HKE [2021] NSWCATGD 43

HKE [2021] NSWCATGD 43

BAK had standing as a son of HKE and as a person previously appointed as attorney. The Tribunal declined to review the making of the enduring powers of attorney because they had terminated on HKE's death and orders about their validity would have no utility. Although the Tribunal accepted that it may review the operation and effect of an enduring power of attorney after the principal's death and make s 36(4)(e) orders if that would reflect the principal's wishes, it decided not to do so. Any order for a financial management plan had no utility after death; concerns about depletion of a deceased estate should be addressed in an appropriate jurisdiction such as the Supreme Court; GZK had...

Jurisdiction
Australia
Judgment Date
01 July 2021
Procedural Posture
Review of an Enduring Power of Attorney / Application to Review the Making and Operation and Effect of Enduring Powers of Attorney; Tribunal Determined Not to Carry Out a Review and Dismissed the Application
Outcome
Application dismissed; Tribunal determined not to carry out a review of the making and operation and effect of the enduring powers of attorney.
Legal Topics
['review of Enduring Power of Attorney' 'deceased Principal' 'standing to Apply for Review' 'discretion to Conduct Review' 'orders for Accounts and Records' 'utility of Orders After Death of Principal']
['guardianship and Administration' 'powers of Attorney' 'administrative Law'] ['review of Enduring Power of Attorney' 'deceased Principal' 'standing to Apply for Review' 'discretion to Conduct Review' 'orders for Accounts and Records' 'utility of Orders After Death of Principal']

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Procedural Posture

Review of an Enduring Power of Attorney / Application to Review the Making and Operation and Effect of Enduring Powers of Attorney; Tribunal Determined Not to Carry Out a Review and Dismissed the Application

Legal Issues

  1. 1 ['Whether BAK had standing to apply for review of the enduring powers of attorney.' "Whether the Tribunal should conduct a review of the making of the enduring powers of attorney after HKE's death." 'Whether the Tribunal should review the operation and effect of the enduring powers of attorney and make orders under s 36(4)(e) of the Powers of Attorney Act 2003 (NSW).' 'Whether there was any utility in making orders concerning accounts, records, audit, inquiry or a plan of financial management after the principal had died.']

Ratio Decidendi

BAK had standing as a son of HKE and as a person previously appointed as attorney. The Tribunal declined to review the making of the enduring powers of attorney because they had terminated on HKE's death and orders about their validity would have no utility. Although the Tribunal accepted that it may review the operation and effect of an enduring power of attorney after the principal's death and make s 36(4)(e) orders if that would reflect the principal's wishes, it decided not to do so. Any order for a financial management plan had no utility after death; concerns about depletion of a deceased estate should be addressed in an appropriate jurisdiction such as the Supreme Court; GZK had...

Court Disposition

Application dismissed; Tribunal determined not to carry out a review of the making and operation and effect of the enduring powers of attorney.

Orders

  • ['In relation to the enduring powers of attorney made by HKE (deceased) on 19 January 2013 and 9 September 2019 which appointed GZK as attorney, the Tribunal determines, orders or declares not to carry out a review of the making and operation and effect of the enduring powers of attorney.']