AG [2014] QCAT 536

CITATION: AG [2014] QCAT 536 PARTIES: GA APPLICATION NUMBER: GAA7241-14 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Joachim DELIVERED ON: 3 September 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. That the following Enduring Power of Attorney for AG is declared valid pursuant to s 113 of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000; that is the Enduring Power of Attorney dated 17 September 2013 appointing EA as attorney for financial, personal and health matters for AG. CATCHWORDS: ENDURING POWER OF ATTORNEY – VALIDITY – where eligible witness witnessed principal signature on day of execution – where witness signed witness certificate 17 days after execution – whether enduring document valid Guardianship and Administration Act 2000 (Qld), s 82 Powers of Attorney Act 1998 (Qld), s 113 APPEARANCES and REPRESENTATION (if any): 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). -- 1 of 3 -- 2 REASONS FOR DECISION [1] These are the reasons for decision in relation to an application from EA seeking an order about an Enduring Power of Attorney in respect of AG, his mother. [2] The Tribunal received this application on 6 August 2014. EA was appointed as attorney for AG to make decisions about personal, financial and health matters under an Enduring Power of Attorney dated 17 September 2013. [3] The application from EA seeks a declaration that that Enduring Power of Attorney is valid. [4] When the Enduring Power of Attorney was executed on 17 September 2013, it was witnessed on that day by a Justice of the Peace, a GI. [5] GI signed as a witness on page 10 of the Enduring Power of Attorney in the section statement of understanding. Unfortunately he did not complete Part 2 which is the witness certificate. [6] The document’s validity has been challenged by financial institutions as well as care providing institutions. Its validity has been challenged on the basis that GI signed and dated the witness certificate on a different day. [7] When it had been realised that GI had not completed the witness certificate this was subsequently done on 4 October 2013 some 17 days after the document had been executed by AG. [8] In all other respects other than the witness certificate, the document has been appropriately executed. Ideally the witness certificate should be signed at the time of execution. There is however nothing in the Powers of Attorney Act 1998 (Qld) or the Enduring Power of Attorney form itself which necessitates this. [9] In my view there is no doubt that the witness GI witnessed the document on the day of execution that is 17 September 2013. There is nothing in the witness certificate to cause concern. [10] All the witness certificate does is to simply state that GI is a Justice of the Peace; that he is not a paid carer or health provider for the principal; that the principal AG signed the Enduring Power of Attorney in his presence; and that at the time that the Enduring Power of Attorney was signed the principal appeared to him to understand the matters stated in clause 8 which is the statement of understanding. Which I note again was witnessed on 17 September 2013 by GI signing adjacent to the signature of AG. [11] Given that the witness has now completed the certificate and did so 17 days after the principal had signed the document and the witness witnessed it, there is to my mind nothing to invalidate the document. -- 2 of 3 -- 3 [12] I am satisfied that the Enduring Power of Attorney appointing EA as attorney for AG on 17 September 2013 is a valid document. [13] I will make the following order: 1. That the following Enduring Power of Attorney for AG is declared valid pursuant to s 113 of the Powers of Attorney Act 1998 and s 82(2) of the Guardianship and Administration Act 2000; that is the Enduring Power of Attorney dated 17 September 2013 appointing EA as attorney for financial, personal and health matters for AG. -- 3 of 3 --