BXE[2015] QCAT 253

APPEARANCES:

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

1. [1]
   BXE is now 90 years old and lives in a nursing home on the Gold Coast. On 17 May 2006 she appointed her daughters BD and BJA attorneys for financial and personal health matters under an enduring power of attorney.
2. [2]
   BXE’s son, BJO lives in the Northern Territory and applied to the Tribunal on 10 November 2014 seeking the appointment of the Public Trustee as an administrator and seeking the revocation of the enduring power of attorney for financial matters.
3. [3]
   The basis for the application was that he was concerned the attorneys were not acting in the best interests of his mother.
4. [4]
   He had been seeking information from the attorneys through his lawyer regarding his mother’s financial affairs and was dissatisfied with their responses.
5. [5]
   The history is briefly set out as follows.
6. [6]
   On 9 May 2014 lawyers for BJO, Crilly Lawyers advised the attorneys they were engaged to act for BJO with respect to the enduring power of attorney. Crilly Lawyers advised them that:

Pursuant to their obligations under the enduring powers of attorney they were to keep detailed records of financial dealings undertaken on behalf of their mother and provide evidence of such action should they be requested to do so.

Despite our client’s previous request for such information particularly concerning your mothers finances there has been no response from either of you. Our client is concerned as to the reason why this information is not forthcoming. Accordingly we now request on our client’s behalf records of all financial dealings undertaken pursuant to your mother’s enduring power of attorney to be provided to us.

7. [7]
   The attorneys were further advised that QCAT proceedings would commence within 14 days if the documents are not received.
8. [8]
   Lawyers for the attorneys Short Punch & Greatorix replied on 28 May 2014 enclosing a range of documents including:

• the 2013 income tax return of BXE;
• a letter from the Public Trustee of 31 March in relation to the estate of BXJ showing that an amount of approximately $40,000.00 is to be paid to BXE upon finalisation of the estate;
• Tricare Residential Care Agreement;
• a Tricare letter dated 11 April 2014 regarding reimbursement of the costs of a retirement unit;
• documents from Robina Financial Solutions indicating future financial projections and current investments held by BXE; and
• a copy of BXE’s Centrelink pension statement.

9. [9]
   Short Punch & Greatorix also advised Mr Crilly that there was no clear evidence that the attorneys were obligated to provide any information pertaining to their acting as attorneys.
10. [10]
    Crilly Lawyers responded on 5 June 2014 noting the information did not provide sufficient detail and requested considerable additional detail including but not limited to:

• copies of the settlement statement for a former property;
• statements of shares held by BXE;
• bank statements and statements of managed funds;
• details of gifts;
• details of declarations made by the attorneys to Centrelink; and
• the last five years of tax returns.

11. [11]
    Crilly Lawyers noted that BJO had been excluded from the decision-making processes with respect to financial matters and this was the basis for his concerns. A reply was requested before 22 June 2014. Various holding replies were sent by Short Punch & Greatorix.
12. [12]
    On 3 July 2014, Crilly Lawyers proposed a detailed list of information that the attorneys provide BJO on a regular basis not dissimilar to that proposed in the letter of 5 June 2014.
13. [13]
    It did however include other matters such as a demand for income and expenditure records; a requirement that he be notified about proposed changes to investments 30 days prior to the change and notice of proposed gifts 30 days prior to the gifts; and access to financial documents generally.
14. [14]
    Lawyers for the attorney advised by letter of 19 September 2014 that financial records are currently with the accountants for the 2013/2014 financial year. They requested by letter of 10 October 2014 advice as to the legal basis on which BJO sought the information noting that they will not be sending any further information other than the tax return.
15. [15]
    On 27 October 2014 Crilly Lawyers advised that Part 4 of the Powers of Attorney Act 1998 (Qld) imposes duties and responsibilities on the attorney and the Act does not impose a duty to disclose.
16. [16]
    Submissions received from the parties prior to the hearing stated or implied:

• gifts had been given to BJA during the period of the EPA’s operation;
• BXE previously discussed her finances with her son;
• BJO had assisted BJA financially in the past;
• BJO would agree to the sisters remaining as attorneys if they could all agree to the provision of specific information to him on a regular basis;
• BXE made her own decisions on the sale of the previous family home;
• The attorneys were willing to show all relevant information to QCAT;
• The attorneys had sought financial planning advice from the same financial planner used previously by their mother over 12 years.

17. [17]
    A further application was received by BJO prior to the hearing seeking the Tribunal to issue a notice to produce certain documents including bank statements from 2009, income tax returns, Centrelink declarations and details of gifts.
18. [18]
    The Tribunal considered it appropriate to issue a notice to the attorney to produce only bank statements and only from 2012 as BXE had capacity until late in 2012.
19. [19]
    At the hearing on 13 March 2015, the attorneys advised they started acting just before the ACAT assessment of 20 November 2012. The applicant provided a six page review of the bank statements that were produced and sought more information from the attorneys regarding bank statements in particular gifts to BJA, dental expenses, credit card expenses and various withdrawals from bank accounts. He was also concerned about other expenses on food, alcohol and petrol.
20. [20]
    Following the oral response from the attorneys he decided not to proceed and requested the application be dismissed. I made orders accordingly and directed the attorneys to provide annual information to BJO as follows:

    1. A list of BXE’s current assets;
    2. A copy of the tax return for the previous financial year;
    3. Details of expenditure for individual items over $1,000.00 in the previous financial year and
    4. The amount given to BJA by way of gifting in the previous financial year.
21. [21]
    I found that the attorneys had kept good financial records, that they have sought financial planning advice, and had kept faith with their mother’s investment in shares. All of her bills were paid, the attorneys had disposed of unnecessary assets, they had maintained her mother’s gifting behaviour, and there was no evidence of the attorneys having breached the Powers of Attorney Act 1998 (Qld). I noted that the adult had used her credit card extensively when she had capacity and had been generous to daughters on outings regarding meals etc.
22. [22]
    I also noted that the credit card had not been renewed when BXE lost it.
23. [23]
    BD applied to the Tribunal following the hearing for her costs in this matter as follows:

    1. Legal costs from Short Punch & Greatorix incurred from 1 May 2014 to date $4,957.00;
    2. Advicelink costs for Lyn Walker re clarification of her mother’s capacity when signing the EPOA as requested by BJO $330.00;
    3. RFS Aged Care application and assistance regarding responses and Centrelink $1,540.00;
    4. RFS Aged Care for time spent assisting the preparation of QCAT documentation attending the hearing and photocopying.

Total $8,917.00

24. [24]
    RFS Aged Care is Robina Financial Solutions, a financial planning company.
25. [25]
    BD provided invoices to support her claim. BJO opposes her application and both provided written submissions in support of their positions.

The submissions of the attorney applicant

26. [26]
    BD submits she has incurred costs as a result of BJO’s unreasonable demands for the production of financial information regarding their mother. She states the initial letter of May 2014 requesting information was responded to and should have satisfied him regarding the value of the estate and the appropriateness of their appointment.
27. [27]
    This was followed she said by increasingly more involved and detailed and unreasonable demands.
28. [28]
    Her solicitor had asked on what legal basis the information was required. After some months the solicitor quoted Part 4 for the Powers of Attorney Act 1998 which the attorney submits is of no relevance.
29. [29]
    She further submitted that more demands were made followed by an application to QCAT which argued that the attorneys were not carrying out their duties and not providing information.
30. [30]
    She indicated that the material provided on 28 May 2014 showed no depletion in the estate, that she had sought legal advice, the shares were intact and included details of the finances around the retirement unit.
31. [31]
    She also noted in her submissions that the notice to produce the records involved a lot of photocopying.
32. [32]
    Finally she submitted that the demands were unreasonable and the actions of her brother in bringing the application and requesting the information was unfounded.

BJO’s submissions

33. [33]
    BJO submitted that it was his original intention to make informal arrangements with his sister regarding the provision of information but this was unsuccessful.
34. [34]
    By correspondence of 26 June 2014 the solicitors for the attorneys had indicated a willingness to come to an agreement in the provision of information but four months later advised there would be no agreement.
35. [35]
    BJO submitted that the bank statements were only produced when they were ordered by the Tribunal.
36. [36]
    BJO notes that gifts were made to BJA in the order of approximately $13,000.00 per year and he was not aware of this.
37. [37]
    He also submitted that the Tribunal made final orders which provided for information to be given to him on an annual basis.
38. [38]
    BJO indicated that his mother had previously discussed her financial affairs with all three children and when he requested in a text in November 2013 for some information BD did not provide this.
39. [39]
    He noted that the attorneys could reimburse themselves for costs from their mother’s estate.
40. [40]
    BJO contended that the attorneys did not need to bring the Robina Financial Services to the Tribunal hearing and that the $2,090.00 claimed against him was completely unwarranted and should be the attorneys expense.
41. [41]
    He considered that there had been a lack of transparency and the application could have been avoided if there had been more cooperation from the attorneys with more honesty and transparency.
42. [42]
    He indicated that he made the enquires and the application in good faith.
43. [43]
    Finally he submitted that either the application should be dismissed or that as the action was defended by the sisters in the role as attorney any costs incurred should be reimbursed from the mother’s estate.

The Tribunal’s view

44. [44]
    Section 127 of the Guardianship and Administration Act 2000 (Qld) provides that each party in a proceeding is to bear their own costs. There is an exception, however. Section 127(2) provides as follows:

However, the tribunal may order an applicant to pay an active party’s costs and the costs of the tribunal in exceptional circumstances, including, for example, if the tribunal considers the application is frivolous or vexatious.

45. [45]
    What is exceptional is a matter of discretion, and is to be considered on a case by case basis according to the facts and circumstances of the case. To be exceptional, the case has to be unusual or out of the ordinary
46. [46]
    In this regard I need to consider whether the actions of the attorney are warranted in bringing this application. It is clear that the relationship between the siblings is characterised by mistrust.
47. [47]
    The Powers of Attorney Act 1998 (Qld) imposes duties on attorneys to:

• Act honestly and with reasonable diligence;^[1]
• Exercise power according to the terms of the Powers of Attorney Act;^[2]
• Avoid conflict transaction;^[3]
• Apply the general principles;^[4]
• Consult with other attorneys;^[5]
• Keep records;^[6]
• Keep property separate.^[7]

48. [48]
    An attorney may only gift the principal’s money under certain circumstances including if the gift is a donation of the nature the principal made when the principal had capacity.^[8]
49. [49]
    An attorney is not under any duty to provide detailed financial information to any person including a family member. Indeed BJO’s solicitor identified this in his letter to the attorneys on 27 October 2014, some months before the hearing. Attorneys are obliged under clause 11 of the General Principles to recognise that an adult has a right to confidentiality of information about the adult and this must be taken into account in decision-making.
50. [50]
    The attorneys in this matter have done nothing wrong. They have complied with all the sections of the Act referred to above. In my view they provided BJO with adequate information in the correspondence to Crilly Lawyers on 28 May 2014. It is arguable that the information provided exceeded what an attorney would normally be expected to provide.
51. [51]
    It contained the latest tax returns, details of all investments with cashflow projections and evidence of Centrelink benefits along with a range of other documents.
52. [52]
    Subsequent correspondence by Crilly Lawyers seeking background documents and, in my view, forensic details, was unreasonable and extraordinary. Indeed the attorneys are under some obligation to keep this information confidential.
53. [53]
    BJO was not entitled to it, and his lawyers knew this. The attorneys did the right thing in not providing it.
54. [54]
    General Principle 8 regarding the maintenance of existing supportive relationship cannot be relied upon to obtain an adult’s confidential information.
55. [55]
    As noted above I found that the attorneys had acted appropriately.
56. [56]
    BJO aggressively pursued the attorneys through his lawyer for information he was not entitled to. Even when the attorneys provided some information he was not satisfied, despite no evidence in the material provided or anywhere else of any impropriety on the part of the attorneys.
57. [57]
    It should not be the case that properly appointed attorneys acting appropriately are out of pocket because a relative is dissatisfied that he or she is not part of the decision-making regime.
58. [58]
    I accept the submissions of the applicant that BJO’s demands were unfounded and unreasonable. There was no legal basis for his requests. I consider this case to be an exceptional one for the reasons articulated above.
59. [59]
    BD seeks $8,917.00 which has been supported by invoices and referred to above.
60. [60]
    BJO asked me to consider ordering that any costs incurred by the attorneys be reimbursed from the mother’s estate. BD has chosen not to burden her mother with the costs she incurred. That is a matter for the attorneys. BD asked me for her costs so does not wish these passed on to her mother. I will not order her to pass them on.
61. [61]
    I am not inclined to give her all the costs associated with Robina Financial Solutions. One reason for this is that she chose to have the advisor attend the hearing. Neither the Tribunal nor the applicant asked for her attendance.
62. [62]
    Secondly the Tribunal directed her to provide the bank statements. As a result these costs will not be granted.
63. [63]
    Thirdly the attorney decided to ask the advisor for a statement regarding capacity.
64. [64]
    I do accept the advisor was appropriately engaged to assist in preparing some documentation for the hearing. I will award eight hours at $200.00 or $1,600.00 instead of the $3,630.00 applied for.
65. [65]
    In my final orders I directed the attorneys to supply BJO annually with two documents the attorneys had not previously supplied. That is details of expenditure for individual items over $1,000.00 in the previous financial year and the amount given to BJA by way of gifts.
66. [66]
    I was satisfied that this was reasonable in the circumstances of a lack of trust between the attorneys and BJO.
67. [67]
    BJO finds this far more favourable in his submission.
68. [68]
    It however in no way compares to what he was requesting from the attorneys. It could be said that BJO had a partial victory in this regard and therefore his application had some merit.
69. [69]
    Overall however because of the circumstances outlined I consider his application had little merit and I will award BD 90 per cent of the solicitors costs or $4,461.49.
70. [70]
    In total the costs to be paid to BD by BJO are $6,061.49.
71. [71]
    I order that this be paid within 90 days of the date of the Order.