XDX [2014] NSWCATGD 38

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: XDX [2014] NSWCATGD 38 Hearing dates: 20 October 2014 Decision date: 20 October 2014 Jurisdiction: Guardianship Division Before: Redfern J, Principal Member Decision: Application dismissed. Catchwords: SET ASIDE - scope and nature of set aside provisions - set aside based on s 53(4) and s 63 - failure to comply with a provision of the Act or procedural rules - legal representation - power to correct errors - relationship between set aside provisions and appeal rights. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 45, 53 and 63 Guardianship Act 1987 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW), reg 9 Category: Principal judgment Parties: Ms XDX (subject person) Ms DCN (daughter and original applicant) Mr UMT (son and applicant for set aside) Mr NET (son and applicant for set aside) The NSW Trustee and Guardian File Number(s): 55963 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)).

reasons for decision

What the Tribunal decided 1The Tribunal dismissed the application to set aside/vary the decision made on 29 July 2014 to commit the estate of Ms XDX to the NSW Trustee and Guardian for management.

Background 2Ms XDX is a 96-year old woman who is a permanent resident of a nursing home in Southwest Sydney. She has had numerous admissions to other residential care facilities and multiple hospital admissions. She is said to be diagnosed with dementia with paranoia and challenging behaviours and multiple medical conditions. Ms XDX speaks Cantonese. 3Ms XDX is widowed and has five children: Ms TBT, Ms DCN, Mr NET, Mrs BFL and Mr UMT. Four of Ms XDX's children live in Sydney and Mr NET lives in the United States of America. 4According to reasons for decision for the orders made on 29 July 2014, Ms XDX executed an enduring power of attorney on 22 October 2010, which appointed Mr NET and Mr UMT as her attorneys to act on a joint and several basis. She also executed an enduring power of attorney and enduring guardian document on 22 December 2013, appointing Ms DCN as her sole attorney and enduring guardian. The later enduring power of attorney was revoked on 5 February 2014. 5On 20 March 2014 the Tribunal received an application from Ms DCN for guardianship and financial management orders to be made for Ms XDX. On 26 June 2014 Mr UMT made an application for a guardian to be appointed for Ms XDX and on 24 July 2014 made a further application for a review of the enduring guardianship appointment. 6All applications were listed for hearing on 29 July 2014. 7On 29 July 2014, the Tribunal committed the estate of Ms XDX to the NSW Trustee and Guardian for management and adjourned the applications for guardianship and for the review of the enduring guardianship appointment for a period of two months. 8On 1 August 2014, received by the Tribunal on 5 August 2014, Mr UMT and Mr NET made application for the order made for the Tribunal in respect of the financial management application to be set aside. 9On 12 August 2014 the Tribunal directed the parties to file and serve any submissions in respect of the application and the matter was listed for hearing.