Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

GAW

 

[2020] QCAT 292

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

GAW [2020] QCAT 292

PARTIES:

In an application about matters concerning GAW

APPLICATION NO/S:

GAA8864-20

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

30 July 2020

HEARING DATE:

29 July 2020

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

ORDERS:

  1. The Enduring Power of Attorney of GAW dated 26 September 2007 appointing GJP and CMS as attorneys severally for financial, personal and health matters is declared valid.
  2. Pursuant to s 115 of the Powers of Attorney Act 1998 (Qld) the Tribunal declares the powers given to the attorneys under the Enduring Power of Attorney dated 26 September 2007 have begun.
  3. The mistake contained in the Enduring Power of Attorney being the misspelling of the middle name of GAW does not materially affect the validity of the Enduring Power of Attorney of GAW dated 26 September 2007 which Enduring Power of Attorney can now be acted upon by the remaining attorney CMS.

CATCHWORDS:

HEALTH LAW – MISCELLANEOUS MATTERS – Enduring Power of Attorney – where mistake made on enduring document – where middle name of donor misspelt attorney signed his acceptance before the date of grant of the powers – where original enduring document is lost – where certified copy made

Powers of Attorney Act 1998 (Qld) - ss 44, 45, 109A, 113, 115

APPEARANCES:

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

REASONS FOR DECISION

  1. [1]
    GAW made an Enduring Power of Attorney on 26 September 2007 in which he appointed his wife GJP and his daughter CMS severally as his attorneys.
  2. [2]
    GJP passed away on 20 July 2014.
  3. [3]
    When the Enduring Power of Attorney was prepared, there was a spelling mistake made in the spelling of GAW’s middle name.  Two letters were reversed.  At the execution of the Enduring Power of Attorney this mistake was not identified. 
  4. [4]
    GAW’s My Aged Care medical documentation produced to the Tribunal shows that GAW’s Enduring Power of Attorney was invoked in November 2019 by CMS who has been assisting her father ever since. 
  5. [5]
    GAW’s bank has advised it is unable to accept CMS acting under the Enduring Power of Attorney because of the misspelling.  GAW has recently relocated to a care facility, but CMS is unable to access his funds to meet his financial needs in the facility because of the mistake in the enduring document.
  6. [6]
    On 6 July 2020, CMS filed an application for an order concerning the validity of the Enduring Power of Attorney.
  7. [7]
    This Tribunal has power under sections 109A and 113 the Powers of Attorney Act 1998 (Qld) (EPA Act) to declare whether an Enduring Power of Attorney is valid and under section 115 of the EPA Act, the Tribunal can declare that a power has commenced. 
  8. [8]
    Section 118 allows this Tribunal to give directions or advice or make recommendations, an order or a declaration about the interpretation of the terms of a Power of Attorney or another issue involving a Power of Attorney.
  9. [9]
    This represents a wide jurisdiction vested in the Tribunal contemporaneously with the Supreme Court of Queensland. 
  10. [10]
    An examination of the enduring document prepared by a solicitor indicates that in all other respects, apart from the misspelling, it is a valid Enduring Power of Attorney and reflects the wishes of GAW at the time it was made and before he lost capacity.
  11. [11]
    I am satisfied that the misspelling of GAW’s middle name was a simple mistake that was not identified by any party at the signing of the enduring power.
  12. [12]
    I am further satisfied that it does not materially affect the validity of the Enduring Power of Attorney of GAW dated 26 September 2007.
  13. [13]
    CMS has been acting under this document as attorney for her father since November 2019. 
  14. [14]
    On 7 February 2020 GAW’s general practitioner opined that GAW was incapable of making his own decisions due to moderate to severe cognitive impairment.  The details of this impairment are explained in the My Aged Care medical documentation dated 27 March 2020.  GAW has a number of deteriorating physical impairments and requires now ongoing supervision due to cognitive concerns.
  15. [15]
    I am satisfied the Enduring Power of Attorney should now continue to be acted upon by the remaining attorney, CMS.
Close

Editorial Notes

  • Published Case Name:

    In an application about matters concerning GAW

  • Shortened Case Name:

    GAW

  • MNC:

    [2020] QCAT 292

  • Court:

    QCAT

  • Judge(s):

    Member Gardiner

  • Date:

    30 Jul 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.