PDB
[2023] QCAT 158
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
PDB [2023] QCAT 158
PARTIES:
In an application about matters concerning PDB
APPLICATION NO:
GAA1539-23
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
9 May 2023
HEARING DATE:
9 May 2023
HEARD AT:
Brisbane
DECISION OF:
Member Kanowski
ORDER:
DTA as the appointed attorney of PDB is authorised to enter into the conflict transaction being the sale of PDB’s house situated at [redacted] (title reference [redacted]) to DTA, on condition that the sale price is at least $345,000.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – where attorney wishes to purchase house of principal – whether conflict transaction should be authorised – whether transaction in accordance with the general principles
Powers of Attorney Act 1998 (Qld), s 6C, 73, s 118(2)
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Introduction
This proceeding relates to an elderly woman. For privacy reasons, I will refer to her only as PDB, and to her daughter as DTA.
DTA, as attorney for PDB, has applied to the tribunal for authorisation of a conflict transaction involving DTA purchasing PDB’s former home. I have decided to authorise the transaction, for the reasons that follow.
Background
PDB made an enduring power of attorney on 7 September 2019, appointing DTA as her attorney for financial and personal/health matters. The financial powers were expressed to begin immediately: that is, their commencement was not contingent on PDB losing decision-making capacity. However, it is relevant to note that medical certificates completed in 2021 say that, by then, PDB had lost decision-making capacity due to dementia.
DTA advises that PDB now resides permanently in a nursing home. DTA wishes to purchase PDB’s former home. She recognises that this would be a conflict transaction as defined in section 73(6) of the Powers of Attorney Act 1998 (Qld) (‘Powers of Attorney Act’), as a transaction in which there may be conflict between DTA’s duty as attorney toward PDB as principal and DTA’s own interests. As attorney, DTA must exercise her power in a way that promotes and safeguards the interests of the principal, PDB.[1] This would involve obtaining the highest available price for the house, if it is to be sold. This duty conflicts with DTA’s financial interest in paying the lowest possible price for the house.
[1]Powers of Attorney Act, s 6C, general principle 9(a).
In her application to the tribunal, DTA said that she had decided, as attorney, that the house should be sold to enable payment of the aged care refundable accommodation deposit. DTA proposed that if a sale to herself is permitted, she would pay $355,000 for the house. This figure was informed by a real estate agent’s appraisal made on 17 November 2022 that the house would be likely to fetch a price of between $350,000 and $365,000.
PDB has since obtained a report by a valuer, Lochlan Jones of Acumentis, dated 23 February 2023. Mr Jones assessed the market value of the house at $345,000. His report is detailed. It describes the condition of the house and market trends in the area, as well as information about five recent sales in the area.
DTA now proposes that she pay $350,000 for the house, in light of the valuer’s report. She has not explained why she proposes to pay more than the $345,000 assessed by Mr Jones. Perhaps it is intended as a goodwill gesture, given that she earlier proposed paying a higher price.
A financial management plan submitted by DTA indicates that PDB has no substantial assets apart from her house. She has a few thousand dollars in the bank. DTA has not advised the tribunal of the amount of the refundable accommodation deposit, but it can be assumed that it would be a considerable sum which PDB cannot afford without selling the house.
If the transaction is authorised, DTA intends to live in the house with her son who is aged eight. According to DTA, PDB built the house herself, and DTA and her son are PDB’s only living relatives. DTA says PDB can no longer express her views, but she ‘has previously made it known to me that it is her strong wish and preference that her property remain in the family’,[2] albeit by way of inheritance rather than sale. DTA says that PDB’s wish is reflected in her will, though a copy of the will has not been provided to the tribunal.
[2]Document H5 on the tribunal’s file, paragraph 10.
Findings and conclusions
While the difference between the price range estimated by the real estate agent and the valuation given by Mr Jones might be attributable to a softening in the market, I would place greater weight in any event on Mr Jones’s opinion because of his training as a valuer. I accept the valuation of $345,000.
I see no reason to doubt DTA’s evidence. Accordingly, I accept her evidence including that PDB’s sustained wish, while she retained decision-making capacity, was that the house should remain in the family.
It is likely that the sale of the house to enable payment of the refundable accommodation deposit is a sound financial decision. Cases that come before the tribunal show that many aged care residents, or their substitute decision-makers, elect to pay a refundable accommodation deposit, in order to reduce daily care fees.
An attorney may enter into a conflict transaction only if it is authorised by the principal or by the tribunal or the Supreme Court.[3] It is not suggested that PDB has authorised the transaction in question, and it is implied in the material that she lacks capacity to give such consent.
[3]Powers of Attorney Act, s 73(1), s 109A.
Authorisation may be given by the court or the tribunal if the transaction would be in accordance with the general principles.[4] Authorisation may be subject to terms.[5]
[4]Ibid, s 118(2).
[5]Ibid.
The general principles are set out in section 6C of the Powers of Attorney Act. The relevant principles are, in summary:
(a)recognising the principal’s dignity and worth;[6]
(b)taking into account the importance of maintaining the principal’s cultural values;[7]
(c)the exercise of a power under an enduring document must promote and safeguard the interests of the principal;[8] and
(d)the views, wishes and preferences of the principal must be taken into account.[9]
[6]General principle 2(1).
[7]General principle 5(1).
[8]General principle 9(a).
[9]General principle 10(3).
I am satisfied that the proposed transaction would be in accordance with the general principles. So long as DTA pays at least the assessed market value, PDB’s financial interests would be promoted and safeguarded. Sale to DTA would accord with PDB’s wish that the house remain in the family and her values that underpin that wish. It would respect her dignity and worth.
Accordingly, I will authorise the transaction provided that the sale is for at least $345,000. DTA is willing to pay $350,000, but I see no reason to insist that she pay more than the market value. She is free, however, to do so if she wishes.
Conclusion
I authorise the proposed transaction involving the sale of PDB’s house to DTA, on condition that the sale price is at least $345,000.
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