ZHC v ZHP [2018] NSWCATAP 190

ZHC v ZHP [2018] NSWCATAP 190

The appeal was dismissed because no error of law was established and leave to appeal was refused. The Tribunal's finding that the appellant breached fiduciary duties had an evident and intelligible justification: the enduring power of attorney commenced when accepted on 1 May 2015, the appellant was then obliged to keep her finances separate from ZHP's and not obtain unauthorised benefits, and she admitted intermingling funds and benefits to herself and her family. The Tribunal did not fail to consider ZHP's views; it recorded that ZHP trusted the appellant, and it was open to give limited weight to ZHP's equivocal responses in light of her cognitive capacity. It was also open to find a...

Jurisdiction
Australia
Judgment Date
07 August 2018
Procedural Posture
Appeal of a Guardianship Division Decision Concerning Review of an Enduring Power of Attorney and a Financial Management Order / Appeal Panel; Leave to Appeal Refused; Appeal Dismissed
Outcome
Appeal dismissed
Legal Topics
['review of Enduring Power of Attorney' 'financial Management Order' 'appointment of NSW Trustee and Guardian' 'fiduciary Obligations of Attorney' 'legal Unreasonableness' 'conflict of Interest' 'views of Person Subject of Application' 'no Evidence Ground']
['administrative Law' 'guardianship and Administration' 'powers of Attorney' 'equity and Fiduciary Duties'] ['review of Enduring Power of Attorney' 'financial Management Order' 'appointment of NSW Trustee and Guardian' 'fiduciary Obligations of Attorney' 'legal Unreasonableness' 'conflict of Interest' 'views of Person Subject of Application' 'no Evidence Ground']

Case Brief

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Procedural Posture

Appeal of a Guardianship Division Decision Concerning Review of an Enduring Power of Attorney and a Financial Management Order / Appeal Panel; Leave to Appeal Refused; Appeal Dismissed

Legal Issues

  1. 1 ['Whether the finding that the attorney was in breach of her fiduciary obligations was legally unreasonable.' "Whether the Tribunal misstated or failed to take account of ZHP's views about who should be appointed as financial manager." "Whether the Tribunal misapplied the law by refusing to appoint the appellant as financial manager because of conflict between her interests and ZHP's interests." 'Whether there was no evidence to support the finding that appointing a family member may inflame family tensions.' 'Whether leave to appeal should be granted on grounds other than questions of law.']

Ratio Decidendi

The appeal was dismissed because no error of law was established and leave to appeal was refused. The Tribunal's finding that the appellant breached fiduciary duties had an evident and intelligible justification: the enduring power of attorney commenced when accepted on 1 May 2015, the appellant was then obliged to keep her finances separate from ZHP's and not obtain unauthorised benefits, and she admitted intermingling funds and benefits to herself and her family. The Tribunal did not fail to consider ZHP's views; it recorded that ZHP trusted the appellant, and it was open to give limited weight to ZHP's equivocal responses in light of her cognitive capacity. It was also open to find a...

Court Disposition

Appeal dismissed

Orders

  • ['The appeal is dismissed.']