TT and NT
[2006] WASAT 273
•8 SEPTEMBER 2006
TT and NT [2006] WASAT 273
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 273 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:502/2006 | 1 MAY 2006 | |
| Coram: | MS V O'TOOLE (SESSIONAL MEMBER) | 8/09/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | The application is dismissed | ||
| B | |||
| PDF Version |
| Parties: | TT NT |
Catchwords: | Enduring power of attorney – Section 109(1)(b) Guardianship and Administration Act 1990(WA) – audit of accounts |
Legislation: | Guardianship and Administration Act 1990 (WA), s 104(2), s 109(1), s 109(1)(b) |
Case References: | Nil Nil |
Orders | The application for an order requiring audit of records and accounts be dismissed. |
Summary | An application was made for the Tribunal to order that accounts and records, managed by the donee under an Enduring Power of Attorney, be subject to an independent audit pursuant to s 109(1)(b) of the Guardianship and Administration Act 1990 (WA).,The Tribunal was not satisfied that there was any evidence that the donee was not acting in the donee's best interests under the Enduring Power of Attorney. ,As the Tribunal considered that there must be strong grounds for intervention in the operation of an Enduring Power of Attorney and strong grounds were not shown to exist, the application was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : TT and NT [2006] WASAT 273 MEMBER : MS V O'TOOLE (SESSIONAL MEMBER) HEARD : 1 MAY 2006 DELIVERED : 8 SEPTEMBER 2006 FILE NO/S : GAA 502 of 2006 BETWEEN : TT
- Applicant
AND
NT
Represented Person
Catchwords:
Enduring power of attorney – Section 109(1)(b) Guardianship and Administration Act 1990(WA) – audit of accounts
Legislation:
Guardianship and Administration Act 1990 (WA), s 104(2), s 109(1), s 109(1)(b)
Result:
The application is dismissed
(Page 2)
Category: B
Representation:
Counsel:
Applicant : Self-represented
Represented Person : No appearance
Solicitors:
Applicant : Self-represented
Represented Person : No appearance
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 An application was made for the Tribunal to order that accounts and records, managed by the donee under an Enduring Power of Attorney, be subject to an independent audit pursuant to s 109(1)(b) of the Guardianship and Administration Act 1990 (WA).
2 The Tribunal was not satisfied that there was any evidence that the donee was not acting in the donee's best interests under the Enduring Power of Attorney.
3 As the Tribunal considered that there must be strong grounds for intervention in the operation of an Enduring Power of Attorney and strong grounds were not shown to exist, the application was dismissed.
Application under s 109(1)(b)
4 The applicant did not believe that the donee of the Enduring Power of Attorney (EPA) was acting in the best interest of the donor, his father (represented person).
5 The major stated concern was that the sale of the family home was not in the donor's best interest.
6 Additional concern as to where the proceeds of the sale were going to be held.
Grounds for the Review:
7 The applicant does meet the requirements of s 109(1) of the Guardianship and Administration Act 1990 (WA), in that he has a proper interest in the matter.
8 The applicant considers that the donor was not of sound mind when the last will and EPA was prepared.
Background issues:
• This is a family that has strong cultural norms and long standing family divisions. There has been continued lack of communication between certain members.
• There are family factions.
(Page 4)
- • The eldest brother is the family head, and is aligned with the donee and communicates to the others to varying degrees.
• He stated that he carries a family oversight role and "always keep an eye on him (donee). I always telling him, do the things right and properly [sic]".
• The applicant is aligned with a sister who is relegated much of the caring responsibilities. This sister only communicates with the applicant and her other sister. This is a long term family division. This sister did not attend the hearing.
• The family has had to deal with both parents with dementia over the last two years. The mother died approximately 6 months prior to the hearing.
• The family has struggled with provision of suitable aged care for the donor. There have been difficulties with securing and maintaining him in suitable residential care. He has fallen and had broken neck of femur, and been transferred on twice and ended in "mental" unit at Swan Hospital. There is great concern about his care needs across the family, and criticism between family members about others responsibilities and roles in providing support.
• The views expressed by the applicant regarding the operation of the EPA are not held by all family members.
• The applicant admitted that when it comes to money there is no "trust" between himself and the donee.
• The applicant expressed concern that the donee was not the eldest child which is customary. The stated custom is power is given to the eldest or youngest child.
• The donee is neither. The applicant stated that "there's no way my father would have done that if he was sound of mind". He stated that he was not happy that the will had been changed at the time of the EPA being drawn up. The donee was appointed the Administrator of the mother's estate.
(Page 5)
- • The eldest son did not express these concerns. He stated that the applicant is "stubborn" and inferred by his actions that he seems to "forget the old culture, sort of where you come from and how things are done in the old country". His expressed view was that "our culture is we respect the olders[sic]" and the applicant should come and ask when he wants to know things.
• The EPA was signed on the 4December 2004. It was prepared and witnessed by two solicitors as required under s 104(2). There is no evidence that there was incapacity at that time the EPA was prepared.
• The applicant stated that he went back to the solicitor to get another will drawn up a matter of weeks later, but the solicitors refused "because he didn't think my father was in any state of mind". There is no evidence as to the timing, nor accuracy of this interpretation of what was stated by the solicitors. This issue was not pursued in the hearing.
• Even with the distrust between certain family members, the applicant stated that "we all agreed that Steve (donee) should carry on and see how it (EPA) went".
• The applicant expressed strong culturally based views that the family home should be kept until after the donor is deceased, as a matter of respect. However, elsewhere in the hearing it was stated that there was "family agreement" for the house sale and participation in preparing it for sale.
• At the time of the hearing, the family home had been sold, and the donor was quite unwell and not expected to live for long. There was still dissent about the need for the house sale for a bond for residential care for the donor.
• The applicant made an allegation that the card attached to the parents' bank account was observed to be used by the girlfriend of the donee to purchase goods for a family event. This was strongly denied by the donee.
(Page 6)
Considerations:
9 There is no evidence that the EPA is not being exercised to protect the interests of the donor.
10 The eldest brother does not express concerns regarding the EPA.
11 The house was put up for sale, to be able to pay a bond for residential care for the donor. This was in the donor's best interest, and to some degree there was family agreement to this sale.
12 An email dated 30 March 2006 to the applicant explained that the proceeds from the house sale were to go into an account in the donor's name with the opportunity for the applicant to be a signatory along with another sister.
13 A bank account transaction statement joint parents' account showed that the contested $20 000 had been moved to this operating account in the donor's name which was being used to cover funeral costs for the mother and care costs for the donor.
14 The submitted bank expenditure statement only covered the period until October 2005 which was a requirement of the Administration Order for their deceased mother. The donee liaised with Public Trustee office to ensure he met the requirements of a private Administrator.
15 The donee has kept receipts for expenditure since then, which he brought to the hearing but were not examined in detail.
16 The donee has also tried to show those dissenting family members what has occurred with the donor's bank account.
Reasons for the Decision:
17 The decision to dismiss the application under s 109(1)(b) was based on an assessment that the EPA is being exercised in the interests of the donor.
18 The Guardianship and Administration Act 1990 (WA) allows for an EPA to operate free from scrutiny. Whilst there is the power to intervene, there need to be good grounds to do so.
19 In this case, there is no objective basis for a suspicion of missing money.
(Page 7)
20 The only apparent risk to the donor's money was if a non-family member accessed the card. This was denied and could not be proven. The accusation was considered an expression of the distrust of the applicant towards the donee.
21 Whilst there is strong family dissent and poor communication and distrust, there is no action that is clearly contrary to the donor's needs.
22 The house sale was initiated to provide a bond for residential aged care. There was a lack of clarity about whether this would still be needed by the time the sale was complete due to a reassessment of the donor as needing high care.
23 The monies from the house sale were offered to be held in an account that would provide an opportunity for other family members to exercise some financial control. The money would be available to ensure that the donor can access appropriate care if needed, when this could be found.
24 Family relations have become more abrasive as a result of dealing with dementia in both parents. Negotiating aged care system has been difficult and stressful for all. Family roles, cultural norms and assumed responsibilities in handling these matters has compounded family divisions and distrust. Communication between parties has been poor.
25 When the decision was announced at the end of the hearing family members, and the donee in particular, were encouraged to improve communication about the EPA, in the interests of the donor and the whole family.
Orders
1. The application for an order requiring an audit of records and accounts be dismissed.
I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(Page 8)
- MS V O'TOOLE, SESSIONAL MEMBER
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