MS
[2025] WASAT 13
•12 FEBRUARY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: MS [2025] WASAT 13
MEMBER: DR M EVANS-BONNER, SENIOR MEMBER
HEARD: 16 JANUARY AND 10 FEBRUARY 2025
DELIVERED : 10 FEBRUARY 2025
PUBLISHED : 12 FEBRUARY 2025
FILE NO/S: GAA 5957 of 2024
MS
Represented Person
PA
Applicant
Catchwords:
Guardianship and administration - Enduring power of attorney - Application under s 104A(1) of the Guardianship and Administration Act 1990 (WA) (the Act) for recognition of NSW power of attorney - Whether power of attorney created in NSW should be recognised as an enduring power of attorney in WA - Whether corresponds sufficiently, in form and effect, to an enduring power of attorney created under s 104 of the Act - Consideration of 'appropriate to do so' in s 104A(2)(b) of the Act - Intention of attorney to open a trading account for the donor at the Perth Mint - No estate in WA - Best interests - Application for recognition of power of attorney dismissed
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(1), s 4(2), s 4(7), s 67(1), s 104, s 104(1), s 104(1)(b), s 104(1)(b)(ii), s 104(2), s 104(3), s 104A(1), s 104A(2), s 104A(2)(b), s 104A(3), Sch 3
Powers of Attorney Act 2003 (NSW), s 19
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Represented Person | : | Non-appearance |
| Applicant | : | Mr Graham |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | Graham & Associates Lawyers |
Case(s) referred to in decision(s):
CS and JS [2005] WASAT 285
IMP [2006] WASAT 57
IRC [2017] WASAT 83
Kronenberg v Bridge [2014] TASFC 10
Re CY; ex parte PY [2011] WASAT 156
ZPP v ZPO [2020] NSWCATAP 288
REASONS FOR DECISION OF THE TRIBUNAL:
(The application was heard on 10 February 2025. An oral decision was delivered on 10 February 2025. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to improve clarity of expression and setting out).
The application
The application was made on 12 November 2024 by PA concerning his father, MS.
PA is asking this Tribunal to recognise a power of attorney made by his father in New South Wales to be recognised as an Enduring Power of Attorney (EPA) in WA.
The power of the attorney is titled 'General Power of Attorney'. In that document MS, as donor, appointed PA to be his attorney. It was made on the 22 December 2008. I will refer to this document as the Power of Attorney.
The application has been made under s 104A(1) of the Guardianship & Administration Act 1990 (WA). I will refer to this legislation as the Act.
In summary, s 104A(1) of the Act provides that the donee of a power of attorney (in this case PA) created under the laws of another state, territory or country, may apply to this Tribunal for an order recognising that power of attorney as an EPA in WA.
PA's application stated that he wanted to have the Power of Attorney recognised in WA so that he could open an account for his father at the Perth Mint. This would allow him to buy and sell gold and other precious metals on behalf of his father at the Perth Mint. The Perth Mint were refusing to open the account based on the Power of Attorney and required recognition of the document in WA to do so.
PA's evidence was that his father had $900,000 available in cash that was available to invest with the Perth Mint. He attested that investing that money would not affect his father's income stream which was primarily derived from real estate income from holdings in NSW and superannuation.
The proceeding
The hearing commenced on 16 January 2025, but MS was only given seven days' notice of the hearing (instead of 14 days' notice of the hearing, as is required by s 104A(3) of the Act). For reasons delivered orally that day, I adjourned the hearing so that MS could be given 14 days' notice because there were no exceptional circumstances that would require the shortening of the time for giving notice.
The hearing resumed today, on 10 February 2025, and I am satisfied that MS was given 14 days' notice of the hearing in accordance with the Act because I have a notice of service dated 16 January 2025.
At both hearings, PA attended by telephone and was represented by Mr Graham who attended in person. MS did not attend either hearing.
On 16 January 2025, before adjourning the hearing, I raised with Mr Graham several questions I had regarding whether the Power of Attorney corresponded sufficiently in form and effect with an EPA created in WA under s 104 of the Act that he may wish to address at the resumed hearing.
Donee's views and wishes
I am required, under s 4(7) of the Act, to as far as possible, to seek to ascertain the views and wishes of MS.
As he was not present, I was unable to ascertain his views, however, in a written statement PA said that:[1]
My father is aware that I intend to put his savings into a deposit at the Perth Mint. He is happy with that. I have discussed this option with him many times over the last decade and he always thought it a good idea.
[1] Statement of PA dated 11 December 2024.
PA also confirmed this at both hearings.
This evidence suggests that MS is agreeable to the power of attorney being recognised.
Documents I have considered
I have considered the following documents in reaching my decision:
•PA's application;
•Witness statement dated 14 January 2025 from PA, comprising 23 paragraphs;
•A statement from PA titled, 'Grounds for not involving MS in the hearing';
•Certified copy of a document titled 'General Power of Attorney' made on the 22 December 2008 whereby MS appointed PA to be his attorney. This is the Power of the Attorney that PA is asking the Tribunal to recognise in WA;
•A letter dated 4 October 2024 from general practitioner, Dr D which states that MS has 'Alzheimer's ementia which makes him incapacitated to carry out financial matters on his own independently' and that he is living in an aged care facility in Queensland;
•A subsequent Medical Report from Dr D dated 29 November 2024 (attaching interview notes concerning the Psychogeriatric assessment scales);
•Letter from Dr S dated 6 December 2024 stating that MS 'lacks capacity to manage safely the investments and new ventures'; and
•Service Provider Report from the Facility Manager at the aged care facility where MS resides, dated 6 December 2024 which refers to a diagnosis of Alzheimer's dementia.
I have also considered submissions from Mr Graham in letters dated 7 February 2025 and 9 February 2025.
Should the power of attorney be recognised in WA?
The recognition of a power of attorney from another jurisdiction as an EPA in WA is not simply a 'rubber stamping' exercise by the Tribunal. There are statutory criteria that the Tribunal must have regard to under the Act when deciding whether discretion should be exercised to recognise the document as an EPA in WA.
Specifically, s 104A(2) of the Act sets out the factors the Tribunal needs to consider with respect to making an order recognising a power of attorney made in another jurisdiction in WA.
It provides:
(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.
Further guidance regarding the operation of s 104A(2) can be seen in other decisions of this Tribunal, including IRC [2017] WASAT 83; IMP [2006] WASAT 57 and Re CY; ex parte PY [2011] WASAT 156 (Re CY).
For example, in Re CY which concerned whether an EPA made in Victoria should be recognised in WA, Member Child (at [18] - [19]) explained the statutory questions that are relevant for the Tribunal to consider in an application under s 104A(2) of the Act. The learned Member explained:
For the Tribunal to recognise an EPA made in another jurisdiction pursuant to s 104A, 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 instrument 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 that it is appropriate to make the order for recognition. (s 104A(2))
To determine whether the donor has created a valid power of attorney under the Victorian legislation, the relevant legislation must be considered[.]
I respectfully agree with that approach.
In summary, the issues in these types of applications will be:
•Is the power of attorney valid in the other jurisdiction, in this case NSW? This would involve a consideration of whether the Power of Attorney was valid under the Powers of Attorney Act 2003 (NSW).
•Does it correspond sufficiently, in form and effect, to an EPA created under s 104 of the Act?
•Is it appropriate to recognise the power of attorney as an EPA in WA?
In my view, this application turns on the second issue. I have therefore addressed the second issue first. Depending on the answer to that issue, it may not be necessary for me to deal with the other issues, including the question of validity in NSW.
Does the Power of Attorney correspond sufficiently, in form and effect, to an EPA created under s 104 of the Act?
Section 104(1) provides:
(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.
The Power of Attorney signed by MS looks different in form to the power of attorney in Sch 3 of the Act. It is titled, 'General Power of Attorney', whereas the WA form is an 'Enduring Power of Attorney'.
It contains an additional part, 'Part 2 - Additional Powers and restrictions' which includes a gifting provision, an authority to the attorney 'to confer benefits on the attorney to meet the attorney's reasonable living and medical expenses' and authorises the 'attorney to confer benefits on any person he wishes'. The form in Sch 3 of the Act differs in that it allows the donor to specify that the EPA is subject to conditions or restrictions, but there is no provision for additional powers.
However, the primary, and in my view fundamental, issue with the Power of Attorney is that its commencement is ambiguous because there are two conflicting views in the document concerning when it comes into effect.
Specifically, in paragraph 2 the Power of Attorney declares that:
I give this power of attorney with the intention that it will continue to be effective if I lack capacity through loss of mental capacity after its execution.
That is, the Power of Attorney comes into effect immediately, and continues notwithstanding a loss of capacity.
In contrast, paragraph 3 (which provides an alternative to paragraph 2 in that it allows an election as to when the power of attorney comes into effect), has been crossed out and there is a handwritten sentence, which is not initialled, which says that the Power of Attorney operates:
If and when I don't have capacity to make rational decisions as certified by a medical practitioner.
That is, the Power of Attorney commences in the future, at such time as a medical practitioner declares that the donor lacks capacity.
Neither paragraph 2, nor the handwritten sentence, are initialled. An amendment was, however, made to the attorney's address in paragraph 1 of the Power of Attorney, which the donor, attorney, substitute attorney and witness have initialled. Mr Graham drew my attention to the NSW case of ZPP v ZPO [2020] NSWCATAP 288, where the Appeal Panel of the Civil and Administrative Tribunal of NSW did not take issue with the original Tribunal's recognition of the validity of a power of attorney notwithstanding that a date was altered but not initialled because it appeared in the same block as the full signature. Thus, the circumstances of that case are different to this one, but I understand the point to be made by Mr Graham was that the absence of paragraphs being initialled may not necessarily affect the validity of the document.
Putting aside any issues concerning paragraphs 2 and 3 not being initialled, we are still left with two clauses that contradict one another.
To resolve this inconsistency, Mr Graham submitted that the handwritten sentence in paragraph 3 should prevail over the printed words in paragraph 2.
In support he cited a decision of the Full Court of the Tasmanian Supreme Court Kronenberg v Bridge [2014] TASFC 10. In that case there was a dispute between the parties as to whether a contract prepared on a standard fixed price form which included the handwritten words, 'As a cost plus contract' beside the heading 'The contract price' was a fixed price or a cost plus contract. The Court, at [23] - [26], referred to cases where 'special conditions added to a standard form of contract have been held to prevail over inconsistent provisions in the standard form'. The Court concluded that the handwritten words ' "as a cost plus contract" were intended by the parties to have contractual effect and to prevail over any inconsistent provisions in the standard form of contract'.
However, the problem with the Power of Attorney in this case is that the ambiguity is apparent on the face of the document. When one thinks about how an EPA is to be used, a bank, land titles office, insurance company and the like, must be able to accept that document at face value. They are not in a position to interpret the document with reference to principles of statutory interpretation or contract law.
Mr Graham also submitted that in cases of inconsistency between two or more provisions in an instrument that:[2]
•specific provisions prevail over inconsistent general provisions; and
•written or typed special clauses prevail over printed standard terms.
[2] See Herzfeld and Prince, Interpretation, Second Edition (Lawbook Co, 2020) at [22.110].
With respect to the Power of Attorney in this application, Mr Graham submitted that the handwritten sentence in paragraph 3 was a specific provision and should prevail over paragraph 2 which was a general provision. He also submitted that as the sentence in paragraph 3 was handwritten, it should prevail over paragraph 2 which was part of the standard form.
I am not persuaded by this argument. I do not agree that these provisions can be characterised as specific and general. That is because of the wording of s 104(1)(b) of the Act, which makes it clear, through the use of the words 'either' and 'or', that an election must be made by the donor about when the EPA takes effect. It can either take effect immediately and will continue in force notwithstanding the donor's subsequent legal incapacity; or it will come into force at some time in the future when the State Administrative Tribunal declares that the person does not have capacity (my emphasis). Only one of these options can be selected.
Thus paragraphs 2 and 3 of the Power of Attorney plainly contradict each another and are not consistent with an EPA in WA which requires this election to be made. Put differently, the document would not be effective in WA if both options were included.
I also observe, with respect to s 104(1)(b)(ii) of the Act which provides for a power of attorney being in force when there is a declaration of incapacity, requires a declaration by the Tribunal and not simply a medical practitioner, as has been expressed in the handwritten sentence in the Power of Attorney.
There is also a proviso in the Power of Attorney that, 'If no option is selected or the options chosen are unclear or inconsistent, I intend that the power of attorney will operate immediately, or, if clause 2 is not crossed out, when my attorney accepts, or each of my attorneys accepts, the appointment'. Contrary to Mr Graham's submissions that I outlined earlier, that wording suggests that paragraph 2 should prevail, but in my view, it is insufficient to remedy the ambiguity, and is not an option available in WA in the form in Sch 3, or otherwise in the Act which requires a specific election about when the EPA comes into effect to be made.
Further, s 104(2) of the Act provides, in part, that:
(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)[.]
Those qualifications are that the witness is over the age of 18 and not appointed to be a donee or substitute donee.
The Power of Attorney has only been witnessed by one witness who is a 'solicitor'. The wording of s 104(2) of the Act is that '[a]n instrument is not effective' unless there are two witnesses, one of whom is authorised by law to take declarations, and the other who is over the age of 18, and who is not a donee or substitute donee (see also s 104(3) of the Act).
Mr Graham has submitted that the NSW statutory regime, which requires one signature by a legal practitioner who has explained the effect of the power of attorney to the donor (see Powers of Attorney Act 2003 (NSW), s 19) provides greater assurance that the donor understands the nature and effect of the document. He submitted that it is a higher standard than having two people as witnesses.
Having a legally qualified witness who explains the effect of the document to the donee, may indeed have the advantages pointed out by Mr Graham. However, the express wording of s 104(2) of the Act is very specific in that it provides that the EPA 'is not effective' unless there are two signatures.
Mr Graham also referred to the Tribunal's decision in CS and JS [2005] WASAT 285, where the Tribunal recognised a South Australian power of attorney in WA, even though it was only signed by one witness. Unfortunately, the Tribunal did not provide reasons as to why it thought one witness was sufficient and given the specific wording in s 104(2) of the Act which requires the two witnesses, I am not persuaded that I should adopt the same approach as the Tribunal in CS and JS.
As such, due to the numerous differences and the ambiguities I have just outlined, I am satisfied, and I find, that the Power of Attorney does not correspond sufficiently, in form and effect, to an EPA created under s 104 of the Act.
The answer to this question means that it is unnecessary for me to consider the first issue of validity in NSW.
Is it appropriate to recognise the power of attorney in WA?
Given the scarcity of caselaw on this issue, I will briefly make some observations about the meaning of 'appropriate to do so' in s 104A(2)(b) of the Act.
Those words indicate that the Tribunal has a broad discretion when deciding whether to recognise a power of attorney as an EPA in WA.
That discretion must, in my view, be guided by the principles stated in s 4 of the Act, in particular, that in dealing with proceedings commenced under the Act, my primary concern is the best interests of MS (see s 4(1) and s 4(2) of the Act).
MS resides in an aged care facility in Queensland and has assets in NSW. PA resides in the ACT. There is no existing connection to WA, and no assets that require management in WA. There is, for example, no property in WA that needs to be sold to fund MS's living or medical expenses, which would be in his best interests.
In contrast, PA is asking the Tribunal to recognise the Power of Attorney because PA wishes to invest in buying and selling gold and precious metals on behalf of his father at the Perth Mint, and the Perth Mint will not open the account to permit the trading without that official authority.
Put simply, PA wishes to pursue an investment opportunity on behalf of his father. He has experience and knowledge of investment opportunities of this type through the Perth Mint, having invested there himself. He believes that the Perth Mint offers a safer and secure investment opportunity that is relatively low risk.
However, there is no risk to MS's finances, nor to his security of accommodation, health or wellbeing if this investment opportunity cannot be pursued because the Power of Attorney is not recognised as an EPA in WA.
Mr Graham has also submitted that if MS had executed a WA EPA at the same time as the Power of Attorney, he would be in no different position as he is in now. I am not convinced that submission assists very much. The fact is that he did not, and that he executed the Power of Attorney in NSW, and therefore the WA provisions concerning recognition apply.
Mr Graham also submitted that PA could not apply for an administration order because he has no assets in WA. That is correct because s 67(1) of the Act provides that an administration order can be sought for a person who is not domiciled in WA, but that any such an order would be limited to the person's estate in WA.
Mr Graham also correctly pointed out that MS would not be able to execute a new WA EPA because he lacks capacity to do so, having been diagnosed with Alzheimer's dementia.
However, in my view, it does not necessarily follow that the absence of other options makes it 'appropriate to' recognise the Power of Attorney in WA. In contrast, the contemplation by the Act that an administration order is limited to the person's estate in WA and could not be made if the person had no estate in WA, tends to suggest that it would not be appropriate to recognise the Power of Attorney as an EPA in WA in the same circumstance.
More specifically, the desire to pursue an investment opportunity in WA when there is no other WA connection is insufficient to make it appropriate to recognise the Power of Attorney in WA.
I am not satisfied that it is otherwise in MS's best interests to recognise the Power of Attorney as an EPA in WA.
Overall, I am not satisfied that it is appropriate to recognise the Power of Attorney in WA.
Conclusion
In conclusion, my findings are:
•I am not satisfied that the Power of Attorney corresponds sufficiently in form and effect to an EPA created under s 104 of the Act.
•I am also not satisfied that it is appropriate to recognise the Power of Attorney as an EPA in WA.
It is therefore unnecessary for me to deal with the issue of validity in NSW.
Orders
The Tribunal orders:
1.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR M EVANS-BONNER, SENIOR MEMBER
12 FEBRUARY 2025
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