KWD - [2014] NSWCATGD 49

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KWD [2014] NSWCATGD 49
Hearing dates: 8 May 2014
Date of orders: 08 May 2014
Decision date: 08 May 2014
Jurisdiction: Guardianship Division
Before: Currie J, Senior Member (Legal)
Garrard J, Senior Member (Professional)
Manga R, General Member (Community)
Decision:
Declaration of mental capacity to make enduring power of attorney.
Declaration of invalid revocation of enduring power of attorney.
Financial management order made; private financial manager appointed, reviewable in six months.
Catchwords:
ENDURING POWER OF ATTORNEY – review of making and revocation of enduring powers of attorney – revocation invalid – revocation effected by conduct – implied revocation due to execution of subsequent enduring power of attorney – mental capacity to make and revoke enduring powers of attorney – transfer of funds from principal to attorney.

FINANCIAL MANAGEMENT – application for financial management order – need for independent oversight – suitability for appointment – subject person expressed view as to who should be appointed – conflict of interest – suspension of enduring power of attorney – reviewable order to consider revocation and allow attorney to act.
GUARDIANSHIP – application for guardianship order – enduring guardianship appointment made – no need for order – application dismissed.
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)
Cases Cited: Baker v Biddle (1923) 33 CLR 188; [1923] HCA 26
Estate of Evans [2010] SASE 193
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re D [2012] NSWSC 1006
Re E (Enduring Power of Attorney) [2001] Ch 364373; [2000] 3All ER 1004; [2000] 3 WLR 1974 per Arden J
Texts Cited: GE Dal Pont, Powers of Attorney, (2011, LexisNexis Butterworths) [11.12]
Category: Principal judgment
Parties: Mrs KWD (subject person)
Mrs MKC (applicant and attorney)
Mr SXL (carer and attorney)
The NSW Trustee and Guardian
The Public Guardian
File Number(s): 55115
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

Review of Enduring Power of Attorney.

The Tribunal decided to conduct a review of the making of the enduring power of made by Mrs KWD on 10 December 2013 (“the Reviewable Power of Attorney”) under which she appointed Mr SXL as her attorney. It decided to order that Mrs KWD had the capacity to make a valid power of attorney when she made the Reviewable Power of Attorney.
The Tribunal decided not to conduct a review of the operation and effect of the Reviewable Power of Attorney.

Review of Revocation of Enduring Power of Attorney

The Tribunal decided to conduct a review of the revocation of the enduring power of attorney which Mrs KWD had made on 13 February 2011 under which…

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 KWD

Details

AGLC: KWD [2014] NSWCATGD 49
Case: [2014] NSWCATGD 49
Decision Date: 08 May 2014

CaseChat Overview and Summary

In the case, KWD, the court was asked to review the making and revocation of enduring powers of attorney and to decide on applications for financial management and guardianship orders. The matter involved disputes over the capacity of the principal to make and revoke enduring powers of attorney and the need for independent oversight in the management of the principal’s finances. The court was required to determine whether the revocation of the enduring power of attorney was valid and whether the principal had the mental capacity to make and revoke the enduring power of attorney. It also had to consider whether there was a need for a financial management order and if an independent private financial manager should be appointed, as well as the application for a guardianship order.

The court found that the principal had the mental capacity to make and revoke enduring powers of attorney, and that the revocation was invalid as it was effected by conduct rather than through a formal written revocation. The court held that the execution of a subsequent enduring power of attorney implied the revocation of the earlier one. The court further determined that there was a need for independent oversight in the management of the principal’s finances due to a conflict of interest and the inappropriate transfer of funds from the principal to the attorney. Consequently, a financial management order was made, appointing a private financial manager, and the enduring power of attorney was suspended pending a review in six months. The application for a guardianship order was dismissed as the principal had already appointed an enduring guardian.

The court issued several declarations and orders. It declared that the principal had the mental capacity to make and revoke enduring powers of attorney, and that the revocation of the enduring power of attorney was invalid. A financial management order was made, appointing a private financial manager with a review scheduled in six months, and the enduring power of attorney was suspended pending the review. The application for a guardianship order was dismissed, as the principal had already appointed an enduring guardian.

Orders

Orders of the court

Declaration of mental capacity to make enduring power of attorney.

Declaration of invalid revocation of enduring power of attorney.

Financial management order made; private financial manager appointed, reviewable in six months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	KWD [2014] NSWCATGD 49
Hearing dates:	8 May 2014
Date of orders:	08 May 2014
Decision date:	08 May 2014
Jurisdiction:	Guardianship Division
Before:	Currie J, Senior Member (Legal) Garrard J, Senior Member (Professional) Manga R, General Member (Community)
Decision:	Declaration of mental capacity to make enduring power of attorney. Declaration of invalid revocation of enduring power of attorney. Financial management order made; private financial manager appointed, reviewable in six months.
Catchwords:	ENDURING POWER OF ATTORNEY – review of making and revocation of enduring powers of attorney – revocation invalid – revocation effected by conduct – implied revocation due to execution of subsequent enduring power of attorney – mental capacity to make and revoke enduring powers of attorney – transfer of funds from principal to attorney. FINANCIAL MANAGEMENT – application for financial management order – need for independent oversight – suitability for appointment – subject person expressed view as to who should be appointed – conflict of interest – suspension of enduring power of attorney – reviewable order to consider revocation and allow attorney to act. GUARDIANSHIP – application for guardianship order – enduring guardianship appointment made – no need for order – application dismissed.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW)
Cases Cited:	Baker v Biddle (1923) 33 CLR 188; [1923] HCA 26 Estate of Evans [2010] SASE 193 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006 Re E (Enduring Power of Attorney) [2001] Ch 364373; [2000] 3All ER 1004; [2000] 3 WLR 1974 per Arden J
Texts Cited:	GE Dal Pont, Powers of Attorney, (2011, LexisNexis Butterworths) [11.12]
Category:	Principal judgment
Parties:	Mrs KWD (subject person) Mrs MKC (applicant and attorney) Mr SXL (carer and attorney) The NSW Trustee and Guardian The Public Guardian
File Number(s):	55115
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)).