LPJ
[2011] QCAT 177
•4 May 2011
| CITATION: | LPJ [2011] QCAT 177 |
| PARTIES: | LPJ |
| APPLICATION NUMBER: | GAA1043-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 4 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application for compensation is dismissed. |
| CATCHWORDS: | ENDURING POWER OF ATTORNEY – where allegations against former attorney for breach of statutory obligations – where estate of deceased grantor of enduring power of attorney sought compensation from former attorney – where tribunal has no jurisdiction to determine an estate claim after death of grantor Powers of Attorney Act 1998, ss 106, 109A, 116(d) |
APPEARANCES and REPRESENTATION (if any):
The hearing was conducted on the papers in the absence of the parties in accordance with section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
On 13 February 2007 LPJ appointed GAP and LJM as his attorneys for personal, health and financial matters under an enduring power of attorney. The power to act as attorneys for financial matters commenced on 13 February 2007.
On 2 March 2010 the tribunal appointed The Public Trustee of Queensland as the administrator for LPJ for all financial matters under an interim appointment. That appointment overtook the powers for financial matters granted to the attorneys by the enduring power of attorney.
On 20 May 2010 the tribunal revoked the enduring power of attorney and appointed The Public Trustee of Queensland as administrator for LPJ for all financial matters until further order of the tribunal.
LPJ died on 28 June 2010. GAP is one of the executors of the estate of LPJ. Probate of the will of the deceased was granted in October 2010.
GAP in her role as executor of the estate of LPJ has lodged an application in the tribunal seeking an order that LJM pay compensation to the estate for losses caused by his failure to comply with his statutory obligations under the Powers of Attorney Act 1998 in the exercise of his powers as the attorney for LPJ.
Both GAP and LJM have provided the tribunal with written submissions as to the jurisdiction of the tribunal to determine this application. LJM submits that the application does not come within the tribunal’s jurisdiction. This application is unusual as neither the tribunal nor its predecessor, the Guardianship and Administration Tribunal, has in any earlier case made a determination on an application for compensation after the death of the grantor of the enduring document.
The tribunal prior to the death of LPJ had exercised jurisdiction in relation to him under the provisions of the Guardianship and Administration Act 2000 by appointing an administrator and under the provisions of the Powers of Attorney Act 1998 by revoking the enduring power of attorney dated 13 February 2007. The question to be determined is whether the tribunal’s jurisdiction under those Acts remains in existence after the death of LPJ.
Unlike the Supreme Court, the tribunal does not have general jurisdiction but has jurisdiction to deal with matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act.[1] The Guardianship and Administration Act 2000 is one of the enabling Acts for the tribunal. Section 81 of that Act provides that the tribunal has the functions given to it by that Act.
[1] Section 9(1) of the Queensland Civil and Administrative Tribunal Act 2009.
The functions of the tribunal, relevant to the application under consideration, are stated to be making declarations, orders or recommendations, or giving directions or advice, in relation to attorneys and in relation to enduring documents. Subsection 2 of section 81 clarifies that attorney means an attorney under an enduring document or a statutory health attorney.
[10] The definition of enduring document in the Guardianship and Administration Act 2000 is an enduring power of attorney or an advance health directive. Enduring power of attorney is further defined as an enduring power of attorney under the Powers of Attorney Act 1998.
[11] An enduring document is in existence from the time it is validly made to when it is revoked. Sections 46 to 59A of the Powers of Attorney Act 1998 provide the range of circumstances that result in an enduring document being revoked. One of those circumstances that will revoke an enduring document is the death of the grantor.[2]
[2] Section 51 of the Powers of Attorney Act 1998.
[12] Section 82(2) of the Guardianship and Administration Act 2000 provides that the tribunal has concurrent jurisdiction with the court for enduring documents and attorneys under enduring documents. Section 109A of the Powers of Attorney Act 1998 confers on the tribunal the same powers about enduring documents as the Supreme Court. One of those powers is found in section 116(d) of the Powers of Attorney Act 1998 which enables the tribunal to revoke an enduring document.
[13] Neither the Guardianship and Administration Act 2000 nor the Powers of Attorney Act 1998 includes a revoked enduring power of attorney in the definition of enduring document. When an enduring document is revoked, it would appear that as a consequence the tribunal’s powers about that enduring document come to an end unless some continuing functions have been given to the tribunal by either the Guardianship and Administration Act 2000 or the Powers of Attorney Act 1998.
[14] One such continuing function is found in section 138AA of the Guardianship and Administration Act 2000 which provides that the tribunal can give directions to a former attorney but restricts those directions to what is necessary because of the ending of the person’s appointment as attorney. If the tribunal’s powers conferred by section 81 of the Guardianship and Administration Act 2000 had already included the power to make orders about revoked enduring documents or former attorneys, a provision such as that found in section 138AA would not be necessary.
[15] The fact that a specific power was inserted into the Guardianship and Administration Act 2000 to enable the tribunal to deal with former attorneys confirms the conclusion that generally the tribunal’s powers to make orders about enduring documents and attorneys come to an end when the enduring document has come to an end.
[16] An action by an executor of a deceased estate claiming recovery of moneys from a former attorney whether by way of compensation or otherwise is an estate claim about which the tribunal has no jurisdiction. Such a claim can only be brought in the civil courts. The power to recover compensation by the estate has been expressly conferred on the courts by section 106 of the Powers of Attorney Act 1998 but that section does not have the effect of conferring jurisdiction to bring an estate claim in the tribunal. The functions of the tribunal set out in section 81 of the Guardianship and Administration Act 2000 do not include making orders in estate claims. If there is any inconsistency between that Act and the Powers of Attorney Act 1998, the provisions in the Guardianship and Administration Act 2000 prevail.[3]
[3] Section 8(3) of the Guardianship and Administration Act 2000.
[17] The tribunal is satisfied that the tribunal does not have jurisdiction to determine the application by the executor of the estate of LPJ for an order to compensate the estate for losses caused by the alleged failure of LJM to comply with his statutory obligations under the Powers of Attorney Act 1998 in the exercise of his powers as the attorney for LPJ. That application must be dismissed.
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