HWR - [2010] QCAT 349

CITATION:

HWR [2010] QCAT 349

PARTIES:

HWR

APPLICATION NUMBER:

GAA1148-10; GAA1149-10; GAA4036-10

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

31 May 2010

HEARD AT:

Brisbane

DECISION OF:

J Allen – Presiding Member
R Stafford – Member
L Clarkson – Member

DELIVERED ON:

15 July 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

GUARDIANSHIP

1. That the Adult Guardian is appointed as guardian for HWR for all personal matters.

2. Unless the Tribunal orders otherwise, this appointment remains current for two (2) years.

ADMINISTRATION

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

4. The administrator is to provide a financial management plan to the Tribunal within six (6) months.

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

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

ENDURING POWER OF ATTORNEY

7. That 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 WH, GP, GR and HV to resign as attorneys for HWR under the Enduring Power of Attorney dated 31 July 2008.

8. That the following Enduring Power of Attorney for HWR 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 31 July 2008 appointing WH, GP, GR and HV as attorneys for financial, personal and health matters.

9. That any purported Enduring Powers of Attorney for HWR are overtaken by the making of these appointments and, in accordance with s 22(2) of the Act, can no longer be acted upon to the extent that these appointments have been made.

CATCHWORDS :

Capacity of Adult, Need for Guardian and Administrator, Appropriateness of appointee’s, leave to resign for attorneys, Powers of Attorney Act 1998, Guardianship and Administration Act 2000

APPEARANCES and REPRESENTATION (if any):

The active parties who attended the hearing were as follows:-
HWR, WH, HR, Ms H, HN, GP, BP (representing the Adult Guardian), AA (representing The Public Trustee of Queensland).

Mr WH was represented by Senior Counsel.
The Public Trustee of Queensland was represented by Ms Waldon, in house lawyer.

The following interested parties attended the hearing:-
HJ, FE, AL, AN, SR, SH, FR

REASONS FOR DECISION

History of the Application

HWR is an 80 year old retired banana and pawpaw grower. The farm on which HWR grew his fruit was located on prime land. This land was owned by a company as a trustee of trust structure of which HWR was the controller. The land having been sold in 2003 for approximately $30,000,000.00, HWR, following advice from his accountant and lawyers, made distributions from the trusts to his children. They are HR who received $7,000,000.00, Ms H who received $5,000,000.00 and HN who received $5,000,000.00.

HWR had received advice from solicitors in 2003 about the restructuring of the family trusts 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.

Continue reading HWR

Details

AGLC: HWR [2010] QCAT 349
Case: [2010] QCAT 349
Decision Date: 15 July 2010

CaseChat Overview and Summary

HWR's case involved the appointment of a guardian and an administrator for HWR's personal and financial matters respectively. The Tribunal was tasked with making these decisions given HWR's incapacity to manage their own affairs. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issues before the Tribunal were whether HWR lacked the capacity to manage their personal and financial affairs and, if so, who should be appointed as their guardian and administrator. The court needed to consider evidence of HWR's capacity, the suitability of proposed guardians and administrators, and the implications of existing enduring powers of attorney.

The Tribunal found that HWR lacked the necessary capacity to manage their personal and financial affairs due to medical conditions. The Adult Guardian was appointed as guardian for HWR's personal matters, while The Public Trustee of Queensland was appointed as administrator for HWR's financial matters. The Tribunal also revoked existing enduring powers of attorney, allowing the newly appointed guardians and administrators to act in HWR's best interests.

In conclusion, the Tribunal made orders appointing the Adult Guardian as guardian and The Public Trustee of Queensland as administrator for HWR. These appointments are intended to ensure HWR's personal and financial matters are managed appropriately. The existing enduring powers of attorney were revoked, and the new appointments are to remain in effect unless otherwise directed by the Tribunal.

Orders

Orders of the court

GUARDIANSHIP

1. That the Adult Guardian is appointed as guardian for HWR for all personal matters.

2. Unless the Tribunal orders otherwise, this appointment remains current for two (2) years.

ADMINISTRATION

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

4. The administrator is to provide a financial management plan to the Tribunal within six (6) months.

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

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

ENDURING POWER OF ATTORNEY

7. That 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 WH, GP, GR and HV to resign as attorneys for HWR under the Enduring Power of Attorney dated 31 July 2008.

8. That the following Enduring Power of Attorney for HWR 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 31 July 2008 appointing WH, GP, GR and HV as attorneys for financial, personal and 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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