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Case [2024] WASAT 2 8 April 2024

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   OR [2024] WASAT 2
MEMBER:   MS R BUNNEY, MEMBER
HEARD:   24 AUGUST 2023, 31 OCTOBER 2023 AND 27 NOVEMBER 2023
DELIVERED          :   18 JANUARY 2024
FILE NO/S:   GAA 3472 of 2023
GAA 3841 of 2023
OR
Donor
VR
Donee

Catchwords:

Enduring power of attorney - Donor with capacity - Application for records and accounts - Application for audit - Concurrent proceedings in Family Court of Western Australia - Obligations of an attorney - In connection with the power - Reasonable diligence - Protect the interests of donor - Conflict of interest - Separation - Costs - Duty of disclosure in Family Court

Legislation:

Family Court Rules 2021 (WA), Pt 13, r 197, r 199(2)
Family Law Act 1975 (Cth), s 79, s 121
Guardianship and Administration Act 1990 (WA), s 107(1), s 107(1)(a), s 109(1), s 109(1)(a), s 109(1)(b), Pt 9
State Administrative Tribunal Act 2004 (WA), s 62(1)(c), s 62(3), s 87(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Donor	:	In Person
Donee	:	Solicitor A

Solicitors:

Donor	:	N/A
Donee	:	Law Firm A

Case(s) referred to in decision(s):

AI & Anor and OF [2008] WASAT 87
BFO & ORS and KPW [2014] WASAT 68
DW and JM [2006] WASAT 366
EW [2010] WASAT 91
KS [2008] WASAT 29
Medical Board of Western Australia and Kyi [2009] WASAT 22
PHQ and LPQ [2015] WASAT 5
PT [2020] WASAT 147
SMM [2020] WASAT 85
Stanford v Stanford [2012] HCA 52

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

OR has the capacity to make his own decisions. He appointed his then wife, VR, as his attorney under an enduring power of attorney dated 5 October 2016 (EPA). OR alleges that VR later used the EPA to conduct four significant financial transactions, without his consent or knowledge, that were against his interests.
OR filed this application with the Tribunal on 2 August 2023 to seek orders requiring VR to file a copy of all records and accounts kept of the dealings and transactions made in connection with the EPA,[1] and an order requiring an audit of those accounts and records.[2]
[1] Guardianship and Administration Act 1990 (WA) (GA Act), s 109(1)(a).
[2] GA Act, 109(1)(b).
OR was arrested and incarcerated in early 2018. As the parties were married, OR believed that VR was managing their assets in their joint best interests. From the period of OR's arrest until mid-2021, VR continued to pay joint bills and manage the parties' finances.
VR gave evidence that she considered that the marriage was over at the time of the arrest in 2018. She communicated this to OR in 2021 by arranging for him to be served with applications for divorce and financial settlement in the Family Court of Western Australia (Family Court).
Around five months after OR's arrest in 2018, VR used the EPA to transfer around $96,500 from OR's bank accounts…

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.

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Details

AGLC: OR [2024] WASAT 2
Case: [2024] WASAT 2
Decision Date: 8 APRIL 2024

CaseChat Overview and Summary

In the matter of OR, the court was asked to address several issues concerning the obligations of an attorney under an enduring power of attorney. The case involved a dispute between the attorney, who was the son of the donor, and the donor's former spouse. The dispute centred around the attorney's management of the donor's financial affairs and the requests for records and an audit by the former spouse. The Family Court of Western Australia was tasked with determining the extent of the attorney's duties, the standard of care required, and the implications of a conflict of interest on the attorney's obligations.

The primary legal issues before the court were the scope and standard of the attorney's duties under the enduring power of attorney, the necessity for an audit and disclosure of financial records, and the consequences of a conflict of interest. The court had to interpret the terms of the enduring power of attorney and decide whether the attorney had acted within their powers, exercised reasonable diligence, and fulfilled their duty to protect the donor's interests. Additionally, the court needed to consider the impact of the conflict of interest on the attorney's obligations and the implications of concurrent proceedings in the Family Court of Western Australia.

The court found that the attorney had not acted within their powers or exercised reasonable diligence, particularly in relation to the duty to protect the donor's interests. The conflict of interest arising from the separation of the attorney and the donor was a significant factor in the court's decision. The court held that the attorney's failure to disclose certain information in the Family Court proceedings was a breach of their duty of disclosure. The court concluded that the attorney's actions were not in the best interests of the donor and ordered the attorney to provide the requested records and accounts, conduct an audit, and pay costs. The court emphasised the importance of an attorney acting in the donor's best interests and exercising reasonable care and diligence, particularly in the presence of a conflict of interest.

Orders