NDM [2016] NSWCATGD 40

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NDM [2016] NSWCATGD 40 Hearing dates: 25 October 2016 Date of orders: 25 October 2016 Decision date: 25 October 2016 Jurisdiction: Guardianship Division Before: A Suthers, Senior Member (Legal) M Wroth, Senior Member (Professional) J Newman, General Member (Community) Decision: 1. The Tribunal appointed joint private financial managers, subject to the authorities and directions ordered by the NSW Trustee and Guardian. Catchwords: FINANCIAL MANAGEMENT – family members appointed as private manager – concerns about solicitor conduct preparing power of attorney – solicitor referred to Legal Services Commission Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 65(2) Guardianship Act 1987 (NSW), s 101(e) Category: Principal judgment Parties: Mrs NDM (Subject person) Ms EAM (Applicant) Mr SYM (party joined by the Tribunal) The NSW Trustee and Guardian Representation: Nil File Number(s): 63649 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 1. The Tribunal appointed Mr BZM and Ms EAM, jointly as Mrs NDM's financial manager, subject to the authorities and directions ordered by the NSW Trustee and Guardian.

Background 1. Mrs NDM is a 91-year-old lady who, until recently, lived in her own home in suburban Sydney. She has one son, Mr SYM and three grandchildren – Mr BZM, Ms EAM, and Mr DBM. 2. Earlier this year, Mrs NDM had a severe cerebrovascular accident (a stroke) and was hospitalised. She has subsequently moved into fully- supported care. 3. Mrs NDM's granddaughter, Ms EAM, brought an application to the Tribunal seeking the appointment of a financial manager for her grandmother. She initially proposed that some combination of her and her two brothers be appointed in that regard. 4. Mr SYM brought an application to the Tribunal, seeking to be joined as a party. He also proposed that he should be appointed, solely, as his mother's financial manager. 5. On 18 August 2016, during her admission to hospital, Mrs NDM apparently executed an enduring guardianship appointment and an enduring power of attorney. Those documents, it was established at the hearing, were prepared on the instructions of Mr SYM and given to a solicitor, Mr Z. Mr SYM's evidence was that he instructed Mr Z that the power of attorney was to appoint him, Ms EAM, Mr DBM, and Mr BZM jointly as attorneys for Mrs NDM. 6. In fact, the evidence indicates, the power of attorney which was prepared and presented to Mrs NDM at the hospital nominated only Mr SYM as attorney. This was unknown to Mr BZM, Ms EAM, and Mr DBM. The situation in relation to the enduring guardianship was, and remains, unclear. 7. The conduct of Mr Z in relation to the preparation and execution of the enduring power of attorney, and its effect on the Tribunal's reasoning, will be dealt with further.