IS v Public Guardian & Ors

[2009] NSWADTAP 24

Appeal Panel - External

CITATION:

IS v Public Guardian & Ors [2009] NSWADTAP 24

PARTIES:

APPELLANT
IS

FIRST RESPONDENT
Public Guardian

SECOND REPSONDENT
IT

THIRD RESPONDENT
IU

FOURTH RESPONDENT
IV

FIFTH RESPONDENT
IW

DECISON MAKER
Guardianship Tribunal

FILE NUMBER:

088012

HEARING DATES:

28 November 2008

SUBMISSIONS CLOSED:

28 November 2008

 
DATE OF DECISION: 

22 April 2009

BEFORE:

Britton A - Deputy President; Higgins S - Judicial Member; Bolt M - Non-Judicial Member

CATCHWORDS:

power of attorney - review of leave to appeal on other grounds - procedural fairness

FILE NUMBER UNDER APPEAL:

C/35545

DATE OF DECISION UNDER APPEAL:

09/17/2008

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Powers of Attorney Act 2003

CASES CITED:

Bar-Mordecai v Rotman [2000] NSWCA 123
Carew v Protective Commissioner and Ors [2005] NSWADTAP 13
GM v Protective Commissioner & Ors [2003] NSWADTAP 59
JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13
KA v Public Guardian & Ors [2004] NSWADTAP 25
KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48
Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19; (2000) 96 FCR 125
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
TP v TR & ors (No 2) [2006] NSWADTAP 12

REPRESENTATION:

APPLICANT
IS' husband, Agent

FIRST RESPONDENT
No appearance

SECOND RESPONDENT
S Newell, solicitor

THIRD RESPONDENT
In person

FOURTH RESPONDENT
No appearance

Decision maker
E Cho, solicitor

ORDERS:

1.The decision to revoke IS’ appointment as enduring guardian made by the Guardianship Tribunal on 4 July 2008 is affirmed
2. The guardianship order in relation to IT made by the Guardianship Tribunal on 4 July 2008 is affirmed
3. The order of the Guardianship Tribunal made under the Powers of Attorney Act 2003 on 4 July 2008 is set aside
4. The power of attorney decision is remitted to the Tribunal as originally or similarly constituted for redetermination in accordance with these reasons.

1 The appellant, who we will refer to in these reasons by the pseudonym ‘IS’, appeals against three decisions made by the Guardianship Tribunal. These are, the decisions to revoke her appointment as her mother’s enduring guardian, to appoint the Public Guardian as her mother’s guardian, and not disturb the enduring power of attorney (‘POA’) executed by her mother in February 2006.

2 The appellant’s mother, the subject person of this appeal, is 80 years of age and suffers from dementia. She is a permanent resident in a residential aged care facility. In these reasons she will be referred to by the pseudonym ‘IT’.

3 All references in these reasons to ‘the Tribunal’ are to the NSW Guardianship Tribunal.

Representation

4 Solicitor, Mr Stephen Newell of the Aged Care Rights Service was appointed under s 71(4) of the Administrative Decisions Tribunal Act 1997 to represent IT in these proceedings.

5 In these proceedings, IS was represented by her husband acting in the role of agent.

6…