NZQ - [2017] NSWCATGD 47

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NZQ [2017] NSWCATGD 47
Hearing dates: 3 March 20176, March 2017, 10 April 2017, 19 May 2017
Date of orders: 20 June 2017
Decision date: 20 June 2017
Jurisdiction: Guardianship Division
Before: Ms Rhonda Booby, Senior Member (Legal)
Dr Brenda McPhee, Senior Member (Professional)
Dr Jennifer Green, General Member (Community)
Decision:
The Tribunal orders and determines:

1. Not to make any order under s 36 of the Powers of Attorney Act 2003 (NSW) in relation to the enduring power of attorney.

2. To treat the application for a review of the enduring power of attorney as an application for a financial management order under the Guardianship Act 1987 (NSW).

3. The estate of Mrs NZQ is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
4. The management of the estate of Mrs NZQ is committed to the NSW Trustee and Guardian.
Catchwords:
GUARDIANSHIP – review of operation and effect of enduring power of attorney – appeal – matter remitted after appeal – standing to bring application – “interested person” under s 35(1) of the Powers of Attorney Act (NSW) – procedure – where subject person unable to participate in the hearing due to effect of their disability – decision to conduct review under s 36(1) of the Powers of Attorney Act – decision not to make any order: s 36(2) of the Powers of Attorney Act – decision to treat as application for the appointment of a financial manager – advice or directions under s 38 of the Powers of Attorney Act – separate representative
EVIDENCE – earlier evidence considered – conflict of interest between financial interests of subject person and attorney – benefit of independent oversight – whether attorney in breach of fiduciary obligations – alleged conflict of interest – discretion to make a financial management order – consideration of who to appoint as financial manager – appointment of NSW Trustee and Guardian as financial manager
Legislation Cited: Guardianship Act 1987 (NSW), Pt 3A, ss 4, 25M
NSW Trustee and Guardian Act 2009 (NSW)
Powers of Attorney Act 2003 (NSW), ss 12(1), 35(1), 36, 36(1), 36(2), 38, 50(3)
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
Georgios Vasilios Sotiropoulos as executor of the estate of the late Maria Sotiropoulos v Vlasios Vasilios Sotiropoulos [2015] NSWSC 855
KTC [2011] NSWGT (18 October 2011)
P v NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re D [2012] NSWSC 1006
Re R [2000] NSWSC 886
Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Texts Cited: Nil
Category: Principal judgment
Parties:
Review of the Enduring Power of Attorney Application

Mrs NZQ (the principal)
Ms FYQ (the attorney appointed under the enduring power of attorney being reviewed)
Ms GAD (the applicant)

Financial Management Application
Mrs NZQ…

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.

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Details

AGLC: NZQ [2017] NSWCATGD 47
Case: [2017] NSWCATGD 47
Decision Date: 20 June 2017

CaseChat Overview and Summary

The matter before the Tribunal involved Mrs NZQ, who had executed an enduring power of attorney, and her daughter, who was appointed as the attorney. The dispute centred on the operation and effect of the enduring power of attorney and whether it should be reviewed or treated as an application for a financial management order. The Tribunal was required to determine whether the daughter had a conflict of interest due to her financial interests and whether she had breached her fiduciary obligations. Additionally, the Tribunal needed to consider who should be appointed as the financial manager for Mrs NZQ's estate.

The key legal issues that the Tribunal addressed included the definition of "interested person" under section 35(1) of the Powers of Attorney Act (NSW) and the procedure for conducting a review of an enduring power of attorney under section 36(1) of the same Act. The Tribunal also considered the discretion to make a financial management order under the Guardianship Act 1987 (NSW) and the appointment of a financial manager under the NSW Trustee and Guardian Act 2009 (NSW). The Tribunal had to balance the benefits of independent oversight against the potential conflicts of interest and fiduciary breaches alleged against the attorney.

After reviewing the evidence and considering the legal issues, the Tribunal decided not to make any order under section 36 of the Powers of Attorney Act 2003 (NSW) in relation to the enduring power of attorney. Instead, the Tribunal treated the application for a review of the enduring power of attorney as an application for a financial management order under the Guardianship Act 1987 (NSW). The Tribunal found that the estate of Mrs NZQ was subject to management under the NSW Trustee and Guardian Act 2009 (NSW) and committed the management of the estate to the NSW Trustee and Guardian. The decision was based on the belief that independent oversight would best protect Mrs NZQ's interests and prevent potential conflicts of interest and breaches of fiduciary obligations by the attorney.

The Tribunal's final orders were to not make any order under section 36 of the Powers of Attorney Act 2003 (NSW) in relation to the enduring power of attorney, to treat the application for a review of the enduring power of attorney as an application for a financial management order under the Guardianship Act 1987 (NSW), and to commit the management of the estate of Mrs NZQ to the NSW Trustee and Guardian. This decision aimed to ensure that Mrs NZQ's interests were protected and that any potential conflicts of interest or breaches of fiduciary obligations by the attorney were addressed.

Orders

Orders of the court

The Tribunal orders and determines:

1. Not to make any order under s 36 of the Powers of Attorney Act 2003 (NSW) in relation to the enduring power of attorney.

2. To treat the application for a review of the enduring power of attorney as an application for a financial management order under the Guardianship Act 1987 (NSW).

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

4. The management of the estate of Mrs NZQ is committed to the NSW Trustee and Guardian.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	NZQ [2017] NSWCATGD 47
Hearing dates:	3 March 20176, March 2017, 10 April 2017, 19 May 2017
Date of orders:	20 June 2017
Decision date:	20 June 2017
Jurisdiction:	Guardianship Division
Before:	Ms Rhonda Booby, Senior Member (Legal) Dr Brenda McPhee, Senior Member (Professional) Dr Jennifer Green, General Member (Community)
Decision:	The Tribunal orders and determines: 1. Not to make any order under s 36 of the Powers of Attorney Act 2003 (NSW) in relation to the enduring power of attorney. 2. To treat the application for a review of the enduring power of attorney as an application for a financial management order under the Guardianship Act 1987 (NSW). 3. The estate of Mrs NZQ is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 4. The management of the estate of Mrs NZQ is committed to the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – review of operation and effect of enduring power of attorney – appeal – matter remitted after appeal – standing to bring application – “interested person” under s 35(1) of the Powers of Attorney Act (NSW) – procedure – where subject person unable to participate in the hearing due to effect of their disability – decision to conduct review under s 36(1) of the Powers of Attorney Act – decision not to make any order: s 36(2) of the Powers of Attorney Act – decision to treat as application for the appointment of a financial manager – advice or directions under s 38 of the Powers of Attorney Act – separate representative EVIDENCE – earlier evidence considered – conflict of interest between financial interests of subject person and attorney – benefit of independent oversight – whether attorney in breach of fiduciary obligations – alleged conflict of interest – discretion to make a financial management order – consideration of who to appoint as financial manager – appointment of NSW Trustee and Guardian as financial manager
Legislation Cited:	Guardianship Act 1987 (NSW), Pt 3A, ss 4, 25M NSW Trustee and Guardian Act 2009 (NSW) Powers of Attorney Act 2003 (NSW), ss 12(1), 35(1), 36, 36(1), 36(2), 38, 50(3)
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 Georgios Vasilios Sotiropoulos as executor of the estate of the late Maria Sotiropoulos v Vlasios Vasilios Sotiropoulos [2015] NSWSC 855 KTC [2011] NSWGT (18 October 2011) P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006 Re R [2000] NSWSC 886 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Review of the Enduring Power of Attorney Application Mrs NZQ (the principal) Ms FYQ (the attorney appointed under the enduring power of attorney being reviewed) Ms GAD (the applicant) Financial Management Application Mrs NZQ…