AB
[2010] QCAT 223
•31 May 2010
| CITATION: | AB [2010] QCAT 223 |
| PARTIES: | AB |
| APPLICATION NUMBER: | GAA3751-10 GAA3752-10 GAA3753-10 GAA3754-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 28 May 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott senior member K O’Callaghan senior member |
| DELIVERED ON: | 31 May 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application for stay dismissed. (a) reasons for the withdrawal of those funds; (b) the recipient of the withdrawn funds; (c) when the funds were transferred to another account, the number of that account, the name of the account holder and the name of the financial institution in which the account is held; (d) when assets had been acquired with the withdrawn funds, details of the acquired assets and to exhibit to the affidavit copies of any transaction documents and title documents for those acquired assets. The attorney is directed to provide to the Tribunal by 14 July 2010 a full accounting of her actions as attorney in relation to all property and income of AB for the period 28 April 2009 to 28 May 2010. |
| CATCHWORDS : | Stay application – authority of attorney suspended under section 195(1) of Guardianship and Administration Act 2000 – whether power to grant stay inherent in section 195(5) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | CD represented by S Fajardo of Counsel instructed by Campbells Legal Services, Solicitors |
| OTHER ACTIVE PARTIES: | Adult Guardian represented by M Green of Counsel instructed by D Younger, Legal Officer, Office of the Adult Guardian The Public Trustee of Queensland represented by M Crofton, Official Solicitor EF – son of the adult |
REASONS FOR DECISION
AB (the adult) is 65 years old. On 21 July 2009 AB was admitted to hospital for investigation of his unusual behaviour and confusion. While an inpatient in hospital, AB signed a contract for the sale of real property owned by him for $xxx.
AB was discharged from hospital on 8 August 2009. He was re-admitted to hospital on 13 October 2009. On 28 October 2009 the transfer document required to effect the transfer of the real property was signed on behalf of AB by Ms CD. CD is the attorney for financial and personal/health maters for AB under an enduring power of attorney granted on 28 April 2009
AB was discharged from hospital on 4 November 2009 to a care facility where he currently remains as a resident. The sale of the real property was settled on or about 30 October 2009.
A few days before entering into the contract of sale, AB opened a joint bank account with Ms CD on or about 28 July 2009 while he was an inpatient in hospital.
The Adult Guardian investigated the actions of the attorney following the deposit of the proceeds of sale of AB’s real property into the account held in the joint names of AB and the attorney at a time when the attorney had commenced to act under the enduring power of attorney. On 30 April 2010 the Adult Guardian suspended CD’s authority to act as financial attorney for AB under section 195(1) of the Guardianship and Administration Act 2000. On 13 May 2010 the Adult Guardian lodged an application in the Tribunal seeking the appointment of an administrator for AB.
On 21 May 2010 CD lodged an application in the Tribunal seeking a stay of the exercise of power by the Adult Guardian to suspend the attorney’s authority under the enduring power of attorney. The Adult Guardian opposes the granting of a stay.
Issues to be determined -stay
The Guardianship and Administration Act 2000 provides the Tribunal with express power to grant a stay only in section 128 in the following terms: If a person applies to the tribunal in relation to a decision for an adult about a matter, the person may also apply to the tribunal for a stay of the decision.
CD has not applied to the Tribunal in relation to a decision for the adult about a matter in terms of section 128. CD has applied for a stay of the operation of the statutory power held by the Adult Guardian under section 195 of the Guardianship and Administration Act 2000 to suspend the power of an attorney if the adult guardian suspects, on reasonable grounds, that the attorney is not competent. Section 128 does not provide the basis to grant the stay sought in this case.
Through her counsel, CD argued that the Tribunal had power to grant a stay of the operation of the statutory power exercised by the Adult Guardian by applying sections 195(5) and 81(1)(d) of the Guardianship and Administration Act 2000. By virtue of section 195(5), an attorney whose powers have been suspended by the Adult Guardian can apply to the Tribunal and the Tribunal may make an order it considers appropriate.
10. It was argued by CD that section 81(1)(d) provides the Tribunal with power to make orders in relation to attorneys and that it included the ability to grant a stay to restore the authority of the attorney to act under the enduring power of attorney. No case authority was provided to the Tribunal to support this interpretation of the functions given to the Tribunal by section 81.
11. If such an interpretation were correct, and a power to grant stays had already inferentially been conferred by section 81(1)(d), it would not have been necessary for the legislature to expressly provide for a power in section 128 for the Tribunal to stay decisions made for an adult by a substitute decision maker. The Tribunal does not accept the submission made by CD that section 81(1)(d) implicitly provides power to stay a decision. The Tribunal concludes that the exercise of a power to stay a decision about an adult is restricted to the circumstances set out in section 128 and is accordingly not available as part of the orders that the Tribunal may make under section 195(5).
12. The Adult Guardian through counsel submitted that there may be power in section 195(5) for the Tribunal in an appropriate case to overturn the suspension of the attorney’s authority but there is no power for the Tribunal to grant a stay outside the provisions of section 128. In the absence of express provision in section 195(5) for the granting of a stay, the Adult Guardian argued that the Tribunal could only grant a stay if there was some other source of legislative power permitting a stay order.
13. During the course of the hearing held on 28 May 2010, it was submitted by CD that the Tribunal may have power to grant a stay under section 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 which provides that the Tribunal can make an order staying the operation of a reviewable decision if a proceeding for a review of that decision has been started. As CD had not commenced a proceeding seeking a review of any relevant decision made by the Adult Guardian, the provisions of section 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 can not assist CD as providing the basis for her stay application.
14. The Tribunal had invited CD, through her counsel, to consider making an oral application at the hearing for some form of relief in addition to her application for a stay, but this invitation was rejected. It was categorically stated that the only substantive relief being sought by CD was a stay. For the reasons already set out, the Tribunal concludes that there is no basis for the Tribunal in this case to grant a stay of the operation of the suspension of the attorney’s powers made in accordance with section 195 of the Guardianship and Administration Act 2000. The application for a stay is dismissed.
Directions
15. The Tribunal had initiated an application for directions to facilitate the obtaining of information for the hearing of the application for the appointment of an administrator for AB. Although a report had been prepared by the Adult Guardian at the time of the exercise of the suspension powers under section 195, the attorney had not provided to the Adult Guardian an explanation of dealings on the bank account held in the joint names of the attorney and AB.
16. Some of the transactions recorded on the joint account were:
a) deposit of $xxx on 28 July 2009;
b) deposit of $xxx on 4 August 2009;
c) withdrawal of $xxx on 4 August 2009;
d) internet transfer of $xxx to CD on 17 August 2009;
e) internet transfer of $xxx to CD on 17 August 2009;
f) deposit of $xxx on 18 September 2009;
g) internet transfer of $xxx for stamp duty on 24 September 2009;
h) internet transfer of $xxx to CD on 28 October 2009;
i) deposit of $xxx on 2 November 2009;
j) withdrawal of $xxx on 3 November 2009;
k) internet transfer of $xxx for loan agreement on 4 November 2009;
l) withdrawal of $xxx on 9 November 2009;
m) withdrawal of $xxx on 24 December 2009;
n) withdrawal of $xxx on 8 January 2010;
o) withdrawal of $xxx on 27 January 2010;
p) internet transfer of $xxx on 30 March 2010;
q) internet transfer of $xxx on 10 May 2010.
17. The Public Trustee of Queensland submitted that funds in excess of $xxx arising from the proceeds of sale of the solely owned real property of AB had been removed from the bank account, including $xxx after the suspension of the authority of the attorney. It was submitted that the attorney had not provided any evidence as to the current placement of those funds.
18. The Public Trustee submitted that the attorney should not deal any further with the withdrawn funds and in the absence of an undertaking in these terms from the attorney, the Tribunal should make an order preventing the attorney from unrestricted dealing with the funds before the hearing of the application for the appointment of an administrator.
19. The attorney declined to provide an undertaking to the Tribunal on the grounds that it was unreasonable to do so as she was a co-owner of the funds once they had been placed into the joint account. No evidence had been provided to substantiate that contention which was inconsistent with a submission made on behalf of CD by her counsel earlier in the hearing that the proceeds of sale had been placed into the joint account in order to prevent AB’s estranged family from accessing those funds. The Public Trustee contended that the earlier submission gave rise to an inference that the funds were in fact being held on trust by the attorney for AB in the joint account and were not her property beneficially.
20. Although this issue of ownership of the funds was not required to be decided at the hearing on 28 May 2010, the Tribunal considered that an explanation was required to be given by the attorney of withdrawals from the joint bank account before the next hearing and steps implemented to prevent dissipation of the funds formerly held in the joint account.
21. In view of the attorney’s refusal to provide an undertaking to the Tribunal not to deal further with the funds withdrawn for the joint account until the next hearing, the Tribunal was convinced that directions were necessary to be made to protect AB’s interests against dissipation of the funds from the sale of his property. The Tribunal directed that CD must notify The Public Trustee within 48 hours before she intends to deal with any of the funds already withdrawn from the joint bank account.
22. Further directions were made including a requirement that CD provide within 7 days sworn information about withdrawals from the joint account in excess of $xxx and provide records and accounts of all dealings and transactions made under the enduring power of attorney as required by section 85 of the Powers of Attorney Act 1998. The Tribunal was aware that these directions would be inconvenient to the attorney given her impending wedding within that 7 day period but the Tribunal considered that the interests of AB required immediate protection and must come before the convenience of the attorney.
23. An application by CD for a non publication order was dismissed and oral reasons announced during the hearing. A determination on an application for a closure order was deferred until the end of the hearing. As CD had indicated to the Tribunal that she was not seeking to remove from the hearing any of the persons present on 28 May 2010, it would appear that she was no longer seeking to close the hearing. In that case, there was no apparent basis for the application and accordingly that application is dismissed.
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