KNS

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

KNS [2021] NSWCATGD 5

Hearing dates:

14 January 2021

Date of orders:

14 January 2021

Decision date:

14 January 2021

Jurisdiction:

Guardianship Division

Before:

A D Suthers, Principal Member
Dr A Baird, Senior Member (Professional)
M Watson, General Member (Community)

Decision:

In relation to the enduring power of attorney made by KNS on 27 September 2010 which appointed UKT as attorney the Tribunal determines, orders or declares:

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

The application for the appointment of a guardian for KNS is dismissed

Catchwords:

GUARDIANSHIP – failure by applicant to appear at hearing and prosecute application – no proper basis for adjournment – no proper basis for order established – application dismissed

POWER OF ATTORNEY – review of operation of enduring power of attorney – second such application – no new issues raised – no proper basis for review established

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4,14(1)-(2)

Powers of Attorney Act 2003 (NSW), s 36(1), Div 4 of Pt 5

Cases Cited:

Magjarraj v Asteron Life Ltd [2009] NSWSC 1433

NNX [2020] NSWCATGD 34

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

Texts Cited:

Nil

Category:

Principal judgment

Parties:

002: Review of an Enduring Power of Attorney

KNS (the person)
GZX (applicant)
UKT (attorney)
NSW Trustee and Guardian

003: Guardianship Application

KNS (the person)
GZX (applicant, proposed guardian)
Public Guardian

Representation:

Nil

File Number(s):

NCAT 2019/00204294

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

What the Tribunal decided

1. The Tribunal made orders as set out above.

Background

2. KNS is 94 years of age.

3. She has been living in an aged care facility in suburban Sydney since 2015. Before that, she lived in her own home in the same suburb.

4. KNS has two adult children, GZX, who lives in Sydney and UKT, who lives in Victoria.

5. In September 2010, when there is no dispute as to her capacity to do so, KNS signed a general power of attorney appointing UKT to be her attorney. That instrument was expressed to endure beyond KNS losing the capacity to make her own financial decisions.

6. In December 2019, on the application of GZX, the Tribunal reviewed the making, and the operation and effect of that power of attorney. The Tribunal found there was no proper basis to doubt that the power of attorney had been properly made. The Tribunal also found that there was no relevant issue of concern regarding its operation and effect. In recording the basis upon which GZX had asked the Tribunal to review the power of attorney, and its findings, the Tribunal noted at [37] to [48], as follows:

37 The applicant gave evidence critical of the…