IRC
[2017] WASAT 83
•12 JUNE 2017
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: IRC [2017] WASAT 83
MEMBER: MS F CHILD (MEMBER)
HEARD: 27 APRIL 2017
DELIVERED : 12 JUNE 2017
FILE NO/S: GAA 514 of 2017
MATTER: IRC
Donor
Catchwords:
Guardianship and administration Enduring power of attorney Recognition of enduring power of attorney created in another jurisdiction Whether power of attorney corresponds sufficiently in form and effect to a power created under Western Australian legislation Number of donees Form and effect
Legislation:
Guardianship and Administration Act 1990 (WA), s 67(1), s 102, s 104, s 104A, s 104A(2)
Powers of Attorney Act 1998 (Qld), s 32(2), s 44, s 44(8)
State Administrative Tribunal Act 2004 (WA), s 77
Result:
Application dismissed
Summary of Tribunal's decision:
The Tribunal may recognise a power of attorney created in another jurisdiction if satisfied that the power corresponds sufficiently in form and effect to an enduring power of attorney created under the provisions of the Guardianship and Administration Act 1990 (WA).
An order was sought on behalf of the donor for recognition in Western Australia of an enduring power of attorney she had executed in Queensland pursuant to the Powers of Attorney Act 1998 (Qld). The order for recognition was sought as the donor has a rental property in Western Australia.
The Queensland enduring power of attorney executed by the donor nominated four attorneys. As the Supreme Court of Western Australia, in the decision of Ricetti v Registrar of Titles [2000] WASC 98 had determined that an enduring power of attorney made in Western Australia could nominate two attorneys but no more, there was a question as to whether the Tribunal could recognise the Queensland enduring power of attorney as an enduring power of attorney.
The Tribunal decided that the appointment of four attorneys to act for financial matters under the Queensland enduring power of attorney meant that the Queensland enduring power of attorney did not correspond sufficiently, in form and effect, to an enduring power of attorney created under the legislation in Western Australia even though decisions might be made at any one time by a majority of two of them. The application for recognition of the Queensland enduring power of attorney was dismissed.
Category: B
Representation:
Counsel:
Donor: Mr P Kelly
Solicitors:
Donor: Kelly Legal
Case(s) referred to in decision(s):
Re
C [2012] WASAT 50
Ricetti v Registrar of Titles [2000] WASC 98
REASONS FOR DECISION OF THE TRIBUNAL:
Background and application
The applicant, IRC (donor) is the donor of an enduring power of attorney executed in Queensland pursuant to the Powers of Attorney Act 1998 (Qld) (PA Act) on 10 February 2017 (Queensland EPA). In submissions filed on behalf of the donor by her solicitor it is reported that she has a diagnosis of Alzheimer's disease.
The donor seeks an order for recognition of the Queensland EPA in Western Australia to enable a property she owns in Western Australia to be managed.
Until it was revoked on 10 February 2017, the donor had an enduring power of attorney made under the provisions of the Western Australian Guardianship and Administration Act 1990 (WA) (GA Act) (Western Australian EPA). The Western Australian EPA was executed on 10 August 2012 and appointed the donor's stepdaughters, JD and SI, as joint and several attorneys.
The application for recognition of the Queensland EPA was heard on 27 April 2017. The hearing was conducted by a telephone conference call to the solicitor for the donor in Queensland. Only the solicitor attended the hearing. The donor was not present for the hearing. The donor received the required personal service of a notice of the hearing on 6 April 2017. Service was undertaken by her solicitor. All of the persons appointed under the Queensland EPA also received notice of the hearing.
Following the hearing the decision was reserved. These written reasons are produced pursuant to s 77 of the State Administrative Tribunal Act 2004 (WA). Identifying information of the donor has been removed consistent with the provisions of the GA Act.
Evidence and material before the Tribunal
The following documents were filed with the application:
1)A copy of a document entitled 'Enduring Power of Attorney' executed on 10 February 2017 pursuant to the PA Act.
2)A revocation of the enduring power of attorney dated 10 February 2017 signed by the donor addressed to JD (of Western Australia) and SI (of New South Wales), revoking an enduring power of attorney made on 10 August 2012 pursuant to s 104 of the GA Act effective immediately.
3)A medical report dated 31 January 2017 from a general practitioner based in Queensland (which gives the donor's address as a Western Australian address) reports that the doctor has assessed the donor and that her Mini Mental State Examination score is 24. The doctor reports that:
On speaking to [the donor] I believe she is competent to make decisions on where she lives, financial decisions and who she wishes to have as her guardian and power of attorney. I also believe she is in sound mind and has mental capacity to make any changes to her will.
The written submissions filed in response to directions from the Tribunal state that the donor having relocated from Western Australia to Queensland, wanted to incorporate in the appointment of her attorneys, her son, TM, and her daughter, MM, without necessarily excluding her stepdaughters previously appointed. The submissions also state that the donor has a diagnosis of Alzheimer's disease and her doctor had produced the medical certificate on 31 January 2017 referred to above.
Submissions note that as part of the estate planning strategy implemented for the donor, the Western Australian EPA made on 10 August 2012 was revoked because it would be inconsistent with the new Queensland EPA. The submission notes that the Western Australian EPA needed to be either revoked or amended to comply with the donor's expressed wishes for a change in the appointments of her stepdaughters, to incorporate her natural children.
It is submitted that the Western Australian EPA had been relied upon by the attorneys appointed for a variety of matters acting on behalf of the donor when she was a resident of Western Australia. However, following her move to Queensland, it was proposed that the Queensland EPA might be more appropriate, enabling a broad range of decisions to be made on her behalf in respect of her financial circumstances and other needs in Queensland. The principal need for the enduring power of attorney in Western Australia is in respect of the management and collection of rents for a house owned by the donor in Western Australia.
The donor's Queensland EPA is created in the 'Long Form' using Form 3 under the (PA Act). The document submitted consists of 24 pages of forms, explanatory notes and an annexure.
It is submitted that the donor seeks only part of the Queensland EPA signed by her on 10 February 2017, (being Form 2 comprising pages 13 to 16 incorporating Annexure A, and the acceptance by the attorneys contained in pages 23 to 24 incorporating Annexure A) to be recognised as an enduring power of attorney in Western Australia. It is submitted that for the purposes of the application the Tribunal not give attention to the appointment of an attorney for personal or health matters contained in Form 1 of the Queensland EPA.
In oral submissions made at the hearing it was submitted that the structure of the Queensland EPA which comprises of the separate parts: Form 1 (personal and health authority), Form 2 (financial matters) and Form 3 (acceptance) within the Long Form, provided under the PA Act for the creation of the EPA in Queensland, allows for that part of the EPA which provides for the appointment of an attorney for personal and health matters to be severed from the document to be considered by the Tribunal for recognition under s 104A of the GA Act.
In the donor's Queensland EPA filed, the appointment of the attorney for personal and health matters is MM (MM's acceptance has been filed).
In respect of the Queensland EPA for financial matters, the instrument appoints the son of the donor, TM, and her stepdaughters, JD and SI, and daughter, MM. Annexure A to the document refers to clause 8 to include MM as the fourth attorney for financial matters. In the copy submitted, only two of the attorneys (TM and MM) have signed the acceptance on Form 3. The witness is the solicitor acting for the donor in this proceeding.
Clause 13 of the Queensland EPA asks the principal to choose how the principal prefers her attorneys to make their decisions: 'Severally (any one of them may decide)', 'Jointly (unanimously)', or 'As a majority (if you are appointing more than three attorneys, please specify, e.g. "Simple majority", "Twothirds majority")'. The principal is directed to tick one box only. The donor has ticked 'other' and there is a note 'see Annexure A'.
In Annexure A, referring to clause 13 as to the preference of the donor regarding decisionmaking by the attorney, the following is set out:
As long as [TM] is also alive and his appointment is not revoked, [TM] and one of either [JD] or [SI] may act as a majority; but in the event that [TM] predeceases me or his appointment is otherwise revoked then I appoint [MM] as an alternate attorney to replace him such that from that appointment, [MM] may act jointly with either [JD] or [SI] as a majority of 2, and further provided that if both [TM] and [MM] have predeceased me or their appointment is revoked, [JD] and [SI] may act jointly.
Legislation
Section 102 of the GA Act defines an enduring power of attorney as one created under s 104 of the GA Act or recognised by the Tribunal under s 104A(2) of the GA Act.
In s 102 of the GA Act the term 'donee' is defined as: 'includes 2 persons appointed, whether jointly or severally, to act under a power of attorney'.
In Ricetti v Registrar of Titles [2000] WASC 98 (Ricetti) at [11], it was held that the definition of 'donees' in s 102 of the GA Act meant that: 'one or at the most two persons may be appointed donees in an enduring power of attorney'. The Court dismissed proceedings seeking a declaration of the validity of the document purporting to be an enduring power of attorney that appointed three attorneys jointly and severally.
The formal requirements for the creation of an enduring power of attorney in Western Australia are set out in s 104 of the GA Act, which provides:
(1a)A person who has reached 18 years of age and has full legal capacity may create an enduring power of attorney.
(1)An enduring power of attorney may be created by instrument -
(a)that is in the form or substantially in the form of Form 1 in Schedule 3; and
(b)in which the donor of the power declares that the power either -
(i)will continue in force notwithstanding his subsequent legal incapacity; or
(ii)will be in force only during any period when a declaration by the State Administrative Tribunal under section 106 that the donor does not have legal capacity is in force.
(2)An instrument is not effective to create an enduring power of attorney unless -
(a)there are 2 attesting witnesses to the instrument -
(i)both of whom are authorised by law to take declarations; or
(ii)of whom -
(I)one is authorised by law to take declarations; and
(II)the other has the qualifications specified in subsection (3);
and
(b)the instrument has endorsed on it, or annexed to it, a statement of acceptance in the form, or substantially in the form, of Form 2 in Schedule 3 executed by -
(i)the person or persons appointed to be the donee of the power; and
(ii)where applicable, the person or persons appointed to be the substitute donee of the power.
(3)A witness referred to in subsection (2)(a)(ii)(II) must be a person -
(a)who has reached 18 years of age; and
(b)who is not a person appointed to be a donee or substitute donee of the power.
Section 104A of the GA Act allows for the recognition of powers of attorney created outside of Western Australia.
Section 104A of the GA Act provides:
(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 recognising 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 recognising that power of attorney as an enduring power of attorney for the purposes of this Part[.]
Recognition of an enduring power of attorney under s 104A of the GA Act
For the Tribunal to recognise an enduring power of attorney made in another jurisdiction, pursuant to s 104A of the GA Act, there must firstly be a power of attorney created under the laws of another jurisdiction, that is, there must be an instrument that is a validly executed power of attorney according to the law under which it was created. Secondly, the Tribunal must then find that the power corresponds sufficiently in form and effect to an enduring power of attorney created under s 104 of the GA Act. Finally, the Tribunal must decide if it is appropriate to make the order for recognition.
The PA Act provides for the creation of enduring documents (enduring powers of attorney and advance health directives) which survive incapacity of the donor (s 32(2) of the PA Act). The formal requirements for creation of an enduring power of attorney under the PA Act are set out at s 44 of the PA Act. In summary, the document must be in the approved form, signed by the principal, and signed and dated by an eligible witness. By s 44(8) of the PA Act the enduring power of attorney so created is effective in relation to an attorney only if the attorney has accepted the appointment by signing.
The explanatory notes provided in the Queensland EPA, filed with the application, refer to the Long Form which is to be used if the principal wishes to appoint different attorneys for health and personal matters and for financial matters.
Reasons
The Tribunal accepts the submissions filed on behalf of the donor that the Queensland EPA is in writing, is executed as a deed, appoints attorneys, and there is an acceptance of the power (at least in the copy provided to the Tribunal of two of the attorneys) and that it is independently witnessed and survives the loss of capacity of the donor. The Queensland EPA is executed to be in effect immediately (by clause 11) therefore its commencement is certain. These essential elements of the execution of an enduring power of attorney are present in the Queensland EPA. However, the Tribunal is not satisfied that despite the compliance with these elements of form that the Queensland EPA corresponds sufficiently in form and effect to an enduring power of attorney, created under the GA Act, to allow it to be recognised pursuant to s 104A of the GA Act.
The Tribunal has previously held that the inclusion of a personal power of attorney in an enduring power of attorney meant that the 'foreign EPA' did not comply with the requirement that it correspond sufficiently in form and effect to an enduring power of attorney created in Western Australia which excludes such authority. However, the submission regarding the severance of the appointment of the attorney for personal matters is persuasive as the appointments in Form 1 and Form 2 are distinct as is the authority conferred and the acceptance of the appointment by the donees of the powers.
The Tribunal does not need to finally determine this question since the appointment of four attorneys for financial matters under the Queensland EPA is not consistent with the definition of a donee of an enduring power of attorney as identified in Ricetti.
The Tribunal does not accept the submission that at any given time only two attorneys are empowered to act, for example, either JD or SI together with TM or MM. In fact, TM, JD and SI are all empowered to act.
Even if it is accepted that two of the appointed attorneys may act at any one time, there is no provision under the GA Act for attorneys to act by majority. Where two attorneys are appointed in an enduring power of attorney created under s 104 of the GA Act, there must be an election in the instrument that the attorneys act either jointly, or severally. An enduring power of attorney which does not make this election has been found to be uncertain as to its operation and thereby not to meet the requirement that it be 'substantially in the form of Form 1 in Sch 3 of the GA Act' to create an enduring power of attorney under the GA Act: Re: C [2012] WASAT 50 (Re: C).
In Re: C the Tribunal said at [50] [54]:
Failure to specify whether the appointment was joint, or joint and several, is more significant. The absence of that specification leaves uncertainty as to whether the donor of the power intended that, in exercising the power, the donees must act jointly, or whether it was intended that either could act alone so as to bind the donor.
…
Neither Pt VIII of the Property Law Act 1969 (WA), which deals with powers of attorney, nor Pt 9 of the GA Act, provides any guidance as to the mode of exercise of the power by multiple donees appointed without specification as to whether they are to act jointly or severally. The definition of 'donee' in s 102 of the GA Act 'includes two persons appointed, whether jointly or severally, to act under a power of attorney …'. The definition proceeds on the assumption that the appointment will specify the manner in which the two donees are to act.
…
The specification in Sch 3 of the GA Act as to whether dual donees are appointed jointly, or jointly and severally, is a matter of substance. It relates back to the definition of donee in s 102 of the GA Act. The failure to specify which alternative is intended results in uncertainty as to the manner of exercise of the power. In our view, an EPA which does not specify whether dual donees are to exercise their power jointly, or alternatively, jointly or severally, is not substantially in the form of Form 1 of Sch 3 of the GA Act. It might be thought that, where the specification is not made, a default position that the power must be exercised jointly would ensure that the document was given efficacy and that joint exercise of the power would comply with whatever alternative specification the donor intended. While that pragmatic approach has some attraction, it ignores the statutory requirement as to form found in s 104 of the GA Act. A document not substantially in the form of Form 1 Sch 3 does not meet the requirements of an effective enduring power of attorney, even when the intention of the putative donor is clear, and could be implemented by treating the document as an EPA.
The Queensland EPA provides for TM (in his life time) to act with either JD or SI as a majority. (The substitution of TM on his death with MM is uncontroversial as the substitution of an attorney on a specified event is available under the GA Act). However, the arrangement whereby either JD or SI would act together with TM as a majority is unclear to the Tribunal. What would be the circumstances or trigger for the choice of either JD or SI to act with TM (or if TM predeceases the donor, MM)? Who would make the choice or identify the triggering event? It may be that it would be the unavailability of either JD or SI or the disagreement of one of them with a course of action or a proposed transaction. The lack of certainty about the circumstances under which TM, JD and SI would act creates, in the view of the Tribunal, uncertainty as to the operation of the Queensland EPA itself.
Further, the submission that at any one time only two attorneys act under the power does not fulfil the requirement of s 104A of the GA Act, since although it may be implicit in the use of the words 'by majority' that the majority would act jointly rather than severally, this it is not specified and also gives rise to the type of uncertainty as to the operation of the power identified in Re: C.
It may be, by operation of s 44(8) of the PA Act, that the appointment of JD and SI as attorneys is not effective. As noted above, in the copy of the Queensland EPA submitted to the Tribunal, their acceptance of their appointment had not yet been signed by them. This issue was not argued before the Tribunal.
The Tribunal is not satisfied that the Queensland EPA corresponds sufficiently in form and effect to an enduring power of attorney created under s 104 of the GA Act and so cannot recognise it.
The application is therefore dismissed.
As noted by the donor's solicitor a further assessment will be required to ascertain if the donor is now capable of executing an enduring power of attorney in Western Australia. If she is not capable of executing a new enduring power of attorney, the only option for the appropriate management of her rental property in Western Australia may be the appointment of an administrator of her estate in Western Australia. Pursuant to s 67(1) of the GA Act, an administration order may be made for a person who is not resident in Western Australia, but the order is limited to that person's estate in Western Australia.
Order
1.The application is dismissed.
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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