BJB and GB

[2008] WASAT 307

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
Donor

MG
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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 property and apparently followed that advice.  The applicant made no other specific allegations in relation to the performance of the donees.

6. That his sister, (one of the donees) was a beneficiary, with her other siblings, named in the will of their mother, did not of itself bring her into conflict with her role as donee.

7. Three of the other four children of the donor supported the role the donees had played.  The donor herself, during the hearing questioned why the applicant should have access to her records.

8. The Tribunal found that the applicant's interest in obtaining access to the records maintained by the donees arose from the legal dispute, which had now been settled, and not from concern about the performance of the donees in respect of the management of the donor's estate.  The Tribunal determined that the applicant did not have a proper interest in the matter and dismissed the application.

Reasons for decision of the Tribunal

1. These written reasons relate to a decision of the Tribunal made on 11 December 2008 to dismiss an application made pursuant to s 109 of the Guardianship and Administration Act 1990 (WA) (GA Act) for intervention in respect of an enduring power of attorney (EPA).

2. The GA Act provides for limitation on the publication of any indentifying information of participants in proceedings in the Tribunal commenced under that Act.  Consistent with this and the Tribunal's practice, these reasons are anonymised with identifying information removed.

Application before the Tribunal

1. The applicant is the son of GB (the donor) and filed an application with the Tribunal on 10 October 2008 seeking ex parte orders for intervention in an EPA executed by his mother on 19 January 1999 by which she appointed her daughter M, and son­in­law V her attorneys or donees.  In the application he states that he is concerned that the donees of the EPA may not be acting in his mother's best interests. 

2. The applicant seeks an order pursuant to s 109(1)(a) of the GA Act requiring the donees of the EPA to file with the Tribunal and serve on the applicant a copy of all the records and accounts kept by the donees of dealings and transactions made by them in connection with the power.

3. The Tribunal gave notice to the donees of the application and a hearing was convened on 3 December 2008.  The applicant and his solicitor attended by telephone conference.  The donees, M and V, and another son of the donor, C, attended the hearing in person.  The donor, another daughter, ML and the care facility manager of the nursing home in which the donor now lives also attended by telephone.

Background

1. The donor is an 81­year­old woman who has a diagnosis of dementia.  She moved into residential care in a nursing home in 2007.  Prior to that move she lived in her own home, (the property) which became the subject of a legal dispute with the applicant in 2007.  The donor was the registered proprietor of the property, which she owned jointly with her late husband prior to his death in 1998.

2. A document before the Tribunal is a copy of an EPA executed by the donor on 19 January 1999 in the standard form appointing the donees as her attorneys and declared to be in force from its execution.

3. Also before the Tribunal is a report from Dr L, a general practitioner who states he has known the donor for 12 years.  Dr L notes that the donor was diagnosed with a progressive form of dementia about five years ago.  He considers that she is not able to make reasonable judgments about her financial affairs.

4. In a report from the nursing home where the donor now lives, the care facility manager states that the donor suffers significant short­term memory loss and some confusion and disorientation, [but] 'interacts well with family visitors'.  The report notes that the donor is 'unable to manage her day­to­day budgeting, [is] unable to initiate and plan, and [that] it is in her best interests to have a person or persons conducting this on her behalf'.  The report states that 'daughter [M] and husband [V]', who are the donees of the EPA, are 'regular visitors' and that the donor 'appears to have a close relationship with M [her daughter] and grandchildren'. 

5. The Tribunal understands that the donor has five children, two daughters and three sons.  The applicant in this matter is one of her sons.

The Applicant’s case

1. The applicant says he lodged a caveat on the property of the donor in August 2007 to protect his equitable interest in that property as he was aware that the donees intended to sell the property on behalf of the donor.

2. The applicant says that the donees knew of his interest in the property, which arose from $15,000 of materials and additional costs of labour, which he contributed to the renovation of the property when their father was still alive in 1992 or 1993.  The applicant says that his interest arose by way of an agreement reached in a private discussion with his late father regarding the building work which the donees (nor any other person) had been part.  The agreement was that he be compensated when the property was sold.  The applicant says that he and his brother's contributions to the property and the agreement between him and his father was a known fact within the family.

3. The applicant lodged the caveat on the property when he became aware that the donees intended to sell the property.  The applicant states that the donees applied to the Registrar of Titles to issue a 21 day notice with respect to the caveat and that it was apparent from this application that the donees denied that an agreement had existed between the applicant and his father.

4. The applicant filed an originating summons in the Supreme Court and an order extending the caveat was made on 29 October 2007 until further hearing on 21 November 2007 (CIV 2085 of 2007).  The matter was settled in March 2008.  The terms of the settlement included the payment of $60,000 to the applicant and that parties bear their own costs.

5. The applicant says that by the denial of his claim, that both the applicant and the donor incurred significant legal costs.

6. The applicant says that if his claim had been defeated, the donees stood to benefit as they are beneficiaries, along with the other siblings, named in their mother's will.  The applicant says that there would have been a greater amount available for distribution than would have been the case if his claim was upheld, and accordingly he believes the donees were in a position of conflict of interest as they stood to gain financially if his claim was defeated.

7. Because of the conflict that is said to exist with the donees, the applicant contends that the best interests of his mother were not adequately considered by the donees. 

8. The applicant seeks to inspect all the records kept by the donees to ensure that his mother's best interests are being served.

9. The applicant states that he has not had any communication with the donees and has not made any requests for information in relation to the management of the affairs of his mother the donor.  He says that in the past he has had concerns about the management of her estate but had not taken any action in relation to those concerns. 

10. The documents in which the applicant is said to be particularly interested are those that relate to the legal costs incurred by the donees on behalf of the donor following his lodgement of the caveat.

The donees' position

1. M, the daughter of the donor and one of the donees (donee) states that in 1999 the donor executed the EPA appointing her and her husband as donees but that they had not acted on the power immediately.  They commenced acting on the EPA only when the donor appeared not to understand matters in relation to her estate, and, more particularly, in respect of the claim on her property.  The donor's doctor wrote a letter in 2007 stating that the donees should act on the power.

2. The donee says that her mother entered an aged care facility in 2007 and since a bond was required for the accommodation her house had to be sold to fund the bond. 

3. The donee says that at a family meeting with their mother's doctor in April 2007, to discuss their mother's care, the applicant had said that an EPA for their mother should be arranged but that the donor's doctor advised him that one had already been completed.  The donee says the applicant also said that he and his brother P, owned 60% of their parents' house but the donee and another brother challenged this.  The applicant also told them that a caveat had been lodged on the property but when a search was done of the title this was found not to be the case.  Later they consulted with real estate agents to put the property on the market, and in June 2007 another search of the title was conducted but again no caveat on the title was disclosed.

4. The donee says they received an offer on the property but were advised of a caveat in September 2007, which prevented settlement.

5. The donees' position in relation to the applicant's claim of an interest in their mother's property is that there were no documents to support the claim provided by the applicant and they considered that in getting legal advice they were acting in the interests of the donor in their capacity as her donees to ensure that she was not taken advantage of financially.  Their understanding of the arrangements in respect of the property was that another brother P, was to get some recognition of his financial contribution and that the applicant would get an option to purchase the property in their mother's will.  The donee states that in May 2005 the applicant had offered to buy the property from their mother for $230,000 and his interest in the property had not been asserted at that time.  Their mother had wanted $250,000 and sale did not go ahead at that time.

6. When they were notified of the caveat in September 2007, the donee says she consulted the Aged Care Assessment Team (ACAT) and the Office of the Public Advocate regarding the caveat and representatives of both organisations advised her that the donees should seek legal advice.  The donee also consulted Landgate who confirmed that, in respect of a claim of an equitable interest or a sale of property within a family, it was in the best interests of their mother that legal advice be obtained.  The donee says that they obtained legal advice about the interests of the donor and followed the advice given.

7. She says they agreed to reach a settlement with the applicant to bring the legal action to a conclusion.

The legislative framework

1. The provisions in respect to EPAs are set out in Pt 9 of the GA Act.

2. The obligations of donees are set out in s 107;

   (1)The donee of an enduring power of attorney ­

   (a)shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure;

   (b)shall keep and preserve accurate records and accounts of all dealings and transactions made under the power;

   (c)subject to section 109(2), may not renounce a power during any period of legal incapacity of the donor; and

   (d)shall, if the donee becomes bankrupt, report that bankruptcy to the State Administrative Tribunal.

   Penalty applicable to paragraph (b): $2 000.

   (2)In relation to an enduring power of attorney recognized by the State Administrative Tribunal under section 104A(2), subsection (1)(a) and (b) only apply to the donor’s estate within Western Australia and subsection (1)(c) does not apply.

3. This application is brought under s 109(1)(a) of the GA Act, which provides:

   (1)A person who has, in the opinion of the State Administrative Tribunal, a proper interest in the matter may apply to the Tribunal for an order ­ 

   (a)requiring the donee of an enduring power of attorney to file with the Tribunal and serve on the applicant a copy of all records and accounts kept by the donee of dealings and transactions made by him in connection with the power;

   …

4. Section 110 provides:

   An application for an order referred to in section 109 may be made ex parte, or the State Administrative Tribunal may give directions as to the persons to whom notice of the application shall be given and who shall be entitled to be heard.

Issue for determination

1. The question is whether this is the appropriate case for the exercise of discretion under s 109(1)(a) of the GA Act to require the donees to file with the Tribunal and serve on the applicant copies of records and accounts of dealings and transactions made in connection with the EPA executed by the donor.

Reasons

Ex parte application

1. The applicant sought ex parte orders. No submissions were made as to why this approach was necessary or appropriate. Although there is provision for orders to be made ex parte and an order may be made by the Tribunal under s 109 of the GA Act on notification of a donee's bankruptcy, the intent is clearly to provide immediate protection for the donor's estate where this is necessary through orders such as the revocation or variation of an EPA. Nothing in this application suggests that the donor's estate was at immediate risk and so the Tribunal gave notice to the parties and conducted a hearing the normal way.

Does the applicant have a proper interest in the matter?

1. In contrast to s 40 of the GA Act under which application for the appointment of guardians and administrators are made, where any person may apply to the Tribunal, s 109 of the GA Act requires that the Tribunal be satisfied that the applicant has a proper interest in the matter, the matter being the transactions and dealings made by the donees in connection with the EPA.

2. The requirement that the Tribunal be satisfied of the proper interest of the applicant follows from the type of order, which may be made if the Tribunal exercises its discretion in s 109(1)(a) of the GA Act. The order under that section provides that the donee will file with the Tribunal and serve on the applicant a copy of records and accounts kept by the donee.

3. The documents in question are the private records of the donor maintained by donees entrusted with that duty by the donor and by operation of the GA Act. Any order made under s 109(1)(a) of the GA Act is intrusive on the donor's privacy but the intrusion has the protective intent providing, in the appropriate circumstances, for transparency and accountability of donees in respect of their performance on behalf of the donor.

4. In this case, the applicant seeks documents relating to accounts and transactions undertaken by the donees on behalf of the donor, for the period the power was in force and more particularly during a period in which he says that the donees had a conflict with the interests of the donor.  He says the conflict arose from the defence to his claim on the donor's property in their own interests rather than in hers.  The period of the alleged conflict runs from September 2007 (when the donees had notice of the caveat) to the settlement of the claim in March 2008.  The applicant seeks documents in relation to legal costs incurred on the donor's behalf in respect of the legal advice and action in the matter.

5. The applicant's solicitor concedes that donees of an EPA are entitled to seek legal advice on behalf of the donor.  On the facts of this case, as submitted by both the applicant and the donees, it was reasonable that they did so.  From the perspective of the donees, they say they were faced with a claim of 60% of the property which was registered in the sole name of the donor.

6. The donees say, and it is not disputed by the applicant, that there is no written evidence of the agreement he says he reached privately with his father, prior to his father's death in 1998.  The donor, who it is understood jointly owned the property with her late husband at the relevant time, was not a party (or a witness) to the agreement which is said to have been reached between the applicant and his father.  It is argued by the applicant that the agreement was known in the family but this is disputed by other members of the family.  Whatever the position, the matter is now settled by the payment of a substantial sum by the donor, but less than the applicant's claim.  Both sides incurred legal costs in the dispute.

7. In terms of the applicant's present claim of a conflict of interest between the donees and the donor's interests, which arose according to the applicant out of the now settled legal proceedings, this is not accepted by the Tribunal.  As set out above, on acceptance of their role the donees accepted the obligation to act with reasonable diligence to protect the interests of the donor.

8. Had the donees simply acquiesced to the applicant's claim without seeking legal advice and acting on that advice, they may well have been found not to have acted with reasonable diligence to protect the donor's interests and might have been liable to her for any loss occasioned by their failure to act appropriately in the circumstances.

1. The applicant's contention is that the donees acted in their own interests rather than in the interests of the donor in defending his claim.  Although it is accepted that the donee, as a child of the donor, may eventually benefit with her other siblings on the distribution of her mother's deceased estate, this does not of itself bring her into conflict with her role as donee.

2. It is not said that the donees have failed to maintain the donor appropriately in an effort to preserve the estate or have made payments to themselves.  The conflict is only said to arise in respect of the donees' response to the applicant's claim of an interest in his mother's property.

3. The applicant's argument that he needs the accounts to reassure himself that the best interests of his mother are being attended to by the donees is not persuasive.  He has been aware that they held her EPA as donees at least since the family meeting in April 2007 and yet he has not asked them for information in relation to any matters that arise from the exercise of the power.  It is conceded that there is conflict and no communication between them.  However, if there was a real concern about the performance of the donees in respect of the estate, it is likely that he would have addressed his concerns in some way.

4. Three of the other children of the donor support the role of the donees.  C, another son of the donor, submits a statutory declaration and in his oral evidence supports the role of the donees, stating they have always acted in the best interests of his mother, that he has known about the EPA for a long period and that he and another brother and their sister are consulted by the donees in respect of their mother.  The brother L, also provides a statutory declaration in the same terms and notes '[the donees] have acted with the utmost integrity with the running of my mother [G's ] interests to the foremost'.  The sister ML states 'they have done an excellent job caring for my mother both on a personal and financial level'.  She confirms her statement in the hearing.  The donor herself, when asked in the hearing whether the applicant son should have a copy of her records and accounts, questions why it was any of the applicant's business.  The son P, did not provide a submission to the Tribunal or attend the hearing.

5. The applicant seeks the donor's accounts from the execution of the EPA in 1999 although it is conceded that the donees did not operate on it until much later.  This point was not pressed as the focus of the enquiry is the legal costs of the donor which arose from the defence of the applicant's claim incurred after September 2007.

6. The applicant already has a view about the actions taken by the donees in response to his claim.  It is not clear how information about the donor's legal costs would assist him to be reassured that the best interests of his mother are being served.

7. It is clear that the donee has in her possession documents that relate to legal advice obtained by the donees on behalf of the donor and negotiations with the applicant in relation to his claim and has submitted a number of those documents to the Tribunal.  This issue is dealt with below.  Legal professional privilege would attach to some, if not all, of the correspondence between the solicitor acting for the donor, and the donees.  Even if this is not the case, the applicant has only recently settled a claim against the donor by the payment by her through her donees of a substantial amount of money to him.  A term of the settlement reached by the parties is that each bears their own costs.  It is not an appropriate use of the Tribunal's processes for the applicant now to seek to take this issue further.  Put simply, the interests of the applicant in the now settled litigation were opposed to that of the donor, and it is not appropriate that he now access her personal records which relate to that litigation through a procedure, the focus of which is the scrutiny of the performance of donees in the interests of the donor.

8. No other issues are raised in respect of the performance of the donees, and other family members, and the care facility manager acknowledge the involvement of the donees in supporting the donor.  Although the donor’s capacity to manage her own affairs is, according to the medical evidence, impaired, when she was asked the question in the hearing whether her applicant son should see her accounts she appeared to understand the question and did not support her documents being given to him.

9. Although the applicant, as a son of the donor, may in general have an interest in the financial management of his mother's estate, the Tribunal is not satisfied he has a proper interest in the matter and in the particular documents sought, being documents which may have been created in relation to the legal costs incurred by the estate in defence of a claim by him on the estate of the donor.  For that reason, the Tribunal concludes that the applicant does not have a proper interest in the matter and that the application should be dismissed.

10. The donees, in response to a letter from the registry of the Tribunal, filed a number of documents with the Tribunal, which included documents which the Tribunal would have ordered be filed had the order as sought been made.  These were submitted by the donees because they understood from the letter sent to them that the Tribunal required it.  In fact, the Tribunal did not require it and gave leave to the donees to recover their documents from the Tribunal.  The applicant did not oppose this order.

Orders

1.Application dismissed.

2.The donees have leave to uplift documents filed in response to the request of the Tribunal, dated 15 October 2008.

I certify that this and the preceding [59] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS F CHILD, MEMBER