QBL

[2014] NSWCATGD 8

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

QBL [2014] NSWCATGD 8

Hearing dates:

13 January 2014

Decision date:

13 January 2014

Jurisdiction:

Guardianship Division

Before:

Booby R, Senior Member (Legal)
Ovadia T, Senior Member (Professional)
Porter L, General Member (Community)

Decision:

Applications to review enduring power of attorney and enduring guardianship dismissed for lack of jurisdiction; applications for guardianship and financial management adjourned.

Catchwords:

ENDURING POWER OF ATTORNEY - review of making and operation and effect - jurisdiction - jurisdiction to review interstate instrument.

ENDURING GUARDIANSHIP - review of appointment of enduring guardian - jurisdiction - jurisdiction to review interstate instrument.

PROCEDURAL FAIRNESS - opportunity to give evidence and to be heard - oral applications made at hearing - adjournment offered.

Legislation Cited:

Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)
Powers of Attorney Act 1998 (Queensland)

Category:

Principal judgment

Parties:

Mr QBL (subject person)
Ms BBN (applicant)
Mr QAD (attorney)
Mr JAD (attorney)
The Public Guardian
The NSW Trustee and Guardian

File Number(s):

55223

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

1. The Tribunal adjourned for approximately four weeks to date to be fixed, the application made by Ms BBN seeking guardianship in relation to Mr QBL.

AND

1. The Tribunal also adjourned for approximately four weeks to date to be fixed, the application made by Ms BBN seeking financial management for Mr QBL.

AND

1. The Tribunal dismissed the application seeking review of an enduring power of attorney.

AND

1. The Tribunal dismissed the application for a review of the appointment of an enduring guardian.

Background

1. Mr QBL is 53 years old and at the time of the hearing he was a patient at a hospital in Sydney. The Tribunal was advised that Mr QBL had lived in Queensland in his own unit and was then admitted to hospital in Queensland on 8 July 2013. He is said to have been discharged in October 2013 and to have then moved to Sydney to reside with Mr QAD.

1. On 9 September 2013 Mr QBL executed a Power of Attorney under the Powers of Attorney Act 1998 (Queensland) appointing Mr QAD and his wife, Mrs JAD severally as his attorneys for financial and personal/health matters.

1. On 23 December 2013 the Tribunal received an application to review an enduring power of attorney. The applicant was Ms BBN who sought a review of the document executed by Mr QBL on 9 September 2013 because in her opinion Mr QBL's finances were not being used in his best interests.

1. On 10 January 2013 the Tribunal received an application from Ms BBN seeking a review of the appointment of an enduring guardian, being that part of the Enduring Power of Attorney made by Mr QBL on 9 September 2013 by which he provided his attorneys with authority to make decisions about his personal/health matters.

1. On 13 January 2013 during the hearing is respect of the above applications, Ms BBN made oral applications for the appointment of a guardian and for a financial management order for Mr QBL.

Preliminary matter - Jurisdiction

1. The Tribunal dismissed the applications based on the appointments made by Mr QBL on 9 September 2013 under the Powers of Attorney Act 1998 (Qld) because it formed the view that it was without jurisdiction to consider the applications.

1. The Tribunal draws its jurisdiction to review a power of attorney from the Powers of Attorney Act 2003 (NSW). As noted above, the power of attorney for which review was sought was made under the Powers of Attorney Act 1998 (Qld).

1. As a starting point the Tribunal was satisfied that subsections 25(1), 25(2) and 25(5) provide that an enduring power of attorney made under another jurisdictions has effect as if it were made under the Powers of Attorney Act 2003 (NSW) but operates subject to any limitations on the power that apply under the law of the jurisdiction in which it was made and does not operate to confer any power on the attorney that would not be conferred under a power of attorney made according to the NSW legislation.

1. The Tribunal took the preliminary view that s 25 provides that an interstate enduring power of attorney should be treated as if it were an enduring power of attorney made in NSW and, therefore, would arguably fit into the jurisdictional definition in s 33(2) which provides jurisdiction for the Tribunal to review an enduring power of attorney.

1. However, s 3 of the Powers of Attorney Act 2003 (NSW) provides that an enduring power of attorney is defined in s 19, which defines an enduring power of attorney as an instrument that creates an enduring power of attorney for the purposes of this Act (emphasis added) and meets some requirements set out in that section. The definition of an enduring power of attorney is not extended to an interstate enduring power of attorney which is defined separately by s 25 for the purposes of recognition of the effect of an interstate enduring power of attorney.

1. Whilst s 25(1) states that an interstate enduring power of attorney has effect in this State as if it were an enduring power of attorney made under and in compliance with this Act, there is no provision in s 25 or anywhere else expressly extending interstate enduring powers of attorney into the powers of the Tribunal under Part 5 of the Act which is the Part in which the review provisions sit.

1. Following this reasoning, despite the provisions of s 25, which applies the effect (emphasis added) of an interstate power of attorney, a review (emphasis added) of an enduring power of attorney made under interstate jurisdiction would not be within the jurisdiction of this Tribunal as the interstate enduring power of attorney is not included in the definition of enduring powers of attorney which are the instruments that are reviewable by the Tribunal.

1. This interpretation is strengthened by a consideration of a hypothetical circumstance in which the Tribunal were requested to review the making of an interstate enduring power of attorney on validity grounds. Section 36(3)(b)(ii) of the Powers of Attorney Act 2003 (NSW) requires that in conducting such a review, the Tribunal must decide whether or not the order complies with the requirements of "this Act" being the Powers of Attorney Act 2003 (NSW). This could not be the case where the order is made under the act of another jurisdiction.

1. The interpretation is also strengthened by consideration of Ms BBN's application in respect of the review of the purported appointment of an enduring guardian by way of the appointment of an enduring attorney with personal/health functions.

1. Part 2 of the Guardianship Act 1987 (NSW) deals with enduring guardianship, and includes provision for the Tribunal to review the appointment of an enduring guardian. Section 6A(2) defines an enduring guardian as a person appointed under Part 2 of the Guardianship Act 1987 (NSW). Section 6O of Part 2 provides that an instrument appointing an enduring guardian has effect in NSW as if it were an instrument appointing an enduring guardian made under and in compliance with the Guardianship Act 1987 (NSW). However there is no provision in that Part for a guardian-like appointment contained in an Enduring Power of Attorney appointment.

1. The Tribunal therefore decided, on balance, that it was without jurisdiction to review the enduring power of attorney made Mr QBL on 9 September 2013 under the Powers of Attorney Act 1998 (Qld). Accordingly the Tribunal dismissed the application.

1. The Tribunal also decided that it was without jurisdiction to review the enduring guardianship-like appointment made by Mr QBL when he appointed his enduring attorney to make decisions about his personal and health matters.

The Adjournment

1. During the hearing Ms BBN made oral applications for the appointment of a guardian and a financial manager for Mr QBL.

1. During the hearing Mr QBL opposed the review of the Power of Attorney made on 9 September 2013 and said he wanted Mr QAD and Mrs JAD to continue to make decisions for him.

1. Mr QAD told the Tribunal that he had received the documents for the hearing at 3:30 pm on the Friday before the hearing (which was held on a Monday). He said that his copy of the documents had been sent via Mr QBL in hospital.

1. The Tribunal is required to ensure that the parties are provided with an adequate opportunity to consider the matters and to put their views.

1. The Tribunal was satisfied that as Mr QBL was opposed to the applications and Mr QAD had received his documents only one working day prior to the hearing, it was necessary to adjourn the hearing to provide the parties with a proper opportunity to consider the new applications.

1. Having reached that conclusion the Tribunal ordered that the hearing of the applications for a guardianship order and for a financial management order be adjourned for approximately one month to a date to be fixed by the Registrar.

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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