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QHT – Application to review an enduring power of attorney by BT

QHT – Application to review an enduring power of attorney by BT

Case [2014] TASGAB 20

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AGLC: QHT – Application to review an enduring power of attorney by BT [2014] TASGAB 20
Case: [2014] TASGAB 20
Decision Date: 27 October 2014

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Orders

Orders of the court

THE BOARD ORDERS

1. That the power registered number PAyyyyy is revoked from the date of this order.

2. That the power registered number PAxxxxx is revoked from the date of this order.

3. That The Public Trustee be appointed administrator of QHT.

4. That the powers and duties of the administrator be those conferred by Division 4 of Part 7 of the Guardianship and Administration Act 1995.

5. An application for costs shall be dismissed. BT and TE shall each re-imburse to the Board 50% of the costs of obtaining transcripts of proceedings received to the date of this decision.

6. That the administration order remains in effect to 19 October 2017.

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Citations

QHT – Application to review an enduring power of attorney by BT [2014] TASGAB 20

Most Recent Citation

DXX (Review Enduring Powers) [2015] TASGAB 11

Cases Citing This Decision

DXX (Review Enduring Powers) [2015] TASGAB 11
Citation 1 (Para 1)

…previous decisions where the Board has criticised reliance on this test in relation to enduring powers of attorney e.g. QHT (Review Enduring Powers) [2014] TASGAB 20) but acknowledged ‘some mental and cognitive impairment’.…

Cases Cited

Statutory Material Cited

Scott v Scott [2012] NSWSC 1541
Citation 1 (Para 6)

…The Board finds the judgments of Barrett J. in Szozda and of Lindsay J. in Scott v Scott [2012] NSWSC 1541 useful in that they limit the authority of Banks v Goodfellow (1870) LR 5 QB 549 applying to the question of capacity to execute an enduring power of attorney (see pages 49 to 52 of Scott particularly). Counsel…
Szozda v Szozda [2010] NSWSC 804
Citation 2 (Para 5)

…istent with the Act, section 38 of the Act preserves the application of common law principles set out in that decision. Barrett J. in Szozda v Szozda [2010] NSWSC 804 paragraphs 31 – 36 also provides an excellent basis on which to understand determinations about capacity which the Board considered instructive.…
Singh (by her next friend Singh) v Calvary Hospital ACT Inc (No 2) [2009] ACTSC 57
Citation 3 (Para 4)

…her as a trustee or as an administrator ( see extensive discussion in Singh (By her next friend Singh) v Calvary Hospital ACT Inc And Anor [No 2] [2009] ACTSC 57 at paragraph 21 citing: K bhnf K & Anor v Moylan (1997) 18 WAR 492 and Morris v Zanki bhnf Zanki (1997) 18 WAR 260).…
NBIF v Minister for Immigration [2006] FMCA 182
Citation 4 (Para 2)

…e language of the statute, there are no absolute rules that govern how the Board exercises this discretion [ Oshlack v Richmond River Council (1998) 193 CLR 72]. 4. At the commencement of the hearing on 26 May 2005, the Board indicated that the process of a hearing is determined by the Division, and in accordance wi…
Hardman v Ward [2004] TASSC 74
Citation 5 (Para 2)

…starting position for interpretation of section 80 is that ‘costs follow the event’ [ Latoudis v Casey (1990) 170 CLR 534 and Hardman v Ward [2004] TASSC 74] and that costs should be compensatory not punitive. We also note that, given the language of the statute, there are no absolute rules that govern how the Bo…
Jones v Moylan (No 2) [2000] WASCA 361
Citation 6 (Para 4)

…n in Singh (By her next friend Singh) v Calvary Hospital ACT Inc And Anor [No 2] [2009] ACTSC 57 at paragraph 21 citing: K bhnf K & Anor v Moylan (1997) 18 WAR 492 and Morris v Zanki bhnf Zanki (1997) 18 WAR 260).…
Oshlack v Richmond River Council [1998] HCA 11
Citation 7 (Para 2)

…tive. We also note that, given the language of the statute, there are no absolute rules that govern how the Board exercises this discretion [ Oshlack v Richmond River Council (1998) 193 CLR 72]. 4. At the commencement of the hearing on 26 May 2005, the Board indicated that the process of a hearing is determined by the Division, and in ac…
Latoudis v Casey [1990] HCA 59
Citation 8 (Para 2)

…ated: “3. … The Board accepts that the starting position for interpretation of section 80 is that ‘costs follow the event’ [ Latoudis v Casey (1990) 170 CLR 534 and Hardman v Ward [2004] TASSC 74] and that costs should be compensatory not punitive. We also note that, given the language of the statute, there are no ab…
Gibbons v Wright [1954] HCA 17
Citation 9 (Para 5)

…s facts and there has not been extensive legal argument. However, in coming to its conclusion, the Board has applied the decision in Wright v Gibbons (1954) 91 CLR 423 with respect to the onus of proof being on the applicant to prove incapacity on the balance of probabilities and also as to the domain specific natur…
Wright v Gibbons [1949] HCA 3
Citation 10 (Para 5)

…gely turned on its facts and there has not been extensive legal argument. However, in coming to its conclusion, the Board has applied the decision in Wright v Gibbons (1954) 91 CLR 423 with respect to the onus of proof being on the applicant to prove incapacity on the balance of probabilities and also as to the domain spe…
BN (Review Enduring Guardian and Guardianship) [2013] TASGAB 21
Citation 11 (Para 1)

…ially to the Board’s other findings. However, for the purpose of context (only), we note that in BN (Review Enduring Guardian and Guardianship) [2013] TASGAB 21 the Board stated: “That facility had conducted a Psycho-geriatric Assessment Scale [on BN] for funding purposes at admission on which he scored 10, which i…
EKN (Administration) [2010] TASGAB 9
Citation 12 (Para 3)

…tances where they have failed to take action to recover a represented person’s entitlements under a testator’s will (see EKN (Administration) [2010] TASGAB 9). However none of these arguments can satisfy the Board that TNTE is not in a position where her interests conflict or may conflict with the interests of QHT…
HDH (No2) (Costs) [2005] TASGAB 6
Citation 13 (Para 2)

…In HDH (No2) (Costs) [2005] TASGAB 6 the Board stated: “3. … The Board accepts that the starting position for interpretation of section 80 is that ‘costs follow the event’ [ Latoudis v Casey (1990) 170 CLR 534 and Hardman v Ward [2004] TASSC 74] and that costs should be compensatory not punitive. We also note that…

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