PQR - [2023] QCAT 44 | CaseChat AU

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

PQR [2023] QCAT 44

PARTIES:

In applications about matters concerning PQR

APPLICATION NO/S:

GAA5232-22
GAA5234-22
GAA5235-22
GAA5236-22
GAA9419-22
GAA9808-22
GAA9809-22

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

7 February 2023

HEARING DATE:

4 October 2022

HEARD AT:

Townsville

DECISION OF:

Member Barnes

ORDERS:

GUARDIANSHIP

1.     The Public Guardian is appointed as guardian for [the Adult] for the following personal matters:

(a)     Accommodation;

(b)     with whom [the Adult] has contact and/or visits;

(c)     Health care; and

(d)     provision of services.

2.     This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year.

ADMINISTRATION

3.     The Application by [DC] for the appointment of an administrator for [the Adult] is dismissed.

ENDURING POWER OF ATTORNEY

4. The following Enduring Power of Attorney for [the Adult] is overtaken by the making of this appointment and, in accordance with s22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that this appointment has been made:

(a)     The Enduring Power of Attorney dated 16 March 2001 appointment [TC] and [PC] as attorneys for financial, personal and health matters.

CONFIDENTIALITY ORDER

5. Pursuant to s109 & s110 of the Guardianship and Administration Act 2000 (QLD), unless otherwise ordered by the Tribunal, the following documents and parts of documents are confidential and are withheld from all persons other than the attorneys for [the Adult], any guardian or administrator who may be appointed by the Tribunal and the Tribunal:

(a)     H105

(b)     Part C & Part K of H104.

DIRECTIONS

6.     The Tribunal directs [TC] and [PC] to provide to the Tribunal within 90 days a statement of the assets and liabilities of [the Adult].

MISCELLANEOUS MATTERS

7.     The following applications for miscellaneous orders are dismissed:

(a)     Application by DB [GAA5232-22) including an application for an order regarding a Power of Attorney (Part M); and

(b)     Application by [PC] and [TC] (GAA9419-22).”

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – power of attorney for financial and health matters – application for the appointment of a guardian and an administrator – family conflict – appointment of a guardian only

Guardianship and Administration Act 2000 (Qld), s 5, s 8, s 9, s 11(B), s 12(1), s 14, s 15, s 22, s 41, s 42, Schedule 4

Human Rights Act 2019 (Qld), s 4, s 8, s 13, s 24, s 31, s 37

Powers of Attorney Act 1998 (Qld), s 111A

CJP [2013] QCAT 663

GA [2013] QCAT 71
PSB [2013] QCAT 17

BBE [2014] QCAT 80

APPEARANCES & REPRESENTATION:

Adult:

PQR

Applicant/s:

DC
PC
TC

Public Guardian:

In attendance

Public Trustee:

In attendance

Other Parties

DB
GC
JC
AC
CJ

APPEARANCES & REPRESENTATION:

Adult:

PQR

Applicant/s:

DC
PC
TC

Public Guardian:

In attendance

REASONS FOR DECISION

Background

The Adult

The Adult, referred to in this decision as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading PQR

Details

AGLC: PQR [2023] QCAT 44
Case: [2023] QCAT 44
Decision Date

CaseChat Overview and Summary

PQR, an 88-year-old legally blind and fragile man, has been the subject of ongoing legal disputes concerning his care and financial affairs. PQR resides with DB, his long-time friend and carer, following a stroke in August 2018. His legal blindness and fragile health have necessitated various decisions regarding his guardianship and financial management. The case before the Queensland Civil and Administrative Tribunal (QCAT) involves multiple applications for guardianship and administration, as well as challenges to various Enduring Powers of Attorney (EPAs) granted by PQR. The court was tasked with determining the validity of these EPAs and deciding on the appropriate appointment of a guardian and administrator for PQR.

The central legal issues before the Tribunal were the validity of the Enduring Powers of Attorney granted by PQR and the appropriate appointment of a guardian and administrator. The first EPA, dated 16 March 2001, appointed PQR's daughters, TCR and PCA, as joint attorneys for both financial and personal/health matters. A subsequent EPA, dated 21 April 2021, appointed GC for financial matters and DB for health matters. The court had to ascertain whether these EPAs were valid, considering PQR's capacity at the time of their creation and execution. Additionally, the court needed to decide whether the Public Advocate should be appointed as the guardian and the Public Trustee as the administrator, or if the existing attorneys should continue their roles.

The Tribunal dismissed the applications for the appointment of a guardian and an administrator, finding that there was no immediate risk of harm to PQR that necessitated such appointments. Regarding the EPAs, the Tribunal declared that the 2001 EPA was valid but limited its application to periods when PQR's capacity for financial matters was impaired. The 2021 EPA was declared invalid due to procedural issues. The Tribunal also dismissed an application for costs by TCR and PCA against the applicant. Ultimately, the interim application for the appointment of the Public Guardian and Public Trustee was also dismissed, as the Tribunal was not satisfied that there was an immediate risk to PQR's welfare.

The Tribunal's final orders were that no guardian or administrator should be appointed for PQR at that time. The 2001 EPA was upheld but restricted to times when PQR's capacity for financial matters was impaired. The 2021 EPA was declared invalid. The applications for costs and interim orders were dismissed. The decision reflects the Tribunal's careful consideration of PQR's specific circumstances and the need to balance his autonomy with the necessity for protection and care.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Adult, referred to in this decision as PQR, was born on 30 August 1933. His situation is conveniently summarised in reasons delivered on 21 April 2022 (the ‘Earlier Decision’), as follows –[1] PQR (‘the Adult’) is a fragile and legally blind 88-year-old man who suffered a cerebrovascular accident in August 2018. He lives in the home of DB, his carer and long-time friend/partner. He has two daughters, TCR and PCA, from his 37-year long marriage to LC. The marriage ended in divorce in 1994, and LC passed away in 1996. The Adult also has a brother, AC and three sisters, GC, JC and DC (‘the Applicant’)[2] The Adult’s friendship with DB dates back some 40 years. It developed into a relationship involving at least two lengthy periods of cohabitation prior to the Adult moving into DB’s home in July 2020. The Adult granted a Power of Attorney on 16 March 2001 under which he appointed his daughters, TC and PC, as attorneys for financial and personal/health matters jointly and severally (the ‘2001 EPA’). The Adult subsequently granted an Enduring Power of Attorney dated 21 April 2021 appointing GC attorney for financial matters and DB as attorney for health matters. There have been a number of earlier QCAT processes. Processes relevant to the current applications are the following –(a)Applications for the appointment of a guardian and administrator dated 6 April 2021 DC sought the appointment of the Public Advocate as guardian and the Public Trustee as administrator. In relation to this application, the outcomes were as follows –GuardianshipThe application for a guardian was dismissed.AdministrationThe application for appointment of an administrator was dismissed.Declarations about Enduring Power of Attorney.In relation to the 2001 power of attorney appointing TC and PC jointly and severally as attorneys for financial, personal and health matters, the Tribunal declared that –(1)The enduring power of attorney was valid;(2)The attorneys’ power for financial matters commenced on 4 April 2001, [PQR’s] capacity for financial matters was certified as impaired on 24 March 2001; and(3)The attorneys’ power for personal, including health, matters was exercisable from 4 April 2001, but only during periods that [PQR’s] capacity was or is impaired, and irrespective of whether such impairment is or was certified or declared.Declaration about validity of Enduring Power of AttorneyThe Tribunal ordered that the Enduring Power of Attorney dated 21 April 2021 appointing GC attorney for financial matters and DB as attorney for health matters was invalid.Application for Order for CostsThe application by TC and PCA for an order for costs against the applicant was refused.(b)An application for administration/guardianship dated 13 July 2022. The application was made by DC. In paragraphs 5.5 and 6.7 in respect to the questions in the form as to who should be appointed as administrator/guardian respectively, in each case the question was answered ‘nobody’. This application was found to be misconceived by the Tribunal in a decision dated 21 April 2022. (c)Application for an interim orderOn 24 May 2022 DC sought the appointment of the Public Guardian and Public Trustee under interim orders. This application was considered at a hearing on 25 July 2022 and a decision delivered 9 August 2022. The application was dismissed, the member not being satisfied that there was an immediate risk to the harm of the Adult.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	PQR [2023] QCAT 44
PARTIES:	In applications about matters concerning PQR
APPLICATION NO/S:	GAA5232-22 GAA5234-22 GAA5235-22 GAA5236-22 GAA9419-22 GAA9808-22 GAA9809-22
MATTER TYPE:	Guardianship and administration matters for adults
DELIVERED ON:	7 February 2023
HEARING DATE:	4 October 2022
HEARD AT:	Townsville
DECISION OF:	Member Barnes
ORDERS:	GUARDIANSHIP 1. The Public Guardian is appointed as guardian for [the Adult] for the following personal matters: (a) Accommodation; (b) with whom [the Adult] has contact and/or visits; (c) Health care; and (d) provision of services. 2. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) year. ADMINISTRATION 3. The Application by [DC] for the appointment of an administrator for [the Adult] is dismissed. ENDURING POWER OF ATTORNEY 4. The following Enduring Power of Attorney for [the Adult] is overtaken by the making of this appointment and, in accordance with s22(2) of the Guardianship and Administration Act 2000 can no longer be acted upon to the extent that this appointment has been made: (a) The Enduring Power of Attorney dated 16 March 2001 appointment [TC] and [PC] as attorneys for financial, personal and health matters. CONFIDENTIALITY ORDER 5. Pursuant to s109 & s110 of the Guardianship and Administration Act 2000 (QLD), unless otherwise ordered by the Tribunal, the following documents and parts of documents are confidential and are withheld from all persons other than the attorneys for [the Adult], any guardian or administrator who may be appointed by the Tribunal and the Tribunal: (a) H105 (b) Part C & Part K of H104. DIRECTIONS 6. The Tribunal directs [TC] and [PC] to provide to the Tribunal within 90 days a statement of the assets and liabilities of [the Adult]. MISCELLANEOUS MATTERS 7. The following applications for miscellaneous orders are dismissed: (a) Application by DB [GAA5232-22) including an application for an order regarding a Power of Attorney (Part M); and (b) Application by [PC] and [TC] (GAA9419-22).”
CATCHWORDS:	HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – power of attorney for financial and health matters – application for the appointment of a guardian and an administrator – family conflict – appointment of a guardian only Guardianship and Administration Act 2000 (Qld), s 5, s 8, s 9, s 11(B), s 12(1), s 14, s 15, s 22, s 41, s 42, Schedule 4 Human Rights Act 2019 (Qld), s 4, s 8, s 13, s 24, s 31, s 37 Powers of Attorney Act 1998 (Qld), s 111A CJP [2013] QCAT 663 GA [2013] QCAT 71 PSB [2013] QCAT 17 BBE [2014] QCAT 80
APPEARANCES & REPRESENTATION:
Adult:	PQR
Applicant/s:	DC PC TC
Public Guardian:	In attendance
Public Trustee:	In attendance
Other Parties	DB GC JC AC CJ
APPEARANCES & REPRESENTATION:
Adult:	PQR
Applicant/s:	DC PC TC
Public Guardian:	In attendance