QFC (No 3) [2020] NSWCATGD 24

QFC (No 3) [2020] NSWCATGD 24

The Tribunal declined to conduct a further review of the enduring power of attorney, as there was no evidence of lack of capacity, inappropriate influence, or that attorneys had acted improperly. Gifts made by QFC to EZC and RBC, while resulting in diminution, were not shown to arise from use of the power of attorney or undue influence warranting review. QFC's interests and wishes weighed against a review, and procedural fairness was provided via the telephone hearing, given pandemic circumstances.

Parties
Person: QFC; Applicant: TAC; Attorney: RBC; Attorney: EZC; Party: NSW Trustee and Guardian
Jurisdiction
Australia
Judgment Date
20 March 2020
Procedural Posture
Review of an Enduring Power of Attorney / Final Determination After Hearing
Outcome
Application for review of enduring power of attorney not granted; costs directions made.
Legal Topics
Review of Enduring Power of Attorney, Appointment and Removal of Attorney, Allegations of Inappropriate Influence, Procedural Fairness, COVID 19 Hearing Procedures
Guardianship Powers of Attorney Review of Enduring Power of Attorney Appointment and Removal of Attorney Allegations of Inappropriate Influence Procedural Fairness COVID 19 Hearing Procedures

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Parties

QFC

Person

TAC

Applicant

RBC

Attorney

EZC

Attorney

NSW Trustee and Guardian

Party

Procedural Posture

Review of an Enduring Power of Attorney / Final Determination After Hearing

Legal Issues

  1. 1 Should the Tribunal conduct a review of the operation and effect of QFC's enduring power of attorney?
  2. 2 Has QFC been subject to inappropriate influence in the operation of her power of attorney?
  3. 3 Should EZC and RBC be removed as attorneys and TAC appointed instead?

Ratio Decidendi

The Tribunal declined to conduct a further review of the enduring power of attorney, as there was no evidence of lack of capacity, inappropriate influence, or that attorneys had acted improperly. Gifts made by QFC to EZC and RBC, while resulting in diminution, were not shown to arise from use of the power of attorney or undue influence warranting review. QFC's interests and wishes weighed against a review, and procedural fairness was provided via the telephone hearing, given pandemic circumstances.

Court Disposition

Application for review of enduring power of attorney not granted; costs directions made.

Orders

  • The Tribunal determines not to carry out a review of the operation and effect of the enduring power of attorney.
  • QFC is to lodge in the Tribunal and give to TAC any further submissions on her application for costs, within 14 days.