Re Caldwell - [1999] QSC 182

IN THE SUPREME COURT
OF QUEENSLAND
Toowoomba District Registry
OS No 5 of 1999
Before the Hon. Mr Justice Mackenzie
[Re Caldwell]
IN THE MATTER of the Powers of Attorney Act
1998 ( as amended)

and

IN THE MATTER of applications by GRAHAM PERCIVAL
ANDREW CALDWELL and BRAMLEY REGINALD McLENNAN for a declaration that a Power of Attorney executed by CLIFFORD ANDREW McCLELLAND is void for lack of capacity and for directions pursuant to the said Act

JUDGMENT - MACKENZIE J.

Judgment delivered 6 August 1999
CATCHWORDS: PRACTICE AND PROCEDURE - Power of Attorney - whether a lack of capacity existed when the Power of Attorney was executed - whether further medical examination is required.

s 41(1)(2) Powers of Attorney Act 1998

Counsel: Mr R Peterson for the applicants
Mr P B Rashleigh for the first respondent

Solicitors: Clewett Croser & Drummond for the applicants
Justin F O'Sullivan & Edgar for the first respondent
Wonderley & Hall for the second respondent

Hearing Date:  2 July 1999
IN THE SUPREME COURT
OF QUEENSLAND
Toowoomba District Registry
  OS No 5 of 1999
Before the Hon. Mr Justice Mackenzie
IN THE MATTER of the Powers of Attorney Act
1998 ( as amended)

and

IN THE MATTER of applications by GRAHAM PERCIVAL
ANDREW CALDWELL and BRAMLEY REGINALD McLENNAN for a declaration that a Power of Attorney executed by CLIFFORD ANDREW McCLELLAND is void for lack of capacity and for directions pursuant to the said Act

JUDGMENT - MACKENZIE J.

Judgment delivered 6 August 1999

This is an application for a declaration that an enduring Power of Attorney executed by Clifford Andrew McClelland is void for lack of capacity. The applicants are nephews of Mr McClelland and until the disputed Power of Attorney was executed on 12 February 1999 had been donees of a Power of Attorney executed on 28 July 1994.
The Attorney under the disputed Power of Attorney is a neighbour Graham Leslie Edwards. There is also reference in the affidavits to Mrs Binney, who has for some years had an involvement with Mr McClelland's care. It is apparent that the applicants have a negative view of her role in the development of the dispute. As is frequently the case in matters of this kind the applicants are concerned for Mr McClelland's welfare, and as it was put to me, at least seek to be satisfied that he had the capacity to execute the Power of Attorney.
The orders sought include orders that Wonderley & Hall, who had acted in relation to the execution of the Power of Attorney, produce a copy of it for inspection and produce for inspection copies of all medical reports in its possession prior to the execution of the Power of Attorney by Mr McClelland. A copy of the Power of Attorney is exhibited to the affidavit of Mr Edwards who is represented by a firm of solicitors other than Wonderley & Hall. A copy of a certificate from Dr I.E. Keys, who examined Mr McClelland on 29…

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 Re Caldwell

Details

AGLC: Re Caldwell [1999] QSC 182
Case: [1999] QSC 182
Decision Date: 6 August 1999

CaseChat Overview and Summary

In this case, the applicants, Graham Percival Andrew Caldwell and Bramley Reginald McLennan, sought a declaration that a Power of Attorney executed by their uncle, Clifford Andrew McClelland, was void due to a lack of capacity. They also sought directions under the Powers of Attorney Act 1998. The court was required to determine whether Mr McClelland had the requisite capacity to execute the Power of Attorney. The applicants argued that their uncle did not understand the nature and effect of the Power of Attorney, while the respondents contended that he had the necessary capacity. The court had to consider conflicting medical evidence and determine whether an independent examination of Mr McClelland's capacity was necessary.

The court acknowledged the conflicting evidence regarding Mr McClelland's capacity to execute the Power of Attorney. Dr Keys' report suggested that Mr McClelland fully understood the implications of a Power of Attorney and was capable of changing it. Dr Oliver's report also concluded that Mr McClelland was reasonably informed and competent to make decisions about his affairs. However, Dr Venugopalan's reports indicated significant impairment in Mr McClelland's testamentary capacity. The court recognised that the onus was on the applicants to prove positively that Mr McClelland lacked capacity at the time of executing the Power of Attorney. Given the conflicting evidence and the protective nature of the jurisdiction, the court decided not to order a further examination of Mr McClelland at that point. The court also noted that the intrusiveness of a compulsory examination should be balanced against the potential benefits of an examination at least six months after relevant events.

The court did not make a final determination on the issue of capacity but decided not to order a further examination of Mr McClelland at that stage. The court noted that if the applicants intended to proceed with the application and the parties could agree on directions, it would initial a consent order. If not, an application for directions would have to be made in the ordinary way. The court reserved the costs of the application between the applicants and the respondents other than Wonderley & Hall, subject to certain conditions. The court made no order as to costs between the applicants and Wonderley & Hall.

In summary, the court found that it had the power to order an examination of Mr McClelland's capacity but decided against it at that point. The case was adjourned pending further agreement on directions or an application for directions. The court emphasised the substantial onus on the applicants to prove a lack of capacity and the need for clear evidence. The decision highlighted the importance of considering the intrusiveness of compulsory examinations and the potential benefits of such examinations in light of the evidence available.

Orders