ICW [2017] NSWCATGD 43

ICW [2017] NSWCATGD 43

Mrs ICW did not have the mental capacity to understand, retain and evaluate the information necessary to make or revoke an enduring power of attorney due to cognitive impairment from advanced dementia; the 2014 enduring power of attorney was invalid and Mrs ICW lacked capacity to revoke the 2007 enduring power of attorney; family conflict and unexplained financial withdrawals rendered operation of the 2007 power of attorney not in her best interests and justified revocation; financial management order should remain in place until further review.

Jurisdiction
Australia
Judgment Date
10 October 2017
Procedural Posture
Review of Enduring Power of Attorney; Review of Financial Management Order / Final Judgment/orders
Outcome
Applications largely allowed; enduring powers of attorney revoked/invalidated; financial management order retained; directions made.
Legal Topics
['enduring Power of Attorney' 'capacity' 'revocation' 'fiduciary Duties' 'conflicts of Interest' 'financial Management Order']
['guardianship Law' 'powers of Attorney' 'elder Law'] ['enduring Power of Attorney' 'capacity' 'revocation' 'fiduciary Duties' 'conflicts of Interest' 'financial Management Order']

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Procedural Posture

Review of Enduring Power of Attorney; Review of Financial Management Order / Final Judgment/orders

Legal Issues

  1. 1 ['Did Mrs ICW have capacity to make the enduring power of attorney dated 28 October 2014?' 'Did Mrs ICW have capacity to revoke the enduring power of attorney dated 5 March 2007?' 'Should the enduring power of attorney dated 5 March 2007 be revoked?' 'Were there breaches of fiduciary duties or conflicts of interest by attorneys?' 'Should the financial management order concerning Mrs ICW be revoked or reviewed?']

Ratio Decidendi

Mrs ICW did not have the mental capacity to understand, retain and evaluate the information necessary to make or revoke an enduring power of attorney due to cognitive impairment from advanced dementia; the 2014 enduring power of attorney was invalid and Mrs ICW lacked capacity to revoke the 2007 enduring power of attorney; family conflict and unexplained financial withdrawals rendered operation of the 2007 power of attorney not in her best interests and justified revocation; financial management order should remain in place until further review.

Court Disposition

Applications largely allowed; enduring powers of attorney revoked/invalidated; financial management order retained; directions made.

Orders

  • ['Review carried out of enduring power of attorney made 28 October 2014.' 'Declared Mrs ICW lacked mental capacity to make valid enduring power of attorney.' 'Declared enduring power of attorney dated 28 October 2014 invalid wholly.' 'Review carried out of revocation of enduring power of attorney dated 5 March...