OND

[2024] NSWCATGD 5

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

OND [2024] NSWCATGD 5

Hearing dates:

19 March 2024

Date of orders:

19 March 2024

Decision date:

19 March 2024

Jurisdiction:

Guardianship Division

Before:

D Jay, Senior Member (Legal)
Dr M A Martin, Senior Member (Professional)
K Laurence, General Member (Community)

Decision:

The application to appoint a financial manager is dismissed after hearing.

Catchwords:

FINANCIAL MANAGEMENT – application for a financial management order – 93-year-old subject person diagnosed with Alzheimer’s Dementia – subject person owns substantial assets – subject person incapable of managing their own affairs – existing enduring power of attorney operating in subject person’s best interests – no need to appoint a financial manager – no order made – application dismissed

Legislation Cited:

None cited.

Cases Cited:

CJ v AKJ [2015] NSWSC 498

P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Financial Management Application

OND (the person)
TND (applicant)
KZD (attorney)
EAD (attorney)
CYT (attorney)
NSW Trustee and Guardian

Representation:

Counsel: B Haines, Counsel for TND instructed by G Ge

Solicitors: L Gidley and R Medcalf, Solicitors for the attorneys

File Number(s):

NCAT 2023/00336765

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

FINANCIAL MANAGEMENT APPLICATION

Background

1. OND is 93 years old and resides in privately rented accommodation. She formerly lived in her own home in Sydney’s lower north shore. That home has now been sold.

2. OND’s son is TND. Her husband passed away in 2019. She has five grandchildren – CYT, EAD, Ms Z, Ms Y and KZD.

3. On 12 November 2020 OND executed an Enduring Power of Attorney appointing EAD, CYT and KZD as her joint and several attorneys (the EPOA). The EPOA operated once the attorneys accepted their appointments. CYT accepted her appointment on 11 January 2023 and KZD and EAD accepted their appointments on 12 November 2020.

4. On 23 October 2023 TND submitted an application to appoint a financial manager. By his application TND expresses concern that his mother’s very valuable home at [Address removed for publication.] (Property AB) was sold at an undervalue. The substance of the application developed from the time it was filed to the time of the hearing to, first, focus on an allegedly identified shortfall in funds from his mother’s estate and, secondly, there being a number of allegedly serious anomalies in the conduct of the attorneys.

5. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

What did the Tribunal have to decide?

6. The questions to be considered by the Tribunal are:

• Is OND incapable of managing her affairs?

• Is there a need for another person to manage OND’s affairs and is it in…