GFN - [2021] NSWCATGD 7

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GFN [2021] NSWCATGD 7
Hearing dates: 28 January 2021, 5 February 2021, and 19 March 2021
Date of orders: 1 April 2021
Decision date: 01 April 2021
Jurisdiction: Guardianship Division
Before: P H Molony, Senior Member (Legal)
E Love, Senior Member (Professional)
M McCalman, General Member (Community)
Decision:
The Tribunal decided, under s 36(1) of the Powers of Attorney Act 2013 (NSW), not to carry out a review of the making of the enduring power of attorney made by GFN on 19 June 2012.
The Tribunal decided, under s 36(1) of the Powers of Attorney Act, to carry out a review of the operation and effect of the enduring power of attorney made by GFN on 19 June 2012.
As a consequence of reviewing the operation and effect of the enduring power of attorney, the Tribunal decided under s 36(2) of the Powers of Attorney Act not to make an order under s 36 of that Act, but to treat the application for review as an application for a financial management order.
The Tribunal committed the estate of GFN to the management of the NSW Trustee and Guardian.
1. The estate of GFN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of GFN is committed to the NSW Trustee and Guardian.

Catchwords:
REVIEW OF ENDURING POWER OF ATTORNEY – whether the Tribunal should review the operation and effect of an enduring power of attorney – attorney hid assets from principal’s creditors – attorney wrongly appropriated asset to herself – apparent conflict of interest – conferral of benefit with no authority – decision to treat application as an application for financial management – need for asset to be protected – possible need for legal action – actions of proposed manager led to the need for an order – NSW Trustee and Guardian appointed.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 4, 25M, Pt 3A
Powers of Attorney Act 2013 (NSW), ss 9(1), 12, 12(1), 13, 19, 20, 36(1)-(2), 37, 46, 50(3); Sch 3, cl 3(1) of Sch 3

Cases Cited:
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
Re R [2000] NSWSC 886
Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
The Estate of Weiss (Dec’d) [1962] P 136
ZHC v ZHO [2018] NSWCATAP 190

Texts Cited:
G E Dal Pont, Powers of Attorney (3rd ed, 2020, LexisNexis Butterworths)

Category: Principal judgment
Parties:
011: Review of an Enduring Power of Attorney
GFN (the person)
MZN (applicant)
OAG (attorney)
NSW Trustee and Guardian
Representation: Nil

File Number(s): NCAT 2014/00384479
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

REVIEW OF ENDURING POWER OF ATTORNEY

What the Tribunal decided

The Tribunal decided,…

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 GFN

Details

AGLC: GFN [2021] NSWCATGD 7
Case: [2021] NSWCATGD 7
Decision Date: 01 April 2021

CaseChat Overview and Summary

The case involved the estate of GFN, who had created an enduring power of attorney on 19 June 2012. The dispute centred on the operation and effect of this enduring power of attorney, particularly in light of allegations that the attorney had concealed assets from GFN's creditors and had misappropriated an asset for her own benefit. The case was heard by the Tribunal under the Powers of Attorney Act 2013 (NSW). The key issues for the Tribunal were whether it should review the making and operation of the enduring power of attorney and whether it should appoint a financial manager to oversee the estate.

The Tribunal concluded that it should not review the making of the enduring power of attorney, as there was no evidence to suggest it was invalid. However, the Tribunal did find that it was necessary to review the operation and effect of the enduring power of attorney, given the allegations of misconduct by the attorney. The Tribunal determined that it should treat the application for review as an application for a financial management order. This decision was made due to the apparent conflict of interest and the attorney's improper appropriation of an asset. The Tribunal also considered the need to protect GFN's estate and the potential necessity for legal action against the attorney.

Consequently, the Tribunal decided to commit the estate of GFN to the management of the NSW Trustee and Guardian, as per the NSW Trustee and Guardian Act 2009 (NSW). This decision was based on the need for independent oversight and the actions of the proposed manager, which had contributed to the necessity for an order. The Tribunal's final orders were to not review the making of the enduring power of attorney, to review its operation and effect, and to commit GFN's estate to the management of the NSW Trustee and Guardian.

Orders

Orders of the court

The Tribunal decided, under s 36(1) of the Powers of Attorney Act 2013 (NSW), not to carry out a review of the making of the enduring power of attorney made by GFN on 19 June 2012.

The Tribunal decided, under s 36(1) of the Powers of Attorney Act, to carry out a review of the operation and effect of the enduring power of attorney made by GFN on 19 June 2012.

As a consequence of reviewing the operation and effect of the enduring power of attorney, the Tribunal decided under s 36(2) of the Powers of Attorney Act not to make an order under s 36 of that Act, but to treat the application for review as an application for a financial management order.

The Tribunal committed the estate of GFN to the management of the NSW Trustee and Guardian.

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

2. The management of the estate of GFN is committed to 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:	GFN [2021] NSWCATGD 7
Hearing dates:	28 January 2021, 5 February 2021, and 19 March 2021
Date of orders:	1 April 2021
Decision date:	01 April 2021
Jurisdiction:	Guardianship Division
Before:	P H Molony, Senior Member (Legal) E Love, Senior Member (Professional) M McCalman, General Member (Community)
Decision:	The Tribunal decided, under s 36(1) of the Powers of Attorney Act 2013 (NSW), not to carry out a review of the making of the enduring power of attorney made by GFN on 19 June 2012. The Tribunal decided, under s 36(1) of the Powers of Attorney Act, to carry out a review of the operation and effect of the enduring power of attorney made by GFN on 19 June 2012. As a consequence of reviewing the operation and effect of the enduring power of attorney, the Tribunal decided under s 36(2) of the Powers of Attorney Act not to make an order under s 36 of that Act, but to treat the application for review as an application for a financial management order. The Tribunal committed the estate of GFN to the management of the NSW Trustee and Guardian. 1. The estate of GFN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of GFN is committed to the NSW Trustee and Guardian.
Catchwords:	REVIEW OF ENDURING POWER OF ATTORNEY – whether the Tribunal should review the operation and effect of an enduring power of attorney – attorney hid assets from principal’s creditors – attorney wrongly appropriated asset to herself – apparent conflict of interest – conferral of benefit with no authority – decision to treat application as an application for financial management – need for asset to be protected – possible need for legal action – actions of proposed manager led to the need for an order – NSW Trustee and Guardian appointed.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 25M, Pt 3A Powers of Attorney Act 2013 (NSW), ss 9(1), 12, 12(1), 13, 19, 20, 36(1)-(2), 37, 46, 50(3); Sch 3, cl 3(1) of Sch 3
Cases Cited:	Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 Re R [2000] NSWSC 886 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 The Estate of Weiss (Dec’d) [1962] P 136 ZHC v ZHO [2018] NSWCATAP 190
Texts Cited:	G E Dal Pont, Powers of Attorney (3rd ed, 2020, LexisNexis Butterworths)
Category:	Principal judgment
Parties:	011: Review of an Enduring Power of Attorney GFN (the person) MZN (applicant) OAG (attorney) NSW Trustee and Guardian
Representation:	Nil
File Number(s):	NCAT 2014/00384479
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.