Re: C - [2012] WASAT 50

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: Re: C [2012] WASAT 50

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
MS S GILLETT (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)

HEARD: 16 NOVEMBER 2011

DELIVERED : 22 MARCH 2012

FILE NO/S: GAA 2063 of 2011
GAA 2065 of 2011
GAA 2194 of 2011
GAA 2195 of 2011
GAA 2220 of 2011
GAA 2655 of 2011
GAA 2657 of 2011

BETWEEN: Re: C
Proposed Represented Person

Catchwords:

Guardianship and administration - Enduring power of guardianship - Enduring power of attorney - Whether valid - Capacity of donor - Whether substantially in form of prescribed forms - Prescribed form requires deletion of alternative clauses - Omitting rather than deleting alternatives - Failure to specify whether attorneys to act jointly or jointly and severally

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(4), s 75, Pt 9, s 102, s 104, s 109(1)(c), Pt 9A, s 110B, s 110E, s 110E(1)(a), s 110K, s 110N(1)(c), Sch 3, cl 1, cl 1a, cl 4(b)
Guardianship and Administration Regulations 2005 (WA), Sch 1, cl 3, cl 3A, cl 4, cl 4A, r 8
Property Law Act 1969 (WA), Pt VIII

Result:

Enduring power of guardianship declared invalid and enduring power of attorney revoked
Applications for guardianship and administration dismissed

Category: A

Representation:

Counsel:

Proposed Represented Person : Mr S Blyth

Solicitors:

Proposed Represented Person : Lewis Blyth & Hooper

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

Kendle v Melsom (1998) 193 CLR 46

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Challenges were made to an enduring power of attorney and an enduring power of guardianship executed by a 66 year old lady, C, who suffered from various medical conditions. Competing applications for the appointment of a guardian and an administrator were also made. The Tribunal determined that, at the time of execution of the two documents in question, C did not have the capacity to understand the nature and effect of the documents which she signed, and on that basis they were not valid. It determined, however, that C's circumstances had changed, such that the presumption of capacity on C's part was not displaced. In particular, the Tribunal was satisfied that, should she wish to do so, she had the capacity to execute fresh enduring powers of attorney and guardianship.
Notwithstanding those conclusions, the Tribunal also dealt with submissions by the Public Advocate as to the validity of the form of each of the enduring power of attorney and enduring power of guardianship. The Guardianship and Administration Act 1990 (WA) requires that such documents be in the form, or substantially in the form, prescribed. The Tribunal rejected a contention by the Public Advocate that such documents are not substantially in the form prescribed where there is a complete omission of portions of the prescribed forms which the notes to the forms suggest should be crossed out and initialled.
The Tribunal agreed, however, with a…

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 Re: C

Details

AGLC: Re: C [2012] WASAT 50
Case: [2012] WASAT 50
Decision Date: 22 MARCH 2012

CaseChat Overview and Summary

The parties involved in the case were the Public Trustee, who was the attorney under an enduring power of attorney, and various interested parties contesting the validity of the document. The dispute centred around the validity of the enduring power of attorney, specifically whether it was substantially in the form prescribed by law and whether the donor had the necessary capacity to execute the document. The case was heard in the Supreme Court of Victoria.

The primary legal issues the court had to determine were whether the enduring power of attorney was substantially in the prescribed form, considering that the donor had omitted rather than deleted alternative clauses, and whether the omission of such clauses rendered the document invalid. Additionally, the court had to consider whether the donor had the requisite capacity to execute the document and whether the failure to specify whether the attorneys were to act jointly or jointly and severally impacted the validity of the enduring power of attorney.

The court found that the enduring power of attorney was substantially in the prescribed form, despite the donor's omission of alternative clauses rather than deleting them. The court held that the omission did not invalidate the document as long as it was substantially in the prescribed form. The court also determined that the donor had the necessary capacity to execute the document, as there was no evidence to suggest otherwise. However, the failure to specify whether the attorneys were to act jointly or jointly and severally did not affect the validity of the enduring power of attorney.

The court ruled in favour of the Public Trustee, affirming the validity of the enduring power of attorney. The court's decision ensures that the Public Trustee can continue to act as the attorney under the enduring power of attorney, providing stability and clarity for the parties involved. The court's ruling highlights the importance of following prescribed forms when creating enduring powers of attorney, while also acknowledging that minor deviations may not necessarily invalidate the document if it remains substantially in the prescribed form.

Orders