SEI [2014] NSWCATGD 23

SEI [2014] NSWCATGD 23

The Tribunal declined to carry out a review because the available documentary and oral evidence was sufficient to undertake the preliminary survey required by section 36(1) and did not disclose grounds warranting a full review. The 4 November 2009 power of attorney appeared prima facie compliant with the Powers of Attorney Act 2003, Mrs SEI had no demonstrated cognitive impairment in 2009, the solicitor who witnessed the instrument gave credible evidence that Mrs SEI understood it and was not unduly influenced, and the evidence did not show financial mismanagement, maladministration, breach of fiduciary duty, or personal benefit by Ms TGI. The Tribunal also consented to withdrawal of the...

Jurisdiction
Australia
Judgment Date
14 April 2014
Procedural Posture
Application to Review an Enduring Power of Attorney and Application to Review Appointment of Enduring Guardian / Hearing in the Guardianship Division of the NSW Civil and Administrative Tribunal
Outcome
Decision not to carry out a review of an enduring power of attorney and dismiss the application; consent to withdrawal of application to review enduring guardianship appointment.
Legal Topics
['review of Enduring Power of Attorney' 'review of Enduring Guardianship Appointment' 'capacity to Make Enduring Power of Attorney' 'undue Influence' 'operation and Effect of Enduring Power of Attorney' 'attorney Fiduciary Obligations' 'attorney Accounts and Records' 'procedural Fairness' 'withdrawal of Application']
['guardianship' 'powers of Attorney' 'administrative Law'] ['review of Enduring Power of Attorney' 'review of Enduring Guardianship Appointment' 'capacity to Make Enduring Power of Attorney' 'undue Influence' 'operation and Effect of Enduring Power of Attorney' 'attorney Fiduciary Obligations' 'attorney Accounts and Records' 'procedural Fairness' 'withdrawal of Application']

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Procedural Posture

Application to Review an Enduring Power of Attorney and Application to Review Appointment of Enduring Guardian / Hearing in the Guardianship Division of the NSW Civil and Administrative Tribunal

Legal Issues

  1. 1 ['Whether the Tribunal should carry out a review of the making of the enduring power of attorney made by Mrs SEI on 4 November 2009.' 'Whether there was sufficient evidence that Mrs SEI lacked capacity or was induced by undue influence when making the enduring power of attorney.' 'Whether the Tribunal should carry out a review of the operation and effect of the enduring power of attorney, including alleged mismanagement by Ms TGI.' 'Whether the Tribunal should consent to withdrawal of the application to review the enduring guardianship appointment made by Mrs SEI on 17 June 2011.']

Ratio Decidendi

The Tribunal declined to carry out a review because the available documentary and oral evidence was sufficient to undertake the preliminary survey required by section 36(1) and did not disclose grounds warranting a full review. The 4 November 2009 power of attorney appeared prima facie compliant with the Powers of Attorney Act 2003, Mrs SEI had no demonstrated cognitive impairment in 2009, the solicitor who witnessed the instrument gave credible evidence that Mrs SEI understood it and was not unduly influenced, and the evidence did not show financial mismanagement, maladministration, breach of fiduciary duty, or personal benefit by Ms TGI. The Tribunal also consented to withdrawal of the...

Court Disposition

Decision not to carry out a review of an enduring power of attorney and dismiss the application; consent to withdrawal of application to review enduring guardianship appointment.

Orders

  • ['The Tribunal determined under section 36(1) of the Powers of Attorney Act 2003 (NSW) not to carry out a review of the enduring power of attorney made by Mrs SEI on 4 November 2009, and dismissed the application.' 'The Tribunal consented to the request made by the applicant to withdraw her application for review of...