FAJ - [2013] QCAT 703

CITATION:

FAJ [2013] QCAT 703

PARTIES:

FAJ

APPLICATION NUMBER:

GAA7942-13; GAA7943-13; GAA8768-13

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

21 November 2013

HEARD AT:

Southport

DECISION OF:

Member Bayne

DELIVERED ON:

22 November 2013

DELIVERED AT:

Southport

ORDERS MADE:

ENDURING POWER OF ATTORNEY

1. 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 SJR to resign as attorney for FAJ under the Enduring Power of Attorney dated 23 July 2013.

2. The following Enduring Power of Attorney for FAJ 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 23 July 2013 appointing SJR as attorney for financial, personal and health matters.

GUARDIANSHIP

3. The application for the appointment of a guardian for FAJ is dismissed.

ADMINISTRATION

4. The Public Trustee of Queensland is appointed as administrator for FAJ for all financial matters.

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

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

7. This appointment remains current until further order of the Tribunal.

CATCHWORDS:

GUARDIANSHIP AND ADMINISTRATION – undue influence – unsecured loans – impaired capacity – attorney wishes to resign – need for an administrator – appropriateness considerations

Guardianship and Administration Act 2000 Schedule 4, ss 5, 7, 12, 14, 15, 16, 31, 129

Powers of Attorney Act 1998 Schedule 1, ss 1, 31, 41, 44, 47, 62, 63, 82, 116, 117

APPEARANCES and REPRESENTATION (if any):

FAJ
LR
GC
PM
LG
ZJK
BJ
SJR
BT

Adult
Son
Legal representation for LR
Friend
Son
Daughter
Daughter
Attorney under Enduring Power of Attorney
Witness to Enduring Power of Attorney

REASONS FOR DECISION
BACKGROUND

FAJ is 71 years of age and lives, as she has done since about 2001, in Southport, Queensland. She was widowed in 2009.
FAJ has four children, all of whom live interstate. She has a few friends and acquaintances in her local area.
In about 2010, FAJ met PM through an internet poker site. Although PM lives in the United States, a friendship, then a romance, developed. FAJ and PM have never met, but exchange regular emails, telephone calls and electronic greetings cards.
Between June 2011 and August 2013, FAJ ‘loaned’ PM a great deal of money.
FAJ is convinced that the loans are secure. She steadfastly believes in the genuine nature of PM; she considers that she is engaged to him and will marry him.
FAJ’s family, friends, the Queensland Police Fraud Squad and the Federal Bureau of Investigation in the US are all of the view that PM is a scammer/confidence trickster who has exploited FAJ’s kind nature and her circumstances.

THE APPLICATIONS

On 10 September 2013, the Tribunal received applications seeking the appointment of an administrator and a guardian as well…

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 FAJ

Details

AGLC: FAJ [2013] QCAT 703
Case: [2013] QCAT 703
Decision Date: 22 November 2013

CaseChat Overview and Summary

The matter involved a dispute concerning the guardianship and administration of FAJ. The central issue was the undue influence exerted on FAJ, which resulted in unsecured loans. It was also established that FAJ had impaired capacity, leading the attorney, SJR, to seek resignation. The court was required to determine the resignation of SJR as the attorney for FAJ, the revocation of the relevant Enduring Power of Attorney, the dismissal of the application for a guardian, and the appointment of an administrator for FAJ's financial matters.

The court found that SJR's resignation as attorney for FAJ was appropriate, given the undue influence and impaired capacity of FAJ. The Enduring Power of Attorney dated 23 July 2013 was revoked in accordance with the relevant legislation. The application for the appointment of a guardian for FAJ was dismissed, as the court determined that it was not necessary in this case. The Public Trustee of Queensland was appointed as the administrator for FAJ's financial matters, with instructions to provide a financial management plan and accounts to the Tribunal when requested.

The court's final orders included the resignation of SJR as attorney for FAJ, the revocation of the Enduring Power of Attorney dated 23 July 2013, the dismissal of the application for a guardian, and the appointment of the Public Trustee of Queensland as the administrator for FAJ's financial matters. The administrator was required to provide a financial management plan and accounts to the Tribunal as needed, with the appointment remaining in effect until further order of the Tribunal.

Orders

Orders of the court

ENDURING POWER OF ATTORNEY

1. 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 SJR to resign as attorney for FAJ under the Enduring Power of Attorney dated 23 July 2013.

2. The following Enduring Power of Attorney for FAJ 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 23 July 2013 appointing SJR as attorney for financial, personal and health matters.

GUARDIANSHIP

3. The application for the appointment of a guardian for FAJ is dismissed.

ADMINISTRATION

4. The Public Trustee of Queensland is appointed as administrator for FAJ for all financial matters.

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

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

7. This appointment 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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