Be v Office of the Adult Guardian & Public Trustee of Queensland

[2010] QCATA 24

CITATION: BE v Office of the Adult Guardian & Public Trustee of Queensland [2010] QCATA 24

PARTIES:	BE Applicant/appellant
v
Office of the Adult Guardian; and, Public Trustee of Queensland Respondents

APPLICATION NUMBER:            APL028-10               

MATTER TYPE:

HEARING DATE:   3 June 2010

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President
Susan Gardiner, Member

DELIVERED ON:   17 June 2010

DELIVERED AT:   Brisbane

ORDERS MADE:       Appeal and Application for leave to appeal   dismissed

CATCHWORDS :  GUARDIANSHIP AND ADMINISTRATION – APPOINTMENT OF ADULT GUARDIAN  AND PUBLIC TRUSTEE OF QUEENSLAND – REVOCATION OF ENDURING POWER OF ATTORNEY – LEAVE TO APPEAL – where applicant applied to reinstate Enduring Power of Attorney – where breakdown in the relationship between a donor and donee and failure to undertake the requirements of the role by an attorney – whether circumstances disclose  an  error of law or fact

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	BE – Appellant in person (by telephone)
RESPONDENT:	Ms Nikhia Griffin, Senior Guardian representing Office of the Adult Guardian (by telephone) Mr Nelson Marks representing The Public Trustee of Queensland (by telephone)

REASONS FOR DECISION

[1]      ML is currently diagnosed with chronic schizophrenia. She lives with her sister BE in their jointly owned home. In 1997, ML appointed BE as her attorney for financial matters. In 2004, BE was also appointed as her attorney for personal and health matters.  

[2]      At a hearing on 17 February 2010 QCAT made orders revoking both enduring powers; and, in BE’s stead, appointed the Adult Guardian as guardian for ML for decisions about accommodation, health care and the provision of services, and The Public Trustee of Queensland as administrator for ML for all financial matters.   

[3]      Reasons for these decisions were given to the parties orally at the conclusion of the hearing. BE filed an application appealing the decisions (or seeking leave to appeal) on 9 March 2010.

[4]      BE is required, under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), to show that she may bring an appeal as a matter of right on question of law, or that she should have leave to appeal on a question of fact, or a mixed question of law and fact[1].

[1]Ss 142(3), 143 (2) (b) of the Queensland Civil and Administrative Tribunal Act 2009

[5]      The distinction between questions of law and fact is not always clear, and courts have not found it easy to formulate a satisfactory test of universal application[2]. A concise and helpful summary appears, in our view, in this passage from a decision of the Supreme Court of Canada[3]:

Briefly stated, questions of law are questions about what the correct legal test      is; questions of fact are questions about what actually took place between the         parties; and questions of mixed law and fact are questions about whether the          facts satisfy the legal tests[4].

[2]See Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389 at 394

[3]Canada (Director of Investigation and Research) v. Southam Inc [1997] 1 S.C.R. 748

[4]Ibid., at [35] per Iacobucci J.

[6]      Unsurprisingly, BE made little effort to identify questions of law or fact as the grounds for her application. The members of this QCAT Appeal Tribunal have sought to find whether or not grounds of those kinds might be available to be argued on her behalf. That enquiry accords, in our view, with the philosophy and intent of the QCAT Act[5].

[5]See, eg, s 29

[7]      The original application to QCAT was brought by BE and ML’s father. BE’s material before the original QCAT tribunal, and in this appeal, gives a wide ranging account of her life and, in particular, her relationship with her father. It is clear that there are deep and longstanding divisions between them and that BE is very resentful of the allegations he made concerning her care of ML. 

[8]      The reasons delivered by the original Tribunal disclose that this conflict and the deep divisions within the family influenced the decision to appoint external, independent guardians and administrators for ML. The existence of long and deep conflict was not in issue and, indeed, BE’s own evidence plainly established it.

[9]      On any view, the evidence before the original Tribunal entitled – indeed, compelled it – to the conclusion that this conflict was inimical to the best interests of ML, and that her care and assistance should pass to agencies outside the family. There could be no arguable challenge to these findings, or to the manner in which the original Tribunal applied the General Principles[6] as required by s11 of the Guardianship and Administration Act 2000 (GAA)[7].    

[6]As set out in Schedule 1 to the Guardianship and Administration Act 2000

[7]s.11 states: A person or other entity who performs a function or exercises a power under this Act for a matter in relation to an adult with impaired capacity for the matter must apply the principles stated in schedule 1 (the general principles and, for a health matter or a special health matter, the health care principle).

[10]      There is simply no suggestion, either in the transcript of the proceedings or the Tribunal’s Reasons, of any erroneous findings in respect of the evidence, or the plain weight of it, or in the application of the principles to be applied under the GAA.

[11]      BE also seeks the reinstatement of the Enduring Powers of Attorney (EPAs) revoked by the original Tribunal under s 82 (2) of the GAA and s 116 (d) of the Powers of Attorney Act 1998.

[12]      BE’s reasons for seeking to appeal this decision are unclear.  In her supporting documents she complains that the original material from parties to that hearing wrongly alleged that she withheld funds from ML, used ML’s finances for her own benefit particularly in respect of their jointly own property, and that BE did not originally contribute to the property’s purchase.

[13]      The question whether an attorney should continue in that role under an existing EPA must be considered by QCAT when it is dealing with an application for the appointment of a guardian or an administrator.  This is because, when the Tribunal is considering the need for an appointment of a guardian or administrator (under s 12 of the GAA) if there is an appropriate, validly appointed attorney under an enduring power there is generally no need for the appointment of a guardian or an administrator.  

[14]      In the oral reasons given by the original Tribunal on 17 February 2010, the Tribunal dealt with the appropriateness of BE as attorney for her sister after it had appointed the guardian and the administrator.  Although the matter was not directly addressed in the Tribunal’s reasons it is plain that, in appointing the Adult Guardian and the Public Trustee, the Tribunal was acting on its conclusion that it was inappropriate for BE to continue acting as ML’s attorney.

[15]      Again the original Tribunal gave, as its reason for these external appointments, the longstanding conflict within the family requiring the appointment of an independent party in both roles and the need to investigate ML’s financial affairs, including the home ownership – something clearly not possible if BE remained in the role of financial attorney. 

[16] In its reasons the Tribunal noted that BE had not kept comprehensive financial records (as required by s 85 of the Powers of Attorney Act 1998). The applicant concedes in her submissions to this Appeal Tribunal when addressing finances that ‘the Appeatant (sic) admits it may not have been recorded as transparent as it could be…’ but denies any wrongdoing.  It is simply impossible, without the records which should have been kept, to know the true position; but BE’s concession and the absence of records means that, on any view, it was open to the Tribunal to conclude that her attorneyship had been deficient.

[17] The original Tribunal also noted at this point in its reasons that ML had also lost confidence in her attorney and expressed the opinion that BE was exercising the EPAs inappropriately. Once the relationship of trust is lost between attorney and principal the tenure of the attorney is inherently problematic: many of the General Principles required to be applied by Schedule 1 of the Powers of Attorney Act 1998 are based on this trust. BE has not attempted to rebut what ML said in this respect.

[18]      In light of these factors there is no apparent ground for concluding that the reasons and the decision of the original Tribunal in relation to the revoking of the EPAs involved any error.

[19]      The reasons of the original Tribunal are terse, but nothing in them or the transcript of the proceedings before its members suggests any error, either of law or fact.  Its findings were plainly consistent with the evidence, and the strong direction in which it pointed: that conflict within the family, and ML’s own loss of trust in her attorney BE, meant the attorney/principal relationship had to be severed; and, because ML still requires a manager for her affairs, independent agencies should be appointed in her place.

[20]      This analysis also shows there is no apparent question of law open to BE so she must, at best, seek leave to appeal.  No mistake of fact, or error involving a mixture of law and fact, can be seen.  The facts here, involving inter-family dispute, a breakdown in relations and trust between principal and attorney, and a failure by the attorney to keep required records for an EPA are not unusual and there are no questions of importance about which further argument and a decision of the Appeal Tribunal would be of further advantage[8]. 

[8]See Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid

Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580

[21]      Leave to appeal must be refused and the appeal, and the application for leave, dismissed.