Introduction
As a guardianship lawyer in Western Australia, I am often asked about the powers and limitations of the State Administrative Tribunal (the Tribunal) in relation to enduring powers of attorney.
In this blog post, I discuss the decision of PT [2020] WASAT 147, which highlights the importance of establishing a proper reason for the Tribunal to make an order under section 109 of the Guardianship and Administration Act 1990 (WA) (the GA Act) after the donor of an enduring power of attorney has died.
Background
In PT [2020] WASAT 147, the applicants were daughters of the deceased donor (VM) of an enduring power of attorney, and sisters of the donee (GM). They sought orders under s 109(1)(a) and s 109(1)(b) of the GA Act to require GM to file and serve a copy of all records and accounts kept by him of dealings and transactions made by him in connection with the enduring power of attorney and to have those records and accounts audited by an auditor appointed by the Tribunal.
The Strike Out Application
GM applied to strike out the applicants' proceeding under s 47 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), arguing that the application for orders under s 109 of the GA Act was for an ulterior purpose, namely, to gather information for the purposes of a family provision proceeding, and that the real issue was the extent of VM's deceased estate.
The Tribunal's Powers Under Section 109
Section 109 of the GA Act allows a person with a proper interest in the matter to apply to the Tribunal for an order relating to an enduring power of attorney, including requiring the donee to file and serve records and accounts, and requiring those records and accounts to be audited.
The Tribunal's powers under s 109 of the GA Act are limited, particularly in situations where the donor has died. In such cases, the Tribunal can only require the donee to account for his or her actions under the enduring power of attorney during the lifetime of the donor under s 109(1)(a) or s 109(1)(b) of the GA Act, and cannot have any other remedial effect.
The Importance of Establishing a Proper Reason
The Tribunal in PT [2020] WASAT 147 emphasized that there must be a proper reason established to justify the making of an order under s 109(1)(a) or s 109(1)(b) of the GA Act. Mere suspicion is not sufficient. In this case, the applicants' reason for seeking orders under s 109(1) was based on their belief that the deceased donor's statement of assets and liabilities did not accurately reflect her assets at the time of her death. The Tribunal found that this reason amounted to no more than a suspicion, which was not a proper reason for an order to be made under s 109(1)(a) or s 109(1)(b) of the GA Act.
Key Take-Aways
PT [2020] WASAT 147 emphasizes that mere suspicions are inadequate for Tribunal intervention under section 109 of the Guardianship and Administration Act 1990 (WA).
To warrant an order under s 109(1)(a) or s 109(1)(b) of the GA Act, applicants must provide a valid reason.
This requirement is especially important after the death of the enduring power of attorney's donor.