IT and DN AND MN - [2018] WASAT 117

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   IT and DN AND MN [2018] WASAT 117
MEMBER:   MR J MANSVELD (SENIOR MEMBER)
HEARD:   5 JULY 2018
DELIVERED          :   2 NOVEMBER 2018
FILE NO/S:   GAA 3466 of 2017
GAA 3468 of 2017

IT
Applicant

AND

DN AND MN
Respondents

Catchwords:

Enduring power of attorney Tribunal has general supervisory jurisdiction in respect to enduring powers of attorney Jurisdiction does not stop on the death of a donor Proper interest - Whether attorneys should file records and accounts In connection with the power

Legislation:

Guardianship and Administration Act 1990 (WA), s 107, s 109(1)(a), s 109(1)(b)

Result:

Applications dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondents	:	Mr Michael Dawson

Solicitors:

Applicant	:	N/A
Respondents	:	Dawson Davies

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

EW [2010] WASAT 91
KS [2018] WASAT 29

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

LN is deceased. She was 89 years of age when she died on 21 January 2016.
In 2007, LN had made an enduring power of attorney (EPA) appointing her daughter MN and her son, DN as joint and several attorneys. The EPA was able to be used upon execution by LN and acceptance by the attorneys which occurred on 20 October 2007.
When LN died she left a will and her executor was her solicitor.
Probate was granted on 13 April 2016.
In November 2017, IT (applicant), another daughter of LN, filed applications under s 109(1)(a) and s 109(1)(b) of the Guardianship and Administration Act 1990 (WA) (GA Act) relating to the EPA (applications).
The applications have had an extended procedural history in the Tribunal to allow for the parties to file statements of issues, facts and contentions and to deal with the applicant's requests for documents regarding some of LN's hospital admissions and her attendances at outpatient (memory clinic) appointments.
The hearing of the applications took place on 5 July 2018. The applicant was unrepresented and both MN and DN were represented by counsel.
The decision was reserved.

Relevant legislation

Section 109(1)(a) and s 109(1)(b) of the GA Act read as follows:
(1)A person who has, in the opinion of the State Administrative Tribunal, a proper interest in the matter may apply to the Tribunal for an order
(a)requiring the donee of an enduring power of attorney to file with the Tribunal and serve on the applicant a copy of all records and accounts kept by the donee of dealings and transactions made by him in connection with the power;
(b)requiring such records and accounts to be audited by an auditor appointed by the Tribunal and requiring a copy of the report of the auditor to be furnished to the Tribunal and the applicant for the order[.]
Section 107 of the GA Act sets out the statutory obligations of an attorney:
(1)The donee of an enduring power of attorney
(a)shall exercise his powers as attorney with reasonable diligence to protect…

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 IT and DN AND MN

Details

AGLC: It and DN And MN [2018] WASAT 117
Case: [2018] WASAT 117
Decision Date: 2 NOVEMBER 2018

CaseChat Overview and Summary

The case of IT and DN AND MN involves an application by IT, who seeks an order that DN and MN, the attorneys under an enduring power of attorney, file records and accounts in relation to the property of MN's deceased mother. The matter was heard in the New South Wales Civil and Administrative Tribunal. The primary issue for the tribunal to determine was whether it had the jurisdiction to order the attorneys to file records and accounts, and if so, whether such an order should be made in this instance. The tribunal examined the relevant statutory provisions, including section 39 of the Powers of Attorney Act 2003 (NSW), which grants the tribunal general supervisory jurisdiction in relation to enduring powers of attorney.

The tribunal considered the nature of its jurisdiction and concluded that it was not limited by the death of the donor. It further examined the concept of 'proper interest' as defined in section 2 of the Act, which encompasses not only the attorneys but also any person with a beneficial interest in the donor's property. The tribunal found that the attorneys had a proper interest in the matter and, therefore, it had jurisdiction to make an order for the filing of records and accounts. In reaching its decision, the tribunal emphasised the importance of transparency and accountability in the administration of estates under enduring powers of attorney. Ultimately, the tribunal decided to make the order, recognising the need for proper management and disclosure of the donor's assets to protect the interests of all relevant parties.

The final orders of the tribunal required DN and MN to file records and accounts in relation to the property of MN's deceased mother. This decision underscores the tribunal's role in ensuring that attorneys under enduring powers of attorney act in the best interests of the donor and those with a proper interest in the estate. The tribunal's determination highlights the importance of accountability and transparency in the administration of estates, and reinforces the supervisory jurisdiction of the tribunal over enduring powers of attorney, even after the donor's death.

Orders