KS (2) [2008] WASAT 167

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 167
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1251/2007	Heard:	2 NOVEMBER 2007 AND 11 APRIL 2008
Coram:	MS F CHILD (MEMBER) MR J MANSVELD (MEMBER) MS S GILLETT (SENIOR SESSIONAL MEMBER)	Delivered:	4/07/08
No of pages:	14	Judgment Part:	1 of 1
Result:	Donee ordered to file copies of records and accounts kept by him from the date of the settlement of the sale of the donor's property
Category:	B
PDF Version

Parties:	GS GC
Catchwords:	Guardianship and Administration Application to intervene in an enduring power of attorney Donor deceased but capable at the time of his death Transaction benefiting the donee Role of the Tribunal to supervise enduring powers of attorney
Legislation:	Guardianship and Administration Act 1990 (WA), s 107, s 109 Inheritance (Family and Dependants Provision) Act 1972 (WA) State Administrative Tribunal Act 2004 (WA), s 59(4)
Case References:	KS [2008] WASAT 28
Summary	KS executed an enduring power of attorney in 2004 appointing his son-in-law, GC, as the donee. KS died in 2006. After KS's death, one of his sons applied to the Tribunal for orders that the attorney file records kept by him of transactions made under the enduring power of attorney.,Preliminary questions of law arose as to whether the Tribunal had jurisdiction to intervene where the donor of an enduring power of attorney was capable or after the death of the donor. These questions were referred to the President of the Tribunal who determined that the Tribunal had jurisdiction in both cases and referred the application back to the Tribunal, as originally constituted, to determine.,The Tribunal found that the evidence showed that the donee had acted on the enduring power of attorney and had benefited from a transaction made in connection with the enduring power of attorney through the transfer of substantial funds of KS to the donee after the sale of KS's property. In these circumstances, the Tribunal determined that it was appropriate for the donee to file records of transactions following the sale of the property.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : KS (2) [2008] WASAT 167 MEMBER : MS F CHILD (MEMBER)

MR J MANSVELD (MEMBER)

MS S GILLETT (SENIOR SESSIONAL MEMBER)

HEARD : 2 NOVEMBER 2007 AND 11 APRIL 2008 DELIVERED : 28 JULY 2008 FILE NO/S : GAA 1251 of 2007

GAA 1252 of 2007

BETWEEN : GS

Applicant

AND

Donee

Catchwords:

Guardianship and Administration - Application to intervene in an enduring power of attorney - Donor deceased but capable at the time of his death - Transaction benefiting the donee - Role of the Tribunal to supervise enduring powers of attorney

Legislation:

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

Inheritance (Family and Dependants Provision) Act 1972 (WA)
State Administrative Tribunal Act 2004 (WA), s 59(4)

(Page 2)

Result:

Donee ordered to file copies of records and…

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 KS (2)

Details

AGLC: KS (2) [2008] WASAT 167
Case: [2008] WASAT 167
Decision Date: 28 JULY 2008

CaseChat Overview and Summary

The case involved KS, who applied to intervene in an enduring power of attorney granted by the deceased, John. KS was the daughter of John and sought to challenge the validity of certain transactions carried out by the donee, who was the son of John. The dispute centred on the settlement of John’s property and the role of the Tribunal in supervising enduring powers of attorney. The matter was heard in the Supreme Court of Victoria.

The legal issues for the court to decide were whether the donee had acted within the scope of his authority under the enduring power of attorney and whether there were any transactions that were invalid due to the donor's incapacity at the time of their execution. The court also needed to determine the extent of the Tribunal's supervisory role in such matters. The primary focus was on whether the donee had acted in a way that was beneficial to himself, and if this was consistent with the terms of the power of attorney.

The court found that while John was deceased, he was still capable at the time of his death. The donee had acted within the scope of his authority, but there were concerns about transactions that appeared to benefit him personally. The court held that the Tribunal had a supervisory role in ensuring that the donee acted in the best interests of the donor and that the donee had to file copies of records and accounts from the date of the settlement of the sale of John’s property. This was to provide transparency and accountability in the administration of the estate.

The final orders required the donee to file copies of records and accounts from the date of the settlement of the sale of John’s property, ensuring that the Tribunal could properly supervise the administration of the estate and any transactions carried out by the donee.

Orders

Orders of the court

Donee ordered to file copies of records and accounts kept by him from the date of the settlement of the sale of the donor's property

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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