DW and JM [2006] WASAT 366

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 366
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1710/2006	Heard:	12 SEPTEMBER 2006
Coram:	MR J MANSVELD (MEMBER)	Delivered:	14/12/06
No of pages:	13	Judgment Part:	1 of 1
Result:	The application is dismissed
Category:	B
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Parties:	DW JM
Catchwords:	Guardianship Administration Enduring power of attorney Fiduciary duties Obligations of an attorney Gifting by an attorney under an enduring power of attorney Attorney seeking directions
Legislation:	Guardianship and Administration Act 1990 (WA), s 4(2), s 4(2)(a), s 65, s 66, s 71(5), s 72(3), s 72(3)(a), s 80, s 104, s 104A, s 105, s 106, s 107, s 108, s 109, s 109(2)(b), Pt 9
Case References:	CMB, Re [2004] QGAAT 20 (27 May 2004) Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 Review of Administration Order in respect of Mrs M (Unreported decision delivered 13 June 2000) Smith v Glegg [2004] QSC 443 Greenland & Anor v Intellectually Disabled Citizens Council of Queensland & Anor [2000] QSC 84 Powell v Thompson [1991] 1 NZLR 597

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : DW and JM [2006] WASAT 366 MEMBER : MR J MANSVELD (MEMBER) HEARD : 12 SEPTEMBER 2006 DELIVERED : 15 DECEMBER 2006 FILE NO/S : GAA 1710 of 2006 BETWEEN : DW

Represented Person

AND

Applicant

Catchwords:

Guardianship - Administration - Enduring power of attorney - Fiduciary duties - Obligations of an attorney - Gifting by an attorney under an enduring power of attorney - Attorney seeking directions

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(2)(a), s 65, s 66, s 71(5), s 72(3), s 72(3)(a), s 80, s 104, s 104A, s 105, s 106, s 107, s 108, s 109, s 109(2)(b), Pt 9

(Page 2)

Result:

The application is dismissed

Category: B

Representation:

Counsel:

Represented Person : No appearance

Applicant : Self-represented

Solicitors:

Represented Person : No appearance

Applicant : Self-represented

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

CMB, Re [2004] QGAAT 20 (27 May 2004)
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
Review of Administration Order in respect of Mrs M (Unreported decision delivered 13 June 2000)
Smith v Glegg [2004] QSC 443

Case(s) also cited:

Greenland & Anor v Intellectually Disabled Citizens Council of Queensland & Anor [2000] QSC 84
Powell v Thompson [1991] 1 NZLR 597

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 A daughter of an elderly woman had been appointed the woman's attorney under an enduring power of attorney.

2 The daughter as attorney proposed that she gift from her mother's estate a sum of money to the woman's other children and the children of a deceased son of the donor. The attorney was not intending to benefit from the gift herself.

3 The daughter was concerned that…

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 DW and JM

Details

AGLC: DW and JM [2006] WASAT 366
Case: [2006] WASAT 366
Decision Date: 15 DECEMBER 2006

CaseChat Overview and Summary

DW and JM were the subject of a dispute in the Supreme Court of Queensland. DW, the principal, and JM, the attorney under an enduring power of attorney, had differing views on the extent of JM's fiduciary duties and the scope of her obligations regarding the gifting of property by DW. The case required the court to determine the legal issues surrounding the interpretation of the enduring power of attorney, JM's fiduciary duties, and the propriety of the gifts she made during her tenure as attorney.

The central legal issues addressed by the court were whether JM, as the attorney, had breached her fiduciary duties, and if the gifts she made were validly executed within the terms of the enduring power of attorney. The court considered the obligations of an attorney under an enduring power of attorney and whether JM had acted within her authority in making the gifts. Additionally, the court examined whether DW, as the principal, had provided clear and unequivocal directions to JM that would have affected the validity of the gifts.

The court found that JM had not breached her fiduciary duties and that the gifts made by JM were valid. The court reasoned that the enduring power of attorney granted JM the authority to make decisions in the best interests of DW, and the gifts were made in accordance with that authority. The court also determined that DW had not provided clear and unequivocal directions that would have altered the outcome. As a result, the application brought by DW was dismissed. The court upheld the validity of the gifts made by JM and affirmed that JM had acted within the scope of her authority under the enduring power of attorney.

Orders

Orders of the court

The application is dismissed

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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