KZV [2020] NSWCATGD 45

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: KZV [2020] NSWCATGD 45 Hearing dates: 26 March 2020 Date of orders: 26 March 2020 Decision date: 26 March 2020 Jurisdiction: Guardianship Division Before: R H Booby, Senior Member (Legal) M E Burke, Senior Member (Professional) P Davidson, General Member (Community) Decision: In relation to the enduring guardian appointment made by KZV on 13 December 2010 appointing EDU, HKU and KYU the Tribunal orders, directs or declares: The appointment of EDU, HKU and KYU as an enduring guardian is confirmed. In relation to the enduring power of attorney made by KZV on 13 December 2010 which appointed EDU, HKU and KYU as attorneys the Tribunal determines, orders or declares: (a) not to carry out a review of the making of the enduring power of attorney; (b) to carry out a review of the operation and effect of the enduring power of attorney. The term of, or a power conferred by, the enduring power of attorney is varied by variation of paragraph 6(a) that provides that "My attorneys are authorised by the Power of Attorney to make decisions by way of a simple majority in the event of three or more attorneys and in the event of two or less attorneys then unanimously" to read: "My attorneys are authorised to make decisions unanimously." EDU is removed from office as an attorney. Catchwords: REVIEW OF ENDURING GUARDIANSHIP – review of an enduring guardianship – whether enduring guardianship appointment should be revoked – whether principal's wishes not reflected in enduring guardianship appointment – three enduring guardians appointed - enduring guardian decisions to be made by a simple majority – no decisions to be made which cannot be made under existing appointment – not in subject person's best interests to revoke appointment – appointment confirmed. REVIEW OF ENDURING POWER OF ATTORNEY – whether the Tribunal should review the operation and effect of an enduring power of attorney – whether appointment was unworkable – principal's resources depleted, action required to manage estate – principal successful in action brought against attorney – conflict of interest – not possible for attorney to pursue their own interests whilst pursuing interests of principal – not in the best interests of the principal that attorney remain appointed – enduring power of attorney varied – attorney removed. INTERLOCUTORY – application for an adjournment – procedural fairness – hearing rule – whether an adjournment required to allow in-person support person, and further witnesses, to attend – whether adjournment required to allow in-person support to be provided to party with ADHD - guiding principle to facilitate the just, quick, and cheap resolution of the real issues – possible for witnesses to give evidence by telephone – possible for parties to participate by telephone – opportunities for private discussion given – substitute support person provided - not unusual for hearings to be conducted by telephone – insufficient reason for adjournment – application dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 36 Guardianship Act 1987 (NSW), ss 4; Pt 3A Powers of Attorney Act 2003 (NSW), ss 36, 36(1)-(2) Cases Cited: Re R [2000] NSWSC 886 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 Texts Cited: Nil Category: Principal judgment Parties: 005: Review of an Enduring Guardianship Appointment KZV (the person) EDU (applicant, enduring guardian) KYU (enduring guardian) HKU (enduring guardian) NSW Public Guardian NSW Trustee and Guardian