QFC (No 2) - [2018] NSWCATGD 49

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: QFC (No 2) [2018] NSWCATGD 49
Hearing dates: 28 May 2018
Date of orders: 28 May 2018
Decision date: 28 May 2018
Jurisdiction: Guardianship Division
Before: J Moir, Senior Member (Legal)
W Longley, Senior Member (Professional)
D R Sword, General Member (Community)
Decision:
The application for a financial management order is dismissed after hearing.

In relation to the enduring power of attorney made by QFC on 19 February 2010 which appointed EZC and RBC as attorney the Tribunal determines:

- 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:
FINANCIAL MANAGEMENT – application for a financial management order – no evidence to establish subject person not capable of managing her day-to-day finances – whether subject person has cognitive impairment – evidence insufficient to find subject person incapable of managing her affairs – whether subject person vulnerable to influence – subject person capable of rejecting proposals from attorney – application dismissed.
REVIEW OF ENDURING POWER OF ATTORNEY – application to review operation and effect of enduring power of attorney – whether the Tribunal should make an order under s 36(4) of the Powers of Attorney Act - whether an order under s 36(4) of the Powers of Attorney Act would be in the subject person’s best interests – whether attorney has a conflict of interest – where subject person has invested in company in which attorney involved – subject person capable of making decisions for themselves – subject person capable of making investment decisions - Tribunal not satisfied that an order under s 36(4) of the Powers of Attorney Act would be in subject person’s best interests – no order made.
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(d)
Guardianship Act 1987 (NSW), Pt 3A
Powers of Attorney Act 2003 (NSW) (“POA Act”), ss 12(1), 36, 36(1)-(2)
Cases Cited: P v NSW Trustee and Guardian [2015] NSWSC 579
Re R [2000] NSWSC 886
Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Texts Cited: Nil
Category: Principal judgment
Parties:
001: Financial Management Application

QFC (the person)
TAC (applicant)
EZC (attorney)
RBC (attorney)
NSW Trustee and Guardian

002: Review of an Enduring Power of Attorney
QFC (the person)
TAC (applicant)
EZC (attorney)
RBC (attorney)
Representation:
Counsel: D Reid for QFC
Solicitors: S Robinson for QFC

File Number(s): 2017/00330439
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 AND

REVIEW OF ENDURING POWER OF ATTORNEY

Background

QFC is a 78-year-old woman who lives alone in her own home in regional NSW. She has five children TAC, EZC, RBC, BYC,…

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 QFC (No 2)

Details

AGLC: QFC (No 2) [2018] NSWCATGD 49
Case: [2018] NSWCATGD 49
Decision Date: 28 May 2018

CaseChat Overview and Summary

The case of QFC (No 2) involved an application for a financial management order and a review of an enduring power of attorney (EPOA) made by QFC on 19 February 2010, appointing EZC and RBC as attorneys. The application was heard by the Tribunal, which was tasked with deciding whether QFC was incapable of managing her day-to-day finances and if an order under section 36 of the Powers of Attorney Act 2003 (NSW) was in her best interests. The court also had to determine if there was a conflict of interest and if QFC was vulnerable to undue influence from her attorneys.

The primary legal issues before the court were whether QFC had a cognitive impairment rendering her incapable of managing her affairs and if the EPOA should be reviewed or altered. The court examined the evidence to establish QFC's capacity to manage her finances and to make decisions independently, particularly in light of her investments in a company in which one of the attorneys was involved. The court was also required to assess whether an order under section 36 of the Powers of Attorney Act 2003 (NSW) would be in QFC's best interests, considering her ability to make her own decisions.

In its reasoning, the court found that there was insufficient evidence to establish that QFC was incapable of managing her day-to-day finances or that she had a cognitive impairment. The court also concluded that QFC was capable of making her own decisions and rejecting any proposals from her attorneys. Furthermore, the court was not satisfied that an order under section 36 of the Powers of Attorney Act 2003 (NSW) would be in QFC's best interests, as she was capable of making investment decisions and managing her affairs independently. Consequently, the application for a financial management order was dismissed, and the Tribunal decided not to make an order under section 36 of the Powers of Attorney Act 2003 (NSW), dismissing the application for a review of the EPOA.

The final orders of the court were that the application for a financial management order was dismissed, and the Tribunal determined to carry out a review of the operation and effect of the enduring power of attorney made by QFC on 19 February 2010, appointing EZC and RBC as attorneys. The Tribunal also decided not to make an order under section 36 of the Powers of Attorney Act 2003 (NSW) and dismissed the application for a review of the EPOA.

Orders

Orders of the court

The application for a financial management order is dismissed after hearing.

In relation to the enduring power of attorney made by QFC on 19 February 2010 which appointed EZC and RBC as attorney the Tribunal determines:

- 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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	QFC (No 2) [2018] NSWCATGD 49
Hearing dates:	28 May 2018
Date of orders:	28 May 2018
Decision date:	28 May 2018
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) W Longley, Senior Member (Professional) D R Sword, General Member (Community)
Decision:	The application for a financial management order is dismissed after hearing. In relation to the enduring power of attorney made by QFC on 19 February 2010 which appointed EZC and RBC as attorney the Tribunal determines: - 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:	FINANCIAL MANAGEMENT – application for a financial management order – no evidence to establish subject person not capable of managing her day-to-day finances – whether subject person has cognitive impairment – evidence insufficient to find subject person incapable of managing her affairs – whether subject person vulnerable to influence – subject person capable of rejecting proposals from attorney – application dismissed. REVIEW OF ENDURING POWER OF ATTORNEY – application to review operation and effect of enduring power of attorney – whether the Tribunal should make an order under s 36(4) of the Powers of Attorney Act - whether an order under s 36(4) of the Powers of Attorney Act would be in the subject person’s best interests – whether attorney has a conflict of interest – where subject person has invested in company in which attorney involved – subject person capable of making decisions for themselves – subject person capable of making investment decisions - Tribunal not satisfied that an order under s 36(4) of the Powers of Attorney Act would be in subject person’s best interests – no order made.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(d) Guardianship Act 1987 (NSW), Pt 3A Powers of Attorney Act 2003 (NSW) (“POA Act”), ss 12(1), 36, 36(1)-(2)
Cases Cited:	P v NSW Trustee and Guardian [2015] NSWSC 579 Re R [2000] NSWSC 886 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Texts Cited:	Nil
Category:	Principal judgment
Parties:	001: Financial Management Application QFC (the person) TAC (applicant) EZC (attorney) RBC (attorney) NSW Trustee and Guardian 002: Review of an Enduring Power of Attorney QFC (the person) TAC (applicant) EZC (attorney) RBC (attorney)
Representation:	Counsel: D Reid for QFC Solicitors: S Robinson for QFC
File Number(s):	2017/00330439
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.