YJD [2024] NSWCATGD 18

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: YJD [2024] NSWCATGD 18 Hearing dates: 23 February 2024 and 3 April 2024 Date of orders: 26 February 2024 (Review enduring guardianship) 3 April 2024 (Review enduring power of attorney) Decision date: 03 April 2024 Jurisdiction: Guardianship Division Before: J Moir, Senior Member (Legal) M Bain, Senior Member (Professional) P Davidson, General Member (Community) Decision: Review Enduring Guardianship (26 February 2024) In relation to the application to review an enduring guardian appointment made by Noel on 18 October 2023, appointing Susan, the Tribunal orders, directs or declares: The application to review the enduring guardianship made on 18 October 2023 is treated as an application for a guardianship order. 1. A guardianship order is made for Noel 2. Violet of [address removed for publication], is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 26 February 2024. 4. This is a limited guardianship order giving the guardian custody of Noel to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where Noel may reside. b) Health care To decide what health care Noel may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where Noel is not capable of giving a valid consent. d) Services To make decisions about services to be provided to Noel. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring Noel to an understanding of the issues and to obtain and consider his views before making significant decisions. Review Enduring Power of Attorney (23 February 2024) Today's hearing is adjourned, part heard. By 27 February 2024, Susan is to send the Tribunal, the Separate Representative and other parties copies of any reports from Dr Andrew Milne, subsequent to his report of 4 September 2023. The Tribunal notes that parties are not expected to file any further evidence or submissions, with the exception of the documents referred to above, prior to the hearing on 3 April 2024. If there is further evidence or submissions not already included in the material submitted to date, it should be cross served and submitted no later than 19 March 2024. Material submitted after this date may not be accepted into the hearing papers. Review Enduring Power of Attorney (3 April 2024) In relation to the enduring power of attorney made by Noel on 18 October 2023 which appointed Susan as attorney the Tribunal determines: Not to make an order under section 36 of the Powers of Attorney Act 2003. The application for review of the enduring power of attorney is treated as an application for a financial management order under Part 3A of the Guardianship Act 1987 (NSW). No later than 10 April 2024, Susan and Ms Timms are directed to handover or pay over all of the estate of Noel, including details of his bank/building society/credit union accounts to Violet. The Tribunal notes Ms Timms undertaking at the hearing to assist in this process. 1. The estate of Noel is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. Violet 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. The Tribunal notes that as a financial management order is now in place, all Enduring Powers of Attorney are suspended, and the attorneys are not entitled to operate under that authority. Catchwords: REVIEW OF AN ENDURING POWER OF ATTORNEY – application to review an enduring power of attorney – request for revocation – allegations of financial exploitation – whether subject person had capacity to appoint an enduring power of attorney – whether the tribunal should make orders under s 36 of the Powers of Attorney Act – subject person incapable of managing their own affairs – application for review of enduring power of attorney treated as an application for a financial management order – suitability of private manager – private financial manager appointed – enduring power of attorney suspended – order made REVIEW OF ENDURING GUARDIANSHIP – subject person in aged care accommodation – enduring guardian not present at hearing – consideration of adjournment – adjournment refused – finding that appointed guardian not suitable – 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 – private person suitable to be appointed – order made Legislation Cited: Civil Administrative Tribunal Act 2013 (NSW), ss 4, 36, 38, 51 Guardianship Act 1987 (NSW), ss 3(1)-(2), 3A, 4, 6HB, 14, 14(2), 15(3), 17(1), 25M Mental Health Act 2007 (NSW) Powers of Attorney Act 2003 (NSW), ss 36, 36(1)-(2), 76 Guardianship Regulation 2016 (NSW), Sch 1 Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 P v NSW Trustee and Guardian [2015] NSWSC 579 W v G [2003] NSWSC 1170 Texts Cited: None cited. Category: Principal judgment Parties: 003: Review of an Enduring Guardianship Appointment