SBJ v The Public Guardian

Case [2022] QCATA 117

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

SBJ v The Public Guardian & Ors  [2022] QCATA 117

PARTIES:

SBJ

(applicant/appellant)

v

THE PUBLIC GUARDIAN

SJX

WK

WIJ

MS

(respondents)

APPLICATION NO/S:

APL129-19

ORIGINATING APPLICATION NO/S:

GAA2595-19

MATTER TYPE:

Appeals

DELIVERED ON:

2 August 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie

Member Traves

ORDERS:

1.   The application to rely on additional evidence is refused.

2.   The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where declaration of capacity sought in relation to financial and personal/health matters and to enter an enduring power of attorney – where decision that adult had no capacity for financial matters and no capacity to enter enduring power of attorney – whether adequate reasons for decision – whether presumption of capacity applied – whether error in categorising enduring power of attorney as ‘complex’ or as a financial matter -  whether any evidence to support finding of impaired capacity – whether error in preferring medical evidence over other evidence – whether reliance on irrelevant medical evidence – whether irrelevant considerations taken into account – whether hearing unfair

Guardianship and Administration Act 2000 (Qld), s 146, schedule 4

Queensland Civil and Administrative TribunalAct 2009 (Qld), ss 121, 142, 146, 147

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent (MS):

D. Hayes, Hayes & Co Lawyers

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. SBJ seeks leave to appeal or appeal against the Tribunal’s decision which declared that WIJ did not have capacity for financial matters and that the enduring power of attorney she made on 25 May 2018 was invalid.

  2. SBJ also seeks leave to rely on fresh evidence or material that was not before the Tribunal at first instance.

  3. By way of background, the substantive proceedings had their genesis in an Investigative Report completed by the Public Guardian regarding the circumstances surrounding the capacity of WIJ and various transactions she had entered into. On 4 January 2019, following completion of that Report, the Public Guardian applied to the Tribunal in the following terms:

    What matter does this declaration of capacity concern?

    There is medical information obtained by the Office of the Public Guardian (OPG) regarding [WIJ’s] capacity which rebuts capacity, however the attorney, [SBJ] is of the opinion [WIJ] has capacity, therefore he has not commenced his powers as an attorney for financial and personal/health matters. Allegations have been raised regarding the management of [WIJ’s] finances by [SBJ] and contact between [WIJ] and her daughters are being controlled by [SBJ].

    The Public Guardian is also seeking for a declaration about:

    -     [WIJ’s] current capacity to make decisions -in relation to personal/health and financial affairs; and

    -     [WIJ’s] capacity to make an Enduring Power of Attorney document dated 22 May 2018.

  4. On 24 April 2019, the Tribunal made…

Continue reading SBJ v The Public Guardian

Sign in free to access the full text

Details
AGLC
SBJ v The Public Guardian [2022] QCATA 117
Case
[2022] QCATA 117
Decision Date

CaseChat Overview and Summary

In the case of SBJ v The Public Guardian, the appellant, SBJ, sought to appeal a decision of the Tribunal that had declared an enduring power of attorney invalid on the grounds that the principal, WIJ, lacked the capacity to execute such a document. The appellant argued that the Tribunal had erred in its assessment of WIJ's capacity, in the application of the presumption of capacity, and in the weight given to certain evidence. The court was required to determine whether the Tribunal had erred in law and whether the hearing had been procedurally fair.

The court found that the Tribunal had not erred in law in declaring the enduring power of attorney invalid. The court noted that the Tribunal had considered the appropriate factors in determining WIJ's capacity and that the appellant had not demonstrated any error in the application of the presumption of capacity or in the weight given to evidence. The court also found that the hearing had been procedurally fair, despite some irrelevant considerations being discussed.

Accordingly, the appeal was dismissed, and the application for additional evidence was refused. The decision of the Tribunal stood, and the enduring power of attorney remained invalid.

ORDERS:

1. The application to rely on additional evidence is refused.
2. The appeal is dismissed.

Orders

Orders of the court

1. The application to rely on additional evidence is refused.

2. The appeal is dismissed.

Background

Background to the litigation

The Tribunal may proceed under s 146 to either confirm or amend the decision; set aside the decision and substitute its own decision; or, set aside the decision and return the matter to the Tribunal or other entity who made the decision for reconsideration with or without the hearing of additional evidence as directed by the Appeal Tribunal.Background and the decision at first instance WIJ moved to live with SBJ in 2011. In 2015, WIJ scored 12/22 on a MOCA exam.[6][6]Those parts of the exam dependent on good eyesight were eliminated, hence the total of 22 rather than 30. In May 2016, WIJ was diagnosed with Alzheimer’s dementia and Vascular dementia and prescribed Donepezil. WIJ underwent a Mini-Mental State Exam (‘MMSE’) and achieved a score of 15 out of 28. The doctor administering the test noted clear cognitive decline. SBJ’s family company went into receivership in 2016. He has no source of income apart from a nominal pension he received from the UK government and a pension from a company in the UK. In July 2016, WIJ achieved a score of 20 out of 28 on the MMSE. On 1 December 2016, WIJ entered into an Enduring Power of Attorney appointing SBJ and NM, her daughter, as attorneys for financial and personal/health matters (‘the first EPOA’). The power of the attorneys for financial matters was expressed to take effect immediately.[7] The attorneys were to make their decisions severally.[8][7]Enduring Power of Attorney dated 1 December 2016, clause 5.[8]Ibid clause 7. On 4 December 2017, WIJ started paying SBJ’s mortgage of approximately $3 000 a month. SBJ’s house is in his name only. The home had been sold by WIJ to SBJ and his then wife after WIJ’s former partner passed away. WIJ also pays for all their household and living expenses. On 8 March 2018, SBJ and WIJ married. At that point, pursuant to s 52 of the Powers of Attorney Act 1998 (Qld), the enduring document was revoked to the extent it gave power to someone other than the principal’s husband. From then, SBJ was the sole attorney. NM was not notified of the marriage. On 12 March 2018, WIJ’s apartment at Sunrise Beach was sold for approximately $900 000. Half of the proceeds were invested in Commonwealth Bank Bonds, PERLS X, while the remainder of the funds were deposited into WIJ’s MLC account. SBJ says the MLC account is ‘managed’ by WIJ’s financial advisor. On 19 March 2018 and 17 April 2018, WIJ was seen by Dr Henshaw, Consultant Physician, and underwent further testing, achieving 11 out of 26 for the MMSE and 7 out of 22 for the MOCA. Dr Henshaw concluded in his report of 21 April 2018 that WIJ had significant cognitive deficits in multiple domains and expressed the opinion that she lacked capacity to manage her own financial affairs. WIJ met with her solicitor on two occasions, on 18 May 2018 and 25 May 2018 in relation to an enduring power of attorney. On 25 May 2018, WIJ entered into a second Enduring Power of Attorney appointing SBJ, WK (her deceased former de facto partner’s nephew) and SJX (SBJ’s son) as her attorneys (‘the second EPOA’). Under the section ‘How do you prefer that they make their decisions?’ against ‘Other’ it is said: I wis (sic) my First attorney to hold my decision making power. If he is unable then I wish my second and third attorneys to hold that power jointly.

Evidence

Evidence Before The Court

On 28 August 2018, WIJ was seen by Dr Harrington, Geriatrician, who reported that she scored 13 out of 27 on the MMSE and 3 out of 22 on the MOCA that day. Dr Harrington completed a Health Professional Report on 11 December 2018 which reported that, in her opinion, WIJ’s impairment from dementia was severe and that she had no capacity to manage complex decisions for her personal/health care and financial matters on her own. Further, that WIJ currently does not have the capacity to execute an enduring power of attorney document. Application for fresh evidence SBJ made an application dated 16 January 2020 to adduce fresh evidence in support of his appeal. Prior to making the application, SBJ filed submissions in relation to the new evidence that he wished to be considered on appeal.[12] We have taken those submissions and the submissions of MS in response, into account.[12]Submissions in support of application to submit new evidence filed 3 January 2020. SBJ wishes to rely upon the following:(a)Prior to attending her solicitor to make the new enduring power of attorney, WIJ reviewed her previous 2016 enduring power of attorney and that WIJ contacted her friend WJX to see whether she would be an attorney but WJX declined; and(b)Evidence to show the limited contact NM has had with her mother since the hearing at first instance. SBJ says that the reason he has not submitted the evidence beforehand was due to his age (81 years) and his ‘inability to present the best case at the time’. The circumstances as to how WIJ came to settle upon her attorneys sheds little light on the issue of her capacity. In any event, SBJ cannot give evidence about a conversation his wife supposedly had with WJX. The evidence that WIJ reviewed her 2016 enduring power of attorney prior to signing the later enduring power of attorney, is, presumably, raised by SBJ because he considers it shows that WIJ was familiar with enduring powers of attorney, having executed them before. The Tribunal was aware that WIJ had executed an enduring power of attorney in 2016.[13] In any event, we consider it of little relevance that WIJ made other earlier enduring powers of attorney. [13]SBJ made reference to WIJ having reviewed her prior enduring power of attorney prior to signing the new one in his statement of evidence dated 22 March 2019 at [22]. Further, we note that SBJ’s application for appeal raised some matters not raised in the Hearing below, in particular, relating to the reliability of testing undertaken by various medical professionals. We did not find that evidence persuasive and, in any event, had SBJ made an application to adduce it, we would have refused the application on the basis the material could have been raised at the Hearing below and, in any event, was of limited probative value or relevance. We have not taken those matters into account. The application for fresh evidence is accordingly dismissed.Grounds of appeal We turn now to consider each of SBJ’s grounds of appeal. Before doing so, we deal with two aspects of the decision raised by SBJ in his submissions.

Decision

Reasons for decision

We observe that the only application before the Member was the application for a declaration about capacity filed by the Public Guardian. The orders made by the Member included an order that the enduring power of attorney made 28 May 2018 was invalid. That order followed the Member’s determination that WIJ did not have the capacity to make the enduring power of attorney on 28 May 2018. While it would have been desirable for the Member to have initiated an application for an order about an enduring power of attorney to ensure such an application was before the Member, we do not consider that there was any denial of procedural fairness in the order being made in the absence of such an application. The applicant was legally represented at the hearing before the Member. No other applications were filed in the Tribunal by him seeking any particular orders. WIJ was also present at the hearing.We consider the declaration of invalidity was contemplated by the Public Guardian given the content of its application for a declaration about capacity. The application clearly identified that the Public Guardian sought declarations about capacity at two points in time: at the time of the hearing and at the time that the enduring power of attorney from 28 May 2018 was made. The application to the Tribunal also referred to the need ‘to bring certainty regarding [WIJ’s] formal arrangements to ensure her future rights and interests are being adequately and appropriately protected’. WIJ was provided with a copy of that application and was present at the hearing when the Member spoke to the parties about the practical effect of an order declaring the enduring power of attorney invalid.[26] We are satisfied that that order flowed from the decisions made by the Member about WIJ’s capacity, and that the active parties were aware this order might be made. [26]Transcript 1-44, lines 28-33.Conclusion As we do not find any error of law, the appeal is dismissed.

Ratio Decidendi

Legal Principle Established

We dismiss this ground of appeal.Ground 7: The Member took into account irrelevant considerations SBJ submits that the Member was influenced by the fact that she thought WIJ was a person who was, in the words of the Member: ‘able to present herself as … a strong-minded individual, but perhaps not understanding to the extent necessary to demonstrate capacity’.[24][24]Ibid T2-9. The Member expressed this as a concern but then proceeded to consider whether she was indeed a person who understood the ‘transactions’ in May 2018. We see no error in that approach. SBJ also appears to contend that the Member had improperly taken into account the fact that WIJ could not recognise her signature on the enduring document during the hearing when WIJ had a visual impairment. We do not accept that the Member placed much, if any, weight on this fact. The Member said:[WIJ], firstly, did not know what an enduring power of attorney was; secondly, did not recognise her enduring power of attorney document, though I accept that she – her eyesight would make that very, very difficult in any event. She did not recognise her signature on that document. Thirdly, she – and, most importantly for me, at least initially, she did not know who her alternative enduring power – sorry – her alternative attorneys were and, in particular, with [SS’s] son, who is named on the enduring power of attorney, thought this his long and hyphenated name was actually two people.[25][25]Ibid T2-8. We dismiss this ground of appeal.Ground 8: That aspects of the Hearing were unfair to SBJ SBJ takes issue with the fact that only Mr Virgil Power Junior was called to give evidence and not his father, Mr Virgil Power Senior, who they saw initially about the enduring power of attorney. Mr Power Jnr was the solicitor who met twice with WIJ and SBJ and who was the witness to the enduring power of attorney. He was clearly the appropriate person to be called in relation to providing evidence of his opinion as to her capacity at the time of executing the document. In any event, we note that the Member accepted the evidence by Mr Power Jnr but in the end preferred the medical evidence. There is no merit to this argument. SBJ contends that it was unfair that MS, who was not an active party, had an opportunity to participate in the hearing in a significant way, as did her solicitor. Although we agree that WIJ’s daughter should have been joined formally to the proceedings, we do not consider that any prejudice was caused to SBJ. The questioning may have strayed on occasions to irrelevant considerations, but this did not affect the Member’s reasoning. There was no failure to afford procedural fairness to SBJ. We dismiss this ground of appeal. We observe that the only application before the Member was the application for a declaration about capacity filed by the Public Guardian. The orders made by the Member included an order that the enduring power of attorney made 28 May 2018 was invalid. That order followed the Member’s determination that WIJ did not have the capacity to make the enduring power of attorney on 28 May 2018. While it would have been desirable for the Member to have initiated an application for an order about an enduring power of attorney to ensure such an application was before the Member, we do not consider that there was any denial of procedural fairness in the order being made in the absence of such an application. The applicant was legally represented at the hearing before the Member. No other applications were filed in the Tribunal by him seeking any particular orders. WIJ was also present at the hearing.We consider the declaration of invalidity was contemplated by the Public Guardian given the content of its application for a declaration about capacity. The application clearly identified that the Public Guardian sought declarations about capacity at two points in time: at the time of the hearing and at the time that the enduring power of attorney from 28 May 2018 was made. The application to the Tribunal also referred to the need ‘to bring certainty regarding [WIJ’s] formal arrangements to ensure her future rights and interests are being adequately and appropriately protected’. WIJ was provided with a copy of that application and was present at the hearing when the Member spoke to the parties about the practical effect of an order declaring the enduring power of attorney invalid.[26] We are satisfied that that order flowed from the decisions made by the Member about WIJ’s capacity, and that the active parties were aware this order might be made. [26]Transcript 1-44, lines 28-33.Conclusion