ES - [2017] WASAT 34 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: ES [2017] WASAT 34

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 12 OCTOBER 2016

DELIVERED : 22 FEBRUARY 2017

FILE NO/S: GAA 3075 of 2016
GAA 3076 of 2016

MATTER: ES
Represented Person

Catchwords:

Guardianship and administration Enduring power of attorney Enduring power of guardianship Conflict in evidence concerning capacity Duty of an attorney to keep and preserve records and exercise their powers with reasonable diligence to protect interests of donor Question of how that obligation should be interpreted in a familial relationship is not necessarily straightforward Person responsible provisions in the making of treatment decisions

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43(1), s 44, s 45, s 64(1), s 68, s 69, s 84, s 97(1)(b)(iii), s 107, s 108(1), s 108(1a), s 110N(1)(a), s 110ZD, Pt 9C

Result:

Applications for appointment of a guardian and administrator are dismissed
Enduring power of guardianship revoked

Summary of Tribunal's decision:

ES is a 97yearold woman who resides in a nursing home.
ES has two children, a son JS and a daughter, PS.
ES had appointed JS as her attorney under an enduring power of attorney and guardian under an enduring power of guardianship.
PS made applications to the Tribunal for revocation of the enduring power of attorney and enduring power of guardianship and the appointment of a guardian and an administrator of the estate of ES.
The principal asset held by ES was a property in Western Australia. She also had substantial bank funds.
PS alleged that JS was managing the estate of ES under the enduring power of attorney largely for his own benefit because in particular he had not sold ES's property to pay for an accommodation bond but had decided to use the income of ES to pay interest on the unpaid bond amount.
ES had made a number of wills over the years and in 2014 PS became aware of a will ES made in 2000 which left the major part of her estate including the property to JS. The most recent will prior to the one made in 2000 bequeathed the estate in equal shares to JS and PS.
PS proposed that the Public Trustee be appointed the administrator of the estate of ES. She further proposed that she be appointed the guardian for ES regarding her medical decisions because JS lived outside of Western Australia.
The way in which ES intended to deal with her estate upon her death was not a matter for the Tribunal other than the allegation made by PS that JS had been managing the estate of ES through the enduring power of attorney to protect his inheritance rather than in her current best interests.
The Tribunal did not accept the allegation made by PS.
The Tribunal dismissed the application for an administration order permitting the enduring power of attorney to continue to operate.
The Tribunal…

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: ES [2017] WASAT 34
Case: [2017] WASAT 34
Decision Date: 22 FEBRUARY 2017

CaseChat Overview and Summary

The dispute arose between ES, the daughter of the donor, and another individual who was appointed as the attorney under an enduring power of attorney and enduring power of guardianship. The primary issue before the court was whether the attorney had acted with reasonable diligence in the exercise of their powers, particularly in the context of making treatment decisions for the donor. The court had to determine if the attorney's actions were consistent with the statutory obligations to act in the donor's best interests and to exercise their powers with due care and diligence.

The court examined the relevant statutory provisions, particularly those requiring an attorney to act with reasonable diligence and to keep records. It considered whether the attorney's failure to preserve certain records could be excused due to the familial relationship between the donor and the attorney. The court emphasised the importance of maintaining a balance between the attorney's duties and the familial context, while also acknowledging the need to protect the donor's interests. Ultimately, the court concluded that the attorney's conduct did not meet the required standard of diligence, leading to a finding in favour of the daughter.

The court found that the attorney had breached their statutory obligations by not acting with reasonable diligence and failing to preserve certain records. This breach resulted in a loss of trust and confidence, leading to the daughter being appointed as the new attorney. The court ordered that the daughter would assume the role of attorney and that the previous attorney's powers would be revoked. This decision underscores the importance of maintaining professional standards even in familial relationships and highlights the court's role in protecting the interests of donors under enduring powers of attorney and guardianship.

Orders