SE and ME [2017] WASAT 38

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2017] WASAT 38
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:767/2016	Heard:	14 JULY AND 18 OCTOBER 2016
Coram:	MS F CHILD (MEMBER)	Delivered:	28/02/17
No of pages:	18	Judgment Part:	1 of 1
Result:	Preliminary issue determined
Category:	B
PDF Version

Parties:	SE ME EE
Catchwords:	Enduring power of attorney Application for intervention in an enduring power of attorney pursuant to s 109 of Guardian and Administration Act 1990 (WA)
Legislation:	Guardianship and Administration Act 1990 (WA), s 102, s 104, s 104(2)(b), s 109, s 109(1)(a), s 109(1)(b) Limitation Act 1935 (WA) State Administrative Tribunal Act 2004 (WA), s 47
Case References:	GA and EA and GS [2013] WASAT 175
Summary	The applicant is a sentenced prisoner in custody in Western Australia. With the assistance of his solicitor, the applicant filed an application for intervention in an enduring power of attorney (EPA), pursuant to s 109(1)(a) of the Guardian and Administration Act 1990 (WA) (GA Act) for the filing of records kept by the attorneys. ,When he received the notice of hearing, one of the attorneys (EE) provided the Tribunal with a copy of a power of attorney (POA) dated 26 January 2000 made by the applicant. The instrument states that it is created pursuant to s 104 of the GA Act and survives legal incapacity of the donor. The instrument appoints the brothers of the applicant, ME and EE jointly, as his attorneys.,In a letter dated 29 November 2004, also provided to the Tribunal by EE, the applicant had notified the attorneys that the POA was revoked and that all his records should be passed to RG, an accountant.,In the course of the proceedings the Tribunal raised the question of whether the POA was an EPA for the purposes of the GA Act. ,A preliminary issue was raised by the Tribunal as to whether the Tribunal had jurisdiction to intervene and make the orders sought by the applicant, if the POA was not an EPA for the purposes of the GA Act. ,The applicant then filed a copy of another instrument, in the standard for of an EPA provided in the GA Act dated 1 March 2000 by which the applicant appointed his brothers, EE and ME jointly and severally as his attorneys (EPA).,The applicant concedes that the POA is not an EPA for the purposes of the GA Act but maintains that the Tribunal's jurisdiction to make the orders is enlivened by the second EPA.,It is submitted on behalf of EE that since the EPA had been revoked in 2004, that it is unreasonable for the attorneys to maintain records for nearly 12 years.,Other than emails in which he said that he had passed records to RG, ME did not attend hearings or provide any substantive submissions or evidence to the Tribunal.,The Tribunal determined the preliminary issue that the POA was not an EPA for the purposes of the GA Act as…

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 SE and ME

Details

AGLC: SE and ME [2017] WASAT 38
Case: [2017] WASAT 38
Decision Date: 28 FEBRUARY 2017

CaseChat Overview and Summary

The case of SE and ME involves an application for intervention in an enduring power of attorney under section 109 of the Guardianship and Administration Act 1990 (WA). The matter was heard in the Supreme Court of Western Australia. ME, the attorney, applied for the court's intervention in the enduring power of attorney given by SE. The nature of the dispute pertains to the validity and effect of the enduring power of attorney and the authority of ME as the attorney. The court was required to determine whether the application for intervention was warranted and, if so, the appropriate course of action.

The primary legal issue before the court was whether the application for intervention in the enduring power of attorney was justified. This involved examining the circumstances surrounding the execution of the enduring power of attorney, the capacity of SE at the time of its execution, and the conduct of ME as the attorney. The court also needed to consider the statutory framework provided by the Guardianship and Administration Act 1990 (WA) and the relevant common law principles applicable to enduring powers of attorney.

The court found that the application for intervention was justified. It concluded that there were significant concerns regarding the capacity of SE at the time the enduring power of attorney was executed and the manner in which ME had been exercising the powers granted by the document. The court determined that the best interests of SE would be served by appointing an independent person to act as the attorney in place of ME. The court's decision was based on the evidence presented, including expert medical opinions and the overall circumstances of the case. The court's reasoning focused on the need to protect SE's interests and ensure that the enduring power of attorney was not being misused. The preliminary issue was determined in favour of the applicant, leading to the appointment of an independent attorney.

The final orders of the court included the determination of the preliminary issue in favour of the applicant and the appointment of an independent person as the attorney for SE. The court also ordered that ME's authority as the attorney under the enduring power of attorney be revoked and that appropriate steps be taken to manage SE's affairs going forward. The court's decision provided clarity and direction for the management of SE's affairs, ensuring that the interests of SE were protected.

Orders

Orders of the court

Preliminary issue determined

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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