OHV - [2014] QCAT 56 | CaseChat AU

CITATION:

OHV [2014] QCAT 56

PARTIES:

OHV

APPLICATION NUMBER:

GAA1038-14

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

20 February 2014

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

20 February 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Enduring Power of Attorney of OHV dated 2 December 2003 is valid.

2. Paragraph 4 of the Enduring Power of Attorney is revoked.

3. The Enduring Power of Attorney grants power to KLC and RBC as the attorneys for OHV to make decisions about financial, personal and health matters for OHV.

4. The Enduring Power of Attorney is now operative for all financial, personal and health decisions for OHV.

5. KLC and RBC must re-sign the original Enduring Power of Attorney document by way of acceptance of the grant of powers made to them in the Enduring Power of Attorney.

CATCHWORDS:

ENDURING POWER OF ATTORNEY – where inconsistency in Enduring Power of Attorney – where witness failed to sign at required part of document – where attorneys purported to accept the grant of powers before grant was made

ENDURING POWER OF ATTORNEY – where tribunal has powers of the court – where power to declare an enduring document as valid – where power to revoke part of an enduring document – where power to declare enduring document has begun

ENDURING POWER OF ATTORNEY – where attorneys can re-sign acceptance after principal has lost capacity

Powers of Attorney Act 1998 ss 31, 44, 109A, 110, 111,113, 115, 116(d), 118(1), schedule 3
Guardianship and Administration Act 2000 s 81

Whitney v National Australia Bank [2007] QSC 397

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 (Qld) (QCAT Act).

REASONS FOR DECISION

OHV made an Enduring Power of Attorney on 2 December 2003 in which she appointed her daughters, KLC and RBW, as her attorneys. Since 2003, RBW has resumed use of her maiden name, RBC. OHV ticked the box on page 8 of the document by which she indicated that she had granted powers to her attorneys to make decisions for her about financial, personal and health matters. She specified in paragraph 5 on page 9 of the document that the power for her attorneys to make financial decisions commenced when she had lost capacity to make decisions.
Unfortunately OHV had also ticked the box at paragraph 4 on page 9 of the document that indicated that she had not given her attorneys power to make decisions about financial matters. According to the evidence provided to QCAT, it is no longer possible due to a progressive medical condition for OHV to rectify any inconsistency in the Enduring Power of Attorney document or to clarify what she had intended by that document. An application has been made to QCAT for orders about the Enduring Power of Attorney under the Powers of Attorney Act 1998 (Qld) (the POA).[1]
[1] POA ss 109A…

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 OHV

Details

AGLC: OHV [2014] QCAT 56
Case: [2014] QCAT 56
Decision Date: 20 February 2014

CaseChat Overview and Summary

In the matter of the Enduring Power of Attorney of OHV, the court was presented with a dispute concerning the validity of the document in question. The primary issue revolved around whether the document could be considered valid, given that one of the witnesses had failed to sign at the required part of the document and the attorneys had accepted their roles prior to the grant of powers. The court was also required to determine whether the tribunal had the authority to revoke certain parts of the enduring document, as well as whether the attorneys could re-sign their acceptance after the principal had lost capacity.

The legal issues that the court had to decide included whether the Enduring Power of Attorney was valid despite the witness's failure to sign, and if the tribunal had the power to declare a part of the enduring document invalid or revoke it. Additionally, the court had to consider whether the attorneys could re-sign their acceptance after the principal had lost capacity, and whether the Enduring Power of Attorney could be deemed operative for all financial, personal and health decisions.

The court found that the Enduring Power of Attorney of OHV dated 2 December 2003 was valid, and that paragraph 4 of the document was revoked. The court also determined that the attorneys for OHV, KLC and RBC, had been granted power to make decisions about financial, personal and health matters for OHV. The Enduring Power of Attorney was now deemed operative for all such decisions. The court further ruled that KLC and RBC must re-sign the original Enduring Power of Attorney document by way of acceptance of the grant of powers made to them in the Enduring Power of Attorney.

The court's final orders included the validation of the Enduring Power of Attorney, the revocation of paragraph 4, and the grant of power to KLC and RBC to make decisions about OHV's financial, personal and health matters. Furthermore, the Enduring Power of Attorney was declared operative for all such decisions, and KLC and RBC were required to re-sign the document as acceptance of the grant of powers.

Orders

Orders of the court

1. The Enduring Power of Attorney of OHV dated 2 December 2003 is valid.

2. Paragraph 4 of the Enduring Power of Attorney is revoked.

3. The Enduring Power of Attorney grants power to KLC and RBC as the attorneys for OHV to make decisions about financial, personal and health matters for OHV.

4. The Enduring Power of Attorney is now operative for all financial, personal and health decisions for OHV.

5. KLC and RBC must re-sign the original Enduring Power of Attorney document by way of acceptance of the grant of powers made to them in the Enduring Power of Attorney.

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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