OZN [2020] NSWCATGD 95

OZN [2020] NSWCATGD 95

The Tribunal undertook a review because OZN's medical evidence, vulnerability and family conflict warranted it. Although there was conflicting evidence about OZN's capacity and the circumstances of execution did not represent best practice, OZN clearly wanted DDN to manage her finances, there was no evidence that DDN was mismanaging her affairs or acting other than in her best interests, the arrangements reflected long-standing informal arrangements between the spouses, and a financial management order would likely cause OZN considerable distress. Accordingly, an order under s 36(3) was not warranted.

Jurisdiction
Australia
Judgment Date
17 September 2020
Procedural Posture
Review of an Enduring Power of Attorney / Application Under S 36 of the Powers of Attorney Act 2003 (nsw) for Review of the Making of an Enduring Power of Attorney
Outcome
Application dismissed after review; no order made under s 36(3) of the Powers of Attorney Act 2003 (NSW).
Legal Topics
['review of Enduring Power of Attorney' 'capacity to Make an Enduring Power of Attorney' 'financial Management Order' 'family Conflict' 'best Interests and Wishes of the Principal']
['guardianship and Administration' 'powers of Attorney'] ['review of Enduring Power of Attorney' 'capacity to Make an Enduring Power of Attorney' 'financial Management Order' 'family Conflict' 'best Interests and Wishes of the Principal']

Case Brief

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Procedural Posture

Review of an Enduring Power of Attorney / Application Under S 36 of the Powers of Attorney Act 2003 (nsw) for Review of the Making of an Enduring Power of Attorney

Legal Issues

  1. 1 ['Whether the Tribunal should undertake a review of the making of the enduring power of attorney made by OZN on 8 July 2020 appointing DDN as attorney.' 'Whether OZN had capacity to make the enduring power of attorney on 8 July 2020.' 'Whether any order under s 36 of the Powers of Attorney Act 2003 (NSW), including an order declaring incapacity or invalidity, should be made.' 'Whether the application should be treated as an application for a financial management order under Pt 3A of the Guardianship Act 1987 (NSW).']

Ratio Decidendi

The Tribunal undertook a review because OZN's medical evidence, vulnerability and family conflict warranted it. Although there was conflicting evidence about OZN's capacity and the circumstances of execution did not represent best practice, OZN clearly wanted DDN to manage her finances, there was no evidence that DDN was mismanaging her affairs or acting other than in her best interests, the arrangements reflected long-standing informal arrangements between the spouses, and a financial management order would likely cause OZN considerable distress. Accordingly, an order under s 36(3) was not warranted.

Court Disposition

Application dismissed after review; no order made under s 36(3) of the Powers of Attorney Act 2003 (NSW).

Orders

  • ['To carry out a review of the making of the enduring power of attorney made by OZN on 8 July 2020 appointing DDN as attorney.' 'Not to make an order under s 36 of the Powers of Attorney Act 2003 (NSW) and dismiss the application.']