Martin J has delivered the above recent decision which discusses the operation of s.107 of the Powers of Attorney Act which is a provision unique to Queensland. Such applications are becoming more common and his Honour’s decision is the first to give any detailed consideration to the scope of the section or the matters which the Court should consider when applying it.
The matter came about when the applicant, who held a power of attorney, sold a house belonging to the grantor of the power who had become mentally impaired. At the time of selling the house the applicant was not aware that the house had been left to the applicant by the terms of the will of the grantor of the power of attorney. Section 7 of the Powers of Attorney Act permitted the Court to make an order for compensation if a person’s interest in an estate of another was lost because of a sale or dealing with the principal’s property by an attorney of the principal. Martin J noted that the discretionary power vested in the Court was untrammelled and identified a number of considerations which were likely to be relevant in any given case. Of substantial importance in the present case was that the sale by the attorney was for the benefit of the testator and it did not result in any benefit to the attorney.