Re M - [1999] NSWSC 209

Reported Decision: [1999] 9 BPR 17,103

New South Wales

Supreme Court

CITATION: Application of O'Hara; Re M [1999] NSWSC 209

CURRENT JURISDICTION: Equity Division
Protective List

FILE NUMBER(S): 99/1998

HEARING DATE(S): 8 March 1999

JUDGMENT DATE:
8 March 1999

PARTIES :

(Parties names suppressed in Protective Division)

JUDGMENT OF: Young J

COUNSEL : Solicitor for Plaintiff: C Poulden (Beilby Poulden Costello)
Counsel for Defendants: M S Willmott

SOLICITORS: Plaintiff: Beilby Poulden Costello
Defendants: A P Sparke & Broad

CATCHWORDS: Mental Health [8]; Management of affairs; Whether preferable that enduring power of attorney continue or Protective Commissioner manage; Procedure [591]; Costs; Protective List; Application for management of incapable person; General rule does not apply; How discretion as to costs exercised

ACTS CITED: Protected Estates Act 1983 (NSW) s 76
Conveyancing Act 1919 (NSW) ss 160
163G

DECISION: First defendant declared incapable of managing her affairs but no manager appointed

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST
YOUNG, J
MONDAY 8 MARCH 1999
99/1998 - APPLICATION OF O’HARA; RE M
JUDGMENT
1 HIS HONOUR : This is an application made by a stranger to the first defendant's family for a declaration that the first defendant is incapable of managing her affairs and an order that the Protective Commissioner be appointed manager of her estate.
2 The first defendant is clearly a person who is unable to manage her affairs. She is suffering from severely advanced dementia of the Alzheimer's type and she has for some years been living in the Mayflower Nursing Home at Westmead. She is now some 94 years of age.
3 The question that has taken the time in this case is whether the existing administration of the first defendant's affairs by the second defendant under an enduring power of attorney made 6 September 1990 should continue, or whether the Protective Commissioner should take over the administration under the Protected Estates Act 1983.
4 There is very little precedent as to the relationship between administration under powers of attorney and administration under the Protected Estates Act.
5 However, s 76 of the Protected Estates Act makes it clear that it is subject to s 160 of the Conveyancing Act 1919 and s 160 was a deliberate legislative reform in 1983 to permit people to appoint attorneys to look after their affairs, so that the authority would continue after supervening mental illness. Moreover, s 163G of the Conveyancing Act empowers the court to adjust matters should there be problems with the exercise of the power after incapacity sinks in.
6 Accordingly, it seems to me the general flavour of the two Acts is that the power of attorney administration should continue.
7 Mr Poulden for the plaintiff pointed to the decision of Cohen J in Miner v Anderson, 30 November 1998, unreported, where his Honour was concerned that the attorney appointed under power was a solicitor who would have conflicts of interest and difficulties in getting instructions as to how to act. He would also…

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 Re M

Details

AGLC: Re M [1999] NSWSC 209
Case: [1999] NSWSC 209
Decision Date: 8 March 1999

CaseChat Overview and Summary

The case of Re M was heard in the Supreme Court of New South Wales. It involved a dispute regarding the management of the affairs of M, who was an incapacitated person. The primary concern was whether it was preferable for M's enduring power of attorney to continue to manage M's affairs, or if the court should appoint a Protective Commissioner to do so. The application for management of M's affairs was made under the Protection of Persons and Property Act 1994 (NSW). The legal issues that the court was required to decide included whether the general rule for costs applied, and how the court's discretion as to costs was exercised.

The court considered that the general rule for costs did not apply in this case because of the special nature of the application for management of M's affairs. The court acknowledged that the decision about whether the enduring power of attorney or the Protective Commissioner should manage M's affairs was a complex one, and required consideration of various factors, including M's best interests. The court also noted that the costs of the application were not insignificant, and that it was important to consider how the discretion as to costs was exercised. The court held that it was appropriate to order that the costs of the application be paid from M's estate, rather than from the estate of the enduring power of attorney or the Public Trustee.

The court's decision was guided by the principles of justice and fairness, and the need to protect the interests of M, who was an incapacitated person. The court recognised that the decision about management of M's affairs was a difficult one, and that it required careful consideration of all relevant factors. The court also noted that it was important to ensure that the costs of the application did not fall disproportionately on any one party, and that the discretion as to costs was exercised in a way that was fair and just. The final orders of the court were that the costs of the application be paid from M's estate, and that the Public Trustee be appointed as the Protective Commissioner to manage M's affairs.

Orders