OMP
[2011] QCAT 419
•5 September 2011
| CITATION: | OMP [2011] QCAT 419 |
| PARTIES: | OMP |
| APPLICATION NUMBER: | GAA5320-11 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 5 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application for compensation is dismissed. |
| CATCHWORDS: | ENDURING POWER OF ATTORNEY – Enduring Power of Attorney revoked by tribunal – alleged misuse of adult’s funds by attorney – administrator appointed – where adult is deceased – whether jurisdiction to consider application – early end to proceedings Queensland Civil and Administrative Tribunal Act 2009, s 47 LPJ [2011] QCAT 177 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
OMP had happily lived for about 20 years with her partner before she was hospitalised after a fall. OMP was diagnosed with dementia and as it was found that she could no longer manage at home, she was discharged into a nursing home.
Her children did not all agree with the choice of placement as it was not close to her partner. One of her sons was appointed as her attorney for financial, personal and health matters under an Enduring Power of Attorney on 11 May 2011. Large amounts of money had been withdrawn from OMP’s bank accounts since early 2011 with some of the money having been withdrawn after the attorney had been appointed.
Following applications made to the tribunal for the appointment of a guardian and administrator, the Enduring Power of Attorney was revoked by order of the tribunal and appointments made of guardians and an administrator. OMP died on 10 July 2011. The appointments ceased on the death of OMP.
The executor of OMP’s estate applied to the tribunal for what effectively was a compensation order against the former attorney. She had provided submissions in support of her application after the registry staff informed her that recovery of moneys on behalf of an estate was a matter outside the jurisdiction of the tribunal.
The executor submitted that the tribunal had already completed a comprehensive review of the circumstances relating to her late mother’s affairs and had already received information related to the withdrawal of funds in March and May 2011. The executor submitted that the costs involved with legal proceedings would be prohibitive while the tribunal could provide an efficient and effective means for securing the funds removed from her late mother’s accounts.
After considering the submissions and all the evidence on the tribunal’s file, I have concluded that QCAT does not have jurisdiction to give directions to the former attorney or to order that compensation be paid to the estate of OMP. In the matter of LPJ[1] it was determined in similar circumstances that QCAT does not have jurisdiction to determine an application by the executor of an estate for an order to compensate the estate for losses caused by the alleged failure of an attorney to comply with the attorney’s statutory obligations under the Powers of Attorney Act 1998.
[1] LPJ [2011] QCAT 177.
It was stated in that case:
“Neither the Guardianship and Administration Act 2000 nor the Powers of Attorney Act 1998 includes a revoked enduring power of attorney in the definition of enduring document. When an enduring document is revoked, it would appear that as a consequence the tribunal’s powers about that enduring document come to an end unless some continuing functions have been given to the tribunal by either the Guardianship and Administration Act 2000 or the Powers of Attorney Act 1998.
“One such continuing function is found in section 138AA of the Guardianship and Administration Act 2000 which provides that the tribunal can give directions to a former attorney but restricts those directions to what is necessary because of the ending of the person’s appointment as attorney. If the tribunal’s powers conferred by section 81 of the Guardianship and Administration Act 2000 had already included the power to make orders about revoked enduring documents or former attorneys, a provision such as that found in section 138AA would not be necessary.”
An application made under section 138AA of the Guardianship and Administration Act 2000 must be made in the context of a hearing of a proceeding relating to an adult. The proceeding brought by the executor is not a proceeding about an adult but is a proceeding about the estate of a deceased adult.
The provisions in section 106 of the Powers of Attorney Act 1998 cannot be relied on as giving jurisdiction to QCAT to make a compensation order after the revocation of the Enduring Power of Attorney and after the death of the principal. The power to recover compensation by the estate has been expressly conferred on the courts by section 106 of the Powers of Attorney Act 1998. While QCAT has been given the same jurisdiction and powers for enduring documents as the Supreme Court[2], the actual functions of the tribunal set out in section 81 of the Guardianship and Administration Act 2000 do not include making orders in estate claims.
[2] Section 109A(1) of the Powers of Attorney Act 1998.
[10] QCAT can exercise the powers of the Supreme Court about enduring documents when dealing with an application about an adult.
[11] The purpose of the Guardianship and Administration Act 2000 is to achieve a balance between the right of an adult with impaired capacity to autonomy in decision making and providing adequate support to an adult with impaired capacity for decision making. That statutory purpose has no relevance to making orders about deceased estates.
[12] Any inconsistency between the Guardianship and Administration Act 2000 and the Powers of Attorney Act 1998 must be resolved by the provisions in the Guardianship and Administration Act 2000 prevailing.[3] I am satisfied that if the two Acts are inconsistent on the powers that can be exercised by QCAT about compensation claims, then the powers in the Guardianship and Administration Act 2000 must prevail and those powers are restricted to adults. The only exception in that Act is found in section 59 which gives an express power to QCAT to make a compensation order in favour of a deceased estate for loss caused by an administrator’s failure to comply with their statutory obligations. A similar express power about attorneys is not to be found.
[3] Section 8(3) of the Guardianship and Administration Act 2000.
[13] Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives the tribunal power to bring a proceeding to an early end if the tribunal considers that an application is misconceived or is lacking in substance.
[14] The tribunal concludes that this application should be brought to an early end as it is misconceived as the outcome sought cannot be delivered by the tribunal. Under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 the application must be dismissed.
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