MNU - [2024] QCAT 165

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

MNU [2024] QCAT 165

PARTIES:

In applications about matters concerning MNU

APPLICATION NOS:

GAA8903-23, GAA10299-23

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

17 April 2024

HEARING DATES:

25 October 2023, 16 January 2024, 25 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

1. The application for the appointment of an administrator is dismissed.

2. The application for an order about an enduring power of attorney is dismissed.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where adult has Parkinson's disease – whether presumption of capacity rebutted – whether administrator should be appointed overtaking enduring power of attorney

Guardianship and Administration Act 2000 (Qld), s 5, s 12, Schedule 4

Powers of Attorney Act 1998 (Qld), s 41, s 67, s 73, Schedule 3

Adamson v Enever & Anor [2021] QSC 221

Lambourne and Ors v Marrable and Ors [2023] QSC 219

APPEARANCES & REPRESENTATION:

Adult:

Represented by ADA Law (J Abraham)

Applicants:

Represented by P Hackett of counsel instructed by JMR Lawyers and Mediators (G McKinnon)

Attorney (daughter of adult)

Represented by Hawthorn Cuppaidge and Badgery (N Collins)

Attorney (‘SNG’)

Self-represented

Public Trustee of Queensland:

Represented by D Gebauers and F Capra

REASONS FOR DECISION

Introduction

This case concerns decision-making arrangements for a man aged 85, referred to here as ‘MNU’. He has Parkinson's disease.

Background

MNU was born in Italy but has lived in Australia for many years. His English is limited. Interpreters were used in the tribunal hearing. MNU was widowed in December 2023. There are four children of the marriage: three sons (‘SNC’, ‘SNF’ and ‘SNG’) and a daughter.
MNU and his wife moved from their home into a retirement village in August 2022, but then moved into an aged care facility in March 2023.
MNU’s main assets are:
(a)funds worth about $1.5m in bank accounts, term deposits and other financial investments;
(b)his refundable accommodation deposit, paid to the aged care facility, worth $650,000;
(c)the former family home, for which the tribunal does not have a valuation, but it may be worth around two or three million dollars;
(d)entitlement to some $299,000 from the disposal of the retirement village unit; and
(e)a car.
The wife’s estate is yet to be administered. It appears that the only substantial asset is the wife’s $650,000 refundable accommodation deposit. MNU is the beneficiary under her will.
MNU and his wife each had enduring powers of attorney appointing their four children as attorneys, with a requirement for at least three attorneys to agree to any decision. This arrangement was in place for MNU’s wife at the time of her death. It is common ground that the attorneys needed to act for their mother from September 2022, when the wife’s geriatrician, Dr Jane Mikli, certified that the wife had lost capacity due to dementia.
Difficulties arose with the decision-making…

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 MNU

Details

AGLC: MNU [2024] QCAT 165
Case: [2024] QCAT 165
Decision Date: 17 April 2024

CaseChat Overview and Summary

The case before the court involved a dispute regarding the administration of an adult's finances and property, in light of the adult's diagnosis of Parkinson's disease. The applicant sought the appointment of an administrator to manage the adult's financial affairs, arguing that the adult's capacity had been impaired to a degree that rendered them unable to manage their own affairs. The court also considered an application to declare that an existing enduring power of attorney was not valid. The respondent to the application was the adult in question, who was represented by their enduring power of attorney.

The legal issues that arose in this case centred on the presumption of capacity of the adult and whether this presumption had been successfully rebutted by the applicant. The court also needed to determine if the appointment of an administrator was warranted, and if so, whether this should occur in preference to the enduring power of attorney. The key question was whether the adult's condition, despite the diagnosis of Parkinson's disease, was such that it impaired their capacity to manage their own affairs to a degree that necessitated the intervention of the court.

In considering these issues, the court determined that the presumption of capacity had not been successfully rebutted by the applicant. The court found that the adult demonstrated a sufficient understanding of their financial affairs and the ability to make informed decisions. The court was satisfied that the adult's capacity to manage their own affairs had not been impaired to the extent required for the appointment of an administrator. Consequently, the court dismissed both the application for the appointment of an administrator and the application concerning the enduring power of attorney.

Orders

Orders of the court

1. The application for the appointment of an administrator is dismissed.

2. The application for an order about an enduring power of attorney is dismissed.

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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