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Review of Enduring Powers of Attorney – Information for Parties

What is the Guardianship Tribunal?
What happens at the hearing?
Review of enduring powers of attorney
Who can apply for a review?
Who are the parties to a review?
What does an applicant have to do?
Reviews of the making of an enduring power of attorney
Reviews of the operation and effect of an enduring power of attorney
Reviews seeking a declaration that the principal lacks or lacked capacity
The Tribunal can change the application to review an enduring power of attorney into an application for a financial management order
Advice or directions may be given
Can I have a lawyer at the hearing?
When will I know the outcome?
What if I disagree with the decision?
Referring an application to the Supreme Court
Referring questions of law to the Supreme Court
More information

What is the Guardianship Tribunal?

For each hearing, the Tribunal is made up of a panel of at least three people, who have been appointed to the Tribunal because they have particular expertise. Each panel must have at least one legal member, one professional member (eg. a doctor, psychologist or social worker who has experience assessing or treating people with disabilities), and a community member, who has professional or personal experience with people with disabilities.

What happens at the hearing?

The Tribunal will ask you or other people attending the hearing questions about the application. You can also ask questions. The Tribunal may contact relevant people (eg. doctors or other people who have not been able to attend) by phone during the hearing. The Tribunal will listen to all the evidence presented and will consider all the written information that has been provided. The Tribunal will try to make sure that the person the application is about understands what is happening at the hearing.

The Tribunal will always take into account the views of the person the application is about. It will also consider the principles of the Guardianship Act to ensure that the welfare of the person the application is about is given paramount consideration by the Tribunal.

Review of enduring powers of attorney

As from 16 February 2004, the Guardianship Tribunal has the power to review enduring powers of attorney under the provisions of the Powers of Attorney Act 2003. The Tribunal can review the making of or the operation and effect of an enduring power of attorney (see s.36 of the Act) regardless of when it was made. However, the Guardianship Tribunal does not have authority to review other types of (non-enduring) powers of attorney.

Who can apply for a review?

An interested person may apply to the Tribunal for a review of an enduring power of attorney. The Powers of Attorney Act identifies the following people as ‘interested persons’ (see s.35 of the Act):

an attorney appointed under an enduring power of attorney
the person who made the enduring power of attorney (the principal)
any person who is the appointed guardian of the principal
any person who is the enduring guardian of the principal
any other person who the Tribunal considers has a proper interest in the proceedings or a genuine concern for the welfare of the principal.

Who are the parties to a review?

The Powers of Attorney Act defines the parties to an application for review of an enduring power of attorney to be:

the applicant;
the person who made the enduring power of attorney;
each attorney appointed under the enduring power of attorney;
any other person that has been joined as a party to the review hearing.

What does an applicant have to do?

A person who applies to the Tribunal to review an enduring power of attorney has specific responsibilities.

They need to complete an Application to Review an Enduring Power of Attorney.
They must tell the principal about the application and why they have made it.
They must provide adequate evidence about the capacity of the principal at the relevant time. (This may be at the time the enduring power of attorney was made, or at the time the application was made.) An applicant may have to pay for medical or professional reports that they obtain from a doctor or professional.
They must make arrangements for the principal to attend the hearing whenever possible.
They must attend the Tribunal hearing and give evidence in support of their application.
They must inform the Tribunal of all the people who may have an interest in the application, even if they disagree with the application.
They must advise the Tribunal if the principal’s circumstances change, especially if there is an urgent need for financial protection of the principal.
They must give a copy of their application and the notice of hearing to the principal. The other parties will be given a copy of the completed application form with the notice of hearing that is sent by the Tribunal.

Reviews of the making of an enduring power of attorney

The Tribunal can review the making of an enduring power of attorney and make either or both of the following orders:

an order declaring that the principal did or did not have mental capacity to make a valid enduring power of attorney (see s.36(3)(a) of the Act);
an order declaring the enduring power of attorney is invalid in whole, or in part (see s.36(3)(b) of the Act).

Reviews of the operation and effect of an enduring power of attorney

The Tribunal can review the operation and effect of an enduring power of attorney and if it is satisfied that it would either:

be in the best interests of the principal, or
better reflect the wishes of the principal,

the Tribunal can make one or more of the following orders (see s.36(4) of the Act). It can make:

an order varying the term of, or a power conferred by, the enduring power of attorney;
an order removing the attorney;
an order appointing a substitute attorney to replace an attorney who has vacated the office or been removed by the Tribunal;
an order reinstating an enduring power of attorney that has lapsed because the attorney is no longer able to perform their duties;
an order directing or requiring certain things such as:
- that an attorney provide accounts and other information to the Tribunal or to a person nominated by the Tribunal
- that an attorney lodge with the Tribunal a copy of all records and accounts kept by the attorney of dealings and transactions made under the enduring power of attorney
- that the records and accounts be audited by an auditor appointed by the Tribunal and that a copy of the report of the auditor be provided to the Tribunal
- that the attorney submit a plan of financial management to the Tribunal for approval
- limiting the disclosure of accounts or other information by the attorney
- an inquiry and report on the conduct of the attorney;
an order revoking all or part of the enduring power of attorney;
any other orders as the Tribunal thinks fit.

Reviews seeking a declaration that the principal lacks or lacked capacity

The Tribunal can review the operation and effect of an enduring power of attorney and make an order declaring that the principal:

lacks capacity for the time being; or
lacked capacity at or during a specified time (see s.36(5)and (6) of the Act).

If the Tribunal makes a declaration that the principal lacks capacity for the time being, the principal is no longer competent to operate their affairs and only their appointed attorney can undertake financial transactions on behalf of the principal.

A declaration that the principal lacks capacity for the time being continues to have effect until the Tribunal makes a further order bringing the declaration to an end.

The Tribunal can change the application to review an enduring power of attorney into an application for a financial management order

The Tribunal may decide to treat the request for review as an application for financial management. It can then make a financial management order:

placing the principal’s affairs under the management of a private financial manager subject to the supervision of the Protective Commissioner, or
committing the management of the principal’s property and affairs to the Protective Commissioner (see s.37 of the Act).

Advice or directions may be given

An attorney under an enduring power of attorney may apply to the Guardianship Tribunal for advice or directions on any matter relating to the scope of the attorney’s appointment or the exercise of any function by the attorney (see s.38 of the Act). Applications for advice or directions must be made in writing to the Tribunal and will be determined at an appropriate hearing.

In its determination, the Tribunal may:

approve or disapprove of any act proposed to be done by the attorney;
give advice or direction as it considers appropriate;
vary the effect of the enduring power of attorney or make any other order it could make in an application under s. 36 of the Powers of Attorney Act.

Can I have a lawyer at the hearing?

The Tribunal will conduct the hearing with as little formality as possible. People do not usually need to be represented by a lawyer. If you are a party and would like to have a legal or other representative attend the hearing, you must get the Tribunal’s approval. Your representative should make this request in writing to the Tribunal as soon as possible – at least five working days before the hearing. The request should include the reasons why you want to be represented. If this is done, the Tribunal will usually make its decision before the hearing date. Otherwise, it will make its decision at the beginning of the hearing. If you want to seek leave to be represented, telephone the Tribunal for more information.

When will I know the outcome?

The Tribunal will usually tell you their decision at the end of the hearing. Later, they will write the order and reasons for their decision. These will be sent out to the parties to the hearing. Not all people who attend the hearing are parties, so not everyone will be given copies of the orders and reasons.

What if I disagree with the decision?

If you are a party to the hearing and you disagree with the decision made by the Guardianship Tribunal, you may be able to appeal to the Supreme Court or the Administrative Decisions Tribunal on a question of law. If you want to appeal the decision, you should seek independent legal advice. You must appeal within 28 days of receiving the order or determination and reasons for decision. The Supreme Court or the Administrative Decisions Tribunal may accept an appeal outside this time in some circumstances.

Referring an application to the Supreme Court

The Tribunal may refer an application made to it for a review of an enduring power of attorney to the Supreme Court (see s.34(1) of the Act).

While the Tribunal is not limited in the matters it may take into account when deciding whether or not to refer an application to the Supreme Court, it can take into account one or more of the following (see s.34(2) of the Act):

whether the application relates to the effect of the enduring power of attorney on third parties;
whether the application is likely to raise for consideration complex or novel legal issues that the Supreme Court is better suited to determine; or
any other matter it considers relevant.

Referring questions of law to the Supreme Court

The Guardianship Tribunal may of its own initiative, or at the request of a party, refer a question of law arising in an application under Part 5 Powers of Attorney Act to the Supreme Court (see s.39(1) of the Act).

The Guardianship Tribunal

The application form to review an enduring power of attorney is available on the website. To obtain a copy of the Application to Review an Enduring Power of Attorney, either print the form or contact the Guardianship Tribunal enquiry staff.

Address: 2a Rowntree Street, Balmain, NSW, 2041
Postal Address: Locked Mailbag 9, Balmain NSW 2041
Phone: (02) 9555 8500
Fax: (02) 9555 9049
Tollfree: 1800 463 928
Email: gt@gt.nsw.gov.au
Website: http://www.gt.nsw.gov.au