Queensland Law Society has safeguarded the Fidelity Guarantee Fund (FGF) in acting to protect the interests of an elderly Queensland man.
In a Queensland Civil and Administrative Tribunal (QCAT) matter in July, QLS was successful in seeking orders in relation to the validity of the 92-year-old’s Enduring Power of Attorney (EPOA) and the administration of financial matters concerning a $1.6 million claim on the FGF.
“TYS” had engaged a solicitor in late 2023 to gift a property to his carer, sell his residential property, and prepare and witness an EPOA. The solicitor then illegally took $1.6 million from the sale proceeds.
The Society was concerned that TYS may not have capacity to sign a release for payment of the sum, or have had capacity to appoint his EPOA. The Society submitted that in the circumstances, the Public Trustee be appointed to sign the release on behalf of TYS and manage the money payable to him from the FGF.
“Soon after the money was transferred by the former solicitor into another account, a claim followed under the hand of TYS’s attorney, appointed under a purported enduring power of attorney,” Senior Member Browne stated in the decision.
“The claim and, indeed, the circumstances surrounding TYS’s engagement with the former solicitor raise concerns about the solicitor’s standards of competence and diligence in preparing the enduring power of attorney, acting for TYS in the gifting and sale of his own properties and the alleged gifting of money by TYS under an authority.”
QLS allowed the claim because the solicitor had clearly misappropriated the money but was concerned about the claimant’s capacity and vulnerability, and what would happen to the sum if transferred to TYS’s personal bank account because it was unclear who controlled it.
The Society was not satisfied it could rely on a release signed by the claimant himself, or the EPOA, given its concerns that the enduring document was not valid. The Society prepared and filed three applications in QCAT, regarding TYS’s current capacity, the EPOA and the appointment of an administrator.
The applications were heard in QCAT on Tuesday, 25 June 2024. The tribunal heard from TYS under an adult evidence order, and ultimately decided he did not have capacity to sign the release or manage the claim money.
“We are satisfied that TYS, a 92-year-old man with disabilities in his hearing and vision, is unable to read and understand complex documents such as the release for funds from the Queensland Law Society and to make complex decisions about his financial matters, such as the significant claim from the Queensland Law Society Fund,” Senior Member Browne said.
“TYS is vulnerable to exploitation by others because he relies solely and entirely on another person to explain to him documentation and to manage his financial affairs.
“We have considered TYS’s right to adequate and appropriate support for decision-making and again we have found there is an element of vulnerability here such that TYS, if left unsupported and without adequate support in his decision-making, would not be able to freely and voluntarily understand and communicate decisions about the payment from the Queensland Law Society fund and to manage that significant fund.”
The Tribunal then decided to exercise its discretion under Section 12 of the Guardianship and Administration Act 2000 (Qld), appointing the Public Trustee to execute the release of the FGF funds and manage them on behalf of TYS.
“The Tribunal is satisfied that without an appointment of an administrator, TYS’s needs will not be adequately met or his financial interests protected in respect of the Queensland Law Society payment,” Senior Member Browne said.
“The Public Trustee of Queensland is independent and available to step in as an administrator and to apply the general principles that include, amongst other things, taking into account TYS’s rights and fundamental freedoms.”
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