Samantha (a pseudonym) - [2024] NSWCATGD 26

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Samantha (a pseudonym) [2024] NSWCATGD 26
Hearing dates: 12 August 2024
Date of orders: 12 August 2024
Decision date: 12 August 2024
Jurisdiction: Guardianship Division
Before: B M Shipp, Senior Member (Legal)
W E Blaxland, Senior Member (Professional)
Dr Susan Barnes, General Member (Community)
Decision:
In relation to the enduring power of attorney made by Samantha on 30 March 2021 which appointed Ellen and John as attorney(s) the Tribunal determines, orders or declares:
a)    to carry out a review of the operation and effect and making of the enduring power of attorney;
b) not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW) and dismiss the application;
c)    the application to appoint a financial manager is dismissed after hearing; and
d)    the application to appoint a guardian is dismissed after hearing.

Catchwords:
ENDURING POWER OF ATTORNEY – applicant has genuine concern for the subject person – whether the Tribunal should conduct a review – whether it is in the best interests of the subject person to conduct a review – review of the making, operation, and effect of the instrument – not satisfied that the subject person lacked the capacity to make the instrument – not satisfied that it would be in the best interests of the subject person or that it would better reflect their wishes to make an order under s 36(4) of the Powers of Attorney Act 2003 (NSW).
FINANCIAL MANAGEMENT – whether the subject person is incapable of managing their affairs – subject person currently lacks the capacity to manage their affairs – whether there is a need for a financial management order – the current attorney has undertaken their role in an acceptable fashion – the appointment of a financial manager would increase bureaucracy and management cost – there is not a need for a financial management order – application dismissed.
GUARDIANSHIP – whether the subject person is someone for whom the Tribunal could make an order – the subject person is unable to manage their person due to cognitive impairment – whether the Tribunal should make an order – the subject person has arrangements in place for substitute decisions – there is not a need for a guardianship order – application dismissed.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2); Pt 3A
Powers of Attorney Act 2003 (NSW), ss 19, 36, 36(1)-(2), 36(4)

Cases Cited:
Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Szozda v Szozda [2010] NSWSC 804
Re K[1988] Ch 310
Scott v Scott[2012] NSWSC 1541
IF v IG [2004] NSWADTAP 3

Texts Cited:
The Law Society of New South Wales, “Questions for preparing an Enduring Power of Attorney” (2018)

Category: Principal judgment
Parties:
Guardianship Application

Samantha (the person)
Alice (applicant)
Ellen (enduring guardian)
Public Guardian

Financial Management Application

Samantha (the person)
Alice (applicant)
Ellen (attorney)
NSW Trustee and Guardian

Review of an Enduring Power of Attorney
Samantha…

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 Samantha (a pseudonym)

Details

AGLC: Samantha (a pseudonym) [2024] NSWCATGD 26
Case: [2024] NSWCATGD 26
Decision Date: 12 August 2024

CaseChat Overview and Summary

Samantha, the subject person, applied for a review of the enduring power of attorney made on 30 March 2021, which appointed Ellen and John as attorneys. Additionally, she applied for a financial manager and a guardian to be appointed, arguing she lacked the capacity to manage her affairs due to cognitive impairment. The case was heard by the Tribunal, which had to determine whether a review of the enduring power of attorney should be conducted, whether it was in Samantha’s best interests to make an order under section 36(4) of the Powers of Attorney Act 2003 (NSW), and whether there was a need for a financial management or guardianship order.

The Tribunal considered whether Samantha lacked the capacity to make the enduring power of attorney and whether it was in her best interests to review it. The Tribunal found that Samantha did not lack the capacity to make the enduring power of attorney and was not satisfied that a review would be in her best interests or reflect her wishes. Regarding financial management, the Tribunal found that Samantha currently lacked the capacity to manage her affairs, but the current attorneys had undertaken their role acceptably. The Tribunal was not satisfied that appointing a financial manager was necessary, as it would increase bureaucracy and management costs. As for guardianship, the Tribunal found that Samantha was unable to manage her person due to cognitive impairment, but she had arrangements in place for substitute decisions, making an order unnecessary.

The Tribunal dismissed the application to review the making of the enduring power of attorney and to make an order under section 36 of the Powers of Attorney Act 2003 (NSW). The application to appoint a financial manager and a guardian were also dismissed after hearing. The Tribunal did, however, order a review of the operation and effect of the enduring power of attorney.

No further orders were made by the Tribunal.

Orders

Orders of the court

In relation to the enduring power of attorney made by Samantha on 30 March 2021 which appointed Ellen and John as attorney(s) the Tribunal determines, orders or declares:

a) to carry out a review of the operation and effect and making of the enduring power of attorney;

b) not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW) and dismiss the application;

c) the application to appoint a financial manager is dismissed after hearing; and

d) the application to appoint a guardian 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:	Samantha (a pseudonym) [2024] NSWCATGD 26
Hearing dates:	12 August 2024
Date of orders:	12 August 2024
Decision date:	12 August 2024
Jurisdiction:	Guardianship Division
Before:	B M Shipp, Senior Member (Legal) W E Blaxland, Senior Member (Professional) Dr Susan Barnes, General Member (Community)
Decision:	In relation to the enduring power of attorney made by Samantha on 30 March 2021 which appointed Ellen and John as attorney(s) the Tribunal determines, orders or declares: a) to carry out a review of the operation and effect and making of the enduring power of attorney; b) not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW) and dismiss the application; c) the application to appoint a financial manager is dismissed after hearing; and d) the application to appoint a guardian is dismissed after hearing.
Catchwords:	ENDURING POWER OF ATTORNEY – applicant has genuine concern for the subject person – whether the Tribunal should conduct a review – whether it is in the best interests of the subject person to conduct a review – review of the making, operation, and effect of the instrument – not satisfied that the subject person lacked the capacity to make the instrument – not satisfied that it would be in the best interests of the subject person or that it would better reflect their wishes to make an order under s 36(4) of the Powers of Attorney Act 2003 (NSW). FINANCIAL MANAGEMENT – whether the subject person is incapable of managing their affairs – subject person currently lacks the capacity to manage their affairs – whether there is a need for a financial management order – the current attorney has undertaken their role in an acceptable fashion – the appointment of a financial manager would increase bureaucracy and management cost – there is not a need for a financial management order – application dismissed. GUARDIANSHIP – whether the subject person is someone for whom the Tribunal could make an order – the subject person is unable to manage their person due to cognitive impairment – whether the Tribunal should make an order – the subject person has arrangements in place for substitute decisions – there is not a need for a guardianship order – application dismissed.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2); Pt 3A Powers of Attorney Act 2003 (NSW), ss 19, 36, 36(1)-(2), 36(4)
Cases Cited:	Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 Szozda v Szozda [2010] NSWSC 804 Re K[1988] Ch 310 Scott v Scott[2012] NSWSC 1541 IF v IG [2004] NSWADTAP 3
Texts Cited:	The Law Society of New South Wales, “Questions for preparing an Enduring Power of Attorney” (2018)
Category:	Principal judgment
Parties:	Guardianship Application Samantha (the person) Alice (applicant) Ellen (enduring guardian) Public Guardian Financial Management Application Samantha (the person) Alice (applicant) Ellen (attorney) NSW Trustee and Guardian Review of an Enduring Power of Attorney Samantha…