CS and JS

[2005] WASAT 285

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION:   CS and JS [2005] WASAT 285

MEMBER:   MS R CARROLL (SENIOR SESSIONAL MEMBER)

HEARD:   28 JULY 2005

DELIVERED          :   27 OCTOBER 2005

FILE NO/S:   GAA 1010 of 2005

BETWEEN:   CS

Represented Person

AND

JS
Applicant

Catchwords:

Recognition of Enduring Power of Attorney ­ South Australia

Legislation:

Guardianship and Administration Act 1990 (WA), s 104, s 104A, s 104(1)(a), s 104(1)(b), s 104(2)

Powers of Attorney and Agency Act 1984 (SA), s 6

State Administrative Tribunal Act 2004 (WA), s 76

Result:

Enduring Power of Attorney recognised

Category:    B

Representation:

Counsel:

Represented Person       :     N/A

Applicant:     N/A

Solicitors:

Represented Person       :     N/A

Applicant:     N/A

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of the Tribunal's decision

1. This was an application for recognition of a power of attorney created in another jurisdiction pursuant to s 104A of the Guardianship and Administration Act 1990 (WA). Applications were also made for the appointment of an administration and a guardian. The Tribunal ordered the recognition of the power of attorney executed by the donor in South Australia. The applications for administration and guardianship were dismissed.

Background

1. The applicant, JS, is the sister of Mr CS, the donor of a power of attorney executed by CS on 7 April 2005 pursuant to s 6 of the Powers of Attorney and Agency Act 1984 (SA). JS lives in New South Wales. The hearing was conducted by telephone conference with JS in Young, New South Wales and CS and his carer, JK, in Adelaide, South Australia. At the conclusion of the hearing, the Tribunal reserved the decision. The orders were made the same day and the parties notified of the Tribunal's orders. As required by s 76 of the State Administrative Tribunal Act 2004 (WA), where a decision is reserved, reasons for the decision must be published. These are those published reasons.

2. The applicant seeks recognition of the power of attorney pursuant to s 104A of the Guardianship and Administration Act 1990 (WA) (GA Act), or, alternatively, to be appointed as plenary administrator in Western Australia for CS. JS informed the Tribunal that sale of a property in Western Australia owned by CS is imminent and will make available funds for his care. The Tribunal heard from the parties that plans are being made for CS to relocate to New South Wales. JS is the guardian of CS with powers that include determining where CS shall live.

3. The application for recognition of the South Australian power of attorney was made on 17 June 2005.  The applications for administration and guardianship orders were made on 14 July 2005.  The Tribunal approved the shortened period of service of the notice of the hearing of the administration and guardianship applications on 17 July 2005.

4. The Tribunal received medical evidence as to the issue of CS's capacity to make financial and lifestyle decisions.  A finding on the issue of capacity, and consequently the jurisdiction of the Tribunal to make orders appointing an administrator, will only need to be relied upon if the Tribunal finds that it is unable to make an order recognising the South Australian power of attorney.

The capacity issue

1. The Tribunal relies upon the following medical evidence:

   1.A letter dated 7 April 2005 from Dr P addressed "to whom it may concern" stating that the nature of CS's injury, a stroke, "precludes him from having sufficient insight and foresight when making financial and personal decisions.  He would be at significant risk of having his personal trust abused, and be financially affected as a result".

   2.An ACAT report prepared by the North Adelaide ACAT team dated 13 May 2005 which approves CS for low level residential care.

   3.A medical officer's report prepared by Dr TK dated 27 May 2005 in which he states as a result of "multifactorial dementia" CS "lacks insight, competency" and has "poor judgment and impulsive behaviour".

2. On the basis of this evidence, the Tribunal finds that CS is a person for whom an administration order and a guardianship order could be made.

Recognition of the South Australian power of attorney

1. Section 104A of the GA Act states that the Tribunal may make an order recognising a power of attorney created under the laws of another State where it is satisfied that the power of attorney corresponds sufficiently, in form and effect, to a power of attorney created under s 104 of the GA Act, and it is appropriate to do so.

2. An Enduring Power of Attorney (EPA) will be effective under s 104 of the GA Act if it is created by an instrument that is in the form or substantially in the form of Form 1 in Sch 3 of the GA Act (s 104(1)(a)), and complies with requirements set out in s 104(1)(b) and s 104(2).

3. The requirements for a valid EPA under the Powers of Attorney and Agency Act 1984 are set out in s 6 of that Act.

4. Both Acts require that the instrument be signed as a deed and witnessed.  The South Australian Act requires the instrument be executed as a deed but allows for execution in that form with one witness only.  The Western Australian Act requires the presence of two witnesses for execution of an instrument as a deed.

5. The Tribunal is satisfied that the power of attorney executed by CS in favour of JS on 7 April 2005 complies with the requirements of the Powers of Attorney and Agency Act 1984. The Tribunal finds that the power of attorney executed by CS in favour of JS on 7 April 2005 corresponds sufficiently, in form and effect, to a power of attorney created under s 104 of the Act and that it is appropriate to recognise that power of attorney. Whilst the number of witnesses required to execute the instrument as a deed differs under the two Acts, the EPA created by CS is validly executed as a deed in South Australia and can therefore be recognised as a validly created instrument in Western Australia.

The administration application

1. As the Tribunal has determined to order that the EPA created by CS in favour of JS in South Australia as a valid EPA in Western Australia, a less restrictive alternative to an administration order exists.  Therefore there is no need for an administration order.

The guardianship application

1. During the hearing, the Tribunal heard evidence from JS and CS that CS is not residing in Western Australia and has no plans to reside in this jurisdiction in the future.  For this reason, the Tribunal finds that there is no need for the appointment of a guardian under the GA Act.

Orders

1. It is ordered that:

   1.The Enduring Power of Attorney created by Colin David Sullivan of 37 Harrow Road, St Peters, South Australia pursuant to s 6 of the Powers of Attorney and Agency Act 1984 (SA) appointing Jennifer Dorn Starling of Post Office Box 873, New South Wales to be his attorney be recognised as an Enduring Power of Attorney pursuant to s 104A of the Guardianship and Administration Act 1990 (WA).

I certify that this and the preceding [15] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS R CARROLL, SENIOR SESSIONAL MEMBER