Re SS; ex parte RA - [2008] WASAT 218

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
Donor
AND
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…

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 SS; ex parte RA

Details

AGLC: Re SS; ex parte RA [2008] WASAT 218
Case: [2008] WASAT 218
Decision Date: 19 SEPTEMBER 2008

CaseChat Overview and Summary

In the Family Court of Australia, the case of Re SS; ex parte RA involved a dispute concerning an enduring power of attorney. RA sought to intervene in the administration of an estate governed by an enduring power of attorney executed by SS. The deceased, SS, had appointed RA and another individual as attorneys under the power of attorney. The dispute arose following SS's death, as RA sought to challenge certain transactions executed by the other attorney on behalf of the estate.

The central legal issues before the court were whether RA had a proper interest to bring the application and whether the transactions in question could be characterised as being made 'in connection with the power' of attorney. The court had to determine if RA's interest in the application was sufficient to satisfy the requirement of standing and whether the transactions executed by the other attorney were within the scope of the enduring power of attorney.

The court examined the nature of the transactions and their connection to the enduring power of attorney. It held that RA's interest in the application was sufficient to confer standing, as the transactions in question affected the distribution of the estate and RA had a vested interest in the proper administration of the estate. The court further found that the transactions were indeed made 'in connection with the power' of attorney, as they involved the management and distribution of the estate assets under the terms of the enduring power of attorney. Consequently, the court determined that RA was entitled to intervene in the administration of the estate.

The court's decision allowed RA to intervene in the proceedings and seek appropriate remedies to ensure the proper administration of the estate in accordance with the enduring power of attorney. The court's ruling provided clarity on the requirements for standing in such cases and the scope of transactions that can be considered 'in connection with the power' of attorney.

Orders