CK - [2025] WASAT 27 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   CK [2025] WASAT 27
MEMBER:   MS R BUNNEY, MEMBER
HEARD:   29 OCTOBER AND 27 NOVEMBER 2024
DELIVERED          :   27 NOVEMBER 2024
PUBLISHED           :   2 APRIL 2025
FILE NO/S:   GAA 4322 of 2024
GAA 4324 of 2024
GAA 5713 of 2024
CK
Represented Person
HOSPITAL
Applicant

Catchwords:

Review of guardianship order - Application for administration orders - Advance health directive - Participation in medical research - Autism spectrum disorder - Not capable of consenting to medical research - Declaration advance health directive is invalid - Revocation of enduring power of attorney - Concerns about financial abuse - Concerns about coercive control - Appointment of Public Trustee as administrator - Reappointment of Public Advocate as guardian

Legislation:

Family Provision Act 1972 (WA), s 7
Guardianship and Administration Act 1990 (WA), s 3, s 65, s 110P, s 110R, s 110V, s 110W, s110ZD, Pt 9B, Pt 9E, Pt 5, Pt 5 Div 3
Guardianship and Administration Regulations 2005 (WA), Sch 2
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4)

Result:

Advance health directive declared invalid
Enduring power of attorney revoked
Public Trustee appointed as administrator
Public Advocate reappointed as guardian

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):

FY [2019] WASAT 118

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

CK is a 63-year-old man. His mother died suddenly in late 2022 and the police found him dehydrated and wandering the streets in early 2023. They took him to Hospital for treatment, where he was diagnosed with Autism Spectrum Disorder (ASD) at age 61. The Hospital made an application to the Tribunal and I appointed the Office of the Public Advocate (Public Advocate) as CK's guardian to make decisions about the services to which he would have access (2023 Orders).
In late 2023, CK signed a number of legal documents relating to the deceased estates of both of his parents, Mr K and Mrs K. He also signed a will, an enduring power of attorney that appointed his younger sister EK as his attorney (EPA) and an advance health directive which recorded CK's consent to participate in medical research (CK AHD).
CK was admitted to Hospital again in August 2024 following a significant decline in his mental health. He was hearing voices that told him to stop taking his medication, so he did. CK was diagnosed with schizophrenia. The Hospital learned that CK had given significant sums of money to EK to pay her mortgage and purchase diamonds, and allegations were made about financial and emotional abuse. The Hospital applied to the Tribunal to seek a review of the 2023 Orders and for an administrator to be appointed. The Tribunal appointed the Public Trustee as CK's emergency administrator to protect and secure his estate.
I discussed the CK…

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: CK [2025] WASAT 27
Case: [2025] WASAT 27
Decision Date: 2 APRIL 2025

CaseChat Overview and Summary

The case involved CK, who had been appointed as the guardian of EK, and EK, who was seeking to have the guardianship order reviewed. The dispute centered around CK's ability to make reasonable judgments regarding his finances and his eligibility to participate in medical research. EK raised concerns about potential financial abuse and coercive control, and sought the appointment of the Public Trustee as CK's administrator and the reappointment of the Public Advocate as his guardian.

The court had to determine whether CK was capable of making reasonable judgments about his finances and whether he was able to consent to participating in medical research. The court also had to consider the validity of CK's advance health directive and the revocation of his enduring power of attorney. The court examined evidence from occupational therapists, support workers, and CK's sister, EK, to assess CK's capacity to manage his finances and make informed decisions.

The court found that CK was not capable of making reasonable judgments about his finances, as evidenced by his ongoing reliance on EK to manage his bills and his lack of awareness of his financial position and future needs. The court also found that CK was not capable of consenting to participate in medical research due to his not being capable of making reasonable judgments. The court declared CK's advance health directive invalid and revoked his enduring power of attorney. The court appointed the Public Trustee as CK's administrator and reappointed the Public Advocate as his guardian.

The court ordered that CK should pay a contribution towards the costs associated with living in the Family Home, and that the Public Trustee should manage CK's financial affairs. The court also ordered that CK should not participate in medical research without the approval of the Public Advocate. The court's decision was based on the evidence presented and the need to protect CK's interests and ensure his well-being.

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

EK has not charged CK rent to live in the Family Home and feels she is entitled to do so.[25] At the very least, there may be some merit to CK paying more of the costs associated with the Family Home if he has the benefit of living there and the capacity to pay those costs. This is particularly so in circumstances where EK is struggling to pay her own mortgage and is unable to access the share of the Family Home she has inherited because CK lives there.CK's ability to make reasonable judgments about his finances[25] OPA Report. CK's inability to manage his finances may be caused by a number of factors. In early 2023, CK told occupational therapist Ms P that he had never been to a café or bought take away food. CK was observed to have difficulties with handling money at a cashier and would provide more money that was necessary, and then leave without receiving any change.[26][26] NDIS discharge assessment – Psychosocial participants prepared by occupational therapist Ms P dated 30 January 2023 (NDIS Discharge Assessment). While his low level of financial skills may have been attributable to inexperience at that time, he has now had over 18 months to learn how to manage his bills, but he is still reliant on EK to manage those ongoing payments. Ms P noted that CK's difficulties with managing his finances may be further complicated by CK's reported fears of finance technology, cashless systems, future financial problems and corruption. CK's support workers advised that he will avoid conflict by agreeing with other people and by doing what he is told. They have surmised that CK will put EK's needs before his own needs.[27] However, I find on the balance of probabilities that it is more likely that CK is not aware of his own financial needs. I am satisfied, and I find, that CK is:[28](a)unable to identify and calculate necessary expenditure for day to day living, together with expenditure for longer term financial objectives and discretionary items, devise a budget so as to be able to live within his means and organise his affairs so as to be able to meet debts as they fall due, evidenced by his ongoing reliance on EK to pay his bills;(b)unable to identify and assess the financial implications of particular items of expenditure or of financial decisions, demonstrated by providing large sums of money to EK with no expectation of repayment or certainty about what the funds were advanced for; and(c)unable to identify and implement problem solving strategies for resolving any unexpected financial issues due to his lack of awareness of his financial position and future needs.[27] Service provider report by support worker Mr D dated 26 August 2024.[28] These factors, among others, are set out in FY at [53] as examples of what a person must be able to do to make reasonable judgments in respect of their estate. I am satisfied, and I find, that the mental disability, being ASD, schizophrenia and a cognitive impairment, is the cause of CK's inability to make reasonable judgments in respect of his estate. While the diagnosis of schizophrenia and cognitive impairment are new, CK has been autistic his entire life and has always needed assistance to manage his financial matters, first from his parents and then from his sister.

Ratio Decidendi

Legal Principle Established

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