In this blog post, I explain the process and requirements surrounding the validity of an enduring power of guardianship (EPG) in Western Australia, using the recent case BJT [2022] WASAT 73 as a reference.

Background of the Case

The BJT case involves a 70-year-old man with dementia whose family members had differing opinions on how best to support him.

The case led to applications under the GA Act by BJT's wife, PMT, to the Tribunal in late January 2022.

PMT sought a declaration of incapacity that would bring into force an EPG by which BJT had appointed her as his enduring guardian in November 2021, with his son from his first marriage, DRT, as a substitute.

Relevant Legislation

Sections 110B and 110E of the GA Act outline the basis on which a person may execute an EPG:

- Section 110B states that a person who has reached 18 years of age and has full legal capacity may make an EPG appointing a person as the enduring guardian or two or more persons as joint enduring guardians.

- Section 110E sets out the formal requirements for an EPG, including the need for the document to be signed by the appointor, witnessed by two persons, and signed by the appointees (both the enduring guardian and any substitute enduring guardian) to indicate their acceptance of the appointment.

The BJT Case and Validity of the EPG

In the BJT case, the November 2021 EPG was executed by BJT after a recommendation by a specialist geriatrician.

BJT appointed PMT as his enduring guardian and DRT as the substitute. However, DRT's refusal to sign for acceptance of his role as substitute guardian raised the question of whether this rendered the entire EPG invalid.

The Tribunal’s Analysis

The Tribunal examined the statutory interpretation of s 110E(1)(e) of the GA Act, which stipulates that an EPG is not valid unless signed by each person being appointed as an enduring guardian or substitute enduring guardian, indicating their acceptance of the appointment.

In light of the case, the Tribunal delved into the text, context, and purpose of the provisions to better understand the legislation's intent.

To facilitate interpretation, the Tribunal referred to s 18 of the Interpretation Act 1984 (WA), which emphasizes promoting the purpose or object underlying the written law.

The long title of the GA Act and s 4 of the Act demonstrate a focus on providing decision-making assistance to those in need, offering various means to achieve this, and preserving freedom of decision and action wherever possible. This approach aligns with the least restrictive principle in s 4(4) and s 4(6) of the GA Act.

In assessing the meaning of a provision, the Tribunal also considered extrinsic material, such as the second reading speech for the GA Act. The speech highlights the Act's aims to allow individuals with competence to function independently and protect civil liberties through the right of appeal when guardianship or administration orders are made. This further demonstrates the emphasis on freedom of decision and action within the GA Act.

The Tribunal concluded that a rigid literalist interpretation of s 110E(1)(e) would be inconsistent with the GA Act's overall purpose, which focuses on preserving an individual's freedom of decision and action.

A strict interpretation could potentially undermine the Act's objectives by giving a substitute guardian the power to invalidate the entire EPG by simply refusing to sign their acceptance.

Instead, the Tribunal favored a construction that aligns with the context and purpose of the GA Act. They determined that s 110E(1)(e) requires a person to sign their acceptance to bring their own appointment into force, but the absence of a signature from a substitute guardian does not invalidate other parts of the EPG, such as the appointment of the enduring guardian. The substitute guardian's decision not to sign only affects their own appointment, which only comes into effect under specified circumstances.

Based on this analysis, the Tribunal found the November 2021 EPG to be valid, as the refusal of the substitute guardian to sign did not render the entire document invalid.

The appointment of the enduring guardian, PMT, was not affected, and it remained possible for the substitute guardian to sign the document and accept their appointment until the EPG is revoked.

The Tribunal's Decision

The Tribunal determined that the preferable construction of s 110E(1)(e) is one that recognizes the donor's competent appointment of the enduring guardian, even if the proposed substitute guardian does not sign to accept their appointment.

In the BJT case, this meant that PMT's appointment as the enduring guardian was considered valid, despite DRT's refusal to sign for acceptance of his role as substitute guardian.

Key Take-Aways

In summary, the BJT case provides an insightful example of the considerations involved in determining the validity of an EPG under the GA Act.
Based on this decision, a substitute guardian does not have the power to invalidate the entire EPG by simply refusing to sign their acceptance.