JL - [2022] QCAT 408 | CaseChat AU

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

JL [2022] QCAT 408

PARTIES:

In applications about matters concerning JL

APPLICATION NO/S:

GAA 7870 – 22
GAA 7871 – 22
GAA 7996 – 22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

14 December 2022

HEARING DATE:

17 August 2022

29 September 2022

Further written submissions 2, 4, 6, 11, and 14 October 2022.

HEARD AT:

Cairns via phone on 17 August 2022 and via MS Teams on 29 September 2022

DECISION OF:

Member Taylor

ORDERS:

GUARDIANSHIP

1.     The application by CL for the appointment of a guardian for JL is dismissed.

ADMINISTRATION

2.     The application by CL for the appointment of an administrator for JL is dismissed.

ENDURING POWER OF ATTORNEY

3.     The Tribunal recognizes the existence of the following Enduring Power of Attorney for JL:

The appointment of CL for personal (including health) matters and financial matters dated 4 June 2021.

DIRECTIONS

4. Pursuant to s 118 of the Powers of Attorney Act 1998 (Qld), the Tribunal gives the following advice:

(a)     The Enduring Power of Attorney for JL under the Powers of Attorney Act 2014 (Vic) appointing AL solely as attorney for all personal and financial matters, together with the Appointment of Medical Treatment Decision Maker appointing AL as sole medical treatment decision maker is:

(i) pursuant to s 34 of the Powers of Attorney Act 1998 (Qld) recognised in Queensland; and

(ii) pursuant to s 50 of the Powers of Attorney Act 1998 (Qld) revoked by the Enduring Power of Attorney for JL appointing CL as recognised in Order 3 herein.

(b)     The Enduring Power of Attorney for JL appointing CL as recognised in Order 3 herein empowers CL to solely make the requisite decisions for JL.

CATCHWORDS:

HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS –ADMINISTRATION AND FINANCIAL MANAGEMENT – REVIEW, REVOCATION, ETC – application for the appointment of a guardian and an administrator - where the applicant is the attorney for personal/health matters and financial matters of the adult, her mother – where the appointment of the daughter as attorney was a sole appointment – where an earlier enduring power of attorney for personal and financial matters together with an appointment as a medical decision maker was given by her mother in Victoria to her son, the applicant’s brother – where the appointment of the daughter directed the attorneys to make decisions severally - where the mother purported to revoke the daughter’s appointment as attorney - where the mother’s bank is refusing to recognise the authority of either the applicant daughter or that of the earlier appointed attorney son – where there is conflict within the family in particular between the daughter and son – where the earlier appointed attorney son seeks to be appointed as guardian and administrator to his mother.

Guardianship and Administration Act 2000 (Qld), s 11, s 11B, s 12, s 82(2), Schedule 3, Schedule 4,

Human Rights Act 2019…

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 JL

Details

AGLC: JL [2022] QCAT 408
Case: [2022] QCAT 408
Decision Date

CaseChat Overview and Summary

The matter before the court involved JL, who required support services to live independently. The court was tasked with determining the validity of enduring powers of attorney appointed by JL and deciding whether a guardian and/or administrator should be appointed under the Guardianship and Administration Act. The primary parties involved were JL, CL, and AL, with CL and AL having been appointed as enduring attorneys by JL at different times.

The central legal issues before the court were the validity of the enduring powers of attorney given by JL, the revocation of the earlier appointment, and whether the appointment of a guardian and/or administrator under the Guardianship and Administration Act was necessary. The court had to determine whether the existing enduring powers of attorney were valid, whether the later appointment had effectively revoked the earlier one, and if the existing arrangements were sufficient to avoid the need for additional guardianship or administration.

In its decision, the court found that the appointment of CL under an enduring power of attorney for personal and financial matters, given by JL on 4 June 2021, was valid. The court also determined that this appointment had effectively revoked the earlier appointment of AL, given by JL on 17 April 2019. Consequently, CL was recognised as the sole appointed enduring attorney for JL for personal and financial matters. Given these findings, the court concluded that there was no basis for appointing a guardian and/or administrator under the Guardianship and Administration Act, as the enduring power of attorney arrangements were sufficient.

The court ordered that the application by CL for the appointment of a guardian and/or administrator to JL should be dismissed, and appropriate orders would be made to give effect to these decisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JL is entitled to adequate support services to enable him to live independently, such being consistent with a free and democratic society based on human dignity, equality and freedom. The decisions I have reached in these proceedings are, in my opinion, the least restrictive options which are consistent with that entitlement.Conclusion For the reasons I have given in the preceding paragraphs, the end result of the extensive and at times repetitive arguments in these proceedings is that:(a)The appointment of CL under an enduring power of attorney for personal (including health) matters and financial matters given by JL on 4 June 2021 is valid.(b)The appointment of AL under an enduring power of attorney for personal and financial matters, and his appointment as medical treatment decision maker, given by JL on 17 April 2019 was revoked by the appointment of CL.(c)In the premise, CL is the sole appointed enduring attorney to JL for personal (including health) matters and financial matters.(a)Given the valid appointment of an enduring power of attorney for personal (including health) matters and financial matters, there is no basis upon which an appointment of a guardian and/or administrator under the GAA Act is required.(b)In the premise, the application by CL for appointment of a guardian and administrator to JL should be dismissed. There will be orders made giving effect to these decisions.

Ratio Decidendi

Legal Principle Established

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CITATION:	JL [2022] QCAT 408
PARTIES:	In applications about matters concerning JL
APPLICATION NO/S:	GAA 7870 – 22 GAA 7871 – 22 GAA 7996 – 22
MATTER TYPE:	Guardianship and administration matters for adults
DELIVERED ON:	14 December 2022
HEARING DATE:	17 August 2022 29 September 2022 Further written submissions 2, 4, 6, 11, and 14 October 2022.
HEARD AT:	Cairns via phone on 17 August 2022 and via MS Teams on 29 September 2022
DECISION OF:	Member Taylor
ORDERS:	GUARDIANSHIP 1. The application by CL for the appointment of a guardian for JL is dismissed. ADMINISTRATION 2. The application by CL for the appointment of an administrator for JL is dismissed. ENDURING POWER OF ATTORNEY 3. The Tribunal recognizes the existence of the following Enduring Power of Attorney for JL: The appointment of CL for personal (including health) matters and financial matters dated 4 June 2021. DIRECTIONS 4. Pursuant to s 118 of the *Powers of Attorney Act* 1998 (Qld), the Tribunal gives the following advice: (a) The Enduring Power of Attorney for JL under the *Powers of Attorney Act* 2014 (Vic) appointing AL solely as attorney for all personal and financial matters, together with the Appointment of Medical Treatment Decision Maker appointing AL as sole medical treatment decision maker is: (i) pursuant to s 34 of the *Powers of Attorney Act* 1998 (Qld) recognised in Queensland; and (ii) pursuant to s 50 of the *Powers of Attorney Act* 1998 (Qld) revoked by the Enduring Power of Attorney for JL appointing CL as recognised in Order 3 herein. (b) The Enduring Power of Attorney for JL appointing CL as recognised in Order 3 herein empowers CL to solely make the requisite decisions for JL.
CATCHWORDS:	HEALTH LAW - GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS –ADMINISTRATION AND FINANCIAL MANAGEMENT – REVIEW, REVOCATION, ETC – application for the appointment of a guardian and an administrator - where the applicant is the attorney for personal/health matters and financial matters of the adult, her mother – where the appointment of the daughter as attorney was a sole appointment – where an earlier enduring power of attorney for personal and financial matters together with an appointment as a medical decision maker was given by her mother in Victoria to her son, the applicant’s brother – where the appointment of the daughter directed the attorneys to make decisions severally - where the mother purported to revoke the daughter’s appointment as attorney - where the mother’s bank is refusing to recognise the authority of either the applicant daughter or that of the earlier appointed attorney son – where there is conflict within the family in particular between the daughter and son – where the earlier appointed attorney son seeks to be appointed as guardian and administrator to his mother. Guardianship and Administration Act 2000 (Qld), s 11, s 11B, s 12, s 82(2), Schedule 3, Schedule 4, Human Rights Act 2019…