NMB - [2012] QCAT 300

CITATION:

NMB [2012] QCAT 300

PARTIES:

NMB

APPLICATION NUMBER:

GAA9734-11

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

10 February 2012 and 24 May 2012

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

18 June 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

RW as the attorney for NMB is authorised to enter into a client agreement with XYZ for the payment of fees by NMB for work carried out by RW as her attorney and for work carried out by other members and staff of the firm for NMB.

CATCHWORDS:

ENDURING POWER OF ATTORNEY – where attorney is a legal practitioner who has acted for the principal for many years – where grant of power did not include an authorisation of conflict transactions – where best interests of principal for conflict transaction to be authorised

Powers of Attorney Act 1998, ss 73, 118

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

RW appeared on his own behalf

REASONS FOR DECISION

NMB granted an Enduring Power of Attorney to RW on 17 September 1998 for personal, health and financial matters. RW is a practising solicitor and is a member of a legal firm. NMB and her late husband had been clients of the legal firm for about 40 years. RW has been attending to all of NMB’s affairs for almost 20 years, particularly since the death of her husband in 1994.
Evidence presented to the tribunal indicated that NMB had wanted to appoint an attorney whom she knew and trusted to provide for her personal and financial welfare when she became incapable. NMB had no children. She chose RW as her attorney as he was her longstanding solicitor and well known to her for his professional skills and personal integrity.
The document signed by NMB in 1998 did not contain any express authorisation for her attorney to enter into conflict of interest transactions or for him to charge remuneration for discharging his role as her attorney. Under section 73 of the Powers of Attorney Act 1998 an attorney for a financial matter may enter into a conflict transaction only if the principal has authorised the conflict transaction or has authorised conflict transactions generally. However section 118 of that Act provides QCAT with power to authorise an attorney to undertake a transaction that the attorney is not otherwise authorised to undertake.
RW applied to the tribunal for authorisation to enter into a client agreement as attorney for NMB with his legal firm to permit charging of professional fees to NMB for services carried out by his firm. During the hearing it became apparent that RW was in essence seeking authorisation to charge NMB remuneration for acting as her attorney as the work involved to date and anticipated future work did not fall squarely within the concept of providing legal professional services to a client.
Evidence that NMB had impaired capacity for financial matters had been provided to QCAT. The effect of that evidence would be to prevent NMB from giving authorisation herself to the conflict transaction. Nevertheless NMB had views she wanted to express. She attended the hearing and she was able to inform the tribunal that she had always expected that RW would charge remuneration for the work he performed as her attorney. She was in agreement with the position that he should be permitted to recover remuneration for the work he performed, whether as her solicitor or as her attorney.
RW gave evidence that the work he had performed and that he expected to perform into the future as attorney for NMB involved making telephone calls, sending and receiving letters and emails, negotiations with her bank, perusal and preparation of documents, negotiations with care providers and attendances on NMB to consult as to her views on decisions. A list of services by the attorney performed in November 2011, by way of example, involved over 70 items of work being attendances in person or by telephone or the receipt or sending of correspondence directly related to personal or financial decision making for NMB. Most of the items of work in November 2011 would not be commonly regarded as legal professional services. It also appears that the extent of the work in November 2011 was unusual as the work coincided with a material change in NMB’s decision making capacity and with the need to place NMB into residential aged care accommodation.
The question to be determined was whether QCAT should authorise RW to enter into a conflict transaction which would permit him to charge NMB fees for the work he and his firm has carried out and will carry out in the future. The work may on occasions be legal professional services but more commonly will be work associated with decision making and implementing decision making as her attorney.
I accept the evidence of NMB that she supports the outcome being sought by RW. It is likely that NMB would have expressly authorised RW entering into this particular conflict transaction if in 1998 it had been foreseen that client agreements would be required as part of the usual arrangements for the delivery of services by law firms. She has a sophisticated knowledge of the commercial world from her former experiences as a person of business with her late husband.
As the grant of powers for decision making about both personal and financial matters under the Enduring Power of Attorney did not commence until such time as NMB’s capacity became impaired, it was not surprising that no one re-considered the terms of the grant or thought of revising the terms until the time arrived for the attorney to commence exercising the powers. Then it was too late to incorporate a clause authorising conflict transactions.
Section 118 of the Powers of Attorney Act 1998 sets out a best interests test when the tribunal considers authorising an action not otherwise permitted under an Enduring Power of Attorney. RW gave frank evidence that he would not be able to continue as attorney for NMB if he were not permitted to charge remuneration for his work as attorney. He has obligations to his partners to achieve a fee budget and he would find it difficult to meet his obligations if considerable time were to be spent in non remunerative activities as attorney. RW gave evidence as to the general financial position of NMB and as to her ability to afford to pay fees for his services.
On the facts presented to the tribunal, I was satisfied that it was in the best interests of NMB for RW to continue in the role as her attorney. He was chosen by NMB on the basis of his professional skills and personal integrity. She has no close family who have indicated a willingness to take on a decision making role for her. Evidence was given to the tribunal that her niece and a long standing friend both supported RW continuing in the role as attorney and being remunerated in that role. I accept the evidence that RW will not continue as attorney if he cannot be remunerated for his work.
Based on a finding that it is in the best interests of NMB to have RW continue as her attorney, I authorise RW entering into a conflict transaction whereby he signs a client agreement as NMB’s attorney with his firm for fees to be charged to her for the work he does as attorney as well as for services that his firm may carry out for NMB.
That authorisation is merely a starting point of course. RW is obliged by section 66 of the Powers of Attorney Act 1998 to use reasonable diligence in order to be satisfied as attorney that the fee rates and other terms in the client agreement are appropriate. He must keep accurate records and accounts of all dealings and transactions made under the power and he is liable to pay compensation for any loss caused by a failure to comply with his statutory obligations.