The Guardianship Tribunal and Enduring Powers Of Attorney

The Guardianship Tribunal and Enduring Powers of Attorney

A recent decision of the Guardianship Tribunal of New South Wales has shown the wide ranging powers that the Tribunal has in relation to Enduring Powers of Attorney.

An Enduring Power of Attorney is one that continues to be effective even if the person making the Power of Attorney suffers a loss of mental capacity after making the Power of Attorney.

In GSC [2013] NSWGT 11 Mrs GSC made an Enduring Power of Attorney appointing her two sons as her Attorneys. The Power of Attorney specifically restrained her sons from:

(a) Giving reasonable gifts of all or any property of Mrs GSC to any person; and

(b) Conferring financial benefits on themselves to meet their reasonable living and medical expenses.

 

In the past Mrs GSC had provided to one of her sons a loan to purchase a property. This son had repaid some of the loan and maintained that Mrs GSC had forgiven the remainder of the loan. Mrs GSC’s other son believed that, on account of this loan, he was entitled to the same amount of money from his mother. In accordance with this belief, and whilst acting as his mother’s Attorney, he transferred approximately $60,000 from Mrs GSC’s bank account to his own account.

Mrs GSC’s other son made an application to the Guardianship Tribunal for a review of the Power of Attorney in light of his brother’s transfer of $60,000 from Mrs GSC’s bank account to his own and the restriction on gifts contained in the Power of Attorney.

Any interested party has the ability to apply to the Guardianship Tribunal for a review of the operation and effect of a Power of Attorney. When such an application is made the Tribunal, if satisfied that it is in the best interests of the person who has given the Power of Attorney, may make the following orders: –

An order varying a term, or a power conferred by the Power of Attorney; or –

An order removing a person from office as an Attorney; or –

An order appointing a substitute attorney who has been removed as a result of the review; or –

A financial management order where the estate of the person becomes subject to management under the NSW Trustee and Guardian Act. Under this Act the NSW Trustee and Guardian can be appointed to be the financial manager of the Estate or another suitable person can be appointed as financial manager.

The Guardianship Tribunal found that the ongoing management of Mrs GSC’s financial affairs should occur with a level of transparency and accountability that had not existed in the past. The Tribunal was satisfied that it would be in Mrs GSC’s best interests for a financial management order to be made and that the appointment of a financial manager would provide a degree of accountability in the management of her financial affairs.

The Tribunal was not satisfied that it could appoint Mrs GSC’s son who had transferred money from her bank account to his own given his previous actions as his mother’s Attorney. The Tribunal was satisfied of Mrs GSC’s other son’s good fame and character and held that he was a suitable person to be appointed as Mrs GSC’s financial manager, subject to the authority and directions of the NSW Trustee and Guardian.

If you are an Attorney under a Power of Attorney and need to understand your legal obligations or believe that another Attorney has abused their powers, call Frank Boitano at Barwick Boitano today on (02) 9630 0444 or email on fjb@bblawyers.com for an appointment.

Easy parking directly opposite the practice and convenient to local transport!