AB

[2013] QCAT 16

CITATION: AB [2013] QCAT 16

PARTIES: AB

APPLICATION NUMBER: GAA283-13

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 14 January 2013

DELIVERED AT: Brisbane

ORDERS MADE: The enduring power of attorney dated 11 August 2006 is varied to remove from AW the power to make financial decisions for AB.

CATCHWORDS:

GUARDIANSHIP – where appointment of administrator overtook powers for financial matters from attorney – where appointment of administrator was made until further order – where powers for financial matters redundant under enduring power of attorney

Powers of Attorney Act 1998, ss 109A, 116

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. AB lives in aged care accommodation.  She had appointed her son, AW, to be her attorney for personal, heath and financial matters on 11 August 2006.  His appointment as a decision maker for financial matters has been overtaken by the appointment of The Public Trustee of Queensland as the administrator for AB for all financial matters until further order.

2. At a hearing on 3 October 2012 the tribunal asked the active parties to provide submissions as to whether the enduring power of attorney should be varied by removing the financial powers from the attorney.  Jointly made submissions were received from five of AB’s children in favour of removing financial powers from the attorney.  AW made submissions opposing a variation of the powers granted to him under the enduring power of attorney.

3. The appointment of the administrator until further order has the effect that the attorney cannot exercise decision making powers about financial matters for AB.  The grant of this power to the attorney is currently redundant but as the grant has not been revoked, the powers of the attorney can be revived if the appointment of the administrator is subsequently revoked. 

4. I had considered removing from the attorney the grant for financial matters at the hearing held on 3 October 2012 but I refrained from doing so as none of the parties had been given notice of this possibility until the end of the hearing.  For that reason, I made directions for the filing of submissions so that active parties had an opportunity to inform the tribunal of their views on this issue. 

5. I have taken the submissions into account.  It is clear that there remains a conflict within AB’s family as to the best way forward with decision making for her.  AW wants the tribunal to reconsider its decision but he has not filed an appeal against the orders made on 3 October 2012.  His five siblings support The Public Trustee rather than the attorney as they state that under the process put in place by the administrator, there is now money available to AB to socialise and to enjoy life.

6. I am satisfied from the evidence from members of AB’s family that the current decision making process is responding to the needs of AB and is appropriate.  Unless a further order is made revoking the appointment of the administrator, there is no basis under which the attorney can exercise financial powers for AB again.  There is no need for the grant of financial powers of the attorney to remain in place.

7. I consider that the decision making process for AB should be made as clear as possible. The powers granted to AW as attorney for financial matters are redundant and best removed to avoid any confusion which may otherwise arise about the proper and current route for decision making about AB’s financial matters. QCAT has authority under sections 109A and 116 of the Powers of Attorney Act 1998 to make changes to the powers granted to an attorney.  I am satisfied that this is an appropriate case for the tribunal to exercise that statutory authority.  

8. I order that the enduring power of attorney dated 11 August 2006 is varied to remove from AW the power to make financial decisions for AB.