KBS [2019] NSWCATGD 36

KBS [2019] NSWCATGD 36

Because KBS had advanced dementia and required decision-making support, FAV had resigned from the enduring power of attorney and had a conflict of interest arising from borrowing money from KBS and proposing to act as a paid carer, and TNS had a close personal relationship with KBS, was capable of carrying out the roles, had physical proximity and was supported by KBS, LZN and FAV, it was in KBS's best interests to appoint TNS to replace FAV as attorney and enduring guardian.

Jurisdiction
Australia
Judgment Date
16 April 2019
Procedural Posture
Review of an Enduring Power of Attorney and Review of an Enduring Guardianship Appointment / Final Decision and Orders
Outcome
Applications reviewed; TNS appointed to replace FAV as attorney and enduring guardian for KBS.
Legal Topics
['review of Enduring Power of Attorney' 'review of Enduring Guardianship Appointment' 'substitute Attorney' 'substitute Enduring Guardian' 'best Interests' 'dementia' 'conflict of Interest']
['guardianship' 'powers of Attorney'] ['review of Enduring Power of Attorney' 'review of Enduring Guardianship Appointment' 'substitute Attorney' 'substitute Enduring Guardian' 'best Interests' 'dementia' 'conflict of Interest']

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Procedural Posture

Review of an Enduring Power of Attorney and Review of an Enduring Guardianship Appointment / Final Decision and Orders

Legal Issues

  1. 1 ['Whether the Tribunal should carry out a review of the operation and effect of the enduring power of attorney made by KBS on 20 June 2011.' 'Whether TNS should be appointed to replace FAV as attorney under the enduring power of attorney.' 'Whether FAV should continue as enduring guardian for KBS or TNS should be appointed to replace her.']

Ratio Decidendi

Because KBS had advanced dementia and required decision-making support, FAV had resigned from the enduring power of attorney and had a conflict of interest arising from borrowing money from KBS and proposing to act as a paid carer, and TNS had a close personal relationship with KBS, was capable of carrying out the roles, had physical proximity and was supported by KBS, LZN and FAV, it was in KBS's best interests to appoint TNS to replace FAV as attorney and enduring guardian.

Court Disposition

Applications reviewed; TNS appointed to replace FAV as attorney and enduring guardian for KBS.

Orders

  • ['In relation to the enduring power of attorney made by KBS on 20 June 2011 which appointed LZN and FAV as attorney(s), the Tribunal determined to carry out a review of the operation and effect of the enduring power of attorney.' 'TNS is appointed to replace FAV as attorney for KBS under the enduring power of...