Laura (a pseudonym) - [2025] NSWCATGD 12

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Laura (a pseudonym) [2025] NSWCATGD 12
Hearing dates: 7 April 2025
Date of orders: 7 April 2025
Decision date: 07 April 2025
Jurisdiction: Guardianship Division
Before: S L Handebo, Principal Member
Dr K J Banerjee, Senior Member (Professional)
M Black, General Member (Community)
Decision:
PROCEDURAL ORDERS
The request by Steve to adjourn the hearing on 7 April 2025 is refused.
Laura is allowed to be legally represented.
REVIEW OF REVOCATION OF ENDURING POWER OF ATTORNEY
In relation to the enduring power of attorney made by Laura on 3 June 2021 which appointed Steve and Nicole as attorney(s) the Tribunal determines, orders or declares:
not to carry out a review of the revocation of the enduring power of attorney.
FINANCIAL MANAGEMENT APPLICATION
The application for a financial management order is dismissed after hearing.

Catchwords:
EVIDENCE – medical evidence as to person’s capacity – person diagnosed with Alzheimer’s dementia – multiple sets of medical evidence – whether evidence is contradictory – where subsequent evidence showing improvement in condition – whether assessment of a psychiatrist preferred to neuropsychologist – role of neuropsychologist in assessing capacity –
neuropsychologist qualified to administer neuropsychological assessment of capacity – diagnosis of Alzheimer’s dementia does not automatically result in a lack of capacity – evidence not contradictory.
FINANCIAL MANAGEMENT – application for a review of revocation of enduring power of attorney – Tribunal has discretion to decide whether to undertake a review – Tribunal permitted to undertake general survey of evidence produced before deciding whether to exercise discretion – lack of medical evidence that subject person lacked capacity to revoke enduring power of attorney – circumstances around application – evidence of publication of potentially defamatory material by applicant – complaints made by applicant against various legal and medical professionals – multiple applications by applicant – application lacking in substance – application dismissed.
FINANCIAL MANAGEMENT – financial management application – whether subject person incapable of managing affairs – Alzheimer’s diagnosis does not automatically result in incapability to manage affairs – Tribunal required to assess the impact of diagnosis on functional capacity – evidence that subject person able to articulate her financial circumstances and affairs – executive functioning largely intact – Tribunal not satisfied that person incapable of managing her affairs – application dismissed.

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 38(5)-(6), 45(1)(a)-(b), 45(2), 51, 55(1)(b), 65
Civil and Administrative Tribunal Rules 2014 (NSW), r 31(2)
Court Security Act 2005 (NSW), ss 9, 9A-B
Guardianship Act 1987 (NSW), ss 4, 4(d), 4(g), 25G, 25M, 101; Pt 3A
Powers of Attorney Act 2003 (NSW), ss 36, 36(1)-(2), 36(3A)(a)

Cases Cited:
CJ v AKJ [2015] NSWSC 498
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
P v NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re D [2012] NSWSC 1006
Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516

Texts Cited:

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 Laura (a pseudonym)

Details

AGLC: Laura (a pseudonym) [2025] NSWCATGD 12
Case: [2025] NSWCATGD 12
Decision Date: 07 April 2025

CaseChat Overview and Summary

The case before the Court involved Laura, who had been diagnosed with Alzheimer's dementia, and Steve, who sought to challenge Laura's capacity to manage her financial affairs and revoke her enduring power of attorney. The dispute was heard by the Tribunal, which had the discretion to decide whether to review the revocation of the power of attorney and to assess Laura's capacity to manage her financial affairs. The Tribunal was required to consider multiple sets of medical evidence, including assessments from a psychiatrist and a neuropsychologist, and determine whether Laura's condition impaired her capacity to make decisions regarding her financial management and the revocation of her enduring power of attorney.

The primary legal issues the Tribunal had to resolve were whether the medical evidence presented was contradictory and, if so, which assessment should be preferred. Specifically, the Tribunal needed to assess whether the evidence indicated that Laura lacked the capacity to revoke her enduring power of attorney and manage her financial affairs. The Court also had to consider the role of a neuropsychologist in assessing capacity and whether Laura's Alzheimer's diagnosis alone precluded her from having the capacity to make such decisions. Furthermore, the Tribunal needed to weigh the impact of Laura's diagnosis on her functional capacity and determine if her ability to articulate her financial circumstances and affairs was sufficient to demonstrate her capacity.

In its reasoning, the Tribunal found that the medical evidence was not contradictory and that Laura's diagnosis of Alzheimer's dementia did not automatically result in a lack of capacity. The Tribunal preferred the assessment of the psychiatrist over the neuropsychologist, as the former was more directly addressing Laura's capacity in the context of the specific decisions at hand. The Tribunal also considered the broader circumstances of the application, including the applicant's history of making multiple applications, complaints against legal and medical professionals, and the publication of potentially defamatory material. Ultimately, the Tribunal was not satisfied that Laura lacked the capacity to manage her financial affairs or to revoke her enduring power of attorney. Consequently, the Tribunal dismissed the application for a review of the revocation of the enduring power of attorney and the application for a financial management order.

The Tribunal made several orders, including refusing Steve's request for an adjournment of the hearing, allowing Laura to be legally represented, and determining not to carry out a review of the revocation of the enduring power of attorney. The application for a financial management order was dismissed.

Orders

Orders of the court

PROCEDURAL ORDERS

The request by Steve to adjourn the hearing on 7 April 2025 is refused.

Laura is allowed to be legally represented.

REVIEW OF REVOCATION OF ENDURING POWER OF ATTORNEY

In relation to the enduring power of attorney made by Laura on 3 June 2021 which appointed Steve and Nicole as attorney(s) the Tribunal determines, orders or declares:

not to carry out a review of the revocation of the enduring power of attorney.

FINANCIAL MANAGEMENT APPLICATION

The application for a financial management order 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Laura (a pseudonym) [2025] NSWCATGD 12
Hearing dates:	7 April 2025
Date of orders:	7 April 2025
Decision date:	07 April 2025
Jurisdiction:	Guardianship Division
Before:	S L Handebo, Principal Member Dr K J Banerjee, Senior Member (Professional) M Black, General Member (Community)
Decision:	PROCEDURAL ORDERS The request by Steve to adjourn the hearing on 7 April 2025 is refused. Laura is allowed to be legally represented. REVIEW OF REVOCATION OF ENDURING POWER OF ATTORNEY In relation to the enduring power of attorney made by Laura on 3 June 2021 which appointed Steve and Nicole as attorney(s) the Tribunal determines, orders or declares: not to carry out a review of the revocation of the enduring power of attorney. FINANCIAL MANAGEMENT APPLICATION The application for a financial management order is dismissed after hearing.
Catchwords:	EVIDENCE – medical evidence as to person’s capacity – person diagnosed with Alzheimer’s dementia – multiple sets of medical evidence – whether evidence is contradictory – where subsequent evidence showing improvement in condition – whether assessment of a psychiatrist preferred to neuropsychologist – role of neuropsychologist in assessing capacity – neuropsychologist qualified to administer neuropsychological assessment of capacity – diagnosis of Alzheimer’s dementia does not automatically result in a lack of capacity – evidence not contradictory. FINANCIAL MANAGEMENT – application for a review of revocation of enduring power of attorney – Tribunal has discretion to decide whether to undertake a review – Tribunal permitted to undertake general survey of evidence produced before deciding whether to exercise discretion – lack of medical evidence that subject person lacked capacity to revoke enduring power of attorney – circumstances around application – evidence of publication of potentially defamatory material by applicant – complaints made by applicant against various legal and medical professionals – multiple applications by applicant – application lacking in substance – application dismissed. FINANCIAL MANAGEMENT – financial management application – whether subject person incapable of managing affairs – Alzheimer’s diagnosis does not automatically result in incapability to manage affairs – Tribunal required to assess the impact of diagnosis on functional capacity – evidence that subject person able to articulate her financial circumstances and affairs – executive functioning largely intact – Tribunal not satisfied that person incapable of managing her affairs – application dismissed.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 38(5)-(6), 45(1)(a)-(b), 45(2), 51, 55(1)(b), 65 Civil and Administrative Tribunal Rules 2014 (NSW), r 31(2) Court Security Act 2005 (NSW), ss 9, 9A-B Guardianship Act 1987 (NSW), ss 4, 4(d), 4(g), 25G, 25M, 101; Pt 3A Powers of Attorney Act 2003 (NSW), ss 36, 36(1)-(2), 36(3A)(a)
Cases Cited:	CJ v AKJ [2015] NSWSC 498 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Texts Cited: