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