KSU [2019] NSWCATGD 13

KSU [2019] NSWCATGD 13

The Tribunal found that KSU did not have mental capacity on 23 October 2018 to revoke the enduring power of attorney because, due to the combined effects of severe aphasia and cognitive impairment, he did not understand the nature and effect of the revocation and was focused on leaving the nursing home rather than the broader ramifications of the document. Although KSU was incapable of managing his financial affairs, a financial management order was not necessary or in his best interests because existing arrangements, including the enduring power of attorney and NSU's management of joint finances with support, were meeting his needs and there was insufficient evidence that financial...

Jurisdiction
Australia
Judgment Date
29 March 2019
Procedural Posture
Review of Revocation of an Enduring Power of Attorney and Applications for Financial Management Orders / Hearing in the Guardianship Division of the NSW Civil and Administrative Tribunal
Outcome
The Tribunal declared that KSU did not have mental capacity to revoke the enduring power of attorney and dismissed both applications for financial management orders.
Legal Topics
['review of Revocation of Enduring Power of Attorney' 'mental Capacity to Revoke Enduring Power of Attorney' 'fluctuating Capacity' 'aphasia and Cognitive Impairment' 'financial Management Order' 'best Interests']
['guardianship and Financial Management' 'powers of Attorney'] ['review of Revocation of Enduring Power of Attorney' 'mental Capacity to Revoke Enduring Power of Attorney' 'fluctuating Capacity' 'aphasia and Cognitive Impairment' 'financial Management Order' 'best Interests']

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Procedural Posture

Review of Revocation of an Enduring Power of Attorney and Applications for Financial Management Orders / Hearing in the Guardianship Division of the NSW Civil and Administrative Tribunal

Legal Issues

  1. 1 ['Whether the Tribunal should conduct a review of the revocation of the enduring power of attorney made by KSU on 10 June 2013.' 'Whether KSU had mental capacity on 23 October 2018 to revoke the enduring power of attorney.' 'Whether KSU was incapable of managing his financial affairs.' "Whether there was a need for a financial management order and whether such an order was in KSU's best interests."]

Ratio Decidendi

The Tribunal found that KSU did not have mental capacity on 23 October 2018 to revoke the enduring power of attorney because, due to the combined effects of severe aphasia and cognitive impairment, he did not understand the nature and effect of the revocation and was focused on leaving the nursing home rather than the broader ramifications of the document. Although KSU was incapable of managing his financial affairs, a financial management order was not necessary or in his best interests because existing arrangements, including the enduring power of attorney and NSU's management of joint finances with support, were meeting his needs and there was insufficient evidence that financial...

Court Disposition

The Tribunal declared that KSU did not have mental capacity to revoke the enduring power of attorney and dismissed both applications for financial management orders.

Orders

  • ['In relation to the enduring power of attorney made by KSU on 10 June 2013 which appointed TZG and NSU as attorneys, KSU did not have the mental capacity to revoke an enduring power of attorney.' 'The application by NZL for a financial management order for KSU is dismissed after hearing.' 'The application by QSU...