DC [2013] QCAT 108

CITATION: DC [2013] QCAT 108 PARTIES: DC APPLICATION NUMBER: GAA1338-13 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 6 March 2013 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 6 March 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The Enduring Power of Attorney of DC dated 30 July 2010 appointing DR and DG as attorneys for financial, personal and health matters is declared valid. 2. The powers granted to DG are effective and can be exercised by her. 3. It is declared that the powers granted to DR as attorney will begin once he signs his acceptance of the grant of those powers on the certified copy of the Enduring Power of Attorney document. CATCHWORDS: ENDURING POWER OF ATTORNEY – where mistake made on enduring document – where attorney signed his acceptance before the date of grant of the powers – where original enduring document is lost – where certified copy made Powers of Attorney Act 1998 - ss 44, 45, 109A, 113, 115 Whitney v National Australia Bank - [2007] QSC 397 APPEARANCES and REPRESENTATION (if any): DG attended the hearing by telephone. -- 1 of 4 -- 2 REASONS FOR DECISION [1] DC wanted to appoint members of his family to be his attorneys. On 30 July 2010 he signed an Enduring Power of Attorney document in which he appointed his son DR and his wife DG as his attorneys for financial, personal and health matters. His attorneys have agreed to act as his decision makers for those matters. [2] It is considered that DC no longer has capacity to make his own decisions. His attorneys want to act as his decision makers under the Enduring Power of Attorney but they have encountered problems as they have been told that the Enduring Power of Attorney document has not been properly completed and they have been told that as a consequence the grant of power may not be valid. [3] QCAT has power under the Powers of Attorney Act 1998 to declare whether an Enduring Power of Attorney is valid.1 DG applied to QCAT for an order as to the validity of the Enduring Power of Attorney. Her application was heard today. [4] There are four issues arising from DC’s Enduring Power of Attorney that were addressed at the hearing. The first issue is the inconsistency between the information in paragraph 1 of the document and the information in paragraph 6. In paragraph 1, DC appointed DR and DG as his attorneys. However, in paragraph 6 DC marked the box that he was not appointing more than one attorney when he clearly had appointed two attorneys. [5] DG explained at the hearing that she and her husband had been assisted with the document by a social worker who had filled out most of the form with them. DG had no experience with this form and relied on the social worker to fill it out correctly. DG told QCAT that the document was complex. DG had not noticed at that time that the box in paragraph 6 had been filled out incorrectly. This was only drawn to her attention recently when she started to act on the document. DG told QCAT that the box had been marked by mistake and that the document should have indicated that her husband was appointing more than one attorney. [6] I accept that explanation. Neither DG nor her husband filled out the document themselves with the exception of the signing clauses. It was not drawn to the attention of DG at the relevant time that the box in paragraph 6 had been marked to indicate that not more than one attorney was appointed. I accept that marking the box in this manner was a mistake and did not indicate an intention for only one attorney to be appointed. The mistake in paragraph 6 does not invalidate the Enduring Power of Attorney which otherwise was correctly made by DC. I am satisfied that there is substantial compliance with the requirements in section 44 of the Powers of Attorney Act 1998. 1 Sections 109A and 113 of the Powers of Attorney Act 1998 -- 2 of 4 -- 3 [7] The second issue arises from the fact that DR signed his acceptance of the grant of power on 28 June 2010 although DC did not actually make his grant until 30 July 2010. An attorney cannot accept a grant of power before that grant is made by the principal. Section 44(8) of the Powers of Attorney Act 1998 provides that the document is effective in relation to an attorney only if the attorney has accepted the appointment by signing the enduring document. In reality DR has not yet signed the enduring document which only came into existence on 30 July 2010 and he cannot act as his father’s attorney until he has complied with section 44(8). [8] However the absence of acceptance by an attorney does not invalidate an Enduring Power of Attorney. In Whitney v National Australia Bank 2 Justice Ann Lyons stated that an enduring power of attorney is made when the requirements in subsections 1 and 3 of section 44 are met. An enduring power of attorney is not revoked by the principal losing capacity after it is made. The authorisation for the attorneys to act on behalf of a principal is not withdrawn or nullified if the principal loses capacity after the document is executed. The giving of a power of attorney is a unilateral act. The validity of a power of attorney does not depend on acceptance by the attorney and the grant of powers to the attorney is complete when the grant is made, although the powers cannot be exercised until such time as they are accepted by the attorney. [9] There is no statutory bar to an attorney accepting the appointment as attorney at any time. The only restriction is that the exercise of the powers cannot be effective until the powers are formally accepted by the signing of the document by the attorney. DR must now re-sign the document to formally show in the required manner that he accepts the grant of power made to him by his father before he can act as attorney. I recommend that DR attends to re-signing on page 17 of the document as soon as possible. [10] I re-iterate that the Enduring Power of Attorney is valid whether or not DR re-signs on page 17 but DR can only lawfully act as attorney after he re- signs the document. DG signed her acceptance on 20 August 2010. Until DR re-signs page 17, DG is the only attorney whose appointment is effective. [11] The third issue arises from the manner in which DG signed her acceptance on 20 August 2010. She did not tick the boxes in paragraph 11 on page 17 at the time she signed her acceptance. DG gave evidence at the hearing that she was over 18 years of age, she was not a paid carer of the principal, she was not a health care provider for the principal, she had read the paragraphs of the document in which her husband had given her an enduring power of attorney, she had understood that she took on responsibility to exercise that power by signing her acceptance, and she had understood that she had to exercise that power in accordance with the relevant law. 2 Whitney v National Australia Bank [2007] QSC 397 -- 3 of 4 -- 4 [12] Her failure to tick the boxes was not a material matter of substance but of form only given her evidence to QCAT. I was satisfied that her acceptance of the powers was complete and validly given as of 20 August 2010. [13] The last issue arises from the fact that DG can no longer locate the original Enduring Power of Attorney document. She thought she had left it with a bank but her enquiries have failed to reveal its whereabouts. The copy that she has in her possession was certified as a true copy of the original on 20 August 2010. She can act on the basis of the certified copy in conjunction with the order made today by QCAT and these written reasons. Section 45 of the Powers of Attorney Act 1998 provides that a certified copy can be used to prove the enduring document. [14] DR can act as an attorney once he signs his acceptance on page 17 of that certified copy of the Enduring Power of Attorney document. He cannot sign his acceptance on the original document as it is now lost. To remove any doubt, it is declared under section 115 of the Powers of Attorney Act 1998 that the powers granted to DR will begin once he signs his acceptance on page 17 of that certified copy of the Enduring Power of Attorney document. -- 4 of 4 --