OYD [2019] NSWCATGD 35

OYD [2019] NSWCATGD 35

The Tribunal preferred OYD's oral evidence over the medical opinion of Dr Y because her evidence over two hearing days showed very limited recall and understanding of her financial situation, including no recollection of the enduring power of attorney, revocation, substantial withdrawals, bills, pension details, or one bank account. It found OYD incapable of managing her financial affairs and in need of protection. SXD's evidence about using OYD's funds for horse-race betting loans was unsatisfactory and indicated he acted in his own interests rather than OYD's, so the existence of the enduring power of attorney did not remove the need for an order. Given the family conflict, no private...

Jurisdiction
Australia
Judgment Date
28 February 2019
Procedural Posture
Financial Management Application and Guardianship Application in the Guardianship Division of the NSW Civil and Administrative Tribunal / Final Hearing; Financial Management and Guardianship Orders Made on 28 February 2019
Outcome
Financial management order and limited continuing guardianship order made.
Legal Topics
['person in Need of a Guardian' 'cognitive Impairment' 'advanced Age' 'family Conflict' 'access Decisions' 'enduring Power of Attorney' 'mismanagement of Funds' 'appointment of NSW Trustee and Guardian' 'appointment of Public Guardian']
['guardianship' 'financial Management'] ['person in Need of a Guardian' 'cognitive Impairment' 'advanced Age' 'family Conflict' 'access Decisions' 'enduring Power of Attorney' 'mismanagement of Funds' 'appointment of NSW Trustee and Guardian' 'appointment of Public Guardian']

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Procedural Posture

Financial Management Application and Guardianship Application in the Guardianship Division of the NSW Civil and Administrative Tribunal / Final Hearing; Financial Management and Guardianship Orders Made on 28 February 2019

Legal Issues

  1. 1 ['Whether OYD was incapable of managing her financial affairs.' "Whether there was a need for another person to manage OYD's affairs and whether a financial management order was in her best interests." 'Who should be appointed financial manager.' 'Whether OYD was a person with a disability and, because of that disability, totally or partially incapable of managing her person.' 'Whether a guardianship order should be made and what decision-making functions should be included.' 'Who should be appointed guardian and for how long.']

Ratio Decidendi

The Tribunal preferred OYD's oral evidence over the medical opinion of Dr Y because her evidence over two hearing days showed very limited recall and understanding of her financial situation, including no recollection of the enduring power of attorney, revocation, substantial withdrawals, bills, pension details, or one bank account. It found OYD incapable of managing her financial affairs and in need of protection. SXD's evidence about using OYD's funds for horse-race betting loans was unsatisfactory and indicated he acted in his own interests rather than OYD's, so the existence of the enduring power of attorney did not remove the need for an order. Given the family conflict, no private...

Court Disposition

Financial management order and limited continuing guardianship order made.

Orders

  • ['The estate of OYD is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).' 'The management of the estate of OYD is committed to the NSW Trustee and Guardian.' 'A guardianship order is made for OYD.' 'The Public Guardian is appointed as the guardian.' 'This is a continuing guardianship order for...