In the Matter of Evelyn (Guardianship)

In the matter of Evelyn, the Australian Capital Territory Civil and Administrative Tribunal (ACTCAT) was tasked with determining the scope of the enduring power of attorney (EPOA) executed by Evelyn on 8 August 2017. The dispute centred on whether Evelyn's attorney was empowered under the EPOA to give informed consent to the use of a restrictive practice, specifically environmental restraint, in relation to Evelyn. The Tribunal was required to interpret the provisions of the EPOA, the Powers of Attorney Act 2000 (ACT), and the Human Rights Act 2004 (ACT) to determine whether the attorney had the authority to consent to the restraint.

The legal issues before the Tribunal were whether the term 'personal care matters' in the EPOA and the POA Act encompassed the power to consent to the use of a restrictive practice such as environmental restraint. The Tribunal examined the literal construction of the terms and considered whether the restrictive practice could be considered a personal care matter. It also had to consider whether the interpretation of the EPOA and the POA Act should be consistent with human rights as per section 30 of the Human Rights Act 2004. The Tribunal concluded that while a literal interpretation of the EPOA suggested that the attorney had the power to consent to the use of a restrictive practice, this was not the only relevant factor. The Tribunal had to balance the literal meaning with the need to interpret the law in a way that is compatible with human rights.

The Tribunal found that the enduring power of attorney did empower Evelyn's attorney to give consent to others restraining Evelyn from leaving a place. The Tribunal dismissed the application and declared that the EPOA empowered the attorney to give such consent. The Tribunal's reasoning was based on the literal interpretation of the EPOA and the POA Act, and the consideration of human rights as per section 30 of the Human Rights Act 2004. The Tribunal held that the term 'personal care matters' could be construed as including a power to consent to Evelyn’s environmental restraint. The Tribunal also noted that the attorney's powers were not limited by the provisions for limiting powers regarding property, personal care, and health care matters, as those provisions were marked as 'Inapplicable'.