AC - [2023] WASAT 120

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   AC [2023] WASAT 120
MEMBER:   MS F CHILD, MEMBER
HEARD:   21 DECEMBER 2022 AND 18 SEPTEMBER 2023
DELIVERED          :   6 DECEMBER 2023
FILE NO/S:   GAA 2943 of 2022
GAA 2944 of 2022
AC
Donor
S
Applicant
B
Donee

Catchwords:

Guardianship and Administration Act 1990 (WA) - Enduring power of attorney - Application for the production and audit of records and accounts kept by donee - Donor and donee in de facto relationship - Tribunal not satisfied a need established for an enquiry into the conduct of the EPA by the donee - Applications dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 102, s 107, s 107(1)(b), s 107(1)(c), s 109, s 109(1), s 109(1)(a), s 109(1)(b), s 109(1)(c), Pt 9

Result:

Applications dismissed

Representation:

Counsel:

Donor	:	In Person
Applicant	:	In Person
Donee	:	Ms A Christiansen (between 3 August 2022 and 27 June 2023)

Solicitors:

Donor	:	N/A
Applicant	:	N/A
Donee	:	Dwyer Durack

Cases referred to in decision(s):

BFO & Ors and KPW [2014] WASAT 68
EW [2010] WASAT 91
GA and EA and GS [2013] WASAT 175
IT and DN AND MN [2018] WASAT 117
KS [2008] WASAT 29
Re SS; Ex Parte RA [2008] WASAT 218

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Applications were made to the Tribunal on 6 July 2022 by S in respect of an enduring power of attorney (EPA) made by her father, AC, on 18 June 2008 by which he appointed AC's de facto spouse (and S's mother), B, as his sole attorney (2008 EPA).
The applications were made pursuant to s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act) for the filing of records and accounts kept by the donee of dealings and transactions made in connection with the EPA, and an audit of the accounts filed pursuant to s 109(1)(b) of the GA Act.
B made her own application on 5 August 2022 seeking the revocation of the 2008 EPA, pursuant to s 109(1)(c) of the GA Act. B said that she had given notice to AC that she would no longer act under the 2008 EPA on 5 August 2022.[1] I revoked the 2008 EPA by order dated 14 September 2022.
[1] Counsel for B submitted that because of an historical dementia diagnosis made for AC in 2018/2019 there was an ambiguity as to whether he was capable. Therefore, B sought the order from the Tribunal to revoke the EPA rather than renounce the power because s 107(1)(c) of the GA Act provides that the donee of an EPA cannot renounce a power during any period of incapacity of the donor. It was argued for B that if the Tribunal found AC incapable, that the Public Trustee should be appointed administrator of his estate. However, B did not make an application for the appointment of an administrator of AC's estate as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: AC [2023] WASAT 120
Case: [2023] WASAT 120
Decision Date: 6 DECEMBER 2023

CaseChat Overview and Summary

In this matter, the court considered an application for the production and audit of records and accounts related to an enduring power of attorney under the Guardianship and Administration Act 1990 (WA). The applicant sought the orders based on concerns regarding the management of the donor's affairs by the donee, who was also in a de facto relationship with the donor. The primary focus of the dispute was whether the Tribunal was justified in dismissing the application due to a lack of established need for an enquiry into the donee's conduct.

The legal issues before the court encompassed the threshold requirement for an enquiry under the Act, the significance of the de facto relationship between the donor and donee, and the extent to which the applicant had demonstrated a need for the audit. Specifically, the court needed to determine if the Tribunal's decision to dismiss the application was lawful and whether there was sufficient evidence to warrant an investigation into the donee's conduct.

The court found that the Tribunal had appropriately considered the evidence presented and concluded that there was no established need for an enquiry. The relationship between the donor and donee, while relevant, did not automatically necessitate an investigation. Furthermore, the court upheld the Tribunal's decision, noting that the applicant had not sufficiently demonstrated a need for the audit. The court thus found no error in the Tribunal's dismissal of the application. Consequently, the orders sought by the applicant were dismissed.

Orders