PVB
[2024] QCAT 317
•12 July 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
PVB [2024] QCAT 317
PARTIES:
In an application about matters concerning PVB
APPLICATION NO/S:
GAA 3877-24
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
Decision – 12 July 2024
Reasons – 5 August 2024
HEARING DATE:
9 July 2024
HEARD AT:
Cairns
DECISION OF:
Member Taylor
ORDERS:
1. The Tribunal notes the existence of the following Enduring Power of Attorney for PVB:
(a) The Enduring Power of Attorney dated 5 August 2013 appointing MPH and TMR as attorneys for financial, personal, and health matters.
2. For the sake of completeness and certainty, pursuant to s 113(1) of the Powers of Attorney Act 1998 (Qld), notwithstanding the ambiguities and/or inconsistencies contained in the answers to questions four (4) to seven (7) inclusive in the Enduring Power of Attorney document dated 5 August 2013, that documents is valid as an Enduring Power of Attorney document, and accordingly the giving of the enduring power of attorney thereunder is valid.
3. Pursuant to s 115 of the Powers of Attorney Act 1998 (Qld), the Tribunal declares that the powers given to the attorneys under the Enduring Power of Attorney dated 5 August 2013 have begun.
CATCHWORDS:
CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – PARTIES – FORMATION AND PROOF OF AGENCY – POWERS OF ATTORNEY – FORMALITIES – where a principal had given her enduring power of attorney to two attorneys in terms of financial and personal/health matters – where in completing the enduring power of attorney document the principal; answered ‘No’ to whether she had given her attorneys power to make decisions about financial matters; notwithstanding that answer specified in the document as to when the power for the attorneys for financial matters was to begin; notwithstanding she had named in the document two attorneys she answered ‘No’ to the question as to whether she was appointing more than one attorney; notwithstanding that answer she stated her preference that the attorneys make their decisions jointly – where the principal had lost capacity and in turn inconsistencies / ambiguities created challenges for the appointed attorneys in conducting the affairs of the principal
Acts Interpretation Act 1954 (Qld), s 48A
Guardianship and Administration Act 2000 (Qld), s 7, s 8, s 81, s 82, s 114A
Human Rights Act 2019 (Qld), s 13, s 15, s 24, s 25, s 29, s 48Powers of Attorney Act 1998 (Qld), s 6A, s 41, s 44, s 109A, s 110, s 111A, s 113, s 115, s 118
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
DC [2013] QCAT 108
Lambourne and Ors v Marrable and Ors [2023] QSC 219
OHV [2014] QCAT 56Scott v Scott (2012) 7 ASTLR 299; [2012] NSWSC 1541
APPEARANCES & REPRESENTATION:
Adult:
PVM
Applicant / Current Attorney:
MPH – Adult’s daughter
Current Attorney:
TMR – Adult’s grand daughter
REASONS FOR DECISION
At the conclusion of the hearing I reserved my decision. The matter was subsequently listed for giving of my decision which occurred, however on that occasion I stated that written reasons would follow. These are those reasons. In satisfaction of s114A of the Guardianship and Administration Act 2000 (Qld), the adult and other active parties are referred to herein in a de-identified format.
Overview
The primary issue arising in this proceeding is the validity of an enduring power of attorney document. It is not however one arising in terms of the question of the principal’s capacity to have given the power, but rather the manner in which the document has been filled out in terms of answers to certain questions. The answers give rise to ambiguities and inconsistencies such that questions have been asked as to whether the two attorneys named therein are validly appointed, and can perform their powers thereunder for the benefit of the principal.
The secondary issue was whether the operation of the powers given the attorneys thereunder, if validly appointed, have begun.
As discussed in the hearing before me, the attorneys have faced challenges in conducting the affairs of the principal now she has lost capacity. Accordingly the application was made to this Tribunal.
In dealing with that application, for the reasons I discuss herein I declared that the enduring power of attorney as given by PVB was valid, and that the powers thereunder given the attorneys had begun.
Relevant Facts and Circumstances
At the time of the hearing before me, PVB was 90 years of age, diagnosed with and substantially adversely affected by dementia. She was living in an aged care residence. The attorneys needed to act promptly, in terms of her financial affairs, to deal with issues arising in her moving into that residence and the corresponding need to sell PVB’s properties.
On 5 August 2013, PVB had signed an enduring power of attorney document purporting to appoint her daughter, MPH, and her granddaughter, TMR, jointly as her attorneys for financial matters, and for personal and health matters. MPH accepted the appointment that same day. TMR accepted it three days later. Thereunder, it was expressly stated that the power for financial matters was to commence on PVB’s loss of capacity, such loss to be confirmed by a letter from a medical practitioner (the EPOA).[1]
[1]Document H 2 on the Tribunal Record. In the Footnotes that follow here, references to documents held on the Tribunal file will simply be recorded as the relevant document number.
Notwithstanding that the EPOA document records that it was signed by PVB in the presence of a solicitor, whom I was informed during the hearing was the solicitor that assisted PVB to complete the document, a number of errors were made in the recording of answers to five of the questions posed of PVB therein. These are:
(a)Q 1 in which is was recorded that PVB appointed MPH and TMR as her attorneys for 'financial and personal/health matters'.
(b)Q 4 which asked PVB whether she had given her attorneys power to make decisions about financial matters, to which the answer given was ‘No’.
(c)Q 5 which asked when PVB wanted the power of her attorneys for financial matters to begin, to which the answer given in terms of the third option therein as being ‘On this occasion’ was as follows:
I declare that this power of attorney is to come into force and effect if and only if I become unable to properly take care of my day to day affairs whether through illness, mental disability or accident and that a letters signed by a Medical Practitioner stating that in his or her opinion I am unable to take care of my day to day affairs for any of the above reasons shall be proof that such event has occurred.
(d)Q 6 which asked whether she was appointing more than one attorney, to which the answer given was ‘No’; and
(e)Q 7 which asked how she preferred to have her attorneys make their decisions, to which the answer was given ‘Jointly (unanimously)’.
In March 2018, PVB was diagnosed with dementia, and later that same year in October a Geriatrician determined that she was not capable of understanding complex legal and financial decisions. Those facts are reflected in a letter shown to have been authored by a Dr ST, whom I understand to be PVB’s regular general practitioner, dated 29 January 2024 as an open letter addressed to ‘To whom it may concern’, wherein the following statement appears:[2]
This is to confirm that [PVB] was diagnosed with vascular dementia by Dr [PV], Geriatrician, on 16th March 2018 [PVB] was reviewed by Dr [LC], Geriatrician, on 27th October 2018. Dr [LC] confirmed that [PVB] is not capable of understanding complex legal and financial decisions and that her EPOA, her daughter and grand-daughter, should make those decisions on [PVB’s] behalf. [PVB]’s dementia has been slowing progressive since 2018 and I last consulted with [PVB] on 18 October 2023. I confirm that her EPOA’s should be making all financial, legal and health decisions of [PVB].
[2]M 2.
On 15 March 2024, MPH filed her application in this Tribunal seeking orders that:
(a)The EPOA is declared valid;
(b)The powers granted to MPH and TMR are effective and can be exercised by them; and
(c)That the application be heard and determined on the papers.
The matter did not proceed on the papers. A direction was given on 28 May 2024 requiring MPH and TMR to provide a statement to the Tribunal setting out their recollection of the circumstances of the making of the document on 5 August 2013, and thereafter listing the matter for hearing.[3] Those statement were filed on or about 17 June 2024.[4]
[3]H 4.
[4]H 7 and H 8.
It is against that background the matter came on for hearing before me.
The Issue
There was nothing on the material before me to raise the question of whether PVB had capacity to give the EPOA, or whether one or both of the attorneys shown to have been appointed thereunder were appropriate to hold that power, or that there was some issue with their conduct in exercising the power.[5]
[5]Notwithstanding the first of those issues did not arise for decision, I address it briefly later in these reasons.
The issues were limited to the questions as to whether the EPOA was valid, given the ambiguities/inconsistencies arising from the answers to Questions 1 and 5 to 7 therein, and whether, if valid, the power given the attorneys thereunder had begun.
The Legislative Framework
The issues fell to be decided via the application of four relevant statutes. I note here the relevant provisions from each.[6]
[6]Whilst the issues did not involve questions of capacity and appropriateness, given I have made a brief comment about these matters later in these reasons, for the sake of completeness and ease of reference I noted herein relevant provisions.
The Guardianship and Administration Act 2000 (Qld) (the “GAA Act”)
As it is expressed in this Act, it, together with the Powers of Attorney Act 1998 (Qld), provides a comprehensive scheme to facilitate the exercise of power for financial and personal matters by or for an adult who needs, or may need, another person to exercise power for the adult.[7]
[7]GAA Act s 7(b).
It confers jurisdiction on this Tribunal to administer particular aspects of the scheme,[8] empowering it with the function of, inter-alia, making declarations in relation to attorneys and enduring documents.[9] In performing such a function in relation to an adult, this Tribunal must, to the greatest extent practicable, seek and take account of the views, wishes, and preferences expressed or demonstrated by the adult.[10]
[8]Ibid s 7(e).
[9]Ibid s 81(1)(d). Under s 82(2) of the Act, such jurisdiction is concurrent with that of the Supreme Court of Queensland for enduring documents and attorneys under enduring documents. In Schedule 4 to the GAA Act, an ‘enduring document’ is defined as meaning inter-alia an enduring power of attorney. Under s 81(3) of the GAA Act, an ‘attorney’ is defined as meaning inter-alia an attorney under an enduring power of attorney.
[10]Ibid s 81(2).
Under s 114A(2) of this Act, a person, such which for the purposes of this section includes this Tribunal, must not, without reasonable excuse, publish information about a guardianship proceeding to the public, or a section of the public, if the publication is likely to lead to the identification of the relevant adult.[11]
[11]In Schedule 4 to this Act, a ‘guardianship proceeding’ is defined as meaning inter-alia a proceeding under this Act before the Tribunal.
The Powers of Attorney Act 1998 (Qld) (the “POA Act”)
The POA Act and the GAA Act are to be read in conjunction with each other. [12] To the extent there is any inconsistency between the POA Act and the GAA Act, the GAA Act prevails.[13] It is for this reason that this proceeding is to be considered as a ‘guardianship proceeding’ as that term is used in the GAA Act notwithstanding that it deals solely with the issue of an enduring power of attorney under the POA Act, and that which I say in paragraphs [22] and [23] herein, thus the operation and application of s 114A of the GAA Act.
[12]POA Act s 6A(1); GAA Act s 8(1).
[13]GAA Act s 8(2); POA Act s 6A(4).
Section 41 of the POA Act is the starting point. It deals with the issue of a principal’s capacity to make an enduring power of attorney, requiring that the principal:
(a)is capable of making the enduring power of attorney freely and voluntarily; and
(b)understands the nature and effect of the enduring power of attorney.[14]
[14]That which must be demonstrated to show the principal understands the nature and effect of the enduring power is as described in subsection (2) therein.
The formal requirements for an enduring power of attorney document are as prescribed under s 44 of this Act. One relevant aspect of that provision is in subsection (1) therein which requires that an enduring power of attorney must be in an approved form.[15]
[15]As is noted in the print of the statute relevant to this section, an approved form is a form approved by the chief executive under s 161 of the POA Act.
Consistent with s 82(2) of the GAA Act, under s 109A of the POA Act this Tribunal is given the same jurisdiction and powers for enduring documents as the Supreme Court of Queensland, and the POA Act may be read in this proceeding as if references in the Act to the Supreme Court were references to this Tribunal.
Consistent with s 81(1)(d) of the GAA Act, under s 110 of the POA Act, an application may be made to this Tribunal for a declaration, order, direction, recommendation or advice about something in, or related to, this Act. As a named attorney in the EPOA, MPH had standing thereunder to make the application.
Under s 111 A of the Act, in exercising a power under the Act, if this Tribunal is required to decide about an adult’s capacity for a matter it is to presume the adult has capacity for the matter until the contrary is proven.
Under s 113 of the Act, this Tribunal may decide the validity of an enduring power of attorney, and may under subsection (2) therein may declare the document to be invalid if it does not comply with other requirements of the Act.
Under s 115 of the Act, this Tribunal may make a declaration that a power under an enduring power of attorney has begun.
Finally, once again consistent with s 81(1)(d) of the GAA Act, under s 118 of the POA Act this Tribunal may, on an application about a matter, make a declaration about the matter or another matter related to the Act, including about the interpretation of the terms of the enduring power of attorney.
The Acts Interpretation Act 1954 (Qld) (the “AI Act”)
The purpose of this legislation is to provide a premise for the shortening and interpretation of state legislation operative in Queensland. One particular section thereunder is relevant to the primary I was being asked to consider. For ease of reference I extract that here:
48A Compliance with forms
(1) If a form is prescribed or approved under an Act, strict compliance with the form is not necessary and substantial compliance is sufficient.
(2) If a form prescribed or approved under an Act requires—
(a) the form to be completed in a specified way; or
(b) specified information or documents to be included in, attached to or given with the form; or
(c) the form, or information or documents included in, attached to or given with the form, to be verified in a specified way; the form is not properly completed unless the requirement is complied with.
The Human Rights Act 2019 (Qld)
Whilst substantively the issues in this proceeding fell to be dealt with and decided under the POA Act, albeit effectively within a guardianship proceeding conducted under the GAA Act, it was necessary for me to also consider the Human Rights Act2019 (Qld) (the “HRA”) in reaching the decisions I was required to make.
The main objective of the HRA is to protect and promote fundamental human rights. However those rights are not absolute. They may be limited, but only as far as is reasonable and justifiable.[16] That being said, all statutory provisions, as far as is possible consistent with their purpose, must be interpreted in a way that is compatible, or most compatible, with those human rights.[17] Two such statutes are the GAA Act and the POA Act. Thus, the relevant human rights afforded PVB under the HRA must be considered in the exercise of any power or performance of any function under those two statutes, such being done in a way that is compatible with them but only to the extent that is also possible whilst meeting the statutory purpose of the GAA Act and the POA Act.
[16]HRA s 13.
[17]HRA s 48.
PVB’s rights as noted in the HRA would be engaged and limited by the orders I was being asked to make in this proceeding.[18] That being so, noting the findings of fact as I express them later in these reasons as to the criteria set out in the GAA Act and the POA Act, in my opinion any limits that may be imposed by the orders I ultimately made are reasonable and justified. PVB is entitled to adequate support services to enable her to live independently, such being consistent with a free and democratic society based on human dignity, equality and freedom. The decisions I reached in this proceeding are, in my opinion, the least restrictive options consistent with that entitlement.
[18]For example, the right to recognition and equality before the law (s 15), property rights (s 24), the right to privacy and reputation (s 25), and the right to liberty and security of person (s 29).
The Evidence and Submissions
Firstly, I address the information both MPH and TMR provided as their recollection of the circumstances of the making of the EPOA document.
Whilst the content of MPH’s statement went well beyond the issue for which the direction for same was given, in terms of the relevant circumstances MPH stated:[19]
[19]H 8.
Year 2007
[VKB] passed away. He was at the time [PVB]’s attorney for her Enduring Power of Attorney.[20]
[PVB] asked myself, [MPH] and my husband [CH] if we would act as attorneys on her behalf.
A new Enduring Power of Attorney was drawn up by solicitor [DW] the original was held in the office at [legal firm named]
Year 2013
[CH] requested to resign from his appointment as attorney due to ill health, [PVB] then asked [TMR] to act as an attorney along with myself [MPH] On (sic) her behalf.
Fifth of August 2013.
We attended an appointment at the office of [legal firm named] for the signing of a new enduring power of attorney for [PVB]. The solicitor [DH] sat with [PVB] at his desk. He asked relevant questions associated with the document to which [PVB] responded.
The clause ‘when you are no longer have capacity to make decisions’ was requested to be included in the document by [PVB], my mother.
[PVB] understood the context of the Enduring Power of Attorney in my opinion.
The document was filled out by [PVB] signed, witnessed by the lawyer and signed by myself (sic). [TMR] was not present on the day, but signed the document a few days later.
[20]As I understand it, VKB was PVB’s husband.
TMR’s statement was consistent with MPH’s statement to the extent it recorded that TMR was not present at the meeting on 5 August 2013 when the EPOA document was prepared and signed.[21] Thus I was left to decide the issues based on the content of MPH’s recollection of what occurred on 5 August 2013, and as I will discuss in further detail later in these reasons my reading of the document itself in its entirety. However as I will also discuss the ‘background’ facts to which they each referred did assist me in terms of giving context to the relevant facts and circumstances of 5 August 2013.
[21]H 7.
Secondly, I turn to the detailed submissions that were before me in terms of the apparent errors in the manner in which the EPOA document was filled out.
On reading those submissions I infer they were prepared by a lawyer assisting MVP. These submissions were of great assistance to me. As was appropriately and properly noted therein, this Tribunal has previously been asked to consider circumstances similar in some instances to those which arise in this proceeding in terms of the manner in which certain questions posed in an enduring document have been answered.
The first of those referred to in the submissions was where the answer given to Q 6 was ‘No’ as to whether more than one attorney was being appointed, but in fact two attorneys were appointed. That was in the matter of DC [2013] QCAT 108 (“DC”). Therein the learned Member made this observation of those facts:
[5] DG explained at the hearing that she and her husband had been assisted with the document by a social worker who had filled out most of the form with them. DG had no experience with this form and relied on the social worker to fill it out correctly. DG told QCAT that the document was complex. DG had not noticed at that time that the box in paragraph 6 had been filled out incorrectly. This was only drawn to her attention recently when she started to act on the document. DG told QCAT that the box had been marked by mistake and that the document should have indicated that her husband was appointing more than one attorney.
[6] I accept that explanation. Neither DG nor her husband filled out the document themselves with the exception of the signing clauses. It was not drawn to the attention of DG at the relevant time that the box in paragraph 6 had been marked to indicate that not more than one attorney was appointed. I accept that marking the box in this manner was a mistake and did not indicate an intention for only one attorney to be appointed. The mistake in paragraph 6 does not invalidate the Enduring Power of Attorney which otherwise was correctly made by DC. I am satisfied that there is substantial compliance with the requirements in section 44 of the Powers of Attorney Act 1998.
The second was OHV [2014] QCAT 56 (“OHV”). Therein, similar to the circumstances before me, the answer to Q 4 was ticked ‘No’ as to whether the principal had given the attorneys power to make decisions about financial matters, but in turn a statement was given in the document as to when the power for financial matters was to begin. In OHV the learned Member made these observations:
[2] Unfortunately OHV had also ticked the box at paragraph 4 on page 9 of the document that indicated that she had not given her attorneys power to make decisions about financial matters. According to the evidence provided to QCAT, it is no longer possible due to a progressive medical condition for OHV to rectify any inconsistency in the Enduring Power of Attorney document or to clarify what she had intended by that document. …
[4] … I am satisfied that the evidence establishes that OHV is no longer capable of understanding the nature and effect of making decisions about her affairs, including understanding what is involved in making another Enduring Power of Attorney or of making changes to her existing Enduring Power of Attorney. …
[6] It is apparent from the face of the enduring document that OHV had granted her attorneys the power to make decisions about financial matters. She specifically limited the exercise of financial decision making power until such time as she had lost capacity to make her own decisions. It would make no sense to include that specific limitation, made I assume in her own handwriting, and yet not grant the power about which that limitation was directed. Paragraph 4 of the enduring document is inconsistent with paragraphs 1 and 5 of the enduring document.[22]
[7] I am satisfied that the grant of power by OHV to her attorneys to make financial decisions was intended to be made and was a valid grant of power. In order to remove any doubt about the grant of power, the inconsistency brought about by the box ticked in paragraph 4 is best resolved by an order that paragraph 4 is revoked and is accordingly removed by order of this tribunal from the enduring document under section 116(d) of the POA
[22]I pause here to note this – in the learned Member’s reasons there is no other reference to the content of paragraph 1. In the approved form for an enduring power of attorney, it provides for one of three boxes to be ticked namely, ‘financial matters’, ‘personal/health matters’, or ‘financial and personal/health matters’. I infer that on the facts before the Tribunal in OHV, either the first or the third box was ticked.
Finally, I note the following in terms of PVB’s capacity.
As I mentioned it earlier in these reasons, there was nothing before me to in any way place into question PVB’s capacity to have given the EPOA when she signed it. The only issue of capacity is in terms of whether PVB was since of impaired capacity such that the attorneys’ power for both financial and personal/health matters had begun.[23]
[23]Under s 33 of the POA Act, power for a financial matters is exercisable once the enduring power of attorney was made unless a contrary time is specified, as was the case here, however power for a personal matter is exercisable only when the principal is of impaired capacity.
In that regard, as I referred to it in paragraph [9] herein, there is a letter on record from PVB’s general practitioner as to the state of PVB’s cognitive capacity. That letter is self-explanatory. However there is additional information that has been provided to this Tribunal on this issue. It is found in a Health Professional’s Report given by the same doctor and dated 1 March 2024.[24] Therein two relevant observations are found, namely
(a)In answer to the question as to the history of PVB’s condition, earlier referred to as being ‘dementia’, the following is stated:
Diagnosed 2018, slowly progressive, now no longer able to make simple decisions because of short term memory loss – needs constant prompting/reminders for personal health care etc.
(b)In answer to the question as to decision-making about financial affairs, the following is stated:
[PVB] does not have capacity. She is unlikely to remember what she has done a few minutes earlier …
[24]M 1.
Discussion on the Issues
I start by making these two observations in terms of interpretation of law.
Firstly, it seems to me that when a question arises as to the meaning of the terms of an enduring power of attorney, the approach to be taken to the task of interpretation is similar to that which has now long been established as a rule for contract interpretation. This is because an enduring power of attorney is effectively a contract of agency between the giver of the power, the principal, and the recipient of the power as agent, the attorney. Whilst in my opinion the rules of contract interpretation overall do not apply, namely the rule requiring objective consideration vs subjective consideration because in terms of an enduring document the power given thereunder by the principal must be viewed subjectively relative to the principal’s views, wishes, and preferences, and not objectively as to what a reasonable person’s equivalents would be, otherwise it is appropriate to recall the long-standing authority of Australian Broadcasting Commission v Australasian Performing Right Association Ltd, and the often-cited passage therefrom found in the reasoning of Gibbs J:[25]
It is trite law that the primary duty of a court in construing a written contract is to endeavour to discover the intention of the parties from the words of the instrument in which the contract is embodied. Of course the whole of the instrument has to be considered, since the meaning of any one part of it may be revealed by other parts, and the words of every clause must if possible be construed so as to render them all harmonious one with another. If the words used are unambiguous the court must give effect to them, notwithstanding that the result may appear capricious or unreasonable, and notwithstanding that it may be guessed or suspected that the parties intended something different. The court has no power to remake or amend a contract for the purpose of avoiding a result which is considered to be inconvenient or unjust. On the other hand, if the language is open to two constructions, that will be preferred which will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, 'even though the construction adopted is not the most obvious, or the most grammatically accurate', ….
[25]Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99, 109. Emphasis added.
Secondly, the following observations made Lindsay J of the NSW Supreme Court in Scott v Scott, in terms of the interpretation / consideration of an enduring document are helpful, namely:[26]
… each case must be considered on its own facts. Care needs to be taken not to over-generalise. There is no rule of general application relating to all powers of attorney without regard to particular facts. Attention must be focussed on all the circumstances of the case, including the identities of the donor and donee of a disputed power of attorney; their relationship; the terms of the instrument; the nature of the business that might be conducted pursuant to the power; the extent to which the donor might be affected in his or her person or property by an exercise of the power; the circumstances in which the instrument came to be prepared for execution, including any particular purpose for which it may ostensibly have been prepared; and the circumstances in which it was executed.
An exploration of all the circumstances of the case will, not uncommonly, call for consideration of events leading up to, and beyond, the time of execution of the disputed power of attorney, as well as on the focal point of the time of execution itself. …
[26]Scott v Scott (2012) 7 ASTLR 299; [2012] NSWSC 1541,[199] and [200]. Even though these comments were made in terms of the issue before the Court being one of the question of capacity to have given an enduring power, they are apposite to the issues I was required to decide in this proceeding.
The following caveat expressed by Lindsay J in Scott v Scott when considering what are said to be ‘analogous cases’ in the determination of issues arising in terms of enduring documents should also not be overlooked:[27]
Insights into appropriate lines of inquiry, or relevant considerations, in a particular case can be obtained from consideration of similar cases in which the validity of similar transactions has been reviewed. However, care needs to be taken not to elevate helpful passages in potentially analogous cases into rules of general application, whether characterised as an applicable "standard" or rules of law or merely practice. At the end of the day, a qualitative judgment needs to be made in each case on the facts of the particular case. Process and form are not unimportant. In some cases, they may point the way to a substantive outcome of a dispute. However, they are not ends in themselves. The focus of the Court must be on the substance of the inquiry …
[27]Ibid at [206], cited with approval by Martin SJA in Lambourne and Ors v Marrable and Ors [2023] QSC 219 at [119].
All that being said, I turn firstly to the evidence from both MPH and TMR. They each provided information surrounding the coming into existence of the EPOA. Whilst it was not directly in response to the direction given for the provision of information as to what occurred on 5 August 2013 when the EPOA was created, their information was of assistance to me in terms of the issues on which I was required to decide. This is because it provided me with context as to how the EPOA came to be created and in turn identifying, or at the very least giving some indication of fact from which an inference could be drawn as to, PVB’s views, wishes, and preferences in terms of whom she wanted to be her attorneys.[28]
[28]Such which must be considered under s 81(2) of the GAA Act.
I secondly turn to PVB’s capacity to have made the EPOA, which I do for completeness should there be any doubt about it, even though it was not an issue arising on the material before me and thus I was not required to decide about.
The relevant provisions in the POA Act are sections 41 and 111A. Section 41 imposes a two-part test for the assessment of capacity and excludes the definition of “capacity” contained in the Dictionary. But, s 41 must be read together with the presumption of capacity provided for in s 111A. It follows then, that when this Tribunal is required to consider the issue of an adult’s capacity to give an enduring power, it is presumed that the principal understands the nature and effect of that power and is presumed to understand the matters set out in s 41(2).[29] It is those presumptions I have applied here given the absence of anything before me to raise the prospect of a contrary position.
[29]Lambourne and Ors v Marrable and Ors [2023] QSC 219,[52] and [53].
Thirdly, I turn to the issue of the errors in the EPOA document and the caselaw referred to in the detailed submissions put before the Tribunal.
Unlike the facts in DC, on the evidence before me it is not so clear as to whom it was that had filled out the EPOA document. It might have been PVB herself, and thus ticking the boxes as they appear in answer to the relevant questions, or it might have been the solicitor assisting her. Such arises from the statement from MPH to which I refer in paragraph [33] herein as to PVB filling out the document.
However she also says in that statement that the solicitor asked relevant questions associated with the document to which PVB responded. Given that the relevant answers to the questions in terms of ticked boxes, and the insertion of the condition as to when the power for financial matters was to start, are all typed as distinct to handwritten, I infer that it is a document prepared by the solicitor or at least under his direction via a clerk, paralegal, or secretary, and not by PVB herself. I say this because I doubt that PVB would have had a computer or type-writer with her at the meeting with the solicitor, or made use of same within the solicitor’s office.
There is also a fact which can be found in the document itself which I consider to be relevant. The EPOA document was witnessed by a named solicitor. I infer that is the same solicitor to whom MPH refers as the one assisting PVB. Therein the solicitor records that PVB signed the document in his presence, and at the time it was signed by PVB he was satisfied that PVB appeared to him to have understood the matters stated in Clause 8 therein. That Clause 8 is entitled ‘Statement of Understanding’, wherein the following two subclauses appear, and which concludes with the PVB’s signature being placed thereon:
I fully understand that, by signing this document, I give power to the attorney’s mentioned in clause 1 to make decisions on my behalf about matters mentioned in the same clause.
I understand that:
(a) the power of attorney for financial matters (if applicable) begins at the time stated in clause 5 and continues even if I lose capacity;
(b) the power of attorney for personal/health matters (if applicable) being only if/when I lose capacity.
It seems to me that on any proper reading of this declaration by the solicitor given in witnessing the signature of PVB, he must have, or at the very least should have, known about the inconsistencies in the manner in which Q 1, 4, 5, 6, and 7 had been filled out and the EPOA document completed, and seemingly in all respects accepted that PVB understood she was appointing two attorneys to act jointly in terms of financial and personal/health matters. It is however disappointing that a solicitor allowed these errors in the document to not only be made in the first instance, but to remain in the document when it was signed and witnessed. He should have taken the time to check and correct it there and then.
I also note that which MPH stated in her statement I referred to earlier herein, a comment she repeated in oral submissions before me during the hearing. It was PVB who specifically requested the insertion, in answer to Q 5, of the condition as to when the power for financial matters was to come into force. There is nothing before me to doubt the correctness of that statement.
On the basis of all that evidence, and applying the foundational legal interpretation principles to which I referred, I was readily able to reach the following conclusions.
Firstly, a reading of the entirety of the EPOA document was required construing each of the relevant terms in a manner which gives harmony between them. Approaching the present circumstances in that way, the outcome that PVB was appointing two attorneys to act jointly and in terms of financial matters as well as personal/health matters is not one which has a consequence of being capricious, unreasonable, inconvenient, or unjust, even though it may not be ‘grammatically accurate’ given the manner in which certain boxes were ticked. It must be accepted that this is what PVB was wanting to do. Such is also a finding that can readily be reached applying the observations of Lindsay J in Scott v Scott, focussing on the circumstances of what brought about the giving of the EPOA, as they were explained by both MPH and TMR, and that which occurred at the solicitor’s office on 5 August 2013 and can be found, if only be inference, from reading the document itself in conjunction with those other known facts.
Secondly, whilst noting the caveat expressed by Lindsay J, consistent with the conclusions of the learned Member in both DC and OHV I find as a fact that the ticking of the boxes in answer to Q4 and Q 6, to the extent they are inconsistent with that marked in Q1, Q5, and Q 7, were simply mistakes made in the manner in which the document was filled out, whether it had been done by PVB or the solicitor.
In my opinion, it is readily apparent that PVB’s wish and preference in making the EPOA, something which under s 81(2) of the GAA Act I must consider, is that:
(a)she wanted to appoint both MPH and TMR jointly as her attorneys in terms of financial and personal/health matters; and
(b)to the extent the issue as to whether a financial power is included, that conclusion is readily reached with the acceptance of the evidence that it was PVB that required the insertion of the condition as to when it would commence.
I could readily conclude that the EPOA form had been completed in the manner it was required to have been done, notwithstanding the inconsistencies. It was not the case that certain requisite answers had not been given. Thus it remained compliant with the provisions of s48A of the AI Act. To that extent, strict compliance in terms of consistency within various answers was not required and substantial compliance as provided for under s 48A(1) of the AI Act was sufficient. That is also consistent with the conclusion of the learned Member in DC.
For all of these reasons, I was readily able to conclude that there is no question of the validity arising in terms of the EPOA. It is valid as filled out and signed.
I should however make one further short observation. I did not consider it necessary to go to the extent which the learned Member went in OHV to revoke part of the EPOA and in turn to give an order as to the extent to which power under the EPOA had been given. In the orders I have given this Tribunal noted the existence of the EPOA appointing the attorneys for financial, personal, and health matters. In my opinion this is sufficient to identify the extent of that power.
That then leaves only the question as to whether the attorneys’ power has commenced.
This is answered by reference to once again the evidence of Dr ST to which I referred in paragraphs [9] and [41] herein. On the strength of that evidence I accept, and find as a fact, that PVB has had dementia since 2018 and that it is now in severe decline, and will continue to decline further, being a situation which it is well known is not expected to reverse or even stabilize.
Accordingly I accept that her ability to understand the nature and effect of both personal and financial matters is adversely affected such that she no longer has the ability to meet that level of understanding. She is thus of impaired capacity[30] for both personal and financial matters and thus the attorneys’ powers under the EPOA have begun.
[30]As that term is defined in the EPOA Act.
Conclusion
In all respects, for the reasons I have given herein, and applying all the relevant provisions of the GAA Act and the POA Act as I identified them earlier in these reasons, I was readily able to conclude that the EPOA was valid, and that the powers granted the attorney’s thereunder had begun.
Relevant orders, including declarations to the necessary extent, were given.