QNH - [2022] NSWCATGD 9

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: QNH [2022] NSWCATGD 9
Hearing dates: 20 January 2022
Date of orders: 20 January 2022
Decision date: 20 January 2022
Jurisdiction: Guardianship Division
Before: A R Boxall, Senior Member (Legal)
Associate Professor C Willcox, Senior Member (Professional)
P J McGirr, General Member (Community)
Decision:
001: Review of an Enduring Power of Attorney
In relation to the enduring power of attorney made by QNH on 16 January 2018 which appointed EYH and NAH 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). 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).
003: Review or Revoke Financial Management Order
The Financial Management order for QNH made on 28 July 2021 has been reviewed. The order now is as follows:
1. The estate of QNH is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of QNH is committed to the NSW Trustee and Guardian.

Catchwords:
REVIEW OF ENDURING POWER OF ATTORNEY– where the subject person is now a permanent resident of another state – power of attorney made under the laws of NSW – Tribunal found to have jurisdiction – review of the operation and effect of an enduring power of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – decision to treat application to review an enduring power of attorney as an application for a financial management order – subject person is of advanced age – subject person with Alzheimer’s type dementia – subject person not capable of managing their own affairs – significant conflict within subject person’s family – no private person suitable to be appointed – NSW Trustee and Guardian appointed – order made.
FINANCIAL MANAGEMENT – requested review of an interim financial management order – whether financial management order should be revoked – in the subject person’s best interests for the financial management order to continue – decision not to revoke financial management order – application dismissed.

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), s 36
Guardianship Act 1987 (NSW), ss 4, 4(a), 25H
Powers of Attorney Act 2003 (NSW), ss 5(f), 36, 36(1)-(2)
Victorian Guardianship and Administration Act 2019 (Vic)

Cases Cited:
Burns v Corbett [2018] HCA 15
NBL [2019] NSWCATGD 5
Zistis v Zistis [2018] NSW 722

Texts Cited:
None cited.

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

QNH (the person)
FZN (applicant)
NAH (attorney)
EYH (attorney)
NSW Trustee and Guardian

003: Review or Revoke Financial Management Order
QNH (the person)
EYH (applicant, appointed financial manager, carer)
NSW Trustee and Guardian
Representation: Nil.

File Number(s): NCAT 2021/00153529
Publication restriction:

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 QNH

Details

AGLC: QNH [2022] NSWCATGD 9
Case: [2022] NSWCATGD 9
Decision Date: 20 January 2022

CaseChat Overview and Summary

The parties involved in this case are QNH, EYH, NAH, and the NSW Trustee and Guardian. The dispute centres around the review and operation of an enduring power of attorney made by QNH under the laws of New South Wales, as well as the review and revocation of an interim financial management order made for QNH. The case was heard in the NSW Civil and Administrative Tribunal (NCAT). The central legal issues that the court had to decide were whether the Tribunal had jurisdiction to review the enduring power of attorney and whether an order under section 36 of the Powers of Attorney Act 2003 (NSW) should be made. Additionally, the court had to determine whether the financial management order should be revoked and, if not, what the appropriate management of QNH's estate should be.

The court found that it had jurisdiction to review the enduring power of attorney, given that QNH is now a permanent resident of another state. The court also determined that the application to review the enduring power of attorney should be treated as an application for a financial management order under Part 3A of the Guardianship Act 1987 (NSW). The court concluded that an order under section 36 of the Powers of Attorney Act 2003 (NSW) should not be made, as QNH is incapable of managing their own affairs due to advanced age and Alzheimer's type dementia. The court further found that there was a significant conflict within QNH's family and that no private person was suitable to be appointed. Therefore, the NSW Trustee and Guardian was appointed to manage QNH's estate under the NSW Trustee and Guardian Act 2009 (NSW).

In summary, the Tribunal reviewed the operation and effect of the enduring power of attorney made by QNH and determined that it should not be revoked. The court also reviewed the interim financial management order and found it appropriate for it to continue. Consequently, the application to revoke the financial management order was dismissed. The court appointed the NSW Trustee and Guardian to manage QNH's estate.

Orders

Orders of the court

001: Review of an Enduring Power of Attorney

In relation to the enduring power of attorney made by QNH on 16 January 2018 which appointed EYH and NAH 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). 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).

003: Review or Revoke Financial Management Order

The Financial Management order for QNH made on 28 July 2021 has been reviewed. The order now is as follows:

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

2. The management of the estate of QNH is committed to the NSW Trustee and Guardian.

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:	QNH [2022] NSWCATGD 9
Hearing dates:	20 January 2022
Date of orders:	20 January 2022
Decision date:	20 January 2022
Jurisdiction:	Guardianship Division
Before:	A R Boxall, Senior Member (Legal) Associate Professor C Willcox, Senior Member (Professional) P J McGirr, General Member (Community)
Decision:	001: Review of an Enduring Power of Attorney In relation to the enduring power of attorney made by QNH on 16 January 2018 which appointed EYH and NAH 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). 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). 003: Review or Revoke Financial Management Order The Financial Management order for QNH made on 28 July 2021 has been reviewed. The order now is as follows: 1. The estate of QNH is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of QNH is committed to the NSW Trustee and Guardian.
Catchwords:	REVIEW OF ENDURING POWER OF ATTORNEY– where the subject person is now a permanent resident of another state – power of attorney made under the laws of NSW – Tribunal found to have jurisdiction – review of the operation and effect of an enduring power of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – decision to treat application to review an enduring power of attorney as an application for a financial management order – subject person is of advanced age – subject person with Alzheimer’s type dementia – subject person not capable of managing their own affairs – significant conflict within subject person’s family – no private person suitable to be appointed – NSW Trustee and Guardian appointed – order made. FINANCIAL MANAGEMENT – requested review of an interim financial management order – whether financial management order should be revoked – in the subject person’s best interests for the financial management order to continue – decision not to revoke financial management order – application dismissed.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 36 Guardianship Act 1987 (NSW), ss 4, 4(a), 25H Powers of Attorney Act 2003 (NSW), ss 5(f), 36, 36(1)-(2) Victorian Guardianship and Administration Act 2019 (Vic)
Cases Cited:	Burns v Corbett [2018] HCA 15 NBL [2019] NSWCATGD 5 Zistis v Zistis [2018] NSW 722
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Review of an Enduring Power of Attorney QNH (the person) FZN (applicant) NAH (attorney) EYH (attorney) NSW Trustee and Guardian 003: Review or Revoke Financial Management Order QNH (the person) EYH (applicant, appointed financial manager, carer) NSW Trustee and Guardian
Representation:	Nil.
File Number(s):	NCAT 2021/00153529
Publication restriction: