SMM

Case [2020] WASAT 85 29 July 2020

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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 The 2012 EPA was revoked by SMM in October 2019.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…

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.

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Details

AGLC: SMM [2020] WASAT 85
Case: [2020] WASAT 85
Decision Date: 29 JULY 2020

CaseChat Overview and Summary

The case involved the State Trustee of Western Australia, who sought an order under section 109(1)(a) and (b) of the Guardianship and Administration Act 1990 (WA) for the production of records by the donee of an enduring power of attorney. The donee, in this case, was alleged to have been acting under an invalid enduring power of attorney due to alleged defects in its form of execution. The dispute centred on whether the power of attorney was valid and, if so, whether the provisions of Part 9 of the Act applied to it. The court was also tasked with determining whether an inquiry should be held, requiring the donee to file records of transactions made under the power.

The primary legal issues were whether the enduring power of attorney was valid, given the claimed defects in its execution, and whether the provisions of Part 9 of the Act applied to such a power. The court needed to examine the formal requirements of an enduring power of attorney under the Act, assess whether the alleged defects rendered the power invalid, and determine if Part 9's provisions, which pertain to the donee's accountability and record-keeping, were applicable. Additionally, the court had to decide whether an inquiry under section 109(1)(a) and (b) of the Act was warranted to compel the donee to produce records of transactions.

The court held that the alleged defects in the form of execution did not render the enduring power of attorney invalid, and that Part 9 of the Act applied to the donee. The court found that the power of attorney was properly executed, and the claimed defects did not affect its validity. Consequently, the donee was required to be accountable and maintain records as provided for in Part 9 of the Act. The court concluded that an inquiry under section 109(1)(a) and (b) was warranted, and ordered the donee to produce records of transactions made under the power to ensure transparency and accountability.

The final order required the donee to produce records of all transactions made under the enduring power of attorney to the State Trustee within 14 days of the judgment. The court's decision ensured that the donee would be held accountable for actions taken under the power, maintaining the integrity of the power of attorney framework as established by the Guardianship and Administration Act 1990 (WA).

Orders