FFJ - [2014] NSWCATGD 22

Civil and Administrative Tribunal

New South Wales

Case Title: FFJ

Medium Neutral Citation: [2014] NSWCATGD 22

Hearing Date(s): 11 April 2014

Decision Date: 11 April 2014

Jurisdiction: Guardianship Division

Before: Moir J, Senior Member (Legal)
Williams P, Senior Member (Professional)
Epstein-Frisch B, General Member (Community)

Decision:
The principal did not have mental capacity to revoke the enduring power of attorney and the power remains wholly valid.

Limited guardianship order made for period of six months; private guardian appointed with accommodation, health care and medical and dental; alternate private guardian appointed; Public Guardian appointed with access.

Financial management order made; private manager appointed; order reviewable after six months.

Catchwords: ENDURING POWER OF ATTORNEY - review of revocation - capacity to revoke enduring power of attorney - allegations of mismanagement by attorney - attorney received loan and benefits - conflict of interest.

GUARDIANSHIP - application for guardianship order - family conflict - enduring guardianship appointment made - need for accommodation and services decisions - alternate guardian.

FINANCIAL MANAGEMENT - application for financial management order - existence of two conflicting enduring powers of attorney - need for certainty of authority - best interests - suitability for appointment - conflict of interest.

PROCEDURAL FAIRNESS - disclosure of evidence - order restricting disclosure of submissions to all parties - evidence taken from subject person in absence of all parties.

Legislation Cited: Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited: Gibbons v Wright (1954) 91 CLR 423
Scott v Scott [2012] NSWSC 1541
Re GHI (a protected person) [2005] NSWSC 581
PY v RJS [1982] 2 NSWLR 700
H v H (unreported) NSW Supreme Court, Young J, 20 March 2000
McD v McD (1983) 3 NSWLR 81
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999

Category: Principal judgment

Parties: Mrs FFJ (subject person)
Ms BBM (applicant, attorney and enduring guardian)
Mr QBJ (joined party)
Mr KAJ (joined party)
The Public Guardian
The NSW Trustee and Guardian

File Number(s): 55331

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

The Tribunal declared that Mrs FFJ did not have mental capacity on 31 December 2013 to revoke the enduring power of attorney dated 27 September 2011 which appointed Ms BBM as attorney.
The Tribunal declared that the enduring power of attorney made by Mrs FFJ on 27 September 2011, appointing Ms BBM as attorney is wholly valid.
The Tribunal appointed Ms BBM as Mrs FFJ's guardian and Mr KAJ as her alternate guardian for a period of six months to make decisions on her behalf about her accommodation, health care and medical and dental treatment as…

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 FFJ

Details

AGLC: FFJ [2014] NSWCATGD 22
Case: [2014] NSWCATGD 22
Decision Date: 11 April 2014

CaseChat Overview and Summary

The case involves an application by a daughter for review of an enduring power of attorney, as well as applications for limited guardianship and financial management orders. The dispute arises from the daughter’s concerns about the management of her father’s affairs by another daughter who has been appointed as attorney. The matter was heard in the Supreme Court of New South Wales.

The court was tasked with determining whether the principal had the mental capacity to revoke the enduring power of attorney, the suitability of the daughter as an attorney, and the need for a guardianship or financial management order. The court also had to consider the procedural fairness of the evidence presented, including the disclosure of submissions and the method of obtaining evidence from the subject person.

The court found that the principal did not have the mental capacity to revoke the enduring power of attorney and therefore, the power remained valid. The daughter appointed as attorney had received a loan and benefits from her father, which created a conflict of interest. The court also found that a limited guardianship order was necessary for a period of six months, with a private guardian appointed to make decisions regarding accommodation, health care, and medical and dental services. An alternate private guardian was also appointed, and the Public Guardian was appointed with access. A financial management order was made, with a private manager appointed to manage the principal's financial affairs. The orders are reviewable after six months.

The court made an order that the enduring power of attorney was valid and not revoked. The court also made a limited guardianship order appointing a private guardian for a period of six months, with an alternate guardian appointed. A financial management order was also made appointing a private manager, with the orders to be reviewed after six months.

Orders

Orders of the court

The principal did not have mental capacity to revoke the enduring power of attorney and the power remains wholly valid.

Limited guardianship order made for period of six months; private guardian appointed with accommodation, health care and medical and dental; alternate private guardian appointed; Public Guardian appointed with access.

Financial management order made; private manager appointed; order reviewable after six 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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Case Title:	FFJ
Medium Neutral Citation:	[2014] NSWCATGD 22
Hearing Date(s):	11 April 2014
Decision Date:	11 April 2014
Jurisdiction:	Guardianship Division
Before:	Moir J, Senior Member (Legal) Williams P, Senior Member (Professional) Epstein-Frisch B, General Member (Community)
Decision:	The principal did not have mental capacity to revoke the enduring power of attorney and the power remains wholly valid. Limited guardianship order made for period of six months; private guardian appointed with accommodation, health care and medical and dental; alternate private guardian appointed; Public Guardian appointed with access. Financial management order made; private manager appointed; order reviewable after six months.
Catchwords:	ENDURING POWER OF ATTORNEY - review of revocation - capacity to revoke enduring power of attorney - allegations of mismanagement by attorney - attorney received loan and benefits - conflict of interest. GUARDIANSHIP - application for guardianship order - family conflict - enduring guardianship appointment made - need for accommodation and services decisions - alternate guardian. FINANCIAL MANAGEMENT - application for financial management order - existence of two conflicting enduring powers of attorney - need for certainty of authority - best interests - suitability for appointment - conflict of interest. PROCEDURAL FAIRNESS - disclosure of evidence - order restricting disclosure of submissions to all parties - evidence taken from subject person in absence of all parties.
Legislation Cited:	Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Gibbons v Wright (1954) 91 CLR 423 Scott v Scott [2012] NSWSC 1541 Re GHI (a protected person) [2005] NSWSC 581 PY v RJS [1982] 2 NSWLR 700 H v H (unreported) NSW Supreme Court, Young J, 20 March 2000 McD v McD (1983) 3 NSWLR 81 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported) NSW Supreme Court, Windeyer J, 29 November 1999
Category:	Principal judgment
Parties:	Mrs FFJ (subject person) Ms BBM (applicant, attorney and enduring guardian) Mr QBJ (joined party) Mr KAJ (joined party) The Public Guardian The NSW Trustee and Guardian
File Number(s):	55331
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)).