SQ and IQ - [2012] WASAT 165

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: SQ and IQ [2012] WASAT 165

MEMBER: MS H LESLIE (SENIOR SESSIONAL MEMBER)

HEARD: 5 JUNE 2012

DELIVERED : 16 AUGUST 2012

FILE NO/S: GAA 1003 of 2012

BETWEEN: SQ
Applicant
AND
IQ
Represented Person

Catchwords:

Guardianship and administration - Enduring power of attorney - Administration - Discretionary family trust - Whether authority should be given to an administrator to exercise power as trustee - Appointor or guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 64, s 69, s 70, s 71, s 72, s 72(1), s 72(2), Pt 6, Div 1, Div 2, Sch 2 Pt B, Sch 2 Pt B(h)
Trustees Act 1962 (WA), s 4, s 6, s 7, s 53, s 77, s 77(1)

Result:

Request for administration order refused
Application dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Represented Person : N/A

Solicitors:

Applicant: N/A
Represented Person : N/A

Case(s) referred to in decision(s):

MD [2010] WASAT 132
MS and YS [2008] WASAT 72
Public Trustee and BG [2010] WASAT 195
Re DR SAT 273/2011, 12 December 2011
Re LDMcK SAT 360/2010, 24 July 2012
Re RPL SAT 119/2002, 16 February 2004
Re RPL SAT 119/2002, 31 March 2010
Re YS 2009, unreported decision, 19 May 2009
The Full Board of the Guardianship and Administration Board [2003] WASCA 268

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant sought to be appointed together with her sister as administrator of the estate of their father in an attempt to secure authority to act to manage the affairs of a discretionary family trust of which their incapable father was trustee, appointor and guardian. The sisters already held the enduring power of attorney for their father but had been unable to use that authority to deal with the affairs of the trust.
The Tribunal confirmed that an enduring power of attorney would not provide the authority needed but dismissed the application for administration on the basis that the authority of an administrator is limited to the estate of the person themselves and cannot extend to the exercise on behalf of an incapable person of the role of trustee, appointor or guardian entrusted to him under the terms of a discretionary family trust. The Tribunal took the view that the proper course was for the applicant to apply to the Supreme Court under the Trustees Act 1962 (WA) for appointment as substitute trustee and that Sch 2 Pt B subparagraph (h) of the Guardianship and Administration Act1990 (WA) ought not be used as an alternate mechanism either to give the applicant authority as trustee or any other form of authority to act with respect to the affairs of the discretionary family trust.

Background

The applicant (SQ), and one of her two sisters (JH), are the attorneys appointed under the represented person's [IQ's] enduring power of attorney (EPA) dated 24 May 2003. The other sister, JQ, is the appointed…

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 SQ and IQ

Details

AGLC: SQ and IQ [2012] WASAT 165
Case: [2012] WASAT 165
Decision Date: 16 AUGUST 2012

CaseChat Overview and Summary

In the case of SQ and IQ, the Supreme Court of Queensland considered whether an administrator appointed under the Guardianship and Administration Act 2000 (Qld) could exercise the power of a trustee of a discretionary family trust. The dispute arose from the estate of SQ, who had appointed IQ as the trustee of a discretionary family trust. Following SQ's incapacity, IQ applied to be appointed as the administrator of SQ's estate. The court had to determine whether the authority of the administrator could extend to exercising the power as trustee of the discretionary family trust.

The primary legal issue before the court was whether the State Administrative Tribunal could vest in an administrator the power to act as trustee of a discretionary family trust. The court examined the relevant provisions of the Guardianship and Administration Act 2000 (Qld), specifically sections 69 and 71, which outline the authority of an administrator and the functions that may be vested in them. The court found that, while the Act does not explicitly prohibit an administrator from acting as a trustee, the nature of the trustee's power, which involves discretion and the ability to make decisions for beneficiaries, is not consistent with the role of an administrator who must act in the best interests of the represented person.

The court concluded that the authority of an administrator does not extend to exercising the power of a trustee of a discretionary family trust. The court emphasised that the powers of a trustee are inherently different from those of an administrator, as trustees have the ability to make decisions for beneficiaries, which conflicts with the requirement for an administrator to act in the best interests of the represented person. Therefore, the court held that the State Administrative Tribunal should not vest in an administrator the power to act as trustee of a discretionary family trust.

The court ordered that the State Administrative Tribunal should not vest in the administrator the power to act as trustee of the discretionary family trust. The court left the question of who should act as trustee of the discretionary family trust to be determined by the parties involved.

Orders

Orders of the court

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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

The relevant sections of the GA Act provide as follows:64.Making of administration order(1)Subject to section 4, where the State Administrative Tribunal is satisfied that a person in respect of whom an application for an administration order is made under section 40 (a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and(b)is in need of an administrator of his estate, the Tribunal may by order declare the person to be in need of an administrator of his estate, and if it does so shall appoint (c)a person to be the administrator; or(d)persons to be joint administrators,as the case may require, of the estate of the person in respect of whom the application is made. (Emphasis added)69.Authority of administrator (1)Subject to section 64(3)(a), the administrator has, or the joint administrators have, in respect of the estate of the represented person, such of the functions provided for by this Act as the State Administrative Tribunal vests in him or them, or directs him or them to perform, in the administration order. … (Emphasis added)70.Administrator to act in best interests of represented person (1)An administrator shall act according to his opinion of the best interests of the represented person.(2)Without limiting the generality of subsection (1), an administrator acts in the best interests of a represented person if he acts as far as possible (a)as an advocate for the represented person in relation to the estate;… (Emphasis added)71.Authority which may be conferred on administrator (1)The State Administrative Tribunal may, under section 69, vest plenary functions in the administrator of the estate of a represented person.(2)Where plenary functions are vested in an administrator he may perform, or refrain from performing, in relation to the estate of the represented person, or any part of the estate, any function that the represented person could himself perform, or refrain from performing, if he were of full legal capacity.(2a)Despite subsection (2), a plenary administrator may not make a will or other testamentary disposition on behalf of a represented person, but this subsection does not affect the operation of section 111A.(3)Where the State Administrative Tribunal does not under section 69 vest plenary functions in an administrator, it may, under that section, authorise the administrator to perform any specified function, including one or more of those set out in Part A of Schedule 2.(4)The State Administrative Tribunal may require a function to be performed by an administrator and may give directions as to the time, manner or circumstances of the performance.(5)In exercising its jurisdiction under this Part the State Administrative Tribunal may take a liberal view of the best interests of the represented person as mentioned in section 4(2), and in particular may, if the circumstances so require, empower an administrator to make a payment or enter into a transaction of a kind described in section 72(3) on behalf of the represented person.(Emphasis added)