OBQ - [2020] NSWCATGD 59

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: OBQ [2020] NSWCATGD 59
Hearing dates: 11 September 2020 and 25 September 2020
Date of orders: 25 September 2020
Decision date: 25 September 2020
Jurisdiction: Guardianship Division
Before: R H Booby, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
K Laurence, General Member (Community)
Decision:
In relation to the enduring power of attorney made by OBQ on 9 October 2017 which appointed DZC as attorney/s. The Tribunal determines, orders or declares:
not to carry out a review of the revocation of the enduring power of attorney.
In relation to the enduring power of attorney made by OBQ on 6 April 2018 which appointed LAQ and TYQ as attorney/s. The Tribunal determines, orders or declares:
to carry out a review of the operation and effect of the enduring power of attorney;
not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW) and dismiss the application.

Catchwords:
REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – whether adequate records kept – whether attorneys gained personal benefit – whether conflict of interest arises – subject person retains capacity to instruct – not in subject person’s interests to overturn subject person’s decisions – no order made.
REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the revocation of an enduring power of attorney – subject person possibly influenced but will not overborne – no evidence of weight indicating undue influence – no evidence of weight indicating the subject person was confused or misled – decision not to review revocation.

Legislation Cited:
Guardianship Act 1987 (NSW), Pt 3A
Powers of Attorney Act 2003 (NSW), ss 36, 36(1)-(2), 12(1)

Cases Cited:
Re R [2000] NSWSC 886
Slattery J in Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Tulloch (deceased) v Braybon (No 2) [2010] NSWSC 650

Texts Cited:
Nil

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

OBQ (the person)
DZC (applicant)
TYQ (attorney)
LAQ (attorney)
NSW Trustee and Guardian

002: Review Revocation of an Enduring Power of Attorney
OBQ (the person)
DZC (applicant, attorney)
LAQ (attorney)
WBX (attorney)
TYQ (attorney)
NSW Trustee and Guardian
Representation:
Counsel:
C Simpson for OBQ
Solicitors:
J Kambas as separate representative for OBQ
S Radburn for OBQ

File Number(s): NCAT 2020/00155195
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

Background

OBQ is 86-years-old and lives at an aged care facility in regional NSW. His wife died in 2017. He has four adult children who are LAQ, TYQ, DZC and WBX.
On 9 October 2017 OBQ made an enduring power of attorney appointing DZC as the…

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 OBQ

Details

AGLC: OBQ [2020] NSWCATGD 59
Case: [2020] NSWCATGD 59
Decision Date: 25 September 2020

CaseChat Overview and Summary

The case involved a review of two enduring powers of attorney made by OBQ, with DZC appointed in the first and LAQ and TYQ in the second. The Tribunal was tasked with determining whether there was sufficient evidence to review the revocation of the first enduring power of attorney and whether a review of the operation and effect of the second was warranted. Additionally, the Tribunal considered whether the attorneys had gained personal benefit and whether there was a conflict of interest.

The central legal issues addressed by the Tribunal included whether OBQ retained the capacity to instruct, whether the attorneys had acted in a way that benefited them personally or created a conflict of interest, and whether OBQ's decisions were in her best interests. The Tribunal also considered whether there was evidence of undue influence or confusion on OBQ's part when revoking the first enduring power of attorney. The court had to balance the rights of OBQ to make her own decisions with the responsibilities of the attorneys.

The Tribunal concluded that there were no adequate records to substantiate the claims of personal benefit or conflict of interest by the attorneys. Furthermore, the Tribunal found that OBQ had not been overborne or unduly influenced in revoking the first enduring power of attorney and that she retained the capacity to instruct. Consequently, the Tribunal decided not to review the revocation of the first enduring power of attorney and dismissed the application. However, the Tribunal ordered a review of the operation and effect of the second enduring power of attorney, as there were questions about the adequacy of the records and potential conflicts of interest.

The final orders of the Tribunal were to dismiss the application regarding the revocation of the first enduring power of attorney and to review the operation and effect of the second. The Tribunal did not find it in OBQ's best interests to overturn her decisions, thereby upholding her autonomy and the validity of the second enduring power of attorney.

Orders

Orders of the court

In relation to the enduring power of attorney made by OBQ on 9 October 2017 which appointed DZC as attorney/s. The Tribunal determines, orders or declares:

not to carry out a review of the revocation of the enduring power of attorney.

In relation to the enduring power of attorney made by OBQ on 6 April 2018 which appointed LAQ and TYQ as attorney/s. The Tribunal determines, orders or declares:

to carry out a review of the operation and effect of the enduring power of attorney;

not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW) and dismiss the application.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	OBQ [2020] NSWCATGD 59
Hearing dates:	11 September 2020 and 25 September 2020
Date of orders:	25 September 2020
Decision date:	25 September 2020
Jurisdiction:	Guardianship Division
Before:	R H Booby, Senior Member (Legal) Dr G Jamieson, Senior Member (Professional) K Laurence, General Member (Community)
Decision:	In relation to the enduring power of attorney made by OBQ on 9 October 2017 which appointed DZC as attorney/s. The Tribunal determines, orders or declares: not to carry out a review of the revocation of the enduring power of attorney. In relation to the enduring power of attorney made by OBQ on 6 April 2018 which appointed LAQ and TYQ as attorney/s. The Tribunal determines, orders or declares: to carry out a review of the operation and effect of the enduring power of attorney; not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW) and dismiss the application.
Catchwords:	REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – whether adequate records kept – whether attorneys gained personal benefit – whether conflict of interest arises – subject person retains capacity to instruct – not in subject person’s interests to overturn subject person’s decisions – no order made. REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the revocation of an enduring power of attorney – subject person possibly influenced but will not overborne – no evidence of weight indicating undue influence – no evidence of weight indicating the subject person was confused or misled – decision not to review revocation.
Legislation Cited:	Guardianship Act 1987 (NSW), Pt 3A Powers of Attorney Act 2003 (NSW), ss 36, 36(1)-(2), 12(1)
Cases Cited:	Re R [2000] NSWSC 886 Slattery J in Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 Tulloch (deceased) v Braybon (No 2) [2010] NSWSC 650
Texts Cited:	Nil
Category:	Principal judgment
Parties:	001: Review of an Enduring Power of Attorney OBQ (the person) DZC (applicant) TYQ (attorney) LAQ (attorney) NSW Trustee and Guardian 002: Review Revocation of an Enduring Power of Attorney OBQ (the person) DZC (applicant, attorney) LAQ (attorney) WBX (attorney) TYQ (attorney) NSW Trustee and Guardian
Representation:	Counsel: C Simpson for OBQ Solicitors: J Kambas as separate representative for OBQ S Radburn for OBQ
File Number(s):	NCAT 2020/00155195
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.