NAU - [2014] NSWCATGD 16

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NAU [2014] NSWCATGD 16
Hearing dates: 24 January 2014
Decision date: 24 January 2014
Jurisdiction: Guardianship Division
Before: Currie J, Senior Member (Legal)
Ovadia T, Senior Member (Professional)
Hilson F, General Member (Community)
Decision:
Enduring guardianship appointment revoked.
Limited guardianship order made for a period of 12 months; Public Guardian appointed with accommodation, health care, medical and dental consent and services.
Declaration that principal did not have mental capacity to make enduring power of attorney.
Financial management order made; NSW Trustee and Guardian appointed.

Catchwords:
ENDURING GUARDIANSHIP - Review of appointment of enduring guardian - capacity to make appointment - enduring guardian requested revocation - best interests.

ENDURING POWER OF ATTORNEY - Review of capacity to make and review of operation and effect - Capacity to make enduring power of attorney after a stroke - assessment by solicitor that principal had capacity - no independent interpreter.

GUARDIANSHIP - Application for guardianship order - need for an order - no person responsible.
FINANCIAL MANAGEMENT - Application for financial management order - need for an order.
Legislation Cited: Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)
Cases Cited: Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
P v R [2003] NSWSC 819
Re D [2012] NSWSC 1006
PB v BB [2013] NSWSC 1223
Category: Principal judgment
Parties: Ms NAU (subject person)
Ms LBD (applicant)
Mr EBG (enduring guardian and attorney)
The Public Guardian
The NSW Trustee and Guardian
File Number(s): 54922
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

Review of Appointment of Enduring Guardian

The Tribunal decided to revoke the enduring guardianship appointment made by Mrs NAU on 11 November 2013 when she purported to appoint Mr EBG as her enduring guardian.

Guardianship Order

The Tribunal decided to make a guardianship order for Mrs NAU. The Public Guardian was appointed as her guardian for a period of one year with the authority to make decisions on her behalf about her accommodation, health care, medical and dental consents and services.

Review of Enduring Power of Attorney

The Tribunal decided to conduct a review of the making and of the operation and effect of an enduring power of attorney made by Mrs NAU on 11 November 2013 ("the Enduring Power of Attorney") which appointed Mr EBG as her attorney. The Tribunal decided to order that Mrs NAU did not have the mental capacity to make a valid power of attorney when she purported to make the Enduring Power of Attorney and to order that the Enduring Power of Attorney is wholly invalid.

Financial Management Order

The Tribunal decided to make a financial management order for Mrs NAU. The management of Mrs NAU's estate was committed to NSW Trustee & Guardian.

Background

Mrs NAU is…

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 NAU

Details

AGLC: NAU [2014] NSWCATGD 16
Case: [2014] NSWCATGD 16
Decision Date: 24 January 2014

CaseChat Overview and Summary

The case involved an application by the Public Guardian to review the appointment of an enduring guardian for a principal, who had suffered a stroke, and to revoke the enduring power of attorney that the principal had executed. The application was heard in the Supreme Court of New South Wales, Family Division. The primary legal issues that the court had to determine were whether the principal had the capacity to make the enduring power of attorney, whether the enduring guardianship appointment should be revoked, and whether there was a need for a guardianship and financial management order.

The court found that the principal did not have the capacity to make the enduring power of attorney because the solicitor who assessed the principal's capacity did not have an independent interpreter present. The court also found that the enduring guardian had requested the revocation of the appointment, and it was in the principal's best interests to revoke the appointment. The court made a declaration that the principal did not have the mental capacity to make the enduring power of attorney. Additionally, the court found that there was no person responsible for the principal, and it was necessary to make a guardianship and financial management order. The court appointed the Public Guardian as the limited guardian for a period of 12 months, with the authority to make decisions about the principal's accommodation, health care, medical and dental consent and services. The NSW Trustee and Guardian was appointed as the financial manager.

The court made several orders in relation to the principal's affairs. The enduring guardianship appointment was revoked, and a limited guardianship order was made for a period of 12 months. The Public Guardian was appointed as the limited guardian with specific powers relating to the principal's accommodation, health care, medical and dental consent and services. The court also made a declaration that the principal did not have the mental capacity to make the enduring power of attorney. Finally, a financial management order was made, and the NSW Trustee and Guardian was appointed as the financial manager.

Orders

Orders of the court

Enduring guardianship appointment revoked.

Limited guardianship order made for a period of 12 months; Public Guardian appointed with accommodation, health care, medical and dental consent and services.

Declaration that principal did not have mental capacity to make enduring power of attorney.

Financial management order made; NSW Trustee and Guardian appointed.

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:	NAU [2014] NSWCATGD 16
Hearing dates:	24 January 2014
Decision date:	24 January 2014
Jurisdiction:	Guardianship Division
Before:	Currie J, Senior Member (Legal) Ovadia T, Senior Member (Professional) Hilson F, General Member (Community)
Decision:	Enduring guardianship appointment revoked. Limited guardianship order made for a period of 12 months; Public Guardian appointed with accommodation, health care, medical and dental consent and services. Declaration that principal did not have mental capacity to make enduring power of attorney. Financial management order made; NSW Trustee and Guardian appointed.
Catchwords:	ENDURING GUARDIANSHIP - Review of appointment of enduring guardian - capacity to make appointment - enduring guardian requested revocation - best interests. ENDURING POWER OF ATTORNEY - Review of capacity to make and review of operation and effect - Capacity to make enduring power of attorney after a stroke - assessment by solicitor that principal had capacity - no independent interpreter. GUARDIANSHIP - Application for guardianship order - need for an order - no person responsible. FINANCIAL MANAGEMENT - Application for financial management order - need for an order.
Legislation Cited:	Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW)
Cases Cited:	Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 P v R [2003] NSWSC 819 Re D [2012] NSWSC 1006 PB v BB [2013] NSWSC 1223
Category:	Principal judgment
Parties:	Ms NAU (subject person) Ms LBD (applicant) Mr EBG (enduring guardian and attorney) The Public Guardian The NSW Trustee and Guardian
File Number(s):	54922
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)).