QHN - [2019] NSWCATGD 34

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: QHN [2019] NSWCATGD 34
Hearing dates: 15 October 2019
Date of orders: 15 October 2019
Decision date: 15 October 2019
Jurisdiction: Guardianship Division
Before: B L Adamovich, Senior Member (Legal),
Dr S L Thompson, Senior Member (Professional)
T Grassi, General Member (Community)
Decision:
Review of an Enduring Power of Attorney:
In relation to the enduring power of attorney made by QHN on 11 March 2019 which appointed KZB as attorney(s) the Tribunal determines, orders or declares:
to carry out a review of the making and 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). The application for review of the enduring power of attorney is treated as an application for a financial management order under Pt 3A of the Guardianship Act 1987 (NSW).
Financial Management Order:
1. The estate of QHN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. KZB of [Address removed for publication.] is appointed as the financial manager of
the estate.
NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he has obtained all necessary authorities from the NSW Trustee and Guardian.
3. This order be reviewed by the Tribunal within 12 months.
Review of Appointment of Enduring Guardian:
In relation to the enduring guardian appointment made by QHN on 1 March 2019 appointing KZB the Tribunal orders, directs or declares:
The appointment of KZB as an enduring guardian is confirmed.
Guardianship Application:
The application for guardianship is dismissed after hearing.

Catchwords:
REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – changes to long-standing appointment of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – no order made – decision to treat application to review an enduring power of attorney as an application for a financial management order.
FINANCIAL MANAGEMENT – whether subject person is incapable of managing their own affairs – subject person of advanced age – subject person diagnosed with dementia – cognitive impairment – complex financial affairs – need for decisions to be made to recover money and property owed to the subject person – need to pay for accommodation and care fees in an aged care facility – suitability of proposed private manager – private financial manager appointed – reviewable order made.
REVIEW OF ENDURING GUARDIANSHIP – application to review an enduring guardianship appointment – finding that the subject person had capacity to make a valid enduring guardianship appointment – not in subject person’s interests to overturn subject person’s decisions – appointment of enduring guardianship confirmed.
GUARDIANSHIP – existing enduring guardianship appointment – no decisions to be made that cannot be made by an enduring guardian – no need for a guardianship order – application dismissed.

Legislation Cited:
Guardianship…

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: QHN [2019] NSWCATGD 34
Case: [2019] NSWCATGD 34
Decision Date: 15 October 2019

CaseChat Overview and Summary

QHN was the subject of an application to review an enduring power of attorney and an application for a financial management order. The application was also made to review an enduring guardianship appointment and to appoint a guardian. QHN was of advanced age and had been diagnosed with dementia. The parties sought to appoint a financial manager to manage QHN's estate to recover money and property owed to QHN, and to pay for accommodation and care fees in an aged care facility. QHN's cognitive impairment resulted in the inability to manage their own affairs. The court needed to determine whether an order under section 36 of the Powers of Attorney Act should be made to review the enduring power of attorney, and whether a financial management order should be made under Part 3A of the Guardianship Act. The court also had to decide whether an order should be made to review the enduring guardianship appointment, and whether a guardianship order should be made. The court found that QHN had the capacity to make a valid enduring guardianship appointment, and it was not in QHN's interests to overturn QHN's decisions. The court confirmed the appointment of QHN's enduring guardian, dismissed the application for guardianship, and dismissed the application to review the enduring power of attorney. The court treated the application to review the enduring power of attorney as an application for a financial management order. The court appointed KZB as the financial manager of QHN's estate and made a reviewable order for the estate to be subject to management under the Trustee and Guardian Act. The court ordered that the financial manager was not authorised to deal with the estate until he had obtained all necessary authorities from the Trustee and Guardian. The order was to be reviewed by the Tribunal within 12 months.

Orders

Orders of the court

Review of an Enduring Power of Attorney:

In relation to the enduring power of attorney made by QHN on 11 March 2019 which appointed KZB as attorney(s) the Tribunal determines, orders or declares:

to carry out a review of the making and 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). The application for review of the enduring power of attorney is treated as an application for a financial management order under Pt 3A of the Guardianship Act 1987 (NSW).

Financial Management Order:

1. The estate of QHN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. KZB of [Address removed for publication.] is appointed as the financial manager of

the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he has obtained all necessary authorities from the NSW Trustee and Guardian.

3. This order be reviewed by the Tribunal within 12 months.

Review of Appointment of Enduring Guardian:

In relation to the enduring guardian appointment made by QHN on 1 March 2019 appointing KZB the Tribunal orders, directs or declares:

The appointment of KZB as an enduring guardian is confirmed.

Guardianship Application:

The application for guardianship is dismissed after hearing.

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:	QHN [2019] NSWCATGD 34
Hearing dates:	15 October 2019
Date of orders:	15 October 2019
Decision date:	15 October 2019
Jurisdiction:	Guardianship Division
Before:	B L Adamovich, Senior Member (Legal), Dr S L Thompson, Senior Member (Professional) T Grassi, General Member (Community)
Decision:	Review of an Enduring Power of Attorney: In relation to the enduring power of attorney made by QHN on 11 March 2019 which appointed KZB as attorney(s) the Tribunal determines, orders or declares: to carry out a review of the making and 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). The application for review of the enduring power of attorney is treated as an application for a financial management order under Pt 3A of the Guardianship Act 1987 (NSW). Financial Management Order: 1. The estate of QHN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. KZB of [Address removed for publication.] is appointed as the financial manager of the estate. NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he has obtained all necessary authorities from the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within 12 months. Review of Appointment of Enduring Guardian: In relation to the enduring guardian appointment made by QHN on 1 March 2019 appointing KZB the Tribunal orders, directs or declares: The appointment of KZB as an enduring guardian is confirmed. Guardianship Application: The application for guardianship is dismissed after hearing.
Catchwords:	REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – changes to long-standing appointment of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – no order made – decision to treat application to review an enduring power of attorney as an application for a financial management order. FINANCIAL MANAGEMENT – whether subject person is incapable of managing their own affairs – subject person of advanced age – subject person diagnosed with dementia – cognitive impairment – complex financial affairs – need for decisions to be made to recover money and property owed to the subject person – need to pay for accommodation and care fees in an aged care facility – suitability of proposed private manager – private financial manager appointed – reviewable order made. REVIEW OF ENDURING GUARDIANSHIP – application to review an enduring guardianship appointment – finding that the subject person had capacity to make a valid enduring guardianship appointment – not in subject person’s interests to overturn subject person’s decisions – appointment of enduring guardianship confirmed. GUARDIANSHIP – existing enduring guardianship appointment – no decisions to be made that cannot be made by an enduring guardian – no need for a guardianship order – application dismissed.
Legislation Cited:	Guardianship…