NIU - [2016] NSWCATGD 77

NSW Civil and Administrative Tribunal

New South Wales

Case Name:	NIU
Medium Neutral Citation:	[2016] NSWCATGD 77
Hearing Date(s):	8 November 2016
Date of Orders:	8 November 2016
Decision Date:	8 November 2016
Jurisdiction:	Guardianship Division
Before:	R L Bailey, Senior Member (Legal) Dr S L Thompson, Senior Member (Professional) D Crowley, General Member (Community)
Decision:	The Tribunal orders that: 1. The estate of Mrs NIU is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of Mrs NIU is committed to the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within 12 months.
Catchwords:	GUARDIANSHIP – application for a financial management order – best interests – conflict of interest between financial interests of subject person and attorney – discretion to make a financial management order – power of attorney not operating to meet subject person’s best interests – consideration of who to appoint as financial manager – reviewable financial management order made – appointment of the NSW Trustee and Guardian as financial manager
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 25M
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:	Nil
Category:	Principal judgment
Parties:	Mrs NIU (subject person) Ms CYC (applicant) Mr HZU (a person appointed by a power of attorney) Mr DBU (a person appointed by a power of attorney) The NSW Trustee and Guardian
Representation:	Nil
File Number(s):	62890
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

FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

The Tribunal committed the estate of Mrs NIU to the management of the NSW Trustee and Guardian. The Tribunal ordered a review period of one year.

Background

Mrs NIU is an 86-year-old woman, who has been diagnosed with advanced dementia. She lives in a retirement village. Her husband, Mr SAU, passed away in June 2016. She has two sons: Mr HZU and Mr DBU.
The Tribunal has been advised that on 17 August 2004, Mrs NIU appointed Mr DBU and Mr HZU with her power of attorney.
On 14 June 2016, the General Manager of the retirement village, Ms CYC, lodged an application for the appointment of a financial manager for Mrs NIU. The application states that Mrs NIU’s accommodation fees were significantly in arrears and that the contract, required by law, for Mrs NIU to enter permanent care and other paperwork has not been completed by the attorneys, despite numerous requests.
The matter was initially listed on 2 September…

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 NIU

Details

AGLC: NIU [2016] NSWCATGD 77
Case: [2016] NSWCATGD 77
Decision Date: 8 November 2016

CaseChat Overview and Summary

In this case, the subject of a guardianship application, Mrs NIU, found herself at the centre of a dispute over her financial management. The application was brought by her daughter, who sought a financial management order to oversee her mother's financial affairs. The nature of the conflict centred around whether the power of attorney executed by Mrs NIU adequately served her best interests, given that it potentially conflicted with her financial interests. The matter was heard by the Guardianship Tribunal of New South Wales, which had to determine whether the existing power of attorney was sufficient or if a new financial manager was required.

The primary legal issues revolved around the Tribunal's discretion to make a financial management order when the power of attorney was not operating in Mrs NIU's best interests. The court needed to consider whether the existing attorney was suitable and whether the appointment of a new financial manager was warranted. Furthermore, the court had to evaluate the factors that should guide the appointment of a new financial manager, including the necessity to avoid conflicts of interest and to ensure the best interests of Mrs NIU were being met.

In addressing these issues, the Tribunal determined that the existing power of attorney was not functioning in Mrs NIU's best interests due to a conflict of interest. The Tribunal exercised its discretion to make a financial management order and appointed the NSW Trustee and Guardian as the financial manager. The court based its decision on the need to safeguard Mrs NIU's financial interests and to ensure that the management of her estate was conducted in a manner that truly reflected her best interests. The Tribunal concluded that the NSW Trustee and Guardian was best suited for this role given their capacity to act impartially and in Mrs NIU's best interests.

The final orders of the Tribunal mandated that the estate of Mrs NIU be managed under the NSW Trustee and Guardian Act 2009. The management of her estate was committed to the NSW Trustee and Guardian. The Tribunal also stipulated that this order should be reviewed within 12 months to ensure ongoing compliance with Mrs NIU's best interests.

Orders

Orders of the court

The Tribunal orders that:

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

2. The management of the estate of Mrs NIU is committed to the NSW Trustee and Guardian.

3. This order be reviewed by the Tribunal within 12 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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