GHA - [2015] QCAT 262

CITATION:

GHA [2015] QCAT 262

PARTIES:	GHA
APPLICATION NUMBER:	GAA-3415-15

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

12 May 2015

HEARD AT:

Brisbane

DECISION OF:

Professor Ashman, Member

DELIVERED ON:

2 July 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Tribunal declares that GHA had capacity to transfer half-ownership of her property located at 229 Boundary Street GHA’s on 15 August 2013 to RDD, and to make a gift of $100,000 to TTD and a loan of $300,000 to GHS.

CATCHWORDS:

APPLICATION FOR A DECLARATION ABOUT CAPACITY——where an enduring power of attorney exist; where the attorney’s actions have been challenged; where the adult was found to have capacity to make a gift to the attorney; where evidence was considered in regard to a breaches of ss 87 and 88 of the Powers of Attorney Act 1998;

Smith v Glegg [2004] WSC 443
Baker & Ors v Affoo & Ors [2014] QSC 46

APPEARANCES:

Adult
Attorney
Seven family member
One friend of the family

REPRESENTATION:
A representative of the attorney
A representative of two family members
A representative of the Public Trustee of Queensland
A representative of the Public Guardian
An interpreter

REASONS FOR DECISION

In April 2014, the Public Guardian received a referral containing allegations that an attorney had breached the Powers of Attorney Act 1998 (Qld) by undertaking transactions and by acting in other ways that were not in the interest of the principal. The attorney was RDD; the principal was her mother, GHA who, at that time was 82 years old.
The Public Guardian investigated five allegations, that: (1) the attorney had influence GHA into changing her will; (2) the attorney acquired joint ownership by way of a gift of a property owned solely by GHA; (3) the attorney benefitted from GHA’s assets by using assets to renovate the property to which reference is made in (2) above; (4) the attorney had not consulted with other family members in regard to decisions affecting GHA; and (5) the attorney had taken possession of jewellery that was GHA’s property.
Following its investigation and the production of a comprehensive report, the Public Guardian found that only one of the allegations was substantiated, namely, Allegation 2. Consequently, the Public Guardian lodged an application with the Tribunal seeking a decision concerning GHA’s capacity to transfer half-ownership of the property in question, to make a gift to another daughter, TTD, and to loan a significant amount of money to son GHS. The Public Guardian expressed concerns that these transaction might constitute conflict transactions.
By way of background to this matter, GHA appointed RDD as her attorney on 26 August 2011. The appointment was for financial and personal/health matters and the powers relating to financial matters were to begin immediately. There is no contemporaneous medical evidence available to the Tribunal to suggest that GHA lacked capacity to execute the powers of attorney document. Medical evidence provided to the Tribunal originates in mid-2013.
The primary issue considered during the hearing was the gift…

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.

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Details

AGLC: GHA [2015] QCAT 262
Case: [2015] QCAT 262
Decision Date: 2 July 2014

CaseChat Overview and Summary

In the matter of GHA, the applicant sought a declaration regarding their capacity to make certain financial transactions, including a transfer of half-ownership of property, and the making of a gift and a loan. The application was heard in the Tribunal, which was tasked with determining whether GHA had the capacity to undertake these transactions at the relevant times. The decisions of the attorney, who had been appointed under an enduring power of attorney, were also subject to scrutiny, particularly whether they breached certain sections of the Powers of Attorney Act 1998.

The primary legal issues before the Tribunal involved whether GHA had the requisite mental capacity to execute the transfer of property, gift, and loan, and whether the attorney's actions in handling these transactions were in breach of the statutory provisions. Specifically, the Tribunal examined whether the attorney's actions contravened sections 87 and 88 of the Powers of Attorney Act 1998, which pertain to the proper exercise of an attorney's authority and the duty to act in the best interests of the principal.

After considering the evidence presented, the Tribunal found that GHA had the necessary capacity to make the transfer of property, the gift, and the loan on the dates in question. The Tribunal also found that the attorney's actions did not breach sections 87 and 88 of the Powers of Attorney Act 1998. The reasoning behind the Tribunal's decision was based on a comprehensive evaluation of the medical evidence, which supported the conclusion that GHA retained the capacity to make these decisions. Consequently, the Tribunal declared that GHA had the capacity to transfer half-ownership of the property, and to make the gift and loan.

The final orders made by the Tribunal included a declaration that GHA had the capacity to transfer half-ownership of her property to RDD, and to make a gift of $100,000 to TTD and a loan of $300,000 to GHS, on the specified dates. The Tribunal also found that the attorney did not breach sections 87 and 88 of the Powers of Attorney Act 1998 in relation to these transactions.

Orders

Orders of the court

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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