PVB - [2024] QCAT 317

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 48

Powers 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 56

Scott 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…

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 PVB

Details

AGLC: PVB [2024] QCAT 317
Case: [2024] QCAT 317
Decision Date: 12 July 2024

CaseChat Overview and Summary

The case involved PVB, where the principal had executed an enduring power of attorney appointing two attorneys, MPH and TMR, for financial, personal, and health matters. The principal's document contained several ambiguities and inconsistencies, including answering 'No' to having given her attorneys power to make decisions about financial matters, despite specifying when this power was to begin, and stating a preference for joint decision-making despite answering 'No' to appointing more than one attorney. These inconsistencies arose as challenges for the attorneys after the principal lost capacity.

The primary legal issue was whether, despite the inconsistencies and ambiguities in the document, it was valid as an enduring power of attorney. Additionally, the court had to determine if the powers given to the attorneys had begun, as per the document. The court also had to decide on the validity of the document in light of sections 113 and 115 of the Powers of Attorney Act 1998 (Qld).

The court held that the document was valid as an enduring power of attorney, despite the ambiguities and inconsistencies. The court found that the document was valid in terms of the principal's intention to appoint the attorneys, and the ambiguities did not invalidate the document. The court declared that the powers given to the attorneys had begun, as per the terms of the document. The court relied on statutory provisions to support its decision, ensuring the document's validity and the commencement of the attorneys' powers.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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