KVJD v KVFR
[2011] QCATA 317
•14 October 2011
| CITATION: | KVJD v KVFR & Anor [2011] QCATA 317 |
| PARTIES: | KVJD (Applicant/Appellant) |
| v | |
| KVFR KVGA (Respondents) |
| APPLICATION NUMBER: | APL244-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President Mr Ron Joachim, Member |
| DELIVERED ON: | 14 October 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for leave to appeal is dismissed. |
| CATCHWORDS: | APPEAL– ADULT GUARDIANSHIP MATTER – ENDURING POWER OF ATTORNEY – Where applicant seeks declaration as to validity of an Enduring Power of Attorney – where relief sought unable to be provided as principal died before matter determined – where applicant did not lodge submissions Guardianship and Administration Act 2000, s 242 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
On 28 March 2011 the Queensland Civil and Administrative Tribunal made orders in respect of KVRJ. The Tribunal dismissed an application by KVJD for an adjournment. KVJD is one of KVRJ’s sons.
The Tribunal also declared invalid an enduring power of attorney dated 1 June 2007 which appointed KVJD and his brothers KVFR and KVGA as attorneys for financial, personal and health matters.
The Tribunal declared valid an enduring power of attorney dated 8 July 1998 appointing KVFR and KVGA as attorneys for personal and financial matters. The Tribunal also dismissed the applications for the appointment of both a guardian and administrator for KVRJ.
On 11 May 2011 KVJD filed an application for leave to appeal or appeal with the Tribunal. In summary the basis of his appeal was that he was unaware that he could require his father’s solicitor, Mr Paul Hede to appear to give evidence as to the validity of the enduring power of attorney dated 1 June 2007. In other material before the Tribunal KVJD claims that his father executed this enduring power of attorney appointing all three brothers. He claims that his brothers KVFR and KVGA have not accepted the enduring power of attorney. He further claims that he signed the enduring power of attorney accepting his appointment and that this 2007 enduing power of attorney would revoke the enduring power of attorney of 8 July 1998. The document of 1 June 2007 on the Tribunal file has not been executed by KVRJ nor accepted by any of the attorneys.
The parties made the Tribunal aware that KVFR and KVGA as attorneys under the 1998 enduring power of attorney had commenced proceedings in the Queensland Supreme Court to remove KVJD from property owned by the principal KVRJ. The Court had subsequently made orders that the application brought by the attorneys was to be adjourned pending the decision of this Tribunal about the validity of the 1 June 2007 enduring power of attorney.
At a directions hearing on 31 August the Tribunal declared that section 242 of the Guardianship and Administration Act 2000 does not apply to this application for leave to appeal thereby allowing the Tribunal to consider the application, notwithstanding the matter before the Court. The Tribunal further directed that KVJD file in the Tribunal a signed statement of evidence from Mr Paul Hede or KVJD’s summary of the evidence that he expected Mr Hede would give if called and an explanation for not providing the Tribunal with a signed statement from Mr Hede. The Tribunal also directed him to provide a written confirmation that this is the only evidence that he would wish to lead on appeal.
The Tribunal directed that this material be submitted by 21 September 2011. The solicitors for the respondent brothers advised the registry that KVRJ passed away on 20 September.
KVJD sought relief through his appeal as follows:
a)To appoint the Adult Guardian and/or The Public Trustee of Queensland;
b)To have the enduring power of attorney of 1998 rescinded;
c)To order the respondents pay back all or any monies paid out of the adult’s account to various solicitors they have engaged.
Relief in respect of the first two of the matters above can not be provided as a result of the death of the adult. An enduring power of attorney ceases to have effect on the death of the principal (section 51 Powers of Attorney Act 1998) and the Tribunal can only appoint a guardian or an administrator whilst an adult is alive. Moreover KVJD has filed no submissions with the Tribunal as directed nor has he sought an extension of time.
[10] Any relief sought from the actions of the attorney can be obtained through further action in the Supreme Court in respect of KVRJ’s estate.
[11] Accordingly the application for leave to appeal is dismissed.
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