MZN - [2024] NSWCATGD 3

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MZN [2024] NSWCATGD 3
Hearing dates: 29 February 2024
Date of orders: 29 February 2024
Decision date: 29 February 2024
Jurisdiction: Guardianship Division
Before: S Pinto, Senior Member (Legal)
S E Taylor, Senior Member (Professional)
Emeritus Professor P J Foreman AM, General Member (Community)
Decision:
REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT
The application for a review of the enduring guardianship instrument is dismissed after hearing.
REVIEW OF AN ENDURING POWER OF ATTORNEY
In relation to the enduring power of attorney made by MZN on 11 April 2022 which appointed OYE as attorney(s) the Tribunal determines, orders or declares:
to carry out a review of the making and operation and effect of the enduring power of attorney.
Not to make an order under section 36 of the Powers of Attorney Act 2003 (NSW) and dismiss the application.
FINANCIAL MANAGEMENT APPLICATION
1. The estate of MZN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. QKE, of [Address removed for publication.], is appointed as the financial manager of the estate.
NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:
REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – where enduring power of attorney not operating in the principal’s best interests – decision to treat application to review an enduring power of attorney as an application for a financial management order – principal incapable of managing own financial affairs – suitability of proposed private manager – private financial manager appointed – order made
REVIEW OF ENDURING GUARDIANSHIP – principal resides in an aged care facility – principal diagnosed with dementia – finding that the enduring guardian is making decisions in the principal’s best interests – no evidence that the enduring guardian is preventing access to the principal – decision not to carry out a review of the enduring guardianship appointment – no order made – application dismissed

Legislation Cited:
Guardianship Act 1987 (NSW), ss 4, 6HB, 6J, 6K, 6K(2)-(3), 6MA; Pt 3A
Powers of Attorney Act 2003 (NSW), ss 33(2), 36(1), 36(3)-(4), 37(1), 50(3)

Cases Cited:
Gibbons v Wright (1954) 91 CLR 423
Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Review of an Enduring Guardianship Appointment

MZN (the person)
NAN (applicant)
OYE (enduring guardian)
Public Guardian
NSW Trustee and Guardian

003: Review of an Enduring Power of Attorney

MZN (the person)
NAN (applicant)
OYE (attorney)
QKE (joined party, other non-party)
NSW Trustee and Guardian

004: Financial Management Application
MZN (the person)
NAN (applicant)
OYE (attorney)
NSW Trustee and Guardian
Representation: Nil.

File Number(s): NCAT 2023/00247651
Publication restriction: Decisions of the Guardianship Division of…

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.

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Details

AGLC: MZN [2024] NSWCATGD 3
Case: [2024] NSWCATGD 3
Decision Date: 29 February 2024

CaseChat Overview and Summary

The case before the court involved MZN, who holds both an enduring power of attorney and an enduring guardianship appointment. The application to review these instruments arose from concerns about the operation and effect of the enduring power of attorney and the enduring guardianship. The court was tasked with determining whether to review the enduring power of attorney and appoint a financial manager, and whether to review the enduring guardianship appointment. The primary concern was whether the enduring power of attorney and the enduring guardian were acting in MZN's best interests, given MZN's diagnosis of dementia and residence in an aged care facility.

The legal issues before the court included whether the enduring power of attorney was operating in MZN's best interests, and whether the enduring guardian was making decisions that aligned with MZN's best interests. The court also needed to decide whether to appoint a financial manager under the NSW Trustee and Guardian Act 2009, and if the enduring guardianship appointment required review. The court considered MZN's incapacity to manage their own financial affairs and the suitability of a proposed private financial manager.

The court found that MZN was incapable of managing their own financial affairs and that the enduring power of attorney was not operating in MZN's best interests. However, the court determined that the enduring guardian was making decisions in MZN's best interests and there was no evidence that the enduring guardian was preventing access to MZN. The court dismissed the application to review the enduring guardianship appointment. In relation to the enduring power of attorney, the court decided not to make an order under section 36 of the Powers of Attorney Act 2003 but to dismiss the application for a review. Instead, the court appointed QKE as the financial manager of MZN's estate. The financial manager was directed to obtain all necessary authorities from the NSW Trustee and Guardian before dealing with the estate, other than to protect the assets.

The final orders of the court were to dismiss the application for a review of the enduring guardianship appointment and to dismiss the application for a review of the enduring power of attorney. The court appointed QKE as the financial manager of MZN's estate, subject to obtaining all necessary authorities from the NSW Trustee and Guardian. The estate was to be managed under the NSW Trustee and Guardian Act 2009, with QKE authorised to protect the assets until the necessary authorities were obtained.

Orders

Orders of the court

REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT

The application for a review of the enduring guardianship instrument is dismissed after hearing.

REVIEW OF AN ENDURING POWER OF ATTORNEY

In relation to the enduring power of attorney made by MZN on 11 April 2022 which appointed OYE as attorney(s) the Tribunal determines, orders or declares:

to carry out a review of the making and operation and effect of the enduring power of attorney.

Not to make an order under section 36 of the Powers of Attorney Act 2003 (NSW) and dismiss the application.

FINANCIAL MANAGEMENT APPLICATION

1. The estate of MZN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. QKE, of [Address removed for publication.], is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

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

Full text does not contain this section.

Medium Neutral Citation:	MZN [2024] NSWCATGD 3
Hearing dates:	29 February 2024
Date of orders:	29 February 2024
Decision date:	29 February 2024
Jurisdiction:	Guardianship Division
Before:	S Pinto, Senior Member (Legal) S E Taylor, Senior Member (Professional) Emeritus Professor P J Foreman AM, General Member (Community)
Decision:	REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT The application for a review of the enduring guardianship instrument is dismissed after hearing. REVIEW OF AN ENDURING POWER OF ATTORNEY In relation to the enduring power of attorney made by MZN on 11 April 2022 which appointed OYE as attorney(s) the Tribunal determines, orders or declares: to carry out a review of the making and operation and effect of the enduring power of attorney. Not to make an order under section 36 of the Powers of Attorney Act 2003 (NSW) and dismiss the application. FINANCIAL MANAGEMENT APPLICATION 1. The estate of MZN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. QKE, of [Address removed for publication.], is appointed as the financial manager of the estate. NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.
Catchwords:	REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – where enduring power of attorney not operating in the principal’s best interests – decision to treat application to review an enduring power of attorney as an application for a financial management order – principal incapable of managing own financial affairs – suitability of proposed private manager – private financial manager appointed – order made REVIEW OF ENDURING GUARDIANSHIP – principal resides in an aged care facility – principal diagnosed with dementia – finding that the enduring guardian is making decisions in the principal’s best interests – no evidence that the enduring guardian is preventing access to the principal – decision not to carry out a review of the enduring guardianship appointment – no order made – application dismissed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 6HB, 6J, 6K, 6K(2)-(3), 6MA; Pt 3A Powers of Attorney Act 2003 (NSW), ss 33(2), 36(1), 36(3)-(4), 37(1), 50(3)
Cases Cited:	Gibbons v Wright (1954) 91 CLR 423 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Review of an Enduring Guardianship Appointment MZN (the person) NAN (applicant) OYE (enduring guardian) Public Guardian NSW Trustee and Guardian 003: Review of an Enduring Power of Attorney MZN (the person) NAN (applicant) OYE (attorney) QKE (joined party, other non-party) NSW Trustee and Guardian 004: Financial Management Application MZN (the person) NAN (applicant) OYE (attorney) NSW Trustee and Guardian
Representation:	Nil.
File Number(s):	NCAT 2023/00247651
Publication restriction:	Decisions of the Guardianship Division of…