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Disputed Guardianship and Wills

Guardianship is the appointment of a person (a ‘guardian’) to make decisions for an adult with diminished capacity to make decisions for themselves.

Disputed Guardianship and Wills Articles

Why choosing the right person to act for you under your Power of Attorney is crucial

8-August-2019By Jamal Bakalian

Appointing an Attorney under a Power of Attorney or Enduring Power of Attorney, may be among one of the most important decisions of your life. It is important to remember that the person you choose has to agree to take on the role of your Attorney. A Power of Attorney is also commonly referred to as a POA, and an Enduring Power of Attorney is often referred to as an EPOA. At Streeterlaw, we can provide you with the following helpful tips on how to carefully choose the right person for this incredibly important job. Now, take this...

Guardianship Division – 11 Points to Prepare You

16-July-2019By Mark Streeter

The Guardianship Division of NSW Civil and Administrative Tribunal (NCAT) serves an important role. These 11 points will help prepare you. There are things you need to DO and other things you should NOT do. 1.  Read the hearing notice The Tribunal sits most often at 2a Rowntree Street, Balmain.  However, the Guardianship Tribunal may also travel and hold temporary sitting rooms in hotels or conference rooms around New South Wales depending on the needs and location of the person who is the subject of the Application. 2.  Do not forget...

What is the Guardianship Division of NSW Civil and Administrative Tribunal (NCAT)?

By Mark Streeter

The Guardianship Division of NSW Civil and Administrative Tribunal (NCAT) is a specialised dispute resolution forum with jurisdiction narrowly defined by legislation. While its jurisdiction may be limited, the orders it makes can be far reaching and have significant impact. The Guardianship Division exercises concurrent jurisdiction with the protective division of the Supreme Court in respect of applications concerning: Review, operation and effect of Powers of Attorney (under Power of Attorneys Act 2003). Applications for...

Why you need to explain exactly how and why you received a gift under a Power of Attorney

9-July-2019By Jamal Bakalian

Domenico Taverniti was a man who cared deeply for his family. He had some strong views about marriage and culture also, and so, for a while he was estranged from his son Enzo, because Enzo had married an Australian girl called Leonie. For this reason, Enzo was considered to be the black sheep of the family. However, the drama continued when, in January 2003, Enzo separated from his Australian wife, Leonie as he had left her to be with another woman. Domenico was beside himself and told Enzo that if he did not return to his wife, he would...

Obligations to a spouse can overturn a property transaction

17-February-2016By Simone Green

The issue of estate planning and Family Law are closely connected and it is imperative that people receive advice regarding their rights and obligations to their spouses before writing out their will (entering into succession planning arrangements). There is a risk that certain transactions may be overturned in court if it can be proved they were designed to defeat an existing or anticipated order in Family Law proceedings. Case Study: Tabussi (As Executor of the Estate of the late Mr Tabussi Senior (Deceased) & Ors [2015] FCWA 108 (8...

Advance directive is a critical document in a healthcare emergency

10-February-2016By Mark Streeter

If and when the time comes that you are unable to communicate or manage your own affairs, there are many decisions to be made by those who care for you. To make things easier for them and to ensure your wishes are known, you can put in place ahead of time a legal instrument, which sets out how you want your financial affairs, daily needs and health care decisions managed. There are several choices of legal instrument available, each with a different purpose. These include an Enduring Power of Attorney, the appointment of an Enduring...

Financial managers of protected estates can still obtain remuneration and costs

9-July-2015By Mark Streeter

The Supreme Court of NSW delivered a significant decision in April 2015 regarding the ability of financial managers of protected estates to obtain remuneration out of the estate, in addition to the costs involved in applying for the remuneration. The case (Application of Martin Fowler [2015] NSWSC 466) appears to be the first to follow the decision in Ability One Financial Management Pty Ltd v. JB by his tutor [2014] NSWSC 245 and the subsequent guidelines of the NSW Trustee and Guardian that require private managers to apply to the...

Getting prepared for your loss of independence!

22-February-2015By Mark Streeter

I’d like to share some information and insights I have garnered from a book I recently read called Being Mortal – Illness, medicine and what matters in the end. Written by American surgeon and public health researcher Professor Atul Gawande, it provides an overview of what it is like to age in today’s western society. It really is a “must-read” self-help book as most of us will face the challenges and questions dealt with by the professor. I loved Professor Gawande’s previous book A Checklist Manifesto, which is the story of his...

How to ensure you retain a quality of life when your health declines

19-February-2015By Mark Streeter

BOOK REVIEW The book, Being Mortal – illness, medicine and what matters in the end,  has some insightful answers to planning for the best possible outcome when your health declines. Written by Professor Atul Gawande, an American surgeon, author and public health researcher based at Harvard University, this excellent book is an overview of the modern experience of mortality and what it is like to age in today’s society. Historically, Professor Gawande observes that a person’s journey from health to death is very short but nowadays,...

How do you remove an incompetent Executor?

15-December-2014By Mark Streeter

Beneficiaries of wills and estates, where probate already has been ordered, are sometimes faced with a conundrum of how to deal with an Executor who is not doing the job properly. In such circumstances it may be possible for the beneficiaries (as plaintiffs) to legally seek the removal of the Executor (as defendant) by motion/summons if the circumstances warrant it. Any application to the Court to remove an executor will need to consider the “welfare of the beneficiaries and of the estate”. The Court appears to have a large amount of...

How to ensure your will is valid

6-December-2014By Mark Streeter

Homemade documents, such as do-it-yourself will kits or handwritten notes, are often inadequate in clearly stipulating what you wish to happen to your assets after you die. A properly laid out and executed will can avoid unintended consequences, including legal delays, disputes and costs. To ensure that your will is legally valid, it’s important that the following factors are included: it is in writing; it is signed by the person making the will (‘the Testator’); the signature is made by the Testator in the presence of at...

Powers of Attorney Act changes

25-October-2013By Mark Streeter

In the unfortunate event that you lose the ability to manage your own financial affairs, it is common for a trusted relative, friend or solicitor to take over the management of your affairs. But it is important that you elect a Power of Attorney while you still have the mental capacity to understand what you are signing. Following a review of the Powers of Attorney Act in September 2013, two new forms have been created to replace the single form that was previously used to create both General and Enduring Powers of Attorney. So we thought...

Guardian can be removed by Courts

24-October-2013By Mark Streeter

    In a very interesting case before the Supreme Court of NSW on 13 September 2013, His Honour Justice White considered an application to “suspend” the decision-making powers of a Guardian appointed under a Deed of Enduring Guardianship. The case concerned an application for an injunction made initially without the presence of the other party by the estranged husband of the subject person. Both the husband (plaintiff) and the wife were quite elderly. The husband sought to prevent (injunct) the guardian (a friend of the wife)...

How to finalise a digital death

10-September-2013By Mark Streeter

While preparing a will is seen as essential for anyone who owns property or possessions and has dependents, details and security of a person’s online accounts and profiles is often overlooked. Although the Internet is a relatively recent phenomenon, it is already an integral part of the lives of a large percentage of Australians. Most people have an email account and there are an increasing number of Australians with social media accounts and online identities. This presence can take the form of:  Email accounts Online banking ...

Financial managers need remuneration approved by NSW Trustee

10-January-2013By Mark Streeter

    A recent case in the NSW Supreme Court has helped define who can undertake the role of financial manager of a person’s assets when a person is incapacitated. It also helped define what constitutes a conflict of interest in the circumstances and what type of remuneration is deemed acceptable in the court’s eyes. The case involved a young child – EKR – who was in a serious road accident on 27 March 1999. She sued for compensation and damages for injuries that she suffered and was awarded a sum in excess of $2 million. The...

What is the role of a case guardian in the Family Court?

9-January-2013By Mark Streeter

Do you have a friend or relative that suffers from a physical or mental disability and currently has a matter in the Family Court? Are they having difficulty understanding and communicating? If so, then they may lack the capacity to manage their own affairs and may need a case guardian to assist them in the Family Court. The general legal test for capacity is described by Justice Powell in PY v RJS & Others [1982] NSWLR 700 as follows: “A person is not shown to be incapable of managing his or her own affairs unless, at the least,...

New Super Tribunal to “swallow” Guardianship Tribunal

31-October-2012By Mark Streeter

A proposed new Super Tribunal will take over the role of the current Guardianship Tribunal, along with 23 other NSW tribunals in 14 months time. From January 1, 2014, the Guardianship Tribunal, the Consumer Trader & Tenancy Tribunal and the Administrative Decisions Tribunal will all become part of a new “Super Tribunal” called the NSW Civil & Administrative Tribunal (NCAT). It is expected that the current members of these tribunals will be “carried over” into the new jurisdiction. The NSW Government is aiming...

When does an individual lose capacity to grant a Power Of Attorney?

25-August-2011By Mark Streeter

A Power of Attorney is a legal document enabling someone to act on another person’s behalf. It can be very useful but it is essential that the person who grants this ‘power’ have the ‘capacity’ to do so. In July 2010, a case in the Supreme Court of NSW highlighted that a Power of Attorney can be considered void - even if they have been used over several years. The case of Szozda v Szozda [2010] NSWSC 804 was decided by Justice Barrett. It has widely been reported as a significant “clarification” to the test of whether or not...

Widow fights for multi million dollar estate

2-December-2010By Mark Streeter

After 30 years of marriage what would you expect from your husband's estate? When your husband has a $15 million estate probably quite a bit. In this fascinating case a widow turned to the courts for help in receiving a greater share of the estate. The case was reported in the Sydney Morning Herald on Monday 29 November 2010. This followed a decision of Associate Justice Macready on 25 November 2010 in determining a Family Provisions claim by the Wife against her late Husband's Estate. (Hoolahan v Scali [2010] NSWSC 1349) It is helpful to...

Deed of Enduring Guardianship put to test

29-November-2010By Mark Streeter

Does a Deed of Enduring Guardianship allow a hospital to stop medical treatment even if it is keeping a patient alive? The case of Hunter and New England Area Health Service v A [2009] NSWSC 761 in 2009  raised this very important question. A Deed of Enduring Guardianship is often seen as a Living Will. It is similar in many ways to the more common Enduring Power of Attorney. A Deed of Enduring Guardianship, Living Will and Enduring Power of Attorney are legal documents with the intention of making clear your intentions in situations where...

Protecting the elderly from financial exploitation

By Mark Streeter

Grandmother's bank accounts being raided “I am concerned my grandmother is being taken advantage of!  My cousin has moved into her house and is accessing her bank accounts what can I do?”   Comment from Mark Streeter - Sydney Family Law Lawyer The elderly are one section of our society that have a particular vulnerability to financial exploitation.  An elderly person can put into place legal documents such as an Enduring Power of Attorney and a Deed of Enduring Guardianship that will provide for the formal appointment of trusted...

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