OBQ [2020] NSWCATGD 59

OBQ [2020] NSWCATGD 59

Although the concerns raised justified reviewing the operation and effect of the 6 April 2018 enduring power of attorney, the evidence showed that OBQ retained capacity to understand and instruct his attorneys, had authorised the challenged arrangements, and wished LAQ and TYQ to continue. In those circumstances, despite concerns about limited records and funds being held in the attorneys' names, it was not in OBQ's best interests or in accordance with his wishes to make orders under s 36 or to make a financial management order. The evidence did not provide sufficient weight to show that OBQ's will was overborne, or that he was confused or misled, when revoking DZC's appointment, so the...

Jurisdiction
Australia
Judgment Date
25 September 2020
Procedural Posture
Review of an Enduring Power of Attorney and Review of Revocation of an Enduring Power of Attorney / Final Decision After Hearings on 11 September 2020 and 25 September 2020
Outcome
Application to review the operation and effect of the 6 April 2018 enduring power of attorney was reviewed but dismissed with no order under s 36; application to review the revocation of the 9 October 2017 enduring power of attorney was not reviewed.
Legal Topics
['review of Operation and Effect of Enduring Power of Attorney' 'review of Revocation of Enduring Power of Attorney' 'attorney Duties and Records' 'fiduciary Duty' 'conflict of Interest' 'undue Influence' 'capacity to Instruct Attorneys']
['guardianship and Administration' 'powers of Attorney'] ['review of Operation and Effect of Enduring Power of Attorney' 'review of Revocation of Enduring Power of Attorney' 'attorney Duties and Records' 'fiduciary Duty' 'conflict of Interest' 'undue Influence' 'capacity to Instruct Attorneys']

Case Brief

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Procedural Posture

Review of an Enduring Power of Attorney and Review of Revocation of an Enduring Power of Attorney / Final Decision After Hearings on 11 September 2020 and 25 September 2020

Legal Issues

  1. 1 ['Whether the Tribunal should review the operation and effect of the enduring power of attorney made by OBQ on 6 April 2018 appointing LAQ and TYQ as attorneys.' 'Whether orders should be made under s 36 of the Powers of Attorney Act 2003 (NSW) concerning the operation and effect of the enduring power of attorney.' "Whether the attorneys failed to keep adequate records, gained personal benefit, or acted under a conflict of interest in managing OBQ's affairs." 'Whether OBQ retained capacity to instruct his attorneys about his financial affairs.' 'Whether the Tribunal should review the revocation of the enduring power of attorney that appointed DZC as attorney.' "Whether OBQ was unduly influenced, confused, or misled when revoking DZC's appointment as attorney."]

Ratio Decidendi

Although the concerns raised justified reviewing the operation and effect of the 6 April 2018 enduring power of attorney, the evidence showed that OBQ retained capacity to understand and instruct his attorneys, had authorised the challenged arrangements, and wished LAQ and TYQ to continue. In those circumstances, despite concerns about limited records and funds being held in the attorneys' names, it was not in OBQ's best interests or in accordance with his wishes to make orders under s 36 or to make a financial management order. The evidence did not provide sufficient weight to show that OBQ's will was overborne, or that he was confused or misled, when revoking DZC's appointment, so the...

Court Disposition

Application to review the operation and effect of the 6 April 2018 enduring power of attorney was reviewed but dismissed with no order under s 36; application to review the revocation of the 9 October 2017 enduring power of attorney was not reviewed.

Orders

  • ['In relation to the enduring power of attorney made by OBQ on 9 October 2017 which appointed DZC as attorney, the Tribunal determines, orders or declares not to carry out a review of the revocation of the enduring power of attorney.' 'In relation to the enduring power of attorney made by OBQ on 6 April 2018 which...