ZUR v ZUS [2021] NSWCATAP 175

ZUR v ZUS [2021] NSWCATAP 175

The appeal was allowed because, in light of the prior finding that ZUS lacked capacity to manage his finances, the medical evidence, the competing positions of the parties, the absence of any power in the enduring power of attorney for the attorneys to benefit themselves or others or give gifts, the Tribunal's implicit finding that not all spending was for ZUS's benefit, and the separate representative's submissions, the Tribunal was required to engage with whether ZUS had capacity to make his own financial decisions and whether ZUS or his attorneys were making those decisions. Its failure to refer to those issues showed either a failure to properly engage with ZUR's case or a failure to...

Jurisdiction
Australia
Judgment Date
17 June 2021
Procedural Posture
Appeal Concerning a Guardianship Division Review of the Operation and Effect of an Enduring Power of Attorney / Appeal Panel Determination of Appeal From Decision Dated 11 November 2020
Outcome
Appeal allowed; review of the operation and effect of the enduring power of attorney remitted to the Tribunal, differently constituted, with a separate representative appointed for ZUS.
Legal Topics
['review of Enduring Power of Attorney' 'procedural Fairness' "failure to Engage With a Party's Case" 'capacity to Manage Financial Affairs' 'remittal']
['guardianship' 'powers of Attorney' 'administrative Law'] ['review of Enduring Power of Attorney' 'procedural Fairness' "failure to Engage With a Party's Case" 'capacity to Manage Financial Affairs' 'remittal']

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Procedural Posture

Appeal Concerning a Guardianship Division Review of the Operation and Effect of an Enduring Power of Attorney / Appeal Panel Determination of Appeal From Decision Dated 11 November 2020

Legal Issues

  1. 1 ["Whether the Tribunal failed to properly engage with ZUR's case concerning ZUS's capacity and the operation and effect of the enduring power of attorney." 'Whether the Tribunal failed to give sufficient reasons for deciding not to make orders under s 36 of the Powers of Attorney Act 2003 (NSW).' 'Whether the appeal should be allowed and the review remitted to a differently constituted Tribunal.']

Ratio Decidendi

The appeal was allowed because, in light of the prior finding that ZUS lacked capacity to manage his finances, the medical evidence, the competing positions of the parties, the absence of any power in the enduring power of attorney for the attorneys to benefit themselves or others or give gifts, the Tribunal's implicit finding that not all spending was for ZUS's benefit, and the separate representative's submissions, the Tribunal was required to engage with whether ZUS had capacity to make his own financial decisions and whether ZUS or his attorneys were making those decisions. Its failure to refer to those issues showed either a failure to properly engage with ZUR's case or a failure to...

Court Disposition

Appeal allowed; review of the operation and effect of the enduring power of attorney remitted to the Tribunal, differently constituted, with a separate representative appointed for ZUS.

Orders

  • ['The appeal is allowed.' 'The conduct of the review of the operation and effect of the enduring power of attorney executed by ZUS on 28 November 2017 is remitted to the Tribunal, differently constituted, for determination according to law.' 'A separate representative for ZUS is appointed in the remitted proceedings.']