KCR - [2018] QCAT 185

CITATION:	KCR [2018] QCAT 185
PARTIES:	KCR (Adult)
APPLICATION NUMBER:	GAA12019-16; GAA12020-16; GAA1609-17; GAA1612-17
MATTER TYPE:	Guardianship and administration matters for adults
HEARING DATES:	10 February 2017, 25 May 2017; 31 August 2017 and 11 September 2017
HEARD AT:	Southport
DECISION OF:	Member Joachim
DELIVERED ON:	27 February 2018
DELIVERED AT:	Brisbane
ORDERS MADE:	GUARDIANSHIP 1. The appointment of The Public Guardian as guardian for KCR for the following personal matters is continued: (a) Accommodation; (b) With whom KCR has contact and/or visits; (c) 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. ADMINISTRATION 3. The appointment of The Public Trustee of Queensland as administrator for KCR for all financial matters is continued. 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. ENDURING POWER OF ATTORNEY 7. The following Enduring Power of Attorney for KCR is revoked pursuant to s116(d) of the *Powers of Attorney Act 1998* and s82(2) of the *Guardianship and Administration Act* 2000: (a) The Enduring Power of Attorney dated 27 June 2013 appointing NAS and Anthony Thomas Delaney as attorneys for financial, personal and health matters.
CATCHWORDS:	GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – Enduring Powers of Attorney – where adult gives fiancée an Enduring Power of Attorney – where adult’s assets of over $1.4 million are dissipated within three years – where property is purchased by attorney in her name with adult’s finances – where attorney receives full benefit of sale of adult’s property – where attorney claims not to have used Enduring Power of Attorney – where attorney claims adult capable of property transactions – where attorney aware of adult’s memory problems and diagnosis of dementia – where contact supervisor expresses concerns about attorney’s behaviour – whether attorney knew of adult’s incapacity – whether undue influence exists – whether attorney in breach of Powers of Attorney Act 1998 (Qld) – whether there is a need for appointments Guardianship and Administration Act 2000 (Qld), s 12, s 31, Schedule 4 Powers of Attorney Act 1998 (Qld), s 87 Smith v Glegg [2004] QSC 443
APPEARANCES:
Stephanie Duggan, Official Solicitor’s Office represented the Public Trustee of Queensland Applicant Blaire Grant represented herself NAS was represented by: Mr Eugene O’Sullivan (25 May 2017 Mr J McNab of Counsel, instructed by Oden Legal (31 August 2017 and 11 September 2017) Mr L.D. Bowden of Counsel, instructed by Mr N Radlich (for final submissions)

REASONS FOR DECISION

KCR was born in April 1938. He has dementia and at the time of the last hearing on 11 September 2017, was placed in temporary nursing home care on the Gold Coast, awaiting a decision about permanent care.
He came to the attention of…

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

AGLC: KCR [2018] QCAT 185
Case: [2018] QCAT 185
Decision Date: 27 February 2018

CaseChat Overview and Summary

The matter before the tribunal involved KCR, an adult who had appointed an Enduring Power of Attorney (EPA). The issue was whether the attorney, NAS, had misused the EPA, leading to the dissipation of over $1.4 million of KCR's assets. The tribunal was required to determine whether NAS was aware of KCR's incapacity, whether there was undue influence, and if NAS had breached the Powers of Attorney Act 1998 (Qld). The tribunal also needed to decide if there was a need for appointments of a guardian and administrator for KCR.

The court examined the circumstances surrounding the dissipation of KCR's assets, including the purchase of property by NAS in her name using KCR's finances. NAS claimed she had not used the EPA and that KCR was capable of property transactions, despite being aware of KCR's memory problems and dementia diagnosis. A contact supervisor also expressed concerns about NAS's behaviour. The tribunal had to assess whether NAS knew of KCR's incapacity and whether undue influence existed.

The tribunal found that NAS had misused the EPA, leading to the dissipation of KCR's assets. The court concluded that NAS was aware of KCR's incapacity and had undue influence over KCR. The tribunal revoked the Enduring Power of Attorney dated 27 June 2013, appointing NAS and Anthony Thomas Delaney as attorneys for financial, personal, and health matters. The tribunal continued the appointment of The Public Guardian as guardian for KCR for personal matters and The Public Trustee of Queensland as administrator for all financial matters. The tribunal also directed the administrator to provide accounts to the Tribunal when requested.

The tribunal's final orders included the continuation of the appointments of The Public Guardian and The Public Trustee of Queensland, the revocation of the Enduring Power of Attorney, and the direction for the administrator to provide accounts to the Tribunal when requested.

Orders

Orders of the court

GUARDIANSHIP

1. The appointment of The Public Guardian as guardian for KCR for the following personal matters is continued:

(a) Accommodation;

(b) With whom KCR has contact and/or visits;

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

ADMINISTRATION

3. The appointment of The Public Trustee of Queensland as administrator for KCR for all financial matters is continued.

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.

ENDURING POWER OF ATTORNEY

7. The following Enduring Power of Attorney for KCR is revoked pursuant to s116(d) of the Powers of Attorney Act 1998 and s82(2) of the Guardianship and Administration Act 2000:

(a) The Enduring Power of Attorney dated 27 June 2013 appointing NAS and Anthony Thomas Delaney 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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