IMP
[2006] WASAT 57
•9 MARCH 2006
IMP [2006] WASAT 57
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 57 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:1916/2005 | 15 DECEMBER 2005 7 MARCH 2006 | |
| Coram: | MS F CHILD (MEMBER) | 9/03/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | LG IMP |
Catchwords: | Guardianship and administration – Enduring power of attorney – Recognition of power of attorney created in another jurisdiction |
Legislation: | Guardianship and Administration Act 1990 (WA), s 104A, s 104A(2)(b) Enduring Powers of Attorney Act 1985 (UK), s 1, s 1(1)(c), s 2, s 2(b)(iii), s 4 |
Case References: | Nil Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : IMP [2006] WASAT 57 MEMBER : MS F CHILD (MEMBER) HEARD : 15 DECEMBER 2005
- 7 MARCH 2006
- Applicant
IMP
Represented Person
Catchwords:
Guardianship and administration – Enduring power of attorney – Recognition of power of attorney created in another jurisdiction
Legislation:
Guardianship and Administration Act 1990 (WA), s 104A, s 104A(2)(b)
Enduring Powers of Attorney Act 1985 (UK), s 1, s 1(1)(c), s 2, s 2(b)(iii), s 4
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : N/A
Represented Person : N/A
Solicitors:
Applicant : N/A
Represented Person : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The State Administrative Tribunal dismissed an application by the daughter of the donor of an enduring power of attorney executed in the United Kingdom in April 2004, for recognition in Western Australia of the power under the Guardianship and Administration Act 1990 (WA).
2 The Tribunal was not satisfied that the enduring power of attorney executed by the donor created an enduring power of attorney under the laws of the United Kingdom, as the donee, the applicant, had not registered the power with the Court of Protection as required by the relevant legislation in the United Kingdom.
3 The application for recognition was dismissed and the applicant invited either to make an application for her appointment as administrator for her mother to deal with the financial matters remaining in Australia or to register the enduring power with the Court of Protection in the United Kingdom and then again seek recognition of the power in Western Australia.
The application
4 An application was received by the State Administrative Tribunal (SAT) on 31 October 2005 from LG (the applicant), the daughter of IMP (the donor). The applicant is the joint donee with her brother of an enduring power of attorney executed by the donor in the United Kingdom (UK) on 23 April 2004. A copy of that document was submitted by the applicant to the Tribunal.
Relevant Legislation
5 The applicant seeks recognition of that enduring power of attorney pursuant to s 104A of the Guardianship and Administration Act 1990 (WA) (GA Act). That section provides:
"104. Recognition of powers of attorney created in other jurisdictions
(1) The donee of a power of attorney created under the laws of another State, Territory or country may apply to the State Administrative Tribunal for an order recognizing that power of attorney
- as an enduring power of attorney for the purposes of this Part.
- (2) Where the State Administrative Tribunal is satisfied, on an application made under subsection (1), that —
(a) a power of attorney created under the laws of another State, Territory or country corresponds sufficiently, in form and effect, to a power of attorney created under section 104; and
(b) it is appropriate to do so, the Tribunal may make an order recognizing that power of attorney as an enduring power of attorney for the purposes of this Part.
6 The hearing of the application was conducted by telephone to the applicant in the UK. Only the applicant attended both hearings. The applicant advised in her written application and during the hearings that her mother suffered dementia and was living in a nursing home.
7 She advised that her mother, the donor, had lived in Australia for 12 or 13 years while her husband, the applicant's father, had worked in this country. The donor received an Australian pension and a superannuation payment.
8 The applicant advised that her mother had a diagnosis of Alzheimer's Disease, although no medical evidence was provided to support this. The reason for this was that the donor had recently changed doctors, and although she had been allocated a new doctor at the time of the first hearing, she had not seen that doctor.
9 In correspondence with the Tribunal, the applicant advised that her mother had suffered dementia for some years, that she had become worse in the past five or six years and had moved into residential care. The applicant considered that her mother was incapable of managing her own financial affairs.
10 The applicant advised that the application for recognition of the enduring power of attorney in Western Australia had been made so that the applicant could operate the bank account of the donor, and deal with
(Page 5)
- the relevant authorities in Australia in relation to the donor's entitlements to her Australian pension and her superannuation entitlements as the widow of her late husband.
11 The applicant stated that the pension income and superannuation payments made to the donor met the payment of her nursing home fees. She advised that her mother had no other property as her parents had lost their money, which had been contributed to their son's property, when that property was sold when the son divorced. Prior to moving into residential care, her mother had been in rental accommodation. She received a small UK payment which together with her other income, met her nursing home fees.
12 The applicant advised that she used her mother's ATM card on an account held at the ANZ Bank and deposited the cash withdrawn from that bank into an English bank which she was then able to operate on behalf of her mother.
13 When questioned regarding the registration of the enduring power with the Court of Protection as provided for in the instrument submitted by her for the hearing, the applicant advised that she had not done this. She stated that she had been advised that it would cost £500 to register the power and as her mother had only £3000 in savings, had no (real) property and her estate was very small, that it was not necessary to register the power.
UK legislation
14 To determine this application for recognition of the power under s 104A of the GA Act, it is necessary to consider whether an enduring power of attorney has been created under the laws of another country.
15 The enduring power of attorney submitted for recognition by the applicant was created under the Enduring Powers of Attorney Act 1985 (UK) (the UK legislation).
16 The UK legislation provides that the enduring power will survive incapacity of the donor but requires the registration of the instrument by the Court of Protection before it is effective as an enduring power of attorney.
17 Significantly, s 1 of the UK legislation provides:
"1. Enduring power of attorney to survive incapacity of donor
(Page 6)
- (1) Where an individual creates a power of attorney which is an enduring power of attorney within the meaning of this Act then—
(a) the power shall not be revoked by any subsequent mental incapacity of his:
but
(b) upon such incapacity supervening the donee of the power may not do anything under the authority of the power except as provided by subsection (2) below or as directed or authorised by the court under section 5 unless or, as the case may be, until the instrument creating the power is registered by the court under section 6
(c) section 5 of the Powers of Attorney Act 1971(protection of donee and third parties) so far as applicable shall apply if so long as paragraph (b) above operates to suspend the donor's authority to act under the power as if the power had been revoked by the donor's mental incapacity.
(2) Notwithstanding subsection (1)(b) above, where the attorney has made an application for registration of the instrument then, until the application has been initially determined, the attorney may take action under the power – (a) to maintain the donor or prevent loss to his estate: or
(b) to maintain himself or other persons in so far as section 3(3) permits him to do so ..."
19 Section 4 sets out the duties of an attorney and includes the requirement that the attorney apply to the Court of Protection "as soon a practicable" for registration of the instrument creating the power.
(Page 7)
20 For the purposes of this application, the question arises that if the instrument executed by the donor on 23 April 2004 has not been registered, whether it is an enduring power of attorney for the purposes of the UK legislation.
Findings
21 Although there is no documentary evidence of the donor's loss of capacity, for the purposes of these reasons I accept the evidence of the applicant in this regard.
22 I also accept that the instrument submitted by the applicant signed by the donor, appointing the applicant and her brother donees, was intended to operate as an enduring power of attorney created under the UK legislation.
23 As the donor has lost capacity to deal with her own financial affairs and this is apparent to the applicant, there is an obligation under the UK legislation to register the enduring power of attorney with the Court of Protection.
24 As the donor is incapable, and the instrument executed by the donor in the UK has not been registered, my reading of s 1(1)(c) of the UK legislation appears to suspend the donee's authority to act under the power as though it had been revoked by the donor's incapacity.
25 As a result, the instrument is not effective as an enduring power of attorney in the UK, the jurisdiction in which it was created and consequently I consider that it cannot fall within s 104A of the GA Act for the purposes of recognition in Western Australia.
26 Even if this is not correct, I still must consider whether it is appropriate to recognise the instrument created in the UK (see s 104A(2)(b) of the GA Act).
27 Material considered by the Tribunal in the determination of this application includes the Enduring Powers of Attorney Act 1985 (UK), Statutory Instrument 1990 No 3047, and information from the website of the Public Guardianship Office in the UK specifically a document entitled "Making an Enduring Power of Attorney".
28 It is clear from the UK legislation and the other information before me that the donee's statutory obligation to register the enduring power of attorney with the Court of Protection, when the donor appears to have lost capacity has a protective purpose.
(Page 8)
29 Where a donor has lost capacity, the enduring power of attorney is not effective unless registration has occurred bringing the attorney and the operation of the power within the jurisdiction of the court. Even if I were satisfied that the instrument was effective to create an enduring power of attorney, which I am not, to recognise the instrument in Western Australia may have the effect of avoiding the safeguards which registration of the power intends.
30 The information provided on the website of the UK Public Guardianship Office includes information regarding the waiver of fees for registration of an enduring power of attorney. It appears that as at April 2005, remission of fees could be granted on an application of an applicant for registration of an enduring power of attorney if the savings and assets of a donor were under £12 500.
31 At the time of the hearing, the applicant advised that she had obtained legal advice in relation to the registration of the enduring power of attorney with the Court of Protection, but it appears that she may not have been advised that fees may be remitted.
Conclusion
32 Because the instrument executed by the donor is not effective to create an enduring power of attorney without registration under the relevant UK legislation, that document cannot be recognised as an enduring power of attorney for the purposes of s 104A of the GA Act.
33 It is noted that the applicant may apply for her appointment as administrator of the estate of the donor in Western Australia. If appointed, an administration order could include the authority to act in respect of the donor's entitlements to her Australian pension and superannuation, and to authorise the operation of the ANZ bank account. Alternatively, the applicant may consider that an application for registration of the instrument with the Court of Protection in the UK and an application for remission of the registration fee may be a more appropriate course.
Order
34 The application for recognition of the enduring power of attorney is dismissed.
(Page 9)
- I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS F CHILD, MEMBER
0
2