NFM - [2018] NSWCATGD 14

NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: NFM [2018] NSWCATGD 14
Hearing dates: 19 April 2018
Date of orders: 19 April 2018
Decision date: 19 April 2018
Jurisdiction: Guardianship Division
Before: A R Boxall, Senior Member (Legal)
Dr S E Taylor, Senior Member (Professional)
J L Newman, General Member (Community)
Decision:
In relation to the enduring guardian appointment made
by NFM on 9 January 2017 appointing DAT the Tribunal orders, directs or declares:

The appointment of DAT as an enduring guardian is revoked.

The application for review is treated as if it were an application under the Guardianship Act 1987 for a guardianship order for NFM.

1. A guardianship order is made for NFM.
2. The Public Guardian and DAT [Address removed for publication.] are appointed separately as the guardians.
3. This is a continuing guardianship order for a period
of 12 months from 19 April 2018.
4. This is a limited guardianship order giving the guardian(s) custody of NFM to the extent necessary to carry out the functions below.

FUNCTIONS: DAT

5. DAT has the following functions:

a) Health care

To decide what health care NFM may receive.

b) Medical/Dental consent

To make substitute decisions about proposed minor or
major medical or dental treatment, where NFM is not capable of giving a valid consent.

FUNCTIONS: The Public Guardian

6. The Public Guardian has the following functions:

a) Accommodation

To decide where NFM may reside.

b) Services

To make decisions about services to be provided to NFM.

CONDITIONS:

7. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring NFM to an understanding of the issues and to obtain and consider their views before making significant decisions.

In relation to the enduring power of attorney made by
NFM on 17 January 2017 which appointed DAT as attorney(s) the Tribunal determines, orders or declares:

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

Not to make an order under section 36 of the Powers
of Attorney Act 2003. The application for review of the
enduring power of attorney is treated as an application
for a financial management order under Part 3A of the
Guardianship Act 1987.

1. The estate of NFM is subject to
management under the NSW Trustee and Guardian
Act 2009.
2. The management of the estate of NFM is committed to the NSW Trustee and
Guardian.

In relation to the enduring power of attorney made by
NFM on 2 April 2014 which appointed EZO and BYW as attorney(s) the Tribunal determines, orders or declares:

to carry out a review of the revocation of the enduring
power of attorney.

NFM did not have the mental capacity to revoke an enduring power of attorney.

In relation to the enduring power of attorney made by
NFM on 2 September 2015 which appointed EZO and BYW as attorney(s) the Tribunal determines, orders or declares:

to carry out a review…

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 NFM

Details

AGLC: NFM [2018] NSWCATGD 14
Case: [2018] NSWCATGD 14
Decision Date: 19 April 2018

CaseChat Overview and Summary

The case involved NFM, who appointed DAT as an enduring guardian and attorney. The dispute centred on whether NFM had the requisite capacity to make these appointments. The matter was heard in the Tribunal, which ultimately revoked the appointment of DAT as an enduring guardian and ordered a guardianship for NFM, appointing both DAT and the Public Guardian as guardians. The Tribunal also reviewed the enduring powers of attorney made by NFM, finding that NFM did not have the requisite capacity to revoke them.

The central legal issues before the Tribunal were whether NFM had the necessary capacity to appoint an enduring guardian and attorney, and whether these appointments were valid. The test for determining capacity involved assessing NFM's specific understanding of the nature and effect of the powers conferred by these documents. The Tribunal needed to weigh expert medical evidence and consider whether NFM had the requisite specific understanding, rather than a general appreciation, of the powers being granted.

The Tribunal concluded that NFM did not possess the requisite specific understanding of the nature and effect of the powers conferred by the enduring guardian and attorney appointments. The evidence showed that NFM had only a general understanding of these powers, rather than the specific understanding required by law. As a result, the Tribunal revoked the appointment of DAT as an enduring guardian and ordered a guardianship for NFM, appointing both DAT and the Public Guardian as guardians. The Tribunal also found that NFM did not have the mental capacity to revoke the earlier enduring powers of attorney.

The final orders of the Tribunal included the revocation of DAT's appointment as enduring guardian, the establishment of a guardianship for NFM, and the appointment of DAT and the Public Guardian as guardians with specified functions. The Tribunal also ordered that NFM's estate be managed by the NSW Trustee and Guardian under the NSW Trustee and Guardian Act 2009.

Orders

Orders of the court

In relation to the enduring guardian appointment made

by NFM on 9 January 2017 appointing DAT the Tribunal orders, directs or declares:

The appointment of DAT as an enduring guardian is revoked.

The application for review is treated as if it were an application under the Guardianship Act 1987 for a guardianship order for NFM.

1. A guardianship order is made for NFM.

2. The Public Guardian and DAT [Address removed for publication.] are appointed separately as the guardians.

3. This is a continuing guardianship order for a period

of 12 months from 19 April 2018.

4. This is a limited guardianship order giving the guardian(s) custody of NFM to the extent necessary to carry out the functions below.

FUNCTIONS: DAT

5. DAT has the following functions:

a) Health care

To decide what health care NFM may receive.

b) Medical/Dental consent

To make substitute decisions about proposed minor or

major medical or dental treatment, where NFM is not capable of giving a valid consent.

FUNCTIONS: The Public Guardian

6. The Public Guardian has the following functions:

a) Accommodation

To decide where NFM may reside.

b) Services

To make decisions about services to be provided to NFM.

CONDITIONS:

7. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring NFM to an understanding of the issues and to obtain and consider their views before making significant decisions.

In relation to the enduring power of attorney made by

NFM on 17 January 2017 which appointed DAT as attorney(s) the Tribunal determines, orders or declares:

to carry out a review of the making of the enduring

power of attorney.

Not to make an order under section 36 of the Powers

of Attorney Act 2003. The application for review of the

enduring power of attorney is treated as an application

for a financial management order under Part 3A of the

Guardianship Act 1987.

1. The estate of NFM is subject to

management under the NSW Trustee and Guardian

Act 2009.

2. The management of the estate of NFM is committed to the NSW Trustee and

Guardian.

In relation to the enduring power of attorney made by

NFM on 2 April 2014 which appointed EZO and BYW as attorney(s) the Tribunal determines, orders or declares:

to carry out a review of the revocation of the enduring

power of attorney.

NFM did not have the mental capacity to revoke an enduring power of attorney.

In relation to the enduring power of attorney made by

NFM on 2 September 2015 which appointed EZO and BYW as attorney(s) the Tribunal determines, orders or declares:

to carry out a review of the revocation of the enduring

power of attorney.

NFM did not have the mental capacity to revoke an enduring power of attorney.

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:	NFM [2018] NSWCATGD 14
Hearing dates:	19 April 2018
Date of orders:	19 April 2018
Decision date:	19 April 2018
Jurisdiction:	Guardianship Division
Before:	A R Boxall, Senior Member (Legal) Dr S E Taylor, Senior Member (Professional) J L Newman, General Member (Community)
Decision:	In relation to the enduring guardian appointment made by NFM on 9 January 2017 appointing DAT the Tribunal orders, directs or declares: The appointment of DAT as an enduring guardian is revoked. The application for review is treated as if it were an application under the Guardianship Act 1987 for a guardianship order for NFM. 1. A guardianship order is made for NFM. 2. The Public Guardian and DAT [Address removed for publication.] are appointed separately as the guardians. 3. This is a continuing guardianship order for a period of 12 months from 19 April 2018. 4. This is a limited guardianship order giving the guardian(s) custody of NFM to the extent necessary to carry out the functions below. FUNCTIONS: DAT 5. DAT has the following functions: a) Health care To decide what health care NFM may receive. b) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where NFM is not capable of giving a valid consent. FUNCTIONS: The Public Guardian 6. The Public Guardian has the following functions: a) Accommodation To decide where NFM may reside. b) Services To make decisions about services to be provided to NFM. CONDITIONS: 7. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring NFM to an understanding of the issues and to obtain and consider their views before making significant decisions. In relation to the enduring power of attorney made by NFM on 17 January 2017 which appointed DAT as attorney(s) the Tribunal determines, orders or declares: to carry out a review of the making of the enduring power of attorney. Not to make an order under section 36 of the Powers of Attorney Act 2003. The application for review of the enduring power of attorney is treated as an application for a financial management order under Part 3A of the Guardianship Act 1987. 1. The estate of NFM is subject to management under the NSW Trustee and Guardian Act 2009. 2. The management of the estate of NFM is committed to the NSW Trustee and Guardian. In relation to the enduring power of attorney made by NFM on 2 April 2014 which appointed EZO and BYW as attorney(s) the Tribunal determines, orders or declares: to carry out a review of the revocation of the enduring power of attorney. NFM did not have the mental capacity to revoke an enduring power of attorney. In relation to the enduring power of attorney made by NFM on 2 September 2015 which appointed EZO and BYW as attorney(s) the Tribunal determines, orders or declares: to carry out a review…