MDC - [2014] QCAT 338

CITATION:

MDC [2014] QCAT 338

PARTIES:

MDC

APPLICATION NUMBER:

GAA10733-33; GAA10734-13; GAA10737-13; GAA10738-13; GAA189-14; GAA190-14; GAA191-14; GAA192-14; GAA1120-14; GAA1121-14

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

10 February 2014

HEARD AT:

Gladstone

DECISION OF:

Member Beckinsale

DELIVERED ON:

10 July 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The following Enduring Power of Attorney for MDC is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000:

(a) The Enduring Power of Attorney dated 24 April 2013 appointing MJC and LGC as attorneys for financial, personal and health matters.

2. The Adult Guardian is appointed as guardian for MDC for decisions about the following personal matters:

(a) Accommodation;

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

(c) Health care;

(d) Provision of services.

3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one year.

4. The Public Trustee of Queensland is appointed as administrator for MDC for all financial matters.

5. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.

6. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.

7. This appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one year.

CATCHWORDS:

Guardianship – capacity of adult when EPA executed – whether appointed attorneys ineligible as health providers – conflict between attorneys and adult’s wife – appropriateness to be making decisions given conflict

Property Law Act 1974 (Qld)
Powers of Attorney Act 1998 (Qld) s 113(2), Schedule 1
Guardianship and Administration Act 2000 (Qld) ss 12(a), 14(1), 82(2), Schedule 4

APPEARANCES and REPRESENTATION (if any):

There was no attendance by MDC at the hearing. Active parties attending at the hearing were BSC and her legal representative Rio Ramos,MJC and LGC,RJ and HJ, Gina Do appearing for the Adult Guardian, Kim Walker appearing for the Public Trustee. Interested parties attending at the hearing were BT, JC, PS and NN. HD attended as the witness to an Enduring Power of Attorney document made by MDC. A Thai Interpreter for BSC was present.

REASONS FOR DECISION
Background

MDC is a gentleman of 73 years of age who has led an interesting life. His work as a marine engineer entailed his working overseas from time to time, particularly in southeast Asia. He and his wife LC had three children. LC died in 1991 and in 1994 MDC married a Thai national BSC. The marriage took place in Thailand and has not been registered in Australia. MDC has lived from time to time in Thailand and also in Australia. BSC has never stayed in Australia for any lengthy period of time travelling only on visitor visas and never applying for residency.
MDC’s Australian residence is in Gladstone in Central Queensland where his eldest son, MJC lives and practices as a general practitioner at a medical centre.…

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.

Continue reading MDC

Details

AGLC: MDC [2014] QCAT 338
Case: [2014] QCAT 338
Decision Date

CaseChat Overview and Summary

The Queensland Civil and Administrative Tribunal was asked to consider the guardianship and administration of the affairs of MDC, a 73-year-old man with impaired capacity due to dementia. The tribunal had to decide on the validity of an enduring power of attorney executed by MDC in 2013 and whether new appointments should be made for his personal and financial matters. The dispute arose between MDC's wife, BSC, and his son, MJC, who was appointed as an attorney in the power of attorney. The tribunal had to determine whether MDC had the capacity to execute the power of attorney, whether the attorneys appointed were eligible and appropriate, and if new appointments should be made. The tribunal found that MDC lacked the capacity to make the 2013 power of attorney due to his advanced dementia but found that the presumption of capacity was not rebutted at the time of execution. However, the tribunal ruled that MJC and LGC were ineligible to be appointed as attorneys due to their roles as health providers for MDC. The tribunal also found that given the conflict between the parties, MJC and LGC were unsuitable to be appointed as guardians or administrators. The Adult Guardian was appointed as guardian for personal decisions and the Public Trustee as administrator for financial matters. The tribunal's orders included invalidating the 2013 power of attorney, appointing the Adult Guardian and the Public Trustee, and directing the Public Trustee to provide accounts to the tribunal when requested. The appointments are to be reviewed in one year.

Orders