ZKN - [2021] NSWCATGD 34

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: ZKN [2021] NSWCATGD 34
Hearing dates: 18 August 2021
Date of orders: 18 August 2021
Decision date: 18 August 2021
Jurisdiction: Guardianship Division
Before: C L Grant, Senior Member (Legal)
Dr W Longley, Senior Member (Professional)
I Ferreira, General Member (Community)
Decision:
In relation to the enduring guardian appointment made by ZKN on 25 June 2021 appointing KAQ the Tribunal orders, directs or declares:
The enduring guardian appointment made by ZKN on 25 June 2021 is revoked.
The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for ZKN.
In relation to the enduring power of attorney made by ZKN on 25 June 2021 which appointed KAQ as attorney(s) the Tribunal determines, orders or declares:
to carry out a review of the making 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.
1. The estate of ZKN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. KAQ 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.
1. A guardianship order is made for ZKN.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 19 August 2021.
4. This is a limited guardianship order giving the guardian(s) custody of ZKN to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where ZKN may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take ZKN to a place approved by the guardian.
ii) keep her at that place.
iii) return her to that place should she leave it.
c) Health care
To decide what health care ZKN may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where ZKN is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to ZKN.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring ZKN to an understanding of the issues and to obtain and consider her views before making significant decisions.

Catchwords:
REVIEW OF ENDURING POWER OF ATTORNEY – review of the making of the enduring power of attorney – whether the subject person had capacity to enter into an enduring power of attorney – Law Society 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.

Continue reading ZKN

Details

AGLC: ZKN [2021] NSWCATGD 34
Case: [2021] NSWCATGD 34
Decision Date: 18 August 2021

CaseChat Overview and Summary

The case before the tribunal involved the review of an enduring power of attorney and an enduring guardianship appointment made by ZKN on 25 June 2021. The subject person, ZKN, diagnosed with dementia, was deemed incapable of managing her own financial affairs and in need of decisions to be made regarding her services, health care, and consent to medical and dental treatment. The tribunal was tasked with determining the capacity of ZKN to enter into these enduring appointments and whether orders under the relevant acts should be made. The court also considered the suitability of potential managers and guardians, ultimately deciding to appoint a private financial manager and a public guardian for ZKN.

The primary legal issues before the tribunal were whether ZKN had the capacity to make the enduring power of attorney and the enduring guardianship appointment, and if these appointments were valid. The tribunal applied the Law Society of New South Wales guidelines on assessing a client’s capacity and found that ZKN lacked the capacity to enter into these appointments. Consequently, the tribunal treated the application to review the enduring power of attorney as an application for a financial management order under the Guardianship Act 1987 (NSW). For the enduring guardianship appointment, the tribunal decided to treat the review application as an application for a guardianship order, finding that ZKN required a guardian due to her incapacity. The suitability of a private manager and a private guardian was assessed, leading to the appointment of a private financial manager and the public guardian.

The tribunal found ZKN to be incapable of managing her financial affairs and required a guardian for decisions regarding her services, health care, and consent to medical and dental treatment. Given ZKN’s advanced age and diagnosis of dementia, the tribunal determined that no private person was suitable for the role of guardian, and thus, the public guardian was appointed. For the financial management, KAQ was appointed as the financial manager, subject to obtaining necessary authorities from the NSW Trustee and Guardian. The tribunal revoked the previous enduring power of attorney and enduring guardianship appointment and made a guardianship order for ZKN, appointing the public guardian for a period of 12 months. The order specified the functions of the guardian, including decisions about ZKN’s residence, health care, medical and dental consent, and services, with a condition to involve ZKN in decision-making processes as much as possible.

The tribunal made several orders to address the incapacitated status of ZKN. Firstly, it revoked the enduring guardian appointment and treated the review application as an application for a guardianship order. Secondly, it determined that no order under section 36 of the Powers of Attorney Act 2003 (NSW) should be made and treated the review application of the enduring power of attorney as an application for a financial management order. The estate of ZKN was subject to management under the NSW Trustee and Guardian Act 2009 (NSW), with KAQ appointed as the financial manager. Additionally, a guardianship order was made for ZKN, appointing the Public Guardian as her guardian for a period of 12 months, with specific functions and conditions outlined for the guardian's role.

Orders

Orders of the court

In relation to the enduring guardian appointment made by ZKN on 25 June 2021 appointing KAQ the Tribunal orders, directs or declares:

The enduring guardian appointment made by ZKN on 25 June 2021 is revoked.

The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for ZKN.

In relation to the enduring power of attorney made by ZKN on 25 June 2021 which appointed KAQ as attorney(s) the Tribunal determines, orders or declares:

to carry out a review of the making 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.

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

2. KAQ 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.

1. A guardianship order is made for ZKN.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 19 August 2021.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where ZKN may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take ZKN to a place approved by the guardian.

ii) keep her at that place.

iii) return her to that place should she leave it.

c) Health care

To decide what health care ZKN may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to ZKN.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	ZKN [2021] NSWCATGD 34
Hearing dates:	18 August 2021
Date of orders:	18 August 2021
Decision date:	18 August 2021
Jurisdiction:	Guardianship Division
Before:	C L Grant, Senior Member (Legal) Dr W Longley, Senior Member (Professional) I Ferreira, General Member (Community)
Decision:	In relation to the enduring guardian appointment made by ZKN on 25 June 2021 appointing KAQ the Tribunal orders, directs or declares: The enduring guardian appointment made by ZKN on 25 June 2021 is revoked. The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for ZKN. In relation to the enduring power of attorney made by ZKN on 25 June 2021 which appointed KAQ as attorney(s) the Tribunal determines, orders or declares: to carry out a review of the making 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. 1. The estate of ZKN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. KAQ 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. 1. A guardianship order is made for ZKN. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 19 August 2021. 4. This is a limited guardianship order giving the guardian(s) custody of ZKN to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where ZKN may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take ZKN to a place approved by the guardian. ii) keep her at that place. iii) return her to that place should she leave it. c) Health care To decide what health care ZKN may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where ZKN is not capable of giving a valid consent. e) Services To make decisions about services to be provided to ZKN. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring ZKN to an understanding of the issues and to obtain and consider her views before making significant decisions.
Catchwords:	REVIEW OF ENDURING POWER OF ATTORNEY – review of the making of the enduring power of attorney – whether the subject person had capacity to enter into an enduring power of attorney – Law Society of…