WBN [2015] NSWCATGD 9

WBN [2015] NSWCATGD 9

The application to review the enduring guardianship appointment was dismissed because Mrs WBN had validly revoked the appointment and no useful order remained available. The application to review the 6 October 2004 power of attorney was dismissed because that instrument was not an enduring power of attorney complying with s 19 of the Powers of Attorney Act 2003 (NSW), so the Tribunal lacked jurisdiction to review it. The Tribunal reviewed the 1 August 2006 enduring power of attorney because Ms TRN raised particularised and substantiated concerns about management of Mrs WBN's finances, but made no order under s 36 because the instrument had been revoked and such orders would have limited...

Jurisdiction
Australia
Judgment Date
14 April 2015
Procedural Posture
Applications to Review an Enduring Guardianship Appointment and Powers of Attorney, and Financial Management Application Treated Under S 37 of the Powers of Attorney Act 2003 (nsw) / Final Decision After Hearings on 11 December 2014 and 14 April 2015
Outcome
Applications dismissed in relation to the enduring guardianship appointment and the 6 October 2004 power of attorney; the 1 August 2006 enduring power of attorney was reviewed with no order made and treated as a financial management application; Mr HXT was appointed financial manager for Mrs WBN.
Legal Topics
['capacity' 'validity of Instruments' 'revocation of Enduring Guardianship and Enduring Powers of Attorney' 'vulnerability to Financial Exploitation' 'need for Financial Management Order' 'jurisdiction to Review Power of Attorney']
['guardianship' 'powers of Attorney' 'financial Management'] ['capacity' 'validity of Instruments' 'revocation of Enduring Guardianship and Enduring Powers of Attorney' 'vulnerability to Financial Exploitation' 'need for Financial Management Order' 'jurisdiction to Review Power of Attorney']

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Procedural Posture

Applications to Review an Enduring Guardianship Appointment and Powers of Attorney, and Financial Management Application Treated Under S 37 of the Powers of Attorney Act 2003 (nsw) / Final Decision After Hearings on 11 December 2014 and 14 April 2015

Legal Issues

  1. 1 ['Whether the Tribunal should determine the application to review the enduring guardianship appointment dated 14 February 2005 after Mrs WBN revoked it.' 'Whether the Tribunal had jurisdiction to review the power of attorney dated 6 October 2004.' 'Whether the Tribunal should review the enduring power of attorney dated 1 August 2006.' 'Whether orders should be made on the review of the enduring power of attorney dated 1 August 2006 or the application should be treated as an application for a financial management order.' 'Whether Mrs WBN was capable of managing her financial affairs.' "Whether there was a need for another person to manage Mrs WBN's affairs and whether a financial management order was in her best interests." 'Who should be appointed as financial manager.']

Ratio Decidendi

The application to review the enduring guardianship appointment was dismissed because Mrs WBN had validly revoked the appointment and no useful order remained available. The application to review the 6 October 2004 power of attorney was dismissed because that instrument was not an enduring power of attorney complying with s 19 of the Powers of Attorney Act 2003 (NSW), so the Tribunal lacked jurisdiction to review it. The Tribunal reviewed the 1 August 2006 enduring power of attorney because Ms TRN raised particularised and substantiated concerns about management of Mrs WBN's finances, but made no order under s 36 because the instrument had been revoked and such orders would have limited...

Court Disposition

Applications dismissed in relation to the enduring guardianship appointment and the 6 October 2004 power of attorney; the 1 August 2006 enduring power of attorney was reviewed with no order made and treated as a financial management application; Mr HXT was appointed financial manager for Mrs WBN.

Orders

  • ['Reviewed the enduring guardianship appointment made on 14 February 2005 appointing Ms FDK as enduring guardian and dismissed the application.' 'Did not review the power of attorney made on 6 October 2004 and dismissed the application because the Tribunal did not have jurisdiction to review the instrument.'...