DSD [2015] NSWCATGD 45

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DSD [2015] NSWCATGD 45 Hearing dates: 27 October 2015 Date of orders: 27 October 2015 Decision date: 27 October 2015 Jurisdiction: Guardianship Division Before: R Booby, Senior Member (Legal) L Tong, Senior Member (Professional) E McAlpine, General Member (Community) Decision: The principal did not have mental capacity to revoke the enduring power of attorney. The power of attorney instrument remains valid because the principal did not have the capacity necessary to revoke it.

Application to withdraw financial management application refused.

Financial management application adjourned for approximately four months. Catchwords: ENDURING POWER OF ATTORNEY – application for review of revocation – standing of attorney to bring application for review of revocation – exercise of Tribunal's powers under s 36 of the Powers of Attorney Act 2003 (NSW) – whether principal has "mental capacity" to revoke the enduring power of attorney – evidence of capacity considered by the Tribunal – dispute as to appropriateness of capacity assessments

FINANCIAL MANAGEMENT – insufficient time to adequately deal with the application – hearing adjourned

INTERLOCUTORY ISSUES – whether persons are statutory parties to the proceedings - consideration of s 3F(5) of the Guardianship Act 1987 (NSW) as to who "has the care of another person" – request to withdraw financial management application – where there has been a breakdown in the relationship between principal and attorney – complexity of subject person's affairs – Tribunal decided that the application should proceed Legislation Cited: Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW) Cases Cited: Gibbons v Wright (1954) 91 CLR 423 Scott v Scott [2012] NSWSC 1541 Szozda v Szozda [2010] NSWSC 804 Category: Principal judgment Parties: Ms DSD (principal and subject person) Mr EPG (applicant, carer, and attorney appointed under an enduring power of attorney) The NSW Trustee and Guardian Representation: Separate Representative File Number(s): 60155 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)).