PME

CITATION: PME [2011] QCAT 83

PARTIES: PME

APPLICATION NUMBER:   GAA983-11

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE:     9 March 2011

HEARD AT:  Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 9 March 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Application for a declaration about the capacity of PME to make an Enduring Power of Attorney is dismissed.

CATCHWORDS : 

ENDURING POWER OF ATTORNEY – declaration sought as to capacity of adult – evidence insufficient to support application – early end to proceedings – application lacks substance

Queensland Civil and Administrative Tribunal Act 2009, s 47

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties.

REASONS FOR DECISION

1. On 8 February 2011 MT made an application to the tribunal seeking a declaration about the capacity of PME to make an Enduring Power of Attorney on 22 October 2008.  MT is the solicitor for the executors and trustees of the estate of PME’s grandmother.  PME has been left a specific bequest of furniture and household effects under the will of her late grandmother and is the beneficiary of a testamentary trust during her lifetime of a portion of the residual estate.

2. The Enduring Power of Attorney appointed PME’s aunt and her aunt’s partner as her attorneys for financial, personal and health matters.  The exercise of the financial powers commenced immediately.  The attorneys have accepted their appointment.

3. The Enduring Power of Attorney is in the approved form as required by section 44 of the Powers of Attorney Act 1998. An eligible witness has certified that PME signed the document in her presence and at the time appeared to understand the matters set out in the statement of understanding in the document.

4. The applicant states in his application that the executors and trustees of the estate do not wish PME’s family to spend her money.  He stated that the executors and trustees of the estate want a declaration about PME’s capacity to grant an Enduring Power of Attorney before they make arrangements to have The Public Trustee of Queensland take over management of the funds held in trust for PME. 

5. MT states further in his application that the executors and trustees have grave concerns for PME’s entitlement believing that family members and in particular her aunt and attorney want to use PME’s entitlement for their own benefit.  MT also stated that the executors and trustees believe that PME’s aunt influences her decisions for their own benefit. 

6. The tribunal has been given the same jurisdiction and powers for enduring documents as the Supreme Court.[1]  The tribunal can decide the validity of an Enduring Power of Attorney and can declare a document invalid if it is satisfied that the principal did not have the capacity necessary to make that document.[2]  Applications to the tribunal under the Guardianship and Administration Act 2000 (the Act) can be made by a person interested in the adult who made the Enduring Power of Attorney. The Act defines an…