OHV
[2014] QCAT 56
•20 February 2014
| 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 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 and 110; Guardianship and Administration Act 2000 (Qld) s 81.
Dr Sam Hutson, geriatrician, on 23 October 2013 certified that OHV no longer had capacity for making decisions due to dementia. Dr David Raine, who is the general practitioner for OHV, also reported on 25 January 2014 that OHV is unable to understand and act on information about her affairs and that in his opinion she cannot make any complex decisions or make an Enduring Power of Attorney at this time due to her dementia.
I accept that evidence. Capacity for decision making is defined in schedule 3 of the POA as meaning that a person is capable of understanding the nature and effect of decisions, of freely and voluntarily making decisions and of communicating the decisions. I am satisfied that the evidence establishes that OHV is no longer capable of understanding the nature and effect of making decisions about her affairs, including understanding what is involved in making another Enduring Power of Attorney or of making changes to her existing Enduring Power of Attorney. I conclude that OHV has impaired decision making capacity for financial, personal and health matters.[2]
[2] POA s 111.
I am satisfied that, as a consequence of OHV having impaired decision making capacity, the authority of the attorneys to make decisions for OHV has commenced.[3] However the attorneys have encountered practical difficulties when attempting to exercise the powers granted to them. Questions about the validity and effectiveness of the Enduring Power of Attorney have been raised by some institutions and persons who have been asked to carry out decisions that the attorneys want to make for OHV.
[3] POA s 115.
It is apparent from the face of the enduring document that OHV had granted her attorneys the power to make decisions about financial matters. She specifically limited the exercise of financial decision making power until such time as she had lost capacity to make her own decisions. It would make no sense to include that specific limitation, made I assume in her own handwriting, and yet not grant the power about which that limitation was directed. Paragraph 4 of the enduring document is inconsistent with paragraphs 1 and 5 of the enduring document.
I am satisfied that the grant of power by OHV to her attorneys to make financial decisions was intended to be made and was a valid grant of power. In order to remove any doubt about the grant of power, the inconsistency brought about by the box ticked in paragraph 4 is best resolved by an order that paragraph 4 is revoked and is accordingly removed by order of this tribunal from the enduring document under section 116(d) of the POA.
The applicants have also raised the question of whether the Enduring Power of Attorney has been validly witnessed in accordance with the provisions of the POA. A Justice of the Peace had certified that OHV had signed the enduring document in his presence on 2 December 2003. However the document has two separate places where the witness should sign – on page 10 and on page 11. The Justice of the Peace only signed on page 11 of the enduring document.
Section 44 of the POA sets out the formal requirements for a validly made Enduring Power of Attorney. The document must be in the approved form, signed by the principal, signed and dated by an eligible witness and must contain a certificate signed by the witness as to the document being signed in the presence of the witness and as to the principal appearing to have the capacity to make the enduring document.
The Justice of the Peace is an eligible witness under the POA.[4] The enduring document made by OHV was signed and dated by the Justice of the Peace and there was a signed certification by the Justice of the Peace in the terms required by the POA. While the form does require that the witness place a signature at two separate places on the form, compliance with the requirements of s 44 of the POA can be achieved with a single signature and date under the certification clauses on page 11 of the form.
[4] POA s 31.
I am satisfied that the absence of the signature of the witness on page 10 of the enduring document does not invalidate the enduring document. There has been adequate compliance with the requirements of the POA in the creation of the Enduring Power of Attorney granted by OHV on 2 December 2003. I am satisfied that the enduring document is validly made and is a valid Enduring Power of Attorney.
One issue remains to be resolved. Section 44(8) of the POA provides that an enduring document is effective in relation to an attorney only if the attorney has accepted the appointment by signing the enduring document.
The attorneys purported to accept the appointment on 1 December 2003. As the grant of powers to the attorneys had not been made by 1 December 2003 but made on the following day, the acceptance required by section 44(8) has not been given to date. OHV has lost capacity for decision making. Questions have been raised as to whether the attorneys can now formally accept the grant of powers so that the enduring document is effective.
The Supreme Court in Whitney v National Bank of Australia[5] has already considered issues in similar terms to the issue raised in OHV’s Enduing Power of Attorney. Justice Ann Lyons stated that an enduring power of attorney is made when the requirements in subsections 1 and 3 of section 44 are met. Once made, the powers granted by the enduring power of attorney are subject to acceptance by the attorney and are exercisable thereafter.
[5] [2007] QSC 397.
Justice Lyons noted that an enduring power of attorney is not revoked by the principal losing capacity after it is made. The authorisation to the attorneys is not withdrawn or nullified if the principal loses capacity after the document is executed. The giving of a power of attorney is a unilateral act. Justice Lyons was satisfied that the validity of a power of attorney does not depend on acceptance by the attorney and that the powers granted to the attorney are complete when they are brought into existence.
Applying that authority, I find that the powers granted in the Enduring Power of Attorney dated 2 December 2003 are validly granted and that the attorneys were able to accept the grant of powers at any time after 2 December 2003. However the exercise of the powers by them cannot be effective until they have formally accepted the powers by signing the enduring document on the relevant page. They have not done so to date. They must re-sign on the original enduring document in order for them to be able to act as attorneys. They are directed to do so under section 118(1) of the POA in order for the exercise of the powers granted by OHV to be effective.