C
[2025] WASAT 128
•14 NOVEMBER 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: C [2025] WASAT 128
MEMBER: DR E MARILLIER, SENIOR MEMBER
HEARD: 4 NOVEMBER 2025
DELIVERED : 12 NOVEMBER 2025
PUBLISHED : 14 NOVEMBER 2025
FILE NO/S: GAA 4690 of 2025
GAA 5153 of 2025
GAA 5154 of 2025
GAA 5156 of 2025
C
Proposed Represented Person
Z
Applicant
Catchwords:
Guardianship and administration - Enduring power of administration - Enduring power of guardianship - Whether enduring power is less restrictive alternative - Whether enduring power of guardianship is valid - Whether enduring power of attorney is operating in best interests of donor - Conflict of interest - Personal legal representative for purposes of directorship of self-managed superannuation fund - Public Trustee not willing to be appointed as administrator for role as director - Split authorities
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40, s 43(1)(b), s 43(1)(c), s 44, s 44(5), s 51, s 51(2), s 64(1)(a), s 64(1)(b), s 65, s 68, s 68(5), s 70, s 108, s 109(1)(c), s 110K, s 110N
Result:
Enduring powers of attorney revoked
Enduring power of guardianship not valid
Joint limited guardians appointed for accommodation, medical treatment and service decisions
Public Advocate appointed limited guardian for contact decisions
Private limited administrator appointed to act as the represented person's personal legal representative for the purpose of her self-managed superannuation fund
Public Trustee appointed as limited administrator for all other functions
Category: B
Representation:
Counsel:
| Proposed Represented Person | : | Mr G Hewett |
| Applicant | : | Mr D Miller |
Solicitors:
| Proposed Represented Person | : | HHG Legal Group |
| Applicant | : | Culshaw Miller Lawyers |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons were delivered orally on 12 November 2025. They have been anonymised, and citations have been added for the purpose of publication as written reasons, as some parties were unable to attend).
Introduction
These are my reasons for decision in matters GAA 4690 of 2025, GAA 5153 of 2025, GAA 5154 of 2025 and GAA 5156 of 2025. These are applications under s 109(1)(c) for the revocation or variation of an enduring power of attorney (EPA), s 40 for the appointment of an administrator and/or a guardian, s 110K (for a declaration of validity or invalidity in relation to an enduring power of guardianship) and s 110N (for the revocation or variation of an enduring power of guardianship (EPG)) under the Guardianship and Administration Act1990 (WA) (GA Act). They all relate to C.
I made orders on 4 November 2025 revoking the powers of attorney C had executed on 23 March 2023 appointing her son Z, and on 7 August 2025 appointing her son Y as enduring attorney. I appointed Y and his sister X as the joint limited guardians for accommodation, medical treatment and service decisions and the Public Advocate as the limited guardian for contact decisions. I found that an enduring power of guardianship dated 26 July 2025 appointing Z as enduring guardian was not valid and therefore did not require revocation. I appointed Y as limited administrator to act as C's legal personal representative with respect to the self-managed superannuation fund and the Public Trustee as limited administrator with all the powers of a plenary administrator save and except for those vested in Y.
I said I would give my reasons for these orders at a later date. These are those reasons.
Background
The initial application was made by Z under s 109(1)(c) seeking revocation of the EPA C executed on 7 August 2025 in favour of Y (and which conflicted with the existing EPA appointing Z of 23 March 2023). Both enduring powers were lodged with Landgate.
C is now in her late 70s. She had entered residential aged care a few months prior to the application after an admission to hospital in late June and early July of this year with a surgical emergency. During her hospitalisation she underwent an MRI brain scan to investigate falls which showed normal pressure hydrocephalus, and advanced white matter, frontotemporal and hippocampal atrophy of her brain.
Z stated in his application that C had advancing cognitive impairment, and sufficient assets to enjoy high-quality self-funded residential care. He wanted the EPA of 2025 appointing Y to be revoked as it was unworkable to have two. Z noted Y lives interstate and had only been visiting Perth to help pack up C's house.
At a Directions hearing on 11 September 2025, Z agreed to make oral applications which I accepted for the consideration of appointment of a guardian and an administrator for C, as well as consideration of whether the EPG by which he sought to make personal decisions for C was valid and/or should be revoked. This was because the parties agreed there was a question regarding whether C had capacity to execute enduring powers in July or August this year, and there needed to be an option for substitute decision-making to be considered if none of the enduring powers could work.
I made orders appointing the Public Trustee as plenary administrator on an emergency basis under s 65 of the GA Act pending final determination of the four matters, as I had been told that C had limited or no access to funds, and that the superannuation fund had been frozen due to non-lodgement of tax returns since 2022.
Evidence
I have considered the documents filed by, and the written submissions and reports of:
•the applicant;
•Y;
•X;
•Dr P, C's GP since 2003;
•the accountants of the self-managed superannuation fund;
•the Public Advocate; and
•the Public Trustee.
I have also heard the evidence and submissions given today by:
•Z and his wife A;
•C's legal representative (with whom I raised concerns regarding her capacity to give instruction);
•Y;
•X;
•the accountant;
•the investigator advocate of Public Advocate; and
•the Trust Manager and the legal officer from the Public Trustee.
Principles to be observed
In making my decision, I am mindful of the principles set out in s 4 of the GA Act:
•My primary concern is the best interests of C;[1]
•C is presumed to be capable of looking after their own health and safety; of making reasonable judgments in matters relating to their person; of managing their own affairs; and of making reasonable judgments in respect of matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal;[2]
•A guardianship of administration order shall not be made where there is an alternative means of meeting C's needs that is less restrictive of their freedom of decision and action;[3]
•Where an order is made, it must be in terms that impose the least restrictions on the C's freedom of decision and action;[4]
•I must seek to ascertain, as far as possible, the views and wishes of C.[5]
What the Tribunal must be satisfied of
[1] Guardianship and Administration Act1990 (WA), s 4(2) (GA Act).
[2] GA Act s 4(3).
[3] GA Act s 4(4).
[4] GA Act s 4(6).
[5] GA Act s 4(7).
Before appointing an administrator, I must first be satisfied that C is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate.[6]
[6] GA Act, s 64(1)(a).
I must also be satisfied that C is in need of an administrator.[7]
[7] GA Act, s 64(1)(b).
Before appointing a guardian, I must be satisfied that C is:
(i)incapable of looking after their own health and safety; or
(ii)unable to make reasonable judgments in respect of matters relating to their person; or
(iii)in need of oversight, care or control in the interests of their own health and safety or for the protection of others.[8]
[8] GA Act, s 43(1)(b).
In addition, I must be satisfied that C is in need of a guardian.[9]
Mental disability
[9] GA Act, s 43(1)(c).
In this case the evidence regarding C's condition is consistent and there is no dispute in relation to this issue.
Dr P who has been C's general practitioner (GP) for 22 years and has seen her seven times in the last 12 months says C has cognitive impairment consistent with dementia which was first recognised about 12 months ago. Dr P says this is a progressive condition, and that it has already progressed to the point where C does not have capacity to manage simple or complex financial decisions, legal decisions or personal decisions about medical treatment, accommodation or services. Dr P also finds C is incapable of executing an EPA, EPG or advance health directive (AHD) or voting in elections based on her clinical presentation on 25 August 2025. Dr P said that C attending the Tribunal hearing would be detrimental to her health and wellbeing, and that she would not understand sufficiently to make a reliable contribution.
I am satisfied and I find that:
C has a cognitive impairment consistent with dementia which comes within the meaning of a mental disability as defined by s 3 of the GA Act.
Capacity
I have considered the issue of capacity, starting from the presumption that every person has the ability to make reasonable judgments in relation to their finances and person and then considering whether the evidence before me is sufficient to rebut that presumption and positively establish that C is unable to make such reasonable decisions.
In this case the evidence is all consistent and there seems to be no dispute in relation to this issue. I am satisfied and I find that:
(a)Because of her mental disability C has not been in a position to manage her own affairs in relation to the taxation reporting obligations of the self-managed superannuation fund, even with the assistance of Z as enduring attorney and fellow director, and the involvement of an accounting firm. Her house was found by the Public Trustee to have an unrepaired leak in the roof, black mould and lapsed insurance. C has frozen assets, a refundable accommodation deposit (RAD) to be paid, and mounting liabilities for her residential care. She has been unable to resolve these issues herself.
(b)C's long-term GP has found her to lack the ability to make reasonable judgments about medical treatment, accommodation and support services.
Therefore, in this case the presumption is rebutted by the evidence. I am satisfied and I find C is unable to make reasonable decisions in relation to all of her estate and her person and is therefore a person for whom I can appoint an administrator and a guardian.
Need
Is there a less restrictive means of meeting proposed represented person's needs?
There is evidence from the reports of the Public Trustee and the Public Advocate and the written and oral evidence of her children that C is in need of someone to (at least):
(a)operate bank accounts and pay bills;
(b)sell property to raise the RAD for nursing home care;
(c)investigate the situation with her assets held within the self-managed superannuation fund in which she and Z were originally trustees in their personal capacity from inception in 2007, but then adopted a corporate personality (of which they were the two directors) instead in 2014 (as is evident from the Deed of Variation of 15 September 2014);
(d)potentially to act as next friend in legal proceedings; and
(e)to arrange accommodation and support services.
I have considered whether there is any less restrictive means of meeting the proposed represented person's needs than the appointment of a guardian and/or an administrator.
I am satisfied, on the evidence before me, that there is no less restrictive means available than the appointment of a guardian and an administrator because:
(a)The enduring power of attorney appointing Z cannot stand as there are conflicts of interest arising from transactions admitted by Z in his written submissions. These include, but are not limited to, sales of property in his name to the self-managed superannuation fund, and payments he said he made at C's direction to his siblings from his own funds and which he considers to be moneys owed to him by C in excess of $1 million. The audit of the fund in 2022 lodged by the accountant expresses concerns about rental of fund property to related parties not at arm's length.
(b)The non-lodgement of the tax returns of the superannuation fund which have now caused the freezing of C's access to her funds which otherwise might have been available for the payment of her RAD indicates that Z has not been effective in making decisions in the best interests of C regarding her finances.
(c)The EPA appointing Y and the EPG appointing Z which were executed on 7 August and 26 July 2025 respectively cannot stand where Dr P has given evidence in her report that C has had cognitive impairment consistent with dementia for the last 12 months, and that when examined on 25 August 2025 she lacked capacity to execute such documents. Z gave evidence that he organised the EPG when C entered residential care at the request of the facility (i.e. it was not C's idea) and Y gave evidence that the EPA was his idea. I am satisfied and I find that C did not instigate, and on the evidence of Dr P, did not have capacity to legally execute those enduring powers.
I therefore find that the EPG is not valid under s 110K and thus do not need to revoke it under s 110N. I will revoke both EPAs pursuant to s 109(1)(c) and s 108 which permits the revocation or variation of an enduring power of attorney when the Tribunal makes an administration order.
As there is no less restrictive means of meeting the PRP's needs than a formal appointment, I am satisfied that C is in need of an administrator and a guardian.
What are the views and wishes of C?
I have been able to ascertain C's views and wishes from the investigation report and oral evidence of the Public Advocate. C told the investigator she believes Z has misappropriated her funds and acted without her direction. She had no recollection of appointing him EPA in 2023 but noted that she had until recently trusted him absolutely. She did not recall executing the EPG appointing Z in July 2025. She does not want Z to visit her in the nursing home, or to contact her by phone, email or text. C believes Z has taken valuable artworks from her house without permission and she wants them returned. C wants Z removed from all positions of authority in relation to her affairs. I have taken those wishes into account.
C indicated she would support Y's appointment but noted he lives interstate and has small children, so he might not be able to take on the roles. C supported the appointment of the Public Trustee as administrator.
C indicated she was happy for Y and/or X to be appointed as guardian, expressing some concern about X's direct communication style perhaps upsetting people.
Who should be appointed?
An administrator or guardian must be a person over the age of 18 who is willing to undertake the role, and whom the Tribunal finds will act in the best interests of C and is otherwise suitable.[10] Their interests must not conflict with those of C, and the Tribunal must take into account:
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;[11]
(b)the compatibility of the proposed appointee with that person and with the administrator/guardian (if any) of that person's estate;[12]
(c)the wishes of the person in respect of whom the application is made;[13] and
(d)whether the proposed appointee will be able to perform the functions vested in [them].[14]
[10] GA Act, s 44 and s 68.
[11] GA Act, s 44(2)(a).
[12] GA Act, s 44(2)(b) and s 68(3)(a).
[13] GA Act, s 44(2)(c) and s 68(3)(b).
[14] GA Act, s 44(2)(d) and s 68(3)(c).
The Public Advocate shall not be appointed as guardian or administrator unless there is no other person the Tribunal finds suitable who is willing to act.[15]
[15] GA Act, s 44(5) and s 68(5).
In this case, the Public Trustee has indicated it is not willing to be appointed as director of the self-managed superannuation fund, due to its concerns regarding director's duties and liabilities. Y has indicated that he is willing to be appointed as guardian and as limited administrator for the purpose of the self-managed superannuation fund in the absence of the Public Trustee being willing to take on that part of the role. All parties otherwise support the appointment of the Public Trustee for the remaining aspects of C's estate.
X is willing to be appointed as guardian jointly with Y, but admits she cannot communicate with Z.
A proposed herself as a joint guardian with Y and X, particularly because she believes she and her children with Z are included in the ban from contact. During the hearing it became apparent that there may in fact be no such ban in relation to A and C's grandchildren. Y expressed a concern that any joint guardianship with A would end with her being a conduit of information to Z and was not sure that at this early stage of resolving the complex situation and competing claims that it could work. He felt it was something to aspire to in the future.
The legal representative for C gave evidence that when they met with C, she said she felt very flustered if Z was in attendance and they had advised her she could let the facility know if she did not want him to visit.
The OPA investigator gave evidence that the Clinical Nurse Manager at the care facility reported C had come to her and said she felt scared and threatened by Z and that he was always asking for money. The Clinical Nurse Manager's written report to the Tribunal also reported C said she did not wish Z to visit her.
I am satisfied that C has told multiple independent professionals that she does not want to see Z. As a consequence, I am not satisfied that the appointment of A (Z's wife) as a guardian would be in C's best interests.
The service provider report of the Clinical Nurse Manager reports that X and Y have a close relationship with C.
The Public Advocate supports the appointment of Y and X as joint guardians for treatment, accommodation and services decisions.
Given the concerns around visitation, the Public Advocate submitted that an independent guardian for contact decisions would be in C's best interests.
I am satisfied and I find that X and Y will act in the best interests of C and are suitable to be appointed for all necessary functions other than contact because C supports their appointment, the aged care facility report no concerns regarding their involvement and Y has expressed willingness to communicate with Z regarding personal decisions which arise for C. I note that although there is an expectation the guardians will inform Z of circumstances and he can express his views, the guardians must make the decisions on what they believe is in C's best interests, taking into consideration the factors set out in s 51(2) of the GA Act:
(2)…a guardian acts in the best interests of a represented person if the guardian acts as far as possible -
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for themself and of making reasonable judgments in respect of matters relating to their person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person's previous actions;
(f)in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
(g)in such a way as to maintain any supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
However, I am not satisfied X and Y can make contact decisions, given the current level of suspicion and distrust around the financial arrangements between Z and C. I accept that until recently there has been a close and trusting relationship between Z and C. I accept that A and the grandchildren in Perth would like to visit C and I believe it is necessary for an independent party to be the one that broaches that with C and explores her wishes in that regard. As a consequence, I made orders appointing the Public Advocate for that function solely.
Scope of Orders
For the reasons already explained, split appointments are necessary for administration and for guardianship.
Plenary administration is needed given C's incapacity even in relation to simple transactions. This is achieved by the Public Trustee being appointed with all the powers of a plenary administrator save and except for those vested in Y in relation to the superannuation fund, given the Public Trustee does not consent to appointment for that purpose.
Accommodation, support service and medical treatment decisions are required currently and on an ongoing basis for C, because the report of the Public Advocate indicates she wishes to leave the aged care facility and return to live in the property with the roof leak and the mould. The report of the Clinical Nurse Manager indicates that C requires greater care than can be provided outside a facility and that she has limited insight. Dr P's report states C lacks capacity to make decisions about accommodation, services and medical treatment. There is a current need for a guardian with the contact function as well, as explained above.
Period of Order
I am required to specify a period of time within which a review of the orders must be made. The maximum time period allowed by the GA Act is 5 years. In this case I consider that it is in C's best interests to set a review within 5 years because of the progressive nature of her condition, and the complexity of the current financial position. On the evidence, she will need substitute decision-makers in the long-term. If there is any resolution of issues which might allow less extensive orders to be made, the parties can seek early review of the orders.
Other
C has made gifts to family members at special times of the year. Given the uncertainty of her financial position currently, I have included a gifting authority of up to $1,000 per annum in the administration order.
Dr P's report states C no longer has capacity to vote. I accept that evidence and so I have made a declaration to that effect.
For those reasons on 4 November 2025, I made the following orders:
GAA 4690/2025
The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, [C] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b) in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
Administration
2.The order made on 11 September 2025 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
3.[Y] of [address] is appointed limited administrator of the estate of the represented person to act as the represented person's legal personal representative with respect to the [Superannuation Fund].
4.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed limited administrator of the estate of the represented person with all of the powers and responsibilities of a plenary administrator, save and except for the function in Order 3 above.
5.To avoid doubt, the Public Trustee's powers as a limited administrator include the power to receive funds from the [Superannuation Fund], should the trustee or trustees of that fund choose to make a payment for the benefit of the represented person.
6.The administrator is authorised to expend up to a total amount of $1,000 per annum on gifts on behalf of the represented person.
7.The enduring power of attorney dated 23 March 2023 by which the represented person appointed [Z] and the enduring power of attorney dated 7 August 2025 appointing [Y] be their attorney, are revoked.
8.The administration order is to be reviewed before 4 November 2030.
Guardianship
9.[Y] of [address] and [X] of [address] are appointed joint limited guardians of the represented person with the following functions:
(a)to decide where the represented person is to live, whether 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);
(d)to determine the services to which the represented person should have access; and
(e)to decide whether to give or withhold consent to the use of any restrictive practices for the represented person proposed from time to time under the Aged Care Act 2024 (Cth) or subsidiary legislation.
10.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 determine what contact, if any, the represented person should have with others and the extent of that contact.
11.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
12.It is declared that the represented person is not capable of making judgments for the purpose of complying with the provisions of the Electoral Act 1907 (WA) relating to compulsory voting.
13.The guardianship order is to be reviewed before 4 November 2030.
GAA 5153/2025
On an application by [Z] pursuant to s 109(1)(c) of the Guardianship and Administration Act 1990 (WA) concerning an enduring power of attorney dated 23 March 2023 by which [C] appointed [Z] and an enduring power of attorney dated 7 August 2025 appointing [Y] as her enduring attorney.
The Tribunal orders:
1.The enduring powers of attorney are revoked.
GAA 5154/2025
On an application by [Z] pursuant to s 110K of the Guardianship and Administration Act 1990 (WA) concerning an enduring power of guardianship dated 26 July 2025 by which [C] appointed [Z] as her enduring guardian.
The Tribunal orders:
1.The enduring power of guardianship is not valid.
GAA 5156/2025
On an application by [Z] pursuant to s 110N of the Guardianship and Administration Act 1990 (WA) concerning an enduring power of guardianship dated 26 July 2025 by which [C] appointed [Z] as her enduring guardian.
The Tribunal orders:
1.The enduring power of guardianship has been found not to be valid and therefore does not require revocation.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, SENIOR MEMBER
14 NOVEMBER 2025
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