S (Aka MP) P (Aka M) M - [2010] QCAT 59

CITATION: S (aka MP) P (aka M) M [2010] QCAT 59

PARTY: S (aka MP) P (aka M) M

APPLICATION NUMBER: G19620

MATTER TYPE: Guardianship and Administration matters

HEARING DATE: 1 February 2010

HEARD AT: Southport

DECISION OF: B Bayne
J Gallagher

DELIVERED ON: 1 February 2010

DELIVERED AT: Southport

ORDERS MADE:   Declaration about Capacity
  Application for Guardianship dismissed
  Appointment of Administrator
  Enduring Powers of Attorney invalid

CATCHWORDS: Multiple Enduring Powers of Attorney, Validity, Interim Order, Need for the appointment of a Guardianship and/or Administrator, Family Conflict

APPEARANCES and REPRESENTATION (if any):

SM
BP, daughter and attorney
BM, son and attorney
SP, son
BS, daughter in law
McPS, representing The Public Trustee of Queensland

WA, advocate (with leave) for BP

REASONS FOR DECISION

HISTORY OF THE APPLICATION

SM is 84 years of age and since September 2009 has been living in a care facilty in Queensland. SM is also known as PM and SPM.

SM has three children: BP who lives in Queensland, BM who lives in Queensland and SP who lives in Victoria. There has been a history of conflict between MS’s children.

Prior to September 2009, SM had been living in Sydney for some years, close to her fourth child, her son BJ. She was admitted to a Nursing Home in March 2007 following a series of falls. BJ was assisting SM with all her personal, health and financial matters.

BJ died unexpectedly in August 2009 and SM is the sole beneficiary of his estate. Mr EC of GC Solicitors in NSW is acting for BJ’s estate.

SM had made several enduring powers of attorney:

(a)2 September 2009 appointing BP as her enduring guardian under the NSW Guardianship Act 1987

(b)2 September 2009 appointing BP as her attorney under the NSW Powers of Attorney Act 2003

(c)9 September 2009 appointing BP as her attorney for personal/health and financial matters under the Queensland Powers of Attorney Act 1998, both powers to start immediately

(d)7 October 2009 appointing BM as her attorney for personal/health and financial matters under the Queensland Powers of Attorney Act 1998, both powers to start immediately.

On 22 October 2009, the Guardianship and Administration Tribunal received an application from BP proposing the appointment of herself as guardian and administrator for her mother.

On 13 November 2009, the Guardianship and Administration Tribunal, being satisfied at the time that urgent action was required, made an Interim Order appointing the Public Trustee of Queensland (PTQ) as SM’s administrator for all financial matters. The period of appointment was expressed to remain current for three (3) months.

This Order was made under Section 129 of the Guardianship and Administration Act 2000 (the Act) which provides:
129 Interim Order
(1) If the tribunal is satisfied urgent action is required, it may make an interim order in a proceeding without hearing and deciding the proceeding or otherwise complying with the requirements of this Act, including section 118.
A hearing of the applications from BP was held on 1 February 2010 by…

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.

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Details

Case: [2010] QCAT 59
Decision Date: 1 February 2010

CaseChat Overview and Summary

The case of S (Aka MP) P (Aka M) M involved a dispute concerning the validity of Enduring Powers of Attorney made by SM and the need for a statutory health attorney and an administrator. The matter was heard by the Tribunal, a body authorised by the Powers of Attorney Act 1998, which is tasked with deciding the validity of powers of attorney, enduring powers of attorney, and advance health directives. The court had to determine whether SM had the capacity necessary to make the Enduring Powers of Attorney and whether there was a need for the appointment of a statutory health attorney and an administrator.

The legal issues before the court included assessing SM’s capacity to create the Enduring Powers of Attorney, determining the necessity for a statutory health attorney, and deciding on the appropriateness of an administrator. Given the evidence presented, including SM’s contentment with her current living situation and the family's ability to make health decisions, the Tribunal concluded that there was no need for the appointment of a statutory health attorney. Regarding the appointment of an administrator, the Tribunal had to weigh the appropriateness of the nominees, taking into account SM’s complex financial matters and the family's differing opinions.

The Tribunal found that the Enduring Powers of Attorney made by SM were invalid as she did not have the necessary capacity. However, the Tribunal was satisfied that the family could collectively make health decisions for SM, thus negating the need for a statutory health attorney. Regarding the appointment of an administrator, the Tribunal concluded that the PTQ was the appropriate appointee, as she had the support of SM, BP, and other family members, and had already been acting as an interim administrator. The Tribunal was persuaded that the PTQ was the most suitable candidate to manage SM's financial affairs, despite some family opposition.

The final orders of the Tribunal included the declaration that the Enduring Powers of Attorney made by SM were invalid. The Tribunal also ruled that there was no need for the appointment of a statutory health attorney. Finally, the Tribunal appointed the PTQ as the administrator for SM, reflecting the support from SM and other family members, and acknowledging her role in managing SM’s financial affairs.

Orders

Orders of the court

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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

Section 113 of the Powers of Attorney Act 1998 provides 113 Declaration about validity (1) The court may decide the validity of a power of attorney, enduring power of attorney or advance health directive. (2) The court may declare a document mentioned in subsection (1) invalid if the court is satisfied-- (a) the principal did not have the capacity necessary to make it; The Tribunal therefore concluded that the Enduring Powers of Attorney made by SM on 9 September 2009 and 7 October 2009 were invalid. The Tribunal considered SM’s personal and health matters. The Tribunal, when considering the appointment of a guardian, must be satisfied as to the need for appointment as set out in section 12 of the Act. All oral and written evidence before the Tribunal, including that from SM herself, indicated that SM was well settled in the Nursing Home. She was afforded good services and no party had any intention of relocating her. The Tribunal explained the role of a statutory health attorney to the parties present; sections 62 and 63 of the Powers of Attorney Act 1998 apply. A statutory health attorney is someone with automatic authority to make health care decisions on behalf of an adult whose ability to make decisions is permanently impaired. There is no need to formally appoint a statutory health attorney. A person automatically acts in this role when the need arises because of their relationship with the patient for example, a child. A statutory health attorney can consent to most health care issues, including medical and dental treatment and withdrawing or withholding life-sustaining measures. As a last resort, the Adult Guardian, an independent statutory official, would be authorised by law to make health care decisions for SM. After some discussion, the family, despites their differences, unanimously agreed that they could and would be able to make health decisions for SM and would be able to communicate any such decision to all other members of the family. The Tribunal was satisfied that, under the circumstances, there was no need for an appointment of a guardian for SM. The Tribunal, when considering the (new) appointment of an administrator, must be satisfied as to the need for appointment as set out in section 12 of the Act. Information from the PTQ, appointed as interim administrator for SM under an order dated 13 November 2009, indicated that she had complex financial matters including: The Tribunal, when considering the (new) appointment of an administrator, must be satisfied as to the appropriateness of an appointee. Section 15 of the Act provides: Although BP had nominated herself as administrator, she informed the Tribunal in the hearing that she now supported the appointment of the PTQ. SM advised that she would like the appointment of the PTQ, and BP indicated strong support of the PTQ. BM reiterated his conviction that, despite the bond liability, the Sydney properties, in accordance with SM’s wishes, should not be sold. He advised that he did not support the appointment of the PTQ and instead nominated BJ, solicitor.