DD - [2007] WASAT 192

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: DD [2007] WASAT 192

MEMBER: MS F CHILD (MEMBER)

HEARD: 18 MAY 20007

DELIVERED : 24 JULY 2007

FILE NO/S: GAA 677 of 2005

BETWEEN: DD
Represented Person

Catchwords:

Guardianship and administration - Enduring power of attorney - Application by attorneys seeking authority to make gifts from the estate of the donor

Legislation:

Guardianship and Administration Act 1990 (WA), s 47, s 71(5), s 72(3), s 72(3)(a), s 74, s 104, s 105, s 107, s 109, s 109(2)(b)

State Administrative Tribunal Act 2004 (WA), s 76

Result:

Application dismissed

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

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

Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The daughters of an elderly woman suffering from dementia applied as the donees of her enduring power of attorney to the State Administrative Tribunal for authority to make a gift from the estate of their mother to themselves and their brother.
The daughters had been appointed donees under an enduring power of attorney executed in 2001 when the woman was capable of doing so. The daughters were concerned about the proposal to make the gift and sought direction from the Tribunal.
The woman was the resident of a nursing home. She had a substantial estate with a value of over $2 million. Her dementia meant that she could not now indicate her wishes or give directions in relation to her estate. She was reliant on her donees to manage her estate on her behalf.
As the donees of her enduring power of attorney, her daughters had fiduciary obligations to their mother arising from their acceptance of the role as donees.
In light of the protective nature of the Guardianship and Administration Act 1990 (WA) under which the enduring power of attorney had been created and the obligations owed by the donees, the Tribunal determined that it was not appropriate for the Tribunal to authorise a gift from the estate under the application made for directions. This was a matter for the donees to determine for themselves, having regard to the obligations they owed to the donor.
The application was dismissed.

Reasons for decision

These reasons relate to an application by the daughters of DD for authority to make gifts from their mother's estate to themselves and to their brother. The hearing of the application was in May 2007, and attended by the donees and their brother who spoke in support of the application. The decision was reserved. Written reasons for the decision are now published pursuant to s 76 of the State Administrative Tribunal Act2004.
The applicant daughters (the donees) are attorneys for DD (the donor) pursuant to an enduring power of attorney executed on 26 April 2001 by which the donor appointed them as joint attorneys and in substitution…

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: DD [2007] WASAT 192
Case: [2007] WASAT 192
Decision Date: 24 JULY 2007

CaseChat Overview and Summary

The case before the Tribunal involves applicants seeking authority to make gifts from the estate of the donor, who holds an enduring power of attorney. The applicants, acting as attorneys under the enduring power of attorney, brought this application for directions after receiving professional advice that making such gifts would reduce the donor's taxation liability. The applicants also expressed concerns about the appropriateness of the gifts. The primary legal issue was whether the Tribunal should grant the applicants authority to make the gifts from the donor's estate.

The Tribunal considered the protective intent of the Guardianship and Administration Act, which applies to all its provisions, even where the donor's affairs are not under administration. The applicants, who are the donor's children, are not considered unscrupulous or ill-advised, and the Tribunal observed their devotion to their mother. The Tribunal found that, given the protective intent of the legislation, the fiduciary obligations owed to the donor by the applicants, and the need to conserve the donor's property and financial resources, it was not appropriate for the Tribunal to direct the applicants to make the gifts.

The Tribunal concluded that the applicants should not be directed to make the gifts from the donor's estate, given the protective intent of the Guardianship and Administration Act and the fiduciary obligations owed to the donor. This decision reflects the need to ensure that the donor's financial security and interests are not jeopardised by improvident or ill-considered personal decisions or actions. The Tribunal's decision aligns with the primary objectives of the legislation, which is to conserve the property and financial resources of the person in need of assistance and protection, ensuring they are available for their own needs, welfare, and enjoyment.

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

In considering whether the Tribunal should make the order, the Tribunal also considered the overall intent of the GA Act. The comments made by His Honour, EM Heenan J, in Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268 when considering other provisions of the GA Act explain this intention:" ... From this, and an examination of the entire Act, it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill‑considered personal decisions or action, or by unscrupulous or ill‑advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.These ends can be achieved, when it comes to dealings with the property and financial affairs of the person in need of assistance, by ensuring that any financial, property or commercial transactions which would, or might, jeopardise the financial security or interests of the disabled person, are only effective when performed by a properly appointed administrator and with the Board's consent. The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes. In the main, these will be accomplished by conserving the resources and property of the person under administration for use to his or her own advantage or, in cases where expenditure or imminent disposition of property are necessary or advantageous, by scrutinising the transaction to see that it is justifiable or provident having regard to all the circumstances, bearing always in mind the continuing and future needs of the person whose estate is under administration." Although the donor's affairs are not under administration, the protective intent of the legislation is said to apply to all its provisions. In considering the issues raised, the Tribunal does not consider that the donees are in any way unscrupulous or ill advised. All her children appear to the Tribunal to be devoted to their mother and the donees bring this application for directions following professional advice that this will reduce the donor's taxation liability and because they have concerns about the appropriateness of making the gifts. In light of the protective intent of the GA Act, the legislation under which the enduring power of attorney was executed, and the fiduciary obligations owed to her by the donees as a consequence of taking on that role it is not appropriate for the Tribunal to direct the donees to make a gift from the donor's estate.