EMC v MMH

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

EMC v MMH & Ors [2022] QCATA 139

PARTIES:

EMC

(applicant/appellant)

v

MMH
MPB
MPA
ECJ
Public Guardian
The public trustee of queensland

(respondent)

APPLICATION NO/S:

APL141-22

ORIGINATING APPLICATION NO/S:

G45705

MATTER TYPE:

Appeals

DELIVERED ON:

30 August 2022

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Fitzpatrick

ORDERS:

The application to stay a decision is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND -STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where former attorney for personal and health matters and for financial matters replaced by the Public Guardian and the Public Trustee of Queensland – former attorney seeking stay of decision

Human Rights Act 2019 (Qld), s5

Queensland Civil and Administration Act 2009 (Qld), s58

Hessey-Tenny v Jones [2018] QCATA 131

Simonova v Department of Housing and Public Works [2018] QCA 60

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. The parties have been de-identified in this decision.

2. The applicant EMC has filed an application for leave to appeal or appeal and an application to stay a decision with respect to a decision made by the Tribunal on 5 April 2022. The Appeal Tribunal’s decision deals with the application to stay a decision. The Appeal Tribunal makes its decision under s58 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

3. Pursuant to the decision dated 5 April 2022, the Public Guardian was appointed guardian for the adult ECJ for health care decisions. The appointment is reviewable and is to be reviewed in five years.

4. The Tribunal appointed the Public Trustee as administrator for ECJ for all financial matters. The appointment remains current until further order of the Tribunal. The Tribunal required a financial management plan and a statement of advice from a financial planner to be provided to the Tribunal within 6 months of the date of the Order.

5. The decision also revoked the following Enduring Powers of Attorney for ECJ:

   (a)an Enduring Power of Attorney dated 13 February 2015 appointing MPB, MMH and MPA as attorneys for financial, personal and health matters; and

   (b)an Enduring Power of Attorney dated 20 November 2019 appointing EMC as attorney for financial, personal and health matters.

6. The decision was made following a hearing with respect to three applications filed by ECJ’s daughter, MMH. The applications sought appointment of the Public Guardian, the Public Trustee and sought orders about the 20 November 2019 Enduring Power of Attorney.

7. The adult, ECJ is 87 years of age and resides in an aged care facility.

8. The Tribunal below found that, as at the date of the decision, ECJ lacked capacity for significant or complex personal, health and financial matters.

9. The Tribunal found that the Enduring Power of Attorney made on 13 February 2015 was valid but was extinguished by the 20 November 2019 Enduring Power of Attorney.…