ICW - [2017] NSWCATGD 43

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: ICW [2017] NSWCATGD 43
Hearing dates: 8 September 2017 and10 October 2017
Date of orders: 10 October 2017
Decision date: 10 October 2017
Jurisdiction: Guardianship Division
Before: R H Booby, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
Dr M Spencer, General Member (Community)
Decision:
010: Review of an Enduring Power of Attorney

1. In relation to the enduring power of attorney made by Mrs ICW on 28 October 2014 which appointed Mr BDW as the attorney and Ms FXW as the substitute attorney the Tribunal determines, orders or declares:

a) to carry out a review of the making of the enduring power of attorney;

b) Mrs ICW did not have the mental capacity to make a valid enduring power of attorney;

c) The enduring power of attorney is invalid wholly.

011: Review Revocation of an Enduring Power of Attorney

1. In relation to the enduring power of attorney made by Mrs ICW on 5 March 2007 which appointed Mr KYW and Mr BDW as attorneys the Tribunal determines, orders or declares:

a) to carry out a review of the revocation of the enduring power of attorney;

b) Mrs ICW did not have the mental capacity to revoke the enduring power of attorney.

012: Review of an Enduring Power of Attorney

1. In relation to the enduring power of attorney made by Mrs ICW on 5 March 2007 which appointed Mr KYW and Mr BDW as attorneys. The Tribunal determines, orders or declares:

a) To carry out a review of the operation and effect of the enduring power of attorney;

b) The Tribunal orders that the enduring power of attorney dated 5 March 2007 is revoked in its entirety.

013: Review or Revoke Financial Management Order

1. Mr BDW sought to withdraw the application to revoke the financial management order and the Tribunal consented and dismissed the application.

014: Review or Revoke Financial Management Order

1. Today’s hearing of the application to review the financial management order is adjourned to a date to be confirmed by the Registry.

Directions:

1. The NSW Trustee and Guardian is to provide a report detailing any actions it has taken on behalf of Mrs ICW regarding the estate of the late-Ms HPW;
2. Mr BDW is to provide details regarding any actions taken in respect of the estate of the late-Ms HPW.
Catchwords:
ENDURING POWER OF ATTORNEY – application to review the making of – application to review the operation and effect – application to review the revocation – inconsistent/contrary/conflicting medical evidence – preference of medical reports – family conflict – duties of attorney – allegations that enduring attorney not acting in best interests of appointor – conflict between financial interests due to legal proceedings – validity of attorney signature accepting appointment – evidence of Solicitor as to capacity considered by the Tribunal – capacity to execute valid enduring power of attorney – capacity to understand the nature and effect of the…

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 ICW

Details

AGLC: ICW [2017] NSWCATGD 43
Case: [2017] NSWCATGD 43
Decision Date: 10 October 2017

CaseChat Overview and Summary

The parties involved in this case were Mrs ICW, her son, and two attorneys appointed under enduring powers of attorney. The dispute centred around the validity and operation of these powers of attorney, and the son sought to review the decisions of the Tribunal regarding the revocation and operation of these documents. The case was heard in the NSW Civil and Administrative Tribunal. The primary legal issues before the court were whether Mrs ICW had the mental capacity to make and revoke the enduring powers of attorney, and whether the son had standing to bring the application for review.

The court considered the conflicting medical evidence presented in the case, with some reports indicating that Mrs ICW had the capacity to execute the enduring power of attorney, while others suggested that she lacked the requisite mental capacity. The court ultimately preferred the evidence of the son's medical expert, who concluded that Mrs ICW did not have the capacity to make or revoke the enduring powers of attorney. The court found that the son had standing to bring the application for review, as he had a genuine concern for his mother's welfare, satisfying the requirements of section 35(1) of the Powers of Attorney Act 2003 (NSW). As a result, the court determined that Mrs ICW did not have the mental capacity to make or revoke the enduring powers of attorney, and the documents were invalid.

The Tribunal ordered a review of the making, revocation, and operation of the enduring power of attorney, and ultimately revoked the document in its entirety. The court also dismissed an application to revoke a financial management order, and adjourned the hearing of the application to review the financial management order to a later date. Finally, the court directed the NSW Trustee and Guardian and the son to provide reports on any actions taken regarding the estate of the late Ms HPW.

Orders

Orders of the court

010: Review of an Enduring Power of Attorney

1. In relation to the enduring power of attorney made by Mrs ICW on 28 October 2014 which appointed Mr BDW as the attorney and Ms FXW as the substitute attorney the Tribunal determines, orders or declares:

a) to carry out a review of the making of the enduring power of attorney;

b) Mrs ICW did not have the mental capacity to make a valid enduring power of attorney;

c) The enduring power of attorney is invalid wholly.

011: Review Revocation of an Enduring Power of Attorney

1. In relation to the enduring power of attorney made by Mrs ICW on 5 March 2007 which appointed Mr KYW and Mr BDW as attorneys the Tribunal determines, orders or declares:

a) to carry out a review of the revocation of the enduring power of attorney;

b) Mrs ICW did not have the mental capacity to revoke the enduring power of attorney.

012: Review of an Enduring Power of Attorney

1. In relation to the enduring power of attorney made by Mrs ICW on 5 March 2007 which appointed Mr KYW and Mr BDW as attorneys. The Tribunal determines, orders or declares:

a) To carry out a review of the operation and effect of the enduring power of attorney;

b) The Tribunal orders that the enduring power of attorney dated 5 March 2007 is revoked in its entirety.

013: Review or Revoke Financial Management Order

1. Mr BDW sought to withdraw the application to revoke the financial management order and the Tribunal consented and dismissed the application.

014: Review or Revoke Financial Management Order

1. Today’s hearing of the application to review the financial management order is adjourned to a date to be confirmed by the Registry.

Directions:

1. The NSW Trustee and Guardian is to provide a report detailing any actions it has taken on behalf of Mrs ICW regarding the estate of the late-Ms HPW;

2. Mr BDW is to provide details regarding any actions taken in respect of the estate of the late-Ms HPW.

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:	ICW [2017] NSWCATGD 43
Hearing dates:	8 September 2017 and10 October 2017
Date of orders:	10 October 2017
Decision date:	10 October 2017
Jurisdiction:	Guardianship Division
Before:	R H Booby, Senior Member (Legal) Dr G Jamieson, Senior Member (Professional) Dr M Spencer, General Member (Community)
Decision:	010: Review of an Enduring Power of Attorney 1. In relation to the enduring power of attorney made by Mrs ICW on 28 October 2014 which appointed Mr BDW as the attorney and Ms FXW as the substitute attorney the Tribunal determines, orders or declares: a) to carry out a review of the making of the enduring power of attorney; b) Mrs ICW did not have the mental capacity to make a valid enduring power of attorney; c) The enduring power of attorney is invalid wholly. 011: Review Revocation of an Enduring Power of Attorney 1. In relation to the enduring power of attorney made by Mrs ICW on 5 March 2007 which appointed Mr KYW and Mr BDW as attorneys the Tribunal determines, orders or declares: a) to carry out a review of the revocation of the enduring power of attorney; b) Mrs ICW did not have the mental capacity to revoke the enduring power of attorney. 012: Review of an Enduring Power of Attorney 1. In relation to the enduring power of attorney made by Mrs ICW on 5 March 2007 which appointed Mr KYW and Mr BDW as attorneys. The Tribunal determines, orders or declares: a) To carry out a review of the operation and effect of the enduring power of attorney; b) The Tribunal orders that the enduring power of attorney dated 5 March 2007 is revoked in its entirety. 013: Review or Revoke Financial Management Order 1. Mr BDW sought to withdraw the application to revoke the financial management order and the Tribunal consented and dismissed the application. 014: Review or Revoke Financial Management Order 1. Today’s hearing of the application to review the financial management order is adjourned to a date to be confirmed by the Registry. Directions: 1. The NSW Trustee and Guardian is to provide a report detailing any actions it has taken on behalf of Mrs ICW regarding the estate of the late-Ms HPW; 2. Mr BDW is to provide details regarding any actions taken in respect of the estate of the late-Ms HPW.
Catchwords:	ENDURING POWER OF ATTORNEY – application to review the making of – application to review the operation and effect – application to review the revocation – inconsistent/contrary/conflicting medical evidence – preference of medical reports – family conflict – duties of attorney – allegations that enduring attorney not acting in best interests of appointor – conflict between financial interests due to legal proceedings – validity of attorney signature accepting appointment – evidence of Solicitor as to capacity considered by the Tribunal – capacity to execute valid enduring power of attorney – capacity to understand the nature and effect of the…