CJB [2017] NSWCATGD 28

CJB [2017] NSWCATGD 28

The Tribunal found the enduring power of attorney no longer operated in Mrs CJB's best interests due to the conflict between her attorneys and personal benefit taken by Ms BJB. However, it declined to remove Ms BJB as attorney or make orders under s 36 of the Powers of Attorney Act 2003, instead treating the review application as one for a financial management order. The Tribunal found Mrs CJB incapable of managing her affairs, a need for intervention, and appointed Ms NMB as financial manager subject to NSW Trustee and Guardian authority, prioritising Mrs CJB's best interests and the maintenance of family relationships.

Parties
The Person: Mrs CJB; Applicant, Attorney: Ms NMB; Attorney: Ms BJB; Interested Party: NSW Trustee and Guardian
Jurisdiction
Australia
Judgment Date
27 October 2017
Procedural Posture
Review of an Enduring Power of Attorney / Determination and Orders After Hearing
Outcome
Application to review enduring power of attorney treated as application for financial management; financial management order granted.
Legal Topics
Enduring Power of Attorney Review, Appointment of Financial Manager, Best Interests of Principal, Conflict of Interest, Authorities of Attorneys
Guardianship Powers of Attorney Financial Management Enduring Power of Attorney Review Appointment of Financial Manager Best Interests of Principal Conflict of Interest Authorities of Attorneys

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Parties

Mrs CJB

The Person

Ms NMB

Applicant, Attorney

Ms BJB

Attorney

NSW Trustee and Guardian

Interested Party

Procedural Posture

Review of an Enduring Power of Attorney / Determination and Orders After Hearing

Legal Issues

  1. 1 Whether the enduring power of attorney continues to operate in the best interests of Mrs CJB
  2. 2 Whether to remove one attorney (Ms BJB)
  3. 3 Whether to make a financial management order and who should be appointed

Ratio Decidendi

The Tribunal found the enduring power of attorney no longer operated in Mrs CJB's best interests due to the conflict between her attorneys and personal benefit taken by Ms BJB. However, it declined to remove Ms BJB as attorney or make orders under s 36 of the Powers of Attorney Act 2003, instead treating the review application as one for a financial management order. The Tribunal found Mrs CJB incapable of managing her affairs, a need for intervention, and appointed Ms NMB as financial manager subject to NSW Trustee and Guardian authority, prioritising Mrs CJB's best interests and the maintenance of family relationships.

Court Disposition

Application to review enduring power of attorney treated as application for financial management; financial management order granted.

Orders

  • Not to make an order under section 36 of the Powers of Attorney Act 2003.
  • The estate of CJB is subject to management under the NSW Trustee and Guardian Act 2009.