HAW

[2021] QCAT 252

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

HAW [2021] QCAT 252

PARTIES:

In an application about matters concerning HAW

APPLICATION NO/S:

G37829

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

23 July 2021

HEARING DATE:

12 May 2021

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

On 23 July 2021:

IT IS THE DECISION OF THE TRIBUNAL THAT:

1.   HAJ, as the appointed attorney for HAW, is hereby authorised to enter the following conflict transactions:

(a)    The reimbursement by HAW to HAJ in the sum of $3115.00, being the reasonable expenses incurred by HAJ in the provision of meals to HAW and in providing transport for or on behalf of HAW, from 1 November 2017 to 19 July 2021.

(b)   The payment of $70 per fortnight from HAW to HAJ from 19 July 2021 for the purposes of:

            (i)     the future provision of five meals per week to HAW; and

           (ii)     transport of or on behalf of HAW as and when required.

2.   The authorisation pursuant to order 1(b) will expire on 31 July 2025, or upon further or other order of the Tribunal.

CATCHWORDS:

GUARDIANSHIP AND ADMINISTRATION – INTERIM ORDER – whether attorney should be reimbursed for reasonable expenses incurred in providing meals and transport for HAW – whether transactions are conflict transactions – where Tribunal satisfied attorney should be authorised to be reimbursed for her expenses

Guardianship and Administration Act 2000 (Qld), schedule 4

Human Rights Act 2019 (Qld), s 24(2).

Powers of Attorney Act 1998 (Qld), s 73, s 118

Reilly v Reilly [2017] NSWSC 1419.

APPEARANCES: This matter was part-heard on 12 May 2021 at a hearing attended by HAW and HAJ. Directions were made for the filing of further material by HAJ and the proceeding was adjourned part heard. The matter was subsequently determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. On 16 October 2020 the Tribunal made an order changing the order made by the Tribunal on 3 September 2019 by appointing HAJ and BSM joint guardians for HAW for decisions about accommodation and the provision of services, in place of the Public Guardian. An order was also made overtaking the Enduring Power of Attorney dated 19 December 2017 appointing HAJ as attorney for financial, personal and health matters to the extent the order had been made.[1]

   [1]Tribunal Order dated 16 October 2020.

2. On 12 November 2020 HAJ filed an application seeking the authorisation of a conflict transaction. HAJ is HAW’s daughter, attorney for health and financial matters and guardian (joint with BSM) for personal decisions about accommodation and the provision of services.

   Relevant statutory provisions

3. For the Tribunal to have jurisdiction, it must be satisfied that HAW has impaired capacity for financial decisions such that he is unable to instruct his attorney. Capacity is defined in schedule 4 to the Guardian and Administration Act 2000 (Qld) (GA Act).

4. Section 73 of the Powers of Attorney Act 1998 (Qld) (PA Act) provides, relevantly, that an attorney for a financial matter may enter into a ‘conflict transaction’ only if the principal, or the court (which includes the Tribunal) has authorised conflict transactions of that type. Conflict transactions can be authorised under s 118 of the PA Act.

5. A ‘conflict transaction’ is defined in s 73(2) as a transaction in which there may be conflict, or which results in conflict, between –

   (a)the duty of an attorney towards the principal; and

   (b)either –

   (i)the interests of the attorney, or a relation, business associate or close friend of the attorney; or

   (ii)     another duty of the attorney.

   Decision

6. I am satisfied that HAW has impaired capacity for financial decisions, on the basis of the medical report by Dr David Taylor, HAW’s general practitioner, dated 17 June 2019.

7. It is necessary to consider the nature of the transactions the subject of the application in order to determine whether they are conflict transactions or merely transactions for which HAJ is entitled to reimbursement from the adult as reasonable expenses incurred in acting as guardian.

8. A ‘conflict transaction’ includes transactions where there may be conflict between the duty an attorney has towards the principal and the attorney’s own interests. The relevant principles to consider when determining whether a conflict may arise are summarised in Reilly v Reilly[2] where it was held:

   As a fiduciary, the first defendant was bound to exercise her powers as an attorney for the deceased in his interests and not otherwise: Hospital Products Limited v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 at 96-97.

   The primary object of a power of attorney is to enable the attorney to act in the management of his or her principal’s affairs; an attorney cannot, in the absence of a clear power so to do, make presents to himself or herself or to others of his or her principal’s property: Tobin v Broadbent [1947] HCA 46; (1947) 75 CLR 378 at 401 (quoting Reckitt v Barnett Pembroke and Slater Limited [1928] 2 KB 244 at 268, approved in the House of Lords [1929] AC 176 at 183 and 195), recently applied by the Full Court of the Federal Court of Australia in Great Investments Limited v Warner [2016] FCAFC 85; (2016) 243 FCR 516 at 538 [85].

   Under the general law of agency it is a breach of duty for an agent to exercise his or her authority for the purpose of conferring a benefit on himself or herself or upon some other person to the detriment of his or her principal. …

   Where a fiduciary (such as an agent) exercises a power which results in his or her obtaining some incidental benefit, there may be nothing per se improper with his or her having that benefit if the benefit itself is, in the circumstances, an inevitable consequence of his or her properly exercising the power which produces it. A beneficiary (principal) may be able to upset such an exercise of power only if he or she can show that the fiduciary (agent) exercised it with the dominant purpose in mind of obtaining that benefit irrespective of the interests of his beneficiary (principal)...[3]

   [2][2017] NSWSC 1419.

   [3]Ibid at [114]-[117].

9. The payment to HAJ from HAW in relation to past expenses is, in my view, a conflict transaction. HAW gains no benefit from the lump sum reimbursement. I note it would not be a conflict transaction for HAJ to use HAW’s funds directly to purchase groceries for HAW’s household. However, that does not apply to the current arrangement where HAJ purchases groceries for her household for the benefit of her immediate family and HAW.

10. I turn to consider what expenses have been incurred on behalf of HAW and what amount, if any, HAJ should be entitled to.

11. HAJ is seeking reimbursement for the expenses she has incurred in providing HAW with regular meals and transport. HAJ says that she has been providing meals and partial transport from 1 November 2017 and meals and all transport from approximately May 2018. In broad terms, the arrangement for the first 3 months was that HAW attended HAJ’s home for dinner 7 nights a week. For the next 3 months, HAW attended HAJ’s home for dinner 6 nights a week and would accompany HAJ and her husband to Ten Pin bowling one night a week where HAW would buy his dinner. From then, HAW has been attending HAJ’s home for dinner 5 nights a week, going bowling one night a week and buying a take away meal one night a week.

12. HAJ transports HAW to and from her home for dinner, delivers his take-away and fulfills all other transport needs, including for groceries, pharmaceutical products, medical appointments, dental appointments, audiologist appointments, visits to the library and any other shopping requirements.

13. To date, HAW has not contributed to the cost of the food or transport provided by HAJ. In her application HAJ requested to be paid $5.00 per meal ($25.00 per week) and $10 per week towards fuel costs (a total of $35.00 per week). HAJ requested that the payments be made retrospective from 1 November 2017. HAJ calculates that, on that basis, she would be entitled to $1 820 for the period from 1 November 2017 to 1 November 2020. HAJ also seeks $35 per week from 1 November 2020, which, taken to 19 July 2020 is a period of 37 weeks, making a sub-total of $1 295. The total amount claimed from 1 November 2017 to 19 July 2021 is $3 115. HAJ also seeks from 19 July 2021 that she be permitted to transfer $70 per fortnight from HAW’s account to her own, for meal and fuel expenses incurred on the same basis in the future.

14. HAJ relied on a series of photographs (64 pages of photographs each page containing 2 or 3 photos) of HAW having his dinner at HAJ’s home. These photographs were undated and of limited probative weight. HAJ also provided copies of handwritten extracts from her diary covering the period January 2019 to October 2019.

15. At the hearing on 12 May 2021 the Tribunal directed HAJ to provide a sworn affidavit setting out the reasons for the application for authorisation of a conflict transaction and which itemised all claimed expenditure, including evidence of the average weekly cost of groceries for HAJ and HAW’s households respectively; an estimate of the proportion of HAJ’s weekly grocery expenses that is spent on the provision of meals for HAW; evidence of the weekly cost of takeaway meals provided at the expense of HAJ for HAW; evidence of the average weekly petrol cost incurred by HAJ; and an estimate of the proportion of the weekly petrol cost incurred by HAJ that is spent on transporting HAW or which is incurred on his behalf.[4] HAJ was also directed to set out the basis for her application to be reimbursed retrospectively from 1 November 2017.[5]

    [4]Tribunal Directions of 12 May 2021.

    [5]Ibid.

16. On 8 July 2021 HAJ filed an affidavit swearing to the truth of the contents of an email she had sent to the Tribunal on 9 June 2021. In that email HAJ states that HAW has saved approximately $17 000 per year from his pension of approximately $23 600 since HAJ was appointed attorney on 19 December 2017. Further, that this is saved while living in his own home and incurring costs for utilities, rates, insurance, home maintenance, take away food, pharmaceutical products, cleaning products, breakfast and lunch food and drinks, replacing white goods, clothes, shoes, dental services and $25.00 per week spending money. HAJ clarified that she purchases one take away meal for them all (HAJ’s immediate family and HAW) at a cost of $22 plus the cost of extra vegetables and that HAW pays for his own takeaway meal and for his meal at the weekly family bowling outing. HAJ said that it was difficult for her to estimate how much she spent on groceries on a weekly basis as she does not do a weekly shop and often uses cash. HAJ says that HAW has offered to give HAJ money towards the cost of his meals but she has refused.

17. I accept that $25.00 per week (representing a cost of $5 per meal) towards the cost of HAW’s meals in the current circumstances is appropriate and that the payment by HAW to HAJ of that amount from 1 November 2017 be authorised. I also authorise the payment by HAW to HAJ of $50 per fortnight for the purposes of providing 5 meals a week to HAW be authorised until further or other order of the Tribunal.

18. In terms of the cost of fuel, HAJ has summarised the weekly trips she makes for HAW. I am satisfied that the cost of those trips are in excess of the amount of $10 per week she is claiming. Accordingly, I accept that $10.00 per week towards the cost of fuel is appropriate and reasonable and that payment of that amount from 19 December 2017 be authorised. I also authorise the future payment by HAW to HAJ of $20 per fortnight towards the cost of fuel for transporting HAW or for trips made on his behalf until further and other order of the Tribunal.

19. I am satisfied that authorising these transactions is compatible with HAW’s rights under the Human Rights Act 2019 (Qld).[6] I am satisfied that making directions in the terms provided, is in the interests, and for the benefit, of HAW, the person with impaired capacity and the person in need of protection.

    [6]HRA, s 24(2).