SUPREME COURT OF QUEENSLAND
CITATION:
Lambourne and Ors v Marrable and Ors [2023] QSC 219
PARTIES:
Kate Lambourne
(First Applicant)
And
Luke John Marrable
(Second Applicant)
And
Helen Lambourne
(Third Applicant)
vHarvey Warren Marrable
(First Respondent)
And
Philip Murphy
(Second Respondent)
And
Jason Campbell McGifford
(Third Respondent)
And
Brooke Leila McGifford
(Fourth Respondent)FILE NO/S:
BS 9948 of 2022
DIVISION:
Trial Division
PROCEEDING:
Originating Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
9 October 2023
DELIVERED AT:
Brisbane
HEARING DATES:
11 October 2022, 12 October 2022, 13 October 2022, 19 October 2022, 23 November 2022, 24 November 2022, 25 November 2022, 28 November 2022, 29 November 2022, 30 November 2022, 6 December 2022, 12 December 2022 and 27 January 2023
JUDGE:
Martin SJA
ORDER:
I will hear the parties on the appropriate form of order and on costs
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where there is a statutory presumption of capacity – where there is an enduring power of attorney appointing family members as attorneys – where the donor is declared by medical practitioners to have lost capacity – where an enduring power of attorney is declared by a medical practitioner to have been activated – where a further enduring power of attorney is made after the activation of an enduring power of attorney – where the further enduring power of attorney removed family members as attorneys – where there are statutory obligations by a power of attorney – where a donor disputes the loss of capacity and the activation of an enduring power of attorney – whether the further enduring power of attorney is valid – whether an enduring power of attorney has been activated – whether an enduring power of attorney is the correct enduring power of attorney to be activated – whether the enduring power of attorney is still active
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – REVIEW, REVOCATION, ETC – where there is a statutory presumption of capacity – where a medical practitioner declares a donor to lack capacity – where a medical practitioner declares an enduring power of attorney to be activated – where the donor disputes the loss of capacity – where the donor makes a further enduring power of attorney – where applicants dispute the validity of the further enduring power of attorney on grounds of capacity – whether the donor had impaired capacity to make new enduring power of attorney – whether the applicants have rebutted the statutory presumption of capacity to revoke enduring power of attorneys
Conveyancing Act 1919 (NSW)
Evidence Act 1977 (Qld) s 92
Guardianship and Administration Act 2000 (Qld) ss 250
Powers of Attorney Act 1985 (United Kingdom), s 6(5)(a)
Powers of Attorney Act 1998 (Qld), ss 6A, 6C, 41, 47, 50, 111, 111A, 113, 115
Powers of Attorney Act 2003 (NSW)
Protected Estates…
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- Case
- [2023] QSC 219
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the donor had the capacity to make the second enduring power of attorney, whether the second enduring power of attorney was valid, and whether the first enduring power of attorney had been activated. The court was required to consider the statutory presumption of capacity, the statutory obligations of an attorney, and the medical evidence presented by the parties. The court also had to consider the legal principles governing the validity of enduring powers of attorney and the circumstances in which they may be revoked.
The court found that the donor did not have the capacity to make the second enduring power of attorney, and therefore it was invalid. The court also found that the first enduring power of attorney had not been activated, and that the Lambourne family remained the valid attorneys for the donor. The court rejected the medical evidence presented by the Marrable family, finding that it was insufficient to rebut the statutory presumption of capacity. The court held that the statutory presumption of capacity could only be rebutted by clear and convincing evidence, and that the evidence presented by the Marrable family did not meet this standard. The court further held that the statutory obligations of an attorney were not triggered unless and until an enduring power of attorney was activated, and that the Lambourne family had not breached any such obligations.
The court made orders that the second enduring power of attorney was invalid and of no effect, and that the Lambourne family remained the valid attorneys for the donor. The court further ordered that the parties would be heard on the appropriate form of order and on costs. The court did not make any orders regarding the costs of the proceedings.
Orders
Orders of the court
I will hear the parties on the appropriate form of order and on costs
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.