VSI v The Public Guardian

Case [2023] QCATA 25

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

VSI v The Public Guardian & Ors [2023] QCATA 25
PARTIES: VSI

(applicant/appellant)

v
THE PUBLIC GUARDIAN
PUBLIC TRUSTEE OF QUEENSLAND
VR
MVG
VS
LR

(respondents)

APPLICATION NO/S:

APL019-20 and APL228-20

ORIGINATING APPLICATION NO/S:

APL019-20: GAA4795-19; GAA4796-19; GAA4797-19; GAA9099-19; GAA9100-19; GAA7401-19

APL228-20: GAA3022-20; GAA3023-20; GAA6018-20; GAA6019-20; GAA6020-20; GAA6021-20

MATTER TYPE:

Appeals

DELIVERED ON:

1 February 2023

HEARING DATE:

13 June 2022

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie (presiding)
Member Kanowski

ORDERS:

APL019-20

1.          The following decisions of the Tribunal made on 9 December 2019 are set aside:

(a)    VR did not have capacity for executing the Advance Health Directive dated 25 March 2019;

(b) The following Advance Health Directive for VR is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000:

The Advance Health Directive dated 25 March 2019 directing VSI her attorney for personal/health matters.

2.          The Appeal Tribunal declares that those decisions of the Tribunal dated 9 December 2019 were invalid.

3.          The direction to the Public Trustee made by the Tribunal on 9 December 2019 that the Public Trustee investigate and if viable and appropriate in all the circumstances,  take such action as is required to challenge the will that VR purportedly made on 13 July 2017, revoking her previous will, dated 27 May 2015 is set aside.

4.          Except as ordered in orders 1 to 3 above, the application for leave to appeal is refused and the appeal is dismissed.

5.          The application by VSI to add a ground of appeal is refused.

6.          The application for miscellaneous matters (notice to produce) is dismissed.

7.          The stay order made on 15 January 2021 is revoked.

APL228-20

8.          Leave to appeal is refused.

9.          The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – IN GENERAL – where declarations about capacity made – where guardian and administrator appointed – whether presumption of capacity applied – whether appointments necessary

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – where directions made to administrator – whether directions valid

Guardianship and Administration Act 2000 (Qld), s 12, s 31

Powers of Attorney Act 1998 (Qld), s 41, s 62, s 63

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 63, s 142

BSJ [2022] QCAT 51

Cachia v Grech [2009] NSWCA 232

Camden v McKenzie [2008] 1 Qd R 39

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

In applications concerning RV [2019] QCAT 384
In applications concerning VR [2020] QCAT 208
Maffey v Mueller [2016] QCATA 19
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
MG & Anor v The Public Guardian…

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Details
AGLC
VSI v The Public Guardian [2023] QCATA 25
Case
[2023] QCATA 25
Decision Date

CaseChat Overview and Summary

The appeal, brought by VSI, against a decision of the Queensland Civil and Administrative Tribunal (QCAT), challenges findings made by the Tribunal regarding the capacity of VR to execute legal documents, including an Advance Health Directive and an enduring power of attorney. The case was heard in the Queensland Appeal Tribunal, which is part of the Queensland Civil and Administrative Tribunal.

The appeal raised several legal issues, including whether the Tribunal correctly found that VR lacked the capacity to execute the Advance Health Directive and the enduring power of attorney. The appeal also questioned whether the Tribunal's findings on these issues were supported by the evidence and whether the Tribunal had applied the correct standard of proof. Additionally, the appeal addressed whether the Tribunal's directions to the Public Trustee regarding the will were valid.

The Appeal Tribunal found that while some statements made by the Tribunal member could be interpreted as placing an onus on VSI to prove VR's capacity, the overall findings did not reveal any unsupported facts. The Tribunal had the opportunity to hear from all parties and could reasonably conclude that VR was not capable of freely and voluntarily making the decision to transfer the White Rock property to VSI. The Tribunal also considered principles of undue influence and the need for independent legal advice. The Tribunal member's findings regarding the enduring power of attorney were supported by the evidence and the relevant legislative provisions. The Tribunal did not apply the incorrect standard of proof.

The appeal was largely dismissed, with certain decisions of the Tribunal set aside, including findings regarding VR's capacity to execute the Advance Health Directive and the enduring power of attorney, as well as a direction to the Public Trustee to challenge VR's will. The appeal tribunal refused leave to add a ground of appeal and dismissed the application for miscellaneous matters. The stay order made on 15 January 2021 was revoked.

Orders

Orders of the court

APL019-20

1. The following decisions of the Tribunal made on 9 December 2019 are set aside:

(a) VR did not have capacity for executing the Advance Health Directive dated 25 March 2019;

(b) The following Advance Health Directive for VR is declared invalid pursuant to s 113(2) of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000:

The Advance Health Directive dated 25 March 2019 directing VSI her attorney for personal/health matters.

2. The Appeal Tribunal declares that those decisions of the Tribunal dated 9 December 2019 were invalid.

3. The direction to the Public Trustee made by the Tribunal on 9 December 2019 that the Public Trustee investigate and if viable and appropriate in all the circumstances, take such action as is required to challenge the will that VR purportedly made on 13 July 2017, revoking her previous will, dated 27 May 2015 is set aside.

4. Except as ordered in orders 1 to 3 above, the application for leave to appeal is refused and the appeal is dismissed.

5. The application by VSI to add a ground of appeal is refused.

6. The application for miscellaneous matters (notice to produce) is dismissed.

7. The stay order made on 15 January 2021 is revoked.

APL228-20

8. Leave to appeal is refused.

9. The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We accept that some of the learned member’s statements could be construed as placing an onus on VSI to prove that VR had capacity to decide to transfer the White Rock property to him, such as:I note the existence of ample evidence suggesting that the Adult transferred her property under the influence, if not at the bidding of her son [VSI], who stood to gain from the transaction but did not take any steps to ensure that his mother’s interests were protected by ensuring that her decision was freely and voluntarily undertaken and truly reflected her wishes.[51][51]Ibid, [78] bolding added. However, in our view, ultimately, the learned member had the opportunity to hear from all of the active parties and others present at the hearing. His reasons insofar as they specifically related to the transfer of the White Rock property, when read as a whole, do not reveal any finding of fact made by the learned member that the evidence was not capable of supporting. It was therefore open for the learned member to reach the conclusion that the weight of the evidence supported the conclusion that VR was not capable of freely and voluntarily making the decision to transfer the White Rock property to VSI. Further, the learned member appears to have also relied on principles of undue influence, and placed an onus on VSI that he ought to have ensured VR received independent legal advice and that ‘some if not all of her information and advice came from [VSI], to whom she was effectively gifting her house’.[52] The learned member then added: ‘There is little doubt that an independent lawyer would have not only been able to reassure the Adult as to her concerns but would also have ensured that she understood the implications of transferring the title to her house.[53] [52]In applications concerning RV [2019] QCAT 384, [78].[53]Ibid, [73]. At the time of the decision, the learned member was unaware that there was in fact in existence an earlier enduring power of attorney made in 2015 appointing VSI and his sister MVG as attorneys. The learned member made a series of findings relating to the enduring power of attorney. The learned member found that VR lacked the capacity to understand the nature and effect of the enduring power of attorney.[54] The learned member went further finding that even if he was wrong in that regard, he would find that VR was not capable of freely and voluntarily making the document.[55] The learned member also found that the circumstances surrounding VR’s execution of the enduring power of attorney satisfied elements of undue influence.[56][54]Ibid [254]. [55]Ibid [255].[56]Ibid, [265] and [86]. We do not accept that the learned member applied the incorrect standard of proof in deciding that VR did not have capacity to make the enduring power of attorney. The learned member properly considered the relevant legislative provisions relating to capacity to make an enduring power of attorney in s 41(2) of the POA Act and then said:[57]This demanding level of understanding required by those making an EPA is reflected in the Principal’s statement of understanding and in the instructions for the witness and in the witness’s certificate. I note that the form used for the Adult’s EPA clearly spells out these requirements.[57]Ibid, [227].

Ratio Decidendi

Legal Principle Established

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