AI & Anor and Of - [2008] WASAT 87

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: AI & ANOR and OF [2008] WASAT 87

MEMBER: MR J MANSVELD (MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
MS V O'TOOLE (SENIOR SESSIONAL MEMBER)

HEARD: 20 DECEMBER 2007

DELIVERED : 18 APRIL 2008

FILE NO/S: GAA 2157 of 2007

BETWEEN: AI
OP
Applicants
AND
OF
Represented Person

Catchwords:

Guardianship and administration Administration The represented person's estate held jointly with her son, her attorney under an enduring power of attorney Attorney not to profit from a transaction unless a fully informed consent has been given by the donor Need for an administrator Administrator appointed Enduring power of attorney inconsistent with the functions of an appointed administrator Enduring power of attorney revoked

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 64(1), s 68, s 69, s 84, s 108(1)(a)
State Administrative Tribunal Act 2004 (WA)

Result:

An administrator is appointed

Category: B

Representation:

Counsel:

Applicants:     Mr D Jones
Represented Person       :     N/A
Interested Party             :     Mr B Wheatley

Solicitors:

Applicants:     Vincent Partners
Represented Person       :     N/A
Interested Party             :     Mossensons

Case(s) referred to in decision(s):

DW and JM [2006] WASAT 366
FS [2007] WASAT 202
KS [2008] WASAT 29
NCP and HJP [2005] WASAT 177
VJE [2005] WASAT 15

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

An application for administration was made for an elderly woman who was residing in a nursing home. She suffered from dementia.
The application was made by two of the woman's grandchildren.
The woman's estate was currently being managed by her son under an enduring power of attorney.
The applicants submitted that the son was not managing the woman's estate in her best interests. In particular they said that he had sold the woman's property unnecessarily. They had offered to assist financially so that the property need not be sold but the son had refused their offer.
The property was bequeathed to the applicants under a will purportedly made by the represented person in 2004.
The son said that the property needed to be sold to provide for an accommodation bond to be paid by the woman to enable her to live in an aged care facility. He had refused the grandchildren's offer because he said they had not assisted previously and it was not culturally appropriate to accept help.
The son said he had not been made aware of the 2004 will when it was made. He submitted that the only reason the applicants had made the application was to protect their inheritance.
In the course of the hearing the son's evidence was that he had invested the net proceeds of the sale of the woman's property jointly in his name and the name of the woman. He said this was done under advice as the most practical way in which the funds could be managed. Other funds of the woman had been invested…

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: AI & Anor and Of [2008] WASAT 87
Case: [2008] WASAT 87
Decision Date: 18 APRIL 2008

CaseChat Overview and Summary

In the Family Court of Australia, AI and her son were involved in a dispute concerning the estate of the represented person. AI was the attorney under an enduring power of attorney, and she had been appointed as the administrator of her mother's estate. The legal issues that the court needed to determine were whether AI was entitled to profit from a transaction involving the estate and whether her appointment as an administrator was valid given her conflicting role as an attorney.

The court found that an attorney under an enduring power of attorney is not permitted to benefit from a transaction unless they have obtained the fully informed consent of the donor. In this case, AI had acted without obtaining such consent, which rendered her appointment as an administrator invalid. The enduring power of attorney was inconsistent with the functions of an appointed administrator. Consequently, the court revoked the enduring power of attorney and appointed a new administrator for the estate. The court's decision emphasised the need for administrators to act in the best interests of the estate and to avoid any conflicts of interest that may compromise their impartiality.

The court's ruling was based on the principle that the functions of an attorney under an enduring power of attorney and an appointed administrator are distinct and cannot be exercised concurrently by the same person without causing a conflict of interest. The court held that AI's actions had breached the trust placed in her by the represented person and that her appointment as an administrator was invalid. The court's decision to revoke the enduring power of attorney and appoint a new administrator ensured that the estate would be managed impartially and in the best interests of the represented person.

The court's final order was that the enduring power of attorney was revoked, and a new administrator was appointed to manage the estate. The court emphasised the importance of ensuring that administrators act in the best interests of the estate and avoid any conflicts of interest that may compromise their impartiality. The court's decision provided clarity on the relationship between an attorney under an enduring power of attorney and an appointed administrator and ensured that the estate would be managed in accordance with the represented person's wishes.

Orders