HM - [2017] WASAT 92 | CaseChat AU

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: HM [2017] WASAT 92

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 27 FEBRUARY 2017

DELIVERED : 28 JUNE 2017

FILE NO/S: GAA 2469 of 2016

MATTER: HM
Represented Person

Catchwords:

Enduring power of attorney Principal (donor) Attorney (donee) Payment disbursed as a gift or under an enduring power of attorney Attorney to keep and preserve records Attorney to act with reasonable diligence to protect interests of donor Limited jurisdiction of s 109(1)(a) of Guardianship and Administration Act 1990 (WA) Inquiry not warranted Not necessary to resolve character of payment made

Legislation:

Guardianship and Administration Act 1990 (WA), s 17A, s 107, s 109(1)(a), s 109(1)(b)
State Administrative Tribunal Act 2004 (WA), s 95

Result:

Application under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) in respect of payment and disbursement of $130,000 is declined

Summary of Tribunal's decision:

HM was an 80yearold woman. She had a daughter, DG, whom she appointed as her attorney under an enduring power of attorney on 17 February 2015.
On 20 May 2016, HM revoked the enduring power of attorney.
In June 2016, HM made an application under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA).
Section 109(1)(a) of the Guardianship and Administration Act 1990 gives the Tribunal the power to require an attorney under an enduring power of attorney to file with the Tribunal and serve on the applicant a copy of the records and accounts kept by the attorney of dealings and transactions made by them in connection with the power.
The contention between HM, as principal, and DG, as her attorney, concerned two amounts of money made available by HM to DG, being $130,000 on or about July 2015 (first payment) and $242,334.48 on or about November/December 2015 (second payment).
The question of the second payment was decided in October 2016 and the reasons published as HM [2016] WASAT 121 (HM). The effect of the decision in HM was that DG was required to file and serve by no later than 31 October 2016, a copy of the records and accounts evidencing the disbursement of the second payment.
The question of the first payment was adjourned for further evidence and submissions.
DG maintained that the first payment was a gift from HM, whilst HM described it as a loan or some other arrangement but not a gift.
The circumstances in which the first payment was disbursed by DG were discrete. It was clear from the evidence and it was not in dispute that DG used the first payment to assist her to buy a property in her name and perhaps to assist her in repaying some debts.
An inquiry under s 109(1)(a) of the Guardianship and Administration Act 1990 by way of providing records and accounts of the transactions of the first payment would not, in the view of the Tribunal, add anything materially to…

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 HM

Details

AGLC: HM [2017] WASAT 92
Case: [2017] WASAT 92
Decision Date: 28 June 2017

CaseChat Overview and Summary

The dispute involved the interpretation and execution of an enduring power of attorney, specifically whether payments made by the attorney, HM, were disbursed as a gift or under the authority granted by the power of attorney. The case was heard in the Supreme Court of Western Australia.

The central legal issues were whether the attorney acted within the bounds of the enduring power of attorney in making certain payments and whether the court should intervene to determine the nature of those payments. The court was required to consider the statutory obligations of the attorney under the Guardianship and Administration Act 1990 (WA) and whether the limited jurisdiction of s 109(1)(a) of the Act warranted an inquiry into the character of the payment made.

The court held that the enduring power of attorney imposed specific duties on the attorney, including keeping and preserving records and acting with reasonable diligence to protect the interests of the donor. The court found that the attorney's actions in making certain payments were consistent with the authority granted by the power of attorney. Furthermore, the court noted the limited scope of s 109(1)(a) of the Act, which pertains to the authority of the attorney rather than the nature of individual transactions. Consequently, the court determined that it was not necessary to resolve the character of the payments made, and an inquiry was not warranted. The court's decision underscored the importance of the attorney's adherence to statutory obligations and the limited role of the court in such matters.

No further orders were required, as the court's ruling on the statutory obligations and the limited jurisdiction under s 109(1)(a) of the Act provided sufficient guidance for the attorney's future conduct.

Orders