HM
[2017] WASAT 92
•28 June 2017
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 what was already known.
For these reasons it was not necessary for the Tribunal to resolve the question of whether the first payment was a gift or loan to DG, or some other arrangement, because even if it was found to have been disbursed under the enduring power of attorney the Tribunal would not have made an order under the limited jurisdiction of s 109(1)(a) of the Guardianship and Administration Act 1990.
The application was therefore declined.
Category: B
Representation:
Counsel:
Represented Person : Ms F Ottolini
Solicitors:
Represented Person : Northern Suburbs Community Legal Centre
Case(s) referred to in decision(s):
EW [2010] WASAT 91
HM [2016] WASAT 121
KS [2008] WASAT 29
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
HM is an 80yearold woman. She has a daughter, DG, whom she appointed as her attorney under an enduring power of attorney on 17 February 2015 (EPA).
On 20 May 2016, HM revoked the EPA.
In June 2016, HM made an application under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act).
Section 109(1)(a) of the GA Act 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, concerns 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 by me on 6 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 orders made on 6 October 2016 also required both HM and DG to file submissions with the Tribunal concerning the first payment by 31 October 2016.
The question of the character of the first payment was adjourned (HM at [45] and [74] [79]) and is the subject of these reasons.
In response to the orders made on 6 October 2016, on 31 October 2016 DG filed a submission with the Tribunal (DG submission).
The DG submission did not include the records and accounts concerning the second payment. DG explained as follows at page 6:
SAT have now asked me to provide details of the transactions I undertook whilst using my authority of power of attorney, however no such transactions exist. I cannot provide evidence of matters that have not occurred.
There has been no evidence presented that demonstrates that I have used my Power of Attorney.
No one can be asked to account for how they spend a gift, as a gift is by its nature for the recipient to do with as they please. I did endeavour to build wealth for the next generations with the second gift [second payment] given to me by my mother, which is in accordance with her wishes and is not in dispute by her, however one is not required to keep records of how a gift was used or to provide information to others on how it was used.
A directions hearing was called for 19 December 2016, at which I advised DG that she had not complied with the orders made on 6 October 2016.
At the directions hearing, DG was notified of s 95 of the State Administrative Tribunal Act 2004 (WA) which stipulates that it is an offence if a person does not comply with a decision of the Tribunal.
The right of DG to seek a review of the decision in HM by the Full Tribunal under s 17A of the GA Act (s 17A review) was also discussed and she was ordered to advise the Tribunal, within 14 days, whether she intended to apply for a s 17A review.
On 27 January 2017, DG applied for a s 17A review of the decision made on 6 October 2016.
A directions hearing for the s 17A review was heard before a judicial member of the Tribunal on 20 February 2017.
On 24 February 2017, DG filed a submission with the Tribunal purporting to explain the disbursement of the second payment. In that submission she maintained that the second payment was a gift from HM to her and as a consequence 'accurate records of all dealings are not required to be kept'.
Despite this, DG explained the disbursement of the second payment as follows:
•Living expenses whilst salary sacrificing;
•Paying off a personal loan;
•Paying off a car loan;
•$7,500 to [HM] as a gift;
In addition:
•Legal fees $8,500
•Other items as I deemed
The funds have been fully disbursed.
At page 6 of the DG submission, DG states that she did 'endeavour to build wealth for the next generations' with the second payment.
On 27 February 2017, I heard the adjourned first payment matter and reserved my decision.
On 1 March 2017, a judicial member of the Tribunal dismissed the s 17A review in respect to my decision in HM on the basis that the application was misconceived.
Decision
I have decided to not make an order under s 109(1)(a) of the GA Act in respect of the first payment.
My reasons follow.
Evidence and submissions
Much of the factual material is contained in HM and is reiterated in the evidence and submissions of both HM and DG in respect to the first payment.
A material difference in the evidence concerning the first payment is the existence of a statutory declaration purportedly made by HM on 23 June 2015 (SD). There was no statutory declaration made in respect to the second payment.
The SD states:
That I give to my daughter [DG], the sum of $130,000. The gift is unconditional, nonrepayable and nonrefundable.
The SD was allegedly witnessed by a pharmacist who works in the pharmacy that HM used to attend when she was living in the family property.
Relevantly HM says this about the SD. She was not aware of its existence until it was presented at the hearing on 12 September 2016 (HM at [44] [46]). The words used in the SD are foreign to her and are not words typically used by her. She does not have a computer and she did not type the words in the SD or have someone type them for her. The signature on the SD is not hers. The witness on the SD is the afterhours pharmacist (whom she does not know) as she used to visit the pharmacy only during the day. HM kept her identity documents in her bag which only she or DG would have had access to when they were living together in the family property (HM at [16] [18]).
HM further states that the date of the SD was 23 June 2015, which was before the settlement of the family property which occurred on 15 July 2015 and from which the first payment was made to DG. HM states that at the time of the SD she did not have any funds to give to DG and could not specify an amount until she became aware of how much she would receive on settlement.
HM regarded the first payment as a loan to DG on the basis of a family arrangement that would eventually lead to the purchase of a two bedroom unit for her sole use in a location close to DG and her granddaughter.
DG secured the services of a forensic document examiner (FDE) to obtain an opinion concerning the source of the signature on the SD. The report of the FDE dated 22 November 2016 (FDE Report) is before the Tribunal and the FDE gave oral evidence at the hearing on 27 February 2017.
DG had provided the FDE with a number of documents purportedly containing HM's signature including the SD. The only original documents provided were two enduring powers of attorney and an enduring power of guardianship.
When asked why she did not forward the original SD to the FDE, DG says the document was held by her bank and, in her view, there was insufficient time (in the course of the proceeding) to have it retrieved by the bank from its records.
The FDE postulated a number of hypotheses regarding the signature on the SD. They were that:
a)the signature was not written by HM but by another person using a tracing process;
b)the signature was written by another person using a freehand process;
c)the signature was inserted into the SD by a 'cut and paste' method; or
d)the signature was written by HM and any variation with the available specimen signatures was due to natural variation, accidental formulations or some other factor(s).
The FDE states that although (a), (b) and (c) could not be fully discounted he formed an opinion that the signature on the SD was 'probably a genuine signature of the writer' (FDE Report at page 4). The opinion was a qualified one due to the quality of the signature on the SD copy (reproduced).
In the DG submission at page 3, DG gave a timeline of events which in respect to the first payment relevantly states (in the order it was put by DG):
•in May 2015, HM accepted an offer on the sale of the family home and commenced the process to enter into the longterm lease of the retirement village unit;
•on 14 June 2015, DG made an offer for her property;
•on 16 July 2015, HM moved into the retirement village unit;
•on 23 June 2015, HM executed the SD gifting DG $130,000; and
•on 28 August 2015, DG moved into her property.
DG states that HM had the opportunity to exit from the lease on the retirement village unit before the contract became final and the period mentioned by DG as being the time available for HM to consider her position was from early June 2015 to midJuly 2015.
According to DG, HM had sufficient funds on the sale of the family property to purchase a unit other than the retirement village unit, had she wished to do so.
DG further states that when HM decided to live in the retirement village unit (which had one bedroom) she expressed disappointment that DG would not be able to stay with her any longer for a couple of nights a week. HM is said to have suggested that DG purchase a home for herself close to the retirement village unit and to DG's daughter.
DG states that HM seemed genuine at the time and HM said she would have excess funds of up to $145,000 upon the sale of the family property.
DG states that on HM's insistence that she move closer to her she made an offer on the property in which she currently lives. Subsequently, at the settlement of the family home, HM had $130,000 transferred to DG which DG says was a gift evidenced by the SD.
In the DG submission at page 15, DG states in respect to the first payment:
[HM] is confirming that she did not expect her name to be on the title and that my property was intended to be for me. She also makes it clear here that she expected me to use this money for myself.
She also didn't need to and wasn't expected to go to all this activity. She could have just purchased a property in her name and let me purchase one in mine, if it was her intention. It was not however her intention at the time and this is demonstrated by her evidence that she expected me to purchase the home for myself and to pay off my own debts.
The notion of 'wealth creation' which arose specifically in relation to the second payment (HM at [38] and [49]), is further referred to in a more general sense by DG in the DG submission. DG states that HM intended her to use the 'gift' to 'build wealth for the generations' and that long before the death of her spouse, HM had intended to 'change her will and focus on wealth creation for the female side of her family' (DG submission at pages 1 and 10).
According to DG the only concern of HM was that DG endeavour to ensure HM was provided for in the event she required nursing home care.
As to what might have happened, DG sees it this way:
I was amenable to purchasing a second unit specifically for [HM], if it was agreed that was in her best interests, however I never had the chance as [HM] commenced legal proceedings. After 3 moves in 4 months, it didn't seem like a good decision to buy another property when [HM] keeps changing her mind. I also believe that [HM] is better off in a retirement village community, rather than isolated in a unit or house upon her own. … If however, it was agreed that it was in her best interests that she live outside of retirement home living, than [sic] I would have gone with that. I never got the chance to have any discussions about this.
(DG submission at page 14)
HM currently lives in public housing rental accommodation having left rental accommodation in a retirement village (which she obtained subsequent to the sale of her retirement village unit; HM at [27]). She lives nearby to her stepdaughter (VP) with whom she has regular contact.
Discussion
Section 109(1)(a) is a somewhat unusual provision.
In the first instance and noncontroversially it gives the Tribunal the power to require an attorney under an enduring power of attorney to account for the dealings and transactions made by them as attorney. It does this by requiring the attorney to file with the Tribunal and serve on the applicant a copy of all the records and accounts of the dealings and transactions made by them in connection with the power.
However, unless the applicant is also seeking an audit of the accounts and records under s 109(1)(b) of the GA Act, then except for the filing of documents there is no other remedial effect (KS [2008] WASAT 29 at [35]).
It is not immediately clear what more, if anything, the Tribunal does with the records and accounts required to be filed by an attorney (or former attorney) although it can be envisaged that an applicant might use the documents for action in another jurisdiction.
In that regard, s 107 of the GA Act sets out the statutory obligations of an attorney which includes exercising their powers with reasonable diligence to protect the interests of the donor, and if they fail to do so, they are liable to the donor for any loss occasioned by the failure.
The discretion exercisable by the Tribunal under s 109(1)(a) of the GA Act is warranted when it can be found that there is something that requires an inquiry (EW [2010] WASAT 91 at [94] [100]).
In HM, I found that the disbursement of the second payment was made by DG as the agent of HM under the EPA. I exercised the discretion available to the Tribunal under s 109(1)(a) of the GA Act because I found that an inquiry was warranted on the basis that the term 'wealth creation' was broad in its extent and that DG should account to HM as to what in practice DG considered 'wealth creation' to mean.
This is not the case for the first payment. The circumstances in which the first payment was disbursed by DG were discrete. It is clear from the evidence and it is 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 by way of providing records and accounts of the transactions of the first payment will not, in my view, add anything materially to what is already known.
For these reasons it is not necessary for me to resolve the question of whether the first payment was a gift or loan to DG, or some other arrangement, because even if I found it to have been disbursed under the EPA I would not make an order under the limited jurisdiction of s 109(1)(a) of the GA Act.
The application made under s 109(1)(a) of the GA Act as it relates to the first payment is therefore declined.
Order
1.The application made under s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) in respect of the $130,000 paid by [HM] to [DG] in 2015 is declined.
I certify that this and the preceding [57] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR J MANSVELD, SENIOR MEMBER