DSD [2015] NSWCATGD 45

DSD [2015] NSWCATGD 45

The Tribunal found, on the weight of professional assessments and contextual evidence, that Mrs DSD suffered from impaired memory, reduced executive functioning, and limited insight at the time of purported revocation, such that she lacked capacity to understand the nature or consequences of revoking the enduring power of attorney. The revocation was therefore invalid and the existing enduring power of attorney remains effective.

Jurisdiction
Australia
Judgment Date
27 October 2015
Procedural Posture
Guardianship/financial Management/review of Power of Attorney / Interlocutory Decision and Adjournment
Outcome
Tribunal declared Mrs DSD lacked capacity to revoke the enduring power of attorney; revocation invalid; power of attorney remains valid. Application to withdraw financial management application refused. Financial management application adjourned.
Legal Topics
['enduring Power of Attorney' 'mental Capacity' 'revocation of Power of Attorney' 'financial Management' 'statutory Parties' 'evidentiary Assessment of Capacity']
['guardianship' 'powers of Attorney' 'aged Care Law'] ['enduring Power of Attorney' 'mental Capacity' 'revocation of Power of Attorney' 'financial Management' 'statutory Parties' 'evidentiary Assessment of Capacity']

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Procedural Posture

Guardianship/financial Management/review of Power of Attorney / Interlocutory Decision and Adjournment

Legal Issues

  1. 1 ['Whether the principal (Mrs DSD) had the mental capacity to revoke an enduring power of attorney' 'Validity of revocation of enduring power of attorney' 'Appropriateness and evidentiary weight of various capacity assessments' 'Standing of attorney to bring review application' 'Whether to grant withdrawal of financial management application']

Ratio Decidendi

The Tribunal found, on the weight of professional assessments and contextual evidence, that Mrs DSD suffered from impaired memory, reduced executive functioning, and limited insight at the time of purported revocation, such that she lacked capacity to understand the nature or consequences of revoking the enduring power of attorney. The revocation was therefore invalid and the existing enduring power of attorney remains effective.

Court Disposition

Tribunal declared Mrs DSD lacked capacity to revoke the enduring power of attorney; revocation invalid; power of attorney remains valid. Application to withdraw financial management application refused. Financial management application adjourned.

Orders

  • ['The Tribunal declared that Mrs DSD did not have mental capacity on 7 September 2015 to revoke the enduring power of attorney dated 15 October 2013.' 'The Tribunal declared that the enduring power of attorney remains valid.' 'Application by Mr EPG to withdraw his financial management application is refused.'...