PUBLIC TRUSTEE OF WESTERN AUSTRALIA and VV

In the case of Public Trustee of Western Australia and VV, the dispute concerned the appointment of a trustee for a self-managed superannuation fund where the original trustee had become incapacitated. The court was required to determine whether authority should be given to the Public Trustee to exercise the powers as the trustee of the superannuation fund. The Guardianship and Administration Act 1990 (WA) provided the legal framework for this matter.

The primary legal issue was the interpretation of paragraph (h) of Part B of Schedule 2 of the Guardianship and Administration Act 1990 (WA). The court considered whether the authority to grant such powers should be limited to situations where the incapacity of the represented person did not terminate the represented person's powers under the trust. The court also had to determine whether the Public Trustee, as the legal personal representative of VV, should be granted authority to act as the trustee of the superannuation fund.

The court held that the provisions of the Guardianship and Administration Act 1990 (WA) were designed to serve the best interests of those who lack capacity to manage their own affairs. The court adopted a purposive interpretation of the Act, which prioritised the preservation of the property and financial resources of a disabled person. The court found that paragraph (h) should be construed more widely than a strict literal reading, as it would limit the scope for directions under that paragraph significantly. The court concluded that the power of the Tribunal to give authority to an administrator under paragraph (h) arises where there is a power vested in the represented person in the character of a trustee or a guardian at, or immediately before, the appointment of an administrator for the represented person, or where, as in this case, the power is vested in the represented person through his legal personal representative.

The court considered that it was appropriate to grant authority under paragraph (h) of Part B of Schedule 2 of the Guardianship and Administration Act 1990 (WA) in this case. The Public Trustee, as the legal personal representative of VV, assumes the role of trustee by virtue of the provisions of the superannuation deed. The fund exists for the sole benefit of the represented person. The exercise of power by the Public Trustee which had prompted the present application was very clearly in the represented person's financial interest. In those circumstances, the court found that a clear case where the grant of authority under paragraph (h) of Part B of Schedule 2 was appropriate.

The court ordered that the Public Trustee be granted authority to act as the trustee of the superannuation fund for VV, in their capacity as the legal personal representative. This decision ensures that the fund's status as a self-managed superannuation fund is preserved, and that the represented person's financial interests are protected.