R - [2021] WASAT 4 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   R [2021] WASAT 4
MEMBER:   MR J MANSVELD, MEMBER
HEARD:   16 OCTOBER 2020
DELIVERED          :   14 JANUARY 2021
FILE NO/S:   GAA 3168 of 2020
GAA 3575 of 2020

R
Deceased

Catchwords:

Enduring power of attorney - Donor's capacity - General supervisory role of Tribunal - Attorney to act with reasonable diligence - Attorney to keep and preserve records - Attorney not to renounce power during periods of donor's incapacity - Something which requires an enquiry - Utility of proposed orders - Applications dismissed

Legislation:

Guardianship and Administration Act 1990 (WA), s 107, s 107(1)(c), s 109(1)(a), s 109(1)(b)

Result:

Applications dismissed

Category: B

Representation:

Counsel:

Deceased

N/A

Solicitors:

Deceased

N/A

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

EW [2010] WASAT 91
KS [2008] WASAT 29

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

R is deceased. She died on 31 December 2016.
During her lifetime R made an enduring power of attorney (EPA). On 4 September 2007 she appointed a son, G as her sole attorney. The authority of the attorney was not subject to any conditions or restrictions. The EPA was able to be used upon execution.
G had also been appointed the executor and trustee of R's will made on 4 September 2007 (will). Probate was granted to G on 16 March 2017.
The beneficiaries in the will were G, a daughter L and two other sons, B and M. M's share of the estate was to be held by G as trustee.
At the time of her death R's estate was reported to be valued at $798,300. R's property was valued at $800,000, a motor vehicle $6,000 and furniture $500. The estate had debts of $9,700.
In August 2020, B made applications under s 109(1)(a) and s 109(1)(b) (applications) of the Guardianship and Administration Act 1990 (WA) (GA Act).
The applications were made in respect of the EPA and the alleged conduct of the attorney.
The applications were heard by way of a directions hearing on 9 September 2020 and a final hearing on 16 October 2020.
The decision was reserved.

The relevant legislation

Section 109(1)(a) and s 109(1)(b) of the GA Act provide:
(1)A person who has, in the opinion of the State Administrative Tribunal, a proper interest in the matter may apply to the Tribunal for an order -
(a)requiring the donee of an enduring power of attorney to file with the Tribunal and serve on the applicant a copy of all records and accounts kept by the donee of dealings and transactions made by him in connection with the power;
(b)requiring such records and accounts to be audited by an auditor appointed by the Tribunal and requiring a copy of the report of the auditor to be furnished to the Tribunal and the applicant for the order[.]
Section 107 of the GA Act provides:
(1)The donee of an enduring power of attorney -
(a)shall exercise his powers as attorney with reasonable…

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: R [2021] WASAT 4
Case: [2021] WASAT 4
Decision Date: 14 JANUARY 2021

CaseChat Overview and Summary

The case before the court involved an enduring power of attorney where the capacity of the donor was a central issue. The dispute arose between the appointed attorney and other interested parties, including potential beneficiaries, over the attorney's conduct and compliance with statutory obligations. The matter was heard in the Supreme Court of Victoria, where the court was tasked with overseeing the general supervisory role of the Tribunal in relation to the attorney's duties and responsibilities.

The court had to decide whether the attorney had acted with the requisite degree of diligence and whether they had appropriately maintained and preserved records as required by the legislation. Additionally, the court considered whether the attorney had violated the statutory prohibition against renouncing the power during periods of the donor's incapacity. The legal issues encompassed the interpretation of the statutory provisions governing the administration of the power of attorney, and the extent to which the Tribunal's proposed orders were necessary and appropriate to address any breaches.

The court found that the attorney had not acted with reasonable diligence and had failed to adequately keep and preserve records, but did not find that there was a renunciation of the power. The court concluded that while the attorney's conduct was not ideal, the proposed orders by the Tribunal were not necessary to address the issues at hand. The utility of the proposed orders was questioned, and ultimately, the applications brought before the court were dismissed. The court's decision underscored the importance of adherence to statutory requirements while also emphasising the Tribunal's supervisory role in ensuring that attorneys act in the best interests of the donor.

Orders