ADU

Case [2025] QCAT 385

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

ADU [2025] QCAT 385

PARTIES:

In applications about matters concerning ADU

APPLICATION NO/S:

GAA 5734-25
GAA 5736-25
GAA 6717-25
GAA 11284-25

MATTER TYPE:

Guardianship and administration matter for adults

DELIVERED ON:

7 October 2025

HEARING DATE:

4 August 2025

HEARD AT:

Brisbane

DECISION OF:

Member Taylor

ORDERS:

GUARDIANSHIP

1. Pursuant to s 12 of the Guardianship and Administration Act 2000 (Qld), the Public Guardian is appointed as guardian for ADU for the following personal matters:

(a)     With whom ADU has contact and/or visits.

(b)     To give informed consent, or withhold such consent, for the use of “chemical restraint” and/or “environmental restraint” as those terms are defined in section 15E of the Quality-of-Care Principles 2014 (Cth) (QOCP).

2.     The appointment as per Order 1(b) herein is conditional upon:

(a)     Consent being given only for the sole purpose of controlling the behaviour of ADU;

(b)     The power to consent being limited to the aged care residential facility in which ADU currently resides; and

(c)     Consent being given by the Public Guardian only if the Public Guardian is satisfied that there is compliance with, as relevant, sections 15FA, s 15 FB, and/or s 15FC of the QOCP with respect to ADU.

3.     The appointment under Order 1 herein remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years from the date of this Decision.

ADMINISTRATION

4.     The Public Trustee of Queensland is appointed as administrator for ADU for all financial matters.

5.     This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years from the date of this Decision.

6.     The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

7.     Before 15 November 2025, the administrator must:

(a)     Record the appointment as administrator on any property registered in ADU’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision.

(b)     Provide confirmation to the Tribunal that this has been completed by providing:

(i)        A copy of the title search conducted identifying ADU’s property; and

(ii)      A copy of the Titles registry “Lodgement Summary Form” confirming the     notice has been lodged for each property held by ADU.

(c)     If no property is held, provide a copy to the Tribunal of a Record of a Search of the Land Registry, from the Registrar of Titles confirming no property is held.

8.     If the ownership of any property of ADU changes in any way or ADU acquires an interest in another property, the administrator must, within fourteen (14) days of such changes:

(a)     Give a copy of this order to the Registrar of Titles and

(b)     Give a notice to the Registrar about the changes to ADU’s interest in another property.

9.     The Tribunal directs the administrator is to provide accounts to the Tribunal when requested.

ENDURING POWER OF ATTORNEY

10.     The…

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AGLC
ADU [2025] QCAT 385
Case
[2025] QCAT 385
Decision Date

CaseChat Overview and Summary

In the case of ADU, the court was presented with a complex situation involving the guardianship, management, and administration of the property of an individual with impaired capacity. The adult, residing in a secure aged care facility, had previously granted an enduring power of attorney to his defacto wife and nephew. Disputes arose among the family members, including the defacto wife proposing to sell the adult’s house to her niece, the nephew seeking to override the enduring power of attorney, and the adult’s children objecting to their lack of access to their father. Additionally, there were allegations of restrictive practices being used against the adult, consented to by the defacto wife. The court was required to determine whether the existing enduring power of attorney arrangement should be altered and whether either or both of the existing attorneys were suitable for their roles in managing the adult's financial and personal affairs.

The legal issues before the court encompassed the assessment of the adult's capacity to execute the enduring power of attorney, the appropriateness of the defacto wife and nephew as decision-makers for financial and personal matters, and the implications of the restrictive practices used in the care facility. The court considered various forms of evidence, including observations from the adult's family and experts in geriatrics, to assess the adult's capacity at the time of executing the power of attorney. The court also referenced previous case law, such as Scott v Scott, to understand the factors that could indicate a lack of capacity. The court emphasised the importance of a comprehensive, contextual assessment of the adult's capacity, considering the circumstances surrounding the execution of the power of attorney and the broader context of the adult's life.

The court concluded that the existing enduring power of attorney arrangement was inappropriate and should be replaced with new appointments. The Public Guardian was appointed as guardian for personal matters, including contact and consent for restrictive practices, while the Public Trustee of Queensland was appointed as administrator for financial matters. The court set out specific conditions for the use of restrictive practices and imposed obligations on the administrator regarding property registration and financial reporting. The court also noted the existing enduring power of attorney, which was rendered ineffective by the new appointments, and dismissed an application by one of the attorneys for a declaration of its validity.

The court's decision ensures that the adult's interests are protected through the appointment of appropriate guardians and administrators, while also addressing the concerns raised by the family members. The new appointments aim to provide better oversight and management of the adult's affairs, with clear guidelines and review processes in place to ensure the adult's best interests are upheld.

Orders

Orders of the court

GUARDIANSHIP

1. Pursuant to s 12 of the Guardianship and Administration Act 2000 (Qld), the Public Guardian is appointed as guardian for ADU for the following personal matters:

(a) With whom ADU has contact and/or visits.

(b) To give informed consent, or withhold such consent, for the use of “chemical restraint” and/or “environmental restraint” as those terms are defined in section 15E of the Quality-of-Care Principles 2014 (Cth) (QOCP).

2. The appointment as per Order 1(b) herein is conditional upon:

(a) Consent being given only for the sole purpose of controlling the behaviour of ADU;

(b) The power to consent being limited to the aged care residential facility in which ADU currently resides; and

(c) Consent being given by the Public Guardian only if the Public Guardian is satisfied that there is compliance with, as relevant, sections 15FA, s 15 FB, and/or s 15FC of the QOCP with respect to ADU.

3. The appointment under Order 1 herein remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years from the date of this Decision.

ADMINISTRATION

4. The Public Trustee of Queensland is appointed as administrator for ADU for all financial matters.

5. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in two (2) years from the date of this Decision.

6. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

7. Before 15 November 2025, the administrator must:

(a) Record the appointment as administrator on any property registered in ADU’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision.

(b) Provide confirmation to the Tribunal that this has been completed by providing:

(i) A copy of the title search conducted identifying ADU’s property; and

(ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by ADU.

(c) If no property is held, provide a copy to the Tribunal of a Record of a Search of the Land Registry, from the Registrar of Titles confirming no property is held.

8. If the ownership of any property of ADU changes in any way or ADU acquires an interest in another property, the administrator must, within fourteen (14) days of such changes:

(a) Give a copy of this order to the Registrar of Titles and

(b) Give a notice to the Registrar about the changes to ADU’s interest in another property.

9. The Tribunal directs the administrator is to provide accounts to the Tribunal when requested.

ENDURING POWER OF ATTORNEY

10. The Tribunal notes the existence of the following Enduring Power of Attorney for ADU:

(a) The Enduring Power of Attorney dated 16 July 2013 appointing ATA and ATB as attorneys for financial, personal and health matters (the EPOA).

such which is overtaken by the making of these appointments, and in accordance with s22(2) of the Guardianship and Administration Act 2000 (Qld), cannot be acted upon to the extent these appointments have been made.

11. The application by ATA for a declaration that the EPOA is valid, and other orders, is otherwise dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Later in his reasons in Lambourne, his Honour made this observation as is relevant to the issue under discussion here:[33][33]Ibid;[116] to [120]. Footnotes omitted.The type of evidence which assists in deciding whether the assumption of capacity has been rebutted [116] The applicants gave evidence of their observations of Harvey at various times which, they argue, is relevant to the execution of the revocations and the later EPOAs. Evidence was also received from persons who knew Harvey as well as from experts in the field of geriatrics.[117] The means by which a person’s capacity may be assessed has been considered in cases in which a party bears the burden of proving capacity. In this case, the burden is reversed but the consideration of what may be relevant and helpful in discharging that burden will, inevitably, involve consideration of similar types of evidence. [118] Assistance can be found in the analysis of Lindsay J in Scott v Scott. In that case, his Honour dealt with the Powers of Attorney Act 2003 (NSW). It did not provide for the same presumption of capacity as the Act does and, so, in resolving the issues, Lindsay J referred to the tests for assessing capacity. His remarks help to identify the types of evidence which can be relevant to a consideration of whether a lack of capacity has been established: “[199] … There is no rule of general application relating to all powers of attorney without regard to particular facts. Attention must be focused on all the circumstances of the case, including the identities of the donor and donee of a disputed power of attorney; their relationship; the terms of the instrument; the nature of the business that might be conducted pursuant to the power; the extent to which the donor might be affected in his or her person or property by an exercise of the power; the circumstances in which the instrument came to be prepared for execution, including any particular purpose for which it may ostensibly have been prepared; and the circumstances in which it was executed. [200] An exploration of all the circumstances of the case will, not uncommonly, call for consideration of events leading up to, and beyond, the time of execution of the disputed power of attorney, as well as on the focal point of the time of execution itself. A longitudinal assessment of mental capacity, along a time line extending either side of the focal point, may be necessary, or at least permissible, in order to examine the subject’s mental capacity in context. Medicos and lawyers, alike, tend to embrace that approach. It is difficult to do otherwise. Context has a temporal as well as spacial [sic] and relational dimensions.” [119] I also bear in mind the caveat expressed by Lindsay J about the elevation of statements in analogous cases: “[206] … care needs to be taken not to elevate helpful passages in potentially analogous cases into rules of general application, whether characterised as an applicable “standard” or rules of law or merely practice. At the end of the day, a qualitative judgment needs to be made in each case on the facts of the particular case. Process and form are not unimportant. In some cases, they may point the way to a substantive outcome of a dispute. However, they are not ends in themselves. The focus of the court must be on the substance of the inquiry whether the particular subject had, in fact, the requisite capacity — understanding — to effect a particular transaction.” [120] That statement has similar force in a case such as this where the inquiry is whether the applicants have rebutted the presumption of capacity.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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