AA
[2025] WASAT 92
•11 SEPTEMBER 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: AA [2025] WASAT 92
MEMBER: JUDGE F VERNON, DEPUTY PRESIDENT
DR M EVANS-BONNER, SENIOR MEMBER
MR M BENTER, MEMBER
HEARD: 13 MAY 2025
ADDITIONAL EVIDENCE AND SUBMISSIONS FILED ON 20 MAY, 9 JUNE AND 16 JUNE 2025
DELIVERED : 11 SEPTEMBER 2025
FILE NO/S: GAA 545 of 2025
AA
Represented Person
S2 and S3
Applicants
S1
Interested Person
Catchwords:
Guardianship - Administration - Whether the represented person has capacity - Whether the represented person is in need of a guardian and administrator - Suitability for appointment as guardians and administrators - Transfer of property interests to applicants - Applicants' understanding of represented person's cognitive capacity at the time of the transfer of property interests - Appointment of plenary administrator - Appointment of limited guardians
Legislation:
Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 17A, s 27(1), s 27(2), s 43(1)(a), s 43(1)(b)(i), s 43(1)(b)(ii), s 43(1)(b)(iii), s 43(1)(c), s 44(1), s 44(2)(a), s 44(2)(b), s 44(2)(c), s 44(2)(d), s 64(1)(b), s 68(1), s 68(3)(a), s 68(3)(b), s 68(3)(c)
Result:
Public Trustee appointed as plenary administrator
Applicants appointed as joint limited guardian with the services function only
Public Advocate otherwise appointed as limited guardian
Category: B
Representation:
Counsel:
| Represented Person | : | No appearance |
| Applicants | : | Mr C Russell SC and Ms F Lester |
| Interested Person | : | Mr R Graham |
Solicitors:
| Represented Person | : | N/A |
| Applicants | : | Hotchkin Hanly |
| Interested Person | : | Graham & Associates Lawyers |
Case(s) referred to in decision(s):
A v N [2012] NSWSC 354
AA [2025] WASAT 2
Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423
Perpetual Trustees WA Ltd and the Public Trustee [2009] WASAT 253
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
By an application, under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act), S2 and S3 (collectively, the applicants) seek review of a decision made by a single member of the Tribunal on 3 January 2025, in relation to their mother, AA.
The Member's reasons for decision are found in AA [2025] WASAT 2. We will refer to the various parties using the same terms the Member used: AA for the represented person, S3 for AA's youngest son who lives with AA, S2 for AA's middle son, and S1 for AA's eldest son, who was the applicant in the proceedings before the Member.
In summary, the Member:
(a)revoked an enduring power of attorney and an enduring power of guardianship, each dated 4 October 2021, whereby AA appointed the applicants as her joint and several attorneys and joint guardians (the EPA and the EPG respectively);
(b)appointed the Public Trustee as plenary administrator of AA's estate; and
(c)appointed the Public Advocate as AA's limited guardian with the following functions:
(i)to decide where, and with whom, AA is to live (accommodation function);
(ii)to make treatment decisions for AA (treatment function);
(iii)to determine what services AA should access (services function);
(iv)to commence, conduct, or settle any proceedings on AA's behalf, except proceedings relating to AA's estate (next friend function); and
(v)to determine what contact, if any, AA should have with others and the extent of that contact (contact function).
The applicants and S1 do not dispute that AA suffers dementia, and that, as a result, AA is in need of both an administrator and a guardian.
The applicants accept that the Public Trustee should be appointed as AA's administrator with the functions of commencing or defending litigation, disposing of any interest in real property, and granting a mortgage or other security over real property. However, the applicants want to be appointed as AA's joint administrators for the balance of a plenary administrator's functions. S1 says that the current administration orders should remain in place.
The applicants also accept that the Public Advocate should be appointed AA's guardian to exercise the contact function and to share information about AA's health and treatment with S1. The applicants and S1 agree that there is no need for the next friend function. S1 says that, otherwise, the current guardianship orders should remain in place. The applicants want to be appointed as AA's joint guardians with the accommodation, treatment and services functions.
We have decided to make orders in largely the same terms as the Member's orders, other than to remove the next friend function from the guardianship orders and to appoint the applicants as joint guardians with the services function only. Our reasons are set out below.
Principles governing the proceedings and matters not in dispute
As a review of a reviewable decision, these proceedings are by way of a hearing 'de novo': that is, afresh.[1] The purpose of the review is to produce the correct and preferable decision at the time of the decision on review.[2] We may consider the evidence that was before the Member as well as new evidence.[3]
[1] State Administrative Tribunal Act 2004 (WA) (SAT Act) s 27(1).
[2] SAT Act s 27(2).
[3] SAT Act s 27(1).
Our first concern is AA's best interests.[4] We must, as far as possible, try to ascertain AA's views and wishes.[5]
[4] Guardianship and Administration Act 1990 (WA) (GA Act) s 4(2).
[5] GA Act s 4(7).
We may only appoint a guardian in respect of a person who is over 18 years of age.[6] There is no dispute in this case that AA meets this criteria.
[6] GA Act s 43(1)(a).
We must presume that AA is capable of making reasonable judgments about her personal and financial affairs unless we are satisfied on the evidence that she is not capable.[7]
[7] GA Act s 4(3).
We cannot make an administration order unless we are satisfied that AA:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate; and
(b)is in need of an administrator of her estate.[8]
[8] GA Act s 64(1)(a) and s 64(1)(b).
We cannot make a guardianship order unless we are satisfied that AA:
(a)is incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person; or
(c)in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and
(d)is in need of a guardian.[9]
[9] GA Act s 43(1)(b)(i), s 43(1)(b)(ii) and s 43(1)(b)(iii) and s 43(1)(c).
We must not make an order appointing a guardian or an administrator if AA's needs could be met by other means less restrictive of her freedom of decision and action.[10] As we have said, under the EPA and the EPG respectively, AA appointed the applicants as her attorneys and guardians. The Member revoked the EPA and the EPG. The applicants do not seek to reinstate them. Accordingly, an order appointing an administrator or guardian will be the only means to meet AA's needs, if we find she is in need of an administrator or a guardian.
[10] GA Act s 4(4).
We may only appoint an administrator or a guardian who, in our opinion, will act in AA's best interests and is otherwise suitable to act as AA's administrator.[11] In addition, we may only appoint a guardian who is not in a position where their interests conflict, or may conflict, with AA's interests.[12]
[11] GA Act s 68(1)(c) and s 68(1)(d) and s 44(1)(a) and s 44(1)(c), respectively.
[12] GA Act s 44(1)(b).
In determining these questions, we must take into account, as far as possible, the applicants' compatibility with AA, AA's wishes, and whether the applicants will be able to perform the functions proposed to be vested in them as administrators or guardians.[13] In determining who to appoint as guardian, we must also take into account as far as possible the desirability of preserving existing relationships with the family of the person in respect of whom the application is made.[14]
[13] GA Act s 68(3)(a) to s 68(3)(c) and s 44(2)(b) to s 44(2)(d), respectively.
[14] GA Act s 44(2)(a).
We must not appoint a plenary guardian if appointing a limited guardian would be sufficient to meet AA's needs.[15] Any order appointing a limited guardian or an administrator should be in the least restrictive terms that are possible in the circumstances.[16]
[15] GA Act s 4(5).
[16] GA Act s 4(6).
There is no dispute in this case that, if we find that AA is in need of an administrator, the administrator should be conferred with plenary powers, given the size and complexity of AA's estate. We are satisfied that is the case.
In addition, there is no dispute in this case that, if we are satisfied that AA does need a guardian, a limited guardianship will suffice with the functions currently conferred on the Public Advocate, other than the next friend function. The next friend function was conferred because S3 had applied, on AA's behalf, for a family violence restraining order against S1. The evidence supports a finding, which we make, that those proceedings have been dismissed. Accordingly, we are satisfied that, if AA is in need of a guardian, the next friend function is not required.
Finally, in order to be eligible for appointment as an administrator or guardian, an individual must be over the age of 18 years and have consented to act in that role.[17] There is no dispute, and we find, that each of the applicants meet these criteria. The applicants are the only volunteers for such appointment.
[17] GA Act s 68(1) and s 44(1), respectively.
Summary of issues remaining to be determined
In light of the above, the issues that remain to be determined are as follows:
(1)Are we satisfied, on the balance of probabilities, that:
(a)AA suffers from a mental disability; and
(b)by reason of that mental disability, AA is unable to make reasonable judgments in respect of matters relating to all or any part of her estate; and
(c)AA is in need of an administrator of her estate?
(2)If the answer to each of issues (1)(a), (b) and (c) is 'yes', are we satisfied, on the balance of probabilities, that the applicants, or either of them:
(a)will act in AA's best interests; and
(b)are suitable to be appointed AA's administrator, taking into account:
(i)their compatibility with AA and AA's guardian;
(ii)AA's wishes; and
(iii)whether they will be able to perform the functions to be vested in them, being all functions of plenary administrator other than the functions of commencing and defending litigation, disposing of interests in real property and granting mortgages or other securities over real property?
(3)In relation to the application for a guardianship order, are we satisfied, on the balance of probabilities, that AA is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person; or
(c)in need of oversight, care or control in the interests of her own health or safety or for the protection of others; and
(d)in need of a guardian?
(4)If the answer to each of issues (3)(a) to (d) is 'yes', are we satisfied on the balance of probabilities that the applicants, or either of them:
(a)will act in AA's best interests;
(b)is not in a position where their interests conflict, or may conflict, with AA's interests; and
(c)is suitable to be appointed AA's limited guardian with accommodation, treatment and services functions?
Application to adduce additional evidence
The matter proceeded to hearing before us on 13 May 2025. At the conclusion of that hearing, the applicants indicated they may wish to adduce additional evidence. They subsequently filed two further affidavits. S1 did not oppose leave being granted to rely on these affidavits, subject to having the opportunity to file submissions in relation to them. Accordingly, on 30 May 2025 we made orders allowing leave to rely on the affidavits and allowing time for S1 to file further written submissions limited to that evidence and for the applicants to file submissions in reply. Submissions were filed in accordance with those orders by 16 June 2025.
AA's wishes
AA did not attend the hearing because she did not wish to participate. Accordingly, we could not ascertain her wishes directly. However, there is no dispute that AA appointed the applicants under the EPA and the EPG and we take that action into consideration as an indication of her wishes at that time.[18]
[18] GA Act s 4(7).
In an undated report filed on 29 November 2023 (2023 OPA Report), a senior investigator (Investigator) of the Office of the Public Advocate (OPA), reported that AA said, if she had to choose anyone to assist her or manage her finances, she would choose the applicants and that she trusted the applicants.
The report of the delegated guardian at the OPA, dated 6 May 2025, (2025 OPA Report) said that AA is content to live with S3. S2 continues to visit her there.
We infer from this evidence, and find, that AA would want the applicants to be appointed as her administrators and her guardians.
Have the preconditions for the appointment of an administrator been met?
AA is 93 years old. She was reviewed by a geriatrician on 13 June 2024 (Geriatrician 1). Geriatrician 1 provided a report to the Tribunal dated 20 June 2024 (20 June 2024 report), which attached a letter dated 13 June 2024 (13 June 2024 report) to AA's general practitioner.
In the 13 June 2024 report, Geriatrician 1 said that AA had scored 19/30 on a Mini Mental State Examination (MMSE) and 15/30 on the Rowland Universal Dementia Assessment Scale (RUDAS). He said that the RUDAS was probably a more appropriate test for AA. Geriatrician 1 said that his assessment was that AA had a chronic cognitive impairment most likely on the basis of a dementia.
In the 20 June 2024 report, Geriatrician 1 said, in effect, that in his opinion:
(a)AA had a mental disability, likely Alzheimer's, which is a progressive condition;
(b)AA was incapable of making reasonable decisions in relation to simple financial matters, complex financial decisions and legal matters;
(c)AA was incapable of making reasonable decisions in relation to medical treatment, accommodation and services.
There is no dispute in this case that the MMSE and RUDAS scores referred to in [28] above support Geriatrician 1's opinions about AA's current lack of capacity, nor is there any dispute about the likely cause of that incapacity. We accept Geriatrician 1's evidence about those matters and make findings in accordance with [28] and [29] above.
Dementia is a mental disability within the meaning of s 3 of the GA Act.
In light of these findings, we are satisfied on the balance of probabilities that:
(a)AA suffers from a mental disability, namely dementia, most likely Alzheimer's dementia; and
(b)by reason of that mental disability, AA is unable to make reasonable judgments in respect of matters relating to all or any part of her estate; and
(c)AA is in need of an administrator of her estate.
Relevance of the 2023 transactions
The principal evidence relevant to the issue of whether we can be satisfied that the applicants, or either of them, will act in AA's best interests if appointed as her administrators, concerns property transactions which took place on 28 April 2023, when AA executed transfers by which she transferred to the applicants a two-thirds portion of her interest in eight properties (2023 transactions).
S1 says that we should find that AA did not have capacity to enter into the 2023 transactions. The applicants say that we should find that AA did have capacity to enter into the 2023 transactions. They submit that we must be satisfied on the balance of probabilities that AA did not have capacity at that time before we may rely on the evidence suggesting AA lacked capacity.
Capacity is to be tested by reference to the particular transaction or conduct in which the person proposes to engage.[19]
[19] A v N [2012] NSWSC 354 at [390]; see also Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423 at 437.
We have no power to determine whether the 2023 transactions should be set aside, or declared void, because AA did not have capacity to enter into those transactions. Our role in these proceedings is to determine whether, at the date of our decision, AA lacks capacity in the way set out in issues 1 and 3 of [21] above, not whether AA lacked capacity to enter into particular real estate transactions over two years ago. Whilst such evidence might be relevant to the determination of current incapacity under the GA Act, in this case there is no dispute about AA's current incapacity.
In our view, the 2023 transactions are relevant only because the applicants' involvement in those transactions may affect our assessment of whether we can be satisfied that the applicants will act in AA's best interests if they are appointed as AA's administrators, and whether they are suitable for such appointment.
As a result, we do not consider that it is necessary to make a finding either that AA did, or did not have capacity to enter into the 2023 transactions. Nor should we make unnecessary findings on matters that may be relitigated in future. However, we do consider that the evidence concerning how the 2023 transactions came about, whether there was reason to be concerned about AA's capacity to enter into the 2023 transactions, and the applicants' knowledge of any reason to be so concerned, are relevant to our assessment of whether the applicants would act in AA's best interests and are suitable for appointment as AA's administrators.
Evidence and findings
Background
There is no dispute about the matters set out in [40] to [44] below. We make findings of fact in accordance with those paragraphs. In these reasons, where we do make findings of fact we do so on the balance of probabilities.
Before 28 April 2023, AA was the sole owner of her home in a suburb of Perth, where she had lived for many years (the home). The applicants have been AA's primary supports for a number of years. In 2024, S3 moved into the home to care for AA. S2 visits AA frequently.
Before 28 April 2023:
(a)AA was also the majority owner of seven other properties that generated rental income (the rental properties); and
(b)the home and the rental properties formed the bulk of AA's estate. In addition, AA had, and has, a share portfolio and cash in a number of bank accounts.
Before 28 April 2023, the applicants, or companies connected with the applicants, owned 1% or 2% interests in the rental properties, as tenants in common with AA. Those interests were created in 2003, during AA's husband's lifetime. However, before 28 April 2023, AA received the whole of the rental income from the rental properties.
On 20 August 1991, AA made a will in which she left the entirety of her estate to the applicants in the event her husband predeceased her, and said that she had deliberately omitted S1 as a beneficiary, and stated a reason for doing so.
On 25 November 2013, after her husband's death, AA made a new will in which she left the entirety of her estate to the applicants and said that she had intentionally made no provision for S1, and stated a reason for doing so.
In a witness statement filed 4 December 2023, S3 said, in effect that, as an accountant he had always assisted with AA's finances, although she personally inspected the rental statements. In his affidavit of 28 October 2024, S2 said that he had had AA's authority to act on her behalf for many years, had the passwords to her banking and share market accounts and would perform transactions as she requested, discussed her share account with her on a monthly basis, and helped her with her insurance and utility accounts. On the basis of this evidence, we find that AA relied on the applicants to manage her financial affairs.
AA's capacity before 28 April 2023
There is no dispute about the matters referred to in [47] to [55] below and we make findings of fact in accordance with those paragraphs.
On 12 April 2021, AA attended her general practitioner of approximately 20 years (GP1). GP1 performed a MMSE in Italian,[20] on which AA scored 29 out of a maximum of 30 points. GP1 issued a certificate dated 12 April 2021 in which he certified that AA had 'mental capacity' (GP1's Certificate).
[20] There is no dispute that AA speaks the Sicilian dialect of Italian.
An ACAT assessment report generated on 7 September 2022 (the ACAT Assessment) stated that S3 had reported AA experiencing episodes of 'STM loss'. There is no dispute in this case that 'STM loss' refers to short-term memory loss.
On 25 March 2023, S3 took AA to see another general practitioner (GP2) at the same clinic as GP1, because GP1 was not available.
GP2 said, in evidence before us, that S3 reported that AA had suffered confusion and that she had left the home in the rain and walked to her sister's house 20 houses away, and that AA was saying that her jewellery had been stolen. GP2 said that he did not think the report of stolen jewellery indicated paranoia, but did not go into depth about what these thoughts might have been. GP2 said that that it sounded like AA had been quite confused and he considered the issue was serious enough that he needed to do further investigations to exclude acute events such as infection. GP2 said that he examined AA and that she responded appropriately and was oriented to time, person and place. He said there were no acute concerns, and suggested they organise a health assessment.
On 30 March 2023, AA underwent a health assessment, during which AA underwent an MMSE, in which she was assessed to have scored 25 out of 30 points. GP2 was not present during the assessment, which was conducted by a pharmacist employed by the practice.
GP2 saw AA and S3 after the MMSE, and other tests, had been conducted. GP2 said that he was not concerned with the MMSE result, given AA's age. He said that anything 25 and above is considered to be normal capacity, and, at 24, further monitoring is required. GP2 said that AA had a depression score of seven which he thought might be explained by a background of family discord.
GP2 said that he did not have any concerns about AA's cognition, but thought that she had suffered an acute event, the cause of which was unknown. GP2 said that he told AA and S3 on 30 March 2023 that he thought AA had capacity.
On 12 April 2023, S1 spoke to GP2 about his concerns about AA's capacity. GP2 said that he thought that, given those concerns, it would be appropriate to obtain a specialist review, either by a geriatrician or at a memory clinic. GP2 though this was prudent because AA was elderly, there was a background of family conflict, there were some questions about capacity, apparently referring to S1's concerns, and a specialist would give AA a more in-depth look, whereas he may have seen AA 'on a good day'. GP2 drafted a referral letter, and in fact made several drafts. However, he said that he required AA's instructions before he could refer her and so rang her home.
GP2 said that he spoke to both the applicants separately on the telephone on 14 April 2023. He said that he asked to speak to AA but that she did not come to the telephone.
GP2 said that, during the call with S2 on 14 April 2023, S2 told him about the applicants' appointment under the EPG. GP2 said that, as a result, he did not push the point about speaking to AA. He said that he did not really consider whether the EPG would have been activated if AA did have capacity, as AA was not principally his patient.
GP2 said that he told S2 that he wanted AA's permission to refer her to a geriatrician and that it was his opinion that it would be sensible to go to the next level and have a conversation with a specialist. GP2 said that he mentioned that S1 had expressed some concerns to him. He said that he also mentioned doing a CT scan of AA's brain. GP2 said that he then spoke to S3 on the telephone and explained the same situation, from which we infer he told S3 what he had told S2. GP2 said that S3 said that he would talk to S2 and get back to GP2.
GP2 said that, at that time, he thought that AA had capacity. However, he said that he did not discuss this opinion with either of the applicants during the telephone call.
S3 said at the hearing before us that he could not recall a conversation where GP2 said that S1 had been speaking to GP2 and GP2 talked to S3 about referring AA to a geriatrician.
S2 agreed that GP2 had called him and suggested AA see a geriatrician, and that this had occurred as the result of a discussion with S1. S2 said:
…I said 'that's not reasonable'. [S1] has no understanding of Mum's health. Mum had been assessed with that Mini-Mental… she was assessed by ACAT. She had passed the Mini-Mental there. They did a RUDAS test.
S2 said that:
…[GP2] said, in his opinion, there was no need for Mum to see a geriatrician. Her health was under control by [GP1]. So it was up to me whether I wanted to proceed with the geriatrician or not.
When asked why it was up to him, S2 said 'well I was taking care of mum's health'.
When asked whether GP2 suggested that it would be a good idea for AA to see a geriatrician in the context of a dispute with S1, S2 said:
Well, he did suggest that it might be a good idea. But you have to remember, [S1] had no idea how we were dealing with Mum's health. It was all under control. And it wasn't just [GP2's] opinion. [GP1], who was mum's primary physician, he didn't see a need for mum to see a geriatrician and nor did [Service Provider] or ACAT. They had a care plan for mum. And there was a geriatrician on the list. And they said when mum needs to see a geriatrician, we'll recommend it. We had a health care plan for mum.
When asked again why he was making decisions for his mother about her health care, S2 said:
Well, I asked my mother whether she wanted to see a geriatrician, and she asked me why. And I said, "Your son, [S1] wants you to see a geriatrician". And her reply was, "I think he should see a doctor himself".
When asked whether he had told GP2 that his mother had said she did not want to see a geriatrician, S2 said:
I cannot remember. But if mum had wanted to see a geriatrician, she would have. But she had - mum had been - seen lots of doctors. And I don't want to keep taking her to doctors when she's reluctant to. I was happy with [GP1] and her assessment and [Service Provider's] health care. [S1] never inquired about my mother's health. Never was involved in mum's health care.
It appears from the evidence at [60] and [62] above that S2 was not referring to the assessment undertaken on GP2's instructions on 30 March 2023, but rather the ACAT Assessment. In addition, there is in evidence a care plan prepared by the service provider S2 referred to in his evidence, which care plan is said to have been updated on 16 September 2024 (the Care Plan). There is no evidence when the Care Plan was first prepared. Both the ACAT Assessment and the Care Plan refer to S3's report of AA suffering short-term memory loss and that she was becoming increasingly dependent on S3. However, neither attach a MMSE or a RUDAS assessment. On the evidence the first RUDAS assessment was undertaken by Geriatrician 1 in June 2024.
In light of this evidence, and GP2's evidence that he did not discuss his view about AA's capacity during this call with S2, and that the express purpose of GP2's call was to obtain authority to refer AA to a geriatrician, we do not accept S2's recollection that GP2 told S2 that he did not think there was any need for referral to a geriatrician is accurate.
It does, however, seem likely that S3 told S2 about the result of the attendance on GP2 on 25 March 2023 before GP2 rang on 14 April 2023 given the evidence, referred to at [125] below, that S3 discussed AA's health with S2 'constantly'. S2 may have mistakenly attributed his receiving the information he obtained from S2, to the call from GP2.
Given GP2's evidence that he spoke to the applicants about S1's concerns, which concerns were about AA's capacity, it may be inferred that GP2's evidence was that he told the applicants that S1's concerns were about AA's capacity. That is consistent with S2's evidence about this, referred to at [60] and [62] above, although, given what we have said at [65] above, we do not accept S2's evidence that he referred to the MMSE or the RUDAS tests during his telephone call with GP2.
Despite S2's assertion that GP1 did not think that AA needed to see a geriatrician, there is no evidence that the applicants took AA to see GP1 after speaking to GP2 or sought GP1's opinion at that time.
We find from the evidence referred to at [55] to [69] above that:
(a)on about 14 April 2023, the applicants were each told by GP2 that:
(i)he had spoken to S1 about S1's concerns about AA's cognitive capacity; and
(ii)he recommended that AA should see a geriatrician for further assessment of her cognitive capacity;
(b)the applicants did not act on GP2's recommendation;
(c)the applicants did not seek GP1's opinion about the need for AA to see a geriatrician at that time; and
(d)S2 told AA that S1 wanted her to attend a geriatrician but did not tell her that GP2 had recommended she do so.
On 21 September 2023 AA attended GP1. GP1 said in his evidence before us that he observed that AA was stressed and noted that she had been seen in the emergency department after a fall associated with confusion, that was attributed to stress and anxiety, and that a scan of the brain had noted no abnormality at that time. He said he did not clearly remember what AA's demeanour was on that day. However, he said that AA was anxious, but that she could converse, and tell him her symptoms, and there was no sign of auditory or visual hallucination.
On 26 September 2023, GP1 completed a standard form report about AA's capacity for the Tribunal (GP1's Report), in which GP1 expressed the view that AA did not have any mental disability as at that date. GP1 answered 'N/A', which we take to mean 'not applicable', to questions on the standard form report about whether, if AA had a mental disability, she had cognitive capacity to make reasonable decisions in relation to simple financial matters and complex financial decisions. In his evidence before us, when asked what he based this opinion on, GP1 said:
My clinical experience with the patient… which involves an interview… and if necessary, examination. And then - because I have known the patient many years, I can sort of attest to a change in her demeanour, and stuff like that. I don't have to do a formal psychiatric assessment... It would take hours to do that. When you're in a general practice, you have got 10 minutes at the most, if you're lucky.
In GP1's Report, GP1 also answered 'unsure' to a question asking whether, if AA had a mental disability, she had cognitive capacity to understand legal matters, despite having said that AA did not have a mental disability. When asked about this answer, in his evidence before us, GP1 said, 'I don't understand that she fully appreciates the legal and financial matters … and the actual structure of them'. When asked if that was in terms of a lawyer or a layperson, GP1 said, 'Well, as a layperson that has to participate in those activities. I think she - she would need to have things clearly explained'. He said, in effect, that he thought she would understand if things were clearly explained to her, when she was calm and not anxious.
GP1 expressed the view, in GP1's Report, that AA was capable of understanding medical treatment and procedures when matters were explained to her, and that AA had capacity to make reasonable decisions about accommodation and services. He said that AA was capable of voting. However, GP1 also answered that he was unsure whether AA had cognitive capacity at that time to execute an enduring power of attorney or an enduring power of guardianship.
We do not consider that we can place any great weight on GP1's evidence in [72] to [74] either in considering whether AA had capacity to make financial decisions earlier in 2023, or capacity to enter into the 2023 transactions. GP1 did not perform any formal assessment of AA's capacity after 2021 and relied on his observation of AA's demeanour in a consultation, apparently the consultation on 21 September 2023 referred to at [71] above. On his own admission he did not have much time to assess AA, in a 10-minute consultation. His evidence about AA's demeanour conflicts with the contemporaneous observations recorded in the 2023 OPA Report, to which we refer below. GP1's evidence about AA's capacity to make financial and legal decisions generally is equivocal, and he was not specifically considering transactions of the type of the 2023 transactions, noting what we have said at [35] above.
There is no dispute, and we find that, on 16 October 2023, the Investigator interviewed AA at her home, with an Italian interpreter. During that meeting, a lawyer acting for AA at that time (Lawyer 2) attended and assisted the interpreter with translation into the Sicilian dialect when that assistance was necessary.
The Investigator's observations of AA at that meeting are recorded in the 2023 OPA Report. The Investigator said, in particular, that AA:
(a)identified the year as 2003 (sic) and the month as January or February;
(b)did not remember if she had an EPA;
(c)did remember the name of the long-term property manager for her properties, and that she received a monthly report from him which she read;
(d)did not remember how many properties she owned, but said that she had owned them for at least 30 years;
(e)had no idea about the value of the properties and did not know if her properties generated a profit or how much that was;
(f)agreed her income from rent went to her bank account, but did not sound confident;
(g)knew she banked with the Commonwealth Bank;
(h)did not remember where her money goes, how much she had in her bank accounts, what her yearly income was, or what the property expenses were;
(i)said that S3 paid her bills and did her taxes;
(j)said she did not remember when asked if she remembered signing multiple documents in late April 2023, and on being told she had signed multiple documents on 28 April 2023;
(k)recognised her signature, on being shown the signed transfer document for the transfer of the home, but, when asked if she knew what the document was and what she had signed, said it was something to do with her taxes or water;
(l)did not appear to understand when told she had signed transfer documents of over $3 million of property and at least seven properties and said she did not know when asked why she had done this;
(m)did not initially remember when asked whose idea it was to transfer the properties and said it was 'for tax or this and that', and then said it was her idea;
(n)did not know or remember, when asked, if she understood that stamp duties were over $120,000 for the transfers and did not know if she had paid this;
(o)could not say what benefits the transfers had for her;
(p)remembered the streets on which the properties were located;
(q)said that she did not want S1 to get anything when asked if she understood that she was effectively cutting S1 and his family out of inheriting properties by transferring them; and
(r)said the applicants 'put in their own money', when asked what happened to the properties when she passed.
Lawyer 2 expressed the view, in his affidavit of 29 October 2024, that AA had capacity at the meeting on 16 October 2023. He said that she answered the questions that were asked of her and understood the effect of the EPA when it was explained to her. In his evidence before the Member, however, Lawyer 2 was more equivocal about AA's capacity in October 2023. He referred to observing short-term memory loss in or about September or October 2023, namely that AA, who had known his mother, repeatedly asked him how his mother was, despite having been told his mother had passed away in May 2023.
Lawyer 2 said that AA was very repetitive, and that she could not understand a question put to her by the interpreter in Italian, even though it had been said correctly. He said that he noticed a further decline between Tribunal hearings on 24 October and 5 December 2023 and stopped taking instructions from AA after that date. However, he also said that he thought AA had capacity when he first began to act for her in the proceedings in August 2023 or shortly after August 2023. He said, in effect, that if he talked to her in a nice slow manner, AA understood what he was saying.
Overall, it appears that Lawyer 2 had some concerns about AA's ability to understand and retain information in October 2023, although that is not to say that she did not indicate that she understood him when he spoke to her slowly and clearly. However, in light of the specific questions and answers recorded by the Investigator, which have not been disputed and which we accept, we find that, at least on 16 October 2023, AA had no memory of the value of the home or the rental properties, or that she had transferred her interests in the properties to the applicants, or what her motivation for doing so was, although she did recall not wanting S1 to inherit any of the properties.
Geriatrician 2
S1 relied on evidence of an expert geriatrician (Geriatrician 2), who provided a report dated 22 April 2025 and gave evidence at the hearing before us. Geriatrician 2 had not examined AA, and gave evidence based on his review of the evidence. However, the evidence referred to in [82] below was not challenged and we accept it.
In summary, Geriatrician 2 said:
(a)capacity can only be assessed contemporaneously and in relation to the specific decision at hand;
(b)the natural history of Alzheimer's disease is usually cited to be 8 to 10 years, and symptoms are usually evident well before eventual diagnosis, with short-term memory loss, or forgetfulness, being the most likely symptom of cognitive decline to be noticed in the pre-diagnostic stage. However, the progress of dementia in an individual is often variable and may appear unpredictable or idiosyncratic. As a result, his opinion on AA's cognitive abilities between October 2022 and April 2023 was limited;
(c)given the diagnosis of probable Alzheimer's disease, it is most likely that AA's cognition was gradually deteriorating during 2022;
(d)not too much emphasis should be placed on individual MMSE and RUDAS scores and typically those assessments were a screen for onward referral. However, overall, those scores indicate AA was experiencing a gradual and prolonged cognitive decline consistent with the diagnosis of Alzheimer's dementia. This downward trajectory was easier to identify with the benefit of hindsight, and it was understandable it was not apparent to the GPs;
(e)external psycho-social stressors can be relevant to a person's cognitive performance;
(f)a person may appear to be superficially socially appropriate, but struggle with more complex matters;
(g)short-term memory loss was the most common basis for a finding of mild cognitive impairment. However, evidence of mild cognitive impairment was not necessarily indicative that a person was on a pathway to dementia, and did not necessarily equate to a loss of capacity, which, in any event, is decision-specific;
(h)on the evidence of the reported concerns about short-term memory loss from late 2022, the presentation to GP2 on 25 March 2023, and the hindsight of the diagnosis of Alzheimer's dementia 'it seems very likely that by April 2023 [AA] was clearly vulnerable' and 'would have struggled with complex reasoning and decision-making' but it was impossible to be too decisive retrospectively without more detailed, contemporaneous, assessment;
(i)the evidence of concern about memory issues and an acute event before seeing GP2 on 25 March 2023, were indicators that capacity was in question and the assessment carried out at that time was insufficient to make a clear assessment of AA's complex decision-making ability; and
(j)ultimately, Geriatrician 2 could not reach a conclusion that AA did not have capacity to make reasoned decisions in relation to the 2023 transactions. Whilst it is likely that she did not, given her longstanding wishes concerning her estate, it may be that she agreed to the transactions on that basis, and the possible need to fund future aged care was not front of mind. Geriatrician 2 said that this highlighted the importance of external, independent assessment and advice when, as in AA's case, the stakes of the individual decisions are high.
Legal advice in relation to the transfer of property from AA to the applicants
In his affidavit of 10 April 2025, S2 said, in effect, that:
(a)in 2020, AA told him that she was concerned S1 would challenge her will;
(b)on 22 May 2020, while S2 was present, AA had a discussion with an accountant and a lawyer (Lawyer 1) about the transfer of her property during her lifetime, and the options of doing that by direct transfer to the applicants as joint tenants with AA, or by the creation of trusts; and
(c)Lawyer 1 told AA that a successful challenge to her will was more likely if S1 was not well off financially. At that time AA and S2 believed that S1 was in a good financial position.
This evidence is consistent with evidence set out below, which we accept, and there is no reason to doubt it. Accordingly, we make findings of fact in accordance with [83] above.
Lawyer 2 gave evidence, by affidavit of 29 October 2024 and during the hearing before the Member, about work he had performed on AA's instructions. Lawyer 2 largely declined to give evidence about AA's instructions, on the basis of legal professional privilege. He was not recalled during the hearing before us, and his evidence was not challenged. In addition, we have before us email correspondence between Lawyer 2 and S2, dated 30 and 31 March 2021, and further documents attached to S2's affidavit of 20 May 2025 being email correspondence between Lawyer 2 and S2 dated 1, 12 and 20 April 2021, 31 May 2021, 1 June 2021 and 15 June 2022 and copies of correspondence between Lawyer 2 and the Office of State Revenue.
On the basis of the evidence referred to in [85] above, which we accept, we make the findings set out in [87] to [100] below.
At some time before 30 March 2021, S2 had asked Lawyer 2 to see AA.
Lawyer 2 met AA at the home on 30 March 2021. During that meeting, Lawyer 2 spoke to AA alone, and took instructions from her.
Between 30 March 2021 and 1 June 2021, Lawyer 2 proceeded to:
(a)prepare the EPA and the EPG;
(b)prepare a transfer of the home to the applicants as tenants in common, with AA retaining a life interest in the home (life tenancy transfer); and
(c)obtain title searches of the home and six other properties, with a view to transferring AA's interest in those properties, and to obtain estimates from settlement agents of the cost of carrying out those transfers.
At some point around this time, AA asked Lawyer 2 to review her will, and he told her that it did what she wanted it to do and there was no need to change it.
Although Lawyer 2 spoke to AA on her own to obtain instructions on 30 March 2021, after he had done so, Lawyer 2 told the applicants, in AA's presence, about the life interest transfer and the transfer of AA's interest in the other properties, and the preparation of the EPA and the EPG.
Lawyer 2 did not have any concerns about AA's capacity on 30 March 2021. However, as AA's instructions involved AA executing documents, and in accordance with his usual practice when dealing with elderly clients, Lawyer 2 asked that AA obtain a medical certificate from a doctor stating that she had capacity. On 12 April 2021, S2 sent Lawyer 2 a copy of GP1's Certificate.
Lawyer 2 subsequently saw AA on a number of occasions at the home. During his conversations with AA, she reinforced the instructions she had given Lawyer 2 on 30 March 2021.
Between 12 April and 25 June 2021, S2 arranged to discharge a mortgage on the home on which no monies were owed.
By 1 June 2021, Lawyer 2 had prepared the EPA and the EPG for AA, each jointly in favour of the applicants. AA executed these documents on 4 October 2021. At that time, Lawyer 1 relied on GP1's Certificate, as well as asking AA a number of questions, to confirm her capacity to enter into the EPA and the EPG.
By 1 June 2021, Lawyer 2 had prepared the life interest transfer.
Between 4 October 2021 and 9 May 2022, Lawyer 2 did not receive any instructions from AA.
On 9 May 2022, AA and the applicants executed the life interest transfer. On the same day, Lawyer 2 lodged the life interest transfer with the Office of State Revenue for assessment of stamp duty.
On 8 June 2022, Lawyer 2 received notice that duty had been assessed on the life interest transfer. By an email on the same day, Lawyer 2 asked for an explanation of the basis on which duty had been calculated. By an email dated 15 June 2022, he was informed by the revenue officer that the remainder interest in the home had been assessed at 77.74% of the current value of the home, which then was $840,000. The dutiable value was $652,965.60 and the assessed duty was $25,032.50. Lawyer 2 forwarded the assessment and the revenue officer's email to S2 on the same day.
Lawyer 2 did not have any further involvement with AA until late August 2023, when proceedings in the Tribunal were first commenced. Other than preparation of the life interest transfer and the assessment of duty, Lawyer 2 did not have any involvement in transferring AA's interests in any property.
We infer from the findings in [89], [90] and [96] above, and find, that AA did speak to Lawyer 2 about arranging her property interests so that S1 did not inherit any of the properties and that she had instructed him that she wanted to transfer the home to the applicants, subject to retaining a life interest for herself, and that she was considering transferring interests in at least six of the rental properties to the applicants.
This evidence is consistent with S2's evidence, in his affidavit of 20 May 2025, to the effect that AA was keen to pursue a life interest and instructed him to take steps to arrange that, and that AA had told him that she was considering the transfer of the rental properties to the applicants and herself as joint tenants. Accordingly, we accept that evidence and find accordingly.
In his affidavit of 20 May 2025, S2 said that, between 30 March 2021 and about June 2022, he took steps to effect transfer of the home in accordance with AA's instructions and that AA spoke to him during this period about how that was going and said that she wanted to protect her other properties.
In his evidence before the Member, S2 said that Lawyer 2 was going to do a life tenancy and that '… the stamp duty on that was about the same as doing a property transfer, so we just did the transfer'. In his affidavit of 20 May 2025, S2 said, in effect, that:
(a)on 15 June 2022, he discussed the stamp duty assessment of the life interest transfer with AA;
(b)he and AA noted that the assessment of duty on the life interest transfer was calculated at 77.74% of the current value of the home, whereas the transfer to the applicants and AA as joint tenants would be calculated at 66% of that value;
(c)AA said that there was no point proceeding with the life estate and they should just transfer the home to the three of them as joint tenants;
(d)S2 left it to AA to think about it and no steps were taken until November 2022.
In his affidavit of 10 April 2025, S2 said that it was not until November 2022, after being upset by an incident where S1 showed AA documents relating to the transfer of the interests in the properties in 2003 to the applicants or entities associated with the applicants, that AA made a decision to proceed with the transfer of the properties. S2 said that AA said to him 'do whatever you have to do, pay whatever you have to, to secure the properties, so there is no challenge to the Will.'
However, even accepting the evidence at [104] and [105] above, there is no evidence that S2 had any other discussion with AA, either in November 2022 or thereafter, about whether she wanted to proceed with the life tenancy on the home, or the joint tenancy between AA and the applicants on all the properties, or further discussed the likely difference in stamp duty with her. After being pressed whether he had a conversation with AA about the consequences of the joint tenancy transfers, S2 said first that AA was well aware of the consequences and then said that he did have a conversation with AA. He said that he explained the ownership structure to AA again, and that there would be costs involved and that he offered to pay the costs. He said that AA said, 'no I'm going to wear the costs. It's my will. I don't want to burden you with any costs'. S2 said that AA insisted, saying 'and I don't argue with my mother'.
Ultimately, on the evidence of the Certificate of Duty in evidence before us dated 24 May 2023, duty was assessed on the transfer of the home to AA and the applicants as joint tenants at $24,096.75. The Certificate of Duty indicates that duty was assessed on 66.66% of the value of the home on 28 April 2023, being the date of the transfer, and that the dutiable value was $633,270. Calculating back from this, the total value of the home would have been assessed at $950,000. The increase in the home's value from 9 May 2022 to 28 April 2023 explains why the duty ultimately paid on the transfer to AA and the applicants as joint tenants was only about $1,000 less than the duty that had been assessed on the life interest transfer. However, even at the time S2 says that he discussed this with AA, it may be inferred, and we find, that the saving S2 was contemplating was 11% (77.74 – 66.66 = 11.08) of the total assessment of $25,032.50: that is less than $3,000.
Transfer of AA's property interests to the applicants
There is no dispute, and we find, that S2 contacted a settlement agent in early January 2023. S2 said that he believed the delay between speaking to AA in November 2022 and contacting the settlement agent was because the settlement agent was on holiday. This seems plausible given the time of year and may be accepted.
In his evidence before the Member, S2 said that he contacted the settlement agent because AA did not have an email address and was computer illiterate. He said that AA would tell them what to do and he and S3 would normally do all the administration. In light of this evidence, our finding at [45] that AA relied on the applicants to manage her financial affairs, and AA's advanced age at the time, it may inferred, first, that S2 did not consider whether AA should contact the settlement agent directly, and, second, that, had S2 not assisted AA by contacting and instructing the settlement agent, the transfers would not have occurred.
There is no dispute about the evidence referred to in [111] to [115] below, which is drawn from the documentary evidence before us, and we make findings in accordance with those paragraphs.
On 10 January 2023, the settlement agent emailed S2 and provided a quote for the cost of arranging the transfer of seven properties, including the home. It appears from a subsequent email from S2 to the settlement agent on 11 January 2023, that one of the properties the settlement agent was referring to was on two certificates of title: that is, the instructions S2 had given the settlement agent was to transfer eight titles, including the home.
The settlement agent completed the transfer documents on 26 April 2023.
The transfers were executed by AA on 28 April 2023 and submitted for assessment of duty. By those transfers AA transferred to each of the applicants a one third share of her interests in each of the home and the rental properties, retaining the remaining third in each case, with AA and the applicants holding their respective interests in the home and the rental properties as joint tenants (the Transfers).
The total amount of duty assessed on the Transfers was $158,198.06, which was paid from funds belonging to AA. Given the finding and evidence referred to at [45] and [109] above, and at [117] below, we infer that S2 arranged the payment of the stamp duty.
The Transfers were registered on 26 May 2023.
In his affidavit of 28 October 2024, and his oral evidence on 30 October 2024, S2 said that Lawyer 2 had suggested they did not need a lawyer to process the transfers, if his mother wanted to proceed with them. It is clear from the context of that evidence that S2 was referring to a time when Lawyer 2 also gave him quotes for settlement agents costs, and before Lawyer 2 had proceeded to prepare the life interest transfer: that is in around 30 March 2021, and that he did not receive additional advice to this effect in November 2022.
It appears from the evidence of both applicants that, whilst S3 was informed by S2 about what was happening in relation to the 2023 transactions, S3 left the arrangements to S2 and had no personal dealings with the settlement agent, other than to execute the documents. We accept that evidence.
In his affidavit of 10 April 2025, S2 said that, prior to the transfers of the properties, AA told the applicants that she still wanted to keep the rental income from the properties, and the applicants told her that she would receive all the rental income and if there was a shortfall between that income and her expenses, the applicants would pay that difference. S2 elaborated on this, in his evidence before us, and said:
[AA] said, "We've worked hard for these properties. We've never gone broke. We've paid all our bills. And we want you and [S3] to have the properties. As long as we can receive the rent until we die, we're happy for you to have them. And if we're short of money, you will have to make up the difference". And we agreed to that.
S2 did not say precisely when this conversation occurred but it may be inferred that it occurred before 28 April 2023, when AA executed the Transfers.
S3 also said, in his affidavit of 10 April 2025, that he and S2 had ensured that AA received all the rental income from the rental properties, although he and S2 incur a tax liability for that income. S3 said that he and S2 had agreed to cover any shortfall in the rental income, and that there would be such a shortfall in the year up to 30 June 2025, of about $80,000. S3 also said, in evidence before us, that he did not see the 2023 transactions as AA losing anything, as the income was still going to her.
The effect of S2's evidence at [118] above, which finds support in S3's evidence at [120] above, is that, in relation to the rental properties, AA's agreement to transfer those properties to the applicants was conditional upon a promise by the applicants that they would direct the whole of their entitlement to any rent to AA, and that they would meet any shortfall in her expenses. It is not in dispute, and we find, that since 28 April 2023, AA has been receiving the whole of the rental income from the properties, that there has been a shortfall between this and AA's expenses, and that the applicants have paid this shortfall. That is consistent with a promise of the kind referred to in S2's evidence having been sought and given, before AA's interest in the rental properties were transferred on 28 April 2023. However, there is no documentary evidence of that agreement.
S2 said that he had made plans to pay for AA's residence in an aged care facility, if that became necessary. He did not detail these plans other than to say that it would not involve selling any of the properties. There is no evidence of his having ascertained what that cost might be, or of S2's capacity to meet that cost. However, there is no reason to doubt that S2 is sincere in his intention to do this.
The applicants' understanding of AA's cognitive capacity at the time of the Transfers
Each of the applicants said that they had no concerns about AA's capacity to understand the 2023 transactions at the time of the Transfers.
S3 had said in his affidavit dated 28 October 2023 that, until August 2023, he had observed AA to maintain good cognitive awareness. Initially, in his evidence before the Member, S3 said that his observations of a decline in AA's cognitive capacity had not occurred until the Tribunal proceedings had started, at which point AA became very distressed and very vague. Those proceedings began in late August 2023.
Subsequently, in his evidence before the Member, S3 said that he had first observed AA having issues with her memory in October 2022. When asked what he had noticed, S3 said that AA's short-term memory was declining and that she would constantly repeat what she had said when asked a question. He said that he had discussed his concerns about AA with S2 at the time, saying that he and S2 constantly discussed AA's health.
When asked by the Member why he had taken AA to see GP2 on 25 March 2023, S3 said '[s]he's distressed. She's constantly - well she's confused. And she didn't seem to be her natural self'. When asked how long AA had been in that state, S3 said 'only recently, maybe a few months'. The Member asked him if he meant AA had been really confused for a few months prior to 25 March 2023, S3 said 'yes'. When asked if there were any other behaviours or symptoms at that time that were causing S3 concern, he said that AA had 'good days and bad days. She will have - certain days, she would be very - very clear in her memory. But certain days, she had - she has these mood swings'. When asked about his observations of AA's confusion after the visit to GP2, S3 said it was the same.
S3 resiled from this evidence in his affidavit of 10 April 2025 and in his evidence before us, when he said, in effect, that he had first noticed a real decline in AA's cognitive capacity after the Tribunal's order made in December 2023 and she contracted COVID.
S3 did say, in his affidavit of 10 April 2025 that he had noticed AA getting hazy in her short-term memory since S1 had attempted to reconnect with her in 2022. There is no dispute that was around September to November 2022. However, he said that this did not get any worse between that time and December 2023. S3 said that, despite these observations, AA was 'switched on' in business matters, and that she wanted to see all of the bills relating to the properties, reviewed the property management statements herself, asked how the tenants were and whether rents should be increased, reviewed credit card statements and receipts and checked if she had been overcharged.
When asked what he meant by 'hazy', S3 said, in his evidence before us, that he had noticed that AA might repeat stories or ask the same question more than once in a conversation.
In his evidence before us, S3 said that, up until December 2023, AA was very concise and alert with regards to her properties and bank statements. He said that looking at financial documents was something that AA had done all of S3's life. He said that she would look at the statements from her property manager and tick each transaction. S3 said he then would also look at the statements to make sure the rent was the same as the previous month. S3 said that, if AA had any questions, she would ring the agent or ask S3 to do so. He said that when it came to money AA was very methodical and unaffected by memory loss.
In explaining the difference in his evidence, S3 said, in his affidavit of 10 April 2025, and his evidence before us, that during the hearing before the Member he had been nervous, as he had never given evidence before, and found the experience intimidating and overwhelming. He said that, as a result, he did not explain all of the relevant conversations he had with his mother.
S3 did seem nervous in giving his evidence before us, and we accept his evidence that he was nervous when he gave evidence before the Member, and that he found giving evidence an intimidating experience. However, in our view, that does not explain the significant differences in his evidence before the Member and before us.
The evidence S3 now seeks to resile from was given in answer to a series of questions posed by the Member, comprising of open questions followed up with further questions that appear designed to ensure S3 was not misunderstanding the questions, and that the Member was not misunderstanding his answers. The Member gave S3 opportunities to clarify or amend his answers. Despite this, S3's evidence on that occasion was consistently to the effect that he had concerns about AA experiencing short-term memory loss and confusion from, at least, the end of 2022 and that she was behaving in a way that was not like herself.
This evidence is consistent with the evidence in the ACAT Report that S3 had reported he had observed AA suffering from short-term memory loss in September 2022.
S3 said in his evidence before us that he could not remember saying AA had been confused when he took her to see GP2 on 25 March 2023. He said that he took her to the doctor because it was unusual for her to just walk out of the house and that was alarming. This explanation for taking AA to see a doctor was unconvincing, given his evidence was to the effect that AA had a rational reason for leaving the house and she had been found, safely, at her sister's house a short distance away from the home. Our impression was that, in this evidence, S3 was attempting to downplay the concerns that led him to take AA to GP2 on 25 March 2023.
This impression is reinforced by the changes in S3's affidavit evidence concerning the reason for the visit to GP3 on 25 March 2023. In his affidavit of 10 April 2025, S3 attributed that visit to AA being upset by an incident involving S1 and S1's wife, when the police were called to the home. In his affidavit of 28 October 2024, S3 had said this incident had occurred on 25 March 2023, that is after the visit to GP2. In his affidavit of 10 April 2025, S3 said that this incident occurred on 24 March 2023, before the visit to GP2. In a further affidavit of 13 May 2025, S3 conceded that, having seen the medical notes, and the contents of a police report, he was mistaken in this evidence. He said that he had mixed the memory of the visit on 25 March 2023 with a visit that took place after an incident on 16 September 2023.
Given GP2's evidence, supported by GP2's notes, we find that S3 did report that AA had suffered an episode of confusion after an incident where she had left the home on 24 March 2023 and that he was concerned about this confusion, and that it was this concern that caused him to take AA to see a doctor.
That AA may have been suffering some cognitive impairment earlier in 2023 also finds some support in the evidence of her interview with the Investigator, referred to at [77] above, in particular her inability to remember the 2023 transactions six months later, in October 2023, given Geriatrician 2's evidence that she was likely to suffer a gradual decline. In any event, that evidence is inconsistent with the applicants' evidence that they did not observe any symptoms of cognitive decline until December 2023. Geriatrician 2's evidence that a gradual decline would be expected also suggests that S3's evidence that AA's observed 'haziness' did not increase over the course of 13 months from November 2022 to December 2023 is unlikely to be accurate.
It may be that up until December 2023, S3 did observe AA look at her financial records, in the same way that she had done for decades before. This observation does not necessitate a conclusion that in April 2023 AA had the capacity to retain the information in those records, or understand them, let alone that she had capacity to understand the 2023 transactions. Indeed, it appears from S3's evidence that he was still proceeding to check the records himself, and that he had provided AA with assistance in this respect for some time.
For these reasons we do not accept S3's evidence concerning AA's capacity given in the hearing before us. We consider that S3's evidence before the Member on 30 October 2024 reflected his actual recollection of events. It is not necessary for us to identify the reason for the change in S3's evidence. It appears during the hearing on 13 May 2025 that S3 may have had some difficulty in understanding what was meant by the words 'capacity' and 'cognition'. It may be his evidence that AA had capacity to enter into the 2023 transactions was a reflection of his understanding that she wanted to enter into those transactions. However, that is speculation.
S3 said, in his affidavit of 10 April 2025, that AA seemed relieved after the 2023 transactions and understood the properties were owned by the three of them jointly, quoting AA as having said 'now the properties are owned by the three of us'. Given our finding to the effect that the evidence S3 gave us that he did not have any concerns about AA cognition was not truthful, and that he tried to downplay his concerns about the reasons why he took AA to see GP2 on 25 March 2023, we are not prepared to accept S3's evidence to the effect that AA appeared to understand the effect of the transactions.
Accordingly, we find that from late 2022, and before AA entered into the 2023 transactions, S3 had observed that AA was suffering short-term memory loss, which affected her ability to retain information, and confusion and was not behaving as she usually did. We also find that he was concerned about this. Whilst S3 may have found some reassurance from the assessment that took place on 30 March 2023, his concerns must have been reinforced by his conversation with GP2 on about 14 April 2023, where GP2 recommended that AA be referred to a geriatrician for assessment. At that time, he ought to have been aware that there was some reason to be concerned about whether AA was able to understand the nature and effect of the 2023 transactions, given the proximity of GP2's telephone call with AA executing the Transfers and the significant nature of the 2023 transactions.
S2 said at the hearing before the Member that it was only in late 2023 that he first observed any indication of a decline in cognition, which was AA suffering short-term memory loss, anxiety and frustration. He said that he observed forgetfulness, saying AA 'couldn't remember what she did a few minutes ago'. He put this down to AA being anxious and frustrated about the orders appointing an administrator in December 2023. S2 said that before late 2023, AA knew what she wanted, although she may have been slower at picking things up. He said that AA had been checking her statements and rental statements on her own until about a year before, that is around October 2023.
Despite that evidence, and his knowledge of Geriatrician 1's assessment referred to at [28] and [29] above, S2 maintained at the hearing before the Member, on 30 October 2024, that AA still had capacity to manage her own finances, although he did concede that she would need help filling in forms.
At the hearing before the Member, S2 said that S3 did not speak to him about any concerns about AA's short-term memory loss or confusion in late 2022 and early 2023, before the 2023 transactions. He said that there were no concerns, and that AA was coping reasonably well.
When S2 was asked, on 13 May 2025, about his knowledge of S3's observations of AA's short-term memory loss, the following exchange took place:
Tribunal: Were you aware of [S2]'s observation that your mother was suffering short-term memory loss in September of 2022?
[S2]: I didn't observe it myself. The memory loss then. But I know that she was anxious about that time because [S1] was upsetting [AA]. Demanding to know why she [sic] was excluded from the will and making other demands. And mum was getting very anxious. So I knew her anxiety level was much higher then.
Tribunal: Did [S3] - did your brother speak to you about your mother suffering short-term memory loss? That she would repeat herself in conversations and would forget what she was told?
[S2]: I honestly can't - can't remember all the conversations I've had with my brother. I can't remember anything.
Tribunal: Do you - can't remember him speaking to you prior to or around this time?
[S2]: No. I can't remember the conversations.
Tribunal: Sorry. I'll say - I'll - to be fair to you, I'll say the date. In late 2022 about your mother suffering short-term memory loss. After September and before the end of the year?
[S2]: I can't recall any discussions about that. No.
In our view, S2 was evasive in answering the question about what S3 had told him, and his evidence in that respect was not convincing. We are not inclined to accept it.
It accords with the probabilities that S3 would have told S2 about his concerns, as he said he did in evidence before the Member, given our finding that S3 had those concerns and S3's evidence that he spoke to S2 about AA's health 'constantly' and the evidence that S2 frequently visited AA, who lived with S3.
In addition, the evidence that GP2 spoke to S2 by telephone and recommended that AA be assessed by a geriatrician supports a finding that S2 was aware there may be reason to be concerned about AA's cognition before 28 April 2023.
Accordingly, we do not accept S2's evidence that he was not aware of any concerns about AA's cognition before December 2023. Whilst it seems unlikely that he did not observe any behaviours himself to give rise to cause for concern, given that he saw AA frequently, it is not necessary for us to make any positive finding in that respect. We accept S3's evidence given to the Member that he was told about S2's concerns in that respect at the time those concerns arose for the reasons referred to at [148] above. Whilst we have found S3 was concerned about this, we cannot make any finding that S2 was concerned.
For these reasons we find that before AA entered into the 2023 transactions, S2 was aware that S3 had observed that AA was suffering short-term memory loss, which affected her ability to retain information, and confusion and was not behaving as she usually did. Whilst S2 may also have been reassured by the assessment that took place on 30 March 2023, he was also aware that referral to a geriatrician for further assessment of AA's cognitive capacity had been recommended by GP2 on about 14 April 2023. At that time, he ought to have been at least aware that there was some reason to be concerned about whether AA was able to understand the nature and effect of the 2023 transactions, given the proximity of GP2's telephone call with AA executing the Transfers.
For completeness, there is evidence that S2 asserted authority under the EPG when he spoke to GP2 and that S3 did so when he applied for a restraining order on AA's behalf. However, we do not consider that this evidence assists us in drawing any relevant conclusions in this matter.
Conclusions on applicants' suitability for appointment as administrators
In light of Geriatrician 2's evidence referred to at [82] above, the findings that we have made that AA was suffering from short-term memory loss, indicating difficulty in retaining information, and confusion, from at least late 2022, evidence that there were warning signs that she may not have had capacity to understand the nature and effect of the 2023 transactions. We accept Geriatrician 2's assessment that there is evidence that she was vulnerable, in the sense that there was reason to be concerned that she was not able to understand the 2023 transactions, and to make a reasonable decision about whether to proceed with them, or that her ability to do so had been compromised.
As we have also found, each of S2 and S3 ought to have been aware there was reason for such concern.
Despite this, the applicants did not arrange for AA to have the review by a geriatrician that had been recommended by GP2, nor did they seek GP1's advice about the review GP2 had recommended.
On the evidence of AA's reliance on the applicants, and the fact that she did go to doctors' appointments with the applicants, we consider there is little doubt that, had the applicants arranged for her to do so, she would have undergone review by a geriatrician, even if she had not wanted to do so as S2 said.
Despite S3 having the concerns we have referred to before assessment on 30 March 2023, and telling S2 about those concerns, S2 proceeded to instruct the settlement agent to prepare the Transfers, with S3's knowledge and apparent approval.
Despite being aware of GP2's recommendation that AA see a geriatrician, S2 continued to arrange the 2023 transactions through the settlement agent, including arranging for AA to execute the Transfers two weeks later, and arranged payment of the stamp duty from AA's accounts. Again, this occurred with S3's knowledge and approval. The applicants also executed the Transfers. The 2023 transactions could not have occurred without their assistance.
Whilst S2 relied on the fact that he had assisted AA to obtain independent advice about the 2023 transactions, those transactions were, to his knowledge, materially different from those apparently contemplated by Lawyer 2, which had included a life tenancy in relation to the home. S2 did not apparently consider the merit of not proceeding with the life tenancy transfer other than on the basis there was a saving in stamp duty of a relatively small proportion of the total amount of the stamp duty ultimately paid. There is no evidence that he considered, or discussed with AA, whether it was worth proceeding with the life interest despite that relatively small difference, or that he considered whether it was worth seeking further advice. No other consideration was apparently given to the merit of not proceeding with the life interest transfer which had been prepared. Neither did S3 consider this, because he left all the arrangements to S2.
In addition, there is no evidence that any consideration was given to whether the applicants' promise to guarantee AA's income, including that she would receive the rents from the rental properties, should have been documented in some way.
On the applicants' case they both believed that the 2023 transactions were something that AA wanted because she wanted to ensure that her wish, expressed in her will, that S1 not receive any part of her estate after her death, was carried out. Their expressions of belief appeared genuine, and the evidence supports a finding that AA had not wanted S1 to receive any part of her estate from at least 1991 when she executed her first will, through to 2013, when she executed her second will, and that she continued to hold that view when she spoke to Lawyer 2 in March 2021.
In light of this, and the evidence of the Investigator in the 2023 OPA Report, that in October 2023, AA said that she did not want S1 to get anything, we accept that AA did not want S1 to receive any part of her estate, and that she had a longstanding concern that S1 might successfully challenge her will after her death. We also accept that, at a time when AA had capacity, she had taken steps to carry that wish out. However, whilst AA apparently pressed on with the life interest transfer after speaking to Lawyer 2, she did not tell S2 that she wanted to proceed to transfer the rental properties until November 2022, over 18 months after she had obtained advice from Lawyer 2. Whilst some of this time was occupied with the preparation of the life interest transfer and releasing the mortgage on the home, there is a significant period of delay, despite AA having apparently considered transferring the rental properties in March 2021.
The 2023 transactions were, objectively, to her financial detriment and to the applicants' financial benefit. Despite this, the applicants each said that they believed that the 2023 transactions were in AA's best interests.
In evidence before us, S2 said, in effect, that AA was concerned to ensure that the properties would not be sold because she had built them up with her late husband, and they meant a lot to her. He said in the hearing before the Member that he did not see any issue with AA transferring the properties because she 'wanted to protect her assets and she was prepared to pay the costs' and she 'knew exactly what she wanted'.
In his evidence before us, S2 said, when asked if he thought it was in her best interests, 'I think it was her best interest. She had full trust in us and we will keep our word to mum'. He went on to say, 'she liked the concept of joint tenants, so I - I went along with what she wished'. He said that it was in AA's interests because it would avoid a challenge to her will by S1. When asked how this could affect her, after her death, S2 said 'she was looking after our interests. She didn't want the properties to go to [S1]. She was insistent on that'. When pressed on why this was in AA's best interests, S2 said 'she's our mother, and she wanted to - she wants to give her properties to us because we've looked after her, I think very well, over the time'.
In his evidence before the Member, S3 accepted that he knew at the time of the 2023 transactions that AA placed a lot of trust in him and was very dependent on him. However, he said that he still believed that allowing the Transfers to happen was alright because the applicants will look after AA and the Transfers fulfilled her wish, and that of his late father, to exclude S1 from the estate. S3 said that AA 'wanted that peace of mind that when she passes, that the - the properties are secure'. This was an apparent reference to AA not wanting the properties to be sold.
The applicants' case, in relation to the 2023 transactions is, at best, that they thought that they were acting in AA's best interests because they thought she knew what she wanted and was capable of making her own decisions about that. Accordingly, they did what she wanted.
However, on their own case they did what AA wanted without fully considering whether it was prudent, or obtaining any further advice, despite having been appointed as her attorneys. Neither of the applicants seemed to have turned their minds to whether it was in fact in their mother's best interests to divest herself of a very significant portion of her estate, which rendered her dependent upon the applicants at least to the extent that she was reliant on their promise to allocate the entirety of the rental income to her, and to make up any shortfall in her financial requirements. Nor do they appear to have considered whether there was any other way to alleviate AA's emotional concerns. Neither did they consider the effect of the observations of short-term memory loss and confusion, of which they were both aware, on AA's capacity to understand the nature and effect of the 2023 transactions.
Whilst S2 said that he would pay the cost of AA's residence in aged care if necessary, there is no evidence that this, or the likely cost, was considered at the time of the 2023 transactions, or that he considered the relative merit of that plan in comparison to the sale of a rental property, or rental properties, in order to secure a place.
We consider that there is force in the submission of S1's counsel that, in their conduct, the applicants were motivated by their animosity towards S1 and unable to look at the situation objectively.
As the Member said in her reasons,[21] whilst the applicants were not exercising powers under the EPA in the 2023 transactions, they owed AA fiduciary duties from the time that EPA came into force. These include the obligation to act in AA's best interests to the exclusion of their own interests.
[21] AA [2025] WASAT 2 at [116].
The primary objectives of the GA Act in relation to administration of a represented person's estate is to conserve the property and financial resources of the represented person to ensure they are available for that person's own needs, welfare and enjoyment and are not dissipated.[22] By conserving and not dissipating the represented person's estate, the administrator fulfils their duty to ensure, as best they can, and within the context of the value of the represented person's estate, that the represented person has adequate means for their lifetime.[23]
[22] Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [44].
[23] Perpetual Trustees WA Ltd and the Public Trustee [2009] WASAT 253 at [61].
In our view, the applicants had difficulty distinguishing what was in AA's best interests and what was in their own best interests. We are not satisfied that they will be able, in future, to distinguish between their own interests and AA's interests, and put their personal feelings aside, and make financial decisions, objectively, in her best interests.
There was some concern expressed by the Member about the applicants' use of AA's credit card for their own purposes. The applicants said that this was inadvertent and had been repaid. The Member accepted, as do we, that the applicants were directing all the rental properties rents to AA and had funded AA since the Public Trustee's appointment as administrator. This suggests that the applicants' explanation concerning the use of the credit card should be accepted. However, in saying that, we do not need to make a finding given our view as to their lack of suitability for the other reasons we have outlined above.
In addition, we have some concern that, despite the appointment of the Public Trustee as plenary guardian, S3 proceeded to prepare and lodge AA's tax return for the 2024 financial year, without reference to the Public Trustee before doing so. This casts some doubt on his ability to follow the requirements of a private administrator. However, again it is not necessary for us to make a finding about this.
Are we satisfied that S2 or S3, or both, are suitable for appointment as AA's administrators?
For the reasons given, we cannot be satisfied on the balance of probabilities that either of the applicants is an appropriate person for appointment as AA's administrator, and the application to be so appointed must be refused.
There being no other person who has volunteered to be appointed as administrator, the only option in light of these findings is to continue the appointment of the Public Trustee.
Have the preconditions for the appointment of a guardian been met?
For the reasons set out in [28] and [29] above we are satisfied on the balance of probabilities that AA is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of oversight, care or control in the interests of her own health and safety; and
(d)in need of a guardian.
Are we satisfied that S2 or S3, or both, will act in AA's best interests?
On the evidence before us, the applicants both care about AA, have spent time looking after her needs, in particular S3, and want to ensure that she receives the care she needs.
As we have said, the applicants accept that the Public Advocate should exercise the contact function and should also have access to AA's medical information so as to be able to inform S1 of any important matters concerning AA's health and treatment. In our view, the applicants' concessions in this regard are appropriately made. It is not in dispute, and we find, that there exists significant family conflict, animosity and distrust between the applicants on the one hand and S1 on the other. It is not necessary for us to determine where the fault lies in relation to this. However, as a result, we could not be satisfied that the applicants would make objective decisions in AA's interests about whether to allow S1, or his immediate family, to contact AA, or inform them about any important health issues that may arise.
In our view, if the applicants have the treatment function, it is unlikely the Public Advocate will have access to information about that treatment at the time that treatment occurs, so as to be able to usefully convey information to S1 about AA's condition, should the circumstances warrant that occurring. There is evidence of at least one occasion where the applicants took AA to hospital during the Public Advocate's appointment as limited guardian with the treatment function, and did not inform the Public Advocate.
There was not, in our view, any evidence of any concern arising from the Public Advocate's exercise of the treatment function that might override the concern that S1 would not be kept informed of any serious health issues arising in relation to AA, that might warrant conferring this function on the applicants despite the evidence of family dysfunction.
With respect to decisions about accommodation, whilst the applicants say that they will consider aged care if it is necessary, the payment of that aged care may involve the need to sell properties in which they have an interest. That conflict of interest, in our view, renders the applicants' ineligible to be appointed with the accommodation function.
Otherwise, on the evidence before us we are satisfied that the applicants are appropriate to be appointed as AA's guardians for the limited purpose of exercise the services function while she continues to live with S3. Any issues noted by the Member, arising from the allegations that the applicants changed service providers because of a connection between S1 and that service provider are, in our view, now dated and not disqualifying.
For the sake of completeness there are no issues of compatibility between the applicants and the Public Trustee which might be disqualifying.
Are we satisfied that S1 or S2, or both, are suitable for appointment as AA's guardians?
For these reasons, on the balance of probabilities, we consider that the applicants are not suitable for appointment as AA's limited guardians other than for the purpose of exercising the services function, for which they are suitable.
Orders
The Tribunal makes the following declarations and orders:
Administration
1.The Tribunal orders that orders 2, 3, and 5 of the orders made on 3 January 2025 are revoked.
2.The Tribunal declares that the represented person, [AA], is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and
(b)in need of an administrator of her estate.
3.The Tribunal orders that the Public Trustee of 553 Hay Street, Perth, Western Australia, is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
4.The Tribunal authorises the administrator to expend up to a total amount of $1,000 per annum on gifts on behalf of the represented person.
5.The administration orders in orders 3 and 4 are to be reviewed by 11 September 2030.
Guardianship
6.The Tribunal orders that orders 6, 7 and 9 of the orders of the Tribunal made on 3 January 2025 are revoked.
7.The Tribunal declares that the represented person is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of oversight, care and control in the interests of her own health and safety; and
(d)in need of a guardian.
8.The Tribunal orders that the Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia, is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, either permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to make treatment decisions for the represented person subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA); and
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact.
9.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee of the Office of the Public Advocate.
10.The Tribunal orders that [S2] of [address provided] and [S3] of [address provided] are appointed joint limited guardian of the represented person with the function of determining the services to which the represented person should have access.
11.The guardianship orders in orders 8, 9 and 10 are to be reviewed by 11 September 2030.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
FB
Associate to the Deputy President Judge Vernon
11 SEPTEMBER 2025
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