FJH [2020] NSWCATGD 62

FJH [2020] NSWCATGD 62

The Tribunal found that WZN had standing because the financial institution held FJH's funds and had genuine concern about possible financial exploitation. It conducted a review because SGH had withdrawn approximately $78,000 from FJH's accounts in a short period, some gifts were not authorised by Sch 3 of the Powers of Attorney Act 2003 (NSW), and SGH gave an unsatisfactory explanation and had not kept proper records. The Tribunal decided not to make orders under s 36 of the Powers of Attorney Act 2003 (NSW) and instead treated the matter as an application for a financial management order. Given medical evidence of FJH's advanced dementia, her incapacity to manage finances, the need for...

Jurisdiction
Australia
Judgment Date
12 October 2020
Procedural Posture
Review of an Enduring Power of Attorney Treated as an Application for a Financial Management Order / Final Hearing and Principal Judgment
Outcome
Review conducted; no order made under s 36 of the Powers of Attorney Act 2003 (NSW); application treated as an application for a financial management order; estate committed to the NSW Trustee and Guardian.
Legal Topics
['review of Enduring Power of Attorney' 'authority of Attorney to Give Gifts' 'fiduciary Duty of Attorney' 'financial Management Order' 'capacity to Manage Affairs' "unexplained Withdrawals From Principal's Bank Account"]
['guardianship and Administration' 'powers of Attorney'] ['review of Enduring Power of Attorney' 'authority of Attorney to Give Gifts' 'fiduciary Duty of Attorney' 'financial Management Order' 'capacity to Manage Affairs' "unexplained Withdrawals From Principal's Bank Account"]

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Procedural Posture

Review of an Enduring Power of Attorney Treated as an Application for a Financial Management Order / Final Hearing and Principal Judgment

Legal Issues

  1. 1 ['Whether WZN had standing to apply for review of the enduring power of attorney.' 'Whether the Tribunal should conduct a review of the enduring power of attorney made by FJH on 11 August 2005.' 'Whether orders should be made under s 36 of the Powers of Attorney Act 2003 (NSW).' 'Whether the application should be treated as an application for a financial management order under Pt 3A of the Guardianship Act 1987 (NSW).' 'Whether FJH was incapable of managing her affairs, whether there was a need for another person to manage those affairs, and whether a financial management order was in her best interests.' 'Who should be appointed financial manager.']

Ratio Decidendi

The Tribunal found that WZN had standing because the financial institution held FJH's funds and had genuine concern about possible financial exploitation. It conducted a review because SGH had withdrawn approximately $78,000 from FJH's accounts in a short period, some gifts were not authorised by Sch 3 of the Powers of Attorney Act 2003 (NSW), and SGH gave an unsatisfactory explanation and had not kept proper records. The Tribunal decided not to make orders under s 36 of the Powers of Attorney Act 2003 (NSW) and instead treated the matter as an application for a financial management order. Given medical evidence of FJH's advanced dementia, her incapacity to manage finances, the need for...

Court Disposition

Review conducted; no order made under s 36 of the Powers of Attorney Act 2003 (NSW); application treated as an application for a financial management order; estate committed to the NSW Trustee and Guardian.

Orders

  • ['In relation to the enduring power of attorney made by FJH on 11 August 2005 which appointed SGH as attorney(s), the Tribunal determines, orders or declares to carry out a review of the operation and effect of the enduring power of attorney.' 'Not to make an order under s 36 of the Powers of Attorney Act 2003...