HLT [2014] NSWCATGD 5

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: HLT [2014] NSWCATGD 5 Hearing dates: 16 September 2013, 4 November 2014 and 20 January 2014 Decision date: 07 February 2014 Jurisdiction: Guardianship Division Before: Boland J, Senior Member (Legal) Wroth M, Senior Member (Professional) Porter L, General Member (Community) Decision: Declaration that principal did not have mental capacity to make a valid enduring power of attorney on 17 January 2012. Financial management order made; NSW Trustee and Guardian appointed. Catchwords: ENDURING POWER OF ATTORNEY - review of making - capacity to make enduring power of attorney - no independent advice - undue influence - multiple instruments - review of operation and effect - best interests - solicitor appointed as attorney - transfer of property and assets to attorneys - attorney charging remuneration - fiduciary duties - family trust - company arrangements - other litigation - attorney acting as tutor - conflict of interest.

FINANCIAL MANAGEMENT - application for financial management order - sale of property - capacity to instruct - Supreme Court litigation - complex estate - suitability for appointment as financial manager - conflict of interest - conflict between proposed manager and family - recovery action may be required - remuneration of private financial manager - whether order should specify review. Legislation Cited: Powers of Attorney Act 2003 (NSW) Guardianship Act 1987 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Conveyancing Act 1919 (NSW) Corporations Act 2001 (Cth) Cases Cited: Banks v Goodfellow (1870) LR 5 QB 549 Gibbons v Wright (1954) 91 CLR 423 McD v McD (1983) 3 NSWLR 81 Ranclaud v Cabban (1988) NSW Conv 55 -385 Kennon v Spry [2008] HCA 56 Szozda v Szozda [2010] NSWSC 804 Scott v Scott [2012] NSWSC 1541 M v M [2013] NSWSC 1495 Category: Principal judgment Parties: Mrs HLT Mr GAU (Applicant) Mr KCC (Applicant) Mr BES (Attorney) Ms MMR (Attorney) The NSW Trustee and Guardian File Number(s): 52523 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).