BA - [2012] QCAT 228 | CaseChat AU

CITATION:

BA [2012] QCAT 228

PARTIES:

APPLICATION NUMBER:

GAA10332-11 / GAA10333-11 / GAA10334-11 / GAA10335-11 / GAA3302-12 / GAA3303-12 / GAA3309-12 / GAA4583-12

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

21 May 2012

HEARD AT:

Ipswich

DECISION OF:

Les Clarkson, Presiding Member
Elizabeth Stone, Member

DELIVERED ON:

5 June 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for a declaration about the capacity of BIC to enter into a loan transaction in February 2009 is dismissed.

2. The following Enduring Power of Attorney for BIC is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000:

(a) The Enduring Power of Attorney dated 4 November 2010 appointing BCJ as attorney for financial, personal and health matters.

3. Pursuant to s 82(1) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000 the Tribunal gives leave to BCJ and BME to resign as attorneys for BIC for financial matters under the Enduring Power of Attorney dated 27 June 2007.

4. The following Enduring Power of Attorney for BIC is revoked pursuant to s 116(d) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000:

(a) The Enduring Power of Attorney dated 27 June 2007 appointing BCJ, BMB and BME as attorneys for financial, personal and health matters.

5. BCJ, BME and MMJ are appointed jointly and severally as guardians for BIC for the following personal matter:

(a) Health care.

6. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years.

7. The Public Trustee of Queensland is appointed as administrator for BIC for all financial matters.

8. The administrator is to provide a financial management plan to the Tribunal within four (4) months.

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

10. This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal.

CATCHWORDS:

Attorneys – resignation – conflict transactions – presumption of undue influence – need for guardian and administrator – appropriateness for appointment

Powers of Attorney Act 1998, ss 66, 73, 87
Guardianship and Administration Act 2000, ss 12, 15

APPEARANCES and REPRESENTATION (if any):

BJ, BE, WR, ME, MJ – Applicants
BM, WE, WA, BS, BP – family members
PM – Office of the Adult Guardian
RK – Public Trust Office

REASONS FOR DECISION

BA (the adult) is an elderly woman who resides in an aged care facility in south-east Queensland.
She appointed three of her family members, BJ, BE, and BB, to act severally as her attorneys for financial and personal/health matters by way of an enduring document executed in 2007.
Family members allege that BB presently resides in an aged care facility, and has an illness which prevents her from carrying out any attorneyship duties.
A further…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BA [2012] QCAT 228
Case: [2012] QCAT 228
Decision Date: 5 June 2012

CaseChat Overview and Summary

The case before the court involved BIC, a person whose capacity to manage their affairs was in question, along with various individuals who held or had held powers of attorney for BIC. The court was asked to make decisions regarding the validity of certain powers of attorney, the resignation of attorneys, and the appointment of a guardian and an administrator for BIC. The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT), which has jurisdiction over guardianship and administration matters in Queensland. The central issue before QCAT was whether certain powers of attorney were validly executed by BIC and if they should be rescinded or if BIC required a guardian and an administrator for their personal and financial matters. The court also needed to determine if certain individuals should be appointed as BIC's guardian and administrator.

QCAT held that the Enduring Power of Attorney dated 4 November 2010, appointing BCJ as attorney for financial, personal, and health matters, was invalid. The court found that there was a presumption of undue influence, which was not rebutted. The Enduring Power of Attorney dated 27 June 2007, which appointed BCJ, BMB, and BME as attorneys for financial, personal, and health matters, was also found to be invalid under certain sections of the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000. The court accepted that BCJ and BME should be allowed to resign as attorneys for BIC under the Enduring Power of Attorney dated 27 June 2007. Given these findings, QCAT appointed BCJ, BME, and MMJ as joint guardians for BIC's personal matters, specifically health care. The Public Trustee of Queensland was appointed as administrator for BIC's financial matters. This decision was made to ensure that BIC's financial affairs were managed appropriately, given the invalidity of the previous powers of attorney.

The final orders of the court were comprehensive and aimed at ensuring the protection and proper management of BIC's affairs. The application for a declaration about BIC's capacity to enter into a loan transaction in February 2009 was dismissed. The Enduring Power of Attorney dated 4 November 2010 was declared invalid, and the Enduring Power of Attorney dated 27 June 2007 was revoked. BCJ and BME were granted leave to resign as attorneys under the 27 June 2007 power of attorney. BCJ, BME, and MMJ were appointed as guardians for BIC's health care, while the Public Trustee of Queensland was appointed as administrator for BIC's financial matters. This appointment of the Public Trustee was made to ensure that BIC's financial affairs were managed transparently and in BIC's best interests, with the Public Trustee required to provide a financial management plan and accounts to QCAT as requested.

Orders

Orders of the court

1. The application for a declaration about the capacity of BIC to enter into a loan transaction in February 2009 is dismissed.

2. The following Enduring Power of Attorney for BIC is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000:

(a) The Enduring Power of Attorney dated 4 November 2010 appointing BCJ as attorney for financial, personal and health matters.

3. Pursuant to s 82(1) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000 the Tribunal gives leave to BCJ and BME to resign as attorneys for BIC for financial matters under the Enduring Power of Attorney dated 27 June 2007.

4. The following Enduring Power of Attorney for BIC is revoked pursuant to s 116(d) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000:

(a) The Enduring Power of Attorney dated 27 June 2007 appointing BCJ, BMB and BME as attorneys for financial, personal and health matters.

5. BCJ, BME and MMJ are appointed jointly and severally as guardians for BIC for the following personal matter:

(a) Health care.

6. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years.

7. The Public Trustee of Queensland is appointed as administrator for BIC for all financial matters.

8. The administrator is to provide a financial management plan to the Tribunal within four (4) months.

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

10. This appointment of The Public Trustee of Queensland remains current until further order of the Tribunal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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