Can a Represented Person Appoint an Agent under Section 77 of the Guardianship and Administration Act 1990 (WA)?

One question that has arisen in the guardianship and administration law context in Western Australia is whether a represented person can appoint an agent under Section 77 of the Guardianship and Administration Act 1990 (WA) (GA Act).

In this blog post, I explore this issue, focusing on the recent decision of NE [2023] WASAT 30 and the relevant legislative provisions.

Background

In the case of NE [2023] WASAT 30, the applicants sought to be appointed as agents for NE under Section 47 of the Public Trustee Act 1941 (PT Act).

However, the Public Trustee did not acknowledge them as agents of NE, citing Section 77 of the GA Act, which concerns the capacity of a represented person to appoint an agent.

Section 77 of the GA Act

Section 77(1) of the GA Act provides that a represented person is incapable of entering into any contract or making any disposition in respect of their estate or any part thereof or interest therein, or appointing or conferring any power on an agent or attorney in respect thereof, except to the extent that the administrator, with the consent of the Tribunal, in writing authorises them to do so.

In NE [2023] WASAT 30, the Tribunal found that following the declaration made under Section 64(1) of the GA Act, Section 77 of the GA Act prevented NE from dealing with her estate by entering any contract or making any disposition or appointing or conferring any power on an agent without the authority of the administrator and the consent of the Tribunal.

The applicants argued that the words 'in respect thereof' in Section 77(1)(b) of the GA Act limited the prohibition on the appointment of an agent by a represented person to matters relating to contracts or dispositions from the estate of the represented person.

The Tribunal disagreed with this interpretation, finding that a plain reading of Section 77(1)(b) of the GA Act referred to the estate of the represented person, having regard to the preceding words in Section 77(1)(a) of the GA Act.

Implications

The decision in NE [2023] WASAT 30 confirms that a represented person cannot appoint an agent under Section 77 of the GA Act without the authority of the administrator and the consent of the Tribunal.

This interpretation is consistent with the broader legislative framework of the GA Act, which aims to provide certainty as to who has authority and control over the estate of a person found to be lacking capacity.

Key take-aways

• Based on the decision in NE [2023] WASAT 30 and the relevant provisions of the GA Act, a represented person in Western Australia cannot appoint an agent without the authority of the administrator and the consent of the Tribunal.

• It is important for guardianship lawyers and represented persons to be aware of these legislative provisions to ensure that they are acting in accordance with the law.