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.

Understanding Conflicts of Interest in Enduring Powers of Attorney in Western Australia

An enduring power of attorney (EPA) allows a person to appoint someone to make financial and property decisions on their behalf, even if they lose capacity (although it must only be executed before the donor has lost the capacity to make an EPA).

In Western Australia, the Guardianship and Administration Act 1990 (the GA Act) regulates EPAs.

This article explores the concept of conflicts of interest in the context of EPAs, drawing on the Western Australian State Administrative Tribunal decision ET [2021] WASAT 36 as an example.

Establishing an Enduring Power of Attorney

An EPA is created and regulated by the GA Act in Western Australia. It allows the donor to grant the donee the authority to make decisions on their behalf.

The power can be general, allowing the donee to make any decision the donor could, or limited to specific acts (KS [2008] WASAT 29) (KS). The EPA remains valid even if the donor loses capacity (ET [2021] WASAT 36, [240]).

Conflicts of Interest and the Duty of Attorneys

An attorney acting under an EPA has a duty to act in the best interests of the donor.

The GA Act obliges the attorney to exercise their power with reasonable diligence to protect the interests of the donor (GA Act, s 107(1)).

If the attorney fails to do so, they may be liable for any loss caused by their failure (ET [2021] WASAT 36, [242]).

A conflict of interest can arise if an attorney prefers their own interests over the donor's interests.

In Tobin v Broadbent (1947) 75 CLR 378, Dixon J stated that a power of attorney should not be construed as authorizing the attorney to deal with the donor's property for the attorney's own benefit, unless there is specific and unambiguous authorization (ET [2021] WASAT 36, [52]).

ET [2021] WASAT 36 Case Example

In this case, ET had executed an EPA in 2018 and had not revoked it before losing capacity (ET [2021] WASAT 36, [239]).

A conflict arose between the attorneys and ET's family members, leading to accusations of impropriety and overcharging by one of the attorneys, CR (ET [2021] WASAT 36, [246]).

The Tribunal ultimately found that despite some extreme actions and language, CR had acted with genuine concern for ET's best interests and had maintained a constant and earnest approach to his role (ET [2021] WASAT 36, [260]).

The Tribunal decided not to appoint an administrator for ET's estate, as it was in her best interests for the current attorneys to continue managing her affairs, with support from her enduring guardian (ET [2021] WASAT 36, [258], [262], [268]).

Key take-aways

• Conflicts of interest can arise in the context of an EPA, and attorneys have a duty to act in the best interests of the donor.

• The ET [2021] WASAT 36 case illustrates the importance of attorneys acting with reasonable diligence and considering the donor's interests above their own.

• Attorneys should be mindful of potential conflicts of interest and ensure they are acting in accordance with their legal obligations under the GA Act.

Can the Tribunal Grant an Administrator the Power to Make a Binding Death Benefit Nomination (BDBN)?

As a guardianship lawyer in Western Australia, I often receive questions regarding the powers and functions of administrators.

One issue that arises is whether a tribunal has the power to grant an administrator the authority to make a binding death benefit nomination (BDBN).

In this blog post, I explore this question, drawing on the decision in SM [2019] WASAT 22 and relevant legislation.

Background:

In the SM case, an individual (SM) was injured in a motor vehicle accident and later received compensation of $5,745,933, held in trust by Australian Executor Trustees Limited (AET).

The tribunal appointed AET as the administrator of SM's estate with the sole function to pay a portion of the funds into superannuation for the benefit of SM.

AET sought an additional function to make and renew BDBNs for any superannuation fund of which SM was a member.

Relevant Legislation:

The Guardianship and Administration Act 1990 (WA) (the Act) governs the powers and functions of administrators. Section 69(2) of the Act permits an administrator to do only those things necessary for the performance of the functions invested in him or her.

Analysis:

The purpose of an administration order is for the conservation of a person's estate during their lifetime for their own advantage and benefit, but does not extend to the conservation and preservation of their estate after death, when the person has ceased to have any needs [89].

A BDBN is solely for the purpose of enabling transmission on a person's death of their superannuation benefit [90]. An administrator's authority ends upon a person's death [91], as does their duty and obligation to the person subject to the administration order.

In the SM case, the Tribunal found that making a BDBN is not for the purpose of carrying out an administrator's purpose, namely the conservation of the estate of a person under an administration order for their own advantage and benefit [92].

Consequently, the Tribunal concluded that it does not have the power to grant the additional function of making a BDBN to a limited or plenary administrator.

Conclusion:

• Based on the SM [2019] WASAT 22 decision and the Guardianship and Administration Act 1990 (WA), it appears that a tribunal does not have the power to grant an administrator the authority to make a BDBN.

• This is because the primary purpose of an administrator is to manage the person's estate during their lifetime, and their authority does not extend beyond the person's death.

Factors Relevant to Determining Whether a Person with a Mental Disability is Unable to Make Reasonable Judgments in Respect of Their Estate

When determining whether an individual with a mental disability is unable to make reasonable judgments in respect of matters relating to their estate, the Guardianship and Administration Act 1990 (WA) ("GA Act") sets out specific criteria that must be satisfied.

This blog post discusses these factors, drawing from the case Re RK [2021] WASAT 13, and examines how they can be applied in practice.

1. The Mental Disability Requirement

Section 64(1)(a) of the GA Act requires that a person be "unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate".

This means that the person must have a mental disability, and their inability to make reasonable judgments must arise because of that mental disability.

In Re RK, the Tribunal found that RK had a mental disability, and that this was the cause of his inability to make reasonable judgments in respect of his estate.

2. Subjective and Objective Tests

The application of Section 64(1)(a) involves both subjective and objective tests.

The subjective test requires assessing the person's ability to make reasonable judgments in relation to their actual estate.

The objective test, on the other hand, considers whether the person has the ability to engage in the mental reasoning required to make such judgments.

3. Factors Affecting a Person's Ability to Make Reasonable Judgments

A person's ability to make reasonable judgments in respect of their estate may depend on a variety of factors, such as their health and mental health.

Ultimately, an individual must have the intellectual ability necessary to make decisions related to their estate.

This includes the ability to:

- Understand the need for and sources of income

- Comprehend the value of income relative to expenditures

- Identify and calculate necessary expenditures for daily living and long-term financial objectives

- Devise a budget to live within their means

- Assess the financial implications of various decisions and contracts

- Organize their affairs to meet debts as they fall due

- Identify and implement problem-solving strategies for resolving unexpected financial issues

4. Estate Definition

In the context of the GA Act, a person's "estate" refers to the aggregate of their property, assets, and liabilities.

This encompasses the entirety of their real and personal property and all financial affairs.

5. Causation

The phrase "by reason of" in Section 64(1)(a) of the GA Act implies a relationship of cause and effect between a mental disability and a person's inability to make reasonable judgments in respect of their estate.

In Re RK, the Tribunal found that RK's mental disability was the cause of his inability to make reasonable judgments, although he was still able to make occasional decisions regarding simple discretionary expenditure.

Key take-away

• When assessing whether a person with a mental disability is unable to make reasonable judgments in respect of their estate, it is crucial to consider the relevant factors as set out in the GA Act and case law such as Re RK.

Understanding Sterilisation Procedures and Best Interests in Guardianship Matters

Sterilisation is a significant and often irreversible medical procedure that can have life-altering consequences for the person involved.

In guardianship matters, it is crucial to ensure that any decision to authorise a sterilisation procedure is made in the best interests of the person concerned.

In this blog post, I examine the factors that are relevant in determining whether a sterilisation procedure is in a person's best interests, with reference to the Western Australian case of EW v CD [2021] WASAT 111 and the Guardianship and Administration Act 1990 (WA) (the GA Act).

Statutory Framework

The GA Act governs the authority of guardians in relation to medical treatment for represented persons, including sterilisation procedures (s 13).

Guardians may be authorised to make decisions on behalf of a represented person regarding medical treatment, but the GA Act specifically prohibits a guardian from consenting to the sterilisation of a represented person except in accordance with Division 3 of Part 5 of the Act (s 13).

Importantly, the GA Act does not define the term "sterilisation" but does provide a definition for "procedure for the sterilisation" (s 15).

The GA Act strictly regulates the circumstances in which the sterilisation of a represented person may take place, including requiring the consent of both the guardian and the Tribunal, and ensuring that all rights of appeal have been exhausted (s 17).

Best Interests

The key consideration in determining whether a sterilisation procedure is appropriate is whether it is in the person's best interests (s 22).

The GA Act does not provide a specific definition of "best interests", but s 51(2) offers guidance on how a guardian should act in the best interests of a represented person, including considerations such as community participation, self-care, protection from neglect or abuse, and the maintenance of supportive relationships and cultural environments.

In the case of EW v CD [2021] WASAT 111, the Tribunal considered the principles set out in Re Jane, which identified nine factors relevant to determining whether a sterilisation procedure was in the best interests of a person (para 25).

These factors include:

1. The possibility of the person becoming pregnant;

2. The potential for trauma or psychological damage from pregnancy or sterilisation;

3. The likelihood of voluntary sexual activity or rape;

4. The person's ability to understand reproduction or contraception and the likely permanence of that inability;

5. The feasibility of less drastic means of contraception;

6. The advisability of sterilisation at the time of the application rather than in the future;

7. The person's ability to care for a child;

8. The potential for medical or scientific advances that may improve the person's condition or offer less drastic sterilisation procedures; and

9. Evidence that the proponents of sterilisation are genuinely seeking the best interests of the person, rather than their own or the public's convenience.

Key take-aways

• In guardianship matters, the decision to authorise a sterilisation procedure must always be made with the best interests of the person in mind.

• A careful and thorough consideration of the relevant factors outlined in Re Jane, as well as the specific circumstances of the individual case, is crucial in determining whether a sterilisation procedure is in a person's best interests.

• Guardians should always be mindful of these factors and the strict regulatory requirements under the GA Act when considering sterilisation procedures for represented persons.

Understanding Breaches of Undertakings in Guardianship Matters

In guardianship matters, undertakings are solemn promises made to the court or tribunal that can have serious consequences if breached.

A recent decision in Western Australia highlights the importance of understanding the implications of such undertakings and the potential consequences for parties involved in these matters.

In this blog post, I discuss the significance of undertakings, particularly in guardianship matters, and provide insights into the consequences of breaching them.

The Importance of Undertakings in Guardianship Matters

Undertakings play a crucial role in legal proceedings, particularly in guardianship matters.

They serve as a means to ensure that parties act in the best interests of the person under guardianship and comply with the directions of the court or tribunal.

When an undertaking is given, it is expected that the party providing it fully understands the gravity of their commitment and the possible consequences of breaching it.

Breaching Undertakings and Contempt of Court

In the case of Dc [2021] WASAT 130, it was held that the conduct of both the father and the son was capable of constituting contempt of the Supreme Court.

This decision was based on the fact that the father had given an undertaking not to sell or otherwise deal with a particular property, and yet, he permitted the transfer of the property to his son, effectively breaching the undertaking (Dc [2021] WASAT 130, [26]-[28]).

Furthermore, the son was found to have aided and abetted his father's breach of the undertaking, which in itself constituted contempt (Dc [2021] WASAT 130, [29]-[35]).

It is essential to understand that aiding and abetting a contempt constitutes a contempt in its own right, regardless of whether the individual was directly bound by the injunction or undertaking (Seaward v Paterson, cited in Dc [2021] WASAT 130, [30]-[31]).

In this case, the Tribunal was satisfied on the balance of probabilities that the conduct of both the father and the son was capable of constituting contempt of the Supreme Court (Dc [2021] WASAT 130, [26], [29]).

Consequently, the Tribunal reported the alleged contempts to the Supreme Court for further action (Dc [2021] WASAT 130, [38]).

Key Takeaways

• The decision in Dc [2021] WASAT 130 serves as a reminder that undertakings given in guardianship matters are not to be taken lightly.

• Breaching an undertaking can have severe consequences, including being held in contempt of court. It is crucial for all parties involved in a guardianship matter to understand the undertakings they provide and their obligations under the relevant legislation, such as the State Administrative Tribunal Act 2004 (WA).

If you have any concerns or questions about your obligations in a guardianship matter, it is advisable to seek professional legal advice from a qualified guardianship lawyer.

I can guide you through the process and help you navigate the complexities of guardianship law to ensure that you fulfil your legal obligations and act in the best interests of the person under guardianship.

You can contact me here.

Rebutting the Presumption of Capacity in Guardianship Matters

As a guardianship lawyer in Western Australia, I often receive questions about the concept of capacity and the process of proving that an individual lacks decision-making capacity in guardianship and administration matters.

In this blog post, I will explore the statutory presumption of capacity, and what is necessary to rebut this presumption in light of the decision in MH [2022] WASAT 74.

Statutory Presumption of Capacity

The Guardianship and Administration Act (the GA Act) establishes a fundamental principle: the statutory presumption of capacity.

This presumption serves to protect individuals who are the subject of proceedings under the GA Act from having their decision-making capacity removed and a substitute decision-maker appointed for them without clear and cogent evidence.

As stated in MH [2022] WASAT 74 at [130], the statutory presumption of capacity is the starting point in any application under the GA Act where the decision-making capacity of a person is in issue.

It is important to note that a person who is the subject of an application for guardianship or administration orders does not need to prove that they have decision-making capacity.

The Tribunal starts from the position that the person has capacity (by virtue of the statutory presumption).

Rebutting the Presumption of Capacity

In order to rebut the statutory presumption of capacity, clear and cogent evidence is required (MH [2022] WASAT 74 at [131]).

The evidence must be sufficient to satisfy the Tribunal that the person lacks the relevant decision-making capacity.

The standard of proof applied by the Tribunal is the civil standard (balance of probabilities).

However, due to the significant consequences of a finding that a person does not have decision-making capacity, clear and cogent evidence is required to establish the facts on which that conclusion depends.

In the case of MH [2022] WASAT 74, the Tribunal found at [132] that the medical evidence, together with the evidence of other witnesses, was sufficient to displace the presumption in the GA Act that Mrs MH was capable of looking after her own health and safety and making reasonable judgments in respect of matters relating to her person.

Consequently, the Tribunal found that Mrs MH was incapable of looking after her own health and safety and unable to make reasonable judgments in respect of matters relating to her person (at [133]).

This finding led the Tribunal to conclude that Mrs MH was in need of oversight, care, or control in the interests of her own health and safety (at [134]).

Key take-aways

• The statutory presumption of capacity is a fundamental principle under the GA Act, and serves to protect individuals from having their decision-making capacity removed without sufficient evidence.

• To rebut this presumption, clear and cogent evidence must be provided to satisfy the Tribunal that the person lacks decision-making capacity.

• The decision in MH [2022] WASAT 74 serves as a useful illustration of how this process works in practice. I

• If you have any questions or concerns about capacity and guardianship matters, please do not hesitate to contact me.

Understanding the Validity of Advanced Health Directives in Western Australia

Advanced health directives (AHDs) are legal documents that allow individuals to make decisions about their future medical treatment in the event they become unable to communicate their preferences.

AHDs play a significant role in preserving an individual's autonomy and respecting their wishes regarding medical treatment. In this blog post, I discuss the factors that may render an AHD invalid, relying on the recent Western Australian State Administrative Tribunal decision, JH [2022] WASAT 108.

This case provides valuable insight into the criteria that must be met for an AHD to be considered valid.

Factors Affecting the Validity of an AHD

1. Voluntariness

An AHD must be made voluntarily and free from any form of inducement or coercion.

In JH [2022] WASAT 108, the Tribunal found that there was no evidence to suggest that the AHD was made involuntarily or under any form of coercion.

The decision-makers found that Ms JH had discussed her AHD with her family members, and they respected her wishes.

This supports the conclusion that the AHD was made voluntarily.

2. Understanding the Nature of the Treatment Decision and Consequences

An AHD may be considered invalid if the maker did not understand the nature of the treatment decision or the consequences of making such a decision.

In JH [2022] WASAT 108, the Tribunal found that Ms JH understood the nature of the treatment decisions and the consequences of those decisions.

The AHD in question contained simple treatment decisions—refusing consent to be resuscitated or put on life support.

The Tribunal also considered the fact that Ms JH's general practitioner witnessed the AHD, which further supports the conclusion that she understood the nature and consequences of her treatment decisions.

Legislation

In Western Australia, the validity of an AHD is governed by the Guardianship and Administration Act 1990 (WA).

The Act sets out the criteria for creating a valid AHD, including requirements related to voluntariness, understanding the nature and consequences of treatment decisions, and proper witnessing of the document.

Key take-aways

• The case of JH [2022] WASAT 108 provides a useful example of the factors that the Western Australian State Administrative Tribunal considers when determining the validity of an AHD.

• When drafting an AHD, it is important to ensure that the document is made voluntarily and that the individual creating the AHD understands the nature and consequences of the treatment decisions they are making.

• Consulting a guardianship lawyer, like myself, can help ensure that your AHD is legally valid and reflects your wishes for future medical treatment. You can contact me here.

Appointment of an Administrator After a Court Compensation Trust Has Been Established

The appointment of an administrator after a court compensation trust has been established can be a complex process, as illustrated by the case of LS [2019] WASAT 97.

In this blog post, we will discuss the appointment of an administrator after a court compensation trust has been established, using the LS case as an example, while also referencing relevant legislation from the Guardianship and Administration Act 1990 (WA) (GA Act).

Background

In the LS case, a young man sustained a severe brain injury in a motor vehicle accident and later received a settlement of just over $8 million from a personal injuries claim, which was placed in a court compensation trust [1, 5].

A trustee company was appointed as administrator to manage the funds [2, 9]. This appointment was made under the GA Act [3].

The Need for an Administrator

The appointment of an administrator is essential when a person is deemed unable to make reasonable judgments relating to their estate due to mental disability [13].

In the LS case, the Tribunal found that LS was unable to make reasonable judgments relating to his estate because of his acquired brain injury, and that an administrator was needed [13].

This determination was made subject to the principles set out in s 4 of the GA Act, including the presumption of capacity and the best interests of the person [14].

The Cheyne Decision and Its Impact

The need for the appointment of an administrator in cases like LS's arose from the decision in Perpetual Trustee Company Ltd v Cheyne [2011] WASC 225 (Cheyne) [10].

The Cheyne decision established the following essential elements for such cases [59]:

1. A person is granted an award of damages arising from a personal injury claim.

2. A court compensation trust is created, and a trustee is appointed.

3. The trustee is given the power to apply funds for the maintenance, welfare, advancement, or benefit of the person.

4. If the person is assessed as having total and permanent disability, funds can be transferred to a superannuation fund for tax benefits.

5. Funds in the superannuation fund can be immediately used for the person's needs.

6. Funds can move between the court compensation trust and the superannuation fund.

The Cheyne decision allowed for a practical solution to protect the interests of a person under disability who is subject to a court compensation trust and stands to receive significant financial benefits from the application of those funds to superannuation [62].

Tribunal's Independent Jurisdiction

The Tribunal has independent jurisdiction under the GA Act to appoint an administrator for a person's estate [63].

It must independently find that the person satisfies the requirements of s 64(1) of the GA Act, subject to the principles set out in s 4 [63].

The Tribunal must also be prepared to revoke an existing administration order if the person no longer meets the statutory test for incapacity [65].

Key takeaways

• The appointment of an administrator after a court compensation trust has been established is crucial for protecting the interests of a person under disability.

• The Tribunal has independent jurisdiction under the GA Act to appoint an administrator and must ensure that the person meets the requirements for incapacity.

• The Cheyne decision provided a practical solution for these situations, offering a balance between the need for financial management and the best interests of the person under disability.

Cases referred to in this blog:

• LS [2019] WASAT 97

• Perpetual Trustee Company Ltd v Cheyne [2011] WASC 225

When Should Leave Be Granted Under Section 87 of the Guardianship and Administration Act 1990 (WA)?

Guardianship and administration orders have a significant impact on the autonomy of a represented person.

This blog provides an overview of when leave should be granted under section 87 of the Guardianship and Administration Act 1990 (WA) (the GA Act) for a review of guardianship or administration orders, drawing on the principles discussed in RK [2022] WASAT 112.

Legislative Context

Under the GA Act, there are four ways in which a guardianship or administration order may be reviewed:

1. The Tribunal must review the order within a specified period not exceeding five years, in line with the principles of section 4 of the GA Act.

2. An aggrieved party may request a review by a Full Tribunal within 28 days, or with an extension granted by the Full Tribunal.

3. The Tribunal is required to review the order if the appointed guardian or administrator is unable to carry out their role for various reasons, including death, incapacity, or neglect.

4. The GA Act allows a represented person, a guardian, an administrator, the Public Advocate, or the Public Trustee to request a review at any time.

Section 87 of the GA Act also permits other persons to apply for a review at any time, but they must obtain the leave of the Tribunal to do so. The Tribunal may grant leave if it is satisfied that a review should be held due to a change of circumstances or for any other reason.

Reasons for the Requirement of Leave

As discussed in RK [2022] WASAT 112, there are three reasons for requiring leave for a review:

1. Guardianship and administration orders should not be displaced without good reason, as they may cause anxiety and disruption in the life of a represented person.

2. The Tribunal is required to fix a period for the review of any guardianship or administration order, and the order should not be reviewed in advance of the specified period unless there is a good reason to do so.

3. The Tribunal engages in an inquisitorial process when making orders and expects all relevant information to be provided at the hearing of the challenged decision.

Criteria for Granting Leave

To be granted leave under section 87 of the GA Act, applicants must fulfil the following conditions:

1. In cases where the applicant is relying on a change in circumstances, they are required to present new evidence that:

   a. Has not been previously brought to the attention of the Tribunal;

   b. Holds relevance to the appointment of a guardian or administrator; and

   c. Was either unknown or could not have been reasonably discovered by the applicant prior to the hearing of the challenged decision.

2. If the applicant is not relying on a change in circumstances or was not a party during the hearing of the challenged decision, they must provide an "other reason" justifying the review. For instance, the applicant could show that they were not notified of the hearing or that the challenged decision is no longer, or was never, in the best interests of the represented person.

Ultimately, the primary focus of the Tribunal when deciding whether to grant leave is the best interests of the person being represented.

Key take-aways

• Leave for a review of guardianship or administration orders under section 87 of the GA Act is only granted when the Tribunal is satisfied that there has been a change of circumstances or an "other reason" warranting the review.

• Understanding the legislative framework and the principles laid out in RK [2022] WASAT 112 is essential for navigating the process of seeking leave for review of these orders in Western Australia.