FC v SC [2022] NSWSC 1780

JC was incapable of managing his affairs because, notwithstanding periods of apparent cognitive capacity, his declining and fluctuating cognition, fixed paranoid beliefs about FC, dependence on SC and vulnerability to influence created a real risk of disadvantage and dissipation of his estate. SC occupied a position of actual undue influence over JC from at least 3 August 2020, and the legal advice given before the 2020 and 2021 instruments did not neutralise that influence. The 2020 revocation of enduring power of attorney was also formally ineffective. The 2020 and 2021 enduring powers of attorney and the 2020 enduring guardianship appointment were therefore invalid or should be set...

Jurisdiction: Australia
Judgment Date: 31 December 2022
Procedural Posture: Equity Division Protective Jurisdiction Proceedings Seeking Financial Management Orders and Declarations Concerning Enduring Powers of Attorney and Enduring Guardianship Appointments / Principal Judgment After Final Hearing; Declarations, Management Orders and Consequential Directions Made
Outcome: Application substantially granted; declarations of invalidity and financial management orders made, with operation stayed temporarily for transition and consequential submissions.
Legal Topics: ['protected Estates' 'capacity to Manage Affairs' 'enduring Power of Attorney' 'enduring Guardianship' 'undue Influence' 'financial Management Orders' 'cross Vesting Jurisdiction']

['equity' 'protective Jurisdiction' 'mental Health' 'guardianship' 'powers of Attorney'] ['protected Estates' 'capacity to Manage Affairs' 'enduring Power of Attorney' 'enduring Guardianship' 'undue Influence' 'financial Management Orders' 'cross Vesting Jurisdiction']

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Procedural Posture

Equity Division Protective Jurisdiction Proceedings Seeking Financial Management Orders and Declarations Concerning Enduring Powers of Attorney and Enduring Guardianship Appointments / Principal Judgment After Final Hearing; Declarations, Management Orders and Consequential Directions Made

Legal Issues

1 ['Whether JC was incapable of managing his affairs within NSW Trustee and Guardian Act 2009, s 41(1)(a).' 'Whether the 2020 revocation of enduring power of attorney and 2020 enduring power of attorney were formally valid and validly made.' 'Whether the 2021 Queensland enduring power of attorney should be declared invalid under Powers of Attorney Act 1998 (Qld), s 113 using cross-vested jurisdiction.' 'Whether SC exercised undue influence over JC in relation to the 2020 and 2021 enduring powers of attorney and the 2020 enduring guardianship appointment.' 'Whether the 2020 revocation of enduring guardianship and the 2020 enduring guardianship appointment were valid.' "Who should manage JC's estate and whether FC, SC, the NSW Trustee and Guardian or Ability One should be appointed."]

Ratio Decidendi

Court Disposition

Application substantially granted; declarations of invalidity and financial management orders made, with operation stayed temporarily for transition and consequential submissions.

Orders

['Declare that pursuant to the Jurisdiction of Courts (Cross Vesting) Act 1987, s 9 and in exercise of the jurisdiction conferred on the Court by the Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld), s 4(1) and under the Powers of Attorney Act 1998 (Qld), s 113 that the Enduring Power of Attorney executed in...