ER - [2010] QCAT 688 | CaseChat AU

CITATION:

ER [2010] QCAT 688

PARTIES:

APPLICATION NUMBERS:

GAA2038-10; GAA2039-10

MATTER TYPE:

Guardianship and administration matters

HEARING DATE:

28 April 2010

HEARD AT:

Bundaberg

DECISION OF:

Julia Casey, Presiding Member
Michael McCarthy, Member
Aaron Suthers, Member

DELIVERED ON:

28 April 2010

DELIVERED AT:

Bundaberg

ORDERS MADE:

No guardian appointed; Administrator appointed; Enduring power of attorney and revocation declared invalid; Enduring power of attorney revoked

CATCHWORDS :

Capacity of adult, Validity of enduring power of attorney, Appropriateness of attorney under enduring power of attorney, Need for guardian and administrator, Appropriateness of appointees

Powers of Attorney Act 1998
Guardianship and Administration Act 2000

APPEARANCES and REPRESENTATION (if any):

The following parties attended the hearing:

RE     adult
MN     friend and attorney of adult
MJ      friend and attorney of adult
DC     step-daughter of adult

DDhusband of DC
CBgrandson of adult
RRrepresentative of The Public Trustee of Queensland
GNdelegate of the Office of The Adult Guardian (by telephone)

REASONS FOR DECISION

History of the Application

ER (the adult) is an 88 year old gentleman who lives in Bundaberg.
On 5 December 2002 he appointed his step-daughter, DC, as his attorney for personal/health and financial matters, with the power for financial matters to begin immediately.
On 17 November 2009 the adult revoked the enduring power of attorney.
Until recently the adult had been living independently in his property at Norville. He had shared this property with his wife of many years, ED, until her passing in 2007.
ER signed a contract of sale on the Norville property on 19 February 2010 for $255,000.
On 10 March 2010 he commenced residing with his friends, MN and MJ, at their daughter’s home in Bundaberg.
On 12 March 2010 the Tribunal received an application by DC seeking the appointment of the Adult Guardian as guardian and The Public Trustee of Queensland as administrator for the adult.
On 16 March 2010 the adult appointed MN and MJ jointly as attorneys for financial and personal/health matters. The document provides that the power of the attorneys for financial matters was to begin with the “loss of (the principal’s) capacity”. The attorneys’ acceptances were completed and signed on 17 March 2010.
The Tribunal made an interim order on 19 March 2010 appointing The Public Trustee of Queensland as plenary administrator for the adult and the Adult Guardian as guardian for matters pertaining to accommodation and provision of services. Any purported enduring power of attorney agreement was overtaken by the making of these appointments. The orders were to remain current for three months, if the Tribunal had not made a further order within that time.

[10] Settlement of the adult’s property took place on 22 March 2010.

The issues and legislation

[11] The issues for the Tribunal are:

a)Does ER have capacity for personal and financial matters?
b)Did ER have capacity to execute the enduring power of attorney agreement of 17 March 2010 and to revoke the enduring power of attorney agreement of 5 December 2002 on 17 November 2009?
c)Is the…

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.

Continue reading ER

Details

AGLC: ER [2010] QCAT 688
Case: [2010] QCAT 688
Decision Date: 28 April 2010

CaseChat Overview and Summary

The case involved the dispute over the validity of an enduring power of attorney and its subsequent revocation. The parties included the potential attorney, the individual who executed the enduring power of attorney, and several interested parties who stood to benefit from or be affected by the attorney's actions. The dispute arose in the Supreme Court of Queensland, where the court was required to determine the validity of the enduring power of attorney and the circumstances under which it was revoked.

The primary legal issue before the court was whether the enduring power of attorney was properly executed and if the revocation of that power was valid under the relevant legislation. The court needed to examine the conditions under which the enduring power of attorney was created, whether the individual had the requisite mental capacity at the time of execution, and if the revocation met the statutory requirements. The court also had to consider the evidence presented regarding the individual's mental state and whether there was any undue influence or coercion exerted on the individual during the execution of the enduring power of attorney and its revocation.

The court found that the enduring power of attorney was not validly executed due to the individual's lack of mental capacity at the time of execution. The evidence presented indicated that the individual did not fully understand the nature and effect of the document, which is a critical requirement for the validity of such an instrument. The court also concluded that the revocation of the enduring power of attorney was not validly executed, as it did not meet the statutory requirements for revocation. Consequently, the court declared the enduring power of attorney and its revocation invalid. Additionally, the court appointed an administrator to manage the individual's affairs, as no valid enduring power of attorney was in effect.

Orders

Orders of the court

No guardian appointed; Administrator appointed; Enduring power of attorney and revocation declared invalid; Enduring power of attorney revoked

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.