NRE
[2015] NSWCATGD 62
•26 May 2015
|
New South Wales |
Case Name: | NRE |
Medium Neutral Citation: | [2015] NSWCATGD 62 |
Hearing Date(s): | 26 May 2015 |
Date of Orders: | 26 May 2015 |
Decision Date: | 26 May 2015 |
Jurisdiction: | Guardianship Division |
Before: | B Tearle, Senior Member (Legal) |
Decision: | The Tribunal: |
Catchwords: | GUARDIANSHIP – application for financial management order – review of operation of enduring power of attorney – termination of power caused by death of attorney – power of Tribunal to review enduring instrument – decision to conduct review under s 36(1) of the Powers of Attorney Act 2003 (NSW) – decision not to make any order: s 36(2) of the Powers of Attorney Act – capability to manage one’s own affairs – possibility of decision being made on an informal basis – discretion to make a financial management order – consideration of who to appoint as financial manager – appointment of private financial manager |
Legislation Cited: | Guardianship Act 1987 (NSW) |
Cases Cited: | Nil |
Texts Cited: | Nil |
Category: | Principal judgment |
Parties: | Mrs NRE (the subject person) |
Representation: | Nil |
File Number(s): | 58930 |
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
What the Tribunal decided
The Tribunal:
determined to carry out a review of the operation and effect of the enduring power of attorney made by Mrs NRE on 24 October 2011, which appointed Mrs EMT and Mrs DSF as her attorneys
determined not to make any order under s 36 of the Powers of Attorney Act 2003 (NSW) in relation to the operation and effect of that enduring power of attorney
dismissed the application made by Miss FAE for a review of the operation and effect of that enduring power of attorney, and
appointed Mrs EMT as Mrs NRE’s financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian
Background
Mrs NRE, who is 79 years old, is currently a resident of an aged care facility in West Sydney. Mrs NRE is reported to have moderate dementia, and to have been assessed as having severe cognitive impairment.
On 24 October 2011, Mrs NRE appointed two of her three daughters, Mrs EMT and Mrs DSF, to be her enduring guardians, with the authority to act jointly. Mrs NRE inserted a specific provision into the instrument of appointment to ensure that the death, resignation or incapacity of one of her joint enduring guardians would not operate to terminate the appointment of any other joint enduring guardian.
Also on 24 October 2011, Mrs NRE appointed Mrs EMT and Mrs DSF as her attorneys under an enduring power of attorney, once again with the authority to act jointly.
Mrs DSF died on 2 May 2014.
Miss FAE, a daughter of Mrs NRE, applied to the Tribunal on 6 March 2015, seeking the appointment of a financial manager for her mother. Later, on 23 March 2015, Miss FAE lodged a separate application, seeking a review of the enduring power of attorney that her mother had executed on 24 October 2011.
Conduct of the hearing
There was no dispute in this matter.
A list of the parties to the proceedings and witnesses at the hearing is contained in an appendix to these Reasons for Decision. [Appendix removed for publication.]
THE EVIDENCE AND THE TRIBUNAL'S REASONING
REVIEW OF ENDURING POWER OF ATTORNEY
Reasons for this application
On 24 October 2011, Mrs NRE appointed two of her three daughters, Mrs EMT and Mrs DSF, to be her attorneys under an enduring power of attorney, with the authority to act jointly. Mrs DSF died on 2 May 2014.
Miss FAE applied to the Tribunal on 23 March 2015, seeking a review of the enduring power of attorney that her mother had executed on 24 October 2011. In her application, Miss FAE claimed that the enduring power of attorney executed by Mrs NRE is now void, following from the death of Mrs DSF. Miss FAE stated in her application that she was seeking an order from the Tribunal that the enduring power of attorney executed by her mother is invalid.
Miss FAE indicated to an officer of the Tribunal Registry on 15 May 2015 that she was now seeking an order that the enduring power of attorney be reinstated, so that Mrs EMT could continue to act as Mrs NRE’s attorney.
Dismissal of the application for a review of an enduring power of attorney
The Tribunal commenced its review of the enduring power of attorney Mrs NRE had executed on 24 October 2011.
Mrs DSF, one Mrs NRE’s jointly appointed attorneys, is now deceased. The Powers of Attorney Act provides that there is a vacancy in the office of an attorney if the attorney dies: s 5. However, if the office of a jointly appointed attorney becomes vacant, then the entire appointment is terminated: s 46(1).
The Powers of Attorney Act also provides that the power of attorney is not terminated if the power of attorney provides otherwise, and at least one of the attorneys or a substitute attorney remains in office: s 46(1A). The instrument of appointment executed by Mrs NRE on 24 October 2011 did not contain this latter provision.
It follows, then, that Mrs NRE’s entire appointment of attorneys under her enduring power of attorney is now terminated. That being the case, the Tribunal does not have the authority to appoint any other attorney to replace the late Mrs DSF. Similarly, the Tribunal does not have jurisdiction to make any order purporting to reinstate Mrs NRE’s enduring power of attorney.
For those reasons, the Tribunal:
determined not to make any order under s 36 of the Powers of Attorney Act in relation to the operation and effect of that enduring power of attorney; and
dismissed the application made by Miss FAE for a review of the operation and effect of that enduring power of attorney.
FINANCIAL MANAGEMENT
Reasons for this application
As well as applying for a review of the enduring power of attorney executed by Mrs NRE, Miss FAE also requested that the Tribunal make a financial management order. Miss FAE was concerned that there was no-one who currently has the authority to manage her mother’s financial affairs.
What did the Tribunal have to decide?
The questions which the Tribunal had to decide in relation to financial management were:
Is Mrs NRE capable of managing her affairs?
Is there a need for another person to manage Mrs NRE’s affairs, and is it in her best interests for a financial management order to be made?
If so, who should be appointed as the financial manager?
Is Mrs NRE capable of managing her financial affairs?
The Tribunal first considered evidence concerning Mrs NRE’s health and ability generally.
Dr Z, Mrs NRE’s general practitioner, stated in a certificate prepared on 2 September 2014 that Mrs NRE is unfit to manage her own affairs, due to physical and cognitive impairment. In a later report prepared on 15 May 2015, Dr Z advised that Mrs NRE has moderate dementia, and had experienced a stroke. Mrs NRE has been assessed as having severe cognitive impairment. Dr Z considered that Mrs NRE’s disability affects her capacity to make decisions about her financial affairs.
The Assistant Facility Manager of the aged care facility, stated in a certificate prepared on 28 October 2014 that Mrs NRE requires total care and full assistance from staff for all activities of daily living.
Miss FAE gave evidence that her mother conducts an account with a credit union, with a balance that varies between approximately $6000 and approximately $9000. Miss FAE has the authority to operate on that account. Mrs NRE also has investments to the value of approximately $11,000 with a financial services company. Mrs NRE owns her own home at West Sydney, which is registered in the names of Mrs NRE and her late husband. Miss FAE did not know whether her parents owned that property as joint tenants, or as tenants-in-common. That property, which has a value of approximately $320,000, is not subject to a mortgage, and Mrs NRE does not have any other debts.
Miss FAE stated during the hearing that she has been attending to the payment of her mother’s bills, even though she lacks the authority to manage Mrs NRE’s financial affairs. Miss FAE said that she pays the Council rates and insurance on her mother’s property in West Sydney from Mrs NRE’s funds.
Mrs EMT confirmed that she does not operate on her mother’s account, and she is not making any decisions concerning Mrs NRE’s financial affairs. Mrs EMT disclosed that she and her husband are living in Mrs NRE’s home in West Sydney, for which they pay rent of $240 each week.
After considering the above evidence, the Tribunal concluded that Mrs NRE is not capable of managing her financial affairs. The Tribunal attached particular weight to the evidence concerning Mrs NRE’s dementia, and her severe cognitive impairment.
Does Mrs NRE need someone else to manage her financial affairs for her?
Mr KXB, a cousin of Mrs NRE, advised that he, his sister and Mrs NRE stand to inherit from the estate of a late uncle, Mr NCB, who died in May 2014. Mr KXB stated that he intended to apply for letters of administration in Victoria, but he required consent from Mrs NRE, or from an authorised person on her behalf, to make such an application. Mr KXB indicated that Mrs NRE stands to inherit a significant sum from the estate of her late uncle. Mr KXB provided the Tribunal with a copy of a letter from a firm of solicitors in Victoria, confirming the requirement that an administrator provide consent on behalf of Mrs NRE.
During the hearing, Mr KXB gave evidence that the late Mr NCB left an estate valued at approximately $785,000. Mrs NRE could expect to receive one third of that estate.
In these circumstances, the Tribunal found that there is quite clearly a need for someone to manage Mrs NRE’s financial affairs on her behalf. The Tribunal also found that it would be in Mrs NRE’s best interests for the Tribunal to make a financial management order. The Tribunal noted that there was no-one with the authority to make any financial decisions on Mrs NRE’s behalf, or to manage her financial affairs for her.
Who should be the manager?
Miss FAE proposed that the Tribunal should appoint her sister, Mrs EMT, to manage their mother’s financial affairs. Mrs EMT confirmed that she was willing to accept that appointment. Mr KXB expressed his support for the proposed appointment of Mrs EMT.
Mrs NRE confirmed during the hearing that she is happy with the way in which Miss FAE has helped with the management of her financial affairs. Mrs NRE added that she would be happy for Mrs EMT to manage her finances for her.
During the hearing, the Tribunal made enquiries of Mrs EMT to ascertain whether she is a "suitable person," for the purposes of the Guardianship Act 1987 (NSW), to be appointed as her mother’s financial manager. Mrs EMT told the Tribunal that she is employed full time as a customer support and sales person. Mrs EMT confirmed that:
she is not, and has never been, bankrupt
she has not been convicted of any offences involving dishonesty
she is aware of, and accepts, the accounting and reporting requirements of the Office of the NSW Trustee and Guardian, and
there is no intermingling of her own funds with those of her mother
In these circumstances, the Tribunal had no difficulty in finding that Mrs EMT is a suitable person to be appointed as her mother’s financial manager. It was also evident to the Tribunal that both Mrs NRE and Miss FAE clearly trust Mrs EMT to assist in this way.
FORMAL FINDINGS
The Tribunal made the following formal findings:
(1)Mrs NRE is not capable of managing her affairs;
(2)there is a need for another person to manage those affairs;
(3)it is in the best interests of Mrs NRE that a financial management order be made; and
(4)Mrs EMT is a suitable person to be appointed as manager of the affairs of Mrs NRE, subject to the authorities and directions ordered by the NSW Trustee and Guardian.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Amendments
20 December 2018 - CATCHWORDS:
"decision not to conduct review under s 36(1) of the Powers of Attorney Act 2003 (NSW)" to "decision to conduct review under s 36(1) of the Powers of Attorney Act 2003 (NSW)"
12 February 2019 - stet
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