LNN [2014] NSWCATGD 50

LNN [2014] NSWCATGD 50

The Tribunal had jurisdiction under s 36(4)(d) of the Powers of Attorney Act 2003 (NSW) to review and reinstate an enduring power of attorney that had been terminated by operation of s 46(1) due to the death of a joint attorney. Given Mr LNN's incapacity and the absence of conflict among the attorneys or family, reinstatement, substitution of attorney, and addition of a non-termination clause were in his best interests and reflected his known wishes.

Parties
Subject Person: Mr LNN; Applicant, Attorney: Mrs ZLN; Applicant, Attorney: Mr QMN; Applicant, Attorney: Mr EBN; Applicant, Attorney: Mrs KCL; Substitute Attorney: Mr HUN
Jurisdiction
Australia
Judgment Date
22 December 2014
Procedural Posture
Guardianship – Enduring Power of Attorney Review / Determination of Application for Review, Reinstatement and Variation
Outcome
Enduring power of attorney reinstated, substitute attorney appointed, new clause inserted into instrument.
Legal Topics
Enduring Power of Attorney – Review of Operation and Effect, Appointment of Substitute Attorney, Interpretation of Joint or Joint and Several Authority, Jurisdiction of Tribunal to Reinstate Terminated POA, Orders Under S 36(4) Powers of Attorney Act 2003 (nsw)
Guardianship Law Powers of Attorney Enduring Power of Attorney – Review of Operation and Effect Appointment of Substitute Attorney Interpretation of Joint or Joint and Several Authority Jurisdiction of Tribunal to Reinstate Terminated POA Orders Under S 36(4) Powers of Attorney Act 2003 (nsw)

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Parties

Mr LNN

Subject Person

Mrs ZLN

Applicant, Attorney

Mr QMN

Applicant, Attorney

Mr EBN

Applicant, Attorney

Mrs KCL

Applicant, Attorney

Mr HUN

Substitute Attorney

Procedural Posture

Guardianship – Enduring Power of Attorney Review / Determination of Application for Review, Reinstatement and Variation

Legal Issues

  1. 1 Whether the Tribunal has jurisdiction to review and reinstate a lapsed or terminated enduring power of attorney under s 36(4) of the Powers of Attorney Act 2003 (NSW)
  2. 2 Whether the authority conferred by the wording 'any three to act jointly as attorneys' constitutes a joint or joint and several appointment, and effect of a vacancy in office
  3. 3 Whether the reinstatement and variation of the power of attorney and appointment of a substitute attorney is in the best interests of Mr LNN

Ratio Decidendi

The Tribunal had jurisdiction under s 36(4)(d) of the Powers of Attorney Act 2003 (NSW) to review and reinstate an enduring power of attorney that had been terminated by operation of s 46(1) due to the death of a joint attorney. Given Mr LNN's incapacity and the absence of conflict among the attorneys or family, reinstatement, substitution of attorney, and addition of a non-termination clause were in his best interests and reflected his known wishes.

Court Disposition

Enduring power of attorney reinstated, substitute attorney appointed, new clause inserted into instrument.

Orders

  • The enduring power of attorney made by Mr LNN on 6 May 2010 is reinstated with effect from the date of death of Mrs KMQ (7 January 2014).
  • Mr HUN is appointed as substitute attorney for Mrs KMQ.