SMM
[2020] WASAT 85
•29 JULY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: SMM [2020] WASAT 85
MEMBER: MS F CHILD, MEMBER
HEARD: 7 MAY 2020
DELIVERED : 29 JULY 2020
PUBLISHED : 31 JULY 2020
FILE NO/S: GAA 472 of 2020
SMM
Represented Person
Catchwords:
Guardianship and administration - Enduring power of attorney - Application pursuant to s 109(1)(a) and (b) of Guardianship and Administration Act 1990 (WA) requiring attorney to produce records of transactions made under the power - Whether an enduring power of attorney under Guardianship and Administration Act 1990 (WA) due to defects in form in execution - Whether provisions of Pt 9 apply to enduring power of attorney - Whether inquiry warranted which would require donee to file records
Legislation:
Guardianship and Administration Act 1990 (WA), s 102, Pt 9, s 104, s 104(1)(b), s 104(1)(b)(ii), s 104A(2), s 106, s 107(1), s 107(1)(b), s 109, s 109(1), s 109(1)(a), s 109(1)(b)
Result:
Orders made
Category: B
Representation:
Counsel:
| Represented Person | : |
Solicitors:
| Represented Person | : | Spyker Legal |
Case(s) referred to in decision(s):
CH [2003] WAGAB 1
EW [2010] WASAT 91
GA and EA and GS [2013] WASAT 175
KS [2008] WASAT 29
Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355
REASONS FOR DECISION OF THE TRIBUNAL:
The application and proceeding before the Tribunal
SMM filed an application with the Tribunal in February 2020 seeking orders pursuant to s 109(1)(a) and (b) of the Guardianship and Administration Act 1990 (WA) (GA Act) requiring the filing of records of accounts kept by the donee of SMM's enduring power of attorney (2012 EPA) and the audit of those records.
The 2012 EPA was executed by SMM on 16 January 2012 and appointed her daughter MS as her sole attorney. The 2012 EPA was revoked by SMM in October 2019. Another EPA was executed by SMM which appoints her other daughter RB.
The application before the Tribunal was listed for directions on 25 February 2020. SMM attended the directions together with her legal representative and family members. MS attended by telephone.
Programming orders were made directing the parties to file and exchange a list of witnesses to be called and summary of evidence 14 days prior to the hearing which was later listed on 7 May 2020. MS did not file either a summary of evidence or a list of witnesses.
Following notification by the Tribunal to the parties of the hearing date, by email dated 15 March 2020, MS advised she was unavailable for the listed hearing date. No reason was given for her unavailability. SMM through her solicitor objected to the vacation of the hearing date. The Tribunal directed that the hearing should proceed on the listed day unless MS produced a medical certificate.
At the hearing on 7 May 2020 several attempts, without success, were made to telephone MS on the same number used for the February 2020 directions.
The Tribunal determined that the s 109(1)(a)of the GA Act application should proceed as it accepted the submissions for SMM that MS had ample notice of the hearing and had failed to comply with directions made on 25 February 2020.
The application pursuant to s109(1)(b) of the GA Act was adjourned to a date to be fixed following the determination of the application under s109(1)(a) of the GA Act
Having considered the documents filed and SMM's summary of evidence and having heard submissions on behalf of SMM, the decision on the application was reserved. These are the reasons for that decision.
In all published decisions of the Tribunal in proceedings brought under the GA Act, names and any identifying information are deleted consistent with the provisions of the GA Act.
The evidence and material before the Tribunal
The Tribunal has had regard to the following material:
The application filed with the Tribunal on 4 February 2020 with annexures, which includes the 2012 EPA in the standard form dated 16 January 2012 by which SMM appointed MS as her sole attorney. In the 2012 EPA there is no election at clause 4. The document is said to be signed as a deed and was witnessed by AS (an acting bank branch manager) and a pharmacist. There is a signature believed to be that of MS on the acceptance in the standard form dated 16 January 2012.
A further copy of the same document stamped 'Superseded' was also submitted to the Tribunal. There is a date stamp on the document which reads 'received 16 January 2012, [town] WA'. The document is endorsed with a certification that it is a true and correct copy of the original sighted with the name and signature of AS beside which is written a number (which may be an employee identification number of the bank).
SMM says she appointed MS under the 2012 EPA from 16 January 2012 to 9 December 2019.
On 9 December 2019 SMM engaged a solicitor who wrote to MS advising that the 2012 EPA had been revoked and requesting information regarding the transactions MS had performed under the 2012 EPA. Preliminary inquiries on SMM's Commonwealth Bank of Australia pensioner security account (CBA account) had reportedly shown numerous transactions which appeared irregular and not for the benefit of SMM.
A list of 23 merchants from which purchases had been made was provided in the solicitor's letter. Numerous cash withdrawals are said to have been made with the sole bank card issued on the CBA account which it is said was in MS's possession. Bank statements on the CBA account were sent to MS at her residential address. The solicitor's letter requests that MS provide a full accounting of all dealings and transactions made by her under the 2012 EPA by 6 January 2020.
Solicitors for MS responded by letter dated 16 December 2019 as follows:
We are instructed that:
1.our client is the donee of an enduring power of attorney dated 16 January 2012 (EPA), the donor being her mother [SMM]
2.the EPA had immediate effect.
3.on 9 November 2016, [SMM's] regular GP, Dr [P], referred [SMM] to the SW Older Adult Mental Health Service requesting psychiatric review. It was noted at this time that SMM's cognitive abilities were deteriorating and required review. SMM was referred to Dr [R] Consultant Geriatrician and has been reviewed by Dr [R] since that time.
4.on 3 July 2018, Dr [R] wrote to Dr[ P] having reviewed [SMM] the same day. [SMM] was being followed up with a diagnosis of Alzheimer's Dementia. It was noted that her behaviour and personality were changing. [SMM] was prescribed at least 9 different medications at that time. Dr [R] advised our client to keep an eye on [SMM's] day to day living.
Please advise if you have made a determination as to whether you consider that SMM has the requisite capacity to give you instructions, and to attempt to revoke the EPA.
If you have received any recent medical evidence in this regard, please provide us with the evidence.
If you have not received any recent medical evidence, can you please arrange for Dr [P] to complete the attached SAT Medical Report Form and return it to us.
Our client strongly maintains that any transactions our client has performed on behalf of [SMM] relate to costs and expenses for [SMM]'s benefit, and that any such transactions are not irregular.
Once you have provided a response to the above requests, our client will provide us with further instructions as to the concerns you have raised.
A letter dated 23 January 2020 from SMM's solicitor to MS's solicitors (23 January letter) asserts that the 2012 EPA did not indicate that it had immediate effect and sought advice as to why MS contends this to be the case. The 23 January letter confirms the request for a full accounting by MS of all dealings and transactions made under the EPA and the return of a vehicle registered in SMM's name said to be in MS's possession, by no later than 31 January 2020.
On 26 February 2020, RB and SMM attended a CBA branch to ascertain when the change of address for SMM's bank statements was made. The CBA provided SMM with a copy of the 2012 EPA that had been used to authorise the change of address. (This is a copy of the document referred to at [14] above). SMM was told by the CBA that the change of address was authorised on 2 May 2016 and the CBA bank statements were then sent to MS's residential address from 2 May 2016 to 19 November 2019.
SMM submits that MS has used her power as her attorney in relation to the CBA account. She says that MS has refused to account to her for the transactions despite requests that she do so, and to the date of the hearing that no accounts have been provided by MS.
The following documents are also before the Tribunal:
a)a letter from a locum geriatrician to SMM's general practitioner dated 3 July 2018, which is referred to in the letter dated 16 December 2019 by MS's solicitor;
b)annotated bank statements on SMM's CBA Account for the period 2 May 2016 to 19 November 2019. The annotations are hand written and attribute various transactions either to MS or SMM. It is inferred that the annotations were made by RB.
As MS did not attend the hearing on 7 May 2020 or file any written response to the application, the Tribunal has had regard to her statements in the directions hearing of 25 February 2020 and the letter written on her behalf by her solicitors dated 9 January 2020.
Legislation
Section 102 of the GA Act defines an EPA as a power of attorney created under s 104 or recognized under s104A(2) of the GA Act.
Section 104 of the GA Act sets out the requirements for execution of an EPA:
(1a)A person who has reached 18 years of age and has full legal capacity may create an enduring power of attorney.
(1)An enduring power of attorney may be created by instrument -
(a)that is in the form or substantially in the form of Form 1 in Schedule 3; and
(b)in which the donor of the power declares that the power either
(i)will continue in force notwithstanding his subsequent legal incapacity; or
(ii)will be in force only during any period when a declaration by the State Administrative Tribunal under section 106 that the donor does not have legal capacity is in force.
(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
(I)one is authorised by law to take declarations; and
(II)the other has the qualifications specified in subsection (3);
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
(i)the person or persons appointed to be the donee of the power; and
(ii)where applicable, the person or persons appointed to be the substitute donee of the power.
(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.
Section 107(1) of the GA Act sets out the obligations of an attorney appointed under an EPA:
(1)The donee of an enduring power of attorney
(a)shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure;
(b)shall keep and preserve accurate records and accounts of all dealings and transactions made under the power;
(c)subject to section 109(2), may not renounce a power during any period of legal incapacity of the donor; and
(d)shall, if the donee becomes bankrupt, report that bankruptcy to the State Administrative Tribunal.
Penalty applicable to paragraph (b): $2 000.
Section 109 of the GA Act provides:
(1)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
(c)revoking or varying the terms of an enduring power of attorney, appointing a substitute donee of the power or confirming that a person appointed to be the substitute donee of the power has become the donee.
(2)The donee of an enduring power of attorney may apply to the State Administrative Tribunal
(a)for an order referred to in subsection (1)(c); or
(b)for directions as to matters connected with the exercise of the power or the construction of its terms.
(3)The State Administrative Tribunal may, upon an application under this section or upon receiving a report of a donee's bankruptcy under section 107(1)(d)
(a)make an order referred to in subsection (1) or (2); or
(b)make such other order as to the exercise of the power or the construction of its terms as the Tribunal thinks fit.
(4)An order under this section may be made subject to such terms and conditions as the State Administrative Tribunal thinks fit[.]
Jurisdiction of the Tribunal
The Tribunal has a general supervisory jurisdiction in respect of EPAs (KS [2008] WASAT 29 (KS) per Barker J).
In KS the scope of that jurisdiction was found to extend to circumstances where the donor of the EPA retained legal capacity (KS at [46]-[49]:
46In my view, while the statutory provisions dealing with enduring powers of attorney appear in the GA Act, an Act which is largely to do with the protection of vulnerable people, that is to say, people who lack capacity to make decisions, I see no particular reason why the operation of s 109 of the GA Act should be so limited in relation to an enduring power of attorney.
47In my view, Parliament has recognised through s 109 that the Tribunal should exercise a general supervisory jurisdiction in respect of the conduct of donees of enduring powers of attorney, if circumstances require it.
…
49Just because a donor of a power retains legal capacity does not necessarily mean that the donor is aware of all of the conduct of a donee under an enduring power of attorney. Therefore, should the circumstances require it, the Tribunal may consider making accounting orders against a donee, even at the instance of a donor with full legal capacity.
His Honour then considered the application of general law principles to an EPA at [50]-[54]:
50In this regard, it should be noted that there is nothing in the usual Form 1 'Enduring Power of Attorney' or in the general law concerning general powers of attorney that immunises a donee against usual forms of action. A power of attorney is recognised as a formal agency relationship: Parkin v Williams [1986] 1 NZLR 294 at 299. The donor may grant the donee a general power to do any act, or may confine the donee's authority by only allowing authority to do certain acts. Where the donor grants a general power to act, the donee may do any act the donor could, excluding any act which requires personal skill or discretion which is imposed on the donor personally: R v Burchill and Salway; Ex parte Kretschmar [1947] S R Qld 249 at 253.
52It has long been recognised that a power of attorney, however widely expressed, will not authorise the donee to prefer their own interests over the donor. For example, in Tobin v Broadbent (1947) 75 CLR 378 at 401, Dixon J stated:
'Prima facie, a power, however widely its general words may be expressed, should not be construed as authorizing the attorney to deal with the property of his principal for the attorney's own benefit. Something more specific and quite unambiguous is needed to justify such an interpretation'.
See also Latham CJ at 390 391 and Starke J at 398. See also Powell v Thompson [1991] 1 NZLR 597 at 605.
53Where a donee abuses the authority given by the donor in the power of attorney, by preferring their own interests, the courts will usually hold the donor to the transaction where it was within the donee's ostensible authority and the third party had no actual or constructive knowledge of the donee's abuse of authority. See generally Hambro v Burnand [1904] 2 KB 10 at 26; Bryant, Powis & Bryant Ltd v La Banque du Peuple [1893] AC 170; and Powell v Thompson.
54Nonetheless, even where the donor is bound by the transaction in such circumstances, the donee will remain accountable to the donor for the abuse of authority.
KS recognised the jurisdiction of the Tribunal to make orders under s 109(1)(a) of the GA Act if the circumstances require it [at 47].
In GA and EA and GS [2013] WASAT 175 citing EW [2010] WASAT 91 (EW) at [94]:
… An enduring power of attorney is an essentially private agreement between the donor and donee, and the transactions undertaken pursuant to that agreement should not be scrutinised unless there is reason to do so[.]
To exercise the discretion to require documents to be filed by an attorney the Tribunal must be satisfied that there is sufficient demonstrated in the material before it to warrant an inquiry (EW at [101]).
When considering the further application under s109(1)(b) and whether an audit would then be ordered pursuant to s 109(1)(b) of the records filed pursuant to s109(1)(a) of the GA Act the Tribunal considers whether there is
… a sufficient basis for making an order for an audit of the records and accounts kept by the [donee] of dealings and transactions made by [him or] her as attorney[.]
(EW at [101])
The factors which might be considered included the utility of such an audit and the benefit to be derived from it (EW at [98]). A fundamental consideration is whether there are available records and a further consideration is how the cost of such an audit is to be met.
As confirmed in KS any order made under s 109(1) of the GA Act can only require the relevant accounting and does not have any other remedial effect (KS at [35]).
The EPA
An EPA is defined in s 102 as an EPA created under s104 of the GA Act. Section 104 prescribes the formalities for execution.
Section 104(1)(b) of the GA Act requires that the donor choose either of two options: that the EPA continue in force notwithstanding subsequent legal incapacity or that the EPA will be in force only during a period when a declaration by the Tribunal under s 106 of the GA Act that the donor does not have capacity is in force.
Because there is no such election at clause 4 of the 2012 EPA, the question arises whether an EPA was created under s 104 of the GA Act so as to enliven the jurisdiction of the Tribunal under s 109(1) of the GA Act.
Although the Tribunal alerted counsel for SMM to this issue in the directions hearing (ts 10, 25 February 2020) no written submissions were filed on this point. However, in oral submissions for SMM, it is argued that in all other respects the 2012 EPA complies with the formality requirements set out in s104 of the GA Act, and that there has been substantial compliance with the requirements pursuant to s 104(1)(a) of the GA Act. Critically, it is submitted that the donee signed the acceptance placing herself subject to the provisions of Pt 9 of the GA Act.
In CH [2003] WAGAB 1 the Full Board of the Guardianship and Administration Board (Full Board) found that an instrument which did not comply with s104(1)(b) of the GA Act for the creation of an EPA could not be brought into force pursuant to s 106 of the GA Act .
The Full Board said that the failure to make the election at clause 4 to specify the commencement of the EPA, that either it was in force from execution or was in force only on declaration of the loss of capacity of the donor did not meet the 'basic requirements' of s 104(1)(b) of a choice being made of one of two options which was regarded as an 'essential element of a valid EPA' (CH at [12]).
In CH the Full Board confirmed that it did not have general declaratory powers (other than those specified in the GA Act) but said that on a proper construction of s 106 of the GA Act, the Board (and now the Tribunal) is obliged by that section to make a finding or a determination that a document before it is an EPA referred to in s 104(1)(b)(ii) (CH at [6]).
Similarly, when determining an application for the appointment of an administrator of an estate, the Tribunal would be called on to determine whether an EPA which does not comply with the formality requirements provides a less restrictive alternative to the making of an administration order. So while the Tribunal does not have the power to declare the validity of an EPA the Tribunal must determine whether such a document can or should operate in various circumstances.
An application under s 109(1) of the GA Act refers to an 'enduring power of attorney', and requires the Tribunal to determine whether the applicant has a proper interest and whether the Tribunal should exercise its discretion to order accounts to be filed.
Although an EPA is defined in s 102 to be an EPA created under s 104 of the GA Act, it cannot have been the intention of Parliament that the meaning of 'enduring power of attorney' in s 109(1)(a) of the GA Act of Parliament meant that a failure to comply with the formalities in s 104 of the GA Act have the effect of rendering s 109(1) of the GA Act nugatory (Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at 384). This would be inconsistent with the context and purpose of the provision and remove the supervisory jurisdiction of the Tribunal where an EPA had been acted on as in this case.
The Tribunal accepts the submission that as a matter of evidence the 2012 EPA has been used and acted upon by MS as the donee.
Counsel for SMM points to the letter written from MS's solicitors' dated 16 December 2019 and argues that it is the contention of MS as the donee expressed in that letter that she is the donee of the 2012 EPA with immediate effect (that is from execution on 16 January 2012).
A question is raised in the letter as to whether SMM has capacity to revoke the 2012 EPA. From this question it must be inferred that MS regarded the 2012 EPA as in effect, at least up until that time.
The Tribunal accepts that the 2012 EPA appears to have been made by SMM and accepted by MS and lodged at the CBA and received by the acting bank manager who was one of the witnesses to its execution on the day it was executed.
The acting bank manager who witnessed the 2012 EPA did not detect the failure to make an election at clause 4. It is evident from the later copy of the 2012 EPA endorsed 'superseded' that the copy of the 2012 EPA was kept by the CBA in its records. The document is certified as a true copy of the original. The date stamp bears the date of execution of the 2012 EPA.
The purpose of the requirement for the donor of an EPA to make an election at clause 4 is that there is certainty as to the commencement of the power. In the material filed with the Tribunal, there is no uncertainty on the part of the donor, the donee or the CBA about the operation of the 2012 EPA from its execution.
It is asserted for SMM that the EPA was used by MS to undertake numerous transactions on SMM's account and to substitute her residential address for that of SMM's at the CBA for the provision of bank statements on SMM's CBA account on 2 May 2016.
In the directions hearing in respect of the 2012 EPA, MS said 'I know there's an obligation there but my mum was in full control of her accounts. And I did not get statements from 2012' (ts 6, 25 February 2020).
It may be the case that MS did not receive the bank statements from 2012 but the Tribunal accepts that the CBA acted on the 2012 EPA to redirect SMM's bank statements to MS in 2016.
In the December 2019 letter from the solicitors for MS it is stated that 'any transactions performed on behalf of [SMM] relate to costs and expenses for [SMM]'s benefit, and that any such transactions are not irregular'. The Tribunal accepts the submission that MS has by this statement acknowledged that transactions were undertaken by MS pursuant to the 2012 EPA.
Having regard to the authorities cited by His Honour in KS, that a donor will usually be held to a transaction where it was within the donee's ostensible authority (and the third party had no actual or constructive knowledge of the donee's abuse of authority) it would be unfair position if the donee could now say that she was not bound by the obligations arising from her acting on the 2012 EPA, which it is apparent she regarded as valid and in effect, because the EPA is now discovered to have had defects in form and the statutory requirements of its execution were not strictly complied with.
On the facts of this case the Tribunal finds that the 2012 EPA was in effect despite the defects in form.
Whether the applicant for orders under s 109(1) of the GA Act has a proper interest in the matter.
SMM has sought an accounting from MS in respect of transactions undertaken pursuant to the 2012 EPA and MS has not provided it.
In the letter from MS's solicitors the question of capacity of SMM to both revoke the 2012 EPA and instruct her solicitor is raised. This letter appeared to challenge the demand for an accounting to SMM by MS. It is submitted for SMM that she has a diagnosis of mild dementia but it is said that she sought legal advice about the operation of the 2012 EPA, subsequently revoked it and executed a new EPA, and has capacity to instruct in this proceeding.
It is noted that solicitors have a professional obligation to ensure a client can give instructions to them and any solicitor taking instructions from an elderly person with known cognitive impairment must exercise particular care in this regard.
There is a presumption of capacity both in the general law and in the GA Act. Although the report from the geriatrician to SMM's doctor indicates a diagnosis and refers to assessment of cognitive impairment in SMM, a dementia diagnosis of itself does not mean a person lacks capacity either globally or in particular spheres of activity.
Consistent with KS (at [49]) the Tribunal finds that the applicant, SMM as the donor of the 2012 EPA, has a proper interest in the matter.
Whether the Tribunal should exercise its discretion in s 109(3)(a) of the GA Act to make the orders sought.
In the letter from MS's solicitors she acknowledges that she made transactions under the 2012 EPA but asserts that these were for the benefit of SMM. In the directions MS contended that SMM retained full control of her accounts.
As noted in EW (at [90]), s 109(1) of the GA Act is enlivened only in respect of dealings and transactions made by the attorney in connection with the power. The material before the Tribunal supports the assertion that the EPA was lodged with the CBA and that the bank accepted it and acted on it. This is demonstrated when the bank statements were redirected to MS.
It appears that SMM intended, and the bank accepted, the 2012 EPA in favour of MS as a means by which SMM's CBA account could be operated. Although as noted in previous decisions of the Tribunal 'in connection with' has a wider meaning than simply a causal relationship, the Tribunal considers that the lodgement of the EPA at the CBA was intended and operated to authorise MS to act on SMM's behalf in respect of her CBA accounts.
MS says that SMM retained full control of the CBA account. This is not consistent with the material that has been filed that indicates that from 2016 the bank statements were sent to MS's address. Nor is it consistent with the assertion by SMM that MS held the sole card on the CBA account. If MS held the only card issued on that account then it seems likely that SMM would be unable to operate her own account by that method at least.
Where a donor of an EPA retains capacity or is presumed to have capacity as is the case here, the EPA in favour of the donee operates as a parallel authority with that of the donor. If SMM did transact on the bank account on her own behalf, by whatever means, MS would not be required to account for those transactions since as can be seen from s109(1) of the GA Act an attorney is required to account only for transactions made by the attorney under the power.
If it is the case that MS had in her possession the only ATM card issued on the account of SMM as is contended then all the ATM and transactions performed using the card such as purchases and point of sale withdrawals to cash must have been made by MS an attorney under the 2012 EPA.
As the attorney appointed under the 2012 EPA MS was obliged to maintain records and accounts of all dealings and transactions made under the power pursuant to s 107(1)(b) of the GA Act.
Although MS did not participate in the hearing and so did not take the opportunity to test the assertions made by SMM or make any written submissions, the Tribunal is satisfied that MS was aware of the nature of the application and the assertions to be made through the letter sent to her initially, and then the exchange of correspondence between her solicitor and the solicitor for SMM. That correspondence sets out in some detail the allegations and notifies MS of the intention to make the application to the Tribunal if demands for accounting from MS to SMM were not met by January 2020.
MS participated in the directions hearing on 25 February 2020 when the provisions of s 109 and s 107 of the GA Act were explained to the parties. At that proceeding MS advised that she had a lawyer and would speak further to her lawyer about the application. Orders were made following that hearing requiring the filing and exchange of any documents 14 days prior to the hearing. MS did not file any documents.
Because MS has not participated in the process before the Tribunal it is not possible to fully understand her position or her response to the application. What can be taken from the letter from her solicitor is that MS accepted that the EPA was in effect, she asserted that all transactions made by her were for the benefit of SMM, and she challenges the capacity of SMM to revoke the EPA because of her dementia diagnosis (and presumably the capacity to make a new EPA in favour of RB).
The Tribunal is satisfied that there is sufficient in the material filed in this matter in respect of the number and nature of the impugned transactions to warrant an inquiry into the conduct of the 2012 EPA.
For these reasons the Tribunal makes the following orders:
Orders
On the application pursuant to s 109(1)(a) and (b) of the Guardianship and Administration Act 1990 (WA) lodged by the applicant on 4 February 2020 for intervention in an enduring power of attorney dated 16 January 2012 by which SMM appointed MS as her sole attorney, determined by Member F Child on 27 July 2020.
On the Tribunal being satisfied that the applicant has a proper interest in the matter:
IT IS ORDERED THAT:
1.Pursuant to s 109(1)(a) of the Guardianship and Administration Act 1990 (WA), MS must by 27 August 2020 , file with the Tribunal and serve on the applicant a copy of all records and accounts kept by the attorney of dealings and transactions made by her in connection with the power from the date of execution of the enduring power of attorney to the date of revocation.
2.The records ordered to be produced must be filed in an indexed and paginated bundle in chronological or other logical order.
3.The hearing of the application pursuant to s 109(1)(b) of the Guardianship and Administration Act 1990 (WA) is adjourned to a date to be fixed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
31 JULY 2020
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