EYL [2022] NSWCATGD 8

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EYL [2022] NSWCATGD 8 Hearing dates: 20 June 2022 Date of orders: 20 June 2022 Decision date: 20 June 2022 Jurisdiction: Guardianship Division Before: B L Adamovich, Senior Member (Legal) M J Staples, Senior Member (Professional) A Healy, General Member (Community) Decision: Review of Enduring Guardianship Appointment: In relation to the enduring guardian appointment made by EYL on 18 September 2021 appointing DZD the Tribunal orders, directs or declares: The application for review is treated as if it were an application under the Guardianship Act 1987 (NSW) for a guardianship order for EYL. Review of Enduring Power of Attorney: In relation to the enduring power of attorney made by EYL on 13 August 2021 which appointed USD as attorney(s) the Tribunal determines, orders or declares: to conduct a review of the operation and effect 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. Guardianship order: 1. A guardianship order is made for EYL. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 20 June 2022. 4. This is a limited guardianship order giving the guardian(s) custody of EYL to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Access To decide what access EYL has to others and the conditions of access. b) Accommodation To decide where EYL may reside. c) Health care To decide what health care EYL may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where EYL is not capable of giving a valid consent. e) Services To make decisions about services to be provided to EYL. CONDITIONS: 6. The condition of this order is: a) Standard Condition In exercising this role, the guardian shall take all reasonable steps to bring EYL to an understanding of the issues and to obtain and consider their views before making significant decisions. Financial Management order: 1. The estate of EYL is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. USD 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. Catchwords: REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – person of advanced age – changes to long standing appointment of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – no order made – decision to treat application to review an enduring power of attorney as an application for a financial management order. FINANCIAL MANAGEMENT – whether subject person is incapable of managing their own affairs – need to pay for accommodation and care fees in an aged care facility – suitability of proposed private manager – private financial manager appointed – order made. REVIEW OF ENDURING GUARDIANSHIP – application to review an enduring guardianship appointment – no authority to make decisions about access under an enduring guardianship appointment – need for a guardian to make decisions about access – decision to treat the application to review an enduring guardianship appointment as an application for a guardianship order. GUARDIANSHIP – whether subject person is a person in need of a guardian – subject person has significant cognitive impairment – need for decisions to be made about access, accommodation, health care, medical and dental consent, and services – significant conflict within subject person's close family – subject person's family members support the appointment of the Public Guardian – Public Guardian appointed – order made. Legislation Cited: Electronic Transactions Act 2000 (NSW), s 14G Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 15(3), 25M, Pt 3A Powers of Attorney Act 2003 (NSW), ss 35(1), 36, 36(1)-(2), 37, 50(3) Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503 C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep CJ v AKJ [2015] NSWSC 498 [38], and P v NSW Trustee and Guardian [2015] NSWSC 579 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR 81 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re B [2011] NSWSC 1075 Re D [2012] NSWSC 1006 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 Texts Cited: None cited. Category: Principal judgment Parties: 001: Guardianship Application