NGK - [2024] NSWCATGD 12

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NGK [2024] NSWCATGD 12
Hearing dates: 19 June 2024
Date of orders: 19 June 2024
Decision date: 19 June 2024
Jurisdiction: Guardianship Division
Before: J McAteer Senior Member
S Lee Senior Member (Professional)
A Healy General Member (Community)
Decision:
001: Review of an Enduring Power of Attorney
The application is dismissed because the Tribunal has no jurisdiction, pursuant to s 55(1)(b) of the NSW Civil and Administrative Tribunal Act 2013 (NSW).
002: Financial Management application
1. The estate of NGK is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. BFK of [Address removed for publication.], ECK of [Address removed for publication.], MBK of [Address removed for publication.], and QNK of [Address removed for publication.] are appointed jointly and severally as the financial managers of the estate.
NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.

Catchwords:
REVIEW OF AN ENDURING POWER OF ATTORNEY – consideration of the Tribunal’s jurisdiction under the Powers of Attorney Act 2003 (NSW) – finding that the instrument is not an enduring power of attorney – the Tribunal has no jurisdiction to review a general power of attorney – application dismissed
FINANCIAL MANAGEMENT – application for a financial management order – subject person diagnosed with dementia – subject person in respite care – subject person incapable of managing their own affairs – power of attorney no longer operable – need for another person to manage subject person’s affairs – private managers suitable to be appointed – private managers appointed on a joint and several basis – order made

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 55(1)(b)
Guardianship Act 1987 (NSW), ss 4, 25G, 25G(a), 25M
Powers of Attorney Act 2003 (NSW), ss 19, 26, 37, 38(1)-(2)

Cases Cited:
Application by AMAM; Re SAM [2011] NSWSC 503
CJ v AKJ [2015] NSWSC 498
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
M v M [2013] NSWSC 1495
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Review of an Enduring Power of Attorney

NGK (the person)
MBK (applicant, attorney)
NSW Trustee and Guardian

002: Financial Management Application
NGK (the person)
MBK (applicant, attorney)
ECK (joined party)
QNK (joined party, other non-party)
BFK (joined party)
NSW Trustee and Guardian
Representation: S Khau, solicitor for NGK’s family

File Number(s): 2023/00422692
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

APPLICATION FOR REVIEW OF ENDURING POWER OF ATTORNEY APPOINTMENT AND FINANCIAL MANGEMENT APPLICATION

What…

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 NGK

Details

AGLC: NGK [2024] NSWCATGD 12
Case: [2024] NSWCATGD 12
Decision Date: 19 June 2024

CaseChat Overview and Summary

In the matter of NGK, the NSW Civil and Administrative Tribunal reviewed an application regarding an enduring power of attorney. The primary concern was whether the Tribunal had jurisdiction to review the instrument in question, which was argued to be an enduring power of attorney. The dispute also involved a request for a financial management order due to the subject person's incapacity, diagnosed with dementia and residing in respite care, making them unable to manage their own affairs.

The central legal issue the court had to address was whether the instrument in question constituted an enduring power of attorney, which would confer jurisdiction on the Tribunal to review it under the Powers of Attorney Act 2003 (NSW). If the instrument was not an enduring power of attorney, the Tribunal would lack jurisdiction, and the application would need to be dismissed. Additionally, the court had to determine whether a financial management order was necessary and if the proposed private managers were suitable for the role.

The Tribunal concluded that the instrument in question did not meet the criteria of an enduring power of attorney and, therefore, did not have jurisdiction to review it under s 55(1)(b) of the NSW Civil and Administrative Tribunal Act 2013 (NSW). Consequently, the application for review was dismissed. Regarding the financial management order, the Tribunal found that the subject person's condition warranted such an order and that the proposed private managers were suitable for the task. Therefore, the estate of NGK was placed under management, and the four private managers were appointed jointly and severally as financial managers.

The court made two key orders: first, it dismissed the review application due to a lack of jurisdiction. Second, it appointed the four private managers as joint and several financial managers of NGK's estate under the NSW Trustee and Guardian Act 2009 (NSW), subject to obtaining necessary authorities from the NSW Trustee and Guardian.

Orders

Orders of the court

001: Review of an Enduring Power of Attorney

The application is dismissed because the Tribunal has no jurisdiction, pursuant to s 55(1)(b) of the NSW Civil and Administrative Tribunal Act 2013 (NSW).

002: Financial Management application

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

2. BFK of [Address removed for publication.], ECK of [Address removed for publication.], MBK of [Address removed for publication.], and QNK of [Address removed for publication.] are appointed jointly and severally as the financial managers of the estate.

NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have 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:	NGK [2024] NSWCATGD 12
Hearing dates:	19 June 2024
Date of orders:	19 June 2024
Decision date:	19 June 2024
Jurisdiction:	Guardianship Division
Before:	J McAteer Senior Member S Lee Senior Member (Professional) A Healy General Member (Community)
Decision:	001: Review of an Enduring Power of Attorney The application is dismissed because the Tribunal has no jurisdiction, pursuant to s 55(1)(b) of the NSW Civil and Administrative Tribunal Act 2013 (NSW). 002: Financial Management application 1. The estate of NGK is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. BFK of [Address removed for publication.], ECK of [Address removed for publication.], MBK of [Address removed for publication.], and QNK of [Address removed for publication.] are appointed jointly and severally as the financial managers of the estate. NOTE: The financial managers are not authorised to deal with the estate (other than to protect the assets) until they have obtained all necessary authorities from the NSW Trustee and Guardian.
Catchwords:	REVIEW OF AN ENDURING POWER OF ATTORNEY – consideration of the Tribunal’s jurisdiction under the Powers of Attorney Act 2003 (NSW) – finding that the instrument is not an enduring power of attorney – the Tribunal has no jurisdiction to review a general power of attorney – application dismissed FINANCIAL MANAGEMENT – application for a financial management order – subject person diagnosed with dementia – subject person in respite care – subject person incapable of managing their own affairs – power of attorney no longer operable – need for another person to manage subject person’s affairs – private managers suitable to be appointed – private managers appointed on a joint and several basis – order made
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 55(1)(b) Guardianship Act 1987 (NSW), ss 4, 25G, 25G(a), 25M Powers of Attorney Act 2003 (NSW), ss 19, 26, 37, 38(1)-(2)
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 CJ v AKJ [2015] NSWSC 498 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Review of an Enduring Power of Attorney NGK (the person) MBK (applicant, attorney) NSW Trustee and Guardian 002: Financial Management Application NGK (the person) MBK (applicant, attorney) ECK (joined party) QNK (joined party, other non-party) BFK (joined party) NSW Trustee and Guardian
Representation:	S Khau, solicitor for NGK’s family
File Number(s):	2023/00422692
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.