AG v AP-G [2013] NSWSC 272

AG v AP-G [2013] NSWSC 272

It is not appropriate to make a declaration that incapacity will last until age 18; the declaration under s 41(1) must address present incapacity and may be revoked if capacity is later acquired. Orders should be confined to present incapacity, and the defendant should be advised of the right to revoke the order before adulthood.

Jurisdiction
Australia
Judgment Date
28 March 2013
Procedural Posture
Guardianship/financial Management Application / Application for Orders in Equity Division Protective List
Outcome
Plaintiff to notify Associate how she wishes to proceed; no final management or trust order made at this stage.
Legal Topics
['appointment of Financial Manager' 'incapacity Due to Youth' 'trusts for Minors' 'restriction of Investment Powers' 'court Supervision of Settlements']
['equity' 'guardianship' 'trusts'] ['appointment of Financial Manager' 'incapacity Due to Youth' 'trusts for Minors' 'restriction of Investment Powers' 'court Supervision of Settlements']

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Procedural Posture

Guardianship/financial Management Application / Application for Orders in Equity Division Protective List

Legal Issues

  1. 1 ['Whether to appoint a financial manager under s 41(1) of the NSW Trustee and Guardian Act 2009 on grounds of incapacity caused by youth' 'Whether declaration of incapacity can or should be made until the defendant reaches the age of 18' 'Whether the court should make an order advising of right to revoke management order' "Whether to create a trust under s 16 of the Infants' Custody and Settlements Act 1899" "Whether to restrict trustee's investment powers"]

Ratio Decidendi

It is not appropriate to make a declaration that incapacity will last until age 18; the declaration under s 41(1) must address present incapacity and may be revoked if capacity is later acquired. Orders should be confined to present incapacity, and the defendant should be advised of the right to revoke the order before adulthood.

Court Disposition

Plaintiff to notify Associate how she wishes to proceed; no final management or trust order made at this stage.

Orders

  • ["Plaintiff to advise Associate if she seeks orders under s 41(1) of the NSW Trustee and Guardian Act or under s 16 of the Infants' Custody and Settlements Act, and whether she seeks any restrictions on investment powers."]