HJW - [2014] QCAT 576

CITATION:

HJW [2014] QCAT 576

PARTIES:

HJW

APPLICATION NUMBER:

GAA6227-14, GAA6228-14, GAA6307-14

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

3 September 2014

HEARD AT:

Bundaberg

DECISION OF:

Member Lewis

DELIVERED ON:

10 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Public Guardian is appointed as guardian for W for decisions about the following personal matter:

(a) Health care.

2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years.

3. The Public Trustee of Queensland is appointed as administrator for W for all financial matters.

4. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

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

6. This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal.

7. The following Enduring Power of Attorney for W is revoked pursuant to s 116(d) of the Powers of Attorney Act 1998:

The Enduring Power of Attorney dated 2 February 2009 appointing C and JB as attorneys for financial and personal/health matters.

CATCHWORDS:

ENDURING POWER OF ATTORNEY – where conflict between attorney and family members – where attorney’s failure to consult with family is in issue – where adult expresses opposition to the actions of the attorney – where attorney lives remote from the adult – where family member seeks revocation of an enduring power of attorney – where an independent decision-maker is sought

GUARDIANSHIP AND ADMINISTRATION – conflict between attorney and family – whether appointment of independent guardian and administrator is more appropriate

Powers of Attorney Act 1998, ss 33, 116, Schedule 1 Part 1, General principles
Guardianship and Administration Act 2000, s 12, Schedule 1 Part 1, General principles

JMS v Adult Guardian and Anor [2013] QCATA 135

APPEARANCES:

HJW (Adult)
RA (Applicant, daughter)
JB (Attorney, step-daughter)
Public Trustee of Queensland
Public Guardian
JA (grandson)
TB (Attorney’s husband)

REPRESENTATIVES:

Public Trustee of Queensland represented by Anthony Williamson

Public Guardian represented by Gina Do

Other parties in person

REASONS FOR DECISION

Mr W, who is now 88, lived with his partner Mrs C from the nineteen sixties, until she died in January 2014. They had lived in their own home in a seaside town in the Wide Bay Burnett region from 1988. In April this year he moved into an aged care home.
In 2009, he signed an enduring power of attorney appointing his partner and her daughter JB (successively) as his attorneys for both financial and personal and health matters. Mrs B has acted as his attorney since January 2014.
Mr W had children by his earlier marriage, and his daughter RA, unhappy with the management of her father’s affairs, has brought these applications. She sought the revocation of the power of attorney, the appointment of herself as guardian, and herself or the Public Trustee as administrator. At the hearing she sought the appointment of the Public Guardian and…

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

Case: [2014] QCAT 576
Decision Date: 10 November 2014

CaseChat Overview and Summary

In the matter of HJW, the Queensland Civil and Administrative Tribunal (QCAT) was called upon to address a conflict between an attorney and the family members of an adult who had executed an enduring power of attorney. The dispute centred around the attorney's failure to consult with the family and the adult's expressed opposition to the attorney's actions. Additionally, the attorney lived remotely from the adult, which further complicated the situation. The family sought the revocation of the enduring power of attorney and requested the appointment of an independent decision-maker.

The court was required to decide whether the enduring power of attorney should be revoked and if the appointment of an independent guardian and administrator would be more appropriate given the conflict between the attorney and the family. The court also needed to determine whether the attorney's failure to consult with the family and the adult's opposition to the attorney's actions warranted the revocation of the enduring power of attorney. Furthermore, the court needed to consider the remoteness of the attorney and its impact on the adult's care and decision-making.

In reaching its decision, the QCAT found that the conflict between the attorney and the family, as well as the attorney's failure to consult with the family and the adult's opposition to the attorney's actions, warranted the revocation of the enduring power of attorney. The court considered the best interests of the adult and determined that the appointment of an independent guardian and administrator would be more appropriate. The Public Guardian was appointed as the guardian for health care decisions, while the Public Trustee of Queensland was appointed as the administrator for all financial matters. The enduring power of attorney dated 2 February 2009, appointing C and JB as attorneys for financial and personal/health matters, was revoked.

The tribunal's orders included the appointment of the Public Guardian as guardian for health care decisions and the Public Trustee of Queensland as administrator for financial matters. The tribunal also directed the administrator to provide accounts when requested and dispensed with the requirement for the administrator to provide a financial management plan. The enduring power of attorney was revoked, and the appointments of the guardian and administrator were to remain current until further order of the tribunal.

Orders

Orders of the court

1. The Public Guardian is appointed as guardian for W for decisions about the following personal matter:

(a) Health care.

2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in five (5) years.

3. The Public Trustee of Queensland is appointed as administrator for W for all financial matters.

4. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

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

6. This appointment of the Public Trustee of Queensland remains current until further order of the Tribunal.

7. The following Enduring Power of Attorney for W is revoked pursuant to s 116(d) of the Powers of Attorney Act 1998:

The Enduring Power of Attorney dated 2 February 2009 appointing C and JB as attorneys for financial and personal/health matters.

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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