JL[2022] QCAT 408

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   In satisfaction of s 114A of the Guardianship and Administration Act 2000 (Qld) (the GAA Act), the adult and other active parties and interested persons are referred to herein in a de-identified format.

The Issue

2. [2]
   The applicant CL, JL’s daughter, applies under the Guardianship and Administration Act 2000 (Qld) (the GAA Act) to be appointed solely as her mother’s guardian and administrator. But such is done in the shadow of enduring powers of attorney having been given by JL to both CL and her brother AL.
3. [3]
   The issue in these proceedings is whether there is a valid appointment under an Enduring Power of Attorney (EPOA) given under the Powers of Attorney Act 1998 (Qld) (the POA Act) for personal including health, and financial matters. Associated with this is whether there has been an effective revocation of an EPOA.
4. [4]
   If there is a valid appointment, unless there is a basis for me to find that the appointee is, or the appointees are, not competent to perform the role as an attorney, or JL’s circumstances or other circumstances have changed to the extent that one or more of the terms of the relevant EPOA are inappropriate, then there is simply no basis for the removal of the validly appointed attorney and/or the appointment of a guardian and/or an administrator.^[1] In all respects, if I am satisfied that the appointment can function effectively and in accordance with the General Principles as they are expressed in the POA Act, there is no reason to change JL’s decision to appoint that attorney.^[2]
5. [5]
   For the reasons I discuss herein, my conclusion is that there is a valid appointment, and that appointee is CL alone. This is for two reasons. Firstly, the giving of the enduring power of attorney to CL by JL in Queensland, it being subsequent to the appointment of AL in Victoria, effectively revoked AL’s appointment as the attorney. Secondly, the purported revocation by JL of the appointment of CL was ineffective.
6. [6]
   Moreover, there is nothing before me to suggest that CL’s appointment cannot function as it is intended, and accordingly there is no basis upon which the appointment of a guardian and/or administrator is required. As such, CL’s application for appointment of a guardian and an administrator will be dismissed, and her application for an order about an enduring power of attorney will be answered with advice given under s 188 of the POA Act that her EPOA is the only appointment remaining current.

Background

7. [7]
   At the time of the hearings JS was 92 years of age, resident in an aged care facility.
8. [8]
   On 7 December 2021, her daughter CL applied to this Tribunal to be appointed as her mother’s guardian and administrator.^[3] The stated premise for that application was ‘old age’ and a ‘belief in the onset of dementia’. Therein CL noted that JL had made an EPOA listing herself as that attorney.
9. [9]
   Simultaneously with the filing of the application, CL also filed a copy of what was said to be the relevant EPOA document under which JL appointed CL. This expressed the appointment as one for personal (including health) matters and financial matters, to be given immediate effect. It is dated 4 June 2021.^[4] As I will discuss later in these reasons, that document also showed in answer to the question therein ‘How must your attorneys make decision’ the box ‘severally’ was ticked.
10. [10]
    On 28 June 2022 JL had a stroke and as a result was hospitalised, later locating to the aged care facility. Subsequently, on 26 July 2022 CL filed a Health Professional Report of a Dr Wu, seemingly in furtherance of her application.^[5]
11. [11]
    On enquiry from a Tribunal Registry Staff Member on 27 July 2022 questioning CL as to why she was pursuing the application for appointment of a guardian and administrator in the circumstances she states she also holds her mother’s EPOA, CL stated that her brother AL also holds an EPOA for her mother, one being issued in Victoria but of which she does not hold a copy. She also stated that the Bank of Queensland (BOQ) will only approve transactions on her mother’s account when both CL and AL agree.^[6]
12. [12]
    In subsequent correspondence to the Tribunal Registry, but before any formal hearing in this matter, CL also raised allegations that her brother AL had taken money from his mother’s account since CL lost access to it.^[7]
13. [13]
    With that as the background to that stage of the proceeding, these applications were initially heard by me on 17 August 2022. JL was not present on that occasion. After a short discussion with both CL and AL it was entirely unclear to me as to why CL could not act in her role as the appointed Attorney. I draw the attention of both CL and AL to s 34 and s 50 of the POA Act that provided for recognition in Queensland of AL’s EPOA issued in Victoria but also its revocation by the subsequent giving of CL’s EPOA. However discussion on these issues was complicated by the fact that the Tribunal had not been provided a copy of the EPOA document evidencing that which was said to have been the power of attorney given by JL to AL, and that CL was unable to explain in any meaningful manner as to why the BOQ was not recognising the power of attorney given to her. Accordingly, I adjourned the hearing giving directions for the filing of further material and submissions.^[8]
14. [14]
    On 18 August 2022, AL provided to this Tribunal’s Registry a copy via e-mail of the Enduring Power of Attorney given to him by CL in Victoria under the Powers of Attorney Act 2014 (Vic). It is shown to have been given on 17 April 2019 appointing AL solely as attorney for all personal and financial matters. He also provided a copy of an Appointment of Medical Treatment Decision Maker shown to have been signed by JL on 17 April 2019 simultaneously appointing AL as sole medical treatment decision maker for her.^[9]
15. [15]
    On 18 August 2022 CL contacted the Branch Manager at the BOQ with whom she had been dealing, explaining to her the outcome of the hearing of 17 August 2022 and asking that the BOQ recognise her EPOA.^[10] It is apparent from the e-mailed communications with the BOQ that CL provided to the Tribunal that the BOQ had been failing to accept the validity of her appointment, the following statement having been made by the Branch Manager in an e-mail to CL dated 15 July 2022.^[11]

BOQ have, over the last 12 months, received conflicting information from [JL] on who she has appointed to assist with her financial matters and in what capacity she would like these appointed persons to act. As such BOQ is unable to accept the appointment of either [AL] or [CL], the matter will need to be dealt with by the Queensland Civil and Administrative Tribunal.

16. [16]
    CL’s follow up e-mail of 18 August 2022 prompted a reply the same day from the BOQ Branch Manager. For ease of reference I have extracted here the relevant passage in that further e-mail from the BOQ.^[12]

Unfortunately it appears that this conference has not addressed BOQ’s understanding of this matter. [JL] presented to BOQ in December 2021 a signed Revocation form which revoked your appointment as Enduring Power of Attorney, this supported prior verbal notification of her intention to revoke the appointment.

…

If QCAT require (sic) a copy of the Revocation form they can request a copy directly from BOQ.

We acknowledge this is a complex and difficult situation but BOQ must comply with the instructions we have been provided by our customers.

17. [17]
    This e-mail, of which AL was also provided a copy, prompted an e-mail from AL to the Tribunal on 19 August 2022, marked to my attention, in which AL requested that the EPOA held by him “be invoked”, submitting that there was thus no need for the appointment of CL as guardian and administrator to JL.^[13]
18. [18]
    That further information prompted a change in the Directions I gave at the conclusion of the hearing on 17 August 2022, vacating the directions for the filing of further submissions and relisting the matter for further hearing on 29 September 2022. At the same time I gave a Direction under s 63 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) requiring the BOQ to produce to the Tribunal any documents in its possession in relation to any enduring power of attorney and/or revocation of such shown to have been given by JL.^[14]
19. [19]
    On 8 September 2022, the BOQ Branch Manager who had provided the e-mails to CL to which I referred earlier responded to that Direction via e-mail. She provided a copy of what the BOQ held as the EPOA appointing AL, the subsequent EPOA appointing CL, and what the BOQ stated was a revocation of the appointment of CL signed by JL. In the covering e-mail from the Branch Manager, the following statement was made:^[15]

The signed Revocation form supported prior verbal notification by [JL] to staff at the [Location] branch that :

1. –
   She did not fully understand the details of the Enduring Power of Attorney she signed appointing [CL]
2. –
   She understood that by authorising [CL] to act severally that this would allow the pre-existing EPOA naming [AL] to remain in force and that both attorneys could act on her behalf.
3. –
   …

20. [20]
    The signed revocation document attached to that e-mail was a Form 5 under s 17 of the POA Act being a ‘Revocation of a General Power of Attorney’ shown to have been signed by JL on 6 December 2021. It purported to revoke the appointment of CL as attorney, although it expressed a reference to an undated ‘general power of attorney’ not the 4 June 2021 ‘enduring power of attorney’.
21. [21]
    Having noted this document when it was received, I instructed the Tribunal Registry Case Manager to make an enquiry of the BOQ Branch Manager as to the source of this document and as to who witnessed it. The response was that it was generated by, and witnessed by, a staff member at the BOQ branch when JL attended there.^[16]
22. [22]
    The hearing was then reconvened on 29 September 2022. On that occasion JL was present. Whilst it was conducted via video link over the MS Teams platform, JL participated only by audio link from the aged care residency with the assistance of a care/support person. This was because there was an unexplained difficulty with getting the camera to operate at her end. Accordingly I was only able to hear JL and not see her.
23. [23]
    During that hearing, whilst communication with JL was challenging given the effect of her stroke and the serious adverse impact on her speech, thus giving rise to extreme difficulties in comprehending what she was saying, as I understood the essence of what she was endeavouring to convey is that she recalled having given the EPOA to CL, that CL was good to her, but that she wanted AL to take care of her.
24. [24]
    I also discussed the purported revocation of the EPOA appointing CL. JL was not able to discuss that with me in any way that gave me any understanding of the events that gave rise to it. When I raised it with both AL and CL, as I understood their responses it was that CL understood it to mean her EPOA had been revoked, and AL understood it to mean his EPOA was thus valid.
25. [25]
    However I raised with both CL and AL during the hearing, and by way of a short e-mail to them following the hearing, issues with this purported revocation, namely that it was not compliant with s 49 of the POA Act. I draw to their attention that not only was it not correctly witnessed for the purposes of revoking an EPOA, contrary to the requirements of the POA Act it was not in the approved form, using Form 5 under s 17 of the Act and not Form 6 under s 49 of the Act, it being expressed as a revocation of a general power of attorney rather than an enduring power of attorney.
26. [26]
    I thus gave Directions for the filing of further submissions by both CL and AL on the issue of the purported revocation and its effect, specifically requesting submissions on the relevance (if any) of the fact that the EPOA given to CL had been marked as giving power to the attorneys ‘severally’.^[17] Whilst the Directions were focussed in terms of what was expected and when from each of CL and AL, what followed was submissions from CL, a substantial amount of correspondence with the Tribunal Registry from AL, as well as submissions from others in support of either CL or AL.^[18]
27. [27]
    My discussion that follows here is against that background.

The Relevant Facts

JL’s medical circumstance – an issue of capacity

28. [28]
    JL suffered an ischaemic stroke on 28 June 2022. It is also reported that JL has impairments that affect her communication, namely moderate dysarthria, with severe apraxia impacting on verbal output +/- expressive aphasia overlay, with receptive overlay also possibly present. As a result, whilst JL uses speech and gestures to communicate, she also uses a Makaton or similar communication system.^[19]
29. [29]
    It is also reported that, as at 25 July 2022, JL lacked an ability to understand and make her own decisions of a complex nature for personal/health care, lifestyle/accommodation choices, or financial affairs, but did possess that ability for simple decisions.^[20]
30. [30]
    That of course brings into issue JL’s capacity, or to put it more precisely whether at the time of the hearing CF was of impaired capacity such that she would be unable to understand the nature and effect of decisions about relevant matters, or would not be able to freely and voluntarily make decisions about relevant matters, or would not be able to communicate the decisions in some way.^[21] It is not a an issue of global capacity but rather it is an issue of capacity in respect of a specific matter. A ‘matter’ for the purposes of the both the GAA and the POA is a ‘type of matter,’^[22] such being listed in the relevant Acts under the headings ‘financial matter’ which includes inter-alia paying JL’s expenses or a legal matter relating to the JL’s financial or property matters, and ‘personal matter’ inter-alia such as where JL lives, what services are to be provided to JL, and health care decisions for JL.^[23]
31. [31]
    Importantly, it must always be noted that capacity involves a matter of degree, and that capacity is ‘decision specific’. That being so, the issue in these proceedings is whether JL had the capacity to understand the real nature and effect of the consequences of that being considered, such being whether CL was to retain the appointment of the enduring power of attorney, or whether AL should hold it, or whether neither should and in turn whether there should be the appointment of a guardian and/or administrator.^[24]
32. [32]
    Related to the issue of capacity, on all occasions, an adult’s views and wishes should be sought and considered to the greatest extent possible. Although, that being said, a person performing a function under either the GAA or the POA Act in terms of decision making must do so in a way that is consistent with the adult’s proper care and protection. It requires the principles of substituted judgment to be engaged, that is to make the decision the adult would have made if they had capacity, such to be based on any previously expressed views, wishes, and conduct of the adult when they had capacity. Thus, it is not a ‘best interest’ test such that decisions are to be made in what the decision-maker believes to be in the best interest of the adult, but it is a regime that requires consideration of what the adult’s decision would have been if they presently had capacity.^[25]
33. [33]
    By the time of the hearing that occurred before me on 29 September 2022, despite the challenges in understanding JL, it seemed to me that her abilities since that time had somewhat improved from the manner in which she presented when the health professional’s report I referred to in paragraphs [28] and [29] herein. As such, I was able to ascertain to some degree here views and wishes, and where information was lacking directly from JL I was able to engage the principles of substituted judgment. Whilst I was not able to observe JL, and thus not able to interpret any communication from her via a means other than her efforts to communication with me orally, as I understood that which JL was endeavouring to convey it was apparent that her wish was to have her son AL look after her.
34. [34]
    However, such was not conveyed in a manner that informed me that she did not want CL to hold her power of attorney and/or she wanted AL to be the recipient of the equivalent power. I specifically asked JL if she recalled giving CL her enduring power of attorney, to which I received the answer “yes” together with an elaboration that “[CL] is very good to me”.
35. [35]
    Moreover, from the interaction I had with JL I was also left with the impression that, notwithstanding the adverse effect of her stroke, her medical conditions and circumstances were not such as to displace the presumption of capacity JL is afforded under the General Principles set out in s 6C of the POA Act^[26] and s11B of the GAA Act.^[27] Thus, it seemed to me, that if JL did not wish to have CL hold her enduring power of attorney, but rather her preference was for AL to have done so, then she had the capacity to have put those arrangements in place, as necessary by changing whatever arrangements she had previously put into effect.
36. [36]
    That of course then leads to the need to consider and determine what arrangements were in place at the time of the hearing, and determine to what extent such was effective at law.

The Enduring Power of Attorney Documents

37. [37]
    There is no dispute that an enduring power of attorney for personal, financial, and health care matters was given by CL:

    1. (a)
       to AL on 17 April 2019 under the Victorian equivalent of the POA Act; and
    2. (b)
       to CL on 4 June 2021 under the POA Act.
38. [38]
    There is also no dispute that in the document giving the power to CL, JL had marked the manner in which her attorneys were to exercise their power as being ‘severally’ notwithstanding that the document appointing CL was expressed as a sole appointment of CL.
39. [39]
    Nor is there any issue raised be either CL or AL, nor any person on JL’s behalf, nor one that I could see from the documentation and oral discussion before me that could be raised, that these appointments should be found to be invalid due to a lack of capacity by JL to make such appointments.
40. [40]
    Related to the appointment of CL, there is the fact of the purported revocation of it by JL on 6 December 2021. There is no dispute raised before me that this document was signed by JL, nor is it in issue that she did not have capacity at that time to revoke the enduring power of attorney given to CL. In regard to this document, the evidence before me is that this document was produced at the BOQ Branch attended by JL at the relevant time, and I infer that the blank document, namely a Form 5 for revocation of a general power of attorney, was provided to JL by a BOQ branch staff member, most likely the staff member who witnessed JL having signed this Form.

Findings of fact

41. [41]
    Given the background as I have explained my understanding of it earlier in these reasons, and the relevant facts as I have just noted them, in my opinion the following facts are established:

    1. (a)
       On 17 April 2019, JL gave her enduring power of attorney to AL for all personal, health care, and financial matters, such given in Victoria under that State’s equivalent of the POA Act.
    2. (b)
       On 4 June 2021, JL gave her enduring power of attorney to CL for all personal, health care, and financial matters, such given in Queensland under POA Act. In doing so JL recorded the manner in which her attorneys make decisions as ‘several’.
    3. (c)
       On 6 December 2021, JL purported to revoke the appointment of CL as her enduring power of attorney. In doing so, she signed a Form 5 – Revocation of a General Power of Attorney under s17 of the POA Act with the assistance of a representative of the BOQ at the local branch of the bank where JL attended.
    4. (d)
       On 28 June 2022, JL suffered a stroke, and now suffers both dysarthria and aphasia affecting her ability to communicate. But, whilst initially after the stroke there was most likely an impairment of her capacity, by the time of the reconvened hearing on 29 September 2022 JL’s medical conditions were not such that it could be said she was unable to understand the nature and effect of decisions about personal or financial matters or was not able to freely and voluntarily make decisions about such matters.
    5. (e)
       At the time of the reconvened hearing, whilst JL’s wish and preference was to have AL take care of her, she readily recalled having given her enduring power of attorney to CL, and together such does not lead to a finding that she required AL to hold her enduring power of attorney.

The Relevant Law

42. [42]
    The facts as they exist relevant to the existence of the two enduring powers of attorney, and the purported revocation of the CL’s appointment, gives rise to the application of certain provisions of the POA Act which for ease of reference I extract here.

34  Recognition of enduring power of attorney made in other jurisdictions

If an enduring power of attorney is made in another jurisdiction and complies with the requirements in the other jurisdiction, then, to the extent the powers it gives could validly have been given by an enduring power of attorney made under this Act, the enduring power of attorney must be treated as if it were an enduring power of attorney made under, and in compliance with, this Act.

49  Formal requirements for written revocation of enduring document

1. (1)
   A written revocation of an enduring power of attorney must be in the approved form.

2. (2)
   However, a written revocation of an enduring power of attorney, to the extent it gives power for a health matter, or a written revocation of an advance health directive need not be in the approved form.

3. (3)
   The revocation of an enduring power of attorney must—

1. (a)
   be signed—

1. (i)
   by the principal; or

2. (ii)
   if the principal revoking it instructs—for the principal and in the principal’s presence, by an eligible signer; and

2. (b)
   be signed and dated by an eligible witness.

50  Later enduring document

1. (1)
   A principal’s enduring power of attorney is revoked, to the extent of an inconsistency, by a later enduring document of the principal.

2. (2)
   …

Discussion on the application of the law to the facts

43. [43]
    The appropriate starting point is the EPOA given to AL under Victorian legislation. There is nothing before me to show, nor even suggest, that it does not comply with the requirements of the Victorian law. Thus, on the application of s 34 of the POA Act, to the extent the powers it gives could validly have been given by an EPOA made under the POA Act, the EPOA must be treated as if it were an EPOA made under, and in compliance with, the POA Act. To put it more simply, for present purposes the two documents giving AL power to make decisions for his mother are to be read as one EPOA in Queensland.
44. [44]
    That then leads to the effect of the EPOA given to CL, it being subsequent to the giving of the EPOA to AL. That later EPOA gave the same power to CL as it gave to AL, thus there is an inconsistency between it and the earlier EPOA such that on the application of s 50 of the POA Act, upon the enduring power being given to CL the giving of the enduring power to AL was revoked.
45. [45]
    To the extent the EPOA document appointing CL as attorney recorded the means by which CL’s attorneys were to make decisions severally, in my opinion this has no effect. Under the POA Act s 43(2), a principle may appoint attorneys under a number of alternatives, some of which may be done in combination. But, whilst the appointment of a sole attorney, and the appointment of attorneys to make decisions jointly or severally, is permissible under that provision, to appoint a sole attorney to exercise her power severally is meaningless. The appointment of CL was a sole appointment, and one which revoked the appointment of AL as attorney. Accordingly there was only a singular appointment such that decisions could not be made severally. As a sole appointment, CL was empowered to make decisions solely.
46. [46]
    In that regard for completeness I should make two additional brief observations.
47. [47]
    Firstly, whilst it may have been JL’s understanding at that time AL’s appointment was to continue and as such she had two attorney’s appointed, being a hypothesis on which I do not and need not make any finding, that was not the effect at law of her appointment of CL as her enduring attorney for personal, health, and financial matters.
48. [48]
    Secondly, whilst it might be thought that the appointment of CL to exercise her power ‘severally’ suggested, when considered objectively, that it was to supplement the earlier appointment of AL so as there were two attorneys, in my opinion even if that argument were to be accepted it would still be inconsistent with the earlier appointment of AL given that the appointment of AL was a sole appointment.
49. [49]
    In all respects, as I have already discussed it, the subsequent appointment of CL revoked the earlier appointment of AL.
50. [50]
    As to the purported revocation by CL on 6 December 2021 of the appointment of CL as her enduring attorney, such was entirely ineffective. As I have noted it earlier in these reasons, not only was it correctly witnessed for the purposes of revoking an enduring power of attorney it was executed as the revocation of a general power of attorney not as revocation of an enduring power of attorney. The action of revocation was entirely inconsistent with the express requirements of s49(1) and (3) of the POA Act.
51. [51]
    For these reasons, CL’s EPOA was at all times effective, and one which empowered CL to make decisions alone in the capacity of her mother’s sole appointed attorney for personal (including health) and financial matters. Accordingly there will be orders giving advice to that effect.

Other issues on which comment should be made

The role of the BOQ

52. [52]
    Whilst not germane to the decisions I have reached in these proceedings, in my opinion something should be said about BOQ’s involvement in this matter, it being one which seems to me has unnecessarily contributed to the difficulties and challenges facing CL as the duly appointed attorney.
53. [53]
    CL’s EPOA should have been recognised, and acted on, by the BOQ to permit CL to conduct her role as JL’s attorney. The content of the e-mails from its Branch Manager to CL, the relevant parts of which I have extracted in paragraphs [15] and [16] herein, show that the BOQ, via its Branch Manager and/or involved staff members at the local branch from which JL’s banking requirements were being conducted, failed to recognise the law as it applies to enduring powers of attorney. Whilst the Branch Manager stated that the bank must follow its customer’s instructions, it seemed to me that it was putting those instructions ahead of a recognition of the law.
54. [54]
    Moreover, not only did the bank fail to recognise CL’s appointment as being the only valid one, the involvement of the BOQ staff in purporting to facilitate the revocation of that appointment by providing JL with the incorrect form, and/or failing to ensure that the person witnessing the signing of the document by JL was an ‘eligible witness’ as that term is defined in s 31 of the POA Act, was in my opinion entirely unacceptable. The bank staff should be aware of the relevant law as it applies to the conduct of its customer’s business when that involves a power of attorney. But more importantly, should the bank staff had been receiving conflicting information from JL as to the appointed attorneys and in what capacity they were required to act, it was not a matter for the bank to simply decline to ‘accept the appointment’ of either AL or CL but rather it should have acted on the appointment which had effect in accordance with the law. But more critically and importantly, when the bank staff had been informed by JL that she wished to revoke the appointment of CL, in my opinion it was entirely inappropriate for the bank staff to have assisted JL in that action to provide her with a form to sign and then have one of the staff members witness it. The bank staff should have advised JL to seek independent legal advice from a solicitor as to the issues concerning the appointment of an enduring power of attorney.
55. [55]
    It seems to me that BOQ’s involvement in this matter can only be described as being entirely unsatisfactory. In my opinion it is one that has directly contributed to the circumstances that has brought these matters to this Tribunal. It should have been unnecessary.

AL’s and other’s submissions

56. [56]
    Much was sought to be made by CL, and responded to by AL, as to the allegation of misappropriation of funds from JL’s account(s) by AL acting in his capacity as an appointed attorney. But, ultimately it was not an issue that I needed to consider in determining the applications that were before me. Thus, save only for a short observation that follows here, I have not discussed it further and do not make any finding about it. It is a matter for CL to pursue further in her role as the appointed attorney should she consider it necessary to do so.
57. [57]
    Given the extent to which AL, and others have gone to present arguments to this Tribunal concerning allegations of AL’s alleged misappropriation of funds from his mother’s account(s), and AL’s written submissions about what he says about his siblings, namely CL and GL, describing them in his submissions as being “avaricious and mercenary and are seeking control of my mother’s bank account and assets for their own selfish means”^[28], and as “vultures that are circling … who obviously hate and despise me and my close relationship with my mother.”^[29], I should add some short observations.
58. [58]
    These issues, whether they are factually accurate or not, are not something on which I need make any determination for the purposes of reaching a decision on the applications before me. They are entirely irrelevant to the facts as they exist and the application of the law to those facts as they arise in these proceedings. Whilst it is readily apparent that there are significant family dynamics in play that have impacted substantially the manner in which AL has approached the task of endeavouring to convince me that he should be the appropriate appointee to care for his mother, rather than address the issues on which these proceedings turn he has chosen to, in effect, ventilate the dispute within the family and run arguments that do not bear on those issues. He has not presented any evidence to show me that CL is not an appropriate appointee, or that her appointment as the sole enduring attorney would not function effectively and in accordance with the General Principles as they are laid down in the POA Act.^[30] Rather he has made only bare assertions which appear designed to do nothing more that discredit his sister.
59. [59]
    AL has also chosen, for an entirely unexplained reason, to provide a multitude of e-mails as his apparent ‘submissions’, the content of which were prolix and in many instances repetitive. This is somewhat surprising given that, when I raised with both AL and CL during the hearing issues on which I suggested that each of them might wish to take legal advice on, and on which I would be requesting submissions, he informed me that he did not wish to take legal advice nor make any further submissions.
60. [60]
    Overall, the submission that he did make were not of any substantive assistance to me. Accordingly, I did not give these submissions any weight.
61. [61]
    Nor were the submissions of PL, GL and AL’s wife of any assistance. Whilst the reasons for the submissions made might be said to be in support of either CL or AL, the issue in these proceedings was not who is an appropriate appointee but rather who was the lawfully appointed person under the POA Act. For this reason I did not give these submissions any weight and thus they did not impact on the outcome of the proceedings.
62. [62]
    I should also say something about AL’s requests that the EPOA held by him be ‘invoked’ as I have noted it in paragraph [17] herein,  and later that I treat this matter subjectively with him making this submission:

Even though the speech of my mother [JL] is impaired, I believe that she made her intentions clear during out (sic) meeting (sic) on 29 September. She would like me to take care of her affairs, as we have a very close relationship and she trusts me.

This was the spirit of her intention when she appointed me as her Enduring Power of Attorney in 2019. She has tried to revoke the Enduring Power of Attorney held by my sister [CL], even if this revocation has not been done properly in legal terms.

I ask if my Enduring Power of Attorney can be respected and enforced. If this is not possible, I ask if I can be appointed as my mother’s legal guardian and trustee in all matters, including personal, financial and medical.^[31]

63. [63]
    Whilst, as I have already noted it, as I understood JL during the hearing on 29 September 2022 her wish and/or preference was to have AL ‘look after her’. But I do not agree with AL’s submission that his mother’s comments in that regard can be understood to mean that JL’s wish and/or preference is to have AL ‘take care of her affairs’. That is to take it a step beyond where I see it to be on the evidence that is before me.
64. [64]
    As to his request that his EPOA be respected and enforced, such is simply not possible if I was to have found that the EPOA given to CL had been revoked or otherwise should be revoked by order of this Tribunal. As I have noted it earlier in these reasons, the giving of the EPOA to CL revoked the EPOA given to AL. It is not then open to be reinstated or otherwise enlivened on a second occasion. Once revoked it was at an end.
65. [65]
    As to his request that he be appointed as JL’s guardian and trustee, the latter which I understand to be an intended reference to administrator, even if I were to have determined that there was not a valid EPOA in effect, on the material that is before me I could not have found AL to be an appropriate appointee. There is clearly conflict within the family, such being serious conflict between AL and his siblings. In my opinion such would have an adverse impact on AL’s ability to properly conduct his role as guardian and/or administrator given the requirement of the General Principles under the GAA Act that any guardian or administrator must follow and apply, particularly the maintenance of the role of the family in JL’s life to support JL.^[32]
66. [66]
    Whilst naturally AL is part of JL’s support network, in my opinion if he were to be the sole decision-maker his ability to function in that role would most likely be adversely affected by historical conflict, perceptions and personal prejudices.^[33] Such was exhibited during the hearing on the second occasion wherein AL informed me that he wished to relocate his mother to Victoria whilst also stating that there was conflict with his siblings as to where their mother should reside. But critically, AL did not demonstrate to me that he had any knowledge of the requirements of the GAA Act General Principles that would need to be applied and followed in reaching the requisite decision as to where his mother was to reside. Such was  also exhibited within the content and substance of the submissions he made as part of his extensive written submissions. Thus, in my opinion he would be inappropriate as either an attorney or as guardian and/or administrator.
67. [67]
    Finally, should any reader of these reasons consider the conflict might affect CL’s role as the appointed enduring attorney, I make the following short observation. Whilst such is an issue that should be considered in terms of the question whether the appointment would function appropriately such that it could lead to this Tribunal exercising its power to revoke CL’s appointment, whilst there is clearly conflict between CL and AL in my opinion that conflict would not interfere with CL’s ability to properly exercise her role and meet the requirements of the General Principles as they are laid out in the POA Act. CL is yet to be afforded the opportunity to perform the role of sole enduring attorney. Thus, there is nothing yet to show that her performance of that role would not function as it was required to do in meeting the requirements of the POA Act. From that which I discussed with her during the two occasions these proceedings were before me, and the content of her short and concise written submissions,^[34] I did not perceive any reason to suggest that she did not understand fully the role she was appointed to conduct nor that she would not be able to do so in the manner and to the extent required by the legislation.

The Human Rights Act

68. [68]
    Before concluding these reasons, for completion I make the following observations concerning the application of the Human Rights Act 2019 (Qld) (HR Act), such being other legislation I have considered in reaching the decisions I have in these proceedings.
69. [69]
    The main objective of the HR Act is to protect and promote fundamental human rights. However those rights are not absolute. They may be limited, but only as far as is reasonable and justifiable. That being said, all statutory provisions, as far as is possible consistent with their purposes, must be interpreted in a way that is compatible, or most compatible, with those human rights.^[35]
70. [70]
    Two such statutes as have discussed and applied in these proceedings are the GAA Act and the POA Act. Thus, the relevant human rights afforded SBR under the HR Act must be considered in the exercise of any power or performance of any function under those statutes, such being done in a way that is compatible with them, to the extent that is also possible with their statutory purpose. JL’s rights as noted in the HR Act are engaged and limited by the orders I will make in these proceeding.^[36]
71. [71]
    Having considered the findings of fact as I have expressed them herein as to the criteria set out in those statutes as relevant, if I was to have revoked the EPOA given to CL, thus effectively overriding her choice of who she chose to have the power to conduct her affairs, and appointed a guardian and/or administrator it would impose a limit on JL’s rights that would not be reasonable and justifiable.^[37]
72. [72]
    JL is entitled to adequate support services to enable him to live independently, such being consistent with a free and democratic society based on human dignity, equality and freedom. The decisions I have reached in these proceedings are, in my opinion, the least restrictive options which are consistent with that entitlement.

Conclusion

73. [73]
    For the reasons I have given in the preceding paragraphs, the end result of the extensive and at times repetitive arguments in these proceedings is that:

    1. (a)
       The appointment of CL under an enduring power of attorney for personal (including health) matters and financial matters given by JL on 4 June 2021 is valid.
    2. (b)
       The appointment of AL under an enduring power of attorney for personal and financial matters, and his appointment as medical treatment decision maker, given by JL on 17 April 2019 was revoked by the appointment of CL.
    3. (c)
       In the premise, CL is the sole appointed enduring attorney to JL for personal (including health) matters and financial matters.

    1. (a)
       Given the valid appointment of an enduring power of attorney for personal (including health) matters and financial matters, there is no basis upon which an appointment of a guardian and/or administrator under the GAA Act is required.
    2. (b)
       In the premise, the application by CL for appointment of a guardian and administrator to JL should be dismissed.

74. [74]
    There will be orders made giving effect to these decisions.