ET - [2021] WASAT 36 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   ET [2021] WASAT 36
MEMBER:   MR J MANSVELD, SENIOR MEMBER
HEARD:   8 AND 9 OCTOBER 2020
DELIVERED          :   15 MARCH 2021
FILE NO/S:   GAA 3589 of 2020

ET
Represented Person

Catchwords:

Guardianship and administration - Application for appointment of administrator - Enduring power of attorney - Application for revocation of enduring power of attorney - Application to require attorneys to file records and accounts - Allegation that attorneys have not acted in donor's best interests - Allegation that one of attorneys intermingled his roles as attorney and donor's solicitor - Costs agreement - Enduring power of guardianship - Enduring guardian to decide where appointor is to live and level of care she is to receive - No challenge to role of enduring guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 107, s 107(1), s 109(1)(a), Pt 6, Pt 9

Result:

Application for appointment of administrator dismissed
Application under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) to be referred to a directions hearing

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

Charlton v Baber [2003] NSWSC 745
KS [2008] WASAT 29
Public Trustee v Blackwood (1998) 8 Tas R 256

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

ET is 92 years of age. At the time of the Tribunal proceedings she remained living on her farm with full-time care and with the assistance of her long-time farm worker, DG.
ET has extensive farming interests, rental properties, and blocks of land and bank funds.
ET is a widow. She has three daughters, DS, MH and LH. MH and her spouse, RH operate one of the farms under an arrangement detailed in the body of these reasons.
On 17 December 2015 ET executed an enduring power of attorney appointing MH and LH jointly and severally with DS as the substitute attorney (apparently a then existing enduring power of attorney appointing MH solely was revoked) (2015 EPA).
On 20 April 2016 ET executed an enduring power of guardianship appointing DS and LH (2016 EPG).
On 2 July 2018 MH and DS made applications for the appointment of a guardian for ET and the appointment of an administrator of her estate (2018 applications).
It was proposed that MH and DS be appointed joint administrators and LH and DS as joint guardians.
The 2018 applications were made pursuant to the Guardianship and Administration Act 1990 (WA) (GA Act).
On 24 July 2018 MH and DS sought the leave of the Tribunal to withdraw the 2018 applications which was granted on 24 August 2018.
On 16 July 2018 ET revoked the 2015 EPA and the 2016 EPG.
On the same day she made another EPA and EPG.
She appointed her solicitor CR and the spouse of her niece, MW as joint and several attorneys (2018 EPA). The attorneys were directed to account to ET's daughters for their…

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: ET [2021] WASAT 36
Case: [2021] WASAT 36
Decision Date

CaseChat Overview and Summary

This case involved an application by one of ET's daughters, MH, for the appointment of an administrator of ET's estate and the revocation of an enduring power of attorney (EPA) made in favour of ET's solicitor and another family member. The application was brought under the Guardianship and Administration Act 1990 (WA) (GA Act). ET's daughter, DS, and another family member, LH, had been appointed as enduring guardians under a separate enduring power of guardianship. ET's capacity to make decisions concerning her personal and financial affairs had been called into question over a number of years. MH had previously made an application for the appointment of a guardian and administrator of ET's estate which was subsequently withdrawn. ET had since revoked the EPA and EPG in question and appointed a new EPA and EPG. ET had also entered into a costs agreement with her solicitor, who was appointed as one of the attorneys under the new EPA. ET was living on her farm with full-time care. The Tribunal dismissed MH's application for the appointment of an administrator of ET's estate. The Tribunal found that the best interests of ET would be served by retaining the 2018 EPA and that ET would wish for that to occur. The application under s 109(1)(a) of the GA Act remained on foot and the Tribunal ordered that a directions hearing be called.

Orders