WCV - [2016] QCAT 114

CITATION:

WCV [2016] QCAT 114

PARTIES:

WCV

APPLICATION NUMBER:

GAA1908-16
GAA1911-16
GAA

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

15 April 2016

HEARD AT:

Southport

DECISION OF:

Member Mc Donald

DELIVERED ON:

10 May 2016

DELIVERED AT:

Southport

ORDERS MADE:

1. RW as the appointed Administrator is authorised to enter the conflict transaction being:

that the Administrator may continue to reside in WCV property in exchange for market rent, presently being $400 per week.

2. The appointment of RW as Administrator for WCV for all financial matters is continued.

3. This appointment remains current until further order of the Tribunal. It is reviewable and will be reviewed in one (1) year.

4. The Administrator shall file an updated management plan by 11 August 2016.

CATCHWORDS:

Approval of financial management plan, review of appointment of Administrator, conflict transaction; Trusts Acts 1973,section 22(4) prudent persons rule, power to invest, Guardianship and Administration Act 2000, Sections 50,51, 39, 35, Schedule 4.

APPEARANCES:

RW , SW, AW.

REASONS FOR DECISION

Conflict Transaction

WCV, now aged 93 years, suffered a major stroke in September 2014. He has been living in a nursing home since that time. The stroke affected most areas of his function, and significantly affected his language centre. As a result, WCV has minimal communication and is unable to communicate his needs and wants. WCV executed an enduring power of attorney on 27 August 2012 appointing his two sons RW and SW as attorneys for all personal health and financial matters. His son RW was appointed Administrator for all financial matters for his father WCV on 16 January 2015 when SW, the co-attorney sought to resign from his joint appointment with RW under an Enduring Power of Attorney. The Tribunal made an administration appointment at the time because there had been some transactions relating to the adult’s property that the Tribunal sought to monitor. At this hearing it was identified that RW was living in WCV’s home. RW was asked to make an application for the approval of a conflict transaction.
The conflict transaction hearing was set down on 28 January 2016. During this hearing RW informed the Tribunal that he had paid a sum of rental each week to his brother to live in the house as well as an advance payment on his father’s behalf by way of an investment. The rent in advance to WCV was in the form of a purchase of a managed investment in WCV’s sole name. This investment was a solicitor’s first mortgage. He had also invested the adult’s funds in another solicitor’s first mortgage. He indicated that he was receiving the income from one of these two investments into his own account. RW presented some illegible material about his contributions for which he claimed he was not seeking compensation. Immediately prior to this hearing RW advised that the Accounts provided to the Tribunal on 6 January 2016 were based on a system where he outlaid all costs for the adult and sought…

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

AGLC: WCV [2016] QCAT 114
Case: [2016] QCAT 114
Decision Date: 10 May 2016

CaseChat Overview and Summary

The case before the court involved an application to approve a financial management plan and review the appointment of an Administrator for WCV. The court considered the propriety of a conflict transaction, where the Administrator continued to reside in the WCV property in exchange for market rent. The dispute was governed by the Trusts Acts 1973 and the Guardianship and Administration Act 2000. The court was tasked with determining the legality of the proposed transaction under the prudent persons rule, as well as the appropriateness of the Administrator’s appointment and the necessity of the financial management plan.

The primary legal issues before the court were whether the conflict transaction was in compliance with the prudent persons rule and whether the appointment of the Administrator was appropriate. The prudent persons rule, found in section 22(4) of the Trusts Acts 1973, mandates that investments and transactions must be made with the care an ordinarily prudent person would exercise in managing their own affairs. The court also had to consider sections 50, 51, 39, and 35 of the Guardianship and Administration Act 2000, which outline the powers and responsibilities of an Administrator, as well as the requirements for approving financial management plans.

In its reasoning, the court found that the proposed conflict transaction was consistent with the prudent persons rule. It determined that the arrangement for the Administrator to reside in the WCV property at market rent was a reasonable and prudent transaction. The court further upheld the appointment of the Administrator, finding it to be appropriate and in the best interest of the estate. It authorised the Administrator to enter into the conflict transaction and directed the filing of an updated management plan by a specified date. The court ordered the continuation of the Administrator’s appointment, subject to a review in one year.

The final orders of the court authorised the Administrator to enter into the conflict transaction, continuing their appointment and requiring the filing of an updated management plan by a specified date. The court also set a one-year review for the appointment of the Administrator.

Orders

Orders of the court

1. RW as the appointed Administrator is authorised to enter the conflict transaction being:

that the Administrator may continue to reside in WCV property in exchange for market rent, presently being $400 per week.

2. The appointment of RW as Administrator for WCV for all financial matters is continued.

3. This appointment remains current until further order of the Tribunal. It is reviewable and will be reviewed in one (1) year.

4. The Administrator shall file an updated management plan by 11 August 2016.

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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