EB v GB (No 2) [2022] NSWSC 1011

Supreme Court New South Wales

Medium Neutral Citation: EB v GB (No 2) [2022] NSWSC 1011 Hearing dates: 21 July 2022 Decision date: 27 July 2022 Jurisdiction: Equity Before: Robb J Decision: See [129]-[138] below Catchwords: MENTAL HEALTH — jurisdiction — Supreme Court — protective jurisdiction — applicant daughter seeks personal access to father lacking capacity living in aged care facility — access precluded by decisions of applicant's mother and brothers and aged care facility — daughter earlier declared incapable of managing her own affairs and subject to estate management orders — father unable to communicate or perceive his circumstances — father appointed mother as enduring power of attorney and enduring guardian — whether exercise of Court's protective jurisdiction can enjoin mother from precluding personal access of daughter to father — whether for the benefit or in the interests of father that daughter have personal access to father before death — Court cannot enjoin mother where she lacks authority to preclude personal access to father — Court cannot enjoin mother or brothers from expressing opinions to aged care provider — personal access to father in remit of aged care provider AGENCY — enduring power of attorney — enduring power of guardian — scope of authority — whether appointee of enduring power of attorney pursuant to Powers of Attorney Act 2003 (NSW), Pts 2 and 4 has authority to preclude personal access to appointee — attorney has no such power — whether appointee of enduring power of guardian pursuant to Guardianship Act 1987 (NSW), Pt 2 has authority to preclude personal access to appointee — attorney has no such power unless specified in instrument of appointment Legislation Cited: Aged Care Act 1997 (NSW) Family Court Act 1997 (WA) Guardianship Act 1987 (NSW), Pt 2, ss 4, 5, 6, 6A, 6E, 6F, 16 Guardianship and Administration Act 1990 (WA), s 45 Guardianship and Administration Act 1995 (Tas), s 25 Guardianship and Administration Act 2000 (Qld), ss 10, 33, Sch 2 cl 2 Guardianship and Administration Act 2019 (Vic), ss 3, 38 Guardianship and Management of Property Act 1991 (ACT), ss 7, 7B Guardianship of Adults Act 2016 (NT), ss 3, 21 NSW Trustee and Guardian Act 2009 (NSW) Powers of Attorney Act 2003 (NSW), Pt 2, ss 9, 19, 21 Powers of Attorney Regulation 2016 (NSW), Sch 2 Cases Cited: Chapman v South Eastern Sydney Local Health District (2018) 98 NSWLR 208; [2018] NSWSC 1231 Re AAA; Report on a Protected Person's Attainment of the Age of Majority [2016] NSWSC 805 Re Anita (No 3) [2016] NSWSC 1959 The Hospital v S (a minor) [2019] NSWSC 642 Texts Cited: B Collier and S Lindsay, Powers of Attorney in Australia and New Zealand (1992, Federation Press) G E Dal Pont, Powers of Attorney (3rd ed, 2020, LexisNexis Butterworths) N O'Neill and C Peisah, Capacity and the Law (2011, Sydney University Press) G A Schindler and S E Sherry, Aldridge: Powers of Attorney (11th ed, 2016, Sweet & Maxwell) Category: Principal judgment Parties: EB (Plaintiff/Applicant) GB (First Defendant/Respondent) SB (Second Defendant/Respondent) RB (Third Defendant/Respondent) Representation: Counsel: MJ Connor (Plaintiff/Applicant) M Condon SC (Defendants/Respondents)