NFM [2018] NSWCATGD 14

NFM [2018] NSWCATGD 14

The Tribunal, applying the requisite legal test for capacity, found that Mrs NFM did not possess the capacity in early 2017 to validly execute or revoke enduring guardianship or enduring power of attorney instruments; accordingly, the 2017 instruments appointing or revoking appointments were not effective. The Tribunal further determined that due to Mrs NFM's cognitive disability and the family dynamics, it was in her best interests that guardianship and financial management orders be made, appointing the Public Guardian and DAT as guardians (for separate functions), and committing management of her estate to the NSW Trustee and Guardian.

Jurisdiction
Australia
Judgment Date
19 April 2018
Procedural Posture
Guardianship and Financial Management Applications; Review of Enduring Guardianship and Powers of Attorney / Final Merits Decision After Hearing
Outcome
Guardianship order and financial management order made; appointments confirmed and prior appointment revoked
Legal Topics
['capacity to Appoint or Revoke Enduring Guardian' 'capacity to Appoint or Revoke Enduring Power of Attorney' 'criteria for Guardianship Order' 'criteria for Financial Management Order' 'appointment of Public Guardian' 'appointment of Financial Manager' 'assessment of Medical Evidence of Incapacity']
['guardianship' 'powers of Attorney' 'mental Capacity' 'elder Law'] ['capacity to Appoint or Revoke Enduring Guardian' 'capacity to Appoint or Revoke Enduring Power of Attorney' 'criteria for Guardianship Order' 'criteria for Financial Management Order' 'appointment of Public Guardian' 'appointment of Financial Manager' 'assessment of Medical Evidence of Incapacity']

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Procedural Posture

Guardianship and Financial Management Applications; Review of Enduring Guardianship and Powers of Attorney / Final Merits Decision After Hearing

Legal Issues

  1. 1 ['Whether Mrs NFM possessed the requisite capacity to execute, revoke or appoint enduring guardians and attorneys in early 2017' 'Whether a guardianship order should be made in respect of Mrs NFM and who should be the guardian' 'Whether a financial management order should be made in respect of Mrs NFM and who should be financial manager']

Ratio Decidendi

The Tribunal, applying the requisite legal test for capacity, found that Mrs NFM did not possess the capacity in early 2017 to validly execute or revoke enduring guardianship or enduring power of attorney instruments; accordingly, the 2017 instruments appointing or revoking appointments were not effective. The Tribunal further determined that due to Mrs NFM's cognitive disability and the family dynamics, it was in her best interests that guardianship and financial management orders be made, appointing the Public Guardian and DAT as guardians (for separate functions), and committing management of her estate to the NSW Trustee and Guardian.

Court Disposition

Guardianship order and financial management order made; appointments confirmed and prior appointment revoked

Orders

  • ['The appointment of DAT as an enduring guardian is revoked.' 'A guardianship order is made for NFM.' 'The Public Guardian and DAT are appointed separately as guardians for different functions for NFM for 12 months.' "Conditions as to guardians' role set out (including consultation and obtaining NFM's views)." 'The...