SMJ

[2014] QCAT 272

CITATION: SMJ [2014] QCAT 272

PARTIES: SMJ

APPLICATION NUMBER: GAA1747-14

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Endicott

DELIVERED ON: 6 May 2014

DELIVERED AT: Brisbane

ORDERS MADE: The application by SM for authorisation of a conflict transaction is dismissed.

CATCHWORDS:

ADMINISTRATION – where administrator appointed to make financial decisions for an adult with impaired capacity, where administrator directed to take steps to recover funds paid to family of adult

ENDURING POWER OF ATTORNEY – where attorney sought authorisation for agreement to pay funds to his wife – where agreement gave rise to a conflict of interest

RETROSPECTIVE AUTHORISATION – where authorisation sought for attorney to enter into a conflict transaction retrospectively – whether authorisation can be given retrospectively

DIRECTIONS – where tribunal to consider whether to give directions to administrator to make payment to attorney’s wife – where insufficient information to make directions

Powers of Attorney Act 1998 (Qld) ss 73, 118(2)

The Public Trustee of Queensland v Ban (2011) QSC 380

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. SMJ lives in residential aged care and has been diagnosed with dementia. Prior to being placed into an aged care facility, SMJ had lived in her own home.  One of her sons, SM, and his family had moved into SMJ’s house in around September 2006.  Later when SMJ’s care needs increased due to her dementia, SM and his wife provided some daily care to supplement the paid cleaning and other care services provided to SMJ at home.

2. In April 2010 the tribunal appointed The Public Trustee of Queensland to be the administrator for all financial matters for SMJ.  An Enduring Power of Attorney granted to SM was revoked by the tribunal and the administrator was directed to take steps to recover funds which had been paid to SM and to his brothers in 2007.  Those payments had constituted unauthorised payments as they were conflict transactions which had not been authorised under the Power of Attorney Act 1998 (Qld).

3. SM had applied to the tribunal seeking authorisation of a conflict transaction.  Although the details of what he sought were not clearly set out in the application filed by him, he later clarified with the tribunal registry staff that he was seeking an order from the tribunal to provide retrospective authorisation for an agreement he had made when he was the attorney for SMJ to pay his wife for providing care services to SMJ. 

4. Directions were made by the tribunal requiring SM to provide statutory declarations setting out information and documentary evidence to support his application.  A statutory declaration by SP was filed but that document did not contain all of the information required to be provided and had left blank the monetary amount that SP had sought as payment for her services. 

5. On 9 April 2014 an officer from the tribunal registry asked SM to explain when he would provide the information required by the tribunal in its directions.  He responded that there was nothing more he could say beyond what was in the statutory declaration of SP.

6. Due to his non compliance with the directions of the tribunal made on 11 March 2014, SM was directed to file a written explanation for his failure to comply with the directions of the tribunal by 22 April 2014.  He was also directed to file in the tribunal the information and documents required by the original directions by that date and was informed that his application would be considered for dismissal unless he complied with the directions of the tribunal.

7. SM informed the tribunal registry staff that he could not comply by the date required and the directions were varied to require compliance by 2 May 2014. 

8. SM sent an unwitnessed statutory declaration to the tribunal on 4 May 2014 and sent a witnessed document on 5 May 2014.  The statutory declaration did not provide the information or documentation required to be produced and did not provide a satisfactory explanation for SM’s non compliance with the directions of the tribunal. Rather the statutory declaration was argumentative and the information provided was mostly irrelevant to the issues to be decided by the tribunal. 

9. The tribunal was asked to authorise retrospectively an agreement made between SMJ’s attorney and her daughter-in-law.  It had been asserted that SP had given up paid employment to care for SMJ and it was asserted that the agreement would compensate SP for the wages lost by her.  The tribunal sought from SM information about the work foregone, what, if any, payments had been already made by SMJ for the care provided by SP, the amount asserted to be owed by SMJ under the agreement and evidence of the amount paid to date.

10. SM failed to produce much of this information.  While the tribunal had received for some time an abundance of assertions by SP and SM of their entitlement to payment for the care provided by SP and lists of payments made from the funds of SMJ, there was little evidence that assisted the tribunal to make a decision whether or not to authorise an agreement made by SM that constituted a conflict of interest between his duty to his mother and his own interests.  

11. An attorney is not permitted to enter into a transaction that gives rise to a conflict between his duty and his own interests unless the grantor of the Enduring Power of Attorney authorises the transaction.[1]  The tribunal has power to authorise the attorney entering into such a transaction if the tribunal considers that authorisation is in the best interests of the grantor.[2] 

    [1]        Powers of Attorney Act 1998 (Qld) s 73.

    [2] Ibid s 118(2).

12. The tribunal is being asked in this case to provide that authorisation retrospectively.  There had been speculation in the past as to whether this authorisation could be given retrospectively and that speculation has been settled by the Supreme Court’s decision in The Public Trustee of Queensland v Ban[3].  It was determined that, given that the prospective manner in which the language in section 118(2) is expressed, retrospective authorisation could not be provided. Although it could be argued that the comments of Justice Boddice on the limitations of section 118(2) were not made as part of the formal decision in the Ban case, this tribunal, as a tribunal with limited jurisdiction, should adopt and follow the interpretation made by Justice Boddice on this issue.

    [3] (2011) QSC 380.

13. The lack of power to authorise retrospectively the agreement entered into by SMJ’s attorney would not have inevitably resulted in care costs not being paid to SP.  The tribunal can give directions to The Public Trustee of Queensland as administrator for SMJ to make payments to SP.  However the problem remained that SM failed to provide sufficient information to the tribunal on which any such directions could be validly based.

14. The application by SM was dismissed as he failed to support his application with information that could assist the tribunal to consider properly what, if any, payments should be made to his wife for care she had provided to SMJ.  The tribunal should not have to guess at what payments should be properly made or delve through pages of lists of payments in order to find some support for this application.  Failure to comply with the orders of the tribunal has had the consequence that the application must be dismissed.