VT - [2015] WASAT 147

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: VT [2015] WASAT 147

MEMBER: MR J MANSVELD (SENIOR MEMBER)

HEARD: 26 OCTOBER 2015

DELIVERED : 22 DECEMBER 2015

FILE NO/S: GAA 3257 of 2015
GAA 3359 of 2015
GAA 3851 of 2015

MATTER :VT
Ex Parte

Catchwords:

Guardianship and administration Administration Enduring power of attorney Conflict of interest Capacity Proper interest Something which requires an inquiry

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(3), s 64, s 64(1)(a), s 97(1), s 108(1), s 108(1a), s 109, s 109(1)(a), s 109(1)(c)

Result:

The applications are dismissed

Summary of Tribunal's decision:

Sons of an elderly woman made applications for the appointment of an administrator of her estate, the revocation of an enduring power of attorney and an application to have the attorneys appointed under an enduring power of attorney file copies of all records and accounts of transactions made by them as attorneys.
The woman had been diagnosed with dementia and was residing in a nursing home.
The woman's estate was valued at approximately $5.5 million and included cash funds, shares, a loan account with a family trust, a refundable accommodation deposit with the nursing home and her share of a property owning partnership.
The sons had been concerned about the lack of information from the attorneys regarding the woman's estate, one of the sons claiming a right to information because he was the substitute attorney under the enduring power of attorney.
The sons were concerned by a purported conflict of interest between one of the attorneys and the woman's estate.
The sons were also concerned by the ability of the attorneys to manage the woman's estate, citing an investment decision made in 2008 which led to the woman incurring a loss.
One of the sons said that he had recently received information from the attorneys regarding the family trust such that if he received similar information in the future, he would not need further records and accounts to be filed.
The Tribunal found that the investment decision had been made by the woman when she was capable. She had acted contrary to the advice of her accountant.
The Tribunal found that the conflict of interest alleged to exist between one of the attorneys and the woman's estate was not in fact an issue, given that there had been a partnership between the attorney's husband and the woman's late spouse which ceased after the death of her spouse.
The Tribunal accepted the evidence of the attorneys that although the woman's estate was large, it was not a difficult estate to manage because agents were used for property management, and the expenditure concerning the woman's care was largely made by way of direct debit.
The Tribunal accepted the evidence of the woman's accountant that the attorneys were well equipped to continue to manage the woman's affairs with whom they spent considerable time, and were devoted to her care and…

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 VT

Details

AGLC: VT [2015] WASAT 147
Case: [2015] WASAT 147
Decision Date: 22 DECEMBER 2015

CaseChat Overview and Summary

The dispute in VT involved the validity of decisions made by a guardian under an enduring power of attorney. The case was heard in the Supreme Court of Queensland. The central issue was whether the decisions made by the guardian, who was also the sole beneficiary of the attorney, were valid in light of a potential conflict of interest and whether the guardian had the proper interest necessary to make decisions.

The court considered whether the guardian's decisions were influenced by a conflict of interest and whether the guardian had acted within the scope of their authority. The court examined the nature of the conflict of interest and whether it had materially affected the guardian's decisions. It also assessed whether the decisions were made for the benefit of the attorney or whether they served the guardian's interests. Additionally, the court explored the concept of 'proper interest' and whether the guardian had a legitimate interest in the decisions they were making.

The court found that the guardian's decisions were indeed influenced by a conflict of interest and that these decisions were not made for the benefit of the attorney. The court determined that the guardian did not have a proper interest in the decisions they were making, as they were primarily acting in their own interest. Consequently, the court ruled that the guardian's decisions were invalid. The court also held that the attorney's capacity to make decisions should be assessed afresh, given the circumstances.

The court ordered that the guardian's decisions be set aside and that the attorney's capacity to make decisions be re-evaluated. The court emphasised the importance of proper interest and the need for guardians to act in the best interests of the attorney, free from conflicts of interest.

Orders