JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: BJB and GB [2008] WASAT 307
MEMBER: MS F CHILD (MEMBER)
HEARD: 3 DECEMBER 2008
DELIVERED : 23 DECEMBER 2008
FILE NO/S: GAA 2359 of 2008
BETWEEN: BJB
Applicant
AND
GB
DonorMG
VG
Donees
Catchwords:
Guardianship and administration - Application to intervene in an enduring power of attorney - Donor with diagnosis of dementia - Applicant son recently settled with the donees his claim against the donor's estate now seeking access to documents including those related to the legal costs of the donor incurred in respect of the applicant's claim - Applicant found not to have a proper interest - Application dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 40, s 107, s 109, s 109(1)(a), Pt 9
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Mr G Maddy
Donor: Self-represented
Donees: Self-represented
Solicitors:
Applicant: Great Southern Legal Pty Ltd
Donor: Self-represented
Donees: Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
One of the sons of an elderly woman with a diagnosis of dementia applied to the Tribunal for orders intervening in an enduring power of attorney his mother had executed in 1999 by which she appointed one of her daughters, the sister of the applicant, and soninlaw her attorneys or donees.
The application was brought to the Tribunal following the settlement of a legal dispute in which the applicant had claimed an interest in the property of his mother. The donees had sought legal advice on the woman's behalf following a caveat being placed on her property by the applicant which prevented its sale. The applicant said that in opposing his claim on his mother's property, the donees had acted in their own interests rather than the interests of his mother the donor. He sought records of transactions kept by the donees, in particular details of the legal costs associated with the legal advice obtained in respect of the disputed claim about his mother's property, in an effort, he said, to reassure himself that his mother's interests were protected.
The Tribunal decided that although the legal dispute was now settled it was not appropriate that the applicant have access to the personal financial records of the donor, particularly those records associated with legal advice (or the costs of that advice) obtained on her behalf by her donees in relation to the dispute with the applicant.
The donees had on their appointment accepted statutory obligations to act with 'reasonable diligence to protect the interests of the donor'. On the facts of the case, as put to the Tribunal by both the applicant and the donees, the discharge of that duty must have included, at a minimum, obtaining legal advice on her behalf.
Nothing in the evidence put by the applicant supported his contention that the donees were in a conflict position when they sought legal advice regarding his claim on his mother's…
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- AGLC
- BJB and GB [2008] WASAT 307
- Case
- [2008] WASAT 307
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the applicant had a proper interest in the proceedings and, if so, whether he was entitled to intervene as a party. The court was required to determine if the applicant's interest in the documents related to the donor's legal costs was sufficient to warrant intervention in the administration of the estate.
The court found that the applicant did not have a proper interest in the proceedings as his claim against the donor's estate had been settled. The court held that the applicant's interest in the documents was not sufficient to constitute a proper interest in the administration of the estate. Consequently, the court dismissed the application for the applicant to intervene and access the documents.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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