Re Heller

The case of Re Heller involved an application by Dr. Barry McKeon and his wife, who held powers of attorney for Ernest and Josephine Heller, to transfer the Hellers' property into a trust. The Hellers, both of whom were over 90 years old, were no longer mentally competent to manage their own affairs, and the McKeons sought to administer the Hellers' extensive assets in Europe and Australia. The court had to determine whether the McKeons' proposed transaction, which would effectively gift the Hellers' property to themselves as trustees, was permissible under the Powers of Attorney Act 1998.

The primary legal issue was whether the proposed transaction constituted a gift, which would require the McKeons to seek court authorisation. Under section 88 of the Act, an attorney may only give away the principal's property if certain conditions are met, which the court found the proposed transaction did not satisfy. The court also considered whether the transaction could be authorised under section 118(2) of the Act, which allows the court to authorise a transaction that the attorney is not otherwise authorised to undertake if it is in the best interests of the principal. However, the court found the evidence before it insufficient to determine whether the proposed transaction was in the best interests of the Hellers.

The court further found drafting defects in the proposed trust deeds and potential conflicts of interest for the McKeons. The court decided that the Adult Guardian should investigate the matter under section 127 of the Act, and directed that the summons be amended accordingly. The court dismissed the application as presently constituted, but indicated that it could proceed with appropriate amendments and further material.

In summary, the court found that the McKeons' proposed transaction would amount to a gift of the Hellers' property, which was not permissible under the Act without court authorisation. The evidence before the court was insufficient to determine whether authorising the transaction would be in the Hellers' best interests. The court directed the Adult Guardian to investigate the matter and indicated the application could proceed with appropriate amendments.