QNT [2016] NSWCATGD 74

QNT [2016] NSWCATGD 74

The Tribunal reviewed the revocation but was not satisfied it could determine Ms QNT's capacity as at 24 September 2015 and found no evidence of dishonesty or undue influence, so it made no order under s 36. Because Ms QNT was incapable of managing the complex financial affairs before her, particularly sale of the co-owned unit and protection of her contribution to property on Mr XGT's land, and because Mr XGT's interests were intermingled with hers in a way creating potential conflict, it was in Ms QNT's best interests to make a financial management order and commit her estate to the independent NSW Trustee and Guardian.

Jurisdiction
Australia
Judgment Date
03 March 2016
Procedural Posture
Review of Revocation of Enduring Power of Attorney and Review of Appointment of Enduring Guardian / Guardianship Division Hearing; Review of Revocation Conducted, Application Treated as Application for a Financial Management Order, and Review of Enduring Guardianship Appointment Adjourned
Outcome
The Tribunal reviewed the revocation of the enduring power of attorney, declined to make an order under s 36 of the Powers of Attorney Act, treated the review application as an application for a financial management order, committed management of Ms QNT's estate to the NSW Trustee and Guardian, and adjourned the...
Legal Topics
['review of Revocation of Enduring Power of Attorney' 'mental Capacity to Revoke Power of Attorney' 'financial Management Order' 'capability to Manage Affairs' 'conflict of Interest' 'vulnerability to Exploitation' 'appointment of NSW Trustee and Guardian']
['guardianship' 'powers of Attorney' 'financial Management'] ['review of Revocation of Enduring Power of Attorney' 'mental Capacity to Revoke Power of Attorney' 'financial Management Order' 'capability to Manage Affairs' 'conflict of Interest' 'vulnerability to Exploitation' 'appointment of NSW Trustee and Guardian']

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Procedural Posture

Review of Revocation of Enduring Power of Attorney and Review of Appointment of Enduring Guardian / Guardianship Division Hearing; Review of Revocation Conducted, Application Treated as Application for a Financial Management Order, and Review of Enduring Guardianship Appointment Adjourned

Legal Issues

  1. 1 ['Whether the Tribunal should conduct a review of the revocation of the enduring power of attorney.' 'Whether Ms QNT had mental capacity to revoke the enduring power of attorney on 24 September 2015.' 'Whether the revocation was invalid for another reason such as dishonesty or undue influence.' 'Whether the application for review should be treated as an application for a financial management order.' 'Whether Ms QNT was incapable of managing her affairs, whether there was a need for another person to manage them, and whether a financial management order was in her best interests.' 'Who should be appointed as financial manager.']

Ratio Decidendi

The Tribunal reviewed the revocation but was not satisfied it could determine Ms QNT's capacity as at 24 September 2015 and found no evidence of dishonesty or undue influence, so it made no order under s 36. Because Ms QNT was incapable of managing the complex financial affairs before her, particularly sale of the co-owned unit and protection of her contribution to property on Mr XGT's land, and because Mr XGT's interests were intermingled with hers in a way creating potential conflict, it was in Ms QNT's best interests to make a financial management order and commit her estate to the independent NSW Trustee and Guardian.

Court Disposition

The Tribunal reviewed the revocation of the enduring power of attorney, declined to make an order under s 36 of the Powers of Attorney Act, treated the review application as an application for a financial management order, committed management of Ms QNT's estate to the NSW Trustee and Guardian, and adjourned the...

Orders

  • ['The Tribunal decided under s 36(1) of the Powers of Attorney Act 2003 (NSW) to carry out a review of the revocation on 24 September 2014 of the enduring power of attorney made by Ms QNT on 27 March 2012.' 'As a consequence of reviewing the revocation of the enduring power of attorney, the Tribunal decided under s...