CC
[2025] WASAT 64
•4 JULY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: CC [2025] WASAT 64
MEMBER: MS R BUNNEY, MEMBER
HEARD: 7 APRIL 2025
DELIVERED : 7 APRIL 2025
PUBLISHED : 4 JULY 2025
FILE NO/S: GAA 659 of 2025
CC
Represented Person
SERVICE PROVIDER 1
Applicant
Catchwords:
Guardianship - Administration - Enduring power of attorney - Enduring power of guardianship - Substitute decision-maker in detention - Mandatory cancellation of visa - Ministerial intervention application - Conflict of interest - Revocation of enduring power of attorney - Appointment of private administrator - Remuneration of administrator - Guardian directed not to act under enduring power of guardianship - Appointment of Public Advocate as guardian - Electoral declaration
Legislation:
Electoral Act 1907 (WA), s 51AA
Guardianship and Administration Act 1990 (WA), s 3, s 44(1)(b), s 86, s 87, s 110F, s 110K, s 110N, s 110ZD, s 111, s 117, s 118
Migration Act 1958 (Cth), s 195A, s 501(3A), s 501(6)(a), s 501(7)(c), s 501CA(4)
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4)
Result:
Public Advocate appointed guardian
Enduring power of attorney revoked
Private administrator appointed with remuneration authorised
Category: B
Representation:
Counsel:
| Represented Person | : | Ms P |
| Applicant | : | N/A |
Solicitors:
| Represented Person | : | A Legal |
| Applicant | : | In Person |
Case(s) referred to in decision(s):
JGN and CEN [2006] WASAT 320
Re E (1993) 12 SR (WA) 246
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
CC is an elderly widow with a diagnosis of Alzheimer's dementia. She lives alone in her home of 45 years. She is frail and her vision is deteriorating. She has serious dental problems; she must have six teeth removed and new dentures made as soon as possible. CC needs the highest level of aged care services available to assist her at home, which is a Home Care Package Level 4 (HCP4). However, she is not receiving these services and is at risk of an early entry into a nursing home.
To be eligible to receive the HCP4, CC needs to apply for an Australian pension, but she cannot do that by herself. She appointed her three children as her enduring and substitute attorneys around 10 years ago. Unfortunately, the attorneys cannot act if they are not in Western Australia for more than two weeks, and her daughter RR lives overseas, daughter AA lives interstate and son HH is in immigration detention, so her children are unable to act.
HH has attempted to locate information about CC's income and assets to apply for the pension, but he has not been successful. HH is appointed as CC's guardian under an enduring power of guardianship but he has not been able to resolve CC's problems.
One of CC's service providers, Service Provider 1, made the application to the Tribunal due to concerns about HH's ability to make decisions for her. I made orders on 7 April 2025 due to the urgency with which the HCP4 needed to start. I appointed the Public Advocate as CC's guardian and VL, a director of the Accounting Practice who assists CC with her tax returns, as CC's administrator. I indicated that I would provide written reasons for my decision. These are my reasons.
Principles to be observed by the Tribunal
The primary concern of the Tribunal when making decisions under the Guardianship and Administration Act 1990 (WA) (GA Act) is the best interests of the person for whom the application was made, CC. The Tribunal must ascertain CC's views and wishes, as far as possible.
The starting point for the Tribunal is that every person is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments about their estate and their person. This is referred to as the 'presumption of capacity' and if set aside by cogent evidence, the Tribunal can consider making guardianship and administration orders.
The Tribunal must consider whether CC's needs could be met by other means less restrictive on her freedom of decision and action. If the Tribunal makes an order, the order needs to impose the least restrictions possible on her.
The Tribunal will take all facts and circumstances into account when determining CC's best interests. The Tribunal may inform itself on any matter as it sees fit, and is not bound by rules of evidence, which ensures, as far as possible, that all relevant information can be considered by the Tribunal to make the correct decision in CC's best interests.[1]
[1] State Administrative Tribunal Act 2004 (WA), s 32(2) and s 32(4).
CC attended the hearing of 7 April 2025 with her solicitor Ms P. Ms K from Service Provider 1, family friend MN and Mr S, an investigator advocate (Investigator) from the Office of the Public Advocate (Public Advocate) also attended in person. HH attended the hearing by videolink from detention. AA and VL attended the hearing by telephone.
I have had regard to the oral evidence given at the hearing and the written evidence filed in the proceedings. This included a 300‑page document that HH provided to the Minister for Immigration and Multicultural Affairs (Minister) in support of an application to reinstate his visa to avoid deportation. The relevant features of the evidence are summarised in these reasons.
Issues
When deciding whether to appoint a guardian or an administrator, the Tribunal must first determine whether CC lacks the capacity to make decisions about her personal and financial matters. If so, the Tribunal will consider whether it needs to make an order, or whether there is another way for decisions to be made that is less restrictive on CC's freedom of decision and action. If the Tribunal needs to make orders, the Tribunal must then decide who the guardian or administrator will be, the functions or powers they require and when the order will be reviewed.
The contentious issues for the Tribunal to decide in this matter are:
(a)is the enduring power of attorney signed in 2014 (2014 EPA), which appoints HH and RR as the joint and several attorneys, with AA as the substitute, the appropriate way for CC's finances to be managed, noting that the attorneys appointed under the 2014 EPA are unable to act if they are absent from Western Australia for more than two weeks. If not, who should the Tribunal appoint as her administrator; and
(b)is the enduring power of guardianship signed in December 2024 (EPG) the appropriate way for personal decisions to be made, and if not, who should the Tribunal appoint as her guardian?
CC's views and wishes
The Tribunal must ascertain CC's views and wishes, as expressed or gathered from her previous actions. CC has expressed her views in the past by signing the 2014 EPA which appoints HH as her attorney (jointly and severally with RR, with AA as the substitute) and the EPG which appoints HH as her sole guardian. CC told the Investigator that she wants HH to be her substitute decision-maker. She is not opposed to RR being her decision-maker, and she would continue to accept MN's help. CC was agreeable to the appointment of VL as her administrator.
While CC can articulate her views and wishes, making a wish is not the same as being able to make a reasonable judgment about the matters that are required to keep her safe or about who is best placed to make important decisions about her finances and care arrangements.
I am satisfied that it is not in CC's best interests to follow her views and wishes, that HH be her decision-maker, in determining this application. CC is unable to understand the complex circumstances that surround her and that HH cannot act effectively in the roles due to his confinement. He may be deported from Australia. In addition, HH also has a conflict of interest with CC which precludes his appointment as her guardian and administrator.
Findings of fact
The facts set out in [17] to [32] below are not controversial and I make findings in accordance with those facts.
CC is aged in her late 80s. She emigrated to Western Australia in the 1970s with her late husband and three children. All members of the family became Australian citizens except for HH who remained a permanent resident. CC's husband passed away around 20 years ago.
CC signed an enduring power of attorney in 2002 to appoint her husband as her attorney, and if he was unable to act, HH and RR were appointed as the joint and several substitute attorneys (2002 EPA). It appears that the family forgot about the 2002 EPA, and no original copies exist, as it was discovered by the Investigator when he was searching Landgate records.
HH was sentenced to a term of imprisonment in late 2020. A sentence of more than 12 months is classified as a 'substantial criminal record' for the purposes of the Migration Act 1958 (Cth) (Migration Act).[2] A person that has a substantial criminal record does not pass the character test in the Migration Act.[3] If a person does not pass the character test due to having a substantial criminal record and they are serving a term of imprisonment, the Minister must cancel their visa.[4] The Minister cancelled HH's permanent visa (Cancellation Decision) so when HH was released from prison, he was transferred to immigration detention.
[2] Migration Act 1958 (Cth) (Migration Act) s 501(7)(c).
[3] Migration Act, s 501(6)(a).
[4] Migration Act. s 501(3A).
In 2022, HH made submissions to the Department of Home Affairs to request the revocation of the Cancellation Decision.[5] In 2023, HH was informed that a delegate of the Minister had made a decision to refuse to revoke the Cancellation Decision. HH was unsuccessful in two actions in the Administrative Appeals Tribunal and an appeal to the Federal Court of Australia. At the time of the Tribunal hearing, HH was awaiting the outcome of a further Federal Court appeal that was heard in March 2025. If successful, the matter will be reheard in the Administrative Review Tribunal at some point in the future.[6]
[5] Migration Act, s 501CA(4).
[6] Migration matters were heard in the Administrative Appeals Tribunal prior to 14 October 2024 and since then are heard in the Administrative Review Tribunal.
In January 2025, HH sought the assistance of the Minister to have his permanent visa reinstated by way of a ministerial intervention application (Intervention Application). The Minister has the power to grant a person in detention a particular class of visa if it is in the public interest to do so.[7] HH is seeking the reinstatement of his permanent visa so he can enter the community to become CC's primary carer. However, there is no way of knowing if the Minister will intervene or how long it will take. HH says it could be weeks, months or years. The prospects of a successful ministerial intervention are unknown.
Application to the Tribunal in 2022
[7] Migration Act, s 195A.
RR acted as CC's attorney and substitute decision-maker when she was in Western Australia in 2020, and again in 2021 and 2022. RR arranged for most of CC's bills to be paid by direct debit and set up her aged care services in 2022.
In April 2022, RR applied to the Tribunal seeking that the 2014 EPA be varied to remove HH, so that RR and AA could act as the attorneys. However, RR withdrew the application at the hearing as the evidence at that time did not displace the presumption of capacity.
Shortly after that hearing, CC signed an enduring power of guardianship to appoint HH as her sole enduring guardian. The original document was subsequently lost so CC signed an enduring power of guardianship in the same terms on 12 December 2024 (EPG).
CC's finances
Bank statements from 2023 show that CC is financially secure. However, no one knows where her bank statements have been sent for the last two years. This has caused a critical 'domino effect' as the bank statements are the only source documents that evidence CC's receipt of an overseas pension and investment returns. As she does not know what her income is, CC:
(a)cannot apply for an Australian pension as she cannot complete the income and assets test required by Centrelink;
(b)cannot access the HCP4 because she does not receive a pension; and
(c)has not completed her tax returns for three years.
In addition, the Centrelink Form SA456 (Centrelink Form) needs to be completed so the cost of CC's home care package can be calculated. As the Centrelink Form is a statutory declaration, CC needs an authorised person to sign on her behalf.
CC's care
CC receives in-home supports under the Commonwealth Home Support Programme. This is intended to be an interim program to support people while waiting for their home care package to start, but CC has been 'stuck' at this level of services for three years. She is receiving more services (around 7 hours per week) from Service Provider 1 and Service Provider 2 than she is entitled to due to the Service Providers' concerns for her safety. However, this is still only half the services she would receive under the HCP4.
In March 2022, a Home Care Package Level 2 was approved for CC but her eligibility for that package lapsed in October 2022 as she could not provide the further information required. In early 2023, Service Provider 2 requested a reassessment and the HCP4 was approved in February 2023. The referral was given high priority due to the risks to CC's safety that were identified at that time.
Centrelink sent CC a letter in November 2023 to ask for financial information so the HCP4 could start but CC did not have the capacity to respond to the letter. Service Provider 3 was appointed to support CC to provide information to Centrelink. However, CC could not locate or provide the information and the referral to Service Provider 3 was closed.
Since then, CC's situation has further deteriorated to the point where she was hospitalised in Hospital A for six days in December 2024 because she was increasingly confused and was not coping at home. In late December following the hospital admission, a social worker contacted HH to advise that CC's funding for her HCP4 was $61,140 and a service provider needed to be engaged by 4 February 2025. No provider was engaged.
HH asserts that throughout his time in detention, he has advocated for CC, communicated with all relevant stakeholders and taken all steps possible as CC's substitute decision-maker. HH submits in the Intervention Application that in 2024, he has undertaken the following:
(a)he has ensured that CC's medication was collected from the pharmacy. He realised in September that her medication had not been collected since July, and again realised in December that her medication had not been collected since October;
(b)he has done all he can to ensure that her diet is adequate, her food is nutritious and services take her grocery shopping. Food safety has been an ongoing issue and was raised as a concern again in August;
(c)in October, he followed up to ensure that new prescription glasses were obtained;
(d)he has arranged for CC to have a working telephone as her Telstra modem was disconnected in October. HH organised MN to assist CC to re-establish her phone service;
(e)he has managed the maintenance issues at CC's home, as her roller shutters were not working and a toilet was leaking in November;
(f)he has monitored the safety of CC and her home which has included issues relating to locking herself out in December and items being stolen from her home. MN took CC to the police station to report these issues in November; and
(g)he has considered how to ensure that CC is safe in summer due to fire risks near her home. The fire escape routes in her home, the kitchen and bathroom windows, both have security shutters on them, which would not open if there was a power outage. The house is split level on a sloping block, and the windows are located over two metres from the ground, making it impossible for an elderly person to jump out of the window. HH is also concerned that CC may not respond to a fire alarm or a telephone emergency evacuation order in the event of a bushfire.
In January 2025, CC attended a dental appointment. She was advised that she needs six extractions and new dentures but she cannot give informed consent to the surgery. Before dental work can start, CC needs an x-ray, which she cannot attend without assistance. She will require supervision after the surgery which she cannot organise. She has funds available to pay for the dental work but cannot make a claim on her private health insurance.
I will now turn to discuss CC's capacity to make her own decisions, starting with financial matters.
Does CC lack the capacity to make her own decisions about her personal and financial matters?
To appoint an administrator, the Tribunal must be satisfied that CC is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate.
At law, a mental disability includes dementia.[8] CC's general practitioner Dr N stated that CC has Alzheimer's dementia and has experienced cognitive decline over the last 5 years.[9]
[8] GA Act, s 3.
[9] Letter dated 20 November 2024 contained in Ministerial Intervention Application (MIA) Submissions, pages 81 - 82.
Consultant geriatrician Dr A was unsure about whether CC was able to make decisions about simple financial matters as she was aware that most of her bills were paid by direct debit. Dr A determined that CC was unable to make decisions about complex financial matters as she had significant deficits in judgment, memory and complex decision‑making.[10]
[10] Medical report of Dr A dated 25 February 2025 (Dr A Medical Report).
To decide whether CC is 'unable' to make reasonable judgments about her estate, I must consider CC's estate and circumstances and then compare that against the extent to which CC is able to engage in the cognitive process required to make a 'reasonable judgment'.
A person's 'estate' includes all their assets, liabilities and all their financial affairs. CC's assets are:
(a)her home, which is unencumbered;
(b)her bank account and term deposit;
(c)her car which is driven by MN for local appointments; and
(d)four investment and superannuation funds, the type and value of which is unknown. HH was unable to recall the names of all the investments.
CC's income is her overseas pension and payments or dividends received from the four investments. She is entitled to an Australian part‑pension.
Whether a person can make reasonable judgments about their estate is a subjective test, because the person's ability must be assessed in relation to their actual estate. The following matters satisfy me that CC is unable to make reasonable judgments about her estate:
(a)CC showed social worker Ms E her old bank statements and could not explain where her income was coming from;[11] and
(b)CC has not successfully asked her bank to send her statements to her home or to VL's Accounting Practice.
[11] Service Provider Report by Ms E of Hospital A dated 24 February 2025.
There is no doubt, in my view, that the diagnosis of Alzheimer's dementia is the cause of CC's inability to make reasonable judgments in respect of her estate. CC was able to manage her own affairs and provide the required documentation to VL to complete her tax returns for the year ending 30 June 2022. Further, the Tribunal was satisfied in April 2022 that the presumption of capacity was not set aside.
I am satisfied, and I find, that the mental disability causes CC to be unable to make reasonable judgments about her estate. I am therefore satisfied, and I find, that the presumption of capacity has been set aside in respect of financial matters. CC is therefore a person for whom I can appoint an administrator.
I next turn to discuss whether CC can make decisions about her personal matters.
Does CC lack the capacity to make personal decisions?
To appoint a guardian for CC, I must be satisfied that she is over 18 years of age and that one or more of the following criteria apply:
(a)she is incapable of looking after her own health and safety;
(b)she is unable to make reasonable judgments in respect of matters relating to her person; or
(c)she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.
CC is incapable of looking after her own health and safety
The evidence demonstrates that CC needs the highest level of home care package available to assist her at home, and she was admitted to Hospital A in December 2024 because she was not coping. The catalyst for the application to the Tribunal was CC's risk of premature entry to residential aged care if she did not receive the level of support she requires at home.
CC is unable to make reasonable judgments in respect of matters relating to her person
Dr A's view is that CC is unable to make decisions about her accommodation and services as she cannot navigate Centrelink to arrange her home care package.[12] CC is unable to make decisions and give informed consent so she can receive the dental surgery she needs, including arranging adequate post-surgery supervision.
CC is in need of oversight, care or control in the interests of her own health and safety
[12] Dr A Medical Report.
When the HCP4 was approved in February 2023, concerns were raised that CC's fridge contained mouldy and expired food. On one occasion, CC was seen consuming food with mould on it.[13] When social worker Ms E and the occupational therapist Ms L from Hospital A attended CC's home in late January 2025, 90% of the canned food items had expired with some being rusted and some with an expiry date of 2007.[14]
[13] Service Provider Report by Ms W of Service Provider 2 dated 24 February 2025.
[14] Notes of occupational therapist Ms L of Hospital A prepared following a home visit on 29 January 2025.
I make findings in accordance with [45] - [47] and I am satisfied that the presumption of capacity has been set aside in relation to personal decisions. CC is a person for whom I can appoint a guardian.
I next turn to explore whether CC needs a guardian or an administrator.
Does the Tribunal need to appoint a guardian or an administrator? Or is a less restrictive option available?
I must bear in mind the need to adopt a less restrictive option if possible. The question is whether informal arrangements, the 2014 EPA or the EPG are less restrictive options for decisions to be made in CC's best interests. I will not consider the 2002 EPA as it appears that there is no original document in existence, meaning it is not a viable option. I will revoke the 2002 EPA on that basis.
I have taken into account CC's wish that she wants HH to be her decision-maker. I will first set out HH's view about the need for orders and then assess HH's suitability as CC's decision-maker.
HH contends that there is no need for the Tribunal to appoint a guardian or an administrator as the 2014 EPA and EPG are an appropriate way for decisions to be made. HH's view is that the question of whether orders are needed cannot be answered until the Intervention Application and the Federal Court appeal have been determined.[15] HH estimates that this could take weeks, months or years.[16] HH says that if he is released from detention, he can make his mother's decisions as her enduring attorney and guardian in accordance with her wishes. Thus, HH argues that the correct approach is to wait.
[15] Submissions filed by HH with the Tribunal on 17 March 2025.
[16] ts 17, 7 April 2025.
In contrast, HH's submissions in the Intervention Application portray an entirely different situation. HH describes CC as failing to cope and requiring complex care which is not being provided. HH asserts that CC's circumstances are so dire he must immediately resume his role as CC's in-person carer.
HH's representation of the risks to CC in January set out in the Intervention Application and then explained to the Tribunal in April are difficult to reconcile. The imminent dangers to CC's health and safety described in the Intervention Application are supported by the evidence lodged with the Tribunal and were acknowledged and agreed by almost everyone that attended the hearing. HH and MN were the exceptions. MN thought that everything was going 'well' with CC at home. MN appeared to agree with HH's contention that the Tribunal did not need to make orders.
However, HH has a personal interest in remaining CC's enduring attorney and guardian. If the Intervention Application is successful, HH will avoid deportation and be released after being deprived of his liberty for 4.5 years. HH's status as CC's decision-maker could be persuasive evidence in support of the reinstatement of his visa due to his unique position, being the only person in Western Australia with the legal authority to manage CC's finances and health.
If HH is released into the community, his role as CC's carer will include:
(a)accommodation, as he will return to live in CC's home where he has lived since he was 9 years old; and
(b)an income, being the carer's pension, as HH is unable to work in his profession as a result of his criminal convictions.
HH's personal interest in obtaining freedom, accommodation and an income may make it difficult for him to make decisions solely in CC's best interests if he continued to be CC's decision-maker. HH's personal interests may have already influenced his priorities in terms of his pursuit of various legal avenues to reinstate his visa while his mother deteriorated at home.
In early December 2024 when CC was hospitalised, her circumstances were so critical that in order to obtain the information required to apply for the pension to start the HCP4, HH requested a temporary release from detention to attend the Accounting Practice, Centrelink and the bank. The request was denied and while HH could be given credit for the attempt, he had two other options open to him, which he did not take:
(a)he could have contacted either of his sisters to apprise them of the urgency of CC's situation and ask them for help, as both sisters can independently act as CC's attorney under the 2014 EPA if they return to Western Australia. HH says his sisters are not in contact with CC.[17] CC says HH advised her not to have contact with her daughters.[18] Either way, RR and AA would likely have been unaware of the grave risk to CC's health and safety that existed at that time; or
(b)he could have made this application to the Tribunal to seek the appointment of a guardian and administrator. HH was aware of the Tribunal process as, in addition to his legal training, HH filed a submission in the Tribunal proceedings in April 2022.
[17] MIA, page 32.
[18] Service Provider Report by Ms E of Hospital A dated 24 February 2025, page 2.
I do not accept HH's contention that there is no need for the Tribunal to appoint a guardian or an administrator for CC. I find that HH's personal interest in becoming CC's primary carer to achieve freedom, financial security and secure housing has conflicted with CC's interests and caused a two‑year delay in the provision of the HCP4. The conflict of interest, in addition to his confinement, means I am unable to find HH suitable to act in any decision-making role.
Is informal decision-making appropriate?
Depending on the types of decisions a person needs made, informal arrangements can sometimes suffice. For example, medical treatment decisions can be made by family members or close friends pursuant to s 110ZD of the GA Act which sets out the hierarchy of decision-makers that can make medical treatment decisions on behalf of others.[19]
[19] Section 3 of the GA Act sets out the hierarchy in further detail.
As HH, AA and RR are CC's children, they can make medical treatment decisions for her. However, HH's detention means that he is not contactable. AA wants to be kept updated about her mother but she is unable to be a substitute decision-maker. The Tribunal did not receive a response from RR in relation to attending the hearing.
I am satisfied, and I find, that informal arrangements are not appropriate in this case as CC requires someone with legal authority to be available to give consent to medical treatment and procedures, crucially for her dental treatment, and to update CC's family members about important medical decisions made for her.
Is the EPG a less restrictive option for personal decisions to be made?
On 12 December 2024, a few days after CC was discharged from Hospital A, she signed the EPG appointing HH as her sole enduring guardian. CC's signature was witnessed by Ms P and MN. This raises the issue of CC's capacity to sign legal documents at that time.
To have the capacity to sign an enduring power of guardianship, CC must be capable of understanding that an enduring power of guardianship is a complete and lasting delegation of authority. The authority begins when she loses capacity and is incapable of making reasonable judgments about her person.[20] The guardian then assumes complete control over CC's personal and lifestyle decisions.
[20] GA Act, s 110F.
The Intervention Application includes contemporaneous evidence of CC's capacity as follows:
(a)on 14 October 2024, Ms P described CC as 'severely debilitated with her dementia and [is] unable to cope at home or in the community unaided' in a character reference for HH addressed to the Minister;[21]
(b)on 20 November 2024, CC's general practitioner Dr N confirmed that CC had experienced cognitive decline over the previous five years and her ability to manage at home had deteriorated. Dr N had observed an obvious decline in orientation, recall, and difficulty retaining day to day information;[22]
(c)HH's evidence of the risks to CC's health and safety that existed in the second half of 2024 set out in [31] above; and
(d)HH's request to be temporarily released from detention in early December 2024 to attend the Accounting Practice, Centrelink and the bank.
[21] MIA Submissions, page 63.
[22] MIA Submissions, pages 81-82.
When CC spoke to the Investigator in March 2025, she did not remember signing the EPG.[23]
[23] Report by the Investigator dated 4 April 2025.
I am satisfied, and I find based on the evidence listed above, that CC did not have the capacity to sign the EPG on 12 December 2024. The document cannot stand as a less restrictive alternative. Even if CC did sign an identical enduring power of guardianship in 2022 that was lost, such a document cannot be 're-signed' if she has lost capacity.
There is no application before me to revoke the EPG or declare it invalid,[24] so I will make an order that HH is not to act pursuant to the power until further order of the Tribunal.
Conclusion – does CC need a guardian?
[24] GA Act, s 110N or s 110K.
CC needs a guardian to have the legal authority to make, at the very least, decisions about medical treatment and services. I am therefore satisfied, and I find, that there are no less restrictive means available for personal decisions to be made in CC s best interests. The Tribunal needs to appoint a guardian.
Is the EPA a less restrictive option for financial decisions? If not, should it be revoked?
An enduring power of attorney is usually considered less restrictive than an administration order if it was prepared at a time when the donor had capacity and chose who they wanted to manage their finances.
The evidence demonstrates that neither the 2002 EPA nor the 2014 EPA have provided an effective way for CC's finances to be managed. I am satisfied that there is no less restrictive way for financial decisions to be made in CC's best interests. I will revoke both EPAs which creates the need to appoint an administrator to manage CC's estate.
I will now turn to discuss who should be CC's guardian and administrator, starting with guardianship.
Who should be CC 's guardian?
When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in CC's best interests, is not in a position where their interests conflict or may conflict with her interests, and they are suitable to act as the guardian.
HH's preference is that he continues to manage CC's personal matters with the EPG, which I have determined cannot stand as a less restrictive option. HH cannot be appointed as the guardian due to his conflict of interest and detention and the only other nomination for appointment as guardian was MN.
I find that MN is over the age of 18 years and has consented to act as the guardian. MN has been driving CC to appointments and assisting her at home. She has accepted his help and she is agreeable to his appointment as guardian.
HH and MN have been friends for over 40 years and HH suggested MN's appointment. I am satisfied that MN would be unable to make decisions solely in CC's interests if the decision may have a negative impact on HH. MN acknowledged in the hearing that it would be 'tricky' if he had to make a decision that HH did not agree with.[25] This is particularly so as HH was very open about his expectation that MN would act as HH's agent in the role.
[25] ts 32, 7 April 2025.
For HH to have secure accommodation, CC would need to be cared for at home, rather than move to residential aged care, if her needs increased. HH is aware of this and discussed the concept of the ‘protected person' at the hearing.[26] I am satisfied, and I find, that MN would be in a position of conflict with CC as he may prioritise his personal relationship with HH, and HH's needs, over CC's best interests, particularly in relation to accommodation decisions.
[26] ts 15, 7 April 2025. A protected person is a person that lives in the home of a person that is moving into residential aged care (Owner), often the spouse or carer of the Owner. If a protected person is living in the home, then the value of the home is not included as an 'asset' for the purposes of calculating the value of the Owner's assets, which is used to calculate the Owner's aged care fees. If a protected person is living in the home, it is far less likely that the Owner will be assessed to pay a refundable accommodation deposit, which would usually require the sale of the home. Thus, a protected person can continue living in the home once the Owner moves to aged care.
I am also concerned about MN's judgment. MN's view is that CC's current arrangements are working 'well' and he would only act if he could see that something needed to change. It is possible that MN does not have a full understanding of CC's circumstances. In addition, MN witnessed CC's signature on the EPG on 12 December 2024 when she did not have capacity.
I am satisfied that the only option open to the Tribunal is to appoint the Public Advocate as CC's guardian.
What functions does the guardian need?
I am satisfied, and I find, that CC requires a guardian to:
(a)give informed consent to medical treatment and procedures, particularly for the urgent dental treatment required;
(b)make decisions about services, being the basis for this application, to engage service providers to deliver the HCP4;
(c)make decisions about accommodation, as there are differing views between the professionals about CC's ability to continue to live in the community, which will also depend on whether the HCP4 will be sufficient to keep her safe. Her needs will only increase over time, so her safety at home will need to be closely monitored; and
(d)make decisions about restrictive practices if CC moves into residential aged care during the term of the orders.
I now turn to discuss who should be CC's administrator.
Who should be CC's administrator?
When considering the appointment of an administrator, the Tribunal must hold the opinion that the administrator will act in CC's best interests and is suitable to act as the administrator of her estate. When assessing suitability, the Tribunal must have regard to:
(a)the compatibility of the proposed appointee with CC and the guardian;
(b)CC's wishes; and
(c)whether the proposed administrator will be able to perform the functions to be vested in the administrator.
HH's preference is that he would continue to manage CC's finances using the EPA, but that is not a viable option. In the alternate, HH has proposed VL for appointment as CC's administrator.
VL is over the age of 18 years and has consented to act as the administrator. VL is a director of the Accounting Practice. Her son T is the other director and is an accountant.
I am satisfied that VL will act in CC's best interests. The evidence shows that she has managed CC's taxation matters for several years and is familiar with CC's estate. VL has visited CC's home to try to find the missing bank statements to complete CC's taxation returns.
CC is agreeable to VL being appointed as her administrator. VL's appointment aligns with CC's previous choice about who she trusted to assist with her finances. I am satisfied that VL will be compatible with the Public Advocate as CC's guardian.
I am satisfied that VL can perform the functions to be vested in CC's administrator. VL completes book-keeping work to assist T. She has supported clients to comply with the annual reporting requirements of the Public Trustee so she is well-versed in those obligations. VL knows what information is required to satisfy the Centrelink income and assets test to apply for a pension. VL demonstrated in the hearing that she is apprised of all relevant aspects of CC's estate and had considered how best to approach each issue.
I asked VL the same question I asked MN, which was how she would manage a decision which might be against HH's wishes, such as selling CC's home. VL explained that if HH wanted to purchase the home himself, a valuation would need to be performed to ensure that it was sold at market value. Her authoritative and assertive response satisfied me that her only consideration was CC's best interests and she will not waver from her legislated responsibility to act solely in CC's best interests.
I am therefore satisfied, and I find, that VL will act in CC's best interests and that she is a suitable person to act as CC's administrator. I will appoint VL as the administrator of CC's estate.
What should the administrator's powers be?
The administration order will be a plenary order, which will allow the administrator to deal with all aspects of CC's estate. The evidence demonstrates that CC is unable to make decisions about even simple matters such as paying bills or obtaining her bank statements.
I will include a gifting authority of $500 per year so the administrator can purchase gifts on CC's behalf, noting that she has three children.
I will authorise VL to liaise with the overseas pension. While this order does not bind the overseas pension and is not enforceable, it records the intention of the Tribunal that VL is authorised to make enquires in respect of CC's entitlements to the overseas pension.
I will next discuss how VL will be paid remuneration for the administration of CC's estate. No one that attended the hearing took issue with the suggestion that VL be remunerated for her role.
Remuneration of administrator
The Tribunal can fix a rate of remuneration of an administrator if the size or the complexity of the estate justifies remuneration. The relevant section of the GA Act provides:
117. Remuneration
(1)The State Administrative Tribunal may fix remuneration or a rate of remuneration and order that the same be paid to an administrator out of the estate of the represented person if the Tribunal considers that, because of the size or complexity of the estate or both, remuneration should be paid to the administrator.
(2)A guardian, and except as provided in subsection (1) an administrator, shall not receive remuneration for services rendered to the represented person.
(3)Nothing in this section —
(a)prevents the Public Trustee from receiving remuneration under the Public Trustee Act 1941; or
(b) limits the operation of section 16 of this Act or section 39, 87 or 88 of the State Administrative Tribunal Act 2004.
(4)Subject to subsection (3)(a), a corporate trustee shall only be entitled to commission in respect of the capital of the estate of a represented person to the extent that the State Administrative Tribunal expressly allows.
The GA Act does not prescribe what size or complexity means in that context and permits the Tribunal to decide based on the circumstances of each case. While size likely refers to the structure, value or quantum of an estate, complexity is more likely an assessment based on the varying abilities of administrators.[27] The GA Act contemplates that a typical administrator has a close relationship with the represented person, as the legislation requires the Tribunal to consider the views and wishes of the represented person and their compatibility with the proposed administrator. Thus, many administrators do not have training in managing finances for other people.
[27] JGN and CEN [2006] WASAT 320 at 12.
While the structure and value of CC's estate is not large, there are some complexities to be managed in the initial phases to determine her income, characterise that income as taxable or not, complete the outstanding tax returns, locate and value her assets and provide information to Centrelink to apply for the pension. VL estimates that those tasks may take her five or so hours to complete in the first month, but from then on, it may only take her an hour or so each month to review the transactions on CC's bank account, pay bills and ensure that CC has funds available.
Further complexities lie in the family relationships and the personal interests of HH, who has been extremely involved in all aspects of CC's life, including proposing VL for appointment. The Public Trustee is often the administrator of choice when a matter involves complex personalities and dynamics, and conflicting interests, as the Public Trustee is completely independent of all parties. VL is aware of the complexities of CC's unique situation, which I am satisfied she can manage in CC's best interests. As the basis of the relationship between CC and VL has always been commercial, I am satisfied that VL should be remunerated for the administration of CC's estate due to the complexity of the estate.
The subject of the remuneration order is VL's hourly rate. VL usually charges $130 per hour, which she will reduce for CC to only $99 per hour. Based on five hours in the first month and one or two hours each month thereafter, VL's time charged may equal around $2,700 per annum exclusive of GST. VL was aware that any 'out of pocket' expenses would be charged to CC's estate as the GA Act provides for administrators to reimburse themselves for all expenses reasonably incurred in the performance of their functions.[28]
[28] GA Act, s 118.
The Tribunal has previously held that time-based charging was fundamentally problematic because of the open-ended nature of that type of charging, which could lead to 'an unknown quantum of costs'.[29] To provide certainty and allow for the possibility of unforeseen issues arising in the future that require further time for VL to resolve, such as the sale of CC's home, I will authorise CC's estate to be charged $99 per hour for VL's time, to be capped at $4,000 per annum.
[29] Re E (1993) 12 SR (WA) 246 at 251.
This is significantly less than the annual fees of the Public Trustee, which would be in the vicinity of $8,100 for a similar estate, with a further fee of $2,408 to arrange the sale of real property.[30] It is in CC's best interests that she pay a lower cost, in addition to the benefit of the work being performed by someone she shares a personal connection with.
[30] Based on schedule 6 (Personal financial administration fee estimated $3,130), schedule 7 (Asset management fee estimated $3,443), schedule 8 (Residence and real property fees $1,565) and s 81 (sale of real property if real estate agent appointed) of the Public Trustee's Scale of Fees that commenced on 1 July 2025.
How long should the orders run before review?
The medical evidence is clear that CC has a diagnosis of a progressive illness such that her need for a guardian and an administrator will be lifelong. Therefore, these orders will be reviewed within the maximum term possible, which is within 5 years of the date of the orders.
Electoral declaration
When the Tribunal makes a guardianship or an administration order for a person who is enrolled to vote, the Tribunal must consider whether the person is capable of making judgments for the purpose of compulsory voting.[31] If the Tribunal is satisfied that the person is not capable of doing so, the Tribunal can make the declaration.
[31] GA Act, s 111. Section 51AA of the Electoral Act 1907 (WA) states that the person's name shall be removed from the register of electors if a declaration is made under s 111 of the GA Act.
Dr A's view is that CC is no longer capable of voting. I asked CC if she enjoyed voting, and she said that she only voted because it was compulsory. I explained that I could make a declaration so she would not have to vote in the next election. CC was happy for me to do so.
Conclusion
The Tribunal is satisfied that CC needs both a guardian and an administrator. The diagnosis of dementia means that CC cannot make decisions about her financial and personal matters, and she is unable to look after her own health and safety, needing oversight and care to protect her health and safety.
The two EPAs and the EPG are not less restrictive alternatives to orders. The EPG was signed at a time where the medical and other evidence demonstrated that CC lacked capacity. The two EPAs are unworkable. The most pressing matter, CC's safety at home, requires an administrator to provide information to Centrelink about CC's income and assets to apply for the pension, and a guardian to engage service providers to deliver the HCP4 once CC is eligible to receive it.
HH attempted to manage these issues from detention. He has communicated extensively with service providers, advocated for CC and engaged MN to assist as required. However, his best chance at freedom relied on being CC's formal decision-maker and he was unable to separate his personal interests from CC's best interests. This has delayed CC receiving the services she requires for two years and resulted in a hospital admission in December 2024. When the matter was heard in April 2025, CC was still not receiving services under the HCP4 and had not had the essential dental surgery identified in January 2025.
The orders will be reviewed in 2030. I explained at the hearing that if HH is released from detention, it is open to him to apply to the Tribunal for an early review of the orders.[32] However, the legislation mandates that having a conflict of interest with CC will preclude his appointment.[33]
[32] GA Act, s 86 and s 87.
[33] GA Act, s 44(1)(b).
Orders
The Tribunal makes the following orders:
1. The Tribunal declares that the represented person, [CC] 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.[VL] of [address] 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).
3. The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.
4. The enduring power of attorney:
(a)dated 10 January 2002 by which the represented person appointed [her husband] to be their attorney, is revoked; and
(b)dated 27 August 2014 by which the represented person appointed [HH] and [RR] to be their joint and several attorneys, is revoked.
5. The administrator is authorised to liaise with and make enquiry of and obtain information relevant to the represented person from and act in respect of the represented person's entitlements to funds from the [overseas pension].
6. Pursuant to section 117 of the Guardianship and Administration Act 1990 (WA) the administrator is authorised to be paid remuneration for the administration of the estate of the represented person at the rate of $99 per hour, up to a maximum of $4,000 per annum exclusive of GST.
7. The administration order is to be reviewed before 7 April 2030.
Guardianship
8. 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, 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 practice for the represented person proposed from time to time in compliance with Part4A of the Quality of Care Principles 2014 made pursuant to the Aged Care Act 1997 (Cth).
9. 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.
10. The enduring guardian appointed under an enduring power of guardianship dated 12 December 2024 is directed not to act pursuant to the power until further order of the Tribunal.
11. 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.
12. The guardianship order is to be reviewed before 7 April 2030.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
4 JULY 2025
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