| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE JCN ; EX PARTE JGN [2011] WASAT 189 MEMBER : MS F CHILD (MEMBER) HEARD : 9 AUGUST 2011 DELIVERED : 9 NOVEMBER 2011 FILE NO/S : GAA 1361 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 Number of donees Form and effect Legislation: Instruments Act 1958 (Vic), s 114, s 119, s 125N, s 125P, Pt XIA
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Guardianship and Administration Act 1990 (WA), s 102, s 104, s 104A, s 104A(2), s 104A(2)(a), s 104(2)(a), Sch 3
State Administrative Tribunal Act 2004 (WA), s 77 Result: Power of attorney recognised Category: B
Representation: Counsel:
Applicant : N/A
Donor : N/A
Solicitors:
Applicant : N/A
Donor : N/A
Case(s) referred to in decision(s):
CS and JS [2005] WASAT 285
Ricetti and Registrar of Titles [2000] WASC 98
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The applicant sought an order for recognition in Western Australia of a power of attorney executed in Victoria pursuant to the Instruments Act 1958 (Vic) to enable property of the donor located in Western Australia to be sold. 2 The Victorian power of attorney nominated three attorneys. As the Supreme Court of Western Australia, in the decision Ricetti and Registrar of Titles [2000] WASC 98 had determined that an enduring power of attorney made in Western Australia could nominate two attorneys but no more, there was a question as to whether the Tribunal could recognise the Victorian power as an enduring power of attorney pursuant to the Western Australian Guardianship and Administration Act 1990 (WA). 3 Although the enduring power of attorney executed in Victoria had nominated three donees, the Tribunal found that it could recognise it as an enduring power of attorney in Western Australia. At the time the application for recognition was heard and the order subsequently made, there were only two attorneys appointed by the Victorian power of attorney. One of the donees (the spouse of the donor) had died, and by operation of s 125P of the Instruments Act 1958 (Vic), his appointment as an attorney was revoked on his death. In these circumstances, the Tribunal found that the Victorian power of attorney corresponded sufficiently to an enduring power of attorney created in Western Australia, and it was appropriate to recognise it for the purpose of the sale of the donor's property located in Western Australia.
Background and application 4 The applicant JGN (applicant) is the son of JCN, the donor (donor) of an enduring power of attorney (Victorian EPA) executed in Victoria pursuant to the Instruments Act 1958 (Vic) (Instruments Act). The applicant is one of the attorneys appointed and seeks recognition in Western Australia of the Victorian EPA pursuant to s 104A of the Guardianship and Administration Act1990 (WA) (GA Act). The donor is the owner of property in Western Australia which is currently the subject of litigation in the Supreme Court. The applicant is said to understand that the recognition in Western Australia of the Victorian EPA will not enable him, as the attorney, to conduct the litigation on the donor's behalf. The stated intention in the application before the Tribunal is that recognition of the Victorian EPA in Western Australia will allow the attorney to sell her Western Australian property on behalf of the donor. (Page 4)
5 Both the applicant and the donor live in Victoria. The donor resides at a residential aged care facility and is said to have ceased to possess capacity to conduct her affairs as she has a diagnosis of dementia. 6 The application was filed with the Tribunal on 4 May 2011. Following the application being filed, the Tribunal was advised of the death of the spouse of the donor in Victoria on 7 July 2011. 7 The application was heard on 9 August 2011. The applicant did not appear at the hearing but was legally represented. The hearing of the application was adjourned for further written submissions, which were received on 23 August 2011, after which the decision was reserved. 8 These written reasons are produced pursuant to s 77 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Identifying information of the donor has been removed consistent with the provisions of the GA Act.
Legislation 9 Section 102 of the GA Act defines an enduring power of attorney (EPA) as one created under s 104 of the GA Act or recognised by the Tribunal under s 104A(2) of the GA Act. 10 In s 102 of the GA Act the term 'donee' is defined as: 'includes two persons appointed whether jointly or severally, to act under a power of attorney'. 11 In Ricetti and Registrar of Titles [2000] WASC 98 (Ricetti) [at 11] it was held that the definition of 'donees' in s 102 of the GA Act meant that: 'one or at the most two persons may be appointed donees in an enduring power of attorney'. The Court dismissed proceedings seeking a declaration of the validity of the document purporting to be an EPA that appointed three attorneys jointly and severally. 12 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)
(b) in which the donor of the power declares that the power either (2) An instrument is not effective to create an enduring power of attorney unless (a) there are 2 attesting witnesses to the instrument (i) both of whom are authorised by law to take declarations; or (ii) of whom and (b) the instrument has endorsed on it, or annexed to it, a statement of acceptance in the form, or substantially in the form, of Form 2 in Schedule 3 executed by (3) A witness referred to in subsection (2)(a)(ii)(II) must be a person (a) who has reached 18 years of age; and (b) who is not a person appointed to be a donee or substitute donee of the power. 13 Section 104A of the GA Act allows for the recognition of powers of attorney created outside of Western Australia. 14 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. (Page 6)
(2) Where the State Administrative Tribunal is satisfied, on an application made under subsection (1), that the Tribunal may make an order recognising that power of attorney as an enduring power of attorney for the purposes of this Part. Evidence and material before the Tribunal
The Victorian EPA 15 A certified copy of a document entitled 'Enduring Power of Attorney' executed on 7 September 2007 pursuant to Pt XIA of the Instruments Act was filed with the application for recognition. 16 The Victorian EPA states that it has effect as a deed. By cl 1 the donor appoints her husband, LWN, and sons, GMN and JGN, jointly and severally as her attorneys. By cl 1(a) the donor appoints AAG as substitute attorney. By cl 2 the attorneys are authorised to do anything which the donor may lawfully authorise an attorney to do. By cl 3 no conditions or limitations are imposed. By cl 4 the power commences immediately. By cl 5 the power is declared to continue to operate and have full force and effect even if the donor becomes legally incapable. 17 Attached to the Victorian EPA is a statement of acceptance from LWN, GMN and JGN and by AAG, the substitute attorney. Also attached is a certificate of witnesses stating the donor signed the Victorian EPA freely and voluntarily in their presence and, at the time of signing, the donor appeared to have the capacity necessary to make the EPA. 18 A death certificate for the spouse of the donor is also before the Tribunal.
Recognition of a foreign jurisdiction under s 104A of the GA Act 19 For the Tribunal to recognise pursuant to s 104A of the GA Act an EPA made in another jurisdiction, 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 (Page 7)
the law under which it was created. Secondly, the Tribunal must then find that the power corresponds sufficiently in form and effect to an EPA created under s 104 of the GA Act. Finally, the Tribunal must decide if it is appropriate to make the order for recognition. 20 The Instruments Act, as at 7 September 2007, provides for the creation of an EPA by an adult, which, by s 114 of that Act is not revoked by subsequent legal incapacity of the donor. By s 119, the donor may appoint two or more joint and several attorneys. Section 125P provides that the appointment of an attorney is revoked by the death of the attorney.
Submissions of the applicant 21 It is submitted that, but for the fact the Victorian EPA appoints three donees, there would be no question of sufficient correspondence for the purposes of s 104A of the GA Act. The Victorian EPA, it is submitted, is substantially in the same form as Form 1 of Sch 3 of the GA Act; contains a declaration by the donor that the EPA will continue in force, notwithstanding her subsequent legal incapacity; and has two attesting witnesses, one of whom is authorised to witness the signing of statutory declarations in Victoria, with the other not being a donee or substitute donee of the EPA. There is an acceptance by the donees. 22 It is submitted that the main obstacle to the recognition of the EPA under s 104A of the GA Act is the fact that the three donees were originally appointed. It is acknowledged that the Supreme Court has held that the definition of donee in s 102 of the GA Act operates to restrict the number of donees which can be appointed under the EPA created under the GA Act. Ricetti at [11]. It is submitted that because the EPA would not have complied with s 104 of the GA Act, it does not necessarily mean that it would not sufficiently correspond in form and effect to a regularly executed Western Australian EPA. 23 It is argued that the naming of three joint and several donees in the Victorian EPA is a similar deviation in an instrument to the Tribunal accepting one witness rather than the two as required pursuant to s 104(2)(a) of the GA Act in an earlier decision of the Tribunal (CS and JS [2005] WASAT 285 at [12]). 24 Further it is submitted that the spouse of the donor had ceased to have legal capacity to conduct his own affairs and, by operation of s 125N of the Instruments Act the Victorian EPA as it referred to him would be revoked to the extent that it conferred power on him and that upon his (Page 8)
death on 7 July 2011 the Victorian EPA was revoked to the extent it conferred power on him. 25 By operation of s 125P of the Instruments Act, it is submitted that the effect of the statutory revocation, whenever it occurred, was that the spouse of the donor ceased to be a donee appointed to act under the Victorian EPA. However, as the three donees under the Victorian EPA were appointed jointly and severally, the revocation did not affect the continuing powers or appointment of the remaining donees, the sons of the donor, JGN and GMN. 26 It is argued that, as there are now only two donees appointed under the Victorian EPA, the power corresponds sufficiently in effect, if not in form to an EPA created under s 104 of the GA Act. Further, if the Victorian EPA is recognised under s 104A of the GA Act, this will result in there being two donees of the power of attorney. 27 It is submitted that while the word 'and' is used conjunctively in the phrase 'corresponds sufficiently in form and effect', there are occasions where the word 'and' should be construed disjunctively or dispersively in a particular context. It is argued that, because the provisions of the GA Act are very prescriptive as to the form of an EPA, the form requirements prescribe the effect of an EPA. It is submitted that it is difficult to conceive of the circumstance in which an EPA created in another jurisdiction which is substantially in the same form as a Western Australian EPA would not have substantially the same effect. It is argued that, as the qualities of form and effect to a great extent are interdependent, the word 'effect' in s 104A(2)(a) of the GA Act would be rendered otiose if there had to be sufficient correspondence as to both form and effect, because the correspondence in form necessarily leads to correspondence in effect. 28 It is argued that the word 'and' in s 104A(2)(a) of the GA Act should be construed as having a disjunctive or dispersive meaning, that is, read as 'form and/or effect'. Such a construction gives the words 'and effect' some work to do, those words allowing recognition of an EPA which, although lacking sufficient correspondence in form, nonetheless for whatever reason corresponds in effect. Such a construction also serves the purpose or object of s 104A of the GA Act, which is to overcome legal technicalities arising out of the fact that EPAs are creatures of statute, and there is no uniform legislation for regulating their creation in Australia or other jurisdictions. (Page 9)
29 It is submitted that s 104A of the GA Act is remedial legislation and should be construed beneficially and that if a person or case falls within the general spirit of such remedial legislation, and there are two possible interpretations, the courts ought not to construe the GA Act so as to exclude that personal case.
Reasons 30 I accept that, but for the appointment of three donees, the Victorian EPA corresponds closely to an EPA created under s 104 of the GA Act. 31 I do not accept the proposition that correspondence in form necessarily leads to correspondence in effect in respect of an instrument submitted for recognition as an EPA. Examples of powers of attorney which mirror Form 1 of Sch 3 of the GA Act but include conditions such as revocation at the election of the donee or which purport to confer powers to make personal decisions do not have the effect of an EPA created under s 104 of the GA Act. However, it is not necessary to go further to address the submissions of the applicant than to consider the Victorian EPA at the time the application for recognition was determined. 32 Although at its execution in 2007 the Victorian EPA appointed three donees, and this is not consistent with the number of donees as determined in Ricetti, on the death of the donor's spouse and by operation of s 125P of the Instruments Act, the Victorian EPA was revoked to the extent that it conferred power on the spouse. Therefore, following the death of the spouse and at the time of the order for recognition, the Victorian EPA confers authority on two attorneys jointly and severally. 33 The Tribunal is satisfied that the Victorian EPA corresponds sufficiently in form and effect to an EPA created under s 104 of the GA Act and it is appropriate to recognise it. (Page 10)
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