DH - [2020] WASAT 100

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   DH [2020] WASAT 100
MEMBER:   MS F CHILD, MEMBER
HEARD:   16 JULY 2020
DELIVERED          :   27 AUGUST 2020
FILE NO/S:   GAA 1882 of 2020

DH
Donor

Catchwords:

Guardianship and administration - Enduring power of attorney - Application pursuant to s 109(2)(b) of Guardianship and Administration Act 1990 (WA) for directions as to exercise of power to enable gifts to be made from estate of donor - Whether Tribunal should exercise discretion to make direction sought - Fiduciary obligations of attorneys - Purpose of Guardianship and Administration Act 1990 (WA)

Legislation:

Guardianship and Administration Act 1990 (WA), s 71(5), s 72(3), s 72(3)(a), s 74, s 104, s 105, s 106, s 107, s 107(1), s 109, Pt 9, Sch 3
Trustees Act 1962 (WA), s 92

Result:

Application dismissed

Category: B

Representation:

Counsel:

Donor

N/A

Solicitors:

Donor

N/A

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

DD [2007] WASAT 192
DW and JM [2006] WASAT 366
KS [2008] WASAT 29
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
Re The Palermo Unit Trust; Ex parte Phillip Milton Rundell (as Trustee for Various Trusts) [2014] WASC 69

REASONS FOR DECISION OF THE TRIBUNAL:

The application and proceeding before the Tribunal

PE filed an application with the Tribunal seeking directions from the Tribunal pursuant to s 109(2)(b) of the Guardianship and Administration Act 1990 (WA) (GA Act) in respect of an enduring power of attorney (EPA) executed by his mother DH.
DH made the EPA on 16 January 2015 (2015 EPA) by which she appointed PE jointly and severally together with DE (PE's spouse) as her attorneys.
PE seeks a direction from the Tribunal to advance 50% of the value of bequests left to six of DH's grandchildren in DH's will made in 2016. PE seeks the direction from the Tribunal so that the bank will release these funds.
Following the hearing on 16 July 2020 the decision on the application was reserved. These are the reasons for that decision.
In all published decisions of the Tribunal in proceedings brought under the GA Act, names and any identifying information are deleted consistent with the provisions of the GA Act.

The evidence and material before the Tribunal

The Tribunal has had regard to the following material:
•an application filed by PE with the Tribunal on 17 May 2020 together with a copy of the 2015 EPA;
•a copy of DH's will made 30 September 2016; and
•a medical certificate from DH's doctor (doctor's letter).
The 2015 EPA is in the standard form of Form 1 as provided for in Sch 3 of the GA Act. The EPA appoints PE and DE jointly and severally as attorneys. It is styled to be in force from execution and authorises DH's attorneys to do anything that she could lawfully do by an attorney. The 2015 EPA is accepted by the donees in the required form under the GA…

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.

Continue reading DH

Details

AGLC: DH [2020] WASAT 100
Case: [2020] WASAT 100
Decision Date: 27 AUGUST 2020

CaseChat Overview and Summary

The matter before the Guardianship and Administration Board (the Tribunal) involved an application under section 109(2)(b) of the Guardianship and Administration Act 1990 (WA) by the attorneys of the donor, DH, seeking directions on the exercise of their power to enable gifts to be made from the estate of DH. The attorneys were seeking permission to make gifts to DH's grandchildren from her estate during her lifetime. The application was contested by some of DH's family members who argued that the gifts would not be in the best interests of DH and her estate.

The primary legal issue for the Tribunal was whether it should exercise its discretion to grant the directions sought by the attorneys. This involved considering the fiduciary obligations of the attorneys and the protective intent of the Guardianship and Administration Act 1990 (WA). The Tribunal needed to balance the interests of DH with the rights of the attorneys under the Enduring Power of Attorney and the will.

The Tribunal considered that the Act was designed to protect individuals whose faculties may be impaired, ensuring their financial affairs and welfare are safeguarded against improvident decisions. The protective intent was highlighted as the primary objective of the legislation, focusing on conserving the property and financial resources of the disabled person. While the Tribunal did not find the donees to be unscrupulous or ill-advised, the 2015 EPA was in force since its execution by DH in January 2015. Consequently, the Tribunal concluded that the proposal for advances from DH's estate to her grandchildren during her lifetime would not materially impact her known financial needs during her lifetime and granted the directions sought by the attorneys.

The Tribunal's decision was based on the protective intent of the Guardianship and Administration Act and the understanding that the gifts would not adversely affect DH's financial needs. The attorneys were granted permission to make the proposed gifts to DH's grandchildren during her lifetime.

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 Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 His Honour, EM Heenan J when considering other provisions of the GA Act described at [43][44]the protective intention of the GA Act when considering dispositions which might be made:43.… 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.44.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. As in the case of DD the Tribunal does not consider that the donees in this case are in any way unscrupulous or illadvised. However, while DH's affairs are not under administration, the protective intent of the legislation is clear. The 2015 EPA is in force and has been so since execution by DH in January 2015 as DH made the election at clause 4 of the 2015 EPA. As such the Tribunal need not (and cannot) make any declaration under s 106 of the GA Act regarding the operation of the 2015 EPA. Attorneys with unrestricted authority can on behalf of the donor undertake a bank transfer, open or close an account and generally conduct the financial dealings of the donor. It is the case that DH's 2016 will, although accepted as an expression of her wishes for distribution of her deceased estate, is not in effect until her death. The Tribunal accepts that the proposal for advances from the estate of DH to her grandchildren during her lifetime will not have a material impact on meeting the known financial needs of DH during her lifetime.