RJG - [2016] QCAT 127

CITATION:

RJG [2016] QCAT 127

PARTIES:	RJG
APPLICATION NUMBER:	GAA1592-16; GAA3038-16

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

26 May 2016

HEARD AT:

Southport

DECISION OF:

Member McDonald

DELIVERED ON:

2 June 2016

DELIVERED AT:

Southport

ORDERS MADE:

1. The application for an order about an Enduring Power of Attorney is dismissed.

2. The application for the appointment of an administrator is dismissed.

3. The Tribunal directs the Attorney, MT to repay $4,800.00 to the Adult within 30 days of this order, and to file in the Tribunal evidence of this receipted payment by 1 July 2016.

CATCHWORDS:

GUARDIANSHIP – where application in relation to an Enduring Power of Attorney to vary the document – where allegations about misconduct of attorney not made out - where application for the appointment of an administrator dismissed

Powers of Attorney Act 1998 (Qld) ss 88, 116, 125
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 100, 102

APPEARANCES:
MT RL, LM, TM.

REPRESENTATIVES:
Nash Te Uaa for The Public Trustee of Queensland
Mr Radcliffe of Counsel, instructed by Evan Cooper of Cooper Malloy Legal, for MT

REASONS FOR DECISION

RJG is an 84 year old lady living in a nursing home. She was diagnosed with dementia syndrome in April 2015. On 5 December 2014 she executed an Enduring Power of Attorney (‘EPOA’) making MT as her Attorney for financial, personal and health matters and appointing her grandchildren ML and TM to act jointly, in succession to MT.
The application before the Tribunal asks that this document is varied to add RL, RJG’s other daughter, to the EPOA. The application make several vague claims about financial misconduct, being that the Attorney has been “embezzling” RJG’s funds, taking a valuable brooch and pay-waving on items that were not required. RL requests the Tribunal to “add her to the EPA so that that she can make enquiries about these concerns for herself, and to put RJG’s mind at ease.” She also wants to be contacted if the RJG goes to hospital, if there are any changes in medications, to be consulted for approval on financial transactions and medical decisions and to have the RJG stay with her for a break.
MT argues the application is frivolous and the Tribunal lacks the jurisdiction to appoint her to the document, and seeks the application is dismissed. The Tribunal has initiated an application for the appointment of an Administrator in the circumstances.
In the application, RL acknowledges the enduring document of 5 December 2014 to be valid, but the material submitted to the Tribunal raises RL’s questions about RJG’s capacity to execute an EPOA around that time. She said she was uncertain whether RJG had the capacity to execute an EPOA then because she was in receipt of correspondence that claims that she was unable to execute an EPOA in January 2016.
At the hearing, RL claimed that she was unable to substantiate the concerns that she had raised because she had not received financial…

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 RJG

Details

AGLC: RJG [2016] QCAT 127
Case: [2016] QCAT 127
Decision Date: 2 June 2016

CaseChat Overview and Summary

RJG was an application made to the Family Court of Western Australia concerning the validity and management of an Enduring Power of Attorney (EPA) held by MT over an adult, referred to as the Adult. The primary dispute arose from concerns about MT’s conduct as the Attorney under the EPA, and the Adult's capacity to manage their own affairs. The application also sought the appointment of an administrator to manage the Adult’s affairs instead.

The central legal issues before the court were whether MT had engaged in misconduct as the Attorney, warranting the variation or termination of the EPA, and whether the Adult lacked the capacity to manage their own affairs, necessitating the appointment of an administrator. The court was tasked with assessing evidence concerning MT’s conduct and the Adult's capacity to determine the appropriate course of action.

Upon reviewing the evidence, the court found that the allegations of misconduct against MT were not substantiated. Additionally, the court concluded that the Adult retained sufficient capacity to manage their own affairs. Consequently, the application to vary the EPA or appoint an administrator was dismissed. The court did, however, direct MT to repay a sum of $4,800.00 to the Adult within a specified timeframe and to provide evidence of the repayment to the Tribunal. This decision underscored the importance of substantiating allegations of misconduct against an Attorney and the necessity for clear evidence of incapacity in guardianship matters.

Orders

Orders of the court

1. The application for an order about an Enduring Power of Attorney is dismissed.

2. The application for the appointment of an administrator is dismissed.

3. The Tribunal directs the Attorney, MT to repay $4,800.00 to the Adult within 30 days of this order, and to file in the Tribunal evidence of this receipted payment by 1 July 2016.

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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