PRI
[2021] QCAT 29
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
PRI [2021] QCAT 29
PARTIES:
In an application about matters concerning PRI
APPLICATION NO/S:
GAA15401-20
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
2 February 2021
HEARING DATE:
1 February 2021
HEARD AT:
Brisbane
DECISION OF:
Member Kanowski
ORDER:
The application for authorisation of a conflict transaction filed by ATN on 25 November 2020 is dismissed.
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GENERALLY – where attorney under enduring power of attorney wishes to sell principal’s house – where principal had given an undertaking in family law proceedings to leave the house to individuals in her will – whether conflict transaction
Powers of Attorney Act 1998 (Qld), s 73(2), s 118(2)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47
APPEARANCES & REPRESENTATION:
The only appearance was by ATN, representing himself.
REASONS FOR DECISION
Introduction
This matter concerns an 86 year-old woman who I will refer to as PRI. The application was filed by her son, who I will refer to as ATN. The application was for the tribunal to authorise a transaction, said to be a conflict transaction, which ATN proposes to enter into as attorney for financial matters for PRI.
The matter came on for directions hearing before me on 1 February 2021. I have decided to dismiss ATN’s application, for the reasons that follow.
Background
The following account has been supplied by ATN:
(a)PRI has two children: ATN and his sister who I will refer to as DTA;
(b)in 1978 the Family Court of Australia made consent orders, in a proceeding between PRI and her former husband;
(c)at that time, ATN was aged 14 and DTA was aged eight;
(d)the orders included the transfer of the family home, which I will refer to as property A, into the sole ownership of PRI;
(e)the orders noted an undertaking by PRI to make a ‘specific devise’ of property A in her will to trustees to hold upon trust for ATN and DTA;
(f)for many years since then, PRI has been the registered proprietor of property A, and she lived there until moving in recent months into an aged care facility;
(g)on 3 August 2010 PRI made her current will leaving most of her estate, including property A, to ATN, and only household furniture and chattels to DTA;
(h)on the same date, PRI executed an enduring power of attorney appointing ATN as her attorney for financial matters (with immediate effect) and for personal matters (upon loss of capacity);
(i)ATN needs to sell property A, as attorney, in order to meet aged care fees for PRI; and
(j)he intends to sell it to a stranger (not to himself or an associate).
ATN has supplied a number of source documents, though not the will.
I accept ATN’s account as outlined above.
In light of a medical report on file, it may be that PRI now lacks capacity to revoke the enduring power of attorney, or make a new one, but I do not have to decide that issue.
On 25 November 2020 ATN filed an application for the authorisation of a conflict transaction. The transaction in question is the proposed sale of the house. ATN included a statutory declaration by DTA dated 18 November 2020. In that declaration, DTA indicated that is aware of the contents of PRI’s will, she understands PRI’s current circumstances, and she has no objection to the proposed sale of the house.
Is the transaction a conflict transaction?
The relevant legislation is the Powers of Attorney Act 1998 (Qld). The Act was amended with effect from 30 November 2020. As ATN’s application was commenced before that date, the effect of section 175 of the current version of the Act is that the previous provisions apply. Accordingly, the below references to the Act are to the pre-30 November 2020 version.
The tribunal may authorise a conflict transaction.[1]
[1]Powers of Attorney Act 1998 (Qld), s 109A(1), s 118(2).
‘Conflict transaction’ is defined as:
a transaction in which there may be conflict, or which results in conflict, between –
(a) the duty of an attorney towards the principal; and
(b) either –
(i)the interests of the attorney, or a relation, business associate or close friend of the attorney; or
(ii)another duty of the attorney.[2]
[2]Powers of Attorney Act 1998 (Qld), s 73(2).
The definition goes on to give the example of an attorney buying the principal’s car.
ATN’s duty as attorney towards PRI as principal requires him to make sound financial decisions on her behalf. This would include selling the house, when necessary, for a suitable price.
There is no relevant interest of ATN involved in the proposed transaction, except in the sense that the proposed transaction will, if anything, be detrimental to his financial interests. This is because the sale of property A will remove any chance of him inheriting it. (It probably, though, will not affect the likelihood that he will inherit the bulk of PRI’s estate).
There is no other duty of ATN, such as to another principal, that is affected.
I asked ATN at the directions hearing what conflict he had perceived that prompted him to make the application. He responded that he does not perceive a conflict, but he made the application because a solicitor advised him that he should.
I am unable to see any conflict between relevant duties and interests that would make the proposed transaction a conflict transaction.
Whether DTA could, if she were so minded, block the transaction would raise questions such as whether she could enforce the undertaking when she was not a party to the Family Court proceeding, and whether the undertaking was intended to endure beyond the childhoods of ATN and DTA. However, that is a separate consideration, and not a matter that I need to decide.
Conclusion
Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) permits the tribunal to dismiss an application that is misconceived.
ATN’s application is misconceived, and so it is dismissed.
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