JC
[2024] WASAT 88
•27 AUGUST 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: JC [2024] WASAT 88
MEMBER: MS F CHILD, MEMBER
HEARD: 8 MAY 2024
FINAL SUBMISSIONS FILED 1 JULY 2024
DELIVERED : 27 AUGUST 2024
FILE NO/S: GAA 771 of 2024
JC
Donor
JLC
Applicant
Catchwords:
Guardianship and Administration Act 1990 (WA) - Enduring power of attorney - Application for the production of records and accounts kept by donee - Whether Tribunal's jurisdiction enlivened - Proper interest - Whether an applicant asserting an 'expectation' in the deceased estate of the donor has a proper interest - Tribunal not satisfied applicant has a proper interest - Turns on own facts - Application dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 102, s 104(2)(a), s 107, s 107(1)(b), s 107(1)(c), s 109, s 109(1), s 109(1)(a), s 109(1)(b)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Donor | : | In Person |
| Applicant | : | Mr A Durand |
Solicitors:
| Donor | : | N/A |
| Applicant | : | Durand Gangemi |
Case(s) referred to in decision(s):
AC [2023] WASAT 38
BFO & ORS and KPW [2014] WASAT 68
BJB and GB [2008] WASAT 307
DD [2007] WASAT 192
DW and JM [2006] WASAT 366
EW [2010] WASAT 91
GM [2018] WASAT 18
ISH [2021] WASAT 169
JEB [2016] WASAT 65
JW [2024] WASAT 38
KS (2) [2008] WASAT 167
KS [2008] WASAT 29
MRH [2015] WASAT 17
Re SS; Ex Parte RA [2008] WASAT 218
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
JLC (the applicant) applied for orders pursuant to s 109(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act) for the filing of records and accounts kept by her brother D as the donee of an enduring power of attorney (EPA) made by their mother JC. The EPA the subject of the application was made by JC on 29 January 2020[1] and appointed D, as her sole attorney (2020 EPA).
[1] The 2020 EPA was dated 29 January 2020 the acceptance was signed on 6 February 2020. It was drawn by a solicitor and witnessed by a solicitor and another person. Pursuant to s 104(2) an EPA is created once the instrument is completed in compliance with the GA Act which requires a signed acceptance. As such the 2020 EPA in favour of D was effective from that date.
JC died on 14 January 2024.
The application was filed with the Tribunal on 15 February 2024 and was the subject of two directions hearings before the Senior member and was heard by on 8 May 2024 and adjourned for any further material or submissions to be filed by 7 June 2024. Time for the filing of material was extended as there was a delay in providing a copy of the transcript to the applicant's solicitor. Final written material was filed by D on 1 July 2024. The decision on the application was thereafter reserved. These are the reasons for that decision.
Background
JC was a widow and had four children: the applicant JLC, another daughter R, and sons D and B. At the time of her death JC was living in the home of B with a combination of family and paid professional care which was managed by D.
JC has been the subject of previous applications to the Tribunal:
In October 2019, D made an application under s 109(1)(a) for the filing by the applicant of records and accounts kept by her in respect of an EPA made by JC in 2013 which appointed the applicant as her attorney (the 2013 EPA).
In November 2019 the applicant in the present proceedings made applications to the Tribunal seeking the appointment of a guardian for JC and an administrator of her estate. By the time the applications (which were heard together) came on for hearing in February 2020, JC had revoked the 2013 EPA in writing and made the 2020 EPA in favour of D.
Medical evidence submitted to the Tribunal from a geriatrician[2] who had reviewed JC and from her treating psychologist indicated that JC was capable of making the 2020 EPA and it was her consistent wish as expressed to the health professionals involved in her care. The medical and other professional evidence was that JC was capable of making judgments about her personal and financial affairs.
[2] Report of Dr AB dated 18 December 2019 and report of Dr JB 28 November 2018.
At the hearing of their applications in February 2020 both D and JLC were given leave to withdraw their applications and they did so, and orders were made to that effect on 27 February 2020.
Evidence and material before the Tribunal
In the present proceeding I heard from the applicant and her solicitor and from D. In addition to the oral evidence, the following material was submitted:
(a)the application and submissions from the applicant filed 15 February 2024, 8 May 2024 and 21 June 2024;
(b)a copy of the 2020 EPA made by JC dated 29 January 2020 by which she appointed D as her sole attorney styled to be in effect from execution and to continue in force notwithstanding a loss of capacity;
(c)documents filed by D on 29 February 2024, 5 March 2024, 30 April 2024,[3] 22 June 2024 and the 1 July 2024 which included written submissions, summaries of expenditure, bank statements, including rates notices, invoices from a variety of sources including for legal fees,[4] receipts of airline flights and car hire when travelling to Perth, some testamentary expenses of JC. Statements from R and B in support of the D's position were also filed;
(d)a copy of a transfer of land of the house property of JC to D, B and R with JC retaining a life interest registered on 12 January 2021;
(e)I have also had regard to material submitted in respect of the previous applications to the Tribunal,[5] including the application and correspondence[6] and a report to the Tribunal from a clinical psychologist who was treating JC in late 2019. The letter and report refer to JC's distress due to family conflict associated with an EPA and her state of mind as to the conflict between her children and the conflict between her and the applicant. I have considered that material in determining this present application.
[3] Duplicate of 5 March 2024.
[4] Related to the preparation of drawing a will, an EPA and an enduring power of guardianship for JC.
[5] GAA 3985/2019 applications, submissions, geriatrician and other reports.
[6] Clinical psychologist to the general practitioner dated 31 October 2019.
Legislation
Section 109(1)(a) of the GA Act provides:
(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;
To make the orders sought by the applicant (that D file records he has kept as JC's attorney) I must be satisfied that the applicant has a proper interest in the operation of the 2020 EPA and if a proper interest is found, there is some reason requiring or justifying an inquiry or scrutiny into the operation of the EPA which is a private agreement between JC as the donor and D as the donee when JC had full capacity.[7]
[7]GA and EA and GS [2013] WASAT 175 at [25] - [27] (citing EW [2010] WASAT 91 at [21].
Jurisdiction
I am satisfied that the 2020 EPA complies with the formality requirements and is an EPA as defined under the GA Act.[8] This provides for the jurisdiction under Pt 9 of the GA Act for the Tribunal to intervene as proposed if the elements of s 109(1) of the GA Act are met.
[8] GA Act, s 102. The 2020 EPA meets the formalities of form and witnessing, and the applicant concedes JC had capacity to grant the EPA, ts 4, 8 May 2024.
In KS [2008] WASAT 29 (KS) Barker J, the then President of the Tribunal recognised that the GA Act had vested in the Tribunal a general supervisory jurisdiction over the conduct of an attorney acting under an EPA. He held that in the appropriate case the Tribunal could make orders pursuant to s 109(1)(a) (and s 109(1)(b)) of the GA Act if satisfied that an applicant had a proper interest, even in circumstances where the donor of the EPA was deceased[9] or the donor retained capacity.[10]
[9] KS [2008] WASAT 29 [37] Justice Barker President.
[10] KS [ 49].
In the present case although it is said that JC had dementia[11] there is no evidence that she lost capacity during her lifetime, and this is acknowledged in submissions made for the applicant.[12]
[11] ts 26 and 34, 8 May 2024, D refers to JC's dementia.
[12] ts 4, 8 May 2024.
In EW [2010] WASAT 91 it was noted that in the case of a capable donor it means that the control (and responsibility) of an attorney must be less than full control because the donor remains capable of undertaking transactions in his or her own right.[13] It is argued by D that he operated the 2020 EPA to give effect to JC's wishes both to live in her own home. He also gave the example of gifts being made to JC's grandchildren.
[13] EW [90].
Does JLC have a proper interest to bring the application?
The applicant argues she has an interest in bringing the application as a person capable of challenging the will of JC pursuant to the Family Provision Act1972 (WA) (FP Act). It is submitted that the size of the estate of JC is of material interest to the applicant who has reason to believe that D, as the enduring attorney, entered into several transactions that were not in the interests of JC which were specifically done for the purpose of minimising her estate.
D opposes the orders being made as he argues that the applicant does not have a proper interest. He asserts that JC changed her will and made other decisions to exclude the applicant from information and from receiving anything from her deceased estate because of what D says was the applicant's previous conduct towards JC. He alleges that the applicant pressured JC about changes to her will in 2019 and further that she 'financially and emotionally abused' JC during the period that she operated under the 2013 EPA.
D argues that as attorney he managed the estate of JC in her interests and in line with her wishes that she does not go into residential aged care. As a result, her costs of care were significant despite the involvement of family members in providing care and in which the applicant had only a limited role.
It is conceded by the applicant that a family relationship with the donor has been found not sufficient, on its own, to support a finding that an applicant has a proper interest.[14] It is acknowledged by the applicant that there is no innate right for any person to demand the Tribunal make an order under s 109(1) noting that it must be respected that persons having capacity are entitled to enter into private agreements such as an EPA.[15] However, it is submitted and accepted that given the supervisory role of the Tribunal in respect of the conduct of attorneys, the meaning of 'proper interest' should not be restrictively applied.[16]
[14] Citing AC [2023] WASAT 38 at [70].
[15] JW [2024] WASAT 38 [5],[8].
[16] EW [2010] WASAT 91 at [21].
It is argued by the applicant that the Tribunal has accepted that a person with an interest in a will of the deceased donor will give rise to a finding they have a proper interest in the conduct of the attorney under an EPA.[17]
[17] See for example KS (2) [2008] WASAT 167, EW [26].
The applicant accepts that JC executed a will in 2021 that excluded the applicant as a beneficiary.[18] It is not argued that JC lacked capacity to make that will. The applicant only became aware that she was not a beneficiary after JC's death.
[18] The applicant was unaware of the contents of JC's will until after her death, ts 31, 8 May 2024, but it accepted that the applicant is not a beneficiary ts 17, 8 May 2024.
Further it is acknowledged by the applicant that JC made an inter vivos gift of her real property by transfer of her house to her other children D, R and B in 2021.[19]
[19] D says that since JC's death that property has been sold. It was not argued that the transfer was 'in connection with' the 2020 EPA 'in connection with' having a wider meaning than 'transactions made under the power; see EW at [86].
The applicant's own adult children and a minor child in her care (being a great grandchild of JC), are the named beneficiaries under the will of JC and according to D have received a distribution of $15,000 each.[20] D says that he, B and R are the residuary beneficiaries of the estate but that the estate to be distributed to them will be minimal as only $70,000 was in the estate of JC at her death.[21] D says that as such he was not required to obtain a grant of probate.[22] The applicant argues that the true value of the deceased estate is unknown[23] and it may be more than $70,000.
[20] The great grandchild's inheritance is held in trust by D who is the executor of JC's deceased estate.
[21] D said that bequests in JC's will of $45,000 were to be distributed to the applicant's two adult children and a minor child in her care being a great grandchild of JC. Following those distributions that he, B and R are the residuary beneficiaries.
[22] Because the sums held in bank accounts to JC's credit at the time of her death were less than $100,000 and the house property had been transferred.
[23] ts 18, 8 May 2024.
It is said by D, that JC excluded the applicant from provision in her last will as the applicant had already received her inheritance from their parents with the transfer of another property to her in 2016.[24] D asserts that JC's intention with the gift of her property to her other children in 2021 (in which JC retained a life interest) was intended to defeat any claim the applicant may have made on JC's deceased estate.
[24] ts 9, 8 May 2024.
Counsel for the applicant said that he had examined the transfer of JC's property and it had been executed by JC in her own right and not by way of the 2020 EPA. The transfer had been lodged at Landgate by a firm of solicitors or conveyancers.[25]
[25] ts 18, 19, 8 May 2024.
Despite the exclusion of the applicant from the will of JC, it is submitted that a recent decision of the Full Tribunal JW[2024] WASAT 38[26] (JW) extends the recognition of a proper interest under a will of a deceased donor to an 'expected beneficiary' of a deceased estate.[27]
[26] Judge Jackson Deputy President, Judge Vernon Deputy President and Member Eagling
[27]JW at [9].
It is submitted that the applicant's interest is based on the premise that the applicant expected that she would inherit from JC's estate or in the alternative the applicant is a person capable of bringing proceedings under the FP Act[28] for alteration of JC's will for provision to be made for the applicant. Establishing this would necessarily involve separate Supreme Court proceedings.[29]
[28] FP Act, s 7.
[29] Submissions of the applicant filed on 8 May 2024.
It is argued by the applicant that if D diminished the estate and if it was found that money had been improperly removed from JC's accounts that [those funds] would stand to the credit of the deceased estate which would increase its value from $70,000 to a larger amount (unspecified) that would increase the potential success of any potential claim on the estate under the FP Act. [30]
[30] ts 18, 8 May 2024.
In support of her argument that D undertook transactions which may have diminished JC's estate, the applicant says that when the 2013 EPA was revoked in 2020 there was an overlap when the applicant still had access and was able to monitor JC's bank accounts and she became aware of several $1,000 lump sum transfers made by D to himself.[31]
[31] ts 16, 8 May 2024.
In respect of these transfers, D says that the applicant as JC's attorney had cancelled JC's credit cards and moved money out of her accounts which were accessible to her. D says that when he was appointed under the 2020 EPA, he was required to pay JC's rates and other expenses on his credit card and reimburse himself as JC had no access to money.[32] In the hearing this explanation was accepted for the applicant as noncontentious.[33]
[32] ts 8, 8 May 2024.
[33] ts 16, 8 May 2024.
In the directions hearings held prior to final hearing D agreed to provide information to the applicant about the conduct of the estate and provided summaries of expenditure.
When the summaries were provided the applicant challenged a transfer of $100 to D's son. D said that JC had wanted a gift to be given to her grandson which D had made from her account. D said that JC regularly made gifts of this nature at Christmas and birthdays to her grandchildren, and this was not challenged by the applicant.[34]
[34] ts 29, 8 May 2024.
The applicant said in the first hearing that there may be rental income unaccounted for[35] in JC's estate but appeared to accept that JC's house was not rented during the period of the operation of the 2020 EPA.
[35] ts 31 and 32, 8 May 2024.
In later submissions (following the filing of further information and bank statements by D), transfers to R in 2022 and 2023 (totalling $5,000) and to B of $29,663 are identified by the applicant. It is said that no reasons are given for these transactions. Additionally, after JC's death an amount of $20,000 was transferred to D.
The prepared summaries provided by D and the bank statements filed disclose expenditure of tens of thousands of dollars of regular similar amounts to a number of named individuals from JC's account. D said in the hearings that these payments were to private carers of JC. It is said in submissions for the applicant that these are 'certainly possibly' for carers[36] but that D should provide invoices for these transactions. It appears the services were not invoiced, and D paid the private carers simply by the bank transfer.
[36] Submission for the applicant, para 24.4.
D says that the care costs were significant as JC did not enter residential aged care and was cared for in her own home up to the month before her death (and then at the home of B). As JC needed 24-hour care in the last four years of her life[37] the costs of care increased over that time and were high.
[37] ts 8, 8 May 2024.
It appears to be common ground that JC had very high care needs.[38] In 2019 the material provided by the applicant indicated that JC had been assessed by the Aged Care team as requiring level 4 assistance, which is the highest level of care in the home.
[38] ts 23, 8 May 2024.
D says that a number of family members provided care to JC, including himself, travelling on occasions, when necessary, from the eastern states to do so. D says his travel costs were met by JC. D says he managed the paid private carer arrangements himself as this avoided expensive casual rates and was cheaper than paying through an agency.
The applicant says that she too participated in the care provided to JC but was limited due to her own health issues and carer responsibilities. From what has been said it seems the applicant was aware of the care needs and care arrangements for JC and appears to accept that JC required 24-hour care.
D says in the first years the costs of care were manageable but as time went on it became more difficult to find carers as family resources were exhausted and they could no longer play a role due to their own circumstances. D says that during the pandemic casual carer rates increased.
In the hearing D speculated that the paid carer costs went from approximately $40,000 - $60,000 to $300,000 a year (prior to JC's move to B's) but in later submissions filed the estimate of the cost of carers in 2022 (based on an estimated expenditure of $7,000 per month) was $93,000 and in 2023 based on a full year of statements was $159,000. The Commonwealth aged care subsidy was utilised by the aged care service provider providing services to JC. D says that JC also contributed an additional $1,000 per month for this service from her own funds.
D says rather than diminishing the estate he believes he tried to preserve some of JC's funds to meet what was thought to be her eventual need for residential aged care. Despite this intention her funds were being exhausted due to the high cost of in-house carers, and it was this that finally prompted the move of JC to B's home from her own home in December 2023.
The case argued in support of the applicant's interest as an expected beneficiary in a deceased estate, JW, is a decision of the Full Tribunal to refuse to award costs to the respondent attorney where an application for the filing of accounts by the attorney had been dismissed.
While expressing the view that the application for the filing of accounts may have been vexatious, (having regard to the trivial amounts of money involved) the Full Tribunal ultimately did not find the applicant vexatious, concluding that the applicant had a proper interest. The Tribunal said at [8] and [9]:
8In doing so, we held that in order for the application to succeed, we needed to be satisfied that, firstly, AW, as the applicant, had a 'proper interest' in the matter and, secondly, that there must be a proper basis for us to, in effect, trigger the supervisory jurisdiction of the Tribunal and get involved in what is, at its core, a private arrangement entered into by JW and BW in 2013 at a time when JW had full capacity to do so: (citation omitted)
9Ultimately, we were satisfied that AW had a proper interest in the matter. However, in reaching that conclusion, we indicated that we held some considerable concern that the purpose for which he brought the application may have been vexatious. Principally, our concern in that regard arose because the only basis for his insistence that he had a proper interest, in addition to being JW's son, was that he expected to be a beneficiary under her Will. However, the only matters he relied upon as a basis for the Tribunal to exercise its jurisdiction concerned sums of money at the trivial end of the range.
The Tribunal then dealt with the challenged transactions which included disposal of household goods most valued at less than $100 and went on to say:[39]
… In those circumstances, we were not satisfied that his actions in bringing the application were designed to protect his interest in, or any claim to, a portion of JW's estate. However, we did not go so far as to find that AW was acting vexatiously.
In large part, that was due to a concession made by BW's solicitor to the effect that AW had a 'proper interest' at the time of bringing the initial application. Given the function of the Tribunal on an application under s 17A of the GA Act is to carry out a review de novo, in our view it seemed fair and reasonable to conclude that he had a proper interest in the current proceedings.
[39] JW [11] and [12].
In the present case D makes no concession that the applicant has a proper interest. He argues that the applicant has no such interest as a beneficiary as she was explicitly excluded by JC. Further D argues that JC made the decision to gift the property to her other children in her lifetime to prevent the applicant making any claim on her deceased estate. It is said by D that this was because of the applicant's conduct when pressing JC for a change in 2019 from an earlier will of JC's which had taken account of the earlier transfer to the applicant.[40] D also asserts that while she was JC's attorney, the applicant made transfers to herself which did not benefit JC.
[40] D says that he believed that the applicant intended to try to get JC to change her will again in 2022 as she had arranged without notice to him or to JC's enduring guardian a doctor's appointment which D believed was to have JC's capacity assessed.
I have had regard to the material provided in the previous matter as it relates to JC's capacity and reported state of mind around the time of her revocation of the 2013 EPA and the execution of the 2020 EPA in an effort to ascertain JC's wishes.
Dr JB, a clinical psychologist in her report to the Tribunal dated 28 November 2019 states she was treating JB for 'stress and anxiety associated with intra familial conflict and the challenges associated with regaining her independence post stroke' and issues of enduring power of attorney'.[41] Dr JB report repeats D's assertion that JC's bank accounts had been closed or blocked by the applicant without JC's knowledge or consent which JC experienced as 'humiliating and embarrassing and which she only discovered when trying to use her cards'.[42]
[41] Letter to Dr PO dated 31 October 2019.
[42] Report dated 28 November 2019.
The psychologist's report notes she had seen JC on several occasions and notes among other observations JC's concerns that the applicant treated her as a child.
The background to the intrafamilal conflict was related as follows:
… I understand that prior to the stroke [the applicant] approached her mother [JC] to change the will, there was a disagreement, a period of no contact [and] upon reuniting after a few weeks [JC] capitulated and changed the will to increase in [the applicant's] favour.
The comments in the report support D's assertions regarding the reasons JC revoked the applicant's appointment as her attorney under the 2013 EPA and I infer changed her will in 2021.
A capable donor may direct their attorney to perform any task on their behalf which may lawfully be done by an attorney.[43] This might include the making of a gift. It is not however the purpose of an EPA or the role of an attorney to distribute or to advance the will of an incapable donor during their lifetime. This would be inconsistent with the fiduciary duties of the attorney and the statutory obligation to act with reasonable diligence to protect the interests of the donor. (DD [2007] WASAT 192, DW and JM [2006] WASAT 366)
[43] Section 104, Sch 3 of GA Act, Form 1, Enduring Power of Attorney, clause 2.
While the material provided by D is limited, acknowledging that he has not been ordered to file records, I am not persuaded as is submitted by the applicant that the transactions undertaken by him are suggestive of an effort by the attorney to diminish the putative deceased estate of the donor.[44] In the main the transfers to R and B were multiple, sometimes weekly, amounts over a period of time when JC was either living in her own home and receiving a combination of family and paid care from R other family members or in the home of B. There was a transfer of $4,000 to B in the weeks before JC died. The question for me is whether the applicant is entitled to an explanation for the transfers as she contends and the utility of making the orders proposed.
[44] Applicant's final submissions, paragraph 23.
I consider here is a distinction to be drawn between those who expected to be a beneficiary in the deceased estate of the donor and are disappointed at their exclusion,[45] and persons who are beneficiaries in the will (or may be person's capable of a claim under the FP Act)[46] and can point to the deceased estate being diminished by the actions of an attorney which were not in the interests of the donor in the donor's lifetime. See for example the case of KS (2) when the real property of the donor was transferred by an attorney.[47] In the present case there is largely speculation about what may be in the deceased estate of the donor. It is the case that the applicant has been excluded from information about the deceased estate, but it does not follow that she is necessarily entitled to that information.
[45] See for example GM [2018] WASAT 18.
[46] FP Act, s 7.
[47] See for example KS (2).
The applicant concedes she is not a beneficiary of JC's will and further that JC took steps to divest herself of assets to prevent a challenge to her will by the applicant.[48] However, the applicant argues that it is her intention to challenge that will on the basis that adequate provision was not made for her.
[48] ts 22 and 23, 8 May 2024.
It was acknowledged on behalf of the applicant that the Tribunal has no role in determining whether or not there had been a misappropriation or a loss to the estate arising from the operation of the EPA, or any remedial powers.[49] An order pursuant to s 109(1)(a) of the GA Act provides for an accounting only if there is no other remedial effect.[50]
[49] ts 18, 8 May 2024.
[50] KS [2008] WASAT 29.
I have considered the series of steps that would be required to bring about any potential FP Act claim by the applicant. There would initially need to be Supreme Court proceedings in respect of the 2020 EPA and a finding of a breach of fiduciary or statutory duty on the part of D. A loss to the estate of JC occasioned from that breach for which D was held liable, would also need to be found. If the loss was established and was of sufficient value, that might then increase the value of the deceased estate and support the making of a FP Act claim in separate proceedings. Any claim made would need to consider the likelihood of success having regard to the costs that would be incurred.
It is accepted by the applicant that the deceased estate no longer held the most valuable asset of JC being her house property, as this had been transferred to her other children in 2021. The cash amount known to be in the estate just prior to the execution of the 2020 EPA was under $300,000.[51] The value of the estate (excluding the house) at that time was relatively modest. As it was the estate was then at the margins to warrant any FP Act claim. It would need to be assumed that none of those funds were properly applied to JC's care by the attorney in the intervening four years. This means that all other expenses including JC's property expenses (noting that she lived in her property up until December 2023) could be met from her income and her care costs from her funded aged care package. Having regard to the known care needs of JC and the material filed by D, I found this to be implausible. I did not take this to be the position advanced by the applicant as it was acknowledged in the hearing that JC was a woman of high need, and it was acknowledged she needed 24-hour care.[52]
[51] Material filed in the initial applications before the Tribunal (at the time of the revocation of the 2013 EPA) JC's estate was reported to include a term deposit of $206,903 and bank deposits of $70,000 and $21,000. Total assets at that time amounted to just under $300,000 (excluding the house property which was later transferred). D says that JC had an annual $60,000 income from a superannuation pension and government money of $50,000 (utilised by the service provider).
[52] ts 23, 8 May 2024.
Having regard to the material submitted, while there appear to be deficits in the records kept and, in the material, provided by D to support his position, taken as a whole, the material does not in my judgment support the contention that funds of JC were transferred from her estate to diminish it.
I am not satisfied that the applicant makes a 'genuine, reasonably based, allegation that an attorney has misappropriated funds or has otherwise failed to comply with his obligations as an attorney,'[53] which would support a finding that the applicant has a proper interest. Rather, I am satisfied that it is more likely than not JC's funds were generally expended in an effort to provide for her care and to keep her in her own home for as long as possible consistent with her wishes.
[53] BFO & ORS and KPW [2014] WASAT 68 [28].
Absent a genuine allegation of misconduct by the attorney it is the case that the requirement to establish a proper interest must be judged on a case-by-case basis.[54] Allegations about the conduct of D as the executor of JC's deceased estate[55] are correctly identified by the solicitor for the applicant as outside the Tribunal's jurisdiction.
[54] EW [2010] WASAT 91 [27]
[55] Applicant's final submission, paragraph 24.
In previous cases factors which have led to a finding that the applicant did not have a proper interest include the expressed wishes of the donor that information not be shared with the applicant[56]; that the applicant's purpose in bringing the application is not to advance the interests of the donor but to advance the interests of another person,[57] or where the interests of the applicant and the donor might be said to be in conflict.[58]
[56] MRH [2015] WASAT 17 [at 52]).
[57] Re SS; Ex Parte RA[2008] WASAT 218 (Re SS)[62].
[58] BJB and GB [2008] WASAT 307 [58].
The testamentary intentions of JC are understood and acknowledged by the applicant. Further it is not argued by the applicant that JC was incapable of executing the 2021 will which was prepared by solicitors after JC had legal advice. Instead, the applicant argues that JC's wishes and the terms of that will should be varied to advance the interests of the applicant.
In another context, decisions of the Tribunal have found that the obligations of an appointed administrator include the identification of and where possible the support of the represented person's testamentary intentions.[59]
[59] See for example JEB [2016] WASAT 65 and ISH [2021] WASAT 169.
The purpose of the application, to gather evidence to support what must be regarded as a speculative claim under the FP Act on a modest estate does not, in my judgment satisfy the requisite proper interest in the applicant to bring the application. I am not satisfied on the facts of this case that the applicant has a proper interest.
Should the Tribunal exercise the discretion to make the order sought?
If I am wrong and the applicant does have a proper interest, I am not satisfied that the order sought should be made.
Finding that the applicant has a proper interest, that being in the conduct of the affairs of the donor under the EPA, is not the end of the matter.[60] The Tribunal must determine whether there is some reason requiring or justifying an enquiry or scrutiny into the operation of the EPA before it can make the orders sought under s 109(1)(a) of the GA Act.[61]
[60] GA and EA and GS at [25] and [27] citing an earlier decision of the Tribunal EW.
[61] EW at [94].
As noted the jurisdiction of the Tribunal in respect of an EPA is a narrow one: once the Tribunal is satisfied that the applicant has a proper interest, the only order that can be made is for the filing of records kept by the attorney pursuant to s 109(1)(a) and, pursuant to s 109(1)(b), an audit of those records so filed, and an order of the Tribunal 'has no other remedial effect'.[62]
[62] KS at [35].
The case of EW, citing KS,[63] confirmed that the Tribunal should exercise a general supervisory jurisdiction in respect of the conduct of a donee of an EPA if circumstances require it.[64]
[63] EW at [17].
[64] EW at [94].
I do not consider the circumstances of this case require that I exercise the discretion to order D to file accounts. In coming to that conclusion, I have considered the following.
First, while capable JC made decisions to exclude the applicant from the management of her affairs and I consider that a relevant consideration when deciding whether that information should now be shared with the applicant.
Secondly, D has filed limited material, but this has not satisfied the applicant. An audit is not sought and since the impugned transactions are largely to cash any audit would have little utility.[65]
[65] See EW at [116].
Thirdly, the applicant points to transfers of funds of JC's to the siblings of the applicant over a period (totalling around $35,000) and to D of $20,000 after JC's death). Even if these were found to not be for JC's benefit and the funds were ultimately restored to the deceased estate, the amounts involved, while not trivial, may not be sufficient to justify any claim of the applicant under the FP Act, which is the stated purpose for the bringing of the present application.
Fourthly, the determination of any claim made by the applicant under the FP Act that adequate provision had not been made for the applicant in the will of JC would consider the extent of the deceased estate and other factors and circumstances of the applicant. This would include any disentitling conduct on her part or by others or any other ground, such as any past transfer of property to her by JC as well as the more recent transfer to her siblings.
For these reasons I make the following orders.
Orders
The Tribunal orders that:
1.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
27 AUGUST 2024
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