NKT [2021] NSWCATGD 31

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NKT [2021] NSWCATGD 31 Hearing dates: 22 April 2021 and 8 July 2021 Date of orders: 8 July 2021 and 31 August 2021 Decision date: 31 August 2021 Jurisdiction: Guardianship Division Before: J C Simpson, Senior Member (Legal) Dr C M West, Senior Member (Professional) S Johnston, General Member (Community) Decision: GUARDIANSHIP In relation to the enduring guardian appointment made by NKT on 20 July 2021 appointing QAT and NYT 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 NKT. The application for a guardianship order is dismissed after hearing. REVIEW OF POWER OF ATTORNEY In relation to the enduring power of attorney made by NKT on 20 July 2018 which appointed QAT and NYT as attorney/s. The Tribunal determines, orders or declares: To conduct a review of the enduring power of attorney. Not to make an order under section 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. 1. The estate of NKT is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of NKT is committed to the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within 12 months. Catchwords: REVIEW OF ENDURING GUARDIANSHIP – decision to treat the application to review an enduring guardianship appointment as an application for a guardianship order – whether the subject person is a person in need of a guardian – whether a guardianship order should be made – no authority to make decisions about access under the enduring guardianship appointment – subject person expressed strong views against contact with family members – allegations of elder abuse – no need for a guardianship order to be made – application dismissed. REVIEW OF POWER OF ATTORNEY – application to review an enduring power of attorney – whether an order under s 36 of the Powers of Attorney Act should be made – decision to treat application to review an enduring power of attorney as an application for a financial management order – subject person is of advanced aged – subject person has dementia – subject person incapable of managing own financial affairs – transfer of home and significant amounts of money to the attorney – possible legal action in relation to unconscionable bargaining or undue influence – in the subject person's best interests for a financial management order to be made – need for an independent decision maker – NSW Trustee and Guardian appointed – order made. Legislation Cited: Contracts Review Act 1980 (NSW) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 6K, 14(1)-(2), 25G, 25M Powers of Attorney Act 2003 (NSW), ss, 11, 12, 36, 36(1), 50 Cases Cited: Australian test in Gibbons v Wright (1954) 91 CLR 423 Blomley v Ryan (1956) 99 CLR 362 DVB v NSW Trustee and Guardian [2021] NSWCATAD 105 IF v IG & Others [2004] NSWADTAP 3 Mentink v Olsen [2020] NSWCA 182 P v NSW Trustee and Guardian [2015] NSWSC 579 Re Beaney [1978] 2 AllER 595 Re R [2001] NSWSC 886 Re X [2016] NSWSC 27 Texts Cited: None cited. Category: Principal judgment Parties: 001: Review of an Enduring Power of Attorney