DFI

[2016] QCAT 37

CITATION: DFI [2016] QCAT 37

PARTIES:	DFI
APPLICATION NUMBER:	GAA8343-15 GAA8344-15

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Endicott

DELIVERED ON: 8 January 2016

DELIVERED AT: Brisbane

ORDERS MADE:

1. The application for guardianship by DAP is dismissed pursuant to s47 of the Queensland Civil and Administrative Tribunal Act 2009.

2. The application for administration by DAP is dismissed pursuant to s47 of the Queensland Civil and Administrative Tribunal Act 2009.

CATCHWORDS:

GUARDIANSHIP – where adult had been diagnosed with Alzheimer’s dementia – where evidence of moderate degree of cognitive impairment – where adult had made an Enduring Power of Attorney before dementia was diagnosed

JURISDICTION – where adult moved to live outside of Queensland – where attorney supported and confirmed that decision – where applications made to QCAT for appointment of a guardian and administrator – whether QCAT has jurisdiction to make appointments – whether sufficient connection with Queensland for extra-territorial reach of Tribunal to resident of another State

Guardianship and Administration Act 2000 (Qld)

Acts Interpretation Act 1954 (Qld) ss9 and 35(1)(b)

Jumbunna Coal Mine No Liability v Victorian Coal Miners’ Association (1908) 6 CLR 309

Welker v Hewett [1969] HCA 53

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. DFI is 91 years of age.  She made an Enduring Power of Attorney on 14 September 2012 appointing DF and SG as her attorneys for personal, health and financial matters.  The financial powers started immediately.

2. DFI had been living with her daughter, DAP, for some time but in July 2015 DFI went to stay with another daughter, her attorney DF.  In August 2015 DAP lodged with QCAT an application for the appointment of a guardian and administrator for DFI.  DAP sought the appointment of herself and her sister, AD, as decision-makers for their mother.

3. The application was opposed by DF.  Evidence was provided to QCAT which established that DFI had permanently relocated to New South Wales with DF. DFI did not own any real property in Queensland and her assets were primarily cash funds that were located in bank accounts.   The evidence provided to QCAT was that DFI had made her own decision to reside in New South Wales but in any event the decision was supported and confirmed by one of her attorneys for personal matters.      

4. The Tribunal informed DAP that the applications would be considered for dismissal on the basis that DFI was residing in New South Wales.  The Tribunal registry staff informed DAP that she could consider lodging a similar application in the New South Wales Civil and Administrative Tribunal. 

5. On 4 November 2015, the Tribunal was informed by another daughter of DFI that she was considering lodging an application in the NSW Tribunal to seek a declaration about the validity of a 2015 Enduring Power of Attorney made in New South Wales by DFI.    No further information was given to QCAT as to whether those proceedings had been instituted or finalised.

6. The evidence had established that DFI does not reside in Queensland and the evidence suggested that she does not intend to return to live in Queensland in the near future.  The question was whether DFI was now domiciled outside of Queensland. 

7. A person can acquire a domicile of choice. The person evidences and implements this decision by ceasing to reside in the former jurisdiction, and by taking up residence elsewhere with the intention of doing so permanently or indefinitely.  Evidence had been provided to QCAT which stated that DFI had decided to reside in New South Wales. 

8. However, there was also evidence provided to QCAT that DFI had been diagnosed with Alzheimer’s dementia and by July 2015, she had a moderate degree of cognitive impairment associated with dementia.  If she lacked capacity to make a decision about where she lived, her attorney for personal matters had the power to make that decision for her.   

9. The Guardianship and Administration Act 2000 (Qld) does not expressly give QCAT any extra-territoriality jurisdiction to make orders about persons who are either not present, resident or domiciled in Queensland. There is a rebuttable presumption at law against giving legislation an extra-territorial effect. A law may have extra-territorial effect where it can be said that an extra-territorial reach would be for the peace, order and good government of the State involved. The test is whether there is a sufficient connection between the extra-territorial aspect and the State enacting the legislation.[1]

   [1]Jumbunna Coal Mine No Liability v Victorian Coal Miners’ Association (1908) 6 CLR 309, Welkler v Hewett [1969] HCA 53, and see ss 9 and 35(1)(b) of the Acts Interpretation Act 1954 (Qld).

10. For this reason, the Tribunal can only make orders about persons who have some relevant connection to Queensland.  If DFI is not domiciled in Queensland or if at least she is residing indefinitely out of this State, and she does not have financial assets in this State, there is no sufficient connection with Queensland to give QCAT the power to appoint a guardian or administrator for her.  The New South Wales Tribunal is the appropriate jurisdiction in which to seek an appointed decision-maker if the family believe that the attorneys should not be making decisions for DFI.   

11. Due to a lack of jurisdiction to make appointments of the type sought by DAP, the application were dismissed.