HKE

[2021] NSWCATGD 43

NSW Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

HKE [2021] NSWCATGD 43

Hearing dates:

1 July 2021

Date of orders:

1 July 2021

Decision date:

01 July 2021

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
S Flanagan, Senior Member (Professional)
I Ferreira, General Member (Community)

Decision:

In relation to the enduring powers of attorney made by HKE (deceased) on 19 January 2013 and 9 September 2019 which appointed GZK as attorney the Tribunal determines, orders or declares:

not to carry out a review of the making and operation and effect of the enduring powers of attorney.

Catchwords:

REVIEW OF ENDURING POWER OF ATTORNEY – application to review the making and operation and effect of enduring powers of attorney – principal deceased at the time of hearing – whether the Tribunal should make orders under s 36(4)(e) of the Powers of Attorney Act 2003 – Tribunal exercises discretion not to conduct a review of the enduring powers of attorney – no utility in making an order under the Powers of Attorney Act – no order made – application dismissed

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 36(8)(b)

Powers of Attorney Act 2003 (NSW), ss 36, 36(4), 36(4)(e), 36(4)(e)(iv)

Cases Cited:

DPT [2015] NSWCATGD 3

KBX [2015] NSWCATGD 2

Susan Elizabeth Parker v Margaret Catherine Higgins [2012] NSWSC 1516

UQH [2014] NSWCATGD 37

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

002: Review of an Enduring Power of Attorney

HKE (deceased) (the person)
BAK (applicant)
GZK (attorney)
JYK (joined party)
NSW Trustee and Guardian

Representation:

Solicitors:
L Barca for JYK
M Osborne for GZK

File Number(s):

NCAT 2020/00212271

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

Background

1. The late HKE died on 28 September 2020. He had five children who are JYK, Mr Z, Mr Y, BAK and GZK.

2. On 20 July 2020 the Tribunal received an application from BAK seeking a guardianship order for HKE and an application seeking the review of the making and of the operation and effect of an enduring power of attorney made by the late HKE on 22 July 2016 appointing himself and GZK as the attorneys.

3. On 19 August 2020 Michael Osborne, on behalf of GZK provided a copy of an enduring power of attorney made by HKE (made by way of a Deed) and dated “January 2013” and witnessed on 19 January 2013. The Tribunal was also provided with copies of an enduring power of attorney dated 19 July 2016 appointing BAK as the attorney and a copy of a revocation of that appointment dated 10 September 2019 as well as an enduring power of attorney (made by way of a Deed) dated 9 September 2019 appointing GZK as the attorney.

4. On 20 August 2020 the Tribunal heard…