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):
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…
Continue reading Re: C
Sign in free to access the full text
- AGLC
- Re: C [2012] WASAT 50
- Case
- [2012] WASAT 50
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: JUSTICE J
Full text does not contain this section.