XZG - [2021] NSWCATGD 26

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: XZG [2021] NSWCATGD 26
Hearing dates: 7 October 2021 and 10 December 2021
Date of orders: 10 December 2021
Decision date: 10 December 2021
Jurisdiction: Guardianship Division
Before: L Organ, Senior Member (Legal)
E Love, Senior Member (Professional)
M Watson, General Member (Community)
Decision:
Review of an Enduring Guardianship Appointment:
In relation to the enduring guardian appointment made by XZG on 6 February 2019 appointing SAG the Tribunal orders, directs or declares:
The appointment of SAG as an enduring guardian is confirmed.
Review of an Enduring Power of Attorney:
In relation to the enduring power of attorney made by XZG on 6 February 2019 which appointed SAG as attorney(s) the Tribunal determines, orders or declares:
to carry out a review of the making and operation and effect of the enduring power of attorney.
Not to make an order under section 36 of the Powers of Attorney Act 2003 and dismiss the application.

Catchwords:
REVIEW OF ENDURING GUARDIANSHIP – statutory framework for review of an enduring guardian appointment – subject person diagnosed with dementia – whether subject person had capacity to make an enduring guardianship appointment – conflict between family members – joint appointment not in subject person's best interests – no decisions to be made which cannot be made under existing appointment – appointment of sole enduring guardian confirmed – no orders made.
REVIEW OF ENDURING POWER OF ATTORNEY – operation of s 36 of the Powers of Attorney Act 2003 (NSW) – Tribunal exercises discretion to review the making and operation and effect of the enduring power of attorney – whether subject person had capacity to make a power of attorney – duties and obligations of an attorney – fiduciary duty – duty to keep records – joint accounts – no evidence of mismanagement of financial affairs – no need for independent audit – no orders made – application dismissed.

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), s 36(1)
Guardianship Act 1987 (NSW), ss 3, 3(2), 4, 4(a), 4(d)-(e), 6, 6A(1)(a), 6E(1)(a), 6J(1), 14, 16(2)
Powers of Attorney Act 2003 (NSW), Div 4, Pt 3; ss 12(1), 36, 36(1), 36(3)-(9), 37(1)

Cases Cited:
Banks v Goodfellow (1870) LR 5 QB 549 at 564-565
Gibbons v Wright (1954) 91 CLR 423
Ranclaud v Cabban (1988) NSW ConvR 55-385
Scott v Scott [2012] NSWSC 1541
Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Szozda v Szozda [2010] NSWSC 804
Tulloch (deceased) v Braybon (No 2) [2010] NSWSC 650

Texts Cited:
JD Dal Pont, Powers of Attorney in Australia (2010, Lexis-Nexis Butterworths)
Berna Collier and Shannon Lindsay, Powers of Attorney in Australia and New Zealand (1992, Federation Press)

Category: Principal judgment
Parties:
001: Review of an Enduring Guardianship Appointment

XZG (the person)
KFG (applicant)

SAG (enduring guardian, spouse)
Public Guardian
NSW Trustee and Guardian

003: Review of an Enduring Power of Attorney
XZG (the person)
KFG (applicant)
SAG (attorney)
NSW Trustee and Guardian
Representation: J…

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 XZG

Details

AGLC: XZG [2021] NSWCATGD 26
Case: [2021] NSWCATGD 26
Decision Date: 10 December 2021

CaseChat Overview and Summary

The parties involved in this case were XZG, SAG, and other family members. The dispute centred on the review of an enduring guardianship appointment and an enduring power of attorney made by XZG on 6 February 2019. The case was heard by the Tribunal. The primary legal issues that the Tribunal had to address were whether XZG had the capacity to make an enduring guardianship appointment and an enduring power of attorney, and if SAG, who was appointed as the enduring guardian and attorney, had managed the affairs of XZG appropriately.

The Tribunal confirmed that XZG had the capacity to make an enduring guardianship appointment and an enduring power of attorney. The Tribunal also found that SAG had not mismanaged the financial affairs of XZG and that there was no need for an independent audit. However, the Tribunal found that a joint appointment of enduring guardians was not in XZG's best interests due to conflicts between family members. Therefore, the Tribunal confirmed the appointment of SAG as the sole enduring guardian and dismissed the application for a review of the enduring power of attorney. The Tribunal did not make any orders under section 36 of the Powers of Attorney Act 2003.

The Tribunal's reasoning was based on the evidence presented and the statutory framework for the review of enduring guardianship and enduring power of attorney appointments. The Tribunal considered the capacity of XZG to make the appointments, the duties and obligations of SAG as an attorney, and the best interests of XZG. The Tribunal also considered the conflict between family members and the need for a sole enduring guardian. The outcome was that the appointment of SAG as the sole enduring guardian was confirmed, and the application for a review of the enduring power of attorney was dismissed.

Orders

Orders of the court

Review of an Enduring Guardianship Appointment:

In relation to the enduring guardian appointment made by XZG on 6 February 2019 appointing SAG the Tribunal orders, directs or declares:

The appointment of SAG as an enduring guardian is confirmed.

Review of an Enduring Power of Attorney:

In relation to the enduring power of attorney made by XZG on 6 February 2019 which appointed SAG as attorney(s) the Tribunal determines, orders or declares:

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

Not to make an order under section 36 of the Powers of Attorney Act 2003 and dismiss the application.

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:	XZG [2021] NSWCATGD 26
Hearing dates:	7 October 2021 and 10 December 2021
Date of orders:	10 December 2021
Decision date:	10 December 2021
Jurisdiction:	Guardianship Division
Before:	L Organ, Senior Member (Legal) E Love, Senior Member (Professional) M Watson, General Member (Community)
Decision:	Review of an Enduring Guardianship Appointment: In relation to the enduring guardian appointment made by XZG on 6 February 2019 appointing SAG the Tribunal orders, directs or declares: The appointment of SAG as an enduring guardian is confirmed. Review of an Enduring Power of Attorney: In relation to the enduring power of attorney made by XZG on 6 February 2019 which appointed SAG as attorney(s) the Tribunal determines, orders or declares: to carry out a review of the making and operation and effect of the enduring power of attorney. Not to make an order under section 36 of the Powers of Attorney Act 2003 and dismiss the application.
Catchwords:	REVIEW OF ENDURING GUARDIANSHIP – statutory framework for review of an enduring guardian appointment – subject person diagnosed with dementia – whether subject person had capacity to make an enduring guardianship appointment – conflict between family members – joint appointment not in subject person's best interests – no decisions to be made which cannot be made under existing appointment – appointment of sole enduring guardian confirmed – no orders made. REVIEW OF ENDURING POWER OF ATTORNEY – operation of s 36 of the Powers of Attorney Act 2003 (NSW) – Tribunal exercises discretion to review the making and operation and effect of the enduring power of attorney – whether subject person had capacity to make a power of attorney – duties and obligations of an attorney – fiduciary duty – duty to keep records – joint accounts – no evidence of mismanagement of financial affairs – no need for independent audit – no orders made – application dismissed.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 36(1) Guardianship Act 1987 (NSW), ss 3, 3(2), 4, 4(a), 4(d)-(e), 6, 6A(1)(a), 6E(1)(a), 6J(1), 14, 16(2) Powers of Attorney Act 2003 (NSW), Div 4, Pt 3; ss 12(1), 36, 36(1), 36(3)-(9), 37(1)
Cases Cited:	Banks v Goodfellow (1870) LR 5 QB 549 at 564-565 Gibbons v Wright (1954) 91 CLR 423 Ranclaud v Cabban (1988) NSW ConvR 55-385 Scott v Scott [2012] NSWSC 1541 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 Szozda v Szozda [2010] NSWSC 804 Tulloch (deceased) v Braybon (No 2) [2010] NSWSC 650
Texts Cited:	JD Dal Pont, Powers of Attorney in Australia (2010, Lexis-Nexis Butterworths) Berna Collier and Shannon Lindsay, Powers of Attorney in Australia and New Zealand (1992, Federation Press)
Category:	Principal judgment
Parties:	001: Review of an Enduring Guardianship Appointment XZG (the person) KFG (applicant) SAG (enduring guardian, spouse) Public Guardian NSW Trustee and Guardian 003: Review of an Enduring Power of Attorney XZG (the person) KFG (applicant) SAG (attorney) NSW Trustee and Guardian
Representation:	J…