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- Unreported Judgment
MW  QCAT 275
Guardianship and administration matters for adults
On the papers
Senior Member Endicott
24 March 2016
The application by MS for a declaration about the capacity of MW is dismissed.
GUARDIANSHIP – where adult had died – where declaration about capacity to make an Enduring Power of Attorney was sought – where executors of the estate of the deceased had sought and obtained directions against the former attorney – whether application for declaration was lacking in substance – whether the application should be dismissed
Guardianship and Administration Act 2000 (Qld) – ss 59, 60, 138AA
Powers of Attorney Act 1998 (Qld) – s 106
Queensland Civil and Administrative Tribunal Act 2009 (Qld) – s 47
Public Trustee of Queensland v BN and Ors
 QCAT 666
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
- MW died on 12 August 2015. At the time of his death, his partner of 15 years, SS, was his attorney for personal, health and financial matters. His sons, MS and MM, are his executors. There is some hostility between the sons of MW and SS.
- The sons of MW believe that their father lacked capacity to grant an Enduring Power of Attorney to SS on 26 November 2013. They sought a declaration from QCAT about MW’s capacity to make the enduring document. They also used the jurisdiction of QCAT to seek directions against the former attorney for the production of information and documents that would assist them as executors of the estate of MW. In doing so, they asserted that the information would establish whether the former attorney may have an accountability for some transactions that she had engaged in prior to the death of MW.
- QCAT as a Tribunal of the State does not have the wide jurisdiction of a superior court but has only jurisdiction to determine matters as conferred by an enabling Act. Under the Guardianship and Administration Act 2000 (Qld) (GAA) and the Powers of Attorney Act 1998 (Qld) (PAA), QCAT’s jurisdiction to deal with the affairs of adults who are deceased is not always expressly set out but must in some cases be inferred from the words of the Act.
- Section 59 of the GAA confers express power on QCAT to make compensation orders against a guardian or administrator in favour of the estate of an adult who has died. However, the corresponding power in the PAA for compensation orders to be made against an attorney in favour of the estate of an adult who has died is vested in the Supreme Court, not in QCAT. Power to seek compensation for loss of a benefit in an estate caused by the actions of an administrator is expressly vested in the Supreme Court, not in QCAT.
- Section 138AA of the GAA provides QCAT with the power to give directions to a person who was formerly an attorney for an adult. However, directions can only be made at a hearing of a proceeding about an adult and only when the Tribunal considers directions are necessary because of the ending of the attorney’s appointment. While s 138AA of the GAA does not expressly state that the powers in that section are exercisable after the death of the adult, it is a reasonable inference to draw that directions may be made for the benefit of the estate of an adult. The Tribunal appears to have no other role provided expressly by its enabling legislation to make orders when the adult in question has died.
- Similarly, it is a reasonable inference to draw that making a declaration about the validity of an Enduring Power of Attorney could be within QCAT’s jurisdiction even when the grantor had died if the reasons for seeking a declaration had some substance.
- QCAT made some directions on the application of the sons of MW requiring SS to produce specified documents and things and an explanation if she was unable to produce the documents in accordance with the Tribunal’s directions. The parties to the applications were subsequently invited to make submissions whether the applications should proceed to a final hearing or whether the applications should be dismissed.
- SS, via her attorney, submitted to QCAT that as she had complied with the directions of the Tribunal and the only remaining application was for the declaration about capacity. It was submitted on her behalf that any further issues about the assets of the deceased or his estate would not fall within QCAT’s jurisdiction but would properly be a matter for the courts. It was submitted that the remaining application should be dismissed.
- Neither of the sons of MW made submissions.
- The issue for the Tribunal was whether a declaration about capacity should be made. The relevance of having a declaration to assist with the finalising of the estate of MW was not established by the executors. Determining whether the Enduring Power of Attorney was valid or invalid would make no material difference to the task of the executors in recovering assets for MW’s estate from SS. The presumption of capacity in favour of the validity of the enduring document had already underpinned the exercise of QCAT’s limited jurisdiction to make directions to the attorney at the request of the executors.
- If the enduring document was valid and if SS had acted in contravention of her obligations as an attorney, any loss to the estate could be compensated by action taken in the Supreme Court. If the enduring document was invalid due to a lack of capacity at the time the grant was purportedly made, and if SS had acted unlawfully as the partner of MW in dealing with his assets prior to his death, the executors could take other action to restore the assets to the estate in the Supreme Court. Whether the enduring document was valid or invalid, only the Supreme Court has jurisdiction to restore the value of any loss to the estate.
- QCAT had done all it reasonably could do, given its limited jurisdiction, to require the attorney to provide information to the executors about transactions in which she had been involved. The application for a declaration about capacity lacked substance when such a declaration made no material difference to the estate of MW.
- QCAT does not have to proceed to a hearing for all applications filed in the Tribunal. Section 47 of the QCAT Act provides the power for the Tribunal to dismiss a proceeding if it is determined that the proceeding is lacking in substance or is an abuse of process. There was no ascertainable benefit to MW in evaluating the validity of the enduring document after he had died. The evidence did not reveal that any substantial benefit would accrue to his estate in proceeding to a hearing of the application for a declaration about capacity.
- In that sense, the proceeding lacked substance. It would be tantamount to a futile exercise of the Tribunal’s resources to proceed with an analysis of the validity of the enduring document when action to restore the estate would not be dependent on the outcome. The application was dismissed.
- Published Case Name:
- Shortened Case Name:
 QCAT 275
Senior Member Endicott
24 Mar 2016