BPY v BZQ [2015] NSWCATAP 33

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BPY v BZQ [2015] NSWCATAP 33 Hearing dates: 21 January 2015 Date of orders: 05 March 2015 Decision date: 05 March 2015 Jurisdiction: Appeal Panel Before: N Hennessy, LCM Deputy President M Schyvens, Deputy President Dr B Field, General Member Decision: 1. In proceedings BZR v BPY (AP 14/51960) the appeal is dismissed. 2. In proceedings BPY v BZQ (AP 14/51727) the following orders are made: 3. Leave is granted to Mr Neil Jackson, barrister, to represent Mr Stephen Stuart, guardian ad litem for BZR in the appeal proceedings. 4. Leave is granted to Ms Jane Merkel, barrister, to represent BPY in the appeal proceedings. 5. The following orders of the Guardianship Division made on 4 September 2014 are set aside but not until the time that the Guardianship Tribunal re-determines BPY's application for financial management and application for review of the making of the enduring power of attorney: a. The estate of BZR is subject to management under the NSW Trustee and Guardian Act 2009 b. The management of the estate of BZR is committed to the NSW Trustee and Guardian, c. This order be reviewed by the Tribunal within 12 months. 6. The following orders of the Guardianship Division made on 4 September 2014 are set aside: a. pursuant to section 25E(2) of the Guardianship Act the account in the name of BZR and her late husband with ANZ Bank known as V2 PLUS, account (number deleted) is excluded from the estate for the purposes of the financial management order; b. not to carry out a review of the making of the enduring power of attorney made by BZR on 25 June 2014 which appointed BZQ; c. the application made by BPY for a review of the making of the abovementioned enduring power of attorney (Matter No 2014/7592) is dismissed; d. the application by BPY for a guardianship order to be made for BZR is dismissed; e. the application by BPY for a review of the enduring guardianship appointment made by BZR on 30 June 2014 appointing BZQ as her enduring guardian is dismissed. 7. The following applications by BPY are remitted to the Guardianship Division for determination in accordance with law: a. the application for financial management; b. the application for a guardianship order; c. the application for review of the enduring guardianship appointment; and d. the application for review of the making of the enduring power of attorney. 8. The Appeal Panel suspends the appointment of BZQ as the enduring guardian for BZR until the Guardianship Division determines BPY's application for a review of the enduring guardianship appointment and the application for guardianship. Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL - APPEAL – power of attorney - enduring guardianship - application for guardianship order - application for financial management order - weight of evidence as to subject person's capacity- views of subject person - decision to grant leave for solicitor involved in preparation of enduring guardianship and power of attorney to represent subject person and another party Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW) Cases Cited: Absolon v NSW TAFE [1999] NSWCA 311 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Mifsud v Campbell (1991) 21 NSWLR 725 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 SAB v SEM [2013] NSWSC 253 Category: Principal judgment Parties: AP 14/51960 BZR (Appellant) BPY (1st Respondent) BZQ (2nd Respondent) NSW Trustee and Guardian (3rd Respondent) Public Guardian (4th Respondent)