Re SS; ex parte RA
[2008] WASAT 218
•19 SEPTEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: RE SS; EX PARTE RA [2008] WASAT 218
MEMBER: MS F CHILD (MEMBER)
MS J STANTON (SENIOR SESSIONAL MEMBER)
MS S GILLETT (SENIOR SESSIONAL MEMBER)
HEARD: 22 MAY 2008 AND 25 JULY 2008
DELIVERED : 19 SEPTEMBER 2008
FILE NO/S: GAA 620 of 2008
GAA 624 of 2008
EX PARTE
RA
Applicant
SS
DonorAND
JS and BH
Donees
Catchwords:
Guardianship and administration - Application to intervene in an enduring power of attorney - Donor deceased - Requirement that the applicant have proper interest to bring application - Protective trust - Trustees donees of enduring power of attorney - Whether trust transactions made 'in connection with the power'
Legislation:
Guardianship and Administration Act 1990 (WA), s 40, s 109
Result:
The applications are dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Donor: N/A
Donees: Self-represented
Solicitors:
Applicant: Self-represented
Donor: N/A
Donees: Self-represented
Case(s) referred to in decision(s):
Butler v St John of God Health Care Inc [2008] WASCA 174
KS [2008] WASAT 29
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Applications were before the Tribunal for the appointment of a guardian and an administrator for an elderly woman and for intervention in an enduring power of attorney she had executed, and were part heard when the woman died.
Although the applications for the appointment of a guardian and an administrator fell away following the woman's death, the applicant asked that his application for intervention in the enduring power of attorney proceed because he was suspicious about actions undertaken by the woman's accountant and solicitor who had been appointed trustees of a trust into which substantial funds of the woman had been transferred.
The trustees had also been appointed donees of an enduring power of attorney the woman had executed on the same day that the trust was created. These arrangements had taken place in the months before her death and the applicant remained concerned about the impact they now had on the interests of the man, also his friend, who he said had been the de facto partner of the woman.
Although the Tribunal found that the woman's memory was impaired, the medical evidence supported her capacity to execute the enduring power of attorney, and she had endorsed the creation of the trust and the reasons for it in the first hearing. The trust had been created on the advice of her accountant but the woman had had independent legal advice.
Although the Tribunal plays a supervisory role in respect of enduring powers of attorney and can intervene even where the donor of the power has died, the Tribunal determined that this was not a case for intervention because the applicant did not have a proper interest in the bringing of the application or in the financial information which could be obtained if the orders he sought were made.
The applicant had, at around the time of the applications, assisted the man who he considered to be the woman's de facto partner, in a dispute about the ownership of a property the woman had purchased. The applicant also was the donee of an enduring power of attorney executed by the man and believed him to have an interest in the funds transferred into the trust. This placed the applicant in a position of conflict in respect of his application before the Tribunal. The reason given by the applicant for the continuation of his application after the woman had died was to advance the interests of the man in the woman's deceased estate.
The transaction which raised suspicion in the mind of the applicant was a transfer by the woman of her cash assets into the trust. The transfer was not undertaken by the donees in their capacity as donees of the enduring power of attorney but as trustees. Whether the transactions were 'made in connection with the power' was arguable but did not need to be decided by the Tribunal.
The Tribunal concluded that although the Tribunal could order donees of enduring powers of attorney to account, the purpose of this role was to ensure the proper operation of enduring powers of attorney in the interests of donors in their lifetime and not for the purposes of the present application.
The Tribunal concluded that the applicant did not have a proper interest in bringing the application as required by the legislation. For this reason the application for intervention was dismissed.
Reasons for decision of the Tribunal
These written reasons relate to the decision of the Tribunal made on 25 July 2008 to dismiss an application made pursuant to s 109 of the Guardianship and Administration Act 1990 (WA) (GA Act) for intervention in respect of an enduring power of attorney executed by SS.
The GA Act provides for limitation on the publication of any identifying information of participants in proceedings in the Tribunal commenced under that Act. Consistent with this and the Tribunal's practice, these reasons are anonymised with identifying information removed.
Applications before the Tribunal
The applicant applied on 17 March 2008 for orders pursuant to s 109 of GA Act for intervention in an enduring power of attorney (EPA) made by SS, an 80-year-old retired business woman. The order sought is for the filing with the Tribunal and service on the applicant of records of transactions made in connection with the power. On 28 March 2008 he applied for the appointment of a guardian and an administrator for SS.
SS was at the time the matters came on for hearing on 22 May 2008 (the first hearing) staying with a friend, who she regarded as a sister, in Melbourne.
In the first hearing the Tribunal heard from the applicant, SS; her daughter, KS (both by telephone); JS (SS's accountant) and BH, a solicitor, who were both appointed as donees of an EPA executed by SS on 27 September 2007. The Tribunal also heard submissions from a solicitor acting for JS and BH in their capacity as trustees of a trust established with funds transferred from SS's business accounts. An investigator from the Office of the Public Advocate who had interviewed SS prior to her travelling to Melbourne reported on his investigation and made submissions at the hearing.
At the conclusion of the first hearing the applications were all adjourned and the donees of the EPA (the accountant and the solicitor), at the suggestion of the investigator from the Office of the Public Advocate, gave undertakings to secure the property of SS, as KR, the man who the applicant said was her de facto partner, was overseas for health reasons and the property was said to be vacant.
The actions proposed included the registration of a caveat on her property, (as the whereabouts of the duplicate Certificate of Title was unknown), securing the house property and contents by changing the locks, securing the vehicles and arranging insurance on the property and its contents.
The daughter of SS agreed to assist the Tribunal by arranging a specialist medical assessment of SS's capacity to make decisions about her person, in particular about where she was to live and about the management of her financial affairs.
The Public Advocate was asked to undertake a further investigation of the applications; in particular whether SS was a person for whom a guardianship and administration order could be made and, in the circumstances, whether she was in need of a guardian and administrator. The Public Advocate was also asked to consider whether an existing EPA executed by SS represented a less restrictive alternative to the making of an administration order and whether there was a need for an administrator or guardian to play a role in relation to the trust which had been established. Orders were made to that effect.
The hearing of the applications was adjourned until 25 July 2008 at which time it was expected that both the reports of the capacity assessment of SS and the Public Advocate's investigation would be available.
On 1 July 2008 the Tribunal received advice from the applicant that SS had died on 17 June 2008.
The Tribunal wrote to the applicant in response to matters raised by him, advising that the applications for the appointment of a guardian and administrator had fallen away because SS had died but that his application under s 109 of the GA Act for intervention in the EPA could proceed because the Tribunal had jurisdiction to intervene in respect of EPA's even where the donor had died.
As the applicant indicated that he wished to proceed with his application for intervention, orders were made on 2 July 2008 for the conduct of the proceeding. The applicant was ordered to file and serve on the other parties by 14 July 2008 his submissions as to why the Tribunal should exercise its discretion under s 109 of the GA Act. Any submissions filed in response by the donees were ordered to be filed by 21 July 2008.
As the applicant did not file submissions as ordered, no submissions were filed in response.
Despite the noncompliance with the programming orders the Tribunal proceeded with the hearing on 25 July 2008. By the time of the hearing the donees had responded to a series of questions put by the investigator from the Office of the Public Advocate and that report is before the Tribunal.
Following further oral evidence from the parties including KR, the man the applicant said was the de facto partner of SS, the Tribunal determined that this was not an appropriate case for intervention and dismissed the application.
Evidence and material before the Tribunal
The applicant's case
SS was aged 80 years at the time of the applications and was a retired business woman. In written material before the Tribunal the applicant said that he had known her for some 20 years, having met her in the course of the professional role he had played in the regulation of the business in which she was engaged prior to her retirement some years before. He stated he was also a friend, particularly of KR who he regards as SS's long-term de facto partner.
A submission from the applicant dated 10 March 2008 states that the applicant is the donee of an enduring power of attorney (EPA) executed by KR and as such had been requested to investigate the actions of the donees of SS's EPA to determine if any breaches of the GA Act had occurred.
The applicant said that he became concerned about the financial affairs of SS following a conversation with KR in which KR had said that money had been removed from SS's bank account. The applicant had visited SS with KR present on 13 February 2008. The applicant says that SS became distressed and said she had been asked to sign papers by her accountant, JS. The applicant had prepared a letter seeking information about the conduct of SS's affairs and delivered it to an address he believed to be the business address of JS. The letter is before the Tribunal and sets out some the history of SS's business, refers to the sale of property and the closure of a term deposit on 28 September 2008. The letter states that SS wanted to take possession and control of all of her monies. The letter is signed by SS and notes that it was prepared by the applicant at her direction.
In his application for intervention the applicant refers to the need to check that SS's 'money is invested under correct names' and later after a reference to KR, who he described as 'her de facto of 34 years', to the need to 'confirm that their investment is secure'.
According to the applicant, SS seemed not to understand what was happening with her financial affairs and was 'influenced by her accountant'. The applicant says that on SS's instructions he prepared a revocation of an enduring power of attorney which he had been advised by BH, a solicitor acting for SS, that SS had given to the JS, on 27 February 2008. The revocation is dated 13 March 2008. The applicant then made the application to the Tribunal seeking intervention in an EPA. The application made under this provision refers to SS having 'very slight dementia'.
In the first hearing the applicant read from notes of a meeting held on 9 April 2008 between him, SS and her bank manager. The applicant reported that his notes referred to 'the closure of SS's account by trustees with the effect that SS had no control or authority over her investment'. The bank manager is reported to have advised SS that she was unable to tell SS about the balance of the account and that SS 'had set up a trust with accountant and lawyer at the [name deleted] Bank' (T:16, [22.05.08]). The trust account was reported not to be in SS's name. Documents before the Tribunal show that a term deposit in a business name used by SS was closed on 28 September 2008. The closing balance was $205,896. A business cheque account of SS also shows a closing account withdrawal of $37,719.87 on 28 September 2008.
In the second hearing after SS's death, the applicant said that he still wanted accountability for what had occurred in relation to SS's money. He states that he believed that as SS and KR had been in a de facto relationship for nearly 40 years that their 'rights are equal even in finances'. He said that:
[T]he ethical way to do something would be to consult [KR] that 'this is what we're going to do with maybe your money as well'. How do they know that [it] wasn't [KR's] money. (T:25, [25.07.08])
Response from the donees
In response to the applications, JS states that he had been SS's accountant for some 12 years. He advises that from about 1998, the accounting firm for whom he worked had dealt with SS's accounts and since about 2006 when her business was sold, all of SS's mail had been redirected to the firm. He states that it was through this he learnt of what he considered were irregularities in relation to an offer to purchase a property for which SS had paid. He asserts that there had been an offer to purchase the property in the name of KR alone. Further, that he had given instructions to a firm of solicitors (the principal of which was the other donee of an EPA executed by SS, BH) in March 2008 to write to KR regarding the property and to investigate concerns raised by SS about the property and in whose name it was held. A copy of that letter dated 10 March 2008 and KR's response dated 13 March 2008 are in the material before the Tribunal.
The accountant asked the Tribunal to consider speaking to SS without any other parties present as she was in his view unable to 'withstand direct pressure'. He asserted this vulnerability was exemplified by two recent events:
[O]ther parties including the applicant pressuring her to sign a letter … requesting all [her] funds be handed back, which as soon as they left her house she called me to refute anything it contained as she signed it 'to get some peace' and the second was when 'the same parties pressured her to sign the revocation of the EPA following [KR] receiving the letter from [the solicitors instructed] requesting the [location deleted] property by [sic] be transferred back to her. Again after the parties left … she called me to say she didn't want to sign the revocation but did so … so she could have some peace.
In the first hearing, JS described the establishment of a trust for funds transferred from a business account of SS in September 2007. A copy of the trust deed executed on 27 September 2007 provided to the Tribunal by BH shows JS and BH as trustees of the trust. JS advised that SS had wanted him to be appointed sole trustee but he was unwilling to be appointed alone. JS states that the only assets of the trust are the monies transferred from the term deposit of SS, previously held in business accounts and interest earned on those monies. The terms of the trust deed were that SS could not 'sack' the trustees; that is, the trust was irrevocable and the terms of SS's Will were incorporated into it.
The reason given by JS for the establishment of the trust and its terms was that SS had contacted him and he had become concerned at the rate of expenditure of her funds. He stated that over a five month period over $80,000 was spent and that the personal expenses were in excess of $4,000 a month. In February 2007 concern had been expressed to him by another friend of SS that proposals for expenditure by KR which SS was said not to agree. It was at this time JS asked that a trust deed be drawn by an independent solicitor who he states interviewed SS in his absence prior to the execution of the deed to ensure that she understood the consequence of the terms of the trust deed.
SS said that the reasons for the establishment of the trust as JS had explained it in the hearing were 'true' (T:38, [22.05.08]). She said that JS was not a 'standover merchant' that he explained matters to her and asked her to sign them after explaining them. After JS described aspects of the trust arrangements she said 'I'm quite happy. I don't know whether [the applicant] got the idea I'm not' (T:32, [22.05.08]). She also confirmed the substance of JS evidence about the property dispute in that she stated that the property was registered in joint names because KR had done this not her (T:35, [22.05.08]) and that he had not contributed to the purchase price (T:33, [22.05.08]).
The daughter of SS said that the trust was for her mother's protection and she agreed that it was needed. She was in contact with JS by telephone about financial needs of SS including the payment of a car registration and other matters. She said that she was willing and able to speak to the trustees if needed.
In relation to the applicant, SS stated that he and his wife were 'honest friends' and later that the applicant was 'forceful' and seeing them was like 'seeing my bosses' when she was in business. She agreed when the question was put by the Tribunal that she might tell one person one thing and another person different information depending on the circumstances.
Enduring powers of attorney executed by SS
In the first hearing, the Tribunal heard that that SS had executed three enduring powers of attorney.
The first was dated 21 February 2000 (2000 EPA) by which she appointed JS as her attorney. This document is styled to come into effect only following a declaration pursuant to s 106 of the GA Act by the Guardianship and Administration Board that it be in force. (The Tribunal now exercises this function of the former Board.)
The second EPA dated 27 September 2007 (2007 EPA) appoints JS and BH as attorneys. This is said to be in force notwithstanding the donor's subsequent legal incapacity. This document is witnessed by a solicitor and an accountant, and was executed on the same date as the formation of the trust. The acceptance signed by the donees is in the proper form.
The third EPA dated 27 February 2008 (2008 EPA) appoints JS solely. The 2008 EPA was purportedly revoked by SS in a letter dated 13 March 2008 which the applicant states he prepared for her. Both JS, the accountant, and BH, the solicitor, in their evidence before the Tribunal stated that SS later contacted them and said that she did not agree with letters sent by the applicant on her behalf.
Both JS and BH initially did not recall that they had accepted the role as donees of the 2007 EPA in September 2007. Both accepted that they had done so in the course of the first hearing. Both donees say they have not acted on the 2007 EPA. JS states he acted on the 2008 EPA when he instructed BH, a solicitor, at the request of SS to investigate the registration of the property of SS jointly with KR but this was suspended once they learnt of the applications to the Tribunal. This was the only matter undertaken as donee.
Capacity evidence
It was clear that SS was able to express her views to the Tribunal at the first hearing but a question was raised about her memory and orientation as comments later in her evidence in the hearing suggested that she believed that she was still running her business despite having retired some years before. This is consistent with the concerns expressed by the applicant in the applications and the report of the Public Advocate's representative who reported that when interviewed prior to her departure for Melbourne that SS's memory appeared to be incomplete about a number of matters including the transfer of her funds and the creation of the trust.
The Tribunal had two reports which address the question of capacity of SS. The report of Dr M dated 12 May 2008 notes that in his opinion SS had a 'mild short term memory deficit'. He was not sure if she was capable of making decisions about her personal health care, living situation and financial affairs but believed 'that she is of sound mind to make decisions regarding enduring power of attorney at this point in time'. Dr P, a geriatrician, assessed SS's cognition and provided a report dated 28 May 2008, of the assessment. The report notes in part:
[SS] denied having an enduring power of attorney however she told me she has a solicitor and accountant who she made 'her trustees'. Her accountant takes care of her money and gives her $250 per week. She believes she is not eligible for a pension. She did stop working in [country town] 2 or 3 years ago but claims that she did not sell her business and has rented this out and obtains a regular income from this. This information was contradictory to what her daughter told me which was that her business has been sold and she does get a pension.
In summary [SS] is an 80 year old woman … who does have a mild cognitive impairment. It was difficult to assess her ability to make financial decisions completely as I feel I do not have all the facts. What information she gave me seemed to be coherent and appropriate.
He recommended a formal neurological assessment. However, it appears that this had not been completed at the time of SS's death.
Both JS and BH maintain that they believed that they could take instructions from SS, as did the solicitor who prepared the trust deed as reported by the Public Advocate. The position taken by them is consistent with the capacity evidence before the Tribunal by the geriatrician who notes SS comments to him were 'coherent and appropriate'.
The medical evidence before the Tribunal is that SS was capable of giving an EPA at the time of her death. The execution of the 2007 and 2008 EPA's are consistent with SS's past actions to entrust her financial affairs to JS. She had redirected her mail to him, appointed him executor of an earlier Will and as donee of the 2000 EPA. The trust arrangements are also consistent with this and SS endorsed the arrangements in the first hearing.
In cases where the donor is or was capable, the Tribunal is likely to be reluctant to intervene because the powers of the Tribunal on intervention are or were within the power of a capable donor. In the first hearing SS indicated her support for the actions that had been taken by JS despite her inconsistent memory of the process.
The Public Advocate's submissions
The Public Advocate is an independent statutory officer with functions set out in s 97 of the GA Act. Those functions include:
(b)at hearings before the State Administrative Tribunal commenced under this Act,
(i)to seek to advance the best interests of the represented person or person to whom the proceedings relate;
(ii)to present to the Tribunal, Judge or Court any information in his possession that is relevant to the hearing; and
(iii)to investigate and report to the Tribunal, Judge or Court on any matter or question referred by a court or by the Tribunal, Judge or Court;
The referral of questions regarding SS made at the conclusion of the first hearing focussed on the applications for guardianship and administration. The issue of the enduring power of attorney was referred in the context that it might provide a less restrictive alternative to the making of an administration order. The Public Advocate was not specifically asked to investigate and report in respect of the application under s 109 of the GA Act.
Prior to the first hearing, the investigator had sent a series of questions to the donees regarding their knowledge of the financial and legal affairs of SS. The investigator reported at the second hearing that the responses from the donees and financial records had been 'reasonable enough' although the Public Advocate's office had not undertaken a formal audit as this was not the role of that office. The investigator reported that he had interviewed a number of persons including a long term friend of SS, GJ, who provided historical details about her life. The investigator said that GJ had said that SS had spoken to him about the intended trust arrangements, and believes JS and BH had acted in her best interests and on her instructions. The investigator said he had spoken to the solicitor who drew the trust documents (and the EPA) and confirmed he had taken instructions from SS for the preparation of the trust deed. The investigator submitted that no purpose would be served by the Tribunal making orders under s 109 of the GA Act.
The daughter of SS did not support intervention in the EPA as she considered the applicant to be 'working on behalf of KR'. She accepted that there had been accountability for financial decisions made and that the instructions to JS had come from her mother verbally.
Legislative framework
Section 109(1)(a) and (b) of the GA Act provides:
A person who has, in the opinion of the State Administrative Tribunal, a proper interest in the matter may apply to the Tribunal for an order -
(a)requiring the donee of an enduring power of attorney to file with the Tribunal and serve on the applicant a copy of all records and accounts kept by the donee of dealings and transactions made by him in connection with the power;
(b)requiring such records and accounts to be audited by an auditor appointed by the Tribunal and requiring a copy of the report of the auditor to be furnished to the Tribunal and the applicant for the order; or
In a determination on a question of law referred to the President of the Tribunal the general supervisory role of the Tribunal in respect of EPAs was identified: see KS [2008] WASAT 29, where the President said, at [34] in respect of a donor who had died:
[E]ven though the donor of an enduring power of attorney may have passed away, there may, in appropriate circumstances, be a proper reason established to justify the making of an order requiring the donee of an enduring power of attorney to account for his or her actions under the enduring power of attorney during the earlier lifetime of the donor, under s 109(1)(a) or s 109(1)(b) of the GA Act.
He went on to say that '[a]ny such order made could only require the relevant accounting or audit and would not have any other remedial effect'.
Issues for determination
The question is whether this is an appropriate case for the exercise of the discretion under s 109(1)(a) of the GA Act to require the donees to file with the Tribunal and serve on the applicant copies of records and accounts kept of dealings and transactions made in connection with the EPA, and further order, under s 109(1)(b) of the GA Act, that those accounts be audited.
Does the applicant have a proper interest in the matter?
In contrast to s 40 of the GA Act, under which applications for the appointment of guardians and administrators are made, where any person may apply to the Tribunal, s 109 of the GA Act requires that the Tribunal be satisfied that the applicant under that section has a proper interest in the matter. The matter being, the transactions and dealings made by the donees in connection with the EPA. When the other applications fell away on the death of SS, the Tribunal was required to consider this requirement in s 109 in determining the remaining application before it.
That s 40 of the GA Act is not limited as to who may apply is consistent with the protective nature of the orders which might be made on those applications for the appointment of a guardian, where for example a person is in need of oversight care or control in the interests of her own health and safety, or the appointment of an administrator where the person is unable by reason of mental disability to make reasonable judgments about her estate.
Although s 109 of the GA Act has a protective purpose, in that it provides in some circumstances for the accountability of donees acting under an EPA, the requirement that the Tribunal be satisfied of the proper interest of the applicant follows from the type of order made if the Tribunal exercises its discretion in s 109(1)(a). The order under that section provides that the donee will file with the Tribunal and serve on the applicant a copy of records and accounts kept by the donee.
In an application for intervention in the case of a living donor the Tribunal might make orders for the variation or revocation of an enduring power of attorney (see s 109(1)(c) of the GA Act if, for example, it finds the donees have failed in their obligations to the donor). Where the donor has died, an order under s 109(1)(a) (and an order under s 109(1)(b) for the audit of the accounts filed) are the only orders which can be made. When considering whether an order should be made, issues of the privacy of the donor may arise; there may be a question of whether the donor had shared this type of information with the applicant during their lifetime. The purpose of the applicant in seeking the orders for intervention forms part of the consideration of whether the applicant has a 'proper interest' to bring the application and to receive the records if so ordered.
In this case, at the time the application was made, according to material submitted by the applicant, he acted as donee of an EPA executed by KR. The Tribunal has heard that there was a dispute about the ownership of property, in that it was registered in [the] joint names of SS and KR, but that SS had paid for the property and did not agree that it should be held in that way. The applicant was acting for KR to respond to matters raised by a solicitor acting for SS regarding the dispute. It is clear that the applicant did not see this as a position of conflict. It is apparent from his submissions that he saw KR's and SS's interests as merged as he believed them to be a couple. He believed that SS was influenced by JS and it seems he did not accept that JS and BH were acting on her instructions.
When the applicant made the applications in respect of SS he may well have felt justified in his concerns about the finances of SS since KR had raised the transfer of funds with him and SS could not (or would not) give an explanation. When SS was asked about this in the hearing she said 'people were inquisitive' and that she was in a 'tough situation' and so 'could not always tell the truth' (T:62, [22.05.08]). From this and other statements she made in the first hearing we conclude that SS did not readily share information with the applicant.
When the question of the 'proper interest' of the applicant was being considered in the second hearing the applicant was taken to the relevant section of the Act and responded that his interest was, 'what happened to her money, and K[R]'s money' (T:13, [25.07.08]). When asked what his interest was since SS had died, he responded '[l]ooking after [KR], looking after [KR's] finances' (T:14, [25.07.08]).
Although the applicant did not appreciate this himself at the time, there was a conflict in his position as donee of an EPA of KR and the application for the financial records of SS maintained by the donees of her EPA when KR and SS were in dispute about the ownership of a property.
Further, in his submissions, the applicant disputes the ownership of the funds transferred from SS's accounts on the basis that he believes that SS and KR had a longterm relationship and as such that KR had some interests in the transferred funds. Even if SS were alive, an application to the Tribunal under s 109 of the GA Act would not be an appropriate vehicle for the resolution of that issue.
Since the death of SS, the purpose of the applicant proceeding with the application is to advance the interests of KR in respect of the deceased estate of SS. Again, orders under s 109 of the GA Act are not appropriate. The proper course in relation to this issue is that either KR or the applicant, as the donee of KR's EPA, seek legal advice and if appropriate make a claim against the deceased estate of SS.
Because of the position of the applicant as donee of an EPA of KR and the conflict this placed him in respect of the application under s 109 of the GA Act at the time it was made and the expressed purpose for the continuation of the proceeding following the death of SS, the Tribunal concludes that the applicant does not have proper interest in the matter and that the application should be dismissed.
Were the transactions made in connection with the power
Although the application has been decided for the reasons above the question of whether the transactions of concern to the applicant were made in connection with the power remains open.
The 2000 EPA was not in effect since there had been no declaration that SS was incapable bringing the power into force (see s 106 of the GA Act).
The 2007 EPA was prepared by the solicitor who drew the trust deed and it was executed on the same day as the formation of the trust. (It may be that this was done to enable the trustees to act on behalf of SS in relation to matters which did not form part of the trust property such as her real property and other matters, however no evidence is before the Tribunal regarding this.)
JS advises that when the issue arose as to the dispute about the property, that a further EPA was executed. The execution of the 2008 EPA (without revocation of the 2007 EPA) tends to support the evidence of JS and BH that they simply forgot the existence of the 2007 EPA. JS states, and we accept, that he acted on the 2008 EPA and on the instructions of SS when he asked BH to write to KR about the property. Although both JS and BH doubted the intention of SS to revoke the 2008 EPA, the investigation of the registration of the title of the disputed property and lodgement of a caveat was suspended when they had notice of the applications before the Tribunal.
Although the donees' evidence is that they did not recall the execution of the 2007 EPA there can be no doubt that it was legally in effect since it was declared to be so from its execution notwithstanding the donor's loss of capacity.
The transactions about which the applicant says there should be accountability are the transfers of funds from the business accounts of SS into the trust which occurred on the day after the execution of the trust deed (and the 2007 EPA). The evidence of the applicant is that the bank manager told him the closures of the accounts were made by the trustees.
Although we accept that the actions of the trustees are not transactions made pursuant to the EPA, there remains a question of whether the formation of the trust or the transfers of funds could be said to be transactions 'made in connection with' the 2007 EPA since the donees and the trustees are the same persons and the execution of documents occurred at around the same time. The words 'in connection with' have been held to be of very wide meaning and 'do not suggest a causal relationship': see for example Butler v St John of God Health Care Inc [2008] WASCA 174. A connection might include a connection in time between a particular transaction and an EPA.
It is not necessary to deal with this issue to determine this application as it has been dismissed for other reasons, but it remains a question which may arise in future applications made under s 109 of the GA Act.
Orders
The Tribunal ordered that the applications are dismissed.
I certify that this and the preceding [78] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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