TCAR - [2017] QCAT 101

CITATION:	TCAR [2017] QCAT 101
PARTIES:	TCAR
APPLICATION NUMBER:	GAA9677-16; GAA9678-16; and GAA12348-16
MATTER TYPE:	Guardianship and administration matters for adults
HEARING DATE:	8 February 2017 and 30 November 2016
HEARD AT:	Cairns
DECISION OF:	Member Johnston
DELIVERED ON:	23 March 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	The Tribunal makes the following Orders: 1. MG is to instruct her solicitor to take all steps necessary to transfer the property situated at CAIRNS back into TCAR’s sole name. 2. MG is to advise the Tribunal when the appointment with the lawyer has been made as soon as possible and advise the Tribunal of the name of the solicitor and the timeframe to comply with the above direction. 3. MG is to provide a copy of the title search showing the property having been returned to the sole name of TCAR. 4. The Tribunal declares that TCAR did not have capacity to make complex financial decisions as at 4 November 2015. 5. The Tribunal dismisses the application by HD for the appointment of administrator.
CATCHWORDS:	Duties of attorney to avoid conflict situations Sections 87 and 88 of the Power of Attorney Act 1998
APPEARANCES:
Day 1: 30 November 2016 RO – social worker TCAR – adult TG – son TM – daughter in law MH – son-in-law MG – daughter MA – grandson SJ – support HD – daughter Day 2: 6 February 2017 TCAR – adult TG – son MG – daughter MA – grandson HD – daughter

REPRESENTATIVES:
TCAR :	BLUE LAWYER Barrister instructed by WHITE LAWYER of the firm FSBM

REASONS FOR DECISION

Background

TCAR lost her husband due to illness on 22 June 2015 and moved next door to live with her daughter MG and her son-in-law MH. On 10 April 2014, TCAR had appointed MG as her Enduring Power of Attorney.
On 4 November 2015, TCAR instructed RED LAWYER of Farrelly’s lawyers to transfer her property (CAIRNS; “the Property”) to MG and MH. The solicitor convinced her to transfer half of her interest to MG and MH as joint tenants with TCAR to hold half the interest and MG and MH one quarter each. The Tribunal will refer to this as the property transaction.
A search of the title shows TCAR as a joint tenant with MG and MH in one-third shares each. This does not even accord with the solicitor’s instructions.
The Public Guardian received a reference in relation to TCAR’s affairs and started an investigation. They were uncertain about TCAR’s capacity to enter into the property transaction. The Public Guardian accordingly lodged an application for a declaration of TCAR’s capacity to enter into the property transaction and brought an application for directions in the event that the Tribunal found that TCAR did not have capacity in relation to property transaction.
HD brought an application seeking the appointment of herself and her brother TG as administrators for TCAR.
The first issue for the Tribunal is whether TCAR had capacity to enter into the property transaction.

Did…

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 TCAR

Details

AGLC: TCAR [2017] QCAT 101
Case: [2017] QCAT 101
Decision Date: 23 March 2017

CaseChat Overview and Summary

The case involved TCAR, an adult, and various family members, including MG, the daughter, and HD, another daughter. The dispute centred on the capacity of TCAR to make complex financial decisions and the transfer of property situated at Cairns. The case was heard by the Tribunal, which was tasked with determining whether TCAR had the capacity to make such decisions as of a specific date and whether HD should be appointed as an administrator.

The legal issues the Tribunal needed to resolve were whether TCAR had the capacity to make complex financial decisions on 4 November 2015 and whether HD should be appointed as an administrator. This required the Tribunal to assess TCAR's mental state and decision-making abilities on that date, and to consider the implications of HD's application for appointment as an administrator.

In its decision, the Tribunal concluded that TCAR did not have the capacity to make complex financial decisions as of 4 November 2015. The Tribunal found that TCAR's cognitive decline had progressed to a point where they were unable to understand and manage their financial affairs. Consequently, the Tribunal dismissed HD's application for the appointment of an administrator, finding that it was not in TCAR's best interests. The Tribunal also directed MG to take all necessary steps to transfer the property back into TCAR's sole name and to provide evidence of the completed transfer.

The Tribunal further ordered that MG must instruct her solicitor to arrange the transfer of the property to TCAR's sole name and report back to the Tribunal with the details of the appointment and the timeframe for compliance. Additionally, the Tribunal declared that TCAR did not have capacity to make complex financial decisions as of 4 November 2015.

Orders

Orders of the court

The Tribunal makes the following Orders:

1. MG is to instruct her solicitor to take all steps necessary to transfer the property situated at CAIRNS back into TCAR’s sole name.

2. MG is to advise the Tribunal when the appointment with the lawyer has been made as soon as possible and advise the Tribunal of the name of the solicitor and the timeframe to comply with the above direction.

3. MG is to provide a copy of the title search showing the property having been returned to the sole name of TCAR.

4. The Tribunal declares that TCAR did not have capacity to make complex financial decisions as at 4 November 2015.

5. The Tribunal dismisses the application by HD for the appointment of administrator.

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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