KSU - [2019] NSWCATGD 13

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KSU [2019] NSWCATGD 13
Hearing dates: 27 March 2019
Date of orders: 29 March 2019
Decision date: 29 March 2019
Jurisdiction: Guardianship Division
Before: K A McMahon, Senior Member (Legal)
M J Staples, Senior Member (Professional)
L Stewart, General Member (Community)
Decision:
In relation to the enduring power of attorney made by KSU on 10 June 2013 which appointed TZG and NSU as attorneys the Tribunal determines, orders or declares:

KSU did not have the mental capacity to revoke an enduring power of attorney.

The application by NZL for a financial management order for KSU is dismissed after hearing.
The application by QSU for a financial management order for KSU is dismissed after hearing.
Catchwords:
REVIEW OF MAKING OF ENDURING POWER OF ATTORNEY – review of revocation of enduring power of attorney – whether subject person had capacity to revoke enduring power of attorney – fluctuating capacity – family dispute – weight of evidence – subject person did not have capacity to revoke enduring power of attorney.
FINANCIAL MANAGEMENT – application for a financial management order – whether there is a need for a financial management order – where subject person has appointed enduring powers of attorney – where current arrangements are meeting the subject person’s best interests – no need for an order – application dismissed.
Legislation Cited: Guardianship Act 1987 (NSW), s 4
Powers of Attorney Act, ss 36(1)-(2)
Cases Cited: McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
PB v BB [2013] NSWSC 1223
Re D [2012] NSWSC 1006
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Texts Cited: N/A
Category: Principal judgment
Parties:
001: Review Revocation of an Enduring Power of Attorney

KSU (the person)
TZG (applicant, attorney)
NSU (attorney)

003: Financial Management Application

KSU (the person)
NZL (applicant, proposed financial manager)
NSW Trustee and Guardian
NSU (spouse)

004: Financial Management Application
KSU (the person)
QSU (applicant, son)
NSU (attorney, spouse)
NSW Trustee and Guardian
Representation: N/A

File Number(s): NCAT 2018/00360749
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

We decided under s 36(1) of the Powers of Attorney Act 2003 (NSW) (“the Act”), to carry out a review of the revocation on 23 October 2018 of the enduring power of attorney made by KSU (“the father”) on 10 June 2013 which appointed TZG and NSU (“the mother”) as his attorneys.
As a consequence of reviewing the revocation, we decided that the father did not have mental capacity on 23 October 2018 to revoke the enduring power of attorney made by him on 10 June 2013 which appointed TZG and the mother…

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 KSU

Details

AGLC: KSU [2019] NSWCATGD 13
Case: [2019] NSWCATGD 13
Decision Date: 29 March 2019

CaseChat Overview and Summary

The case involved KSU, a person whose capacity to revoke an enduring power of attorney (EPA) and the need for a financial management order were in question. The dispute arose from a family conflict over whether KSU had the mental capacity to revoke the EPA she had previously executed. Additionally, there were competing applications for a financial management order, with two different parties seeking to have control over KSU's financial affairs. The matter was heard by the relevant tribunal.

The tribunal was tasked with determining whether KSU had the mental capacity to revoke the EPA. This involved assessing the evidence of fluctuating capacity and the arguments presented by the parties involved in the family dispute. Furthermore, the tribunal had to decide if a financial management order was necessary given that KSU had appointed enduring powers of attorney and that the current arrangements seemed to be in her best interests.

In reaching its decision, the tribunal examined the evidence regarding KSU's capacity to revoke the EPA. The tribunal concluded that KSU did not have the mental capacity to revoke the EPA, considering the fluctuating nature of her capacity and the evidence provided. Regarding the financial management order, the tribunal found that the existing arrangements were adequate and in KSU's best interests, leading to the dismissal of both applications for a financial management order.

The tribunal dismissed the application by NZL and QSU for a financial management order for KSU. It also determined that KSU did not have the mental capacity to revoke the EPA made on 10 June 2013, which appointed TZG and NSU as attorneys.

Orders

Orders of the court

In relation to the enduring power of attorney made by KSU on 10 June 2013 which appointed TZG and NSU as attorneys the Tribunal determines, orders or declares:

KSU did not have the mental capacity to revoke an enduring power of attorney.

The application by NZL for a financial management order for KSU is dismissed after hearing.

The application by QSU for a financial management order for KSU is dismissed after hearing.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	KSU [2019] NSWCATGD 13
Hearing dates:	27 March 2019
Date of orders:	29 March 2019
Decision date:	29 March 2019
Jurisdiction:	Guardianship Division
Before:	K A McMahon, Senior Member (Legal) M J Staples, Senior Member (Professional) L Stewart, General Member (Community)
Decision:	In relation to the enduring power of attorney made by KSU on 10 June 2013 which appointed TZG and NSU as attorneys the Tribunal determines, orders or declares: KSU did not have the mental capacity to revoke an enduring power of attorney. The application by NZL for a financial management order for KSU is dismissed after hearing. The application by QSU for a financial management order for KSU is dismissed after hearing.
Catchwords:	REVIEW OF MAKING OF ENDURING POWER OF ATTORNEY – review of revocation of enduring power of attorney – whether subject person had capacity to revoke enduring power of attorney – fluctuating capacity – family dispute – weight of evidence – subject person did not have capacity to revoke enduring power of attorney. FINANCIAL MANAGEMENT – application for a financial management order – whether there is a need for a financial management order – where subject person has appointed enduring powers of attorney – where current arrangements are meeting the subject person’s best interests – no need for an order – application dismissed.
Legislation Cited:	Guardianship Act 1987 (NSW), s 4 Powers of Attorney Act, ss 36(1)-(2)
Cases Cited:	McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Texts Cited:	N/A
Category:	Principal judgment
Parties:	001: Review Revocation of an Enduring Power of Attorney KSU (the person) TZG (applicant, attorney) NSU (attorney) 003: Financial Management Application KSU (the person) NZL (applicant, proposed financial manager) NSW Trustee and Guardian NSU (spouse) 004: Financial Management Application KSU (the person) QSU (applicant, son) NSU (attorney, spouse) NSW Trustee and Guardian
Representation:	N/A
File Number(s):	NCAT 2018/00360749
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)).