Lambourne and Ors v Marrable and Ors

In this complex recent matter, Martin J considered the concept of capacity in the sense used in the Powers of Attorney Act 1998. The first respondent, the principal, had given enduring powers of attorney for health and financial matters. Subsequently, he purported to revoke them and to make further enduring powers of attorney. The applicants disputed the validity of the further enduring powers of attorney on grounds of capacity, argued that each was invalid, and sought to rebut the statutory presumption of capacity that the principal was capable of making the further enduring powers of attorney freely and voluntarily, and that he understood the nature and effect of each. In a careful judgment, his Honour found in favour of the first respondent and declared that the revocations were validly made.

Martin SJA

9 October 2023

Foreshadowing the likelihood that after his death his estate might cause disputes between members of his family, the principal took measures with a view to preventing that. Those included executing various enduring powers of attorney. [2]. Initially in late 2020 he executed both a personal enduring power of attorney, in all three applicants’ favour, together with a financial enduring power of attorney, in favour of the first and second applicants only. [6]. Contentiously, in mid-2022, the principal executed revocations of both enduring powers of attorney. [9]. Thereafter, he executed two further revocations in respect of the enduring powers of attorney and also executed a range of new enduring powers of attorney for personal matters, financial matters and health matters in favour of other parties including his former wife and the second, third and fourth respondents. [10], [11]. The applicants contended that immediately prior to the purported revocations and the making of the new enduring powers of attorney, the principal lost capacity for personal and financial matters and never regained it, and in those circumstances all were invalid. [12].

Issues arising in the proceeding included: whether the powers under the initial enduring powers of attorney, in favour of the applicants, remained in force. [25].; and, whether the applicants had rebutted the presumption that the principal had capacity to make the further enduring powers of attorney freely and voluntarily, (and revoke the former ones), and understood the nature and effect of each. [26], [27].

The test for capacity under the Powers of Attorney Act 1998

In terms of assessing the principal’s capacity, his Honour noted that that could be done both by considering the making and revocation of enduring powers of attorney and secondly, with respect to particular matters or transactions. [28]. He explained the applicable principles as follows:

1. The Powers of Attorney Act 1998 is to be read together with the Guardianship and Administration Act 2000. In the event of a conflict between the two, the Guardianship and Administration Act 2000 prevails. Section 6C Powers of Attorney Act 1998 contains principles which “must be applied by a person or other entity that performs a function or exercises a power under this Act”. That provision applies to persons who have relevant obligations under the legislation. The principles have no application to the court when it is required to make a declaration regarding the validity or otherwise of an enduring power of attorney. Rather, the direction in s 111A to presume capacity until the contrary is proven relates to the court’s functions or powers under the Act. It directly concerns the making of a declaration available under s 113 or s 115. [29]–[35].

2. The principles outlined in s 6C “encompass a constellation of considerations”, with many potentially having narrow application on a case by case basis. They are principles which are designed to be taken into account by attorneys or other individuals who are subject to similar obligations under the Act. The principles are “in many respects, aspirational”. [36].

3. The issue as to whether the applicants had repudiated the obligations imposed upon them by the general principles contained in s 6C, whilst potentially relevant in terms of explaining the principal’s decision to purportedly revoke the enduring powers of attorney in their favour, was not an aspect which warranted a detailed assessment. The acceptance of their evidence was a different matter. [37].

4. The principal’s capacity was presumed and the burden of rebutting it was solely borne by the applicants. It was not necessary that the principal had to justify his conduct or for that matter demonstrate the soundness of every decision he made: “A person with capacity can make a good or a bad decision. Of course, a decision which is objectively bizarre may allow a submission that that tends to show a lack of capacity. But this is a case about capacity, not wisdom”. [38]–[41].

5. Section 111A provides that the court “is to presume the adult has capacity for the matter until the contrary is proven.” The definition of “capacity” specifies that that presumption includes the implicit presumption that the principal was capable of making the enduring power of attorney freely and voluntarily, and that the principal comprehended the nature and effect of same. This presumption is to be applied by the court but it may be rebutted if “the contrary is proven.” The proof only needs to meet the civil standard but it must be to the Briginshaw standard. The “onus to be discharged is substantial” (see Re Caldwell [1999] QSC 182, [14]). [41]–[44].

6. The definition of “capacity” is cumulative since in the event it is shown that one limb is not met, then the presumption of capacity will be rebutted. The definition is with respect to a particular matter and is not determined on a global basis. [45]–[46].

7. Since the definitions of “capacity” in the Powers of Attorney Act 1998 and Guardianship and Administration Act 2000 are identical, the inquiries to be made under both are also alike. Accordingly, the examination of the meaning of “capacity” under the latter can broadly assist when considering the definition in the Powers of Attorney Act 1998. [47].

8. Capacity for a matter is decision specific: see Adamson v Enever (2021) 9 QR 33. Whilst “matter” is undefined in the Powers of Attorney Act 1998, the parties agreed that it comprises the making of revocation of an enduring power of attorney. The definition of capacity which is applicable to the making of an enduring power of attorney is contained in s 41, which also prescribes a two-part test for the assessment of capacity and specifically excludes the definition of “capacity” contained in the Dictionary. It is essential that ss 41 and 111A are read in conjunction. When a court determines the issue of capacity, it is presumed that the principal both understands the nature and effect of an enduring power of attorney and the matters contained in s 41(2). [48]–[53].

9. An enduring power of attorney may be revoked either by a deliberate act (s 47) or due to the making of a subsequent inconsistent document. The same test of capacity applies in relation to making and revoking an enduring power of attorney and the making of a subsequent enduring power of attorney. [54]–[57].

10. The Queensland Capacity Assessment Guidelines 2020 are intended to be used as an educative tool and they may be utilised in order to assist in identifying matters which should properly be taken into account. The court is not bound to follow them. [62].

11. Section 6C Powers of Attorney Act 1998 imposes an explicit, positive duty on an attorney to enable participation of the principal and to give “the support and access to information necessary to enable the adult to make or participate in decisions” and this is unique to Queensland. General Principle 8 specifically requires that an attorney do things which exceed the duties imposed at common law. [108].

12. The test for capacity does not require that the principal has a contextual understanding of the principal’s assets for a grant of power for financial matters, or a contextual understanding of the principal’s personal circumstances for a grant of power for personal and health matters. Nor does the complexity of the matters which the principal must understand increase proportionately to the complexity of those contextual matters. [66]–[67].<

13. As to the proper construction of “understands the nature and effect of the power of attorney” in s 41(1)(b) Powers of Attorney Act 1998, the phrase “nature and effect” is a compound one. [65], [73]. The provisions of s 41(2) are inclusive and it can be seen that s 41 is concerned with the “nature and effect of the enduring power of attorney” as distinct from the assets of, or business of, the principal. [91].

14. It would be incongruous with the clear intent of the Act if a principal who recognised that they no longer possessed the ability to participate in complex business affairs (but knew that their wishes or preferences could be acknowledged and fulfilled by the appointment of an attorney), might be denied that due to the principal’s inability to participate in those complex business affairs. The construction advanced by the applicants would have that outcome. [114].

Consideration

The applicants’ primary task was to clearly show that the first respondent did not comprehend the nature and effect of making an enduring power of attorney. [113]. They essentially argued that the evidence supported a finding that he suffered a significant decline in his cognitive and functional capacity between about October 2021 and May 2022, with the end result that by June 2022 he lacked capacity to make an enduring power of attorney and therefore could not revoke an enduring power of attorney. [165]. The applicants submitted that he lost capacity on 8 June 2022 and never regained it. [318].

His Honour was not satisfied after extensively reviewing all of the evidence that that was the case. He held that rather, the first respondent had only temporarily lost the capacity to make decisions for personal and financial matters. The initial enduring powers of attorney in favour of his family members commenced at that time. Subsequently, on approximately 27 June 2022, he resumed the capacity to make decisions for personal and financial matters. It followed that the original enduring powers of attorney were validly revoked on 27 and 28 June 2022. [350]–[352].

Disposition

His Honour heard the parties further as to the appropriate form of orders and costs.

A Jarro