MQN (No 2) [2018] NSWCATGD 47

MQN (No 2) [2018] NSWCATGD 47

The Tribunal dismissed the guardianship application because it was withdrawn with consent and there was no evident need for a guardianship order. It reviewed the enduring power of attorney but dismissed the review application because the evidence did not establish that the making of the EPA was not a true expression of MQN's wishes, nor any reason to intervene in its operation and effect. Although MQN lacked capacity to manage her affairs, the Tribunal was not satisfied there was a present need for a financial management order: since MQN entered the aged care facility her income and assets had been managed efficiently and properly, her accommodation and needs were being met, her family...

Jurisdiction
Australia
Judgment Date
07 September 2018
Procedural Posture
Guardianship Application, Financial Management Application, and Application to Review an Enduring Power of Attorney in the Guardianship Division of the NSW Civil and Administrative Tribunal / Principal Judgment After Hearing
Outcome
Guardianship application dismissed; financial management application dismissed; Tribunal undertook a review of the enduring power of attorney dated 15 July 2011 and dismissed the application to review it; confidentiality and representation orders made.
Legal Topics
['need for a Financial Management Order' 'review of Making of Enduring Power of Attorney' 'review of Operation and Effect of Enduring Power of Attorney' 'confidentiality of Financial Information' 'legal Representation in Tribunal Proceedings' 'participation of Cognitively Impaired Person']
['guardianship' 'financial Management' 'powers of Attorney'] ['need for a Financial Management Order' 'review of Making of Enduring Power of Attorney' 'review of Operation and Effect of Enduring Power of Attorney' 'confidentiality of Financial Information' 'legal Representation in Tribunal Proceedings' 'participation of Cognitively Impaired Person']

Case Brief

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Procedural Posture

Guardianship Application, Financial Management Application, and Application to Review an Enduring Power of Attorney in the Guardianship Division of the NSW Civil and Administrative Tribunal / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether MQN required a guardianship order after the guardianship application was withdrawn.' "Whether the document dated 23 January 2018 summarising DVN's assets and liabilities should be kept confidential from the parties." 'Whether the Tribunal should review the making, operation and effect of the enduring power of attorney dated 15 July 2011 granted by MQN to DVN.' "Whether the circumstances of execution of the enduring power of attorney, including language, timing, instructions and independent judgment issues, meant it was not a true expression of MQN's wishes." 'Whether MQN was incapable of managing her affairs.' "Whether there was a present need for a financial management order and whether such an order would serve MQN's welfare and interests."]

Ratio Decidendi

The Tribunal dismissed the guardianship application because it was withdrawn with consent and there was no evident need for a guardianship order. It reviewed the enduring power of attorney but dismissed the review application because the evidence did not establish that the making of the EPA was not a true expression of MQN's wishes, nor any reason to intervene in its operation and effect. Although MQN lacked capacity to manage her affairs, the Tribunal was not satisfied there was a present need for a financial management order: since MQN entered the aged care facility her income and assets had been managed efficiently and properly, her accommodation and needs were being met, her family...

Court Disposition

Guardianship application dismissed; financial management application dismissed; Tribunal undertook a review of the enduring power of attorney dated 15 July 2011 and dismissed the application to review it; confidentiality and representation orders made.

Orders

  • ['The Tribunal gave leave for NZG and MBL to be represented by Mrs Madeleine Gilmour, barrister.' 'The Tribunal gave leave for MBL to be represented by Mr John Warburton, solicitor.' 'The Tribunal gave leave for DVN to be represented by Mr Todd Alexis SC.' "The Tribunal ordered that the document dated 23 January...