Re Cy; Ex Parte PY - [2011] WASAT 156

RE CY; EX PARTE PY [2011] WASAT 156

Last Update: 05/10/2011

RE CY; EX PARTE PY [2011] WASAT 156
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2011] WASAT 156
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:1514/2011	Heard:	5 JULY 2011
Coram:	MS F CHILD (MEMBER)	Delivered:	27/09/2011
No of Pages:	12	Judgment Part:	1 of 1
Result:	Foreign enduring power of attorney recognised.
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	PY
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) Powers of Attorney Act 1998 (Qld) State Administrative Tribunal Act 2004 (WA), s 77
Case References:	AC, Re [2003] QGAAT 18 CH [2003] WAGAB 1 CS and JS [2005] WASAT 285 IMP [2006] WASAT 57 KS [2008] WASAT 29
Summary:	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. 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.

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

Applicant

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…

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 Cy; Ex Parte PY

Details

AGLC: Re Cy; Ex Parte PY [2011] WASAT 156
Case: [2011] WASAT 156
Decision Date: 27 SEPTEMBER 2011

CaseChat Overview and Summary

The matter of Re Cy; Ex Parte PY was heard in the Supreme Court of Western Australia. The dispute centred on the validity and recognition of an enduring power of attorney (EPA) created in another jurisdiction and its application in Western Australia. The primary issue was whether the EPA was sufficiently similar in form and effect to those created under Western Australian legislation to be recognised and enforced.

The court was required to determine if the EPA executed by Cy met the statutory requirements for recognition under Western Australian law. This involved an analysis of the form, content, and effect of the EPA to ascertain if it aligned with the legal standards established by the Guardianship and Administration Act 1990 (WA). The court needed to assess whether the EPA contained the necessary elements, such as the appointment of an attorney, the granting of specific powers, and the acknowledgment of the consequences of the document, in a manner consistent with local legislation.

In reaching its decision, the court examined the EPA in detail, considering its similarity to the statutory requirements for enduring powers of attorney in Western Australia. The court found that the EPA executed by Cy sufficiently corresponded in form and effect to those created under the local legislation. Consequently, the court recognised the foreign EPA, enabling PY to act under its authority within the jurisdiction of Western Australia.

Orders

Orders of the court

Foreign enduring power of attorney recognised.

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

Full text does not contain this section.