FA v Protective Commissioner and ors [2008] NSWADTAP 36

FA v Protective Commissioner and ors [2008] NSWADTAP 36

The Appeal Panel held that the evidence said to have been overlooked was not critical to the question of FA's capacity to manage her financial affairs and did not support a conclusion that she was capable of managing those affairs. The alleged promise by her daughter and son-in-law had been withdrawn, lodging the caveat did not itself demonstrate sophisticated financial capacity, and the ACAT report was not an assessment of financial capacity. Although FA was not expressly given Dr Wood's opinions, she addressed their substance in her statement, so there was no breach of procedural fairness. No error of law was established, and because FA did not seek leave to appeal on the merits, the...

Jurisdiction
Australia
Judgment Date
18 June 2008
Procedural Posture
External Appeal From Guardianship Tribunal Decision Making a Financial Management Order / Appeal on Questions of Law
Outcome
Appeal dismissed; decision affirmed.
Legal Topics
['financial Management Order' 'capacity to Manage Affairs' 'question of Law' 'procedural Fairness' 'failure to Consider Evidence']
['administrative Law' 'guardianship and Financial Management'] ['financial Management Order' 'capacity to Manage Affairs' 'question of Law' 'procedural Fairness' 'failure to Consider Evidence']

Case Brief

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Procedural Posture

External Appeal From Guardianship Tribunal Decision Making a Financial Management Order / Appeal on Questions of Law

Legal Issues

  1. 1 ['Whether the Guardianship Tribunal made an error of law by ignoring probative evidence relevant to whether FA lacked capacity to manage her financial affairs.' 'Whether the Guardianship Tribunal breached procedural fairness by denying FA a reasonable opportunity to respond to adverse material.' "Whether the Guardianship Tribunal's decision to make a financial management order and appoint the Protective Commissioner should be affirmed."]

Ratio Decidendi

The Appeal Panel held that the evidence said to have been overlooked was not critical to the question of FA's capacity to manage her financial affairs and did not support a conclusion that she was capable of managing those affairs. The alleged promise by her daughter and son-in-law had been withdrawn, lodging the caveat did not itself demonstrate sophisticated financial capacity, and the ACAT report was not an assessment of financial capacity. Although FA was not expressly given Dr Wood's opinions, she addressed their substance in her statement, so there was no breach of procedural fairness. No error of law was established, and because FA did not seek leave to appeal on the merits, the...

Court Disposition

Appeal dismissed; decision affirmed.

Orders

  • ['The decision of the Guardianship Tribunal to make a financial management order in relation to FA and to appoint the Protective Commissioner to be her manager is affirmed.']