QHN [2019] NSWCATGD 34

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: QHN [2019] NSWCATGD 34 Hearing dates: 15 October 2019 Date of orders: 15 October 2019 Decision date: 15 October 2019 Jurisdiction: Guardianship Division Before: B L Adamovich, Senior Member (Legal), Dr S L Thompson, Senior Member (Professional) T Grassi, General Member (Community) Decision: Review of an Enduring Power of Attorney: In relation to the enduring power of attorney made by QHN on 11 March 2019 which appointed KZB as attorney(s) the Tribunal determines, orders or declares: to carry out a review of the making and 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 1987 (NSW). Financial Management Order: 1. The estate of QHN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. KZB 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 has obtained all necessary authorities from the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within 12 months. Review of Appointment of Enduring Guardian: In relation to the enduring guardian appointment made by QHN on 1 March 2019 appointing KZB the Tribunal orders, directs or declares: The appointment of KZB as an enduring guardian is confirmed. Guardianship Application: The application for guardianship is dismissed after hearing. Catchwords: REVIEW OF AN ENDURING POWER OF ATTORNEY – review of the operation and effect of an enduring power of attorney – 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 – subject person of advanced age – subject person diagnosed with dementia – cognitive impairment – complex financial affairs – need for decisions to be made to recover money and property owed to the subject person – need to pay for accommodation and care fees in an aged care facility – suitability of proposed private manager – private financial manager appointed – reviewable order made. REVIEW OF ENDURING GUARDIANSHIP – application to review an enduring guardianship appointment – finding that the subject person had capacity to make a valid enduring guardianship appointment – not in subject person's interests to overturn subject person's decisions – appointment of enduring guardianship confirmed. GUARDIANSHIP – existing enduring guardianship appointment – no decisions to be made that cannot be made by an enduring guardian – no need for a guardianship order – application dismissed. Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 25M, Pt 3A Powers of Attorney Act 2003 (NSW), ss 36, 36(1)-(2), 37, 50(3) Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503 CJ v AKJ [2015] NSWSC 498 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 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