YJD - [2024] NSWCATGD 18

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: YJD [2024] NSWCATGD 18
Hearing dates: 23 February 2024 and
3 April 2024
Date of orders: 26 February 2024 (Review enduring guardianship)
3 April 2024 (Review enduring power of attorney)
Decision date: 03 April 2024
Jurisdiction: Guardianship Division
Before: J Moir, Senior Member (Legal)
M Bain, Senior Member (Professional)
P Davidson, General Member (Community)
Decision:
Review Enduring Guardianship (26 February
2024)
In relation to the application to review an enduring guardian appointment made by Noel on 18 October 2023, appointing Susan, the Tribunal orders, directs or declares:
The application to review the enduring guardianship made on 18 October 2023 is treated as an application for a guardianship order.
1. A guardianship order is made for Noel
2. Violet of [address removed for publication], is
appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 26 February 2024.
4. This is a limited guardianship order giving the guardian custody of Noel to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a)   Accommodation
To decide where Noel may reside.
b)   Health care
To decide what health care Noel may receive.
c)   Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where Noel is not capable of giving a valid consent.
d)   Services
To make decisions about services to be provided to Noel.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring Noel to an understanding of the issues and to obtain and consider his views before making significant decisions.
Review Enduring Power of Attorney (23 February 2024)
Today’s hearing is adjourned, part heard.
By 27 February 2024, Susan is to send the Tribunal, the Separate Representative and other parties copies of any reports from Dr Andrew Milne, subsequent to his report of 4 September 2023.
The Tribunal notes that parties are not expected to file any further evidence or submissions, with the exception of the documents referred to above, prior to the hearing on 3 April 2024. If there is further evidence or submissions not already included in the material submitted to date, it should be cross served and submitted no later than 19 March 2024. Material submitted after this date may not be accepted into the hearing papers.
Review Enduring Power of Attorney (3 April 2024)
In relation to the enduring power of attorney made by Noel on 18 October 2023 which appointed Susan as attorney the Tribunal determines:
Not to make an order under section 36 of the Powers of Attorney Act 2003. The application for review of the enduring power of attorney is treated as an application for a financial management order under Part 3A of the Guardianship Act 1987 (NSW).
No later than 10 April 2024, Susan and Ms Timms are directed to handover or pay over all of…

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: YJD [2024] NSWCATGD 18
Case: [2024] NSWCATGD 18
Decision Date: 03 April 2024

CaseChat Overview and Summary

The case involved an application to review an enduring power of attorney and an enduring guardianship concerning an individual named Noel. The application for the review of the enduring power of attorney was made by a party alleging financial exploitation and questioning whether Noel had the capacity to appoint an attorney. Additionally, there was an application to review an enduring guardianship appointment made by Noel, appointing Susan as the guardian. The tribunal needed to decide whether Noel was incapable of managing his own affairs and whether the tribunal should make orders under section 36 of the Powers of Attorney Act.

The tribunal determined that Noel was incapable of managing his own affairs, treating the application to review the enduring power of attorney as an application for a financial management order. Consequently, a private financial manager was appointed to manage Noel's estate, and the enduring power of attorney was suspended. The tribunal also treated the application to review the enduring guardianship as an application for a guardianship order. Finding that the appointed guardian was not suitable, the tribunal appointed Violet as the guardian, issuing a limited guardianship order with specific functions, including accommodation, health care, and medical consent.

The final orders included appointing Violet as the guardian for Noel for a period of 12 months, with conditions that she must consider Noel's views before making significant decisions. For the enduring power of attorney, Violet was appointed as the financial manager of Noel's estate, with instructions to Susan and Ms Timms to hand over all of Noel's estate details by a specified date. All Enduring Powers of Attorney were suspended, and the attorneys were not permitted to operate under that authority.

Orders

Orders of the court

Review Enduring Guardianship (26 February

2024)

In relation to the application to review an enduring guardian appointment made by Noel on 18 October 2023, appointing Susan, the Tribunal orders, directs or declares:

The application to review the enduring guardianship made on 18 October 2023 is treated as an application for a guardianship order.

1. A guardianship order is made for Noel

2. Violet of [address removed for publication], is

appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 26 February 2024.

4. This is a limited guardianship order giving the guardian custody of Noel to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where Noel may reside.

b) Health care

To decide what health care Noel may receive.

c) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where Noel is not capable of giving a valid consent.

d) Services

To make decisions about services to be provided to Noel.

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring Noel to an understanding of the issues and to obtain and consider his views before making significant decisions.

Review Enduring Power of Attorney (23 February 2024)

Today’s hearing is adjourned, part heard.

By 27 February 2024, Susan is to send the Tribunal, the Separate Representative and other parties copies of any reports from Dr Andrew Milne, subsequent to his report of 4 September 2023.

The Tribunal notes that parties are not expected to file any further evidence or submissions, with the exception of the documents referred to above, prior to the hearing on 3 April 2024. If there is further evidence or submissions not already included in the material submitted to date, it should be cross served and submitted no later than 19 March 2024. Material submitted after this date may not be accepted into the hearing papers.

Review Enduring Power of Attorney (3 April 2024)

In relation to the enduring power of attorney made by Noel on 18 October 2023 which appointed Susan as attorney the Tribunal determines:

Not to make an order under section 36 of the Powers of Attorney Act 2003. The application for review of the enduring power of attorney is treated as an application for a financial management order under Part 3A of the Guardianship Act 1987 (NSW).

No later than 10 April 2024, Susan and Ms Timms are directed to handover or pay over all of the estate of Noel, including details of his bank/building society/credit union accounts to Violet. The Tribunal notes Ms Timms undertaking at the hearing to assist in this process.

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

2. Violet of [Address removed for publication.] is appointed as the financial manager of the estate.

NOTE: The financial manager is not authorised to deal with the estate (other than to protect the assets) until he/she has obtained all necessary authorities from the NSW Trustee and Guardian.

The Tribunal notes that as a financial management order is now in place, all Enduring Powers of Attorney are suspended, and the attorneys are not entitled to operate under that authority.

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:	YJD [2024] NSWCATGD 18
Hearing dates:	23 February 2024 and 3 April 2024
Date of orders:	26 February 2024 (Review enduring guardianship) 3 April 2024 (Review enduring power of attorney)
Decision date:	03 April 2024
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) M Bain, Senior Member (Professional) P Davidson, General Member (Community)
Decision:	Review Enduring Guardianship (26 February 2024) In relation to the application to review an enduring guardian appointment made by Noel on 18 October 2023, appointing Susan, the Tribunal orders, directs or declares: The application to review the enduring guardianship made on 18 October 2023 is treated as an application for a guardianship order. 1. A guardianship order is made for Noel 2. Violet of [address removed for publication], is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 26 February 2024. 4. This is a limited guardianship order giving the guardian custody of Noel to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where Noel may reside. b) Health care To decide what health care Noel may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where Noel is not capable of giving a valid consent. d) Services To make decisions about services to be provided to Noel. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring Noel to an understanding of the issues and to obtain and consider his views before making significant decisions. Review Enduring Power of Attorney (23 February 2024) Today’s hearing is adjourned, part heard. By 27 February 2024, Susan is to send the Tribunal, the Separate Representative and other parties copies of any reports from Dr Andrew Milne, subsequent to his report of 4 September 2023. The Tribunal notes that parties are not expected to file any further evidence or submissions, with the exception of the documents referred to above, prior to the hearing on 3 April 2024. If there is further evidence or submissions not already included in the material submitted to date, it should be cross served and submitted no later than 19 March 2024. Material submitted after this date may not be accepted into the hearing papers. Review Enduring Power of Attorney (3 April 2024) In relation to the enduring power of attorney made by Noel on 18 October 2023 which appointed Susan as attorney the Tribunal determines: Not to make an order under section 36 of the Powers of Attorney Act 2003. The application for review of the enduring power of attorney is treated as an application for a financial management order under Part 3A of the Guardianship Act 1987 (NSW). No later than 10 April 2024, Susan and Ms Timms are directed to handover or pay over all of…