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JLG[2019] QCAT 277

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

JLG [2019] QCAT 277

PARTIES:

In an application about a matter concerning JLG

APPLICATION NO/S:

GAA13973-18

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

10 June 2019

HEARING DATE:

15 May 2019

HEARD AT:

Cairns

DECISION OF:

Member Johnston

ORDERS:

CONFLICT TRANSACTION

The Tribunal approves the conflict transaction involving the sale of JLG‘s property situated at 35 White Street, Queensland by JGL‘s attorney KAR to KHW for the sum of $270,000.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – conflict transaction: Appropriate use of the adult’s assets need for house to be sold to reduce Refundable Accommodation Deposit (‘RAD’) and Daily Accommodation payment (‘DAP’) conflict transaction sale to Attorney’s son

Guardianship and Administration Act 2000 (Qld), s 152

APPEARANCES &

REPRESENTATION:

KAR – Attorney/daughter

JEW – son

JJB – son

REASONS FOR DECISION

Background

  1. [1]
    JLG appointed her daughter KAR under an Enduring Power of Attorney dated 16 June 2011 for financial and personal health care decisions with the powers to commence immediately.
  2. [2]
    JLG was diagnosed with Alzheimer’s disease. She required an increased level of support and a decision was made to place her in the Bolton Clark Fornorha nursing home.
  3. [3]
    The medical evidence around the adult’s health meant that there was no prospect of her being able to return home to live. The question then arose what to do with the adult’s house. A Refundable Accommodation Deposit or RAD of $375,000 and a Daily Accommodation Payment or DAP had been assessed. The attorney’s plan was to sell the house and reduce the RAD and DAP payments to a more manageable level.
  4. [4]
    The nature of the conflict transaction is that the attorney wishes to sell the property to son KHW.

Capacity

  1. [5]
    The applicant filed with the application a Health Professional Report by Dr Susan McDonald GP. Dr McDonald had known JLG for a period of 14 years. The doctor stated that the adult has a diagnosis of Alzheimer’s disease with depression and anxiety and generalised vascular disease. Dr McDonald was of the view that JLG lacked capacity to manage her financial affairs.
  2. [6]
    The family members present at the hearings agreed with the evidence in Dr McDonald’s Health Professional Report.
  3. [7]
    The Tribunal makes the following Findings of fact:
    1. JLG has been diagnosed with Alzheimer’s disease;
    2. This has severely affected her cognitive abilities; and
    3. JLG is unable to manage her financial affairs.
  4. [8]
    The presumption of capacity for financial matters is rebutted. 

The conflict transaction

  1. [9]
    The core or primary obligation of an attorney is to act in the best interests of the adult.
  2. [10]
    KAR’s evidence was that she had obtained evidence from a valuer so that her son would be paying the market value for the property.
  3. [11]
    There was some tension between JLG’s children at the first hearing and the Tribunal adjourned the hearing to allow family members to have a discussion about the price and their willingness to sell the property to KAR’s son.
  4. [12]
    The children of JLG are KAR, JJB, and JEW.
  5. [13]
    The Tribunal at the second part of the hearing heard that:
    1. that all family members were happy with the price the property was being sold for; and
    2. all of the adult’s children were in support of the sale of the to KAR’s son.
  6. [14]
    The Tribunal was of the view in this matter that:
    1. a conflict transaction should not be detrimental to the adult’s financial position unless there is a very good reason to otherwise act;
    2. there must be independent evidence as to value. In this case there was evidence from Herron Todd White Valuers;
    3. where there is a sale or transfer to a family member this could be construed as a favourable preference. The Tribunal is of the view in such cases that it would be preferable for all the children of JGL to be in support of the sale to KHW the son of the attorney KAR; and
    4. there should be a solid financial basis for the transaction. In this case the sale would have the effect of a significant reduction in the adult’s RAD and DAP payments. The Attorney had sought financial planning advice and advice from Centrelink as to the appropriate options in this case. This was a prudent course.
  7. [15]
    There was no chance of the adult returning home.
  8. [16]
    The Tribunal accepts the attorney’s evidence that she has been appropriately managing her mother’s finances as attorney.

The Law

  1. [17]
    An attorney can only enter into a conflict transaction if the principal authorises the transaction or the Tribunal authorises the transaction: s 152 of the Guardianship and Administration Act 2000 (Qld).
  2. [18]
    An adult with impaired capacity has a right to have adequate and appropriate support for decision-making: s 5(e) of the Guardianship and Administration Act 2000 (Qld).
  3. [19]
    The evidence is that JLG’s savings will be significantly depleted in the next three years.
  4. [20]
    The decision to sell JLG’s house to pay her RAD therefore eliminates both interest payments and as well as reducing her DAP which will result in a significant improvement in the Adult’s financial position.  JLG will be able to meet her expenses from her pension and have some savings to meet future contingencies.
  5. [21]
    The Tribunal is satisfied that the approach of this transaction is in JLG’s best interests.
  6. [22]
    The plan is soundly based and will help JLG’s financial circumstances.
  7. [23]
    KAR has consulted with Centrelink, a financial planner and with a valuer to arrive at what she sees as a transaction being in the best interests of her mother.
  8. [24]
    The Tribunal is satisfied that KAR has taken all the reasonable steps required in these circumstances and approves her application for approval of a conflict transaction.
  9. [25]
    The Tribunal is satisfied she is acting as Attorney in her mother’s best interests.
  10. [26]
    The Tribunal for these reasons makes the Orders set out above.
Close

Editorial Notes

  • Published Case Name:

    JLG

  • Shortened Case Name:

    JLG

  • MNC:

    [2019] QCAT 277

  • Court:

    QCAT

  • Judge(s):

    Member Johnston

  • Date:

    10 Jun 2019

Appeal Status

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

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