JLG

[2019] QCAT 277

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

JLG [2019] QCAT 277

PARTIES:

In an application about a matter concerning JLG

APPLICATION NO/S:

GAA13973-18

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

10 June 2019

HEARING DATE:

15 May 2019

HEARD AT:

Cairns

DECISION OF:

Member Johnston

ORDERS:

CONFLICT TRANSACTION

The Tribunal approves the conflict transaction involving the sale of JLG‘s property situated at 35 White Street, Queensland by JGL‘s attorney KAR to KHW for the sum of $270,000.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – conflict transaction: Appropriate use of the adult’s assets – need for house to be sold to reduce Refundable Accommodation Deposit (‘RAD’) and Daily Accommodation payment (‘DAP’) – conflict transaction sale to Attorney’s son

Guardianship and Administration Act 2000 (Qld), s 152

APPEARANCES & REPRESENTATION:

KAR – Attorney/daughter

JEW – son

JJB – son

REASONS FOR DECISION

Background

1. JLG appointed her daughter KAR under an Enduring Power of Attorney dated 16 June 2011 for financial and personal health care decisions with the powers to commence immediately.

2. JLG was diagnosed with Alzheimer’s disease. She required an increased level of support and a decision was made to place her in the Bolton Clark Fornorha nursing home.

3. The medical evidence around the adult’s health meant that there was no prospect of her being able to return home to live. The question then arose what to do with the adult’s house. A Refundable Accommodation Deposit or RAD of $375,000 and a Daily Accommodation Payment or DAP had been assessed. The attorney’s plan was to sell the house and reduce the RAD and DAP payments to a more manageable level.

4. The nature of the conflict transaction is that the attorney wishes to sell the property to son KHW.

   Capacity

5. The applicant filed with the application a Health Professional Report by Dr Susan McDonald GP. Dr McDonald had known JLG for a period of 14 years. The doctor stated that the adult has a diagnosis of Alzheimer’s disease with depression and anxiety and generalised vascular disease. Dr McDonald was of the view that JLG lacked capacity to manage her financial affairs.

6. The family members present at the hearings agreed with the evidence in Dr McDonald’s Health Professional Report.

7. The Tribunal makes the following Findings of fact:

   a)JLG has been diagnosed with Alzheimer’s disease;

   b)This has severely affected her cognitive abilities; and

   c)JLG is unable to manage her financial affairs.

8. The presumption of capacity for financial matters is rebutted.  

   The conflict transaction

9. The core or primary obligation of an attorney is to act in the best interests of the adult.

10. KAR’s evidence was that she had obtained evidence from a valuer so that her son would be paying the market value for the property.

11. There was some tension between JLG’s children at the first hearing and the Tribunal adjourned the hearing to allow family members to have a discussion about the price and their willingness to sell the property to…