MBC [2016] NSWCATGD 36

MBC [2016] NSWCATGD 36

The enduring power of attorney was not operating effectively because entrenched conflict between the several attorneys prevented cooperation, communication, sharing of estate information, planning and timely management of Mr MBC's complicated financial affairs, including an urgent reverse mortgage dispute. Orders under s 36 of the Powers of Attorney Act 2003 (NSW) would not adequately remedy the dysfunction. Mr MBC had severe dementia and was incapable of managing his affairs, and there was a need for independent management in his best interests. Because no private manager was proposed and independence was required, the NSW Trustee and Guardian was appointed as financial manager.

Jurisdiction
Australia
Judgment Date
15 February 2016
Procedural Posture
Application to Review an Enduring Power of Attorney; Application Treated as an Application for a Financial Management Order / Guardianship Division Decision
Outcome
The Tribunal reviewed the enduring power of attorney, decided not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW), treated the application as an application for a financial management order, and appointed the NSW Trustee and Guardian as manager of Mr MBC's estate.
Legal Topics
['review of Enduring Power of Attorney' 'financial Management Order' 'capability to Manage Affairs' 'conflict Between Attorneys' 'appointment of NSW Trustee and Guardian' 'reverse Mortgage Dispute']
['guardianship' 'powers of Attorney' 'financial Management'] ['review of Enduring Power of Attorney' 'financial Management Order' 'capability to Manage Affairs' 'conflict Between Attorneys' 'appointment of NSW Trustee and Guardian' 'reverse Mortgage Dispute']

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Procedural Posture

Application to Review an Enduring Power of Attorney; Application Treated as an Application for a Financial Management Order / Guardianship Division Decision

Legal Issues

  1. 1 ['Whether the Tribunal should undertake a review of the operation and effect of the enduring power of attorney granted by Mr MBC on 24 June 2009.' 'Whether, following review, the Tribunal should make an order under s 36 of the Powers of Attorney Act 2003 (NSW).' 'Whether the Tribunal should treat the review application as an application for a financial management order under Part 3A of the Guardianship Act 1987 (NSW).' 'Whether Mr MBC was incapable of managing his own affairs.' "Whether there was a need for another person to manage Mr MBC's affairs and whether it was in his best interests for a financial management order to be made." 'Who should be appointed as financial manager.']

Ratio Decidendi

The enduring power of attorney was not operating effectively because entrenched conflict between the several attorneys prevented cooperation, communication, sharing of estate information, planning and timely management of Mr MBC's complicated financial affairs, including an urgent reverse mortgage dispute. Orders under s 36 of the Powers of Attorney Act 2003 (NSW) would not adequately remedy the dysfunction. Mr MBC had severe dementia and was incapable of managing his affairs, and there was a need for independent management in his best interests. Because no private manager was proposed and independence was required, the NSW Trustee and Guardian was appointed as financial manager.

Court Disposition

The Tribunal reviewed the enduring power of attorney, decided not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW), treated the application as an application for a financial management order, and appointed the NSW Trustee and Guardian as manager of Mr MBC's estate.

Orders

  • ['On the application by Mr TWC, the Tribunal decided to review the operation and effect of the enduring power of attorney granted by Mr MBC on 24 June 2009, reviewed its operation and effect, and decided not to make an order under s 36(4) of the Powers of Attorney Act 2003 (NSW).' 'Pursuant to s 37 of the Powers of...