BZD [2021] NSWCATGD 28

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BZD [2021] NSWCATGD 28 Hearing dates: 23 July 2021 Date of orders: 23 July 2021 Decision date: 23 July 2021 Jurisdiction: Guardianship Division Before: S Roushan, Senior Member (Legal) Associate Professor C Willcox, Senior Member (Professional) M McCalman, General Member (Community) Decision: Review of Enduring Power of Attorney In relation to the enduring power of attorney made by BZD on 20 December 2019 which appointed WAD as attorney(s) the Tribunal determines, orders or declares: to carry out a review of the operation and effect and making of the enduring power of attorney. The appointment of WAD as an enduring power of attorney is revoked. Review of Enduring Guardianship In relation to the enduring guardian appointment made by BZD on 20 December 2019 appointing WAD the Tribunal orders, directs or declares: The appointment of WAD as an enduring guardian 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 BZD. The application for review is treated as if it were an application under the Guardianship Act for a financial management order for BZD. Guardianship 1. A guardianship order is made for BZD. 2. FYN of [Address removed for publication.] and NBT of [Address removed for publication.] are appointed jointly as the guardians. 3. This is a continuing guardianship order for a period of six months from 23 July 2021. 4. This is a limited guardianship order giving the guardian(s) custody of BZD to the extent necessary to carry out the functions below. FUNCTIONS: FYN and NBT 5. FYN and NBT have the following functions: a) Accommodation To decide where BZD may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take BZD to a place approved by the guardian. ii) keep them at that place. iii) return them to that place should they leave it. c) Health care To decide what health care BZD may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where BZD is not capable of giving a valid consent. e) Services To make decisions about services to be provided to BZD. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring BZD to an understanding of the issues and to obtain and consider their views before making significant decisions. Financial Management 1. The estate of BZD is subject to management under the NSW Trustee and Guardian Act 2009. 2. The management of the estate of BZD is committed to the NSW Trustee and Guardian. Guardianship Application The application for guardianship dated 3 March 2021 is dismissed after hearing. Catchwords: REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – mismanagement of principal's finances by the attorney – attorney obtained significant benefits – principal suffered significant financial loss – decision to revoke enduring power of attorney – decision to treat application to review an enduring power of attorney as an application for a financial management order – need to protect the principal from financial abuse and exploitation – need for legal action to recover principal's estate – NSW Trustee and Guardian appointed – order made. REVIEW OF ENDURING GUARDIANSHIP – application to review an enduring guardianship appointment – principal has been isolated from her family members – decisions not made by the enduring guardian in the principal's best interests – decision to revoke the enduring guardianship appointment – decision to treat the application to review an enduring guardianship appointment as an application for a guardianship order. GUARDIANSHIP – application for a guardianship order – whether subject person is a person in need of a guardian – subject person is of advanced age – cognitive impairment – need for decisions to be made about health care and medical and dental consent – accommodation function with power to authorise others – suitability of proposed private guardians – private guardians jointly appointed – order made. Legislation Cited: Guardianship Act 1987 (NSW), ss 3(2), 4, 6K(1), 6K(2)(b), 6K(3), s 14(2), 15(3), 17(1), 25M Powers of Attorney Act 2003 (NSW), ss 12, 36, 36(1)-(3), 36(4)(f) Cases Cited: 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, at [38], and P v NSW Trustee and Guardian [2015] NSWSC 579 HJ v HK & Ors [2008] NSWADTAP 75 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 P v NSW Trustee and Guardian [2015] NSWSC 579 Re B [2011] NSWSC 1075 Texts Cited: None cited. Category: Principal judgment Parties: 001: Guardianship Application