| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE AM; EX PARTE AM [2012] WASAT 137 (S) MEMBER : MR J MANSVELD (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 23 JULY 2012 FILE NO/S : GAA 3643 of 2011 GAA 3644 of 2011
GAA 4082 of 2011
GAA 538 of 2012
EX PARTE
AM
First applicant
BA
Second applicant
AND
JS
Represented person
Catchwords: Guardianship and administration Parties' legal costs in a proceeding of the Tribunal Starting position is that parties bear their own costs Party can apply for costs to be paid from the assets of a represented person Authority of an
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attorney under an enduring power of attorney to obtain legal representation for a represented person in Tribunal proceedings Legislation: Guardianship and Administration Act 1990 (WA), s 16(4)
State Administrative Tribunal Act 2004 (WA), s 87, s 87(1) Result: The represented person is to bear her own legal costs in respect to the proceedings before the Tribunal Category: B
Representation: Counsel:
First applicant : N/A
Second applicant : N/A
Represented person : N/A
Solicitors:
First applicant : N/A
Second applicant : N/A
Represented person : N/A
Case(s) referred to in decision(s):
LC and JS [2007] WASAT 127
Re AM; ex parte JS [2012] WASAT 137
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The Tribunal heard a number of applications under the Guardianship and Administration Act 1990 (WA) for an elderly woman in March 2012. 2 Legal costs were incurred in the proceedings by the woman's daughter as her attorney under an enduring power of attorney. 3 The Tribunal found that the daughter had the authority to obtain legal representation for the woman, and that the woman should therefore bear her own legal costs.
Introduction 4 JS (represented person) is an elderly woman diagnosed with dementia and currently living with a daughter (BA), because she is no longer able to live independently. She has two other children, another daughter (JM) and a son (PS) who both live outside of Western Australia. 5 There has been much conflict between the children, and that conflict led to a number of applications being made under the Guardianship and Administration Act 1990 (WA) (GA Act) in respect to the represented person. 6 Those applications were determined by the Tribunal on 9 March 2012, and the reasons for that decision can be found at Re AM; ex parte JS [2012] WASAT 137 (Re AM). 7 Pursuant to an order of the Tribunal made on 9 March 2012, BA has applied to have the legal costs incurred in the Re AMproceedings paid from the estate of the represented person. 8 What follows is the decision and reasons for the application for costs. This decision should be read in conjunction with the decision in Re AM.
Reasons for decision 9 On 29 March 2006, the represented person appointed AM (son in law of the represented person and spouse of JM) as her sole attorney, and on 26 August 2008, she appointed BA as her sole attorney. 10 Relevant to the decision on costs is the operation of these two enduring powers of attorney. (Page 4)
11 The significance of the enduring powers of attorney is that, for a period in late 2011, both instruments were being used and the attorneys (AM and BA) believed they had authority to the exclusion of the other. Moreover, the attorneys were in significant conflict at the time and took the view that the other attorney (if acting with authority) was not acting in the represented person's best interests. 12 As a consequence of the conflict, AM made applications for guardianship and administration orders and an application seeking to have the transactions made by BA under the 2008 enduring power of attorney audited by an auditor appointed by the Tribunal. 13 BA applied to have the 2006 enduring power of attorney revoked by the Tribunal. 14 The decision of the Tribunal in Re AM was that BA was appointed as the represented person's administrator to manage her estate, except for two financial matters that were still in dispute. The Public Trustee was appointed in a limited role to deal with those matters. To ensure certainty, and to resolve any inconsistency in the decisionmaking authority, the 2006 and 2008 enduring powers of attorney were revoked. The Tribunal did not consider it necessary to have the 2008 enduring power of attorney audited. The Public Advocate was appointed limited guardian to make decisions about the represented person's contact with JM, AM and PS, but otherwise, the Tribunal decided that guardianship authority was not needed. 15 BA has made an application that the legal costs in respect to the proceedings in Re AMbe paid from the represented person's estate. The substance of her submission is as follows: • She believed the 2008 enduring power of attorney was valid and had been operating appropriately. • She believed, after receiving legal advice, that the 2006 enduring power of attorney had been effectively revoked by the represented person executing the 2008 instrument. • AM made applications for guardianship and administration orders after he, JM and PS sold the represented person's car without permission, took cash, jewellery and legal documents from the represented person's safe, removed household items and refused to (Page 5)
unconditionally return those things to the represented person. • BA believed that it was the intention of AM, JM and PS to place the represented person in an aged care facility and that, if the applications were successful, she would not be able to stop that from happening. • It had always been the represented person's wish that she live in the community for as long as possible When she had first been diagnosed with dementia, she had become very frightened that she was going to be placed in a nursing home and had begged BA for that not to happen. • When the applications were made by AM, BA states that she had very little knowledge or understanding of the Tribunal's roles or processes. She became aware of the Tribunal's information brochure which stated that a party could obtain legal representation at their own cost. • BA took the view that the represented person needed someone to advocate for her who understood the Tribunal's functions and who was not emotionally connected to the outcome. • Advice was sought from a legal practitioner with Tribunal experience. Unfortunately, the solicitor said she could not take instructions from the represented person because there was doubt about her capacity; however, she could take instructions from BA in her role as attorney under the 2008 enduring power of attorney. • BA states that she attempted to obtain a personal loan to cover the legal costs but was unsuccessful. She said that she discussed the situation with the represented person who told her that she would be prepared to pay for legal representation because she did not want AM to have authority over her personal and financial affairs.
The relevant legislation 16 The starting position is that parties bear their own costs in proceedings before the Tribunal (s 87(1) of the State Administrative Tribunal Act 2004 (WA)) (SAT Act). (Page 6)
17 In applications made under the GA Act, however, there is provision for the costs of a party to be paid from the assets of the represented (or proposed represented) person if that party is found to have acted in the best interests of that person (s 16(4) of the GA Act). 18 The scope of what may be encompassed by 'best interests' in this context is not straightforward, but cannot be as openended as the term first implies (LC and JS[2007] WASAT 127 at [34] [57]).
The decision of the Tribunal 19 The first question to be asked is: who incurred the legal costs the subject of the application before the Tribunal? There are two alternatives. The costs were either incurred by BA in her own right, or by BA for the represented person, in her capacity as attorney under the 2008 enduring power of attorney. 20 The answer to this question is critical to the decision of the Tribunal. If the costs belong to BA, then they fall for determination under s 16(4) of the GA Act (taking into account the intent found in s 87(1) of the SAT Act). If they belong to the represented person, then they fall for determination solely under s 87 of the SAT Act. 21 I am of the view that the latter applies, despite the initial position of the parties and the Tribunal in Re AM. I am of this view for the following reasons. 22 Although it was unnecessary to be decided in Re AM because of the appointment of an administrator, I am satisfied, for the purposes of these reasons, that, in executing the 2008 enduring power of attorney in favour of BA, the intention of the represented person was that the 2006 enduring power of attorney be revoked. 23 None of the parties submitted that the represented person was incapable of executing the 2008 enduring power of attorney. 24 There is evidence that there was a significant falling out between the represented person and AM and JM in late 2007 (Re AM at [31]), and the change to the enduring power of attorney in 2008 is not inconsistent with the position of the parties that had developed by that time. 25 In addition, it is clear from the evidence that BA was the person who was managing (or, at the very least, assisting with the management of) the represented person's finances since at least November 2010, and this was not challenged by AM, JM or PS until late 2011 (Re AMat [116]). AM (Page 7)
only invoked his apparent authority in September 2011 when the dispute with BA occurred about some of the represented person's property. 26 The 2006 and 2008 enduring powers of attorney confer the same authority on the respective attorneys, and to that extent: If there is an inconsistency between the operation of each power, it stands to reason that, to the extent of that inconsistency, they both cannot inhabit the same sphere. (Powers of Attorney, GE Dal Pont 2011: Butterworths, at page 271). 27 Accepting, then, that BA had a valid authority under the 2008 enduring power of attorney (the instrument was not subject to any conditions or restrictions), as attorney, she was authorised to act on behalf of the represented person against the application by AM that the 2008 enduring power of attorney should be audited and replaced by an administration order. BA was also authorised to seek to have the status of the 2006 enduring power of attorney determined by the Tribunal. 28 Although the ultimate determination of the Tribunal was that both enduring powers of attorney be revoked (Re AM at [131]), the status of BA was substantially validated by her being appointed administrator of the represented person's estate (save for two limited functions given to the Public Trustee), and by the Tribunal deciding that the 2008 enduring power of attorney need not be audited (Re AM at [117] and [127] [128]). 29 BA's position was further validated by the Tribunal accepting that the represented person should continue to live with her, despite the evidence of AM, JM and PS which questioned BA's ability to care for the represented person (Re AMat [53], [56] [57] and [103] [104]). 30 In Re AM, the Tribunal commented upon the failure of all the parties to seek a solution to the dispute that arose in September 2011, other than by expensive legal action (Re AMat [119] [121]). However, once proceedings were initiated in the Tribunal by AM, it was not unreasonable, in my view, for BA to obtain legal representation, given the possible outcomes that she perceived might befall the represented person. 31 I accept the submissions of BA detailed earlier in these reasons. 32 I find that BA incurred the legal costs in respect to the Tribunal proceedings as attorney for the represented person. The represented person should therefore bear those costs (s 87(1) of the SAT Act). (Page 8)
Order The represented person bear her own legal costs in respect to the proceedings before the Tribunal under GAA 3643 of 2011, GAA 3644 of 2011, GAA 4082 of 2011 and GAA 538 of 2012. |