SZQ - [2018] NSWCATGD 50

NSW Civil and Administrative Tribunal

New South Wales

Case Name:	SZQ
Medium Neutral Citation:	[2018] NSWCATGD 50
Hearing Date(s):	13 March 2018
Date of Orders:	13 March 2018
Decision Date:	13 March 2018
Jurisdiction:	Guardianship Division
Before:	G Bartley, Senior Member (Legal) S Flanagan, Senior Member (Professional) D Crowley, General Member
Decision:	In relation to the enduring power of attorney made by SZQ on 20 February 2012 which appointed TAQ as attorney 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). 1. The estate of SZQ is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of SZQ is committed to the NSW Trustee and Guardian.
Catchwords:	REVIEW OF AN ENDURING POWER OF ATTORNEY – 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 – mismanagement of funds by the attorney – large portion of the principal’s estate spent or transferred to the attorney and her family members as gifts – 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 – significant cognitive impairment – need to pay for costs related to residential aged care and medical care – no private person suitable to be appointed – NSW Trustee and Guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 25M, Pt 3A Powers of Attorney Act 2003 (NSW), ss 11(2), 12(1)-(2) and 13(2), 19, 36, 36(1)-(2), 50(3), Sch 3
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 CJ v AKJ [2015] NSWSC 498 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR P v NSW Trustee and Guardian [2015] NSWSC 579 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	006: Review of an Enduring Power of Attorney SZQ (the person) TAQ (applicant) WYE (attorney) NSW Trustee and Guardian (joined party)
Representation:	Nil.
File Number(s):	NCAT 2011/00418288
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

What the Tribunal decided

The Tribunal decided to review the operation and effect of the…

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 SZQ

Details

AGLC: SZQ [2018] NSWCATGD 50
Case: [2018] NSWCATGD 50
Decision Date: 13 March 2018

CaseChat Overview and Summary

In the case of SZQ, the New South Wales Civil and Administrative Tribunal was tasked with reviewing the operation and effect of an enduring power of attorney. The principal, SZQ, had appointed TAQ as their attorney, but concerns arose regarding the attorney's management of the principal's funds, with a significant portion being spent or transferred as gifts to the attorney and her family members. The Tribunal had to determine whether an order should be made under section 36 of the Powers of Attorney Act 2003 (NSW) and consider alternative arrangements for the management of SZQ's estate.

The central legal issues revolved around the proper use of the enduring power of attorney and whether the attorney had mismanaged the principal's funds. The Tribunal also had to consider the best course of action for the future management of SZQ's estate, given the principal's advanced age and significant cognitive impairment, and the necessity to fund residential aged care and medical expenses. The court needed to balance the need for financial oversight with the rights of the attorney under the enduring power of attorney.

The Tribunal decided to treat the application to review the enduring power of attorney as an application for a financial management order under Part 3A of the Guardianship Act 1987 (NSW). Given the circumstances, the Tribunal determined that no private person was suitable to be appointed as a financial manager. Therefore, the estate of SZQ was subject to management under the NSW Trustee and Guardian Act 2009 (NSW), and the management of the estate was committed to the NSW Trustee and Guardian.

In summary, the Tribunal reviewed the enduring power of attorney, found no basis for making an order under section 36 of the Powers of Attorney Act, and instead treated the application as one for a financial management order. The estate of SZQ was then placed under the management of the NSW Trustee and Guardian, ensuring proper oversight and care for the principal's financial affairs.

Orders

Orders of the court

In relation to the enduring power of attorney made by SZQ on 20 February 2012 which appointed TAQ as attorney 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).

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

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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