KMC - [2014] NSWCATGD 43

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KMC [2014] NSWCATGD 43
Hearing dates: 27 October 2014
Decision date: 04 December 2014
Jurisdiction: Guardianship Division
Before: Hughes B, Senior Member (Legal)
Martin M, Senior Member (Professional)
Cootes J, General Member (Community)
Decision:
Guardianship order revoked; financial management order made.
Revocation of enduring power of attorney declared invalid.

Catchwords:
ENDURING POWER OF ATTORNEY - review of revocation - attorney revoked a subsequent enduring power of attorney - no authority - revocation declared invalid.

GUARDIANSHIP - requested review of guardianship order - Public Guardian and private guardian appointed with separate functions - practicality and need for access function - guardianship order revoked - enduring guardianship appointment no longer suspended.
FINANCIAL MANAGEMENT - two enduring powers of attorney made - conflicting authorities - potential for uncertainty - need for order - suitability for appointment - attorney appointed.
Legislation Cited: Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)
Cases Cited: Holt v Protective Commissioner (1993) 31 NSWLR 227
Texts Cited: G E Dal Pont, Powers of Attorney (2011, LexisNexis)
Halsbury, Laws of Australia (LexisNexis)
Category: Principal judgment
Parties: Mrs KMC (subject person)
Mr BDC (applicant, attorney)
Mrs MGC (applicant, attorney)
Mr NTC (spouse, guardian)
The Public Guardian
NSW Trustee and Guardian
File Number(s): 53264
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

reasons for decision

WHAT THE TRIBUNAL DECIDED

The Tribunal reviewed the guardianship order of 26 August 2014 concerning Mrs KMC and revoked that order with effect from 27 October 2014.

AND

The Tribunal ordered that the revocation of enduring power of attorney made by Mrs KMC on 29 April 2014 is invalid.

AND

The Tribunal declared that the enduring power of attorney that Mrs KMC made on 11 September 2012 that appointed Mrs MGC and Mr BDC remains valid in whole.

AND

The Tribunal appointed Mr NTC as manager of Mrs KMC's property and affairs, subject to the authority and directions of the NSW Trustee.

BACKGROUND

Mrs KMC is a 77-year old woman who presently resides at a nursing home in West Sydney having moved there from an aged care hostel in October 2014. Mrs KMC had been admitted to the aged care hostel in March 2013 following a fall at home and an admission to hospital with a fractured shoulder. Mrs KMC previously lived in her own home with her husband Mr NTC. Mrs KMC has three surviving children, Mrs MGC, Ms QVM and Mr BDC. Mrs KMC is a woman with significant cognitive impairment.

The Tribunal received an application for the appointment of a guardian and financial manager from Mrs MGC in May 2013. The application mainly related to concerns about the active attempts Mr NTC made at that time to remove his wife from the aged care hostel, and a refusal to pay…

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 KMC

Details

AGLC: KMC [2014] NSWCATGD 43
Case: [2014] NSWCATGD 43
Decision Date: 04 December 2014

CaseChat Overview and Summary

In the matter of KMC, the court considered the validity of a revocation of an enduring power of attorney, the review of a guardianship order, and the appointment of a financial manager. The dispute involved the personal and financial affairs of an individual who had previously appointed an enduring power of attorney, and later sought to revoke that appointment. Additionally, there was a need to review a guardianship order and determine whether the enduring guardianship appointment should remain suspended.

The primary legal issues before the court were whether the revocation of the enduring power of attorney was valid, and if the guardianship order should be reviewed and potentially revoked. Furthermore, the court had to decide whether a financial management order was necessary due to conflicting authorities from two enduring powers of attorney, and if so, who would be suitable for the appointment of a financial manager.

The court determined that the revocation of the enduring power of attorney was not valid because the individual who revoked it did not have the requisite authority. Consequently, the enduring power of attorney remained in effect. Regarding the guardianship order, the court found that the Public Guardian and the private guardian had separate functions, and the need for the access function justified revoking the order and allowing the enduring guardianship appointment to take effect. The court also found that a financial management order was necessary due to the conflicting authorities and uncertainty arising from the two enduring powers of attorney. After assessing the suitability of candidates, the court appointed a financial manager.

The court revoked the guardianship order, declared the revocation of the enduring power of attorney invalid, and made a financial management order. This decision ensures that the individual's personal and financial affairs are managed according to the court's findings, with the enduring power of attorney remaining in effect and the appropriate person appointed as financial manager.

Orders

Orders of the court

Guardianship order revoked; financial management order made.

Revocation of enduring power of attorney declared invalid.

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

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Medium Neutral Citation:	KMC [2014] NSWCATGD 43
Hearing dates:	27 October 2014
Decision date:	04 December 2014
Jurisdiction:	Guardianship Division
Before:	Hughes B, Senior Member (Legal) Martin M, Senior Member (Professional) Cootes J, General Member (Community)
Decision:	Guardianship order revoked; financial management order made. Revocation of enduring power of attorney declared invalid.
Catchwords:	ENDURING POWER OF ATTORNEY - review of revocation - attorney revoked a subsequent enduring power of attorney - no authority - revocation declared invalid. GUARDIANSHIP - requested review of guardianship order - Public Guardian and private guardian appointed with separate functions - practicality and need for access function - guardianship order revoked - enduring guardianship appointment no longer suspended. FINANCIAL MANAGEMENT - two enduring powers of attorney made - conflicting authorities - potential for uncertainty - need for order - suitability for appointment - attorney appointed.
Legislation Cited:	Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW)
Cases Cited:	Holt v Protective Commissioner (1993) 31 NSWLR 227
Texts Cited:	G E Dal Pont, Powers of Attorney (2011, LexisNexis) Halsbury, Laws of Australia (LexisNexis)
Category:	Principal judgment
Parties:	Mrs KMC (subject person) Mr BDC (applicant, attorney) Mrs MGC (applicant, attorney) Mr NTC (spouse, guardian) The Public Guardian NSW Trustee and Guardian
File Number(s):	53264
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).