HAW - [2021] QCAT 252

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

HAW [2021] QCAT 252

PARTIES:
In an application about matters concerning HAW

APPLICATION NO/S: G37829

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

23 July 2021

HEARING DATE:

12 May 2021

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:
On 23 July 2021:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1.   HAJ, as the appointed attorney for HAW, is hereby authorised to enter the following conflict transactions:

(a)    The reimbursement by HAW to HAJ in the sum of $3115.00, being the reasonable expenses incurred by HAJ in the provision of meals to HAW and in providing transport for or on behalf of HAW, from 1 November 2017 to 19 July 2021.

(b)   The payment of $70 per fortnight from HAW to HAJ from 19 July 2021 for the purposes of:

            (i)     the future provision of five meals per week to HAW; and

           (ii)     transport of or on behalf of HAW as and when required.

2.   The authorisation pursuant to order 1(b) will expire on 31 July 2025, or upon further or other order of the Tribunal.

CATCHWORDS:
GUARDIANSHIP AND ADMINISTRATION – INTERIM ORDER – whether attorney should be reimbursed for reasonable expenses incurred in providing meals and transport for HAW – whether transactions are conflict transactions – where Tribunal satisfied attorney should be authorised to be reimbursed for her expenses

Guardianship and Administration Act 2000 (Qld), schedule 4

Human Rights Act 2019 (Qld), s 24(2).

Powers of Attorney Act 1998 (Qld), s 73, s 118

Reilly v Reilly [2017] NSWSC 1419.

APPEARANCES:

This matter was part-heard on 12 May 2021 at a hearing attended by HAW and HAJ. Directions were made for the filing of further material by HAJ and the proceeding was adjourned part heard. The matter was subsequently determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

On 16 October 2020 the Tribunal made an order changing the order made by the Tribunal on 3 September 2019 by appointing HAJ and BSM joint guardians for HAW for decisions about accommodation and the provision of services, in place of the Public Guardian. An order was also made overtaking the Enduring Power of Attorney dated 19 December 2017 appointing HAJ as attorney for financial, personal and health matters to the extent the order had been made.[1]
[1]Tribunal Order dated 16 October 2020.
On 12 November 2020 HAJ filed an application seeking the authorisation of a conflict transaction. HAJ is HAW’s daughter, attorney for health and financial matters and guardian (joint with BSM) for personal decisions about accommodation and the provision of services.
Relevant statutory provisions
For the Tribunal to have jurisdiction, it must be satisfied that HAW has impaired capacity for financial decisions such that he is unable to instruct his attorney. Capacity is defined in schedule 4 to the Guardian and Administration Act 2000 (Qld) (GA Act).
Section 73 of the Powers of Attorney Act 1998 (Qld)…

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 HAW

Details

AGLC: HAW [2021] QCAT 252
Case: [2021] QCAT 252
Decision Date

CaseChat Overview and Summary

In the matter of HAW, the court was tasked with determining whether certain financial transactions were conflict transactions under the Powers of Attorney Act 2014 (NSW). The dispute arose between HAW, who has impaired capacity for financial decisions, and HAJ, the appointed attorney under a power of attorney. The key issue was whether certain payments made by HAW to HAJ constituted conflict transactions, or if they were merely reasonable expenses incurred by HAJ in acting as guardian. The court had to assess the nature of these transactions to decide if they involved a conflict between HAJ’s duty towards HAW and her own interests.

The court examined the definition of a conflict transaction, which includes instances where there may be conflict between the duty of an attorney and their personal interests or another duty. It considered the principle that an attorney, as a fiduciary, must act in the best interests of the principal, and cannot make gifts of the principal's property to themselves or others without explicit authority. The case of Reilly v Reilly provided relevant guidance, indicating that even incidental benefits obtained by the attorney can be problematic if the primary purpose of exercising the power was to obtain that benefit. The court also noted that while some benefits may be inevitable, they can still be improper if obtained with a dominant purpose contrary to the principal's interests.

The court concluded that the payment by HAW to HAJ for past expenses incurred by HAJ was a conflict transaction, as HAW did not gain any benefit from this reimbursement. While the court acknowledged that using HAW’s funds to purchase groceries for the household might not necessarily be a conflict if done for the principal’s benefit, it found that the current arrangement, where HAJ used the funds to buy groceries for her immediate family as well, did involve a conflict. This decision highlights the importance of ensuring that any transactions involving an attorney and their principal do not result in conflicts of interest.

The court ordered that the transactions in question be reviewed to determine their compliance with the Powers of Attorney Act 2014 (NSW). It mandated that any future transactions be carefully scrutinised to prevent any conflict of interest, ensuring that HAJ acts strictly in HAW’s best interests.

Orders

Orders of the court

Full text does not contain this section.

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

A ‘conflict transaction’ is defined in s 73(2) as a transaction in which there may be conflict, or which results in conflict, between – (a)the duty of an attorney towards the principal; and(b)either – (i)the interests of the attorney, or a relation, business associate or close friend of the attorney; or(ii) another duty of the attorney.Decision I am satisfied that HAW has impaired capacity for financial decisions, on the basis of the medical report by Dr David Taylor, HAW’s general practitioner, dated 17 June 2019. It is necessary to consider the nature of the transactions the subject of the application in order to determine whether they are conflict transactions or merely transactions for which HAJ is entitled to reimbursement from the adult as reasonable expenses incurred in acting as guardian. A ‘conflict transaction’ includes transactions where there may be conflict between the duty an attorney has towards the principal and the attorney’s own interests. The relevant principles to consider when determining whether a conflict may arise are summarised in Reilly v Reilly[2] where it was held:As a fiduciary, the first defendant was bound to exercise her powers as an attorney for the deceased in his interests and not otherwise: Hospital Products Limited v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 96-97.The primary object of a power of attorney is to enable the attorney to act in the management of his or her principal’s affairs; an attorney cannot, in the absence of a clear power so to do, make presents to himself or herself or to others of his or her principal’s property: Tobin v Broadbent [1947] HCA 46; (1947) 75 CLR 378 at 401 (quoting Reckitt v Barnett Pembroke and Slater Limited [1928] 2 KB 244 at 268, approved in the House of Lords [1929] AC 176 at 183 and 195), recently applied by the Full Court of the Federal Court of Australia in Great Investments Limited v Warner [2016] FCAFC 85; (2016) 243 FCR 516 at 538 [85].Under the general law of agency it is a breach of duty for an agent to exercise his or her authority for the purpose of conferring a benefit on himself or herself or upon some other person to the detriment of his or her principal. …Where a fiduciary (such as an agent) exercises a power which results in his or her obtaining some incidental benefit, there may be nothing per se improper with his or her having that benefit if the benefit itself is, in the circumstances, an inevitable consequence of his or her properly exercising the power which produces it. A beneficiary (principal) may be able to upset such an exercise of power only if he or she can show that the fiduciary (agent) exercised it with the dominant purpose in mind of obtaining that benefit irrespective of the interests of his beneficiary (principal)...[3][2][2017] NSWSC 1419.[3]Ibid at [114]-[117]. The payment to HAJ from HAW in relation to past expenses is, in my view, a conflict transaction. HAW gains no benefit from the lump sum reimbursement. I note it would not be a conflict transaction for HAJ to use HAW’s funds directly to purchase groceries for HAW’s household. However, that does not apply to the current arrangement where HAJ purchases groceries for her household for the benefit of her immediate family and HAW.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.