GFN [2021] NSWCATGD 7

There was insufficient evidence to justify reviewing the making of the enduring power of attorney, because no material showed that GFN lacked the relevant capacity when he executed it and the witnessing solicitor certified that its effect was explained and appeared understood. A review of its operation and effect was warranted because OAG, acting as attorney, exceeded her authority by seeking to hide GFN's assets from creditors, breached fiduciary duties by purchasing in her own name a movable dwelling partly bought with GFN's funds, created an apparent conflict of interest, and conferred benefits on MZN without authority. Because OAG refused to transfer the dwelling into GFN and MZN's...

Jurisdiction: Australia
Judgment Date: 01 April 2021
Procedural Posture: Review of an Enduring Power of Attorney; Financial Management Order / Principal Judgment
Outcome: The Tribunal declined to review the making of the enduring power of attorney, reviewed its operation and effect, declined to make an order under s 36 of the Powers of Attorney Act, treated the application as an application for a financial management order, and committed GFN's estate to the management of the NSW...
Legal Topics: ['review of Enduring Power of Attorney' 'operation and Effect of Enduring Power of Attorney' 'financial Management Order' 'fiduciary Duties of Attorney' 'conflict of Interest' 'conferral of Benefits' 'appointment of NSW Trustee and Guardian']

['guardianship and Administration' 'powers of Attorney'] ['review of Enduring Power of Attorney' 'operation and Effect of Enduring Power of Attorney' 'financial Management Order' 'fiduciary Duties of Attorney' 'conflict of Interest' 'conferral of Benefits' 'appointment of NSW Trustee and Guardian']

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Procedural Posture

Review of an Enduring Power of Attorney; Financial Management Order / Principal Judgment

Legal Issues

1 ['Whether the Tribunal should review the making of the enduring power of attorney made by GFN on 19 June 2012.' 'Whether the Tribunal should review the operation and effect of the enduring power of attorney made by GFN on 19 June 2012.' 'Whether OAG exceeded her authority or breached fiduciary duties as enduring attorney by hiding assets from creditors, purchasing a movable dwelling in her own name, and allowing benefits to be conferred on MZN.' 'Whether, after reviewing the operation and effect of the enduring power of attorney, the application should be treated as an application for a financial management order.' 'Whether GFN was incapable of managing his financial affairs, whether there was a need for another person to manage them, and whether a financial management order was in his best interests.' "Who should be appointed to manage GFN's estate."]

Ratio Decidendi

Court Disposition

The Tribunal declined to review the making of the enduring power of attorney, reviewed its operation and effect, declined to make an order under s 36 of the Powers of Attorney Act, treated the application as an application for a financial management order, and committed GFN's estate to the management of the NSW...

Orders

['The Tribunal decided, under s 36(1) of the Powers of Attorney Act 2013 (NSW), not to carry out a review of the making of the enduring power of attorney made by GFN on 19 June 2012.' 'The Tribunal decided, under s 36(1) of the Powers of Attorney Act, to carry out a review of the operation and effect of the enduring...