MTJ - [2014] QCAT 195

CITATION:

MTJ [2014] QCAT 195

PARTIES:

MTJ

APPLICATION NUMBER:

GAA077-14; GAA1569-14

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

6 March 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. ABC and DEF as the appointed administrators for MTJ are hereby authorised to enter the conflict transaction being: the sale of one half interest in the house owned by MTJ to DEF for $225,000.

2. This authorisation is conditional on the house being owned as tenants-in-common in equal shares by MTJ and DEF after sale of one half share to DEF.

3. This authorisation is conditional on MTJ’s one half share in the house being free from any mortgage taken out by DEF to secure the borrowing by her of part or all of the purchase price of $225,000.

4. This authorisation is conditional on the sale of one half share being completed and payment in full of $225,000 being made to MTJ by 30 April 2014.

5. If the sale and payment of $225,000 are not completed by that date, the authorisation for the sale of one half interest in the house to DEF will lapse.

6. The Enduring Power of Attorney dated 23 February 2000 granted by MTJ is declared invalid.

CATCHWORDS:

GUARDIANSHIP – where administrators want to deal with real property of adult with impaired capacity – where proposed transaction constitutes a conflict of interest between the adult and his administrators

CONFLICT TRANSACTION – where administrators can only enter into conflict transaction if authorised by the tribunal – where sale of interest in house to one of the administrators would provide funds for care of adult

CONDITIONS OF AUTHORISATION – where sale of partial interest in house authorised subject to conditions – where holding must be as tenants-in-common – where holding of adult must not be subject to mortgage – where time limit on authorisation

ENDURING POWER OF ATTORNEY – where enduring document did not contain witness certification – where non compliance with statutory requirements – where finding that enduring document was invalid

Guardianship and Administration Act 2000 ss 11, 37,152 and 7(4) of part1 of schedule 1
Powers of Attorney Act 1998 ss 44 and 70

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

MTJ was found to have impaired decision making capacity by this tribunal on 12 November 2012. His daughters, ABC and DEF, were appointed jointly and severally to be his administrators for all financial matters.
MTJ had lived at home until his increasing care needs required his placement into residential aged care. The accumulated savings and financial resources of MTJ are being used up by his care and accommodation fees and the administrators recognised a need to consider selling the house to access funds for MTJ’s ongoing care and accommodation fees.
DEF has resided in the…

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 MTJ

Details

AGLC: MTJ [2014] QCAT 195
Case: [2014] QCAT 195
Decision Date

CaseChat Overview and Summary

MTJ, an adult with impaired decision-making capacity, has two daughters, ABC and DEF, who were appointed as his administrators. The administrators sought to sell half of MTJ's house to DEF to fund his care needs. The Queensland Civil and Administrative Tribunal (QCAT) considered the application on the papers and granted authorisation for the sale under certain conditions. The tribunal also declared the Enduring Power of Attorney granted by MTJ to be invalid.

The tribunal was required to determine whether the proposed sale of half of MTJ's house to DEF, one of his administrators, constituted a conflict of interest and, if so, whether the sale should be authorised. The tribunal was also required to consider the validity of the Enduring Power of Attorney granted by MTJ to his daughters.

The tribunal authorised the sale of half of MTJ's house to DEF, subject to certain conditions. The tribunal was satisfied that the sale would provide funds for MTJ's immediate care needs, although it might reduce the future market value of MTJ's remaining interest in the house. The tribunal noted that the Enduring Power of Attorney did not comply with statutory requirements and was therefore invalid. As a result, there are no formal decision-making arrangements in place for personal matters for MTJ, although his daughters can make personal decisions informally and healthcare decisions as statutory health attorneys. If they require formal authority to make any personal decisions, they can apply for appointment as guardians if the decision-making needs of MTJ cannot be met in any other way.

Orders