| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE CY; EX PARTE PY [2011] WASAT 156 MEMBER : MS F CHILD (MEMBER) HEARD : 5 JULY 2011 DELIVERED : 27 SEPTEMBER 2011 FILE NO/S : GAA 1514 of 2011 EX PARTE Catchwords: Guardianship and administration - Enduring power of attorney - Recognition of enduring power of attorney created in another jurisdiction - Whether the power of attorney corresponds sufficiently in form and effect to a power created under the Western Australian legislation Legislation: Guardianship and Administration Act 1990 (WA), s 102, s 104, s 104(1), s 104(1)(b), s 104(2), s 104(2)(a), s 104(2)(b), s 104A, s 104A(2), s 106, Pt 9, Sch 3, cl 2, cl 4
Instruments (Enduring Powers) of Attorney Act 2003 (Vic)
Instruments Act 1958 (Vic), s 114, s 115, s 117(5), s 125ZN, Sch 13, cl 1, cl 2, cl 3
Powers of Attorney and Agency Act 1984 (SA)
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Powers of Attorney Act 1998 (Qld)
State Administrative Tribunal Act 2004 (WA), s 77 Result: Foreign enduring power of attorney recognised. Category: B
Representation: Counsel:
Solicitors:
Applicant : Clement & Co Lawyers
Case(s) referred to in decision(s):
AC, Re [2003] QGAAT 18
CH [2003] WAGAB 1
CS and JS [2005] WASAT 285
IMP [2006] WASAT 57
KS [2008] WASAT 29
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The applicant, the daughter of a woman with a diagnosis of dementia sought orders for recognition of a power of attorney executed by her mother in Victoria so that she could deal with her mother’s property interests in Western Australia. 2 The Tribunal ordered that the power of attorney executed by the donor in Victoria be recognised as an enduring power of attorney pursuant to the Guardianship and Administration Act 1990 (WA) as it was satisfied that despite the absence of an acceptance in the form provided for under the GA Act, the Victorian power of attorney corresponded sufficiently in form and effect to an enduring power of attorney created under the Western Australian Act and that it was appropriate to recognise it.
Application 3 The applicant, PY, is the daughter of GY (donor) who is the donor of an enduring power of attorney executed on 27 November 1996 pursuant to s 114 of the Instruments Act1958 (Vic) (Victorian EPA). The Victorian EPA appoints attorneys with general authority to act on the donor's behalf in relation to the whole of her property. 4 The applicant is one of the attorneys appointed, and seeks recognition in Western Australia of the Victorian EPA as an enduring power of attorney (EPA) pursuant to s 104A of the Guardianship and Administration Act 1990 (WA) (GA Act). 5 The donor is the joint mortgagee with her late husband of a mortgage registered on the title of land located in Western Australia. The spouse of the donor died in October 2010 and as the donor has lost capacity she is unable to sign the survivorship application in respect of the mortgage. Both the applicant and the donor live in Victoria. The donor resides in an Aged Care facility and has dementia. 6 The application to the Tribunal was made on 18 May 2011 and heard on 5 July 2011. The applicant was represented and appeared by teleconference at the hearing of the application. 7 The order recognising the Victorian EPA was made shortly after the hearing. These written reasons are produced pursuant to s 77 of the State Administrative Tribunal Act 2004 (WA). Identifying information has been removed consistent with the provisions of the GA Act. (Page 4)
Legislation 8 Section 102 of the GA Act defines an enduring power of attorney to mean an enduring power of attorney created under s 104 or recognised by the Tribunal under s 104A. 9 The formal requirements for the creation of an EPA in Western Australia are set out in s 104 of the GA Act which provides: (Page 5)
(ii) where applicable, the person or persons appointed to be the substitute donee of the power. (3) A witness referred to in subsection (2)(a)(ii)(II) must be a person - 10 Section 104A of the GA Act allows for the recognition of powers of attorney created outside of Western Australia. 11 Section 104A of the GA Act provides. (1) The donee of a power of attorney created under the laws of another State, Territory or country may apply to the State Administrative Tribunal for an order recognising that power of attorney as an enduring power of attorney for the purposes of this Part. (2) Where the State Administrative Tribunal is satisfied, on an application made under subsection (1), that - (a) a power of attorney created under the laws of another State, Territory or country corresponds sufficiently, in form and effect, to a power of attorney created under section 104; and (b) it is appropriate to do so, the Tribunal may make an order recognising that power of attorney as an enduring power of attorney for the purposes of this Part. (3) Section 41(1) and (3) apply, with all necessary changes, to an application under subsection (1) as if it were an application for an administration order. (4) The State Administrative Tribunal may at any time on the application of a person who in the opinion of the Tribunal has a proper interest in the matter revoke an order made under subsection (2).
Evidence and material before the Tribunal
The Victorian Enduring Power of Attorney 12 A certified copy of a document entitled 'Enduring Power of Attorney' was filed with the application for recognition. The document is dated 27 November 1996 and states that it is made by CY (the donor) in Victoria pursuant to s 114 of the Instruments Act 1958 (Vic). (Page 6)
13 By cl 1 of the Victorian EPA, the donor appoints her husband TY and her daughter PY to be her attorneys. 14 By cl 2 the attorneys are authorised to act jointly and severally and to do anything on the donor’s behalf which an attorney can lawfully be authorised to do. 15 Clause 3 provides that the power of attorney shall continue to operate and have full force and effect notwithstanding that the donor may subsequently become incapable. 16 The document states that it is ‘signed sealed and delivered’ by the said CY in the presence of two witnesses; one of whom was PCJ. PCJ’s signature also appears on an original stamped endorsement on the copy of the Victorian EPA submitted to the Tribunal certifying that the copy is a true and correct copy of the original of which it purports to be a copy. PCJ is an Australian Legal Practitioner. 17 ‘Specimen signatures’ of the appointed attorneys are at the foot of the document. Also filed with the application is a copy of the death certificate of TY, the late spouse of the donor the other named attorney.
Recognition under s 104A 18 For the Tribunal to recognise an EPA made in another jurisdiction pursuant to s 104A, there must, firstly, be a power of attorney created under the laws of another jurisdiction, that is, there must be an instrument that is a validly executed power of attorney according to the law under which it was created. Secondly, the Tribunal must then find that the instrument corresponds sufficiently in form and effect to an enduring power of attorney created under s 104 of the GA Act. Finally the Tribunal must decide that it is appropriate to make the order for recognition. (s 104A (2)) 19 To determine whether the donor has created a valid power of attorney under the Victorian legislation, the relevant legislation must be considered. In this case the Victorian EPA was executed pursuant to the Instruments Act 1958 (Vic) as existed at the time of the execution in November 1996. 20 The Instruments Act 1958 (Vic) defines at s 104 of that Act an ‘enduring power of attorney’ to mean a general power of attorney ‘which is in or to the effect of the form set out in Schedule 13’. It further provides at s 114 that an enduring power of attorney may be created and (Page 7)
shall not be revoked by the subsequent incapacity of the donor. By s 115, the execution of an enduring power of attorney shall be attested by two witnesses of whom neither is the attorney. The form set out in Sch 13 of the Act provides for the signatures and names and addresses of two witnesses but it does not provide for acceptance by the attorney. 21 By s 117(5) the enduring power of attorney does not authorise the attorney to make a decision about the medical treatment of the donor of the power. 22 Although there have been changes to the formality requirements for the execution of an EPA in Victoria by passage of the Instruments (Enduring Powers of Attorney) Act 2003 (Vic) including requiring certification by witnesses and certification by attorneys and the repeal of Sch 13, the legislation provides at s 125ZN that: An enduring power of attorney under Part XI existing immediately before the commencement of the Instruments (Enduring Powers of Attorney) Act 2003 has effect on and after that commencement as if the enduring power of attorney had been made under Division 2 of this Part. In respect of the Victorian EPA it is submitted that at the time of its execution by the donor in 1996, that the formality requirements for witnessing of the document found in s 115 had been complied with and that the Victorian EPA is in the prescribed form. It is accepted that in the present case the Victorian EPA replicates Sch 13 but for the addition of the specimen signatures of the attorneys at the foot of the document. 23 The Tribunal is satisfied that at the time it was created and by operation of s 125ZN of the Instruments (Enduring Powers of Attorney) Act 2003 (Vic) the Victorian EPA is a validly created enduring power of attorney in Victoria. 24 Although the Victorian EPA has many of the attributes of an EPA created under the GA Act, it does not have the form of acceptance by the donees as provided for in s 104(2)(b) of the GA Act. Because of this, the question arises whether it can be found to correspond sufficiently in form to be recognised as an EPA in accordance with the provisions of s 104A. (Page 8)
An EPA under s 104 of the GA Act 25 The provisions of Pt 9 of the GA Act deal with enduring powers of attorney (EPA). 26 The legislative scheme of the GA Act for the creation, recognition and supervision of enduring powers of attorney under the GA Act is set out in some detail in KS [2008] WASAT 29 at[11] - [14] The ability for a person to make a general power of attorney by deed has long been available under the general law. A general power of attorney is typically used in commercial transactions to give a person specific authority in financial matters. A general power of attorney does not usually facilitate the donee of the power of attorney making personal or health decisions. Moreover, a general power of attorney ceases to operate when the donor loses legal capacity. To this end, typically, an enduring power of attorney, which is created by statute, builds on the general power of attorney by authorising the continuance of a power of attorney in the event that the donor of the power loses the legal capacity themselves to make decisions. Accordingly, an enduring power of attorney is a particular sort of power of attorney recognised and regulated by statute by reference to a general power of attorney. While the relevant statutes in the various Australian jurisdictions have much in common it is necessary to consider closely the terms of each statute to understand how it operates in the particular jurisdiction in question. In Western Australia, enduring powers of attorney are recognised and regulated by the provisions of the GA Act. Section 102 of the GA Act defines an enduring power of attorney as a power of attorney created under s 104 or recognised by the State Administrative Tribunal under s 104A(2). The latter definition means the Tribunal can recognise an enduring power of attorney made outside Western Australia. 27 There are only two published cases which deal with recognition of a foreign EPA under s 104A of the GA Act. 28 In IMP [2006] WASAT 57, the Tribunal was not satisfied that the instrument executed in the United Kingdom, of which recognition was sought, was an enduring power of attorney for the purposes of the law under which it was created. The donee had not registered the power with the Court of Protection on the donor’s loss of capacity as is required by the relevant legislation in the United Kingdom and so the instrument was not effective to create the authority to deal with the donor’s affairs following her loss of capacity. (Page 9)
29 In CS and JS [2005] WASAT 285 the Tribunal ordered the recognition of the power of attorney executed by the donor in South Australia because it was satisfied that it complied with the requirements of the Powers of Attorney and Agency Act 1984 (SA) and corresponded sufficiently, in form and effect, to a power of attorney created under s 104 of the GA Act. The Tribunal found that although the number of witnesses required to execute the instrument as a deed differed under the two Acts, the South Australian EPA was validly executed as a deed in South Australia (with only one witness) and could be recognised in Western Australia as an enduring power of attorney. 30 In AC, Re [2003] QGAAT 18 the Queensland Guardianship and Administration Tribunal (QGAAT) considered the validity of an enduring power of attorney made under the Powers of Attorney Act 1998 (Qld) the execution of which had not complied with mandatory formality requirements. 31 When considering the formality requirements provided for in s 44 of the Act the QGAAT said at [21] The Tribunal is satisfied that the purpose of sections 44(3)(b) and 44(4) of the Act is to provide safeguards and protection for persons in the execution of enduring documents. … 32 and later at [24] In terms of the legislation, the important factors are that the principal signs the document, that the document is signed in the presence of a witness who is satisfied that the principal understands the matters stated in clause 8 and finally, that the attorney signs the document to accept the appointment. The Tribunal is satisfied that all of these factors have been complied with in the execution of the documents. 33 In the case of CH [2003] WAGAB 1, which concerned the bringing into effect of an EPA under s 106 of the GA Act, the Full Board of the Guardianship and Administration Board (Board) considered whether an instrument was an enduring power of attorney under s 104 of the GA Act. The Board found that the deed was uncertain as to the commencement of the power as it did not comply with the formality requirements in s 104(1)(b) of the GA Act which requires an election as to when the power is to be in effect; either on execution or on declaration of incapacity made pursuant to s 106 by the then Board. The Board found for this and other reasons that the deed was not an enduring power of attorney created pursuant to s 104 of the GA Act. Certainty as to the operative clause was seen as fundamental to the creation of an EPA under that section. (Page 10)
34 The form of an EPA created under s 104 is prescribed at s 104(1) as in the form or substantially in the form of Sch 3 of the GA Act. Schedule 3 includes Form 2 which provides for the attorney to accept the appointment and has a statement of acknowledgement of the election made by the donor in cl 4, as to when the EPA comes into effect, and that by acceptance the attorney is subject to Pt 9 of the GA Act. The words in s 104(2), ‘[a]n instrument is not effective to create an enduring power of attorney unless’ there is compliance with both the witnessing and acceptance requirements makes these provisions mandatory. 35 Drawing from the cases above it is possible to identify essential elements (or as described by QGAAT ‘the important factors’) in the creation of an EPA to enable an assessment to be made as to whether a foreign EPA corresponds sufficiently in form and effect to an EPA created under s 104 of the GA Act. 36 I find that the following elements of form are essential to the creation of a power of attorney: that it is in writing; that it is executed as a deed; that it appoints an attorney or attorneys; that its commencement is certain; that there is acceptance of the power by the attorney or attorneys and it is independently witnessed. 37 In respect of the effect of any EPA it is fundamental that it survive loss of capacity of the donor. Another aspect of the operation of EPA’s in Western Australia is that the attorney’s authority is limited to the financial and legal affairs of the donor - they do not provide for medical decisionmaking. This is clear from the words in cl 2 of Sch 3; 'I authorise my attorney to do on my behalf anything that I can lawfully do by an attorney.' Medical and personal authorities are now provided for by other instruments which may be created under the GA Act.
Does the Victorian EPA correspond sufficiently 38 In respect of the requirements that it correspond in form, the Victorian EPA is created by deed, it specifies the operation and the effectiveness of the power from execution and it is witnessed by a solicitor and another witness. In respect of its effect, the Victorian EPA does not provide for medical decisions to be made by the attorney (by operation of s 117(5) of the Instruments Act 1958 (Vic). It is limited to the authorities which could be exercised by an attorney appointed under an EPA made pursuant to s 104 of the GA Act. Crucially, it survives incapacity of the donor. To this extent it corresponds closely to an EPA made pursuant to s 104 of the GA Act. (Page 11)
39 In contrast to the GA Act provisions, and consistent with Sch 13 as provided for in the Instruments Act 1958 (Vic) at the time of its execution, the Victorian EPA does not include a statement of acceptance in terms as provided under s 104(2)(b) of the GA Act or at all. 40 The Victorian EPA is, however, endorsed by the signatures of the attorneys at the foot of the document; the specimen signatures of the attorneys. 41 The inclusion of the signatures of TY and PY as ‘specimen signature of the attorney’ on the Victorian EPA provides, in my view, a form of acceptance of their role as attorneys. 42 Despite the noncompliance with the mandatory provisions in s 104(2), the Tribunal is satisfied that the Victorian EPA executed by the donor in favour of TY and PY corresponds sufficiently in form and effect to a power of attorney created under s 104 of the GA Act. 43 The requirements to s 104 of the GA Act are specific and it appears that few, if any, of the instruments created as enduring powers of attorney in the other states of Australia or other countries would comply with the strict provisions for the execution of a document consistent with the section. In particular, the witnessing provisions in s 104(2)(a), or in respect of the statement of acceptance in s 104(2)(b) are unlikely to be strictly complied with. 44 It is accepted that the formality requirements provided for in the legislation provide safeguards and protection for the donor executing the power, and in particular the independent witnessing of the instrument. 45 The acceptance of the power by the attorneys as required by s 104(2)(b) provides in Form 2 of the Schedule for the acknowledgement by the donees that they are subject to the provisions of Pt 9. Even though the Victorian EPA does not provide for this acknowledgement, the attorney is subject to the provisions of Pt 9 of the GA Act by virtue of s 102 since the donee of the Victorian EPA becomes subject to those provisions on recognition. 46 Section 104A does not require strict compliance with s 104 but ‘sufficient correspondence’ both in form and effect with s 104. The Australian Oxford Dictionary (2nd ed, 2004) defines ‘correspond’ as meaning ‘analogous or similar’. ‘Sufficient’ is defined as ‘sufficing, adequate or enough’. I am satisfied that the endorsement of the attorneys (Page 12)
by their specimen signatures at the foot of the Victorian EPA is sufficient to denote acceptance of their roles as attorneys for this purpose.
Is it appropriate to recognise the Victorian EPA 47 The purpose for which recognition is sought is to execute a document on the donor’s behalf in Western Australia in order to register the donor’s interest in a mortgage on a survivorship application with Landgate. The Tribunal is satisfied that it is appropriate to recognise the power. |