DAM [2016] NSWCATGD 67

DAM [2016] NSWCATGD 67

The Tribunal preferred Dr Z's evidence over Solicitor X's evidence because Dr Z had treated Mr DAM for four years, knew his lengthy psychiatric history and had the benefit of medical records and neuropsychological assessment, while Solicitor X met Mr DAM once and proceeded on incorrect information about his diagnosis and hospital status. The Tribunal was satisfied that Mr DAM could express trust in Mr BIM and Ms TUN but did not have sufficient capacity to understand and retain information about the nature and effect of the enduring power of attorney or enduring guardianship documents. Because Mr DAM lacked capacity and because of the pressing accommodation issues, family conflict and need...

Jurisdiction
Australia
Judgment Date
14 December 2016
Procedural Posture
Review of Appointment of Enduring Power of Attorney and Review of Appointment of Enduring Guardian / Decision on Review Applications; Applications for Appointment of Guardian and Financial Manager Adjourned
Outcome
The enduring power of attorney was declared wholly invalid, the enduring guardianship appointment was revoked, and the applications for appointment of a guardian and financial manager were adjourned to 19 January 2017.
Legal Topics
['review of Making of Enduring Power of Attorney' 'review of Appointment of Enduring Guardian' 'capacity to Understand Nature and Effect of Appointment Documents' 'best Interests' 'involuntary Patient']
['guardianship' 'powers of Attorney' 'mental Capacity'] ['review of Making of Enduring Power of Attorney' 'review of Appointment of Enduring Guardian' 'capacity to Understand Nature and Effect of Appointment Documents' 'best Interests' 'involuntary Patient']

Case Brief

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Procedural Posture

Review of Appointment of Enduring Power of Attorney and Review of Appointment of Enduring Guardian / Decision on Review Applications; Applications for Appointment of Guardian and Financial Manager Adjourned

Legal Issues

  1. 1 ['Whether the Tribunal should conduct a review of the enduring power of attorney made by Mr DAM on 21 November 2016.' 'Whether Mr DAM had mental capacity to make a valid enduring power of attorney on 21 November 2016.' 'Whether Mr DAM had capacity to understand the nature and effect of the enduring guardianship appointment made on 21 November 2016.' "Whether it was in Mr DAM's best interests that the enduring guardianship appointment be revoked." 'Whether the applications for appointment of a guardian and financial manager should be adjourned.']

Ratio Decidendi

The Tribunal preferred Dr Z's evidence over Solicitor X's evidence because Dr Z had treated Mr DAM for four years, knew his lengthy psychiatric history and had the benefit of medical records and neuropsychological assessment, while Solicitor X met Mr DAM once and proceeded on incorrect information about his diagnosis and hospital status. The Tribunal was satisfied that Mr DAM could express trust in Mr BIM and Ms TUN but did not have sufficient capacity to understand and retain information about the nature and effect of the enduring power of attorney or enduring guardianship documents. Because Mr DAM lacked capacity and because of the pressing accommodation issues, family conflict and need...

Court Disposition

The enduring power of attorney was declared wholly invalid, the enduring guardianship appointment was revoked, and the applications for appointment of a guardian and financial manager were adjourned to 19 January 2017.

Orders

  • ['The Tribunal declares that Mr DAM did not have the mental capacity to make a valid enduring power of attorney on 21 November 2016.' 'The enduring power of attorney made by Mr DAM on 21 November 2016 which appointed Mr BIM and Ms TUN is wholly invalid.' 'The enduring guardianship appointment made by Mr DAM...