In a recent Western Australian case, NE [2023] WASAT 30, the question arose as to whether a represented person, under the Guardianship and Administration Act 1990 (WA) (GA Act), could appoint an agent to access information on their behalf.
This blog post explores the issues surrounding the appointment of agents by represented persons, particularly in relation to the provision of information.
Appointment of Agents by Represented Persons
The case involved the question of whether s 77 of the GA Act permitted a represented person to appoint an agent to access information related to their estate. NE, the represented person, had signed an agency authority appointing two individuals as her authorized agents to access and inspect certain documents concerning her estate, including court orders and financial records held by the Public Trustee.
Section 77 of the GA Act
Section 77 of the GA Act provides that a person who has been declared in need of an administrator for their estate is incapable of entering into any contract, making any disposition in respect of their estate, 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, authorizes them to do so.
The Tribunal's Decision
The Tribunal found that NE lacked the legal capacity to give an agency authority, as a declaration had been made under s 64(1) of the GA Act, and an administration order was in force in respect of her estate.
The Tribunal concluded that the appointment of an agent to receive information under s 47 of the PT Act was prevented by s 77 of the GA Act.
The Tribunal also noted that the GA Act's provisions reinforced the authority of the plenary administrator to deal with the represented person's estate during the currency of the administration order, to the exclusion of others, including the represented person. In this case, the Public Trustee held plenary authority and could perform any function in relation to NE's estate that she herself could perform if of full legal capacity.
Provision of Information to Purported Agents
The Tribunal emphasised that the GA Act contained confidentiality and other provisions which strictly controlled the release and use of information regarding represented persons.
The Tribunal noted that s 113 of the GA Act prohibited the disclosure of personal information relating to a represented person, except in certain authorized circumstances.
In this case, the Tribunal found that the purported agents were not entitled to the documents sought, as they were not within the category of persons to whom information could be given pursuant to s 47(3) of the PT Act. The Public Trustee, therefore, did not accept the agency authority which NE had executed.
Key take-aways
The Tribunal's decision in NE [2023] WASAT 30 highlights the limitations on the ability of represented persons to appoint agents under the GA Act.
Specifically, the case demonstrates that a represented person who is subject to an administration order lacks the legal capacity to appoint an agent to access information related to their estate.
This serves as a reminder of the importance of understanding and adhering to the provisions of the GA Act and other relevant legislation when dealing with represented persons and their estates.