QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
DA [2020] QCAT 456
PARTIES:
In applications about matters concerning DA
APPLICATION NO/S: GAA2609-19; GAA4913-19; GAA5635-19; GAA5636-19; GAA5637-19; GAA7319-19; GAA12111-19; GAA5956-20; GAA6437-20
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
26 June 2020
HEARD AT:
Townsville
DECISION OF:
Member Pennell
ORDERS:
GUARDIANSHIP
1. DAMA is appointed guardian for DA for the following personal matters:
(a) Health Care; and
(b) Provision of services.
2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year.
ADMINISTRATION
3. The Public Trustee of Queensland is appointed as administrator for DA for all financial matters.
4. The Tribunal directs the administrator to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing.
5. This administration appointment remains current for three (3) months, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner.
NOTICE OF INTEREST IN LAND
6. The administrator shall within 28 days:
(a) Record the appointment as administrator on any property registered in DA’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 DA’s property; and
ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by DA.
(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.
7. If the ownership of any property of Aristide D’Ilario changes in any way or DA 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 or DA’s interest in another property.
ENDURING POWERS OF ATTORNEY
8. Any purported enduring power of attorney for DA is overtaken by the making of these appointments and, in accordance with section 22(2) of the Guardianship and Administration Act 2000 (Qld) can no longer be acted upon to the extent that these appointments have been made.
LIMITATION ORDER
9. The application by DEA for advice, directions or recommendations is dismissed.
ADJOURNMENT
10. The hearing of this matter is adjourned to a date to be fixed.
(a) The parties will be notified of the date, time and place for the continuation of this hearing.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – presumption of capacity – where the tribunal is satisfied the presumption of capacity is rebutted – enduring power of attorney – revocation of enduring power of attorney…
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- AGLC
- DA [2020] QCAT 456
- Case
- [2020] QCAT 456
- Decision Date
CaseChat Overview and Summary
The central legal issues included whether the presumption of DA’s capacity was rebutted, the validity of an EPA revocation to remove one attorney, and the conflict transactions between the attorneys. Furthermore, the court had to assess the exercise of due diligence by the attorneys, the protection of DA’s interests, the obligation to consult with co-attorneys, the right to information concerning DA, and the attorney’s responsibility to keep their own property separate from DA’s. The tribunal also considered whether it was necessary to appoint a guardian and an interim administrator, given the immediate risk to DA’s property.
The tribunal found that DAMA had intermingled her finances with DA’s, and this action had led to the current dispute. The tribunal concluded that the need for an appointment order was evident, and the terms of the order were within their discretion. The tribunal had to consider various appropriateness factors, including DAMA’s fitness to be appointed as a guardian and/or administrator. The tribunal concluded that DAMA was not suitable for appointment as an administrator due to her failure to fulfil her duties, but she was deemed appropriate for appointment as a guardian for personal matters.
In light of these findings, the tribunal appointed the Public Trustee of Queensland as the interim administrator for DA’s financial matters for a period of three months. DAMA was appointed as the guardian for DA’s personal matters, including health care and provision of services. The tribunal also directed the administrator to provide a written account of their actions to the tribunal no later than three working days prior to the hearing. Furthermore, the tribunal determined that any purported EPA for DA was overtaken by these appointments.
Finally, the tribunal dismissed DEA’s application for advice, directions, or recommendations and adjourned the hearing of this matter to a date to be fixed. The parties were to be notified of the date, time, and place for the continuation of the hearing.
Orders
Orders of the court
GUARDIANSHIP
1. DAMA is appointed guardian for DA for the following personal matters:
(a) Health Care; and
(b) Provision of services.
2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year.
ADMINISTRATION
3. The Public Trustee of Queensland is appointed as administrator for DA for all financial matters.
4. The Tribunal directs the administrator to provide a written account of their actions as administrator to the Tribunal no later than three (3) working days prior to the hearing.
5. This administration appointment remains current for three (3) months, if the Tribunal makes a further order in this matter, until the date of the further order, whichever is the sooner.
NOTICE OF INTEREST IN LAND
6. The administrator shall within 28 days:
(a) Record the appointment as administrator on any property registered in DA’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 DA’s property; and
ii) A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by DA.
(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.
7. If the ownership of any property of Aristide D’Ilario changes in any way or DA 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 or DA’s interest in another property.
ENDURING POWERS OF ATTORNEY
8. Any purported enduring power of attorney for DA is overtaken by the making of these appointments and, in accordance with section 22(2) of the Guardianship and Administration Act 2000 (Qld) can no longer be acted upon to the extent that these appointments have been made.
LIMITATION ORDER
9. The application by DEA for advice, directions or recommendations is dismissed.
ADJOURNMENT
10. The hearing of this matter is adjourned to a date to be fixed.
(a) The parties will be notified of the date, time and place for the continuation of this hearing.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
If at the conclusion of all those considerations the tribunal is satisfied for the need of an appointment order, the terms of the order are at the discretion of the tribunal.Appropriateness considerations In respect to the issues surrounding the appropriateness of DAMA to be appointed as the adult’s guardian and/or administrator, the Guardianship and Administration Act provides the tribunal with the discretion to appoint her as a decision maker. However, that appointment is conditional upon her fulfilling the criteria as provided for under the legislation.[55] The tribunal must have regard to those appropriateness considerations.[56] DAMA has provided information relating to her appropriateness.[57][55]Guardianship and Administration Act 2000 (Qld), s 14.[56]Guardianship and Administration Act 2000 (Qld), s 15.[57]DAMA’s affidavit sworn 13 February 2020.Discussions When he initially filed his application in February 2019, DEA sought the appointment of himself as the interim administrator for the adult.[58] He suggested his appointment would allow him to fully investigate what DAMA had done with their father’s money. The tribunal declined to make any interim appointment at that time. His later position was to seek the appointment of the PTQ.[58]Application filed 28 February 2019. Recently, he reinvigorated his position on this point by filing a fresh application for the appointment of an administrator on an interim basis. He said the adult’s finances were at an immediate risk and the PTQ should be appointed as on an interim administrator. He pointed out a concern about DAMA’s consistent failure to produce all financial records, including bank statements. He went on to say that had DAMA not intermingled the adult’s funds with hers and her husband’s, then she would not find herself in this position. It is noted that DAMA does not deny that prior to June 2019, she did intermingle the private finances of herself and her husband with the adult’s finances. In his original application,[59] DEA outlined that on in April 2016, the adult made an EPA appointing him and DAMA as joint attorneys. DAMA said the drawing up of the 2016 EPA was contrary to the previous EPA which existed for the adult. She recalled being uncomfortable with the signing of the 2016 EPA as – none of us had had the opportunity to seek legal advice or understand the terms and ramifications of the EPOAs, especially dad, who was in hospital at the time he signed the EPOA.[60] [59]Filed 28 February 2019.[60]DAMA’s affidavit filed 20 May 2019 at paragraph 17. DAMA’s comment is contrary to evidence contained within an exchange of text messages between DEA and DAMA where they discussed the making of the April 2016 EPAs. I am satisfied the evidence reveals, on the balance of probabilities, that DAMA was enthusiastic and complicit in planning that EPA. It respect to the granny flat agreement, it was DAMA who in about July 2018 engaged Grace Law for the purposes of formalising the granny flat agreement.[61] DEA was provided with a copy of that agreement, a transfer document and a statutory declaration. He, along with DAMA later went to offices of Grace Law for the purpose of signing those documents. The granny flat agreement was a decision made between DEA, DAMA, ALM, and the adult and his wife. This was seemingly with the same solicitor representing all parties. It appears that no independent advice was provided to the adult.[61]DAMA’s affidavit filed 20 May 2019 at paragraph 45.