Re: C
[2012] WASAT 50
•22 MARCH 2012
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 submission that where an enduring power of attorney appoints two donees, a failure to specify whether they are to act jointly, or jointly and severally, leads to the conclusion that the document is not substantially in the form prescribed. The Tribunal concluded that, on that basis, such a document is invalid and should be revoked.
Introduction
A number of applications came before the Tribunal for hearing on 16 November 2011. After hearing from the parties, the Tribunal announced its decision on the various applications before it. Although the Tribunal gave brief oral reasons as to why it had reached its conclusions, it advised the parties that its reasons would be delivered in writing. A major reason for that course was that questions of general importance in relation to the form of an enduring power of guardianship (EPG) and of an enduring power of attorney (EPA) had arisen in the proceedings. Although the resolution of those questions did not influence the conclusions which the Tribunal had reached, the Public Advocate was, at her request, given leave to make supplementary written submissions as to the validity, by reason of its form, of the documents under consideration in this case. Those supplementary submissions were filed on 9 December 2011.
The conclusions of the Tribunal, announced at the hearing, were based upon the Tribunal's findings as to the capacity of the proposed represented person, C, at the time she executed the EPG and the EPA, and at the date of the hearing. All parties who attended the hearing, including C herself who was represented by a legal counsel, readily accepted the Tribunal's conclusions in relation to capacity at the relevant times. The Tribunal's oral reasons, given at the hearing, explained those conclusions. We do not, therefore, intend to canvas in detail the evidence related to the issue of capacity in these reasons. It is, however, appropriate to outline the applications which were before the Tribunal, and in general terms, explain the evidence and the conclusions which the Tribunal reached.
The applications
Proceedings were commenced on 8 July 2011, when two applications were filed by LW and JT, both social workers at Sir Charles Gairdner Hospital. One was an application under s 109(1)(c) of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking the revocation of an enduring power of attorney (EPA) signed by C on 16 June 2011.
At the same time, an application was made under s 110N(1)(c) of the GA Act seeking revocation of an EPG also executed by C on 16 June 2011. That application was treated not only as an application for revocation, but also as an application for a declaration, under s 110K of the GA Act, that the EPG is invalid.
Subsequently, on 22 July 2011, LW made an application for the appointment of a guardian and an administrator in respect of C.
On 31 August 2011, C's daughter, T, and son, B, lodged an application for appointment as guardians and administrators, jointly with their sister, S.
It was those applications that were before the Tribunal for hearing.
Background to the applications
C suffers from Parkinson's disease and multiple system atrophy, and has a medical background involving numerous other significant conditions. She is 66 years of age.
On 16, 20 and 23 June 2011, whilst an inpatient at Sir Charles Gairdner Hospital, C was seen for neuropsychological assessment and interview. The referral noted that there had been significant family conflict around that time. At that time, she had a friendship with a friend, R, whom she reported as helping her 'with everything'. It is apparent that that friendship was a source of some concern on the part of C's children.
C was assessed by Dr F, a clinical neuropsychology registrar. In her report following that assessment, Dr F reported that, on the morning prior to the initial evaluation (16 June 2011), C's daughter T and son B arrived at the hospital to have C sign documents appointing them as joint guardians and powers of attorney. Dr F continued:
When asked about this during the assessment she [C] reported that she had signed some 'papers for power of attorney' and demonstrated a reasonable understanding of the meaning of these contracts. However, she added that she was 'not very pleased about it but they [T and B] said I had to'. She said she was told that if she did not sign the papers they 'wouldn't be able to put my name on the list for the home'. She felt that they wanted her to sign the papers to get her 'out of their hair and into the home and to get their hands on my money'. She stated that she did not trust her children with the money due to 'past experiences' such as when she previously lent them money and they would never repay it. When asked about alternative options, she felt that there were none.
Dr F said that subsequently, after speaking with R on the telephone, C came to the office to ask her to revoke the documents she had signed a few days before.
Dr F also reported that T was concerned about violence in her mother's relationship with R, and that C had obtained a restraining order against R. That had been obtained in May 2011, but C apparently wished to have the order withdrawn by the time she spoke to Dr F, and denied any violence in the relationship. Dr F reported that C was highly dependent on others for support and was experiencing high levels of anxiety over possible loss of family or friends as a result of the conflict between her children and R.
Dr F reached the conclusion that C was unable to make informed and reasoned decisions for herself. That conclusion was based collectively on her test results, responses on interview, inconsistent opinions and vulnerability to coercion.
It was that report which led to the applications for revocation of the EPA and the EPG and for the appointment of a guardian and administrator by LW.
The application by T and B for guardianship and administration was made in August 2011. In a letter attached to that application, C's children outlined in detail their concerns as to C's relationship with R, and the circumstances which had led to the obtaining of a violence restraining order against R, and C's subsequent admission to hospital. They also outlined the circumstances leading to the preparation, and execution, of the EPA and EPG during C's hospitalisation in June. They advised that, following her discharge from hospital, C had moved to a retirement village which they had located for her, where she had settled in well.
In October 2011, C underwent a neuropsychological assessment carried out by a specialist clinical neuropsychologist, PB. PB undertook testing over two separate two hour sessions. She concluded that C had a sound cognitive capacity to make reasonable decisions on most aspects of her life. She noted that C's medical conditions led to some limitations on her cognitive performance, especially under time pressure. On that basis, she concluded that C may require assistance in managing complex decisions in relation to her finances.
Evidence at the hearing
C attended the hearing, and was represented by Counsel. Although she was clearly susceptible to limitations in her speech by reason of her medical condition, she was able to answer questions with reasonable clarity. She was asked about her execution of the EPA and EPG in June 2011. She demonstrated a reasonable understanding of the nature of those documents, and of the circumstances which led her to execute them,
Dr F and PB attended the hearing to assist the Tribunal in respect of their views. They agreed that the environment in which they had respectively made their assessments differed significantly. At the time of Dr F's assessment of C, it was clear that she was under significant stress as a result of the events leading up to her admission, the medical condition which led to her hospitalisation and the uncertainty as to her future living arrangements. On the other hand, when PB saw C, she had settled in well to her new accommodation, so that the uncertainty as to her future had substantially resolved itself. In addition, the conflict between R and C's children had largely abated. Both experts considered that the changed circumstances may well explain the improved level of cognitive functioning between June 2011 and October 2011. They both acknowledged that the clarity of C's responses to questions at the Tribunal hearing suggested a continuation of the improved level of cognitive functioning as ascertained by PB. Dr F remained concerned as to C's capacity to make complex decisions in relation to her estate.
Conclusion on capacity
On the basis of having heard from C, and from Dr F and PB, the Tribunal reached the conclusion that in June 2011, when C executed the EPG and the EPA, she lacked the requisite capacity to understand the full nature and effect of those documents, and on that basis, those documents were not validly executed.
We accepted, however, the opinion of PB, reinforced by the Tribunal's own observation of C and the cogency of the answers she gave to questions put to her, that, as at the hearing, C had capacity to understand the nature and effect of an EPA and an EPG, and had capacity to determine to whom she would want to give those powers.
Section 4 of the GA Act provides that every person shall be presumed to be capable of:
i.looking after his own health and safety;
ii.making reasonable judgments in respect of matters relating to his person;
iii.managing his own affairs; and
iv.making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
On the basis of the evidence that we heard, we did not consider that those presumptions were displaced.
In addition, a guardianship order may only be made where the Tribunal is satisfied that a person is in need of a guardian. Given the fact that C now had her accommodation arrangements satisfactorily resolved, and appeared capable of adequately determining questions about with whom she should have contact, we were not satisfied that, even apart from her capacity, there was need for the appointment of a guardian.
Reservations were expressed by Dr F, having heard the answers given by C to questions at the hearing, as to C's capacity to make reasonable judgments in respect of complex or significant matters relating to her estate. We agree that it is likely that C will require assistance in that regard. Section 4(4) of the GA Act requires that a guardianship or an administration order not be made if the needs of the person concerned can be met by other means less restrictive of the person's freedom of decision and action. We were satisfied, at the date of the hearing, that C retained capacity to execute a fresh EPG and EPA should she wish. The execution of a valid EPA to donees chosen by C, would provide a less restrictive means of assistance to C in relation to significant matters concerning her estate. Her Counsel at the hearing indicated that it was likely that he would be instructed by C to draw a new EPA and EPG were the Tribunal to reach the conclusion which it had.
Accordingly, the Tribunal concluded that it was not appropriate that there be an administration order made.
Form of the EPG
As mentioned above, a question which arose in the proceedings was whether, by reason of the form of the EPG, it should be declared invalid. The Tribunal's conclusion that the EPA and the EPG executed in June 2011 was invalid was based upon its view that C lacked the requisite capacity at the relevant time. Notwithstanding that questions of form did not necessarily need to be answered, the Public Advocate was anxious that the question of form be addressed by the Tribunal because of its general importance. Accordingly, we agreed to permit the Public Advocate to make supplementary submissions going to that question.
Part 9A of the GA Act came into force on 15 February 2010. Part 9A deals with enduring powers of guardianship. Section 110E provides relevantly, that an EPG is not valid unless 'it is in the form or substantially in the form prescribed by the regulations'.
The Guardianship and Administration Regulations 2005 (WA), (GA Regulations) Sch 1, sets out the prescribed form of an EPG. The form contains a number of notes by way of explanation of its provisions, and a number of alternative choices which can be made by the appointor. The form as it appears in the GA Regulations (save for the attestation section), is as follows:
Schedule 1 — Enduring power of guardianship form
Enduring Power of Guardianship
Notes:
• To make an enduring power of guardianship, you must be 18 years of age or older and have full legal capacity.
• A person who makes an enduring power of guardianship is called 'the appointor'.
This enduring power of guardianship is made under the Guardianship and Administration Act 1990 Part 9A on
the .......................................... day of ........................................... 20............
by....................................................................................................................(appointor’s full name)
of ...................................................................................................................
(appointor’s residential address)
born on ...........................................................................................................
(appointor’s date of birth)
This enduring power of guardianship has effect, subject to its terms, at any time I am unable to make reasonable judgments in respect of matters relating to my person.
1.Appointment of enduring guardian(s)
Notes for section 1:
• You can only appoint a person to be your enduring guardian if that person is 18 years of age or older and has full legal capacity.
• If you want to appoint only one person to be your enduring guardian, complete section 1A and cross out and initial section 1B.
• If you want to appoint 2 people to be your joint enduring guardians, cross out and initial section 1A and complete section 1B.
• If you want to appoint more than 2 people to be your joint enduring guardians, cross out and initial section 1A, complete section 1B for 2 of the people and include the details of the additional people in an attachment to this form.
• Joint enduring guardians must make unanimous decisions.
1A.Sole enduring guardian
I appoint .........................................................................................................
(appointee’s full name)
of ....................................................................................................................
(appointee’s residential address)
to be my enduring guardian.
OR
1B.Joint enduring guardians
I appoint .......................................................................................................
(appointee’s full name)
of ....................................................................................................................
(appointee’s residential address)
and .................................................................................................................
(appointee’s full name)
of ....................................................................................................................
(appointee’s residential address)
to be my joint enduring guardians.
2.Appointment of substitute enduring guardian(s)
Notes for section 2:
• You may appoint one or more people (called 'substitute enduring guardians') to act instead of your sole enduring guardian or to act instead of one or more of your joint enduring guardians.
• You can only appoint a person to be a substitute enduring guardian if that person is 18 years of age or older and has full legal capacity.
• You must specify the circumstances in which the substitute enduring guardian(s) is (are) to act. For example -
(a) if my sole enduring guardian A dies or becomes incapacitated, my substitute enduring guardian X is to be my sole enduring guardian;
(b) if one of my joint enduring guardians B and C dies or becomes incapacitated, the remaining enduring guardian and my substitute enduring guardian Y are to be my joint enduring guardians.
• If you do not want to appoint any substitute enduring guardians, cross out and initial section 2.
I appoint .........................................................................................................
(appointee’s full name)
of ....................................................................................................................
(appointee’s residential address)
to be my substitute enduring guardian in substitution
of ....................................................................................................................
(enduring guardian’s name)
I appoint .........................................................................................................
(appointee’s full name)
of ....................................................................................................................
(appointee’s residential address)
to be my substitute enduring guardian in substitution
of ....................................................................................................................
(enduring guardian’s name)
My substitute enduring guardian(s) is (are) to be my enduring guardian(s) in the following circumstances:
........................................................................................................................
........................................................................................................................
........................................................................................................................3.Death of joint enduring guardian
Notes for section 3:
• If you are appointing only one person to be your enduring guardian, cross out and initial sections 3A and 3B.
• If you are appointing 2 or more people to be your joint enduring guardians and you want the surviving enduring guardian(s) to act if a joint enduring guardian dies, cross out and initial section 3B.
• If you are appointing 2 or more people to be your joint enduring guardians but you do not want the surviving enduring guardian(s) to act if a joint enduring guardian dies, cross out and initial section 3A.
3A.Surviving joint enduring guardians to act
If one or more of my joint enduring guardians die, I want the surviving enduring guardian(s) to act.
OR
3B.Surviving joint enduring guardians not to act
If one or more of my joint enduring guardians die, I do not want the surviving enduring guardian(s) to act.
4.Functions of enduring guardian(s)
Notes for section 4:
• If you do not want to limit the functions that your enduring guardian(s) can perform, cross out and initial section 4B.
• If you want to limit the functions that your enduring guardian(s) can perform, cross out and initial section 4A and complete section 4B.
• If you do not want your enduring guardian(s) to perform a function specified in paragraphs (a) to (i) of section 4B, cross out and initial the paragraph.
• If you want your enduring guardian(s) to perform a function that is not specified in paragraphs (a) to (i) of section 4B, specify the function in another paragraph.
• Your enduring guardian(s) cannot perform any of the following functions on your behalf -
(a) make decisions about your property or estate;
(b) vote in an election;
(c) make or change your will without an order from the Supreme Court;
(d) consent to an adoption;
(e) consent to your sterilisation without the State Administrative Tribunal’s consent;
(f) consent to the marriage of a person who is under 18 years of age.
• If you make an advance health directive that applies to any treatment, your enduring guardian(s) cannot consent or refuse consent on your behalf to that treatment.
4A.All functions authorised
I authorise my enduring guardian(s) to perform in relation to me all of the functions of an enduring guardian, including making all decisions about my health care and lifestyle.
OR
4B.Only specified functions authorised
I authorise my enduring guardian(s) to perform in relation to me only the following functions -
(a)decide where I am to live, whether permanently or temporarily;
(b)decide with whom I am to live;
(c)decide whether I should work and, if so, any matters related to my working;
(d)consent, or refuse consent, on my behalf to any medical, surgical or dental treatment or other health care (including palliative care and life sustaining measures such as assisted ventilation and cardiopulmonary resuscitation);
(e)decide what education and training I am to receive;
(f)decide with whom I am to associate;
(g)commence, defend, conduct or settle on my behalf any legal proceedings except proceedings relating to my property or estate;
(h)advocate for, and make decisions about, which support services I should have access to;
(i)seek and receive information on my behalf from any person, body or organisation;
(j)..............................................................................................
.............................................................................................
(k)..............................................................................................
.............................................................................................
5.Circumstances in which enduring guardian(s) may act
Notes for section 5:
• If you do not want to limit the circumstances in which your enduring guardian(s) may act, cross out and initial section 5.
• If you want to limit the circumstances in which your enduring guardian(s) may act, you must specify the circumstances. For example, for as long as my enduring guardian(s) live(s) in the same city or town as me.
My enduring guardian(s) may act only in the following circumstances:
........................................................................................................................
........................................................................................................................
........................................................................................................................6.Directions about how enduring guardian(s) to perform functions
Notes for section 6:
• If you do not want to include any directions about how your enduring guardian(s) is (are) to perform his/her (their) functions, cross out and initial section 6.
• If you want to include any directions about how your enduring guardian(s) is (are) to perform his/her (their) functions, you must specify the directions. For example -
(a) if I need to be moved into a residential care facility, do not move me into XYZ Nursing Home;
(b) I would prefer to continue seeing my current GP, Dr C.D., for my general medical needs because she has been my GP for many years;
(c) if possible, all of my children are to be consulted before any major decisions are made on my behalf.
My enduring guardian(s) is (are) to perform his/her (their) functions in accordance with the following directions:
........................................................................................................................
........................................................................................................................
...............................................................................................................…….
Notes for appointor about signing and witnessing:
• If you are physically incapable of signing this enduring power of guardianship, you can ask another person to sign for you. You must be present when the person signs for you.
• Two (2) witnesses must be present when you sign this enduring power of guardianship or when another person signs for you.
• Each of the witnesses must be 18 years of age or older and cannot be you, the person signing for you (if applicable) or an appointee.
• At least one of the witnesses must be authorised to witness statutory declarations. For a list of people who are authorised to witness statutory declarations, see the Oaths, Affidavits and Statutory Declarations Act 2005.
• The witnesses must also sign this enduring power of guardianship. Both witnesses must be present when each of them signs. You and the person signing for you (if applicable) must also be present when the witnesses sign.
Signed by:
........................................................................................................................
(appointor’s signature)
The EPG signed by C on 16 June 2011 was prepared by her solicitors. The solicitors omitted from the document which they prepared all of the notes, and all of the various alternative provisions which the form in the schedule contemplates would be crossed out and initialled by the appointor. Accordingly, the form (omitting the attestation and acceptance sections) read as follows (subject to anonymisation):
Enduring Power of Guardianship
This Enduring Power of Guardianship is made under the Guardianship and Administration Act 1990 Part 9A on the 16th day of June 2011, by C of [address], Pensioner, born [date of birth].
This Enduring Power of Guardianship has effect, subject to its terms, at any time I am unable to make reasonable judgments in respect of matters relating to my person.
1.Appointment of enduring guardians
I appoint B of [address], [occupation] and T of [address] [occupation], to be my joint enduring guardians.
2.Death of joint enduring guardian
If one of my joint enduring guardians die, I want the surviving enduring guardian to act.
3.Functions of enduring guardians
I authorise my enduring guardians to perform in relation to me all of the functions of an enduring guardian, including making all decisions about my health care and lifestyle.
4.Circumstances in which enduring guardians may act
My enduring guardians are to act only at times when I am on life support, or in a state where I do not have capacity to make decisions regarding my health.
It can be seen that, apart from omission of the notes and crossed out portions, the numbering on the executed form differs from the numbering of the equivalent clauses of the form as it appears in Sch 1 of the GA Regulations. That is, what is cl 3A in the Schedule becomes cl 2 in the executed form. Clause 4A in the Schedule becomes cl 3 in the form and so on.
The Public Advocate expresses a number of concerns as to the executed form. A concern was raised about the omission of the date of execution in the introductory words to the EPG. That concern was based upon the fact that a copy of the document initially considered by the Public Advocate had not had the date completed. It became apparent at the hearing, however, that multiple copies had been executed, and the date inserted in at least one of them. The omission of the date in a copy of the document would not lead to invalidity of an EPG which is properly dated.
The Public Advocate's principal concern is, however, the departure from the use of the entire contents of the prescribed form and, in particular, the omission from the executed document of those parts of the prescribed form which, she contends, should have been crossed out and initialled.
Rule 8 of the GA Regulations provides that notes in, and footnotes at the end of, the form in the schedule 'are provided to assist in the completion of the form and are not part of the form'. It is clear, therefore, that the omission of the notes from the form has no effect on its validity. The submissions by the Public Advocate appear to accept that proposition.
The Public Advocate contends, however, that the form needs to include all sections except the notes. She submits that weight is added to that contention because 'the Regulations only provide that the notes section of the form may be excluded'. She submits that the requirement that all parts of the form be shown on the form serves a number of purposes, namely:
1.The form will be numerically correct.
2.It is clear that the person has seen the whole form and the choices made are based on full knowledge of the options available.
3.It is not possible for someone at a later date to alter the form to include options not previously selected.
Numbering
It is submitted that the numbering of the form should remain consistent with the prescribed form. The reason for that proposition is said to be that 'when following the form, health and other professionals may be familiar with cl 4 as the clause nominating the functions of the enduring guardian. If the clause is numbered differently, it could lead to confusion in the operation of the form'.
The EPG as executed contains headings of its various clauses which are in the precise terms of the prescribed form. Clause 3 of the EPG as executed is headed 'Functions of enduring guardians'. It is, with respect, vastly easier for a health or other professional looking at the document as executed to identify the clause which specifies the functions of the guardians, than it might be looking at a much longer document, substantive parts of which are deleted.
The difference in the numbering makes no substantial difference to the form, and is not a basis for invalidity.
Disclosure of all options
To be able to execute an EPG, a person must have reached 18 years of age and have full legal capacity - s 110B of the GA Act. The formal requirements for an EPG are set out in s 110E of the GA Act. Apart from the requirement that the document be substantially in the form prescribed, the other formal requirements relate to witnessing and acceptance. There is no express requirement that an appointor have explained to him or her the various choices and options available in relation to EPGs. Obviously, it is preferable that such things be explained, and it might be reasonably expected that any competent solicitor would, upon taking instructions, discuss the various alternatives with the client. We do not accept, however, that the requirement that the document be substantially in the form prescribed carries with it, by implication, a requirement that, to be valid, full knowledge of all options is held by the appointor.
The substance of an EPG is in its operative provisions. If the operative provisions are in the form, or substantially in the form, of the prescribed form, then the EPG will satisfy the requirements of s 110E(1)(a).
Protection from alterations
The Public Advocate submitted at the hearing, and again in subsequent written submissions, that 'ensuring the form includes all the required clauses, with the person striking out those which they do not wish to apply provides a greater protection against later alteration of the form'. We have difficulty understanding that submission. It is not apparent to us how it might be said to be easier to alter a document which sets out clearly, and without any unnecessary portions, the substance of the transaction, than a standard form, of approximately four times the length (if notes are included) containing numerous deletions. We do not consider the submission on this point to have any merit.
Conclusion on validity of EPG
Had we concluded that C had capacity to execute the EPG on 16 June 2011, subject to the proviso below, we would not have found the document executed by her to have been invalid as failing to be substantially in the form prescribed by the regulations.
A question did arise during the course of the hearing as to the difficulty in reconciling the contents of cl 4 of the EPG signed on 16 June 2011 with the introductory words in the second paragraph. Both seem to deal with when the EPG is to have effect, but are couched in different terms. Because of the decision which we have come to in relation to capacity at the relevant time, it is not necessary for us to consider whether that inconsistency of expression would have affected the validity of the EPG. That was not a matter fully argued at the hearing. Therefore our conclusion as to the validity of the document is subject to the proviso that we have not addressed the effect of cl 4 of the EPG.
Form of the EPA
Section 104 of the GA Act requires that an EPA be in the form or substantially in the form of Form 1 in Sch 3 to the GA Act. Similar concerns were raised by the Public Advocate as to the form of the EPA as she expressed in relation to the form of the EPG. That form reads as follows:
Form 1
ENDURING POWER OF ATTORNEY
This Enduring Power of Attorney is made on the ................... day of ............................. 20..........., by A.B. of ........................ under section 104 of the Guardianship and Administration Act 1990.
1. I APPOINT C.D. of ..............................................................
(or C.D. of ......................... and E.F. of ......................... jointly) (or C.D. of ........................ and E.F. of ........................... jointly and severally) to be my attorney(s).
1a. I APPOINT G.H. of ................................................................
(or G.H. of ............................ and I.J. of ........................ jointly)
(or G.H. of ............................. and I.J. of ........................ jointly
and severally) to be my attorney(s) in substitution of C.D. (or C.D. and/or E.F.) on (or during) the occurrence of the following events or circumstances -
.....................................................................................................
.....................................................................................................
2. I AUTHORISE my attorney(s) to do on my behalf anything that I can lawfully do by an attorney.3. The authority of my attorney(s) is subject to the following conditions or restrictions -
.....................................................................................................
.....................................................................................................4. I DECLARE that this power of attorney* -
One of
these
paragraphs
must be
deleted
(a) will continue in force notwithstanding my subsequent legal incapacity; or
(b) will be in force only during any period when a declaration by the State Administrative Tribunal that I do not have legal capacity is in force under section 106 of the Guardianship and Administration Act 1990.
SIGNED AS A DEED by: ..............................................
WITNESSED by:
........................................... ...........................................
(Signature of Witness) (Signature of Witness)........................................... ...........................................
(Name of Witness) (Name of Witness)........................................... ...........................................
(Address of Witness) (Address of Witness)
The EPA executed by C on 16 June 2011 differed from Sch 3 in two respects. The first is that cl 1 of the executed EPA appointed B and T as attorneys, but did not specify whether they were appointed 'jointly' or 'jointly and severally'. The second difference was that the clauses numbered 1a and 4(b) were omitted rather than included and then crossed out.
For reasons explained above in relation to the EPG, we do not consider that the omission of the clauses, rather than their inclusion and deletion in the form, affects the validity of the EPA.
Failure to specify whether the appointment was joint, or joint and several, is more significant. The absence of that specification leaves uncertainty as to whether the donor of the power intended that, in exercising the power, the donees must act jointly, or whether it was intended that either could act alone so as to bind the donor.
Whether multiple donees of powers of attorney must act jointly, or may act severally, in the absence of specification on that point in the document appointing them, is not clear. In Kendle v Melsom (1998) 193 CLR 46 at [60] - [62] Hayne J, in the context of appointment of receivers, referred to a presumption suggested in Bowstead and Reynolds on Agency, 16th ed (1996), para 2042, that an authority given to two or more persons is given to them jointly, but said that he did not need to decide the point. It was apparent from his Honour's earlier remarks, however, that he may have held doubts as to the correctness of the proposition.
Neither Pt VIII of the Property Law Act 1969 (WA), which deals with powers of attorney, nor Pt 9 of the GA Act, provides any guidance as to the mode of exercise of the power by multiple donees appointed without specification as to whether they are to act jointly or severally. The definition of 'donee' in s 102 of the GA Act 'includes two persons appointed, whether jointly or severally, to act under a power of attorney …'. The definition proceeds on the assumption that the appointment will specify the manner in which the two donees are to act.
It can be noted in passing that s 75 of the GA Act prescribes that where joint administrators are appointed, they must act unanimously. The absence of a similar provision relating to enduring powers of attorney might be explained by the provision in Form 1 of Sch 3 contemplating that the donor will specify the mode of exercise of the power.
The specification in Sch 3 of the GA Act as to whether dual donees are appointed jointly, or jointly and severally, is a matter of substance. It relates back to the definition of donee in s 102 of the GA Act. The failure to specify which alternative is intended results in uncertainty as to the manner of exercise of the power. In our view, an EPA which does not specify whether dual donees are to exercise their power jointly, or alternatively, jointly or severally, is not substantially in the form of Form 1 of Sch 3 of the GA Act. It might be thought that, where the specification is not made, a default position that the power must be exercised jointly would ensure that the document was given efficacy and that joint exercise of the power would comply with whatever alternative specification the donor intended. While that pragmatic approach has some attraction, it ignores the statutory requirement as to form found in s 104 of the GA Act. A document not substantially in the form of Form 1 Sch 3 does not meet the requirements of an effective enduring power of attorney, even when the intention of the putative donor is clear, and could be implemented by treating the document as an EPA.
Section 110K of the GA Act gives the Tribunal power to declare an EPG valid or invalid. A clear basis upon which such a declaration can be made would be that the document does not meet the formal requirements of an EPG specified by s 110E. Thus the words 'enduring power of guardianship', where they are used in s 110K do not presuppose compliance with s 110E, but rather refer to a document purporting to be an EPG.
No corresponding power is found in the GA Act in relation to an EPA. The Tribunal has power under s 109(1)(c) to revoke or vary the terms of an EPA. It was that section under which the application relating to the EPA of 16 June 2011 was made. Consistent with the construction on s 110K discussed above, the words 'an enduring power of attorney' in s 109(1)(c) encompass a document purporting to be an EPA, and do not presuppose that the document complies with the requirements of s 104, or that it was made by a donor with capacity at the relevant time. It is, in our view, open to the Tribunal to make an order revoking an EPA which the Tribunal considers to be invalid by reason of form, or lack of capacity of the donor at the time the EPA was made. It is appropriate that such an order be made in this case.
Orders
1.There is a declaration pursuant to s 110K of the Guardianship and Administration Act 1990 (WA) that the enduring power of guardianship executed by C on 16 June 2011 is invalid.
2.The enduring power of attorney executed by C on 16 June 2011 is revoked.
3.The applications for the appointment of a guardian or an administrator for C are dismissed.
I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT
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