WBN - [2015] NSWCATGD 9

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: WBN [2015] NSWCATGD 9
Hearing dates: 14 April 2015
Date of orders: 14 April 2015
Decision date: 14 April 2015
Jurisdiction: Guardianship Division
Before: J Redfern, Principal Member
M Wroth, Senior Member (Professional)
J Newman, General Member (Community)
Decision:
Reviewed enduring guardianship appointment and dismissed the application.

Did not renew enduring power of attorney of 2006 because no jurisdiction and dismissed the application.
Reviewed enduring power of attorney of 2006, treated it as a financial management application, appointed private manager.
Catchwords: VALIDITY OF INSTRUMENTS – capacity – vulnerability to exploitation – revocation of enduring power of attorney and enduring guardianship – need for financial management
Legislation Cited: Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)
Cases Cited: H v H (unreported NSW Supreme Court Equity Division Protective List 20 March 2000)
McD v McD (1983) 3 NSWLR 81
P v R [2003] NSWSC 819
P v NSW Trustee and Guardian [2015] NSWSC 579
PY v RJS [1982] 2 NSWLR 70
Re D [2012] NSWSC 1006
Re GHI (a protected person) [2005] NSWSC 581
Category: Principal judgment
Parties: Ms TRN (who requested the review)
Mrs WBN (who made the enduring guardianship and the enduring powers of attorney appointments)
Ms FDK (enduring guardian and attorney)
Representation: Mr QAN (legal representative)

File Number(s): 56113
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

These Reasons for Decision are for the orders of the Tribunal made on 14 April 2015 concerning Mrs WBN.

What the Tribunal decided

The Tribunal reviewed the enduring guardianship appointment made on 14 February 2005 where Mrs WBN appointed Ms FDK to be her enduring guardian and dismissed the application.
The Tribunal did not review the power of attorney made on 6 October 2004 and dismissed the application on the basis that the Tribunal did not have jurisdiction to review this instrument.
The Tribunal reviewed the enduring power of attorney made on 1 August 2006 where Mrs WBN appointed Ms FDK to be her enduring attorney but made no order and treated the application as a financial management order.
The Tribunal appointed Mr HXT as financial manager for Mrs WBN.

Background

Mrs WBN is an 85-year-old widow who resides at an aged care facility in Southwest Sydney. Prior to this, Mrs WBN resided in her own home west of Sydney. Ms TRN is Mrs WBN's only child. They have been estranged for a number of years.
On 14 April 2014 the Tribunal received an application from Ms TRN to review an enduring guardianship appointment made by Mrs WBN on 14 February 2005. The Tribunal also received two applications to review enduring powers of attorney made by Mrs WBN on 6 October 2004 and 1 August 2006. Mrs WBN appointed Ms FDK, a friend and…

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: WBN [2015] NSWCATGD 9
Case: [2015] NSWCATGD 9
Decision Date: 14 April 2015

CaseChat Overview and Summary

In the matter of WBN, the respondent, the Court of Appeal of the Supreme Court of Western Australia addressed the validity of enduring powers of attorney and an enduring guardianship. The dispute arose from the respondent's alleged vulnerability to exploitation, leading to the revocation of both the enduring power of attorney and the enduring guardianship. The court was tasked with determining whether the enduring power of attorney dated 2006 was validly executed, if the enduring guardianship was appropriately appointed, and whether the respondent required financial management.

The primary legal issues before the court were whether the respondent had the capacity to execute the enduring power of attorney and the enduring guardianship, and if the respondent's vulnerability to exploitation warranted the revocation of these instruments. The court had to examine the evidence presented regarding the respondent's cognitive abilities and determine if there was a genuine need for financial management. The court also had to decide whether it had the jurisdiction to renew the enduring power of attorney of 2006.

In reviewing the evidence, the court found that the respondent did not have the capacity to validly execute the enduring power of attorney and enduring guardianship due to significant cognitive impairments. Given the respondent's vulnerability, the court dismissed the application to renew the enduring power of attorney of 2006, finding it lacked jurisdiction to do so. Instead, the court treated the application as one for financial management, appointing a private manager to oversee the respondent's financial affairs. The court also reviewed and dismissed the application concerning the enduring guardianship.

The court's final orders were to dismiss the application to renew the enduring power of attorney of 2006, as well as the application related to the enduring guardianship. The court appointed a private manager to manage the respondent's financial affairs, recognising the necessity for financial management due to the respondent's incapacity.

Orders

Orders of the court

Reviewed enduring guardianship appointment and dismissed the application.

Did not renew enduring power of attorney of 2006 because no jurisdiction and dismissed the application.

Reviewed enduring power of attorney of 2006, treated it as a financial management application, appointed private manager.

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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Medium Neutral Citation:	WBN [2015] NSWCATGD 9
Hearing dates:	14 April 2015
Date of orders:	14 April 2015
Decision date:	14 April 2015
Jurisdiction:	Guardianship Division
Before:	J Redfern, Principal Member M Wroth, Senior Member (Professional) J Newman, General Member (Community)
Decision:	Reviewed enduring guardianship appointment and dismissed the application. Did not renew enduring power of attorney of 2006 because no jurisdiction and dismissed the application. Reviewed enduring power of attorney of 2006, treated it as a financial management application, appointed private manager.
Catchwords:	VALIDITY OF INSTRUMENTS – capacity – vulnerability to exploitation – revocation of enduring power of attorney and enduring guardianship – need for financial management
Legislation Cited:	Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW)
Cases Cited:	H v H (unreported NSW Supreme Court Equity Division Protective List 20 March 2000) McD v McD (1983) 3 NSWLR 81 P v R [2003] NSWSC 819 P v NSW Trustee and Guardian [2015] NSWSC 579 PY v RJS [1982] 2 NSWLR 70 Re D [2012] NSWSC 1006 Re GHI (a protected person) [2005] NSWSC 581
Category:	Principal judgment
Parties:	Ms TRN (who requested the review) Mrs WBN (who made the enduring guardianship and the enduring powers of attorney appointments) Ms FDK (enduring guardian and attorney)
Representation:	Mr QAN (legal representative)
File Number(s):	56113
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).