ZII v ZIJ [2018] NSWCATAP 255

ZII v ZIJ [2018] NSWCATAP 255

The Tribunal did not err in its findings that ZIJ did not have the capacity on 18 July 2017 to revoke the 2004 enduring power of attorney or to make a new one. Although there was no express reference to the presumption of capacity, the reasoning as a whole was not inconsistent with the legal requirements for mental capacity. The Tribunal's process did not result in procedural unfairness to the appellant. There was no error in the weight placed on various pieces of evidence or in the Tribunal's approach to assessing the best interests and wishes of ZIJ given her cognitive impairment. Leave to appeal on grounds other than law was refused, and the appeal dismissed.

Parties
Appellant: ZII; First Respondent: ZIJ; Second Respondent: ZIK; Third Respondent: ZIL; Fourth Respondent: ZIM; Fifth Respondent: NSW Trustee and Guardian
Jurisdiction
Australia
Judgment Date
29 October 2018
Procedural Posture
Appeal / Leave to Appeal and Substantive Appeal Decision
Outcome
Leave to appeal is refused. The appeal is dismissed.
Legal Topics
Review of Revocation of Enduring Power of Attorney, Review of Making of Enduring Power of Attorney, Review of Enduring Guardianship, Presumption of Capacity, Mental Capacity to Revoke/make Enduring Power of Attorney, Procedural Fairness
Guardianship Powers of Attorney Elder Law Review of Revocation of Enduring Power of Attorney Review of Making of Enduring Power of Attorney Review of Enduring Guardianship Presumption of Capacity Mental Capacity to Revoke/make Enduring Power of Attorney +1 more

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Parties

ZII

Appellant

ZIJ

First Respondent

ZIK

Second Respondent

ZIL

Third Respondent

ZIM

Fourth Respondent

NSW Trustee and Guardian

Fifth Respondent

Procedural Posture

Appeal / Leave to Appeal and Substantive Appeal Decision

Legal Issues

  1. 1 Whether ZIJ had capacity to revoke and/or make enduring power of attorney on 18 July 2017
  2. 2 Whether Tribunal erred regarding presumption of capacity
  3. 3 Whether Tribunal denied procedural fairness to appellant

Ratio Decidendi

The Tribunal did not err in its findings that ZIJ did not have the capacity on 18 July 2017 to revoke the 2004 enduring power of attorney or to make a new one. Although there was no express reference to the presumption of capacity, the reasoning as a whole was not inconsistent with the legal requirements for mental capacity. The Tribunal's process did not result in procedural unfairness to the appellant. There was no error in the weight placed on various pieces of evidence or in the Tribunal's approach to assessing the best interests and wishes of ZIJ given her cognitive impairment. Leave to appeal on grounds other than law was refused, and the appeal dismissed.

Court Disposition

Leave to appeal is refused. The appeal is dismissed.

Orders

  • Leave to appeal is refused.
  • The appeal is dismissed.