ZKN [2021] NSWCATGD 34

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZKN [2021] NSWCATGD 34 Hearing dates: 18 August 2021 Date of orders: 18 August 2021 Decision date: 18 August 2021 Jurisdiction: Guardianship Division Before: C L Grant, Senior Member (Legal) Dr W Longley, Senior Member (Professional) I Ferreira, General Member (Community) Decision: In relation to the enduring guardian appointment made by ZKN on 25 June 2021 appointing KAQ the Tribunal orders, directs or declares: The enduring guardian appointment made by ZKN on 25 June 2021 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 ZKN. In relation to the enduring power of attorney made by ZKN on 25 June 2021 which appointed KAQ as attorney(s) the Tribunal determines, orders or declares: to carry out a review of the making 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. 1. The estate of ZKN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. KAQ 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. 1. A guardianship order is made for ZKN. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 19 August 2021. 4. This is a limited guardianship order giving the guardian(s) custody of ZKN to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where ZKN may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take ZKN to a place approved by the guardian. ii) keep her at that place. iii) return her to that place should she leave it. c) Health care To decide what health care ZKN may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where ZKN is not capable of giving a valid consent. e) Services To make decisions about services to be provided to ZKN. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring ZKN to an understanding of the issues and to obtain and consider her views before making significant decisions. Catchwords: REVIEW OF ENDURING POWER OF ATTORNEY – review of the making of the enduring power of attorney – whether the subject person had capacity to enter into an enduring power of attorney – Law Society of NSW guidelines on assessing a client's capacity – 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 age – subject person diagnosed with dementia – subject person incapable of managing own financial affairs – suitability of proposed private manager – private financial manager appointed – order made. REVIEW OF ENDURING GUARDIANSHIP – finding that the subject person did not have capacity to enter into an enduring guardianship appointment – decision to treat application to review an enduring guardianship appointment as an application for a guardianship order – whether subject person is a person in need of a guardian – subject person an in-patient at a public hospital – need for decisions to be made in relation to services, health care, and consent to medical and dental treatment – need for accommodation function with power to authorise others – no private person suitable to be appointed – public guardian appointed – order made. Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 6J, 6K(1)-(3), 6MA, 14, 17, 25M, Pt 3A Powers of Attorney Act 2003 (NSW), ss 19, 35(1), 36, 36(1)-(2), 37(1), Div 4 of Pt 5 Cases Cited: CJ v AKJ [2015] NSWSC 498 P v NSW Trustee and Guardian [2015] NSWSC 579 Re K [1988] Ch 310 Scott v Scott [2012] NSWSC 1541 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516 Szozda v Szozda [2010] NSWSC 804 Texts Cited: The Law Society of NSW's guidelines on "When a client's mental capacity is in doubt" Category: Principal judgment Parties: 001: Review of an Enduring Guardianship Appointment