MS
[2025] WASAT 49
•4 JUNE 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MS [2025] WASAT 49
MEMBER: JUDGE F VERNON, DEPUTY PRESIDENT
MR T CAREY, MEMBER
MS N EAGLING, MEMBER
HEARD: 29 APRIL AND 27 MAY 2025
DELIVERED : 4 JUNE 2025
FILE NO/S: GAA 702 of 2025
MS
Represented Person
PA
Applicant
Catchwords:
Enduring power of attorney - Application under s 104A(1) of the Guardianship and Administration Act 1990 (WA) (GA Act) for recognition of NSW power of attorney - Review under s 17A of the GA Act - Whether the NSW power of attorney is validly created under the laws of NSW - Whether NSW power of attorney corresponds sufficiently, in form and effect, to an enduring power of attorney created under s 104 of the GA Act - Whether it is appropriate to recognise the NSW power of attorney - Intention of attorney to open a deposit account for the donor at the Perth Mint - No estate in WA - Application for recognition of power of attorney allowed
Legislation:
Conveyancers Licensing Act 2003 (NSW)
Guardianship and Administration Act 1990 (WA), s 4, s 4(2), s 4(3), s 4(7), s 17A, s 41(1), s 41(3), s 67(1), s 102, s 104, s 104(1a), s 104(1)(a), s 104(1)(b), s 104(1)(b)(ii), s 104(2)(a), s 104(2)(a)(ii), s 104(2)(b), s 104(3), s 104A, s 104A(2), s 104A(2)(a), s 104A(2)(b), s 104A(3), s 104A(4), s 104B, s 106, s 106(4), s 106(5), s 113(1), Pt 9, Pt 9A, Sch 3
Oaths, Affirmations and Statutory Declarations Act 2008 (WA), Sch 2
Powers of Attorney Act 2003 (NSW), s 2, s 6(1), s 19, s 19(1), s 19(1)(a), s 19(1)(b), s 19(1)(c)(i), s 19(1)(c)(ii), s 19(1)(c)(iii), s 19(1)(c)(iv), s 19(1)(c)(v), s 19(2), s 19(2)(b), s 20(1), Pt 2, Sch 2
Powers of Attorney Regulation 2024 (NSW), Sch 2
State Administrative Tribunal Act 2004 (WA), s 17(1), s 27(1), s 27(2), s 27(3)
Trustee Companies Act 1964 (NSW)
Result:
Power of attorney recognised
Category: B
Representation:
Counsel:
| Represented Person | : | No appearance |
| Applicant | : | Mr R Graham |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | Graham & Associates Lawyers |
Case(s) referred to in decision(s):
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
MS [2025] WASAT 13
Ricetti v Registrar of Titles [2000] WASC 98
ZPP v ZPO [2020] NSWCATAP 288
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
MS appointed his son, PA, to be his attorney under a power of attorney made in New South Wales on 22 December 2008 (Power of Attorney).[1]
[1] The parties' names have been anonymised to ensure the confidentiality of the represented person's personal information as required by s 113(1) of the Guardianship and Administration Act 1990 (WA) (GA Act), using the same identifying initials as were used in the original decision, MS [2025] WASAT 13.
PA applied to the Tribunal for an order under s 104A of the Guardianship and Administration Act 1990 (WA) (GAAct), that the Power of Attorney be recognised as an enduring power of attorney for the purposes of Pt 9 of the GA Act. On 10 February 2025, a Senior Member of this Tribunal refused to grant that application. PA now seeks review of that decision under s 17A of the GA Act.
Section 104A(2) of the GA Act provides that:
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 s 104; and
(b)it is appropriate to do so;
the Tribunal may make an order recognising that power of attorney under an enduring power of attorney for the purposes of [Part 9 of the GA Act].
Accordingly, the issues for us to determine are:
(a)was the Power of Attorney validly created under the laws of New South Wales;
(b)does the Power of Attorney correspond sufficiently in form and effect to a power of attorney created under s 104 of the GA Act; and
(c)if the answers to questions (a) and (b) are 'yes', is it appropriate that we make an order recognising the Power of Attorney for the purposes of Pt 9 of the GA Act?
We have decided that the Power of Attorney is validly created under the laws of New South Wales. We have also decided that the Power of Attorney does correspond sufficiently in form and effect to a power of attorney created under s 104 of the GA Act to enable us to make the order sought and that it is appropriate for us to do so. Accordingly, we will grant the application and recognise the Power of Attorney as an enduring power of attorney for the purposes of Pt 9A of the GA Act.
We will now explain the reasons why we have reached that conclusion.
Review under s 17A of the GA Act
Proceedings under s 17A of the GA Act fall within the Tribunal's review jurisdiction.[2] We are required to consider the matter 'de novo', in other words, afresh, on all the evidence before us, whether or not that evidence existed at the time the decision was made.[3] The purpose of the review is to arrive at the correct and preferable decision at the time our decision is made.[4] We are not limited by the Senior Member's reasons, or any ground for review set out in the application.[5]
[2] Section 17(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
[3] Section 27(1) of the SAT Act.
[4] Section 27(2) of the SAT Act.
[5] Section 27(3) of the SAT Act.
Our primary concern is to make a decision in MS's best interests.[6] We must, as far as possible, seek to ascertain MS's views and wishes in respect of this matter.[7]
[6] Section 4(2) of the GA Act.
[7] Section 4(7) of the GA Act.
MS's wishes
MS is in his 90s and lives in a residential aged care facility in New South Wales.
MS was not present at the hearing and we were not able to ascertain his views and wishes directly. MS has been diagnosed with Alzheimer's dementia. The effect of that condition is discussed further below. However, in a written statement, PA said that MS was aware that PA wished to invest MS's savings in a deposit at the Perth Mint and was happy with that. In addition, in a report dated 6 December 2024, a geriatrician, Dr GS, says that MS understood that PA was his current attorney and that PA was managing his finances, and that MS said he trusted PA.
On the evidence, MS executed the Power of Attorney in 2008, appointing PA as his attorney in the event that he became unable to make rational decisions. This indicates MS's wish, and intention, at that time, that PA make financial decisions on his behalf should he lose the capacity to do so.
In light of this evidence, which we accept, we proceed on the basis that MS would support the Tribunal making an order that would enable PA, as his attorney, to invest with the Perth Mint.
Was the power of attorney validly created under the laws of New South Wales?
PA has produced a certified copy of the original power of attorney. It is endorsed as having been registered with the Registrar General NSW.
The Powers of Attorney Act 2003 (NSW) (NSW Act) applies to any power of attorney created by an instrument executed on or after 16 February 2004.[8] The Power of Attorney was executed on 22 December 2008.
[8] Section 6(1) of the Powers of Attorney Act 2003 (NSW) (NSW Act) provides that the NSW Act applies to instruments executed on or after the commencement date. Section 2 of the NSW Act provides that the commencement date is the day to be appointed by proclamation. The proclamation dated 11 February 2004 appointed 16 February 2004 as the commencement date.
At the time the Power of Attorney was executed, a prescribed form for a power of attorney was contained in Sch 2 to the NSW Act. The Power of Attorney is in that prescribed form. Although the form is entitled 'General Power of Attorney', at that time there was only one prescribed form for both enduring powers of attorney and general powers of attorney, with the latter being created by deleting cl 2 of the form. The terms of that clause are discussed below.
Under the NSW Act:
(a)an instrument creates an enduring power of attorney if:
(i)it is expressed to be given with the intention that it will continue to be effective even if the person making the appointment (the donor) loses capacity after the instrument is executed;[9]
(ii)it is witnessed by a prescribed person which includes an Australian legal practitioner;[10] and
(iii)it is endorsed with a certificate made by the witness stating that:
1.the witness has explained the effect of the instrument to the donor before it was signed;[11]
2.the donor appeared to understand the effect of the power of attorney;[12] and
3.the witness is a prescribed witness, who is not an attorney under the power of attorney and they witnessed the donor sign the power of attorney;[13] and
(b)an enduring power of authority does not confer authority on an attorney until the attorney has accepted the power by signing the power of attorney.[14]
[9] Section 19(1)(a) of the NSW Act.
[10] Sections 19(1)(b) and 19(2)(b) of the NSW Act.
[11] Section 19(1)(c)(i) of the NSW Act.
[12] Section 19(1)(c)(ii) of the NSW Act.
[13] Sections 19(1)(c)(iii) to 19(1)(c)(v) of the NSW Act.
[14] Section 20(1) of the NSW Act.
In summary:
(a)the Power of Attorney provides:
(i)in cl 1, that MS appoints PA to be his attorney, and, alternatively, his daughter, FR, if PA was not capable or alive when the Power of Attorney was needed, to exercise the powers conferred by Pt 2 of the NSW Act to do anything on MS's behalf that MS might lawfully authorise an attorney to do;
(ii)in cl 2, that MS gave the Power of Attorney with the intention that it would continue to be effective if he lacked capacity through loss of mental capacity after its execution. This complies with the requirement referred to in [16(a)(i)] above;
(b)the Power of Attorney attaches a certificate, dated 22 December 2008, said to be made under s 19 of the NSW Act. It identifies the witness to the Power of Attorney as being a solicitor, and a prescribed witness under s 19(2) of the NSW Act, meeting the requirement referred to in [16(a)(ii)] above. The certificate also contains statements that meet the requirements referred to in [16(a)(iii)] above; and
(c)the Power of Attorney is endorsed with an 'Acceptance by Attorney' signed by PA, meeting the requirement referred to in [16(b)] above.
On the medical evidence referred to below, we find that MS suffers from Alzheimer's Dementia. However, that diagnosis is not sufficient, under the terms of the Power of Attorney, to authorise the appointed attorney to exercise the powers conferred.
The form on which the Power of Attorney was completed provided, in cl 3, five options for the circumstances in which the power of attorney would operate. The first four options have been crossed out in the Power of Attorney. The fifth option is stated, in the form, to be 'other'. In the Power of Attorney, the handwritten words 'If and when I don't have capacity to make rational decisions as certified by a medical practitioner' appear next to the word 'other'.
PA has provided a certified copy of a certificate by Dr KD, dated 4 October 2024, which states that MS has:
… multiple complex medical conditions along with Alzheimer's Dementia which makes him incapacitated to carry out his financial matters on his own independently.
The Tribunal obtained a report from Dr KD dated 29 November 2024, which says that assessments suggested MS had a cognitive and memory impairment. Dr KD said that MS was incapable of making reasonable decisions in relation to simple financial matters and said that as MS:
… showed signs of short term memory loss and unable (sic) to register new information it appears that he is not able to manage complex financial matters.
However, Dr KD also said that he was unsure whether MS was capable of making reasonable decisions about complex financial decisions and referred to an assessment about to be performed by Dr GS. It appeared that Dr KD was reluctant to proffer an opinion in the absence of that assessment.
We have been provided with a report by Dr GS, dated 6 December 2024. Dr GS says that he assessed MS on that day, with the assessment being focused on MS's capacity to make decisions on complex financial matters. Dr GS said that MS understood the purpose of the assessment and had a reasonable insight into his assets and knowledge of future investment plans. Dr GS said, however, that MS lacked capacity to safely manage the investments and new ventures. Dr GS concludes his report by saying:
Therefore, I recommend his current POA [PS] to be enacted to continue to manage his complex financial matters including new investments. As [MS] has reasonable understanding, at this point in time, it is recommended that the POA could involve [MS] in the discussion process wherever possible.
At the hearing on 29 April 2025, we questioned whether the evidence met the requirements of cl 3 of the Power of Attorney.
As a result, the applicant sought an adjournment, and subsequently provided us with a further medical certificate from Dr GS, dated 23 May 2025, which says:
Based on my examination and my knowledge of [MS's] medical history, I certify that:
[MS] DOES NOT HAVE the capacity to make rational decisions in relation to financial matters.
We accept that this certificate satisfies the requirements of cl 3 of the Power of Attorney. It is implicit, in our view, that the reference in cl 3 to the ability to make rational decisions is a reference to the ability to make rational decisions of the type that the Power of Attorney confers authority on the appointed attorney to make, namely financial decisions.
Conclusion on whether the power of attorney was validly created
For the reasons set out in [13] to [26] above, we are satisfied on the balance of probabilities that the Power of Attorney complies with the requirements of the NSW Act and is operative under its terms.
Does the Power of Attorney correspond sufficiently, in form and effect, to a power of attorney created under s 104 of the GA Act?
Section 102 of the GA Act defines 'enduring power of attorney' to mean a power of attorney created under s 104 or recognised by the Tribunal under s 104A(2).
As has been said, s 104A(2)(a) of the GA Act requires us to be satisfied that the Power of Attorney 'corresponds sufficiently, in form and effect' to a power of attorney created under s 104 of the GA Act. Those words are not defined.
In their ordinary meaning, relevantly:
(a)'correspond' means 'have a similar or analogous character, form or function';
(b)'sufficient' means 'adequate (esp. in quantity or extent) for a certain purpose; enough (for a person or thing, to do something)' and 'achieving an object';
(c)'form' means 'a set or fixed order of words; the customary or legal method of drawing up a document'; and
(d)'effect' means 'something accomplished, caused, or produced; a result, a consequence'.[15]
[15] Shorter Oxford English Dictionary (5th ed, 2002).
The legislature has determined, in Western Australia, that the criteria set out in s 104 of the GA Act are essential to the creation of an enduring power of attorney in this State. The legislative intent of s 104A(2)(b) of the GA Act is apparently to ensure that only instruments created elsewhere that sufficiently meet the requirements of s 104 will be allowed to operate in Western Australia. However, s 104(2)(b) does not require exact correspondence. Whether or not there will be sufficient correspondence in the case of divergence in form or effect requires consideration of the purpose of the specific criteria under s 104.
MS's age and capacity at the date of execution
Section 104(1a) of the GA Act requires that a person who is over the age of 18 and has full legal capacity may create an enduring power of attorney. MS was 73 years old at the time the Power of Attorney was executed in 2008. There is no dispute that, at that time, 17 years ago, he had full legal capacity. Certainly, there is no evidence to rebut the presumption of capacity in s 4(3) of the GA Act.
Number of appointed attorneys
Under s 102 of the GA Act, a donee of an enduring power of attorney is said to include two persons appointed whether jointly or severally to act under a power of attorney. It has been held that this means that no more than two people can be appointed as attorneys.[16] Section 104B of the GA Act allows for a substitute donee to be appointed in addition to the donees.
[16] Ricetti v Registrar of Titles [2000] WASC 98 at [11] (Miller J).
The Power of Attorney appoints a single attorney, PA, with a single substitute. Accordingly, it complies with the requirements of s 102 and s 104B of the GA Act.
Commencement of the power
Under s 104(1)(a) of the GA Act, an enduring power of attorney may be created by an instrument that is in the form, or substantially in the form, of Form 1 in Sch 3 of the GA Act (Form 1). In particular, Form 1 provides that the donor of the power of attorney select one of two declarations, by deleting one of the two. These options, which reflect the requirements of s 104(1)(b) of the GA Act, are that the power of attorney:
(a)will continue in force notwithstanding the donor's subsequent legal incapacity;[17] or
(b)will be in force only during any period when a declaration by the State Administrative Tribunal that the donor does not have legal capacity is in force under s 106 of the GA Act.[18]
[17] Section 104(1)(b)(i) of the GA Act.
[18] Section 104(1)(b)(ii) of the GA Act.
The provision of these options in the instrument creating the power of attorney does not have the effect of ensuring authority conferred by the power of attorney will be able to be exercised after the donor's incapacity. That is achieved by s 105 of the GA Act, which provides that:
(1)Notwithstanding any rule of law to the contrary or anything in this Act, an enduring power of attorney that is in force is not affected by the subsequent legal incapacity of the donor of the power.
(2)An act done under an enduring power of attorney that is in force by the donee of the power during a period of legal incapacity of the donor is as effective as if the donor were of full legal capacity.
There is a distinction in the legislation between when the instrument is effective to create the power of attorney, and the date it will be 'in force'. The former is the date on which the instrument complies with the requirements of s 104, including that it be endorsed with the acceptance of the donees and substitute donees.[19] The latter is the date on which the authority conferred by the instrument may be exercised.
[19] Section 104(2)(b) of the GA Act.
In the case of a power of attorney which provides that it will continue in force notwithstanding the donor's subsequent legal incapacity, the date on which the power of attorney is created and the date on which it takes force are apparently the same: that is the date that the instrument complies with the requirements of s 104. However, that is not the case where the terms of the power of attorney provide that it will be in force only when the Tribunal makes a declaration the donor does not have legal capacity: that is at some time after the power of attorney is created.
Accordingly, it appears that the inclusion of one of the two options referred to at [35] above serves both as the expression of the donor's intent that the authority conferred will survive the donor's incapacity, and identifies the point at which that authority may be exercised.
The Power of Attorney uses similar language to both s 104(1)(a) and s 104(1)(b) of the GA Act. In particular, as has been said:
(a)cl 2 provides that the power of attorney is given with the intention that it will continue to be effective if MS lacks capacity through loss of mental capacity after its execution; and
(b)cl 3 provides that the power of attorney operates if and when MS does not have capacity to make rational decisions as certified by a medical practitioner.
No contradiction between cl 2 and cl 3
The Senior Member considered that cl 2 and cl 3 contradicted one another, finding that the effect of cl 2 was that the power of attorney came into effect immediately and the effect of cl 3 was that the power of attorney would commence in the future, when a medical practitioner declared MS lacked capacity.[20]
[20] MS [2025] WASAT 13 at [30] to [33] and [35].
If that were the case, the Power of Attorney could not be said to correspond sufficiently with a power created under s 104 of the GA Act, as s 104(1)(b) requires the donor choose only one of the two options set out in that section.
It is apparent from the Senior Member's reasons that, at the hearing before the Senior Member, the applicant's counsel accepted there was an inconsistency.[21] However, at the hearing before us the applicant's counsel submitted that the two clauses address different aspects of the power, with cl 2 concerning the survival of the power of attorney after incapacity and cl 3 concerning the commencement of authority to exercise the authority conferred by the power.
[21] MS [2025] WASAT 13 at [36] to [37] and [39] to [40].
We are satisfied that there is no inconsistency between cl 2 and cl 3.
In our view, the effect of cl 2 is to express MS's intention that the Power of Attorney continues to be effective to appoint PA as MS's attorney despite MS's later incapacity. Section 21(1) of the NSW Act, being the effective equivalent of s 105 of the GA Act, then ensures that the Power of Attorney, having been created in compliance with s 19(1) of the NSW Act, survives MS's incapacity.
In our view, the effect of cl 3 is to identify the date on which the power of attorney will take force, that is when the authority conferred on PA may be exercised. Clause 3 makes the exercise by PA of that authority conditional upon PA obtaining confirmation of MS's lack of capacity, in the form of a medical certificate.
We find support in this construction from the following:
(a)cl 2 repeats the wording required under s 19(1)(a) of the NSW Act for the creation of an enduring power of attorney, as opposed to a power of attorney which does not survive incapacity;
(b)at the time the Power of Attorney was executed, the form prescribed under the NSW Act did not include any specific wording for a power of attorney that would only take effect upon the donor's incapacity, as is found under s 104(1)(b) of the GA Act. However, the form for an enduring power of attorney currently prescribed under the NSW legislation[22] allows the donor to select an option that the power will only operate 'Once a medical practitioner considers that I am unable to manage my affairs (and provides a document to that effect).' The wording of s 19(1) of the NSW Act is the same now as it was at the time the Power of Attorney was executed, and the current form includes a clause with the same terms as cl 2 of the Power of Attorney. In our view, this suggests that the only purpose of cl 2 in the prescribed form was to meet the legislative requirement under s 19(1)(a) of the NSW Act, to ensure that the powers conferred by the donor survived the donor's incapacity, and not to identify when the authority will operate, or be in force; and
(c)as has been said, cl 3 provides that the Power of Attorney operates when MS does not have capacity to make rational decisions. However, the standard options provided in the prescribed form executed by MS included that the power of attorney would operate immediately, or when the attorney accepts the appointment, or between specified dates, or when the attorney considers that the donor needs assistance in managing their affairs. In other words, the form of the instrument envisaged that a power of attorney may not operate immediately, but rather sometime after its execution. This weighs against the effect of cl 2 being that the powers conferred by the Power of Attorney are exercisable immediately.
Incapacity certified by medical certificate/declaration of a tribunal
[22] Powers of Attorney Regulation 2024 (NSW) Sch 2 Form 2.
Construed in this way, the combined effect of cl 2 and cl 3 of the Power of Attorney is the same as an election made under s 104(1)(b)(ii), save that the GA Act requires a declaration by the Tribunal under s 106, that the donor does not have legal capacity, to trigger the attorney's right to exercise the power conferred, rather than a medical certificate that MS does not have capacity to make rational decisions.
We do not consider that this precludes a finding that the Power of Attorney corresponds sufficiently, in form and effect, to a power created under s 104 of the GA Act.
A declaration under s 106 of the GA Act would be made on the basis of medical evidence as to the donor's lack of capacity, which is effectively what is required under cl 3.
In addition, the question of whether there is 'sufficient correspondence' must be considered in the context of the process that is undertaken under s 104A(2) of the GA Act before a power of attorney will be recognised. In this process, the Tribunal may also seek its own medical evidence of capacity, as was done in this case.
Both an application for a declaration under s 106 of the GA Act and for recognition of a power of attorney under s 104A require certain people be given notice of the application, including the donor of the power of attorney.[23] In addition, both a declaration under s 106 of the GA Act and recognition of a power of attorney under s 104A may be subsequently revoked.[24]
[23] See s 106(4), s 104A(3), s 41(1) and s 41(3) of the GA Act.
[24] See s 106(5) and s 104A(4) of the GA Act, respectively.
Accordingly, in our view, the terms of the Power of Attorney are sufficiently similar to the requirements of s 104(1)(b)(ii) of the GA Act to allow for its recognition.
That said, if we were not satisfied on the evidence that the opinion expressed in Dr GS's medical certificate was correct and were not satisfied that MS lacked capacity to make financial decisions, we would not be able to find that it was appropriate to recognise the Power of Attorney, as is required by s 104A(2)(b) of the GA Act. However, in this case, on the totality of the evidence before us to which we have referred, we are satisfied that MS does not have capacity to make financial decisions.
Number of witnesses
The Power of Attorney is witnessed by only one witness rather than two as is required by s 104(2)(a) of the GA Act. One of the witnesses required under that section must be authorised by law to take declarations.[25] If the other is not also a person authorised to take declarations, that witness must be 18 years or over and not a person appointed to be a donee or substitute donee.[26]
[25] Section 104(2)(a)(ii).
[26] Sections 104(2)(a) and (3) of the GA Act.
The requirement of two attesting witnesses would seem to have at least the following purposes:
(a)first, to identify the donor of the power and reduce the risk of an enduring power of attorney being created fraudulently, given that it will generally be exercised when the donor may not have capacity to remember conferring the power;
(b)second, to ensure there are witnesses who may be able to attest to the circumstances of the execution of the power, including any observations going to the apparent capacity and willingness of the donor to confer the power, although there is no requirement that the witness actually turn their mind to that issue;
(c)third, to ensure that there is an understanding by the donor that the conferral of an enduring power of attorney is a serious matter.
The provisions of the NSW Act for witnessing an enduring power of attorney, complied with by the Power of Attorney, are certainly equal to the provisions of the GA Act in meeting these purposes, if not greater, for the following reasons:
(a)under the NSW Act, an enduring power of attorney is required to be witnessed by a limited group of prescribed witnesses who apparently have some qualification to explain the effect of the instrument as required under s 19(1)(c)(i) of the NSW Act.[27] Under s 19(1)(c)(ii) of the NSW Act, the witness must also certify that the donor appeared to understand the effect of the power of attorney;
(b)only one of the witnesses to a power of attorney created under s 104 of the GA Act need be a person authorised to take declarations. A person is authorised to take declarations if they are in a profession included in Sch 2 of the Oaths, Affirmations and Statutory Declarations Act 2008 (WA), which identifies the members of about 48 occupations as authorised witnesses. Most of these are not likely to be able to explain the effect of the instrument, and they are not required to do so. In addition, there is no requirement that the witnesses turn their minds to the issue of whether the donor appeared to understand the effect of the power of attorney.
[27] See s 19(2) of the NSW Act, which specifies as 'prescribed witnesses' a registrar of the local court, an Australian legal practitioner, a licensee under the Conveyancers Licensing Act 2003 (NSW), or an employee of the NSW Trustee and Guardian, or a trustee company within the meaning of the Trustee Companies Act 1964 (NSW), who has completed a prescribed course of study for the purposes of becoming a prescribed witness, a legal practitioner qualified overseas, and other persons or person belonging to a class of persons prescribed by regulation. Currently, there are no witnesses prescribed by regulation for the purposes of s 19(2) of the NSW Act.
Accordingly, we consider that in complying with the requirements of the NSW Act for witnessing an enduring power of attorney, the Power of Attorney corresponds sufficiently to the provisions for witnessing a power of attorney under s 104(2)(a) of the GA Act.
Endorsement of the attorney's acceptance of the power
The Power of Attorney is endorsed with the PA's acceptance of the appointment. FR has accepted her appointment as PA's substitute in the same way. This conforms with the requirements, under s 104(2)(b) of the GA Act, for endorsement of the acceptance by a donee and substitute donee of an enduring power of attorney created in Western Australia.
Handwritten changes that are not initialled
As we have said, the Power of Attorney is on a standard form with handwritten deletions and insertions. Only one change is initialled by the signatories, which is a handwritten change to a handwritten insertion of PA's name and address, where the street number of the address has been changed. As PA's counsel points out, this is the only change to the handwritten insertions in the Power of Attorney. It may be inferred that it was for that reason that this change was initialled.
PA's counsel has referred us to ZPP v ZPO,[28] where the Appeal Panel of the Civil and Administrative Tribunal of NSW did not take issue with the original tribunal's recognition of a power of attorney notwithstanding that a date was altered but not initialled but was in the same block as the signature. That case was somewhat different. MS's signature does not appear on the first page of the Power of Attorney, where the donee of the power, and the substitute are named, and cl 3 appears.
[28] ZPP v ZPO [2020] NSWCATAP 288.
However, Form 1[29] also requires additions or amendments, which may be made by hand. There is no requirement in the GA Act that amendments be initialled, nor are there any such instructions on Form 1, although there is an instruction about the need to delete one of two options about when the power will come into force.
[29] Schedule 3 of the GA Act.
An initialled amendment provides evidence that a change reflects the intentions of the person signing the document. However, the same can be said of the requirement for witnesses. In this case, the Power of Attorney has been witnessed by a person who has also stated that they have explained the effect of that document to MS before it was signed. There is no suggestion that the Power of Attorney does not reflect MS's intentions at that time. Indeed, on the evidence he still wants PA to act as his attorney.
In the circumstances, the fact that handwritten additions and changes to the form have not been initialled does not alter our view that the Power of Attorney conforms sufficiently to a power of attorney created under s 104 of the GA Act. For the sake of completeness, in our view, this fact also does not support a finding that it is not appropriate to recognise the Power of Attorney.
Conclusion on whether the Power of Attorney corresponds sufficiently
For the reasons given, we are satisfied that the Power of Attorney corresponds sufficiently, in form and effect, to a power created under s 104 of the GA Act.
Is it appropriate to recognise the power of attorney
Section 104A(2)(b) of the GA Act requires us to be satisfied that it is appropriate to recognise the Power of Attorney, in addition to being satisfied that it corresponds sufficiently to a power created under s 104 of the GA Act. This is clearly an additional requirement.
The GA Act does not identify any considerations that the Tribunal must take into account in determining whether it is appropriate to recognise a power of attorney.
Where a statute confers an unconfined discretion, the factors the Tribunal may take into account are also unconfined, subject to any limitations that may be found within the subject matter, scope and purpose of the statute.[30] In particular, we agree with the Senior Member's observation that the discretion must be guided by the principles in s 4 of the GA Act, including that the primary concern must be what is in the best interests of the donor of the power of attorney for which recognition is sought.[31] In addition, we must take that person's wishes into account.[32]
[30] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at page 40 (Mason J).
[31] MS [2025] WASAT 13 at [55].
[32] Section 4(7) of the GA Act.
The evidence supports a finding, which we make, that PA wants to establish a deposit account for MS at the Perth Mint, to allow PA to buy and sell gold and other precious metals on MS's behalf. However, the Perth Mint will not allow PA to open an account in MS's name based on the Power of Attorney unless it is recognised under Western Australian law.
PA's evidence was to the effect that MS has significant cash reserves available for investment and that such an investment would not affect his income stream. PA said that his intended investment approach was conservative and focused on preservation of value. In his evidence he has explained the reasons why he considers that the proposed investment would work to preserve the value of MS's capital reserves.
It appears from PA's evidence, which we accept, that MS's financial resources are more than adequate to meet his needs independently of the amount PA seeks to invest.
Whilst we are not called on to approve a particular investment, a finding that the investment proposed was ill considered may provide a basis for finding that it was not appropriate to recognise the Power of Attorney. However, on PA's evidence, the merit of the proposed investment appears to have been carefully considered.
In refusing the application, the Senior Member relied, in part, on there being no apparent risk to MS's finances or his security of accommodation, health or wellbeing if the investment was not made.[33] In our view, the existence of a risk to MS's security if an investment is made may be a reason for finding that it is not appropriate to recognise the power. In addition, the existence of a risk to MS' security if an investment is not made may support a finding that it is appropriate to recognise the power. However, in our view, the absence of a risk to MS's security does not support a finding that it is not appropriate to recognise the Power of Attorney.
[33] MS [2025] WASAT 13 at [56].
We accept PA's evidence that his goal is to ensure that the value of MS's estate is preserved. This could be said to be in MS's best financial interests. Whilst MS's needs are currently being met, the future cannot be known. In any event, in our view, it is reasonable for an attorney to seek to preserve the value of a donor's estate.
It would have been relevant to our consideration of whether it was appropriate to recognise the Power of Attorney had MS objected to the investment or to PA continuing to act as his attorney. However, as we have said, MS supports PA acting as his attorney and making this investment. In addition, in our view, in the absence of evidence of a particular reason why it would be inappropriate, and where there is apparently a legitimate purpose for seeking recognition, it would generally be appropriate to recognise the arrangements that a person put in place for the administration of their estate when that person had capacity.
We do not consider that the fact that MS has no property in Western Australia is a reason to find that it is not appropriate to recognise the power of attorney, in the circumstances where there is evidence of an apparently legitimate and considered investment proposal in Western Australia that cannot be accessed without recognition of the Power of Attorney. If MS had property in Western Australia, PA could have sought appointment as MS's administrator of that property, pursuant to s 67(1) of the GA Act. That course is not open where there is no property in Western Australia. Whilst the Tribunal does not have power to appoint an administrator for a person who is not resident or domiciled in Western Australia unless there is property in Western Australia, there is no such limitation on the power to recognise a power of attorney.
Conclusion on whether it is appropriate to recognise the Power of Attorney
For the reasons given, we are satisfied on the balance of probabilities that it is appropriate to recognise the Power of Attorney.
Conclusion
For the reasons we have given, we are satisfied on the balance of probabilities, that:
(a)the Power of Attorney was validly created under the law of New South Wales;
(b)the Power of Attorney corresponds sufficiently in form and effect to a power of attorney created under s 104 of the GA Act to enable us to make the order sought; and
(c)it is appropriate to recognise the Power of Attorney as an enduring power of attorney for the purposes of Pt 9A of the GA Act.
Accordingly, we will recognise the Power of Attorney as an enduring power of attorney for the purposes of Pt 9 of the GA Act.
Orders
We make the orders in the following terms:
1.Pursuant to s 104A(2) of the Guardianship and Administration Act 1990 (WA), the General Power of Attorney dated 22 December 2008, made by [MS], as donor, appointing [PA] as attorney under the Powers of Attorney Act 2003 (NSW), is recognised as an enduring power of attorney for the purposes of Pt 9 of the Guardianship and Administration Act 1990 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
FB
Associate to the Deputy President Judge Vernon
4 JUNE 2025
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