HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY
OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION
AND FINANCIAL
MANAGEMENT – where the applicant is the attorney for financial and
Source
Original judgment source is linked above.
Catchwords
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTYOF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATIONAND FINANCIALMANAGEMENT – where the applicant is the attorney for financial andpersonal/health matters of the adult, hermother – where the adult is inpermanent residential care at a care facility – where the adult does nothave capacityto make decisions about personal health and finances – wherethe adult owns a small cattle property which is being maintainedby theapplicant and three of her siblings and its only income is from renting of oneof the houses on the property – wherethe applicant seeks approval fromthe court to sell the property to her brother at market value – where thetransaction isa ‘conflict transaction’ – where the court mayapprove a ‘conflict transaction’ if satisfied it wouldbe inaccordance with the general principles of the Power of Attorney Act 1998
– where two of the respondents, who are siblings of the applicant,
oppose the transaction – whether the transaction accords
with the general
principles – whether the court should exercise its discretion to authorise
the applicant to undertake the
transaction
Powers of Attorney Act 1998 (Qld), s 6C, s 73, s 118(2)
Adamson v Enever & Anor [2021] QSC 221, cited
Ex
Parte Whitbread in the Matter of Hinde, a Lunatic [1816] EngR 868
(1816) 2 Mer 99
35 ER
878, cited
Secretary Dept Health and Community Services v JWB and
SMB (Marion’s Case) [1992] HCA 15
(1992) 175 CLR 218, cited
Judgment (26 paragraphs)
[1]
The Applicant's costs of and incidental to this application be paid out of the assets of Victoria (including the nett proceeds of the said sale) on the indemnity basis.
2. I will hear the First and Second Respondents as to what, if any, order should be made as to their costs at 9.15 am 7 December 2022 (out of town parties having leave to appear by telephone), unless the Applicant in her capacity as enduring attorney of and for Victoria reaches agreement with the First and Second Respondents about their costs in the meantime.
3. Liberty to apply on the giving of two business days notice in writing.
[2]
[1] Affidavit of Bernadette, Court doc 2, exhibits pp 19-20.
[3]
[2] Affidavit of Bernadette, Court doc 2, exhibits pp 23-24.
[4]
[3] Affidavit of Bernadette, Court doc 2, exhibits pp 26-27.
[14] Affidavit of Bernadette, Court doc 2, exhibits p 33.
[16]
[15] Affidavit of Bernadette, Court doc 2, exhibits p 23.
[17]
[16] Affidavit of Bernadette, Court doc 2, exhibits p 36.
[18]
[17] Affidavit of Bernadette, Court doc 2, exhibits p 41.
[19]
[18] Affidavit of Patricia, Court doc 8 (court doc 6 is a photocopy duplicate) exhibits pp 1-3.
[20]
[19] Affidavit of Trevor Gard, Court doc 16 [6]. (Mr Gard went on to depose that another of the properties in his reports which had sold for $1,525,000 on 15 November 2019 was much larger (46.81 hectares larger) than the farm.)