C - [2025] WASAT 113 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   C [2025] WASAT 113
MEMBER:   MS K LANG, MEMBER
HEARD:   11 SEPTEMBER 2025
DELIVERED          :   11 SEPTEMBER 2025
PUBLISHED           :   16 OCTOBER 2025
FILE NO/S:   GAA 3955 of 2025
GAA 3993 of 2025
C
Represented Person
R
Applicant

Catchwords:

Guardianship and administration - Applications for the appointment of guardian and administrator - Applications to intervene in enduring power of guardianship - Represented person with diagnosis of dementia - Whether need for an administrator and a guardian - Niece appointed under enduring powers of attorney and guardianship - Attorney transferred the bulk of the estate of the represented person to bank account in her name - Contract to build granny flat at attorney's residence - Conflict of interest - Need for administrator and guardian - No less restrictive means to meet needs - Enduring power of attorney and guardianship revoked - Public Advocate appointed limited guardian for accommodation decisions due to niece's conflict of interest - Public Trustee appointed plenary administrator - Niece appointed limited guardian for treatment and services

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 43(1), s 43(1)(a), s 43(1)(b), s 43(1)(c), s 44, s 44(5), s 64, s 64(1), s 65, s 68, s 107, s 109
Mental Health Act 2014 (WA)

Result:

Enduring Power of Attorney revoked
Enduring Power of Guardianship revoked
Public Trustee appointed plenary administrator
Public Advocate appointed limited guardian for accommodation decisions
Applicant appointed limited guardian for treatment and services decisions

Category: B

Representation:

Counsel:

Represented Person	:	In Person
Applicant	:	In Person

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A

Case(s) referred to in decision(s):

DH [2020] WASAT 100

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

R (applicant) brought applications under the Guardianship and Administration Act 1990 (WA) (GA Act) for guardianship and administration orders for her aunt, C.
C is a 79 year old woman with significant cognitive impairment due to dementia. She appointed R as her enduring attorney and guardian shortly before she was admitted to hospital under the Mental Health Act 2014 (WA) (MH Act) for six months. C was eventually discharged to live with R as she is not able to live independently.
R signed a contract to build a granny flat on her property to accommodate C and transferred money from C's bank account into her own account to pay for the building works. C's bank (Bank 1) raised concerns and froze the accounts which led to R's applications.
R's actions created a conflict of interest and breached her legal responsibilities as attorney under the GA Act. I revoked the enduring powers of attorney and guardianship and appointed the Public Trustee (PT) as administrator of C's estate. I appointed the Public Advocate guardian for accommodation decisions and appointed R guardian with treatment and services functions.
These are my reasons for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: C [2025] WASAT 113
Case: [2025] WASAT 113
Decision Date: 16 OCTOBER 2025

CaseChat Overview and Summary

The case before the court involved a dispute regarding the appointment of a guardian and administrator for a represented person, C, who had been diagnosed with dementia. The matter was heard in the Western Australian Guardianship and Administration Tribunal. The niece of the represented person, R, had been appointed under enduring powers of attorney and guardianship, but had transferred the majority of C's estate to her own bank account and entered into a contract to build a granny flat at her residence, actions which were considered to be in conflict with her fiduciary duties. The dispute centred on whether C required both an administrator and a guardian, whether there was a less restrictive means to meet her needs, and whether the enduring power of attorney and guardianship should be revoked.

The legal issues that the court was required to decide included whether the represented person needed both an administrator and a guardian, whether there was a less restrictive means to meet her needs, and whether the enduring power of attorney and guardianship should be revoked due to the niece's conflict of interest. The court had to consider the relevant provisions of the Guardianship and Administration Act 1990 (WA) and ensure that the represented person's property and financial resources were conserved for her own needs and welfare. The court also had to assess whether the niece had fulfilled her fiduciary obligations and whether her actions were in the best interests of the represented person.

The court found that the represented person did require both an administrator and a guardian due to her lack of capacity and the conflict of interest presented by the niece. The Public Advocate was appointed as a limited guardian for accommodation decisions, and the Public Trustee was appointed as the plenary administrator. The court revoked the enduring power of attorney and guardianship held by the niece due to her conflict of interest. The niece was appointed as a limited guardian for treatment and services, but with restrictions to prevent any further conflict of interest. The court's decision was based on the need to protect the represented person's property and financial resources and ensure that her needs and welfare were met. The court also found that the niece had not fulfilled her fiduciary obligations and had acted in a manner that was not in the best interests of the represented person.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Member Child further stated at [47]:47In Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 His Honour, EM Heenan J when considering other provisions of the GA Act described at [43] - [44] the protective intention of the GA Act when considering dispositions which might be made: 43… it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.44… The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes. In the main, these will be accomplished by conserving the resources and property of the person under administration for use to his or her own advantage or, in cases where expenditure or imminent disposition of property are necessary or advantageous, by scrutinising the transaction to see that it is justifiable or provident having regard to all the circumstances, bearing always in mind the continuing and future needs of the person whose estate is under administration.48… the protective intent of the legislation is clear. C's lack of capacity reinforces R's fiduciary obligations to her because of her complete reliance and dependence on her. Although R may have acted without unscrupulous intent she has not fulfilled the obligations upon her. Firstly, R lodged a confusing assortment of undated, poorly identified bank accounts and an incomplete list of financial records in response to Tribunal orders. These materials show many unexplained withdrawals from C's accounts. Transactions during C's lengthy hospitalisation and the payment of utilities and rates for properties which C does not own raise particular concerns which R did not satisfactorily clarify. R has failed to keep and preserve accurate records and accounts of all dealings and transactions made under the EPA in breach of the legal obligations under the GA Act Secondly, R has not acted with reasonable diligence to protect C's interests. She has used the majority of C's estate to enhance the value of her own property without consideration for her future needs or personal wishes regarding her son. Prior to losing capacity, there is no evidence that C intended to give R a large amount of money. To the contrary, her written wishes were to leave her entire estate to her disabled son.[14] The EPA makes no specific provision for gifting. [14] Letter to Tribunal dated 23 December 2023.