FZN - [2018] NSWCATGD 46

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FZN [2018] NSWCATGD 46
Hearing dates: 31 May 2018
Date of orders: 31 May 2018
Decision date: 31 May 2018
Jurisdiction: Guardianship Division
Before: K A McMahon, Senior Member (Legal)
Dr I L Beale, Senior Member (Professional)
S Johnston, General Member (Community)
Decision:
In relation to the enduring power of attorney made by FZN on 25 June 2012 appointing NZE and BZD as attorneys the Tribunal determines, orders or declares:

Not to carry out a review of the operation and effect of the enduring power of attorney.

The application is dismissed.

In relation to the enduring power of attorney made by FZN on 26 February 2018 appointing QYE as attorney and BZD as substitute attorney, the Tribunal determines, orders or declares:

Not to carry out a review of the making and the operation and effect of the enduring power of attorney

The application is dismissed.

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

2. NZE 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 ENDURING POWER OF ATTORNEY – application to review making and operation and effect of enduring power of attorney – enduring power of attorney already revoked – application dismissed.
FINANCIAL MANAGEMENT – application for financial management order – whether subject person is incapable of managing their affairs – whether subject person is at risk of exploitation – whether proposed financial manager is suitable – where supervision of financial manager by NSW Trustee and Guardian would provide transparency – appointment of private financial manager – order made.
Legislation Cited: Guardianship Act 1987 (NSW), ss 4, 25M, Pt 3A
Power of Attorney Act, ss 36, 36(1)-(2), 36(4)(b)-(c), 36(4)(g)
Cases Cited: CJ v AKJ [2015] NSWSC 498
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
M v M [2013] NSWSC 1495
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re D [2012] NSWSC 1006
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Texts Cited: Nil
Category: Principal judgment
Parties:
011: Review of an Enduring Power of Attorney

FZN (the person)
SZI (applicant)
QZI (applicant)
NZE (attorney)
BZD (attorney)

012: Review of an Enduring Power of Attorney

FZN (the person)
SZI (applicant)
QZI (applicant)
QYE (attorney)

013: Financial Management Application
FZN (the person)
QZI (applicant)
SZI (applicant)
QYE (attorney)
NZE (attorney)
NSW Trustee and Guardian
Representation: S Williams for FZN

File Number(s): NCAT 2008/00466765
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify…

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 FZN

Details

AGLC: FZN [2018] NSWCATGD 46
Case: [2018] NSWCATGD 46
Decision Date: 31 May 2018

CaseChat Overview and Summary

The case involved the estate of FZN, with the NSW Civil and Administrative Tribunal (NCAT) handling an application to review an enduring power of attorney (EPA) and the appointment of a financial manager for FZN’s estate. The application was brought by QYE, who was the substitute attorney under a subsequent EPA but had not been appointed as FZN’s financial manager. FZN had previously appointed NZE and BZD as attorneys under an EPA on 25 June 2012, which had since been revoked. FZN later appointed QYE and BZD as attorney and substitute attorney under another EPA on 26 February 2018. QYE sought a review of the making, operation, and effect of the 2018 EPA, as well as an order for the appointment of a financial manager.

The NCAT was required to determine whether a review of the 2018 EPA should be conducted, given that the 2012 EPA had already been revoked. Additionally, the Tribunal had to assess whether FZN was incapable of managing their own affairs, whether they were at risk of exploitation, and whether the proposed financial manager, NZE, was suitable for the role. The suitability of the financial manager was also considered in the context of whether supervision by the NSW Trustee and Guardian would provide adequate transparency.

The NCAT found that there was no basis to review the operation and effect of the 2012 EPA, as it had already been revoked, and dismissed the application for review. The Tribunal also dismissed the application to review the making and operation of the 2018 EPA, finding that QYE did not have standing to make such an application. Regarding the appointment of a financial manager, the Tribunal concluded that FZN was incapable of managing their affairs and was at risk of exploitation. NZE was deemed suitable for the role, and while the supervision by the NSW Trustee and Guardian would provide transparency, the Tribunal ultimately appointed NZE as the financial manager of the estate. The Tribunal also ordered that the financial manager could not deal with the estate until obtaining all necessary authorities from the NSW Trustee and Guardian.

Orders

Orders of the court

In relation to the enduring power of attorney made by FZN on 25 June 2012 appointing NZE and BZD as attorneys the Tribunal determines, orders or declares:

Not to carry out a review of the operation and effect of the enduring power of attorney.

The application is dismissed.

In relation to the enduring power of attorney made by FZN on 26 February 2018 appointing QYE as attorney and BZD as substitute attorney, the Tribunal determines, orders or declares:

Not to carry out a review of the making and the operation and effect of the enduring power of attorney

The application is dismissed.

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

2. NZE 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:	FZN [2018] NSWCATGD 46
Hearing dates:	31 May 2018
Date of orders:	31 May 2018
Decision date:	31 May 2018
Jurisdiction:	Guardianship Division
Before:	K A McMahon, Senior Member (Legal) Dr I L Beale, Senior Member (Professional) S Johnston, General Member (Community)
Decision:	In relation to the enduring power of attorney made by FZN on 25 June 2012 appointing NZE and BZD as attorneys the Tribunal determines, orders or declares: Not to carry out a review of the operation and effect of the enduring power of attorney. The application is dismissed. In relation to the enduring power of attorney made by FZN on 26 February 2018 appointing QYE as attorney and BZD as substitute attorney, the Tribunal determines, orders or declares: Not to carry out a review of the making and the operation and effect of the enduring power of attorney The application is dismissed. 1. The estate of FZN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. NZE 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 ENDURING POWER OF ATTORNEY – application to review making and operation and effect of enduring power of attorney – enduring power of attorney already revoked – application dismissed. FINANCIAL MANAGEMENT – application for financial management order – whether subject person is incapable of managing their affairs – whether subject person is at risk of exploitation – whether proposed financial manager is suitable – where supervision of financial manager by NSW Trustee and Guardian would provide transparency – appointment of private financial manager – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 25M, Pt 3A Power of Attorney Act, ss 36, 36(1)-(2), 36(4)(b)-(c), 36(4)(g)
Cases Cited:	CJ v AKJ [2015] NSWSC 498 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Texts Cited:	Nil
Category:	Principal judgment
Parties:	011: Review of an Enduring Power of Attorney FZN (the person) SZI (applicant) QZI (applicant) NZE (attorney) BZD (attorney) 012: Review of an Enduring Power of Attorney FZN (the person) SZI (applicant) QZI (applicant) QYE (attorney) 013: Financial Management Application FZN (the person) QZI (applicant) SZI (applicant) QYE (attorney) NZE (attorney) NSW Trustee and Guardian
Representation:	S Williams for FZN
File Number(s):	NCAT 2008/00466765
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify…