which appointed USD as attorney(s) the Tribunal determines, orders or declares: to conduct a review of the operation and effect of the enduring power of attorney. Not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW). The application for review of the enduring power of attorney is treated as an application for a financial management order under Pt 3A of the Guardianship Act. Guardianship order: 1. A guardianship order is made for EYL. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 20 June 2022. 4. This is a limited guardianship order giving the guardian(s) custody of EYL to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Access To decide what access EYL has to others and the conditions of access. b) Accommodation To decide where EYL may reside. c) Health care To decide what health care EYL may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where EYL is not capable of giving a valid consent. e) Services To make decisions about services to be provided to EYL. CONDITIONS: 6. The condition of this order is: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring EYL to an understanding of the issues and to obtain and consider their views before making significant decisions. Financial Management order: 1. The estate of EYL is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. USD of [Address removed for publication.] is appointed as the financial manager of the estate. NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.
Catchwords:	REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – person of advanced age – changes to long standing appointment of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – no order made – decision to…