MS - [2025] WASAT 13 | CaseChat AU

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…

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 MS

Details

AGLC: MS [2025] WASAT 13
Case: [2025] WASAT 13
Decision Date: 12 FEBRUARY 2025

CaseChat Overview and Summary

The matter involved MS, who sought recognition of a New South Wales power of attorney under section 104A(1) of the Guardianship and Administration Act 1990 (WA). The dispute centred on whether the New South Wales power of attorney should be recognised as an enduring power of attorney in Western Australia and whether it sufficiently corresponds to an enduring power of attorney created under section 104 of the Act. Additionally, the court had to consider whether it was appropriate to recognise the power of attorney under section 104A(2)(b) of the Act, given the intention of the attorney to open a trading account for the donor at the Perth Mint, and the absence of any estate in Western Australia.

The court was required to determine whether the power of attorney met the legislative criteria for recognition and if it aligned with the intent and effect of an enduring power of attorney as defined by the Act. This involved assessing the document's form and effect against the requirements set out in the Act. Furthermore, the court had to consider the appropriateness of recognising the power of attorney under the circumstances presented, including the specific intention to open a trading account and the absence of any estate in Western Australia. The best interests of the donor were also a crucial consideration in the decision-making process.

In its reasoning, the court found that the New South Wales power of attorney did not sufficiently correspond to an enduring power of attorney as required by the Act. The court determined that the document did not meet the necessary criteria in terms of form and effect, and therefore could not be recognised as such in Western Australia. Additionally, the court concluded that it was not appropriate to recognise the power of attorney given the specific circumstances, including the intention to open a trading account and the absence of any estate in Western Australia. As a result, the application for recognition of the power of attorney was dismissed.

The court ordered that the application for recognition of the New South Wales power of attorney as an enduring power of attorney in Western Australia be dismissed. The decision underscored the importance of strict adherence to the statutory requirements for enduring powers of attorney and highlighted the necessity for documents to align closely with the legislative framework in the jurisdiction where recognition is sought.

Orders