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KBB v NSB[2019] QCATA 123

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

KBB v NSB and Ors [2019] QCATA 123

PARTIES:

KBB

(applicant/appellant)

v

NSB

KGT

SBB

QKB

HKB

(respondent)

APPLICATION NO/S:

APL080-18

ORIGINATING APPLICATION NO/S:

GAA3322-17; GAA1653-17

MATTER TYPE:

Appeals

DELIVERED ON:

18 July 2019

HEARING DATE:

26 October 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie

Member Browne

ORDERS:

IT IS A DECISION OF THE APPEAL TRIBUNAL THAT:

  1. Grounds one and two of the appeal are allowed.

THE APPEAL TRIBUNAL DIRECTS THAT:

  1. The applicant must file in the Appeal Tribunal a written submission addressing the form of orders to be made under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) in the disposition of the application for leave to appeal or appeal, by:

4:00 pm on 25 July 2019.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where declaration of capacity about an enduring power of attorney sought – where adult made enduring power of attorney appointing attorneys to act for financial, personal and health matters – where adult gave instructions to solicitor to prepare a further enduring power of attorney appointing different attorneys for financial, personal and health matters - whether adult had capacity at time of signing the further enduring power of attorney – where evidence given about adult’s capacity at time of signing the further enduring power of attorney – where certain evidence not considered – where definition of capacity under the Guardianship and Administration Act 2000 (Qld) and the Powers of Attorney Act 1998 (Qld) applied – whether error in the application of s 41 of the Powers of Attorney Act 1998 (Qld) – whether natural justice observed

Acts Interpretation Act 1954 (Qld), s 14A

Guardianship and Administration Act 2000 (Qld), s 1, s 6, s 7, s 81 (1) (a), s 82 (2), s 115, s 146, Schedule 1, Schedule 2, Schedule 3, Schedule 4

Powers of Attorney Act 1998 (Qld), s 1, s 41, s 47, s 50, s 109A, s 113, s 114, Schedule 1, Schedule 2, Schedule 3

Queensland Civil and Administrative Tribunal Act 2019 (Qld), s 28, s 146(c)

Fox v Percy (2003) 214 CLR 118

Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2017] QCA 83

PL v PT & Ors [2018] QCATA 114

Re Caldwell [1999] QSC 182

Re Sal [2007] QGAAT 75

APPEARANCES & REPRESENTATION:

Applicant:

D Pendergast of counsel instructed by McCarthy Durie Lawyers

Respondent:

No appearance

REASONS FOR DECISION

  1. [1]
    This is an appeal from a decision made by a member of this Tribunal exercising powers under the Guardianship and Administration Act 2000 (Qld) (‘GAA’) about NSB’s capacity to make an enduring power of attorney (‘EPOA’).
  2. [2]
    By way of background, NSB signed two EPOAs appointing a number of her six children to be her attorneys, as follows:
    1. (a)
      On 20 March 2013, NSB appointed KGT and KBB as her attorneys for financial and personal or health matters; and
    2. (b)
      On 22 November 2016, NSB appointed SBB, HKB and QKB as her attorneys for financial and personal or health matters.
  3. [3]
    In 2016 NSB also executed a revocation of an enduring power of attorney but for the purposes of the appeal nothing turns on the findings made by the learned Member in relation to this document. The validity of the first EPOA dated 20 March 2013 was not in issue. The issue before the learned Member was whether NSB had capacity to make the later EPOA executed on 22 November 2016. In order to determine this issue it was first necessary for the learned Member to be satisfied that the presumption of capacity was rebutted at the time of the hearing. That is the Tribunal was required to make a finding about whether NSB presently had capacity to make decisions about her personal and financial matters.
  4. [4]
    The learned Member found that NSB did not have capacity for all personal and financial matters.[1] The learned Member, in exercising his powers under the Powers of Attorney Act 1998 (‘POA Act’), declared the EPOA dated 22 November 2016 to be valid, the effect of which was to revoke the earlier EPOA executed on 20 March 2013, more importantly, KGT and KBB were no longer attorneys for their mother’s financial and personal or health matters.[2]
  5. [5]
    KBB has appealed the Tribunal’s decision. KBB submits that the Tribunal made an error of law in declining to consider certain sworn evidence sought to be relied upon by her in the hearing on the basis that the evidence was ‘self-serving’.[3] KBB says this evidence was relevant to the Tribunal’s inquiry: whether NSB had all of the understandings that s 41 of the POA Act prescribes for making an EPOA. KBB submits that there was sworn evidence of family members before the Tribunal that was not contradicted before the Tribunal relevant to NSB’s cognitive functioning in the period leading up to 22 November 2016, when NSB executed the EPOA.[4] Further, KBB says the Tribunal misunderstood or misapplied the law in relation to the statutory presumption of capacity and more importantly the understandings relevant to the execution of an EPOA as prescribed under s 41.
  6. [6]
    Although there are six grounds of appeal identified in the application for leave to appeal or appeal, KBB has confined the grounds of appeal in her written submissions to two main errors of law, set out below:[5]
    1. (a)
      Misapplication of s 41 of the POA Act; and
    2. (b)
      Disregard of directly relevant, cogent and unchallenged evidence by denying KBB procedural fairness and involving non-compliance with s 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
  7. [7]
    As the two grounds of appeal raise errors of law, leave to appeal is not required. In allowing the appeal, KBB seeks final orders from the Appeal Tribunal that the declaration made on 7 March 2018 pronouncing the validity of the EPOA dated 22 November 2016 be set aside; and the application made by KBB for a declaration concerning the EPOA be remitted back to the Tribunal to be reheard and determined by a differently constituted Tribunal.[6]

Legislative Framework – the GAA and the POA Act

  1. [8]
    The Tribunal has jurisdiction under the GAA to, amongst other things, make declarations about the capacity of an adult for a matter and make declarations in relation to an EPOA, upon an application being made by the adult or ‘interested person’.[7] The definition of capacity in schedule 4 of the GAA is as follows:

Capacity, for a person for a matter, means the person is capable of-

(a) understanding the nature and effect of decisions about the matter; and

(b) freely and voluntarily making decisions about the matter; and

(c) communicating the decisions in some way.

  1. [9]
    The Appeal Tribunal has previously observed that the Tribunal’s role in determining applications made under the GAA is inquisitorial in nature.[8] In PL v PT & Ors[9] the Appeal Tribunal correctly stated that in conducting a hearing, the Tribunal must observe the rules of natural justice and more importantly ensure that a party has the opportunity to know the relevant, credible and significant evidence relied upon against him/her, and the opportunity to present his/her case, test the evidence and make submissions. Further, in PL v PT & Ors[10] the Appeal Tribunal observed that there are no respondents to the applications who, for example, in other types of jurisdictions in the Tribunal would as a party to the proceeding present evidence contrary to the applicant’s evidence.[11] The Appeal Tribunal correctly stated that in guardianship matters the member has the responsibility to ensure, as far as the Tribunal considers it practicable, that the Tribunal has all relevant information when hearing and deciding applications. The Appeal Tribunal said that the tribunal must appropriately raise issues and test the available evidence.[12]
  2. [10]
    Under the POA Act, the Tribunal has the same jurisdiction and powers for enduring documents as the Supreme Court.[13] The Tribunal in exercising its powers under the POA Act may decide the validity of an EPOA such as declaring it invalid if satisfied that the principal did not have the capacity necessary to make it; or it does not comply with the other requirements of the Act; or it is invalid for another reason.[14] If an EPOA is declared invalid under s 113 of the POA Act, the document is ‘void from the start’.[15] If the principal has executed an EPOA and then executes a further valid EPOA, the former EPOA is revoked to the extent it gives powers for the matter, by virtue of s 50 of the POA Act. An EPOA may also be revoked by the principal in writing, as it was in this matter, only if he or she has capacity necessary to make an EPOA giving the same power, as provided under part 5 of the POA Act.[16]
  3. [11]
    The definition of ‘capacity’ contained in schedule 3 of the POA Act mirrors the definition contained in the schedule of the GAA. Further, the General Principles in both the GAA and the POA Act are the same with s 1 providing than an adult is presumed to have capacity for a matter. Section 7 of the GAA sets out how the purpose of the GAA is to be achieved and states that the GAA providing that an adult is presumed to have capacity for a matter is one of the ways the purpose of the GAA is achieved.[17] In the present case Ground One of the appeal concerns an issue about the learned Member’s application of the statutory presumption of capacity and more importantly the application of s 41 of the POA Act concerning the principal’s capacity to make an EPOA.
  4. [12]
    Under the POA Act, a principal may make an EPOA only if he or she understands the nature and effect of the EPOA.[18] Relevantly, s 41(2) provides that understanding the nature and effect of the EPOA includes ‘understanding’ certain matters as prescribed by s 41(2).[19] Relevantly s 41 provides as follows:[20]
  1. (1)
    A principal may make an enduring power of attorney only if the principal understands the nature and effect of the enduring power of attorney.

Note—

However, under the general principles, an adult is presumed to have capacity- schedule 1, section1.

  1. (2)
    Understanding the nature and effect of the enduring power of attorney includes understanding the following matters—
    1. the principal may, in the power of attorney, specify or limit the power to be given to an attorney and instruct an attorney about the exercise of the power;
    2. when the power begins;
    3. once the power for a matter begins, the attorney has power to make, and will have full control over, the matter subject to terms or information about exercising the power included in the enduring power of attorney;
    4. the principal may revoke the enduring power of attorney at any time the principal is capable of making an enduring power of attorney giving the same power;
    5. the power the principal has given continues even if the principal becomes a person who has impaired capacity;
    6. attorney, the principal is unable to effectively oversee the use of the power.

Note—

If there is a reasonable likelihood of doubt, it is advisable for the witness to make a written record of the evidence as a result of which the witness considered that the principal understood these matters.

What did the Tribunal find?

  1. [13]
    The learned Member delivered oral reasons for his decision after hearing evidence and submissions over three days. The learned Member found that NSB does not have capacity for all personal and financial matters; and declared valid pursuant to s 113(1) of the POA Act and s 82(2) of the GAA, the EPOA dated 22 November 2016.
  2. [14]
    The transcript shows that the learned Member’s reasons capture the issues to be determined by the Tribunal now summarised below from the transcript:[21]
    1. (a)
      Does NSB have impaired capacity for personal and financial matters;
    2. (b)
      If so, if there is a need for decisions to be made about those matters to the extent that, without appointments, NSB’s needs will not be adequately met or her interests will not be adequately protected;
    3. (c)
      If so, who is appropriate for appointment in the context of the need for decisions to be made about personal or financial matters, and the extent to which appointments may be necessary to meet her needs or protect her interests; and
    4. (d)
      The terms of any EPOA including its validity and likely efficacy.
  3. [15]
    The learned Member observed that the EPOA represents NSB’s own express wishes as to the decision-making regime she wished to put in place in the event that her capacity becomes impaired.
  4. [16]
    The transcript shows that the learned Member summarised and made findings about the medical evidence in his oral reasons relevant to NSB’s capacity at the time of execution of the EPOA, now set out below as follows[22]:
    1. (a)
      Dr Harris, consultant geriatrician prepared a letter dated 15 November 2016 in which she states that:

[NSB’s] medical conditions include significant cognitive impairment, likely secondary to cerebrovascular and Alzheimer’s disease. [NSB] is unable to manage her medical, lifestyle or financial affairs;

  1. (b)
    Dr Harris mentions a Montreal Cognitive Assessment (‘MOCA’) of 14 out of 30;
  2. (c)
    In another letter prepared by Dr Harris (to Dr Cameron, general practitioner) dated 15 November 2016, Dr Harris states that:

The MOCA score is consistent with impaired basic cognition and global deficits were observed.

  1. (d)
    Dr Harris states in her letter dated 15 November 2016 that other factors which may impact on NSB’s decision-making is family conflict. NSB’s decision-making ability was not formally assessed. Dr Harris reports that:

[NSB] cannot understand and make complex decisions about personal and financial matters and it is suspected that she cannot make simple decisions about such matters.

  1. (e)
    Hospital progress notes dated 15 November 2016 record the views of the occupational therapist that the MOCA score may indicate reduced basic level cognition, with global deficits observed;
  2. (f)
    Dr Cameron, general practitioner, reported in a letter dated 22 November 2016 that:

[NSB] is fully capable of understanding matters pertaining to the legal documentation, including power of attorney documents’.

  1. (g)
    On 20 December 2016, Dr Cameron ‘resiled from her opinion’ and, in effect, ‘deferred to the opinion of Dr Harris on the basis that Dr Cameron’s opinion arose out of simply a discussion with [KBB] about, presumably, general matters, without using such a formal testing tool as that used by Dr Harris’.
  2. (h)
    Dr Harris’ email to the Public Guardian dated 7 March 2017 reasserts her views about NSB’s significant cognitive impairment and states that ‘at the time of assessment, [NSB] was on slow release narcotics to assist with pain control and was uncertain how much this was affecting NSB’s cognition.’ Further, there was ‘a collateral history regarding depression and antidepressants having been ceased’. Again both of these may have been affecting NSB’s condition on the day.
  3. (i)
    Dr Kennett, consultant geriatrician, reported in letters dated 4 and 18 February 2017 that:

[NSB] presented to emergency on 23 January 2017 with some physical ailments by a urinary retention and delirium. Initially she was poorly orientated to person, place and time. She was distractible and her condition varied.

  1. [17]
    The transcript shows that the learned Member also considered the evidence of the witness to the EPOA who was a Solicitor. The witness Solicitor provided a detailed report of her interview with NSB and gave evidence, mainly under cross-examination, at the hearing on 6 April 2017.
  2. [18]
    As set out above, the transcript shows that the learned Member identified the medical evidence relevant to NSB’s capacity leading up to the date of execution of the impugned EPOA (dated 22 November 2016) in particular NSB’s capacity to execute an EPOA. The learned Member referred to the letter prepared by Dr Harris, consultant geriatrician dated 15 November 2016 in which she states that NSB’s medical conditions include ‘significant cognitive impairment, likely secondary to cerebrovascular and Alzheimer’s disease. [NSB] is unable to manage her medical, lifestyle or financial affairs’.[23]
  3. [19]
    The transcript shows that the learned Member made legal findings as to the presumption of capacity contained in both the GAA and the POA Act. The learned Member said that NSB is ‘entitled to a legal presumption that she had capacity to execute the 2013 and the 2016 enduring documents and the revocation made on 25 November 2016’.[24] The learned Member observed the importance of the 2016 enduring document and the findings to be made. The relevant extract from the transcript is as follows:

…The 2016 enduring document, given the findings about [NSB’s] impaired decision-making capacity at the initial hearing, the finding [indistinct] the validity of this document is critical. If it is invalid, then her decision-makers will be, on the face of it, her attorneys under the earlier enduring document, and a finding otherwise will confirm the decision-making power of the current attorneys.[25]

  1. [20]
    The transcript shows that the learned Member placed no weight on the 2016 revocation referring to the witness of that document as having been a relative of NSB or other family member.[26] Further, the learned Member found the evidence of the health professionals and the witness to the EPOA to be ‘problematic’ and ‘of limited benefit to the Tribunal in its attempt to arrive at a determination’.[27] Relevantly, the learned Member found that Dr Cameron ‘resiled from her opinion’ about NSB’s capacity to execute legal and enduring documents after receiving Dr Cameron’s report.[28] Further, the learned Member found that the witness Solicitor of the EPOA ‘failed to properly interrogate’ NSB about the elements of an EPOA.[29] The learned Member found that there was ‘no objective basis’ to enable the Tribunal to conclude that the witness Solicitor’s findings were based on ‘reasonable grounds’. The learned Member found the evidence of the witness Solicitor to be ‘singularly unhelpful’.[30]
  2. [21]
    The learned Member made findings about the evidence of family members concerning NSB’s capacity to execute the 2016 EPOA and to make other decisions. The learned Member found the evidence of the family members to be ‘self-serving’. The learned Member’s finding about the evidence of family members is critical to Ground Two of the appeal because KBB contends on appeal that, amongst other things, the evidence of family members was disregarded by the learned Member. The relevant extract from the transcript is as follows:

There is also the evidence of certain family members which make assertions about their mother’s capacity to execute the 2016 enduring document and make other decisions. With respect to those parties, their evidence is perceived to be somewhat self-serving and does not lend sufficient weight to persuade me to rule one way or the other.[31]

  1. [22]
    Having made findings about the evidence including the medical evidence, the evidence of the witness Solicitor and the evidence of family members, the learned Member observed that NSB is entitled to a legal presumption that she had capacity to execute the EPOA in 2016. The learned Member found that NSB is ‘entitled to the benefit of any doubt arising from assessments which assert the contrary’.[32] The learned Member observed that the matters critical to s 41 of the POA Act in particular subsection (2) requires the principal to have an understanding of the nature and effect of the documents and matters listed therein. The learned Member ultimately found that ‘the benefit of a legal presumption is illusory if it does not extend to the elements which establish an adult’s understanding of the relevant issues’.[33]
  2. [23]
    The learned Member’s application of s 41 of the POA Act and his ultimate finding that the EPOA dated 22 November 2016 is valid is relevant to Ground One of the appeal. The relevant extract of the transcript is set out below:

As to the presumption of capacity, the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000 both provide that an adult is presumed to have capacity for a matter. As I have said, that is in schedule 1 of the General principles. Matter is defined to include a type of matter and section 10 of the Guardianship and Administration Act categorises the types of matters to include a “special personal matter” which is defined in schedule 2 to include the “making or revoking of an enduring document”.

[NSB] is thus entitled to a legal presumption that she had capacity to execute the 2016 enduring document. This concept must also mean that she is entitled to the benefit of any doubt arising from assessments which assert the contrary. Section 41, subsection (1) of the Powers of Attorney Act provides that:

A principal may make an enduring document only if the principal understands the nature and effect of that document.

And section 41, subsection (2) provides that understanding the nature and effect of the document includes an understanding of the matters listed therein. These are considered to be the critical elements of the document. They are outlined in section 8 of the enduring document and those are the matters to which the witness certifies that the principal appeared to understand.

Ms Pendergast [Counsel for the applicant] submits that, despite the presumption to the effect that an adult understood the nature and effect of an enduring document, there is no statutory presumption to the effect that she understood the factors mentioned in section 41, subsection (2), and it appears to me to be a somewhat artificial distinction. By definition, a person understands the nature and effect of a document if he or she understands the matters listed in section 41(2) and otherwise meets the overarching definition of capacity in schedule 4. The benefit of a legal presumption is illusory if it does not extend to the elements which establish an adult’s understanding of the relevant issues.

For these reasons, I find that [NSB] is entitled to the legal presumption that she understood the nature and effect of the 2016 enduring document at the time of its execution and that the legal presumption extends to the factors mentioned in section 41, subsection (2). In essence, I do not know the reasons for her poor performance on the MOCA specifically, whether it was related to her medication, her depression, delirium or dementia, and because of this I cannot know if her cognition had improved by the time she saw Dr Cameron. It does seem to have improved certainly by the time she saw Dr Kennett.

In any event, for the reasons I have set out, I do not find the evidence of Dr Harris compelling nor do I find the evidence of Dr Cameron or the witness Patrice Grealy-Ridley to be of any significant assistance. In the absence of evidence to which I am able to give reasonable weight on, I am of the view that I am left with the presumption of capacity to which [NSB] is entitled. I therefore find there is no sufficient evidence of sufficient weight to overturn the presumption to the effect that she had capacity to execute the enduring power of attorney made on 22 November 2016. I make no finding about the revocation of the 2013 enduring document made a few days later, as, essentially, it has no cause and effect.[34]

Grounds of appeal – what are the contentions raised on appeal?

  1. [24]
    In addressing Ground One of the appeal, KBB says the learned Member’s findings in deciding that the impugned EPOA was valid  may be distilled down to the following:
    1. (a)
      The statutory presumption of ‘capacity’ extends to the factors mentioned in ‘s 41(2) of the Powers of Attorney Act’;[35] and
    1. (b)
      That ‘concept’ meant that NSB ‘is entitled to the benefit of any doubt arising from assessments which assert the contrary’.[36]
  2. [25]
    KBB says that there is an error in the learned Member’s application of the presumption of capacity and s 41 of the POA Act in finding that that the statutory presumption of capacity extended to the understandings that s 41 makes essential to the validity of an EPOA.[37] Further, KBB says that there is an error in the learned Member’s application of the standard of proof required on the evidence to rebut the presumption of capacity by finding that if there was ‘any doubt’ concerning the maker’s capacity, the presumption operated to validate the power.
  3. [26]
    In oral hearing, KBB says that the learned Member misdirected himself as to the interaction between the presumption of capacity and the role of s 41 of the POA Act. KBB says that the presumption of capacity, as defined, gives rise to the proposition that someone has capacity for an EPOA. KBB says that this is a rebuttable presumption and does not presume that the matters under s 41(1) of the POA Act are met. Further, KBB says that s 41 of the POA Act has a specific requirement in that you can only create a valid document if you have capacity and an understanding of the matters in s 41(2). It is acknowledged that there is no authority squarely on point.
  4. [27]
    In addressing Ground Two of the appeal, KBB says that the learned Member disregarded relevant, cogent and unchallenged evidence of family members. KBB says that the evidence of family members was significant particularly in circumstances where there was medical evidence as to NSB’s ‘low level of cognitive functioning’.[38] In particular, KBB refers in her written submissions to the evidence of Dr Harris and Dr Cameron.
  5. [28]
    KBB says that the learned Member failed to take account of evidence that bore materially on the critical issue referring to the affidavits of KGT, KBB and another family member, LTD.[39] KBB says that evidence of family members relating to NSB’s cognitive decline in the period leading up to 22 November 2016 is directly relevant to whether, when NSB executed the EPOA, NSB had the understandings that s 41(2)[40] prescribes for the validity of the instrument. KBB says that the family members who provided evidence to the Tribunal attended the hearing on both days and were not questioned by the learned Member about their affidavits. KBB says that no evidence was adduced to contradict the evidence of family members and there was no application to exclude their evidence, yet the learned Member ‘shunted their evidence aside’.[41]

Error in the Tribunal’s application of s 41 of the POA Act and s 28 of the QCAT Act

  1. [29]
    There is an error in the learned Member’s application of s 41 of the POA Act. However, the error is not, as contended by KBB, in finding that the presumption of capacity extends to the understanding of the matters in s 41(2) of the POA Act.
  2. [30]
    The legal presumption of capacity or more importantly, the general principle that an adult is ‘presumed to have capacity for a matter’ is enshrined in the GAA and the POA Act.[42] ‘Matter’ includes a type of matter.[43] Types of matters is also defined and includes a ‘special personal matter’.[44] A ‘special personal matter’ for an adult includes a matter relating to making or revoking an enduring power of attorney.[45] ‘Capacity’ is defined in schedule 3 of the POA as:[46]

"capacity", for a person for a matter, means the person is capable of—

  1. (a)
    understanding the nature and effect of decisions about the matter; and
  2. (b)
    freely and voluntarily making decisions about the matter; and
  3. (c)
    communicating the decisions in some way
  1. [31]
    Section 41(1) of the POA Act makes it clear that a person cannot execute an enduring power of attorney unless they understand the nature and effect (the first limb of the definition of capacity) of the enduring power of attorney and s 41(2) sets out a non-exhaustive list of understandings a person should have in order to understand the nature and effect of the enduring power of attorney.[47] It would seem to us incongruous that the presumption of capacity for making an enduring power of attorney would not by extension include a presumption that the principal had the understandings set out in s 41(2) of the POA Act as a starting point.
  2. [32]
    An enduring document will continue to operate to the extent it gives power for the matter after the principal no longer has the capacity to make decisions about the matter such as his/her financial, personal and health matters. In our view, the inclusion of s 41[48] by the legislature was to identify the particular minimum understandings required for a person to understand the nature and effect of this significant legal document.  As observed by the former Guardianship and Administration Tribunal in Re Sal[49] the examples outlined in s 41(2) of the POA Act ‘require a high degree of cognitive ability, particularly as the concepts are both complex and unfamiliar. The principal must have the necessary cognitive ability to understand these concepts’.[50] Further, whomever witnesses the document has a legislative obligation to certify to the necessary understandings. Such provision ensures there are checks and balances in relation to the making of such a document.
  3. [33]
    We do not accept KBB’s contention that, put simply, the presumption does not apply to understanding the matters listed in s 41(2) of the POA Act. As observed in Re Caldwell[51] the particular matters as to which the principal must have an understanding are set out in s 41(2) of the POA Act and the presumption of capacity includes a presumption that the principal understood those particular matters and so understood the nature and effect of an EPOA. Indeed the note at the end of s 41(1) of the POA Act lends further support to our view. We do not consider that the learned Member erred in that respect.
  4. [34]
    That is not the end of KBB’s argument. The applicant argues that there is another respect in which the Member erred in law in his interpretation of how the presumption functions. It concerns the standard of proof.  The applicant submits even if the presumption did extend to the s 41(2) factors,[52] like any other presumption, it could be displaced by satisfactory evidence to the contrary and the burden of persuasion was the balance of probabilities.[53]
  5. [35]
    In our view, the learned Member’s expression in his reasons that NSB was entitled to the benefit of the doubt arising from the assessments due to the presumption, was not a correct expression of the legal presumption. The presumption can be rebutted by evidence to the contrary. The learned Member was required to consider all the relevant evidence in the context of the particular matter being considered, the making of an enduring power of attorney with its particular legislative provisions. In doing so the learned Member was required to consider and weigh the evidence contrary to the presumption, on the civil standard, in order to be satisfied that the adult understood the nature and effect of the enduring power of attorney including understanding the particular matters in s 41(2).[54] The use of the words ‘benefit of the doubt’ in the learned Member’s reasons suggests the learned Member applied the incorrect standard of proof, akin to the criminal standard. Perhaps that was not the intention of the learned Member but for the reasons already expressed and the reasons that follow in relation to ground two, in our view, the learned Member’s weighing of the evidence is flawed. In our view, the civil standard of proof applies.
  6. [36]
    In order to make necessary findings, the Tribunal must ensure, as far as the Tribunal considers it practicable, that the Tribunal has all relevant information when hearing and deciding applications such as an application for the declaration about the validity of an EPOA.[55] This involves an exercise of a broad judicial discretion. As observed by the Appeal Tribunal in PL’s case,[56] the Tribunal may adopt an inquisitorial approach to the proceeding. The Tribunal must however act fairly, as required under s 28 of the QCAT Act, ensuring that a party has an opportunity to present credible and significant evidence and make submissions. Such evidence may, for example, be relevant to the circumstances in which the EPOA was executed and the principal or adult’s capacity leading up to and during the time of execution of the EPOA.
  7. [37]
    Credible and relevant evidence may include, for example, medical reports, assessments or records from the principal or adult’s treating and/or independent health professionals. There may also be evidence presented by family members who had contact with the principal or adult, the witness to the EPOA or other persons of significance in the adult’s life that can speak to the adult’s capacity and more importantly, the adult’s understanding of his or her personal, financial and health matters relevant to the nature and effect of the EPOA and the powers to be given to the attorneys Such evidence would not be confined solely to the date of execution of the EPOA but may, for example, include evidence prior to execution of the EPOA relevant to the principal or adult’s capacity and his or her understanding as to the nature and effect of the EPOA at the time of execution of the enduring document.
  8. [38]
    In this matter, there was evidence relevant to the NSB’s capacity leading up to and at the time of execution of the 2016 EPOA such as the evidence of family members, health professionals and the witness Solicitor. The learned Member ultimately found the evidence of the health professionals and the witness to the EPOA to be ‘problematic’ and ‘of limited benefit to the Tribunal in its attempt to arrive at a determination’. In his reasons the learned Member examined the evidence of various witnesses and said of the evidence of certain family members:[57]

There is also the evidence of certain family members which make assertions about their mother’s capacity to execute the 2016 enduring document and make other decisions. With respect to those parties, their evidence is perceived to be somewhat self-serving and does not lend sufficient weight to persuade me to rule one way or the other.

  1. [39]
    Later, without again referring to the evidence of family members, the learned Member says:[58]

In any event, for the reasons I have set out, I do not find the evidence of Dr Harris compelling nor do I find the evidence of Dr Cameron or the witness Patrice Grealy-Ridley to be of any significant assistance. In the absence of evidence to which I am able to give reasonable weight on, I am of the view that I am left with the presumption of capacity to which [NSB] is entitled. I therefore find there is no sufficient evidence of sufficient weight to overturn the presumption to the effect that she had capacity to execute the enduring power of attorney made on 22 November 2016. …

  1. [40]
    The evidence of the family members was relevant to the issue of whether NSB had capacity to execute the 2016 EPOA and more importantly whether NSB had an understanding of the nature and effect of the 2016 EPOA that includes an understanding of the matters set out under subsection (2).[59]
  2. [41]
    The evidence of family members contained in affidavits filed in the Tribunal was clearly relevant to NSB’s capacity at the time of execution of the EPOA and more importantly whether NSB had an understanding of the matters prescribed under s 41(2) of the POA Act. KGT attests to NSB’s increasing memory loss and confusion since 2013 with specific examples relating to KGT’s interactions and observations of NSB.[60] For example, KGT’s evidence contained in the affidavit is that NSB was unable to understand the public transport system that she had used throughout her lifetime and was no longer able to use it. Further, KGT attests to NSB’s inability to complete a jigsaw puzzle designed for a person aged six plus; and that NSB required support with cleaning, medical, services, purchasing and repairing clothes, grooming organising and hosting celebrations and special events.[61]
  3. [42]
    KBB also filed an affidavit attesting to NSB’s need for support and assistance from family members from middle of 2014 to 2015.[62] Further, the affidavit filed by LTD attests to conversations NSB had in November 2016 that were mainly about things that happened ‘decades ago and were highly repetitive’.[63]
  4. [43]
    There is no error advanced on appeal as to the findings made by the learned Member in relation to the evidence of health professionals and that he found the evidence together with the evidence of the witness of the EPOA to be of little benefit to the Tribunal. The learned Member did not however properly consider the evidence of family members that was cogent and unchallenged evidence relevant to NSB’s capacity and understanding as to the matters prescribed under s 41(2) of the POA Act. It is settled law that a trial judge has a duty to properly consider and reflect upon the evidence ‘viewed as a whole’.[64] In Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd,[65] the Queensland Court of Appeal in citing the High Court decision of Fox v Percy[66] said [footnotes emitted]:

…the proper conclusion is that the primary judge failed to fulfil the duty of a trial judge to consider and reflect upon the entirety of the evidence viewed as a whole. In the result, “the question at issue has not been properly tried or determined, and adequate findings about credibility and the essential facts of the dispute have yet to be made.”

  1. [44]
    The transcript shows that the learned Member found the evidence of family members to be ‘self-serving’. If in fact the learned Member in considering the evidence of family members determined that the evidence was ‘self-serving’, the learned Member in discharging his duty under s 28 of the QCAT Act to observe the rules of natural justice, should have raised with the relevant parties and invited them to respond to the proposition that he ultimately found that their evidence was ‘self-serving’ and therefore of no assistance.  This would afford KBB as the applicant and active party in the proceeding, an opportunity to be heard and more importantly to present evidence relevant to the issues to be determined in the proceeding. In our view, a characterisation of evidence as ‘self-serving’ is not of itself a reason to disregard it. It may be that a person’s evidence is given in support of the argument they seek to advance but that does not automatically mean it lacks credibility. The evidence of the family members that was before the learned Member was credible, unchallenged and relevant to the issue of whether the 2016 EPOA was valid.  The failure of the learned Member to properly consider the family’s evidence was a denial of procedural fairness and an error of law.

Conclusion

  1. [45]
    We have found that there is an error in the learned Member’s consideration of the presumption of capacity.
  2. [46]
    We have also found an error in the learned Member’s application of s 28 of the QCAT Act that requires the Tribunal to afford a party in a proceeding procedural fairness and more importantly to observe the rules of natural justice. In determining the application about the validity of an EPOA, the learned Member failed to consider the evidence of family members that was critical, unchallenged and directly relevant to the issue of whether NSB had capacity to execute the EPOA and more importantly for the purposes of s 41 of the POA Act, whether NSB had an understanding of the nature and effect of the EPOA that includes an understanding of the matters set out under subsection (2).[67]
  3. [47]
    The learned Member found that the evidence of health professionals and the evidence of the witness to the EPOA was unhelpful. The learned Member also found the evidence of family members to be ‘self-serving’, the effect of which was to attach little or no weight to the evidence. In doing so, the learned Member did not afford the applicant in the hearing an opportunity to present her evidence relevant to the issues to be determined nor did he afford her opportunity to respond to the issue identified by the learned Member that the evidence may in fact be ‘self-serving’ and therefore no weight should be given to it.
  4. [48]
    Grounds one and two of the appeal are allowed and we order accordingly.
  5. [49]
    Given that NSB has, since the appeal hearing, passed away, KBB should be given an opportunity to address us further as to the appropriateness of any orders to be made in the disposition of the appeal. More importantly, whether in allowing the appeal and proceeding under s 146(c) of the QCAT Act, there is any utility in remitting the application for an order about an enduring power of attorney to the tribunal for rehearing. The further submissions that we invite KBB to file should address the issue of whether it is convenient for the appeal tribunal to, rather than remit the matter for rehearing, substitute its own decision that the application for an order about an enduring power of attorney is dismissed under s 47 of the QCAT Act. We make directions accordingly.

Footnotes

[1]Decision made on 13 March 2018 in relation to applications filed in the Tribunal for a declaration about capacity and for an order about an enduring power of attorney.

[2]By virtue of s 50 of the POA Act.

[3]Application for leave to appeal or appeal, Annexure “B” filed 9 April 2018.

[4]Ibid.

[5]Submissions filed on 22 October 2018, [5].

[6]Ibid.

[7]GAA, s 81(1)(a), 115, 146.

[8]PL v PT & Ors [2018] QCATA 114.

[9][2018] QCATA 114.

[10]Ibid.

[11]Ibid, [37].

[12]Ibid.

[13]POA Act, s 109A.

[14]Ibid, s 113.

[15]Ibid, s 114.

[16]Ibid, s 47.

[17]GAA, s 7(a) with the purpose of the GAA explained in s 6.

[18]Ibid, s 41(1).

[19]POA Act.

[20]Ibid.

[21]Transcript of Proceedings (Queensland Civil and Administrative Tribunal, G34466, 13 March 2018), 3.

[22]Transcript of Proceedings (Queensland Civil and Administrative Tribunal, G34466, 13 March 2018), 4-5.

[23]Transcript of Proceedings (Queensland Civil and Administrative Tribunal, G34466, 13 March 2018), 4.

[24]Ibid, 6.

[25]Ibid, 6-7.

[26]Ibid, 8.

[27]Ibid, 9.

[28]Ibid.

[29]Ibid.

[30]Ibid.

[31]Transcript of Proceedings (Queensland Civil and Administrative Tribunal, G34466, 13 March 2018), 10.

[32]Ibid, 11.

[33]Ibid.

[34]Transcript of Proceedings (Queensland Civil and Administrative Tribunal, G34466, 13 March 2018), 10-11.

[35]Ibid, 11.

[36]Ibid.

[37]Submissions filed on 22 October 2018, [13]-[14].

[38]Submissions filed on 22 October 2018, [43]-[49].

[39]Ibid, [54]-[59].

[40]POA Act.

[41]Submissions filed on 22 October 2018, [54]-[59].

[42]GAA, Schedule 1, s 1; POA, schedule 1, s 1.

[43]GAA, schedule 4 Dictionary; POA, schedule 3 Dictionary.

[44]GAA, schedule 2; POA, schedule 2.

[45]GAA, schedule 2, s 3; POA, schedule 2, s 3.

[46]Definition of ‘capacity’ is in identical terms in Schedule 4 of the GAA.

[47]POA Act, s 41(2).

[48]POA Act.

[49][2007] QGAAT 75.

[50]Re Sal [2007] QGAAT 75, [25].

[51][1999] QSC 182, [12]-[14].

[52]POA Act, s 41(2).

[53]Submissions revised 22 October 2018 [37]-[42].

[54]POA Act.

[55]GAA, s 130.

[56] [2018] QCATA 114. 

[57]Transcript of Proceedings (Queensland Civil and Administrative Tribunal, G34466, 13 March 2018), 34-38.

[58]Transcript of Proceedings (Queensland Civil and Administrative Tribunal, G34466, 13 March 2018), 11

[59]POA Act, s 41(2).

[60]Affidavit of KGT filed 31 March 2017.

[61]Ibid.

[62]Affidavit of KBB filed 31 March 2017.

[63]Affidavit of LTD filed 31 March 2017.

[64]Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2017] QCA 83, [48].

[65][2017] QCA 83.

[66](2003) 214 CLR 118 [23] (Gleeson CJ, Gummow J and Kirby J).

[67]POA Act, s 41(2).

Close

Editorial Notes

  • Published Case Name:

    KBB v NSB and Ors

  • Shortened Case Name:

    KBB v NSB

  • MNC:

    [2019] QCATA 123

  • Court:

    QCATA

  • Judge(s):

    Senior Member Guthrie, Member Browne

  • Date:

    18 Jul 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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