KNE [2022] NSWCATGD 22

KNE [2022] NSWCATGD 22

The Tribunal was empowered to review KNE's enduring power of attorney despite her death and decided to conduct a review because OKN's material raised matters of concern. However, the enduring power of attorney appeared valid on its face, there was no persuasive objective evidence that KNE lacked capacity or was coerced, no prima facie evidence that EDN or NTN breached fiduciary obligations or mismanaged KNE's finances, no cogent evidence that the property was sold at an undervalue or that unnecessary costs were incurred, and no order would better reflect KNE's wishes. The Tribunal therefore declined to make orders under s 36(4) and dismissed the application.

Jurisdiction
Australia
Judgment Date
06 July 2022
Procedural Posture
Application to Review an Enduring Power of Attorney / Hearing and Determination in the Guardianship Division; Application Dismissed
Outcome
Application dismissed; no order made under s 36 of the Powers of Attorney Act 2003 (NSW).
Legal Topics
['review of Enduring Power of Attorney' 'death of Principal' 'capacity to Execute Enduring Power of Attorney' 'alleged Coercion' 'fiduciary Obligations of Attorneys' 'orders Under S 36 of the Powers of Attorney Act 2003 (nsw)']
['guardianship and Administration' 'powers of Attorney'] ['review of Enduring Power of Attorney' 'death of Principal' 'capacity to Execute Enduring Power of Attorney' 'alleged Coercion' 'fiduciary Obligations of Attorneys' 'orders Under S 36 of the Powers of Attorney Act 2003 (nsw)']

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Procedural Posture

Application to Review an Enduring Power of Attorney / Hearing and Determination in the Guardianship Division; Application Dismissed

Legal Issues

  1. 1 ["Whether the Tribunal had power to review KNE's enduring power of attorney given that KNE had passed away before the application and hearing." 'Whether the Tribunal should conduct a review of the making and operation and effect of the enduring power of attorney.' 'Whether any orders should be made under s 36(4) of the Powers of Attorney Act 2003 (NSW).']

Ratio Decidendi

The Tribunal was empowered to review KNE's enduring power of attorney despite her death and decided to conduct a review because OKN's material raised matters of concern. However, the enduring power of attorney appeared valid on its face, there was no persuasive objective evidence that KNE lacked capacity or was coerced, no prima facie evidence that EDN or NTN breached fiduciary obligations or mismanaged KNE's finances, no cogent evidence that the property was sold at an undervalue or that unnecessary costs were incurred, and no order would better reflect KNE's wishes. The Tribunal therefore declined to make orders under s 36(4) and dismissed the application.

Court Disposition

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

Orders

  • ['In relation to the enduring power of attorney made by KNE (deceased) on 12 July 2021 which appointed NTN and EDN as attorney(s), the Tribunal determines, orders or declares to carry out a review of the making and operation and effect of the enduring power of attorney.' 'Not to make an order under s 36 of the...