PME

[2011] QCAT 83

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 interested person as a person who has a sufficient and continuing interest in the adult.

   [1] Section 109A(1) of the Powers of Attorney Act 1998.

   [2] Section 113(1) and (2) of the Powers of Attorney Act 1998.

7. MT has not disclosed whether he is a relative or friend of PME.  He has disclosed that he is the solicitor for the executors and trustees of the estate of PME’s grandmother.  According to her will, his clients appear to have been friends of PME’s grandmother and not relatives of PME or her grandmother. 

8. In his application MT discloses the interest that his clients have in PME as being based on their role as trustees and on their concern that the funds from the trust are not misused.  It is likely that the trustees come within the category of persons interested in PME.  They have an ongoing role to make decisions during PME’s lifetime about distributions of income and capital from the trust for her benefit.  It is more difficult to be satisfied that MT has a sufficient and continuing interest in PME to have standing to bring this application in his own name.

9. The tribunal considers that in this case MT is acting more in the role as a representative or agent for the trustees than asserting that he has a personal interest in PME.  For the reasons below the tribunal will not proceed with consideration of the application and so it is not necessary to make a determination about the standing of the applicant in this event.

10. Under the General Principles, an adult is presumed to have capacity for a matter.  Due to that statutory presumption, the tribunal requires to be provided with at least prima facie evidence that an adult has impaired capacity before it will proceed to consider an application about an adult. 

11. In addition the tribunal has a discretion about how it conducts its proceedings as long as the tribunal acts fairly and according to the substantial merits of the case.[3]  In exercising that discretion, the tribunal in guardianship matters will not proceed to a hearing of an application if it cannot form an initial satisfaction that the outcome of an application about an adult will be likely to achieve a useful purpose such as assisting an adult with decision-making or protecting an adult from abuse.

[3] Sections 28(1) and (2) of the Queensland Civil and Administrative Tribunal Act 2009.

12. That position is consistent with the objects of the Queensland Civil and Administrative Tribunal Act 2009.[4]The tribunal is required to deal with matters in a way that provides simple, speedy and cost effective means of resolving disputes.  The resources of the tribunal are limited and must be used in a cost effective manner.  In guardianship matters, applications that do not satisfy the tribunal that the outcomes being sought are necessary to uphold the rights of an adult will not in most instances proceed to a hearing but will be brought to an early end.

[4] Section 3(b) of the Queensland Civil and Administrative Tribunal Act 2009.

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 frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process. The tribunal considers that the application by MT is lacking in substance for the reasons set out below.

14. Evidence was provided to the tribunal in a report by Dr D, a psychiatrist, dated 23 June 2009.  Dr D reported that PME struggled at school and had significant learning difficulties.  Dr D reported that PME appears to be of a slightly low intelligence.  He expressed an opinion that PME would not have the capacity to manage a large sum of money.

15. Dr D reported that PME had told him that she had asked her aunt and uncle to act as her attorneys which seemed appropriate to Dr D.  Dr D could not find any evidence of any disorder other than her learning difficulties and her childhood experiences impacting on her personality development.  Dr D expressed the opinion that PME is competent to make the decision to appoint her aunt and uncle as her attorneys. 

16. In a further report dated 31 August 2010, Dr D reported on his knowledge of the support given by PME’s aunt to PME.  Dr D reported that the aunt keeps a close eye on PME’s management of her finances, the aunt does not leave PME alone in her house for more than one or two hours at a time due to PME being frightened of being left alone and PME is reasonably well managed under the care of her aunt.  Dr D noted that there is a reasonable relationship between PME and her aunt and he concluded that her aunt has PME’s best interests at heart. 

17. Evidence was provided to the tribunal in a report by Dr U dated 14 September 2010.  Dr U is a medical practitioner in a medical practice which provides treatment to PME.  Dr U reported that PME has been diagnosed with a mild intellectual disability and a significant personality dysfunction.  Dr U noted that PME had appointed her aunt as her attorney.  Dr U expressed an opinion that PME did not have the capacity to responsibly manage her financial affairs without help.  Dr U was of the opinion that PME could make decisions freely and voluntarily and could communicate her decisions.

18. The evidence before the tribunal establishes no more than PME has an intellectual disability. Neither medical witness was of the opinion that PME could not validly grant an Enduring Power of Attorney. Dr D in fact expressed a positive statement that PME could validly do so. The witness to the Enduring Power of Attorney had certified that on 22 October 2008 PME appeared to have an understanding of the matters required by section 41(2) of the Powers of Attorney Act 1998.

19. Capacity in guardianship matters is always determined in relation to the matter or action that is in contention.  In this case, the matter being determined is whether PME could grant an Enduring Power of Attorney.  The matter is not whether PME can make financial decisions or manage a large sum of money. 

20. The evidence provided to the tribunal on the matter of PME’s capacity to make a valid Enduring Power of Attorney in 2008 did not give rise to an initial satisfaction that the presumption of capacity could be rebutted.  MT was informed by a letter from the tribunal registry dated 15 February 2011 that the evidence provided to the tribunal did not indicate that PME lacked capacity to grant the enduring document. 

21. MT was provided with an opportunity to provide further information within 21 days.  By letter dated 7 March 2011 MT informed the tribunal that he did not have any further information to provide in this application.  In view of the absence of evidence to establish even a prima facie finding of impaired capacity to grant the enduring document, the tribunal considers that the application by MT lacks substance.

22. Furthermore, the evidence provided to the tribunal did not establish what benefit would accrue to the adult should the tribunal make a declaration about her capacity.  The application disclosed that the interest that PME has in the estate of her late grandmother is subject to a trust.  It is the responsibility of the trustees to ensure that funds distributed from the trust are for the benefit of PME.

23. Attorneys for a beneficiary, or for that matter administrators for a beneficiary, cannot direct the discretion of trustees.  The protection of the funds are primarily the responsibility of the trustees and many practical measures can be put into place by trustees to ensure that distributed funds are used only for the benefit of PME and not for the benefit of any other person.  Removing the attorneys for PME will have no direct impact on the security of the funds held in trust for PME.

24. The tribunal considers that proceeding to a hearing of the application for a declaration about the capacity of PME to grant a Enduring Power of Attorney, based on the submissions made on behalf of the trustees, would not be a cost effective use of the resources of the tribunal. 

25. The tribunal considers that the application for a declaration about the capacity of PME to grant an Enduring Power of Attorney is lacking in substance for the reasons set out and must be dismissed.