In the case of DH [2020] WASAT 100, the applicant PE sought directions under section 109(2)(b) of the Guardianship and Administration Act 1990 (WA) regarding an enduring power of attorney (EPA) granted to him and his wife DE by his mother DH in January 2015.
DH had dementia and PE had recently begun managing her affairs.
PE proposed using the EPA to advance 50% of the value of bequests made to DH's six grandchildren in her 2016 will, in order to provide the adult grandchildren early access to part of their inheritance.
The issues centered on whether the attorneys could make such gifts under the EPA despite lack of express gifting authority, the impact on DH and other beneficiaries, and consistency with the attorneys' fiduciary obligations towards DH.
The Tribunal declined to provide the requested direction, finding that such affirmation of the gifting proposal would conflict with legislative protective intent and fiduciary duties requiring conservation of the represented person's estate for their welfare.
The attorneys thus retained discretion over whether to proceed, with the gifts' substantive merits distinguished from procedural propriety concerns underlying the dismissal.
Giving Directions to a Donee under an Enduring Power of Attorney
Under section 109(2)(b) of the Guardianship and Administration Act 1990 (WA) (GA Act), the donee of an enduring power of attorney (EPA) may apply to the State Administrative Tribunal (the Tribunal) for directions regarding matters connected with the exercise of the power or the construction of its terms.
Jurisdiction to Give Directions
The Tribunal's jurisdiction to give directions to a donee under an EPA derives from section 109(2)(b) of the GA Act, which states that the donee "may apply to the State Administrative Tribunal...for directions as to matters connected with the exercise of the power or the construction of its terms."
This provision allows a donee to seek clarification and advice when unsure if a proposed course of action falls within the permissible scope of authority granted by the EPA.
For example, in KS [2008] WASAT 29 at [50], Barker J stated that a donee could apply for "directions about how [they] should act in particular circumstances" such as whether the EPA authorises the sale of the donor's property or guidance on how "a condition or restriction in the enduring power of attorney is to be interpreted." Thus, section 109(2)(b) empowers the Tribunal to provide authoritative advice to donees regarding the proper interpretation and limits of an EPA. However, as noted in the decision at [26], the Tribunal's role is supervisory rather than directive. Per KS at [50], the Tribunal "cannot order [the donee] to sell the donor's property" or make other decisions on their behalf. The donee retains ultimate responsibility for exercising their powers appropriately after receiving clarification from the Tribunal.
Protective Intent and Fiduciary Duties
When determining whether to provide directions under section 109(2)(b), the Tribunal must consider the overarching protective intent and purpose of the GA Act as per EM Heenan J in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [43]-[44].
As quoted at [47] of the decision, the GA Act aims to guard against "unscrupulous or ill advised influence" that could "jeopardise the financial security or interests" of adults with impaired decision-making capacity. The Tribunal articulated concerns that gifting estate assets could contravene this protective purpose "for conserving the property and financial resources of the disabled person" to meet their needs (at [47], citing Re The Full Board at [44]). Thus, directions that sanction depletion of the represented person's estate merit close scrutiny.
Compounding this concern, donees also owe fiduciary duties to donors as their agents, imposing higher standards of loyalty and care than apply to ordinary persons (at [34]). These duties persist after the donor loses capacity (at [36]) given their increased reliance on the donee's integrity. As articulated in Tobin v Broadbent (1947) 75 CLR 378 at 401 (quoted at [37]), powers of attorney should not be interpreted as authorising self-dealing or use of property for the donee's benefit absent explicit permission.
While the GA Act does not prohibit gifting outright (at [39]), section 107(1)(a) mandates donees exercise their powers with "reasonable diligence to protect the interests of the donor." Directing donees to make gifts seemingly in tension with fiduciary obligations merits cautious consideration.
Traditional Powers and Administration Orders Distinguished
Unlike administrators appointed by the Tribunal, EPAs and donees are not subject to section 72(3)(a) of the GA Act, which prohibits gifts absent express authorisation (at [40]). Nonetheless, as articulated in DW and JM [2006] WASAT 366 at [40]-[41] and cited at [39] herein, guidance on appropriate gifting considerations for administrators remain instructive when advising donees.
These factors, set out in section 5.17 of A Guide to Enduring Powers of Attorney in Western Australia, include the donor-beneficiary relationship, gift purpose, estate size, donor needs, donor's presumed wishes if capacitated, and equal treatment of those with similar relationships to the donor (at [26]). While not binding, prudence suggests donees consider these factors.
By contrast, directions under section 74(1) of the GA Act require administrators to comply with Tribunal guidance regarding estate property and management. As noted at [43], section 74 is analogous to the court's powers under section 92(1) of the Trustees Act 1962 (WA) to provide binding directions to trustees. Arguably, the discretionary term "may" in section 109(2) contemplates non-binding guidance. This accords with KS's description of the GA Act as largely protective of incapacitated adults (at [46]).
Considerations in This Application
Turning to the specific circumstances herein, the donees relied principally on the donor's consent in seeking authorisation to advance partial inheritance payments. However, while expressing wishes when capacitated can indicate likely intent, as the decision notes at [55]-[56], the donor's incapacity prevents her from directing the donees.
Nor do statutory powers expand upon incapacity merely due to compliance with execution formalities; rather, only express EPA terms govern donees after donor incapacity per section 105 of the GA Act (see decision at [29]-[30]). As no gifting provision was included, the donees' powers remain constrained by their overarching duties to the donor rather than any presumption of intent.
Lastly, the decision considered at length (at [46]-[48]) whether the proposed gifts properly constitute a "matter connected with the exercise of the power" under section 109(2)(b) as they do not involve power interpretation questions archetypically brought under that provision. Reading subsection (3) in context, which addresses document production and revocation, suggests a supervisory rather than prescriptive jurisdiction. This also accords with the protective motivations noted above.
Conclusion and Reasoning
For these reasons, while the Tribunal accepted that the gifts were unlikely to jeopardise the donor's care (at [52]), were not self-dealing (at [53]), aligned with previous generosity toward beneficiaries (at [54]), and permissive precedent exists (at [39]), nonetheless substantive concerns persisted regarding fidelity to legislative protective intent and fiduciary responsibilities.
The decision concludes at [57] that formally providing the requested authorisation direction conflicted with the GA Act's overarching purpose of conserving resources for protected persons' welfare and security. Moreover, absent an unambiguous gifting power, doubt existed whether donees could priortise beneficiaries' interests without breaching their duty of loyalty to the donor per section 107(1)(a).
While the Tribunal determined the gifts would likely represent no substantive hardship or wrong, procedural propriety and institutional integrity disfavoured sanctioning a course of action in tension with statutory and common law duties. Instead, at [58] the Tribunal advised donees to carefully weigh their obligations to the donor when deciding whether to proceed, emphasising this assessment as their own fiduciary responsibility rather than an endorsement. Substantive merits were distinguished from procedural concerns.
The protective conservation of resources and property for represented persons, secured through both legislative frameworks and equitable oversight mechanisms, thus represent guiding priorities when determining whether to formally provide directions endorsing acts with any potential for abuse or disproportionate dissipation. Absent unambiguous authority, donees' duties of loyalty militate against affirmative Tribunal authorisation of proposed self-dealing or preferential distribution conflicting with the donor's privileged interests. While necessity might justify certain acts if clearly proven, imperatives of transparency and accountability warrant conservative exercise of judicial and statutory discretion.