MCQ - [2014] NSWCATGD 29

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MCQ [2014] NSWCATGD 29
Hearing dates: 13 August 2014
Decision date: 13 August 2014
Jurisdiction: Guardianship Division
Before: Simpson J, Senior Member (Legal)
Creasey H, Senior Member (Professional)
Porter L, General Member (Community)
Decision:
Guardianship application dismissed.
Financial management order made; private manager appointed.
Enduring power of attorney reviewed; no orders made; application dismissed.

Catchwords:
GUARDIANSHIP - application for guardianship order - standing - genuine concern - person responsible - enduring guardianship appointment made - family conflict - allegations that enduring guardian restricting communication and access to family - subject person's views - no need for an order.

FINANCIAL MANAGEMENT - application for financial management order - standing - conflict of interest - capability to manage - complexity of estate - family businesses - suitability for appointment - no fees or remuneration proposed to be charged by professional accountant.
ENDURING POWER OF ATTORNEY - application to review operation and effect - gifts made to attorney - attorney entitled to benefits under the power - conflict of interest.
Legislation Cited: Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)
Cases Cited: ACJ [2007] NSWGT 15
QAG [2007] NSWGT 12
KTC [2011] NSWGT 21
IF v IG & Others [2004] NSWADTAP 3
PY v RJS [1992] 2 NSWLR 700
H v H, unreported, Supreme Court of NSW, Justice Young, 20 March 2000
Re GHI [2005] NSWSC 581
P v R [2003] NSWSC 819
Re D [2012] NSWSC 1006
Re R [2000] NSWSC 886
Holt v Protective Commissioner [1993] 31 NSWLR 227
SH v Protective Commissioner [2006] ADTAP 22
LA v Protective Commissioner [2004] NSWADTAP 39
M v M [2013] NSWSC 1495
H v H, Supreme Court Protective Division, unreported, Hodgson J, 31 March 1994
Re L [2000] NSWSC 721
Category: Principal judgment
Parties: Mr MCQ (subject person)
Mrs MSQ (spouse, attorney and enduring guardian)
Mr PMN (applicant)
The Public Guardian
The NSW Trustee and Guardian
File Number(s): 55165
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 dismissed the application for a guardianship order. The Tribunal appointed Mr SXA as financial manager for Mr MCQ subject to the oversight and direction of the NSW Trustee and Guardian. The Tribunal decided to make no order following its review of the enduring power of attorney.

BACKGROUND

Mr MCQ is an 80-year old man with cognitive and physical disabilities and a range of health conditions. He lives at an aged care facility on the North Shore of Sydney. Mr MCQ has three adult children from his first marriage, Mr PMN, Mr NUH and Ms DVB. For 34 years he has been married to his second wife Mrs MSQ. He has two stepchildren, Mr LKJ and Ms TWD.

In 2002, Mr MCQ signed an enduring…

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 MCQ

Details

AGLC: MCQ [2014] NSWCATGD 29
Case: [2014] NSWCATGD 29
Decision Date: 13 August 2014

CaseChat Overview and Summary

The case involved an application for a guardianship order, a financial management order, and a review of an enduring power of attorney, all concerning the welfare and financial affairs of a subject person. The dispute arose from allegations of family conflict and concerns about the subject person's best interests and the appropriateness of an enduring guardian's actions. The court was required to determine whether a guardianship order was necessary, who should manage the subject person's financial affairs, and whether the operation and effect of the enduring power of attorney should be reviewed.

The legal issues included the applicant's standing to apply for a guardianship order, whether there was a genuine concern for the subject person's welfare, and the appropriateness of the enduring guardian's actions. Regarding the financial management order, the court had to assess the standing of the applicant, the conflict of interest, the subject person's capability to manage their own affairs, and the suitability of the proposed private manager. The review of the enduring power of attorney involved examining the gifts made to the attorney, the attorney's entitlement to benefits under the power, and the presence of a conflict of interest.

The court found that there was no need for a guardianship order as the enduring guardian was fulfilling their responsibilities adequately, and the subject person's views and interests were being considered. For the financial management order, the court appointed a private manager, a professional accountant, who proposed to act without fees or remuneration, thereby mitigating concerns about conflict of interest. The court decided not to make any orders regarding the review of the enduring power of attorney as there was no evidence of abuse of power or conflict of interest. The application to review was dismissed.

The court dismissed the guardianship application, made a financial management order appointing a private manager, and dismissed the application to review the enduring power of attorney.

Orders

Orders of the court

Guardianship application dismissed.

Financial management order made; private manager appointed.

Enduring power of attorney reviewed; no orders made; application dismissed.

Background

Background to the litigation

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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:	MCQ [2014] NSWCATGD 29
Hearing dates:	13 August 2014
Decision date:	13 August 2014
Jurisdiction:	Guardianship Division
Before:	Simpson J, Senior Member (Legal) Creasey H, Senior Member (Professional) Porter L, General Member (Community)
Decision:	Guardianship application dismissed. Financial management order made; private manager appointed. Enduring power of attorney reviewed; no orders made; application dismissed.
Catchwords:	GUARDIANSHIP - application for guardianship order - standing - genuine concern - person responsible - enduring guardianship appointment made - family conflict - allegations that enduring guardian restricting communication and access to family - subject person's views - no need for an order. FINANCIAL MANAGEMENT - application for financial management order - standing - conflict of interest - capability to manage - complexity of estate - family businesses - suitability for appointment - no fees or remuneration proposed to be charged by professional accountant. ENDURING POWER OF ATTORNEY - application to review operation and effect - gifts made to attorney - attorney entitled to benefits under the power - conflict of interest.
Legislation Cited:	Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW)
Cases Cited:	ACJ [2007] NSWGT 15 QAG [2007] NSWGT 12 KTC [2011] NSWGT 21 IF v IG & Others [2004] NSWADTAP 3 PY v RJS [1992] 2 NSWLR 700 H v H, unreported, Supreme Court of NSW, Justice Young, 20 March 2000 Re GHI [2005] NSWSC 581 P v R [2003] NSWSC 819 Re D [2012] NSWSC 1006 Re R [2000] NSWSC 886 Holt v Protective Commissioner [1993] 31 NSWLR 227 SH v Protective Commissioner [2006] ADTAP 22 LA v Protective Commissioner [2004] NSWADTAP 39 M v M [2013] NSWSC 1495 H v H, Supreme Court Protective Division, unreported, Hodgson J, 31 March 1994 Re L [2000] NSWSC 721
Category:	Principal judgment
Parties:	Mr MCQ (subject person) Mrs MSQ (spouse, attorney and enduring guardian) Mr PMN (applicant) The Public Guardian The NSW Trustee and Guardian
File Number(s):	55165
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)).