CK
[2025] WASAT 27
•2 APRIL 2025
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 AHD with CK at the hearing in October 2024. He told me that he did not want to participate in medical research where he would be given a placebo. He was dismayed to learn that this was what he had agreed to in the CK AHD. I accepted an oral application from CK to declare whether the CK AHD was valid or invalid.
At the final hearing in November 2024, I appointed the Public Trustee as CK's administrator and the Public Advocate as his guardian with additional functions. I revoked the EPA and declared the CK AHD invalid. These are my reasons for doing so.
Matters considered 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.
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 in respect of matters relating to their estate and their person. This is referred to as the 'presumption of capacity' and if set aside by clear evidence, the Tribunal can consider making guardianship and administration orders.
When deciding whether to appoint a guardian or an administrator, the Tribunal must address the following three stages of enquiry:
(a)the first stage is to determine whether the person lacks the capacity to make decisions about their personal and financial matters. If the person has capacity, the matter will be dismissed;
(b)if the person lacks capacity, the second stage is a consideration of whether the Tribunal needs to make an order, or whether there is another way for decisions to be made for the person that is less restrictive on their freedom of decision and action. If there is no need for an order, the matter will be dismissed; and
(c)if the Tribunal needs to make an order, the third stage involves the Tribunal determining who the guardian or administrator will be, the functions or powers they require that will be the least restrictive on the person, and how long the orders will run before they are reviewed.
The Tribunal will take all facts and circumstances into account when determining the best interests of the person concerned. 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 the best interests of the person concerned.[1]
[1] State Administrative Tribunal Act 2004 (WA), s 32(4) and s 32(2).
I have taken into account the oral evidence given at the hearings and the written evidence filed in these proceedings and need not set it out in detail. The relevant features are summarised in these reasons.
CK's views and wishes
The Tribunal must take CK's views and wishes into account, as expressed, or as gathered from his previous actions. CK's wish in November 2023, as set out in the EPA, was that EK would manage his finances if he was not able to.
However, it was clear that these proceedings had fractured the relationship between CK and EK. This is regrettable because they are the only family they have. EK and CK had not seen each other since the application had been filed, while historically, she would visit him regularly and he would stay with her on a Saturday night.
CK was very hesitant, and appeared very uncomfortable, when telling me who he wanted to make decisions for him. He needed his support worker Mr D to assist him. CK told me that he wanted the arrangements to stay the same, with the Public Advocate as his guardian and the Public Trustee as his administrator. I will give effect to CK's wishes.
CK also told me that he did not want to receive a placebo as part of any medical research and he wanted to receive medication that would improve his condition. CK confirmed that he wanted to be 'switched off' if medical treatment could not help. CK's delegated guardian from the Public Advocate confirmed that she knew of his wishes in relation to end of life care and she would take that into account if needed. I will give effect to CK's wishes in respect of a placebo and I will revoke the CK AHD as I am satisfied that he did not have the capacity to sign the CK AHD in November 2023, which is discussed later in these reasons.
Advance health directive (AHD) - Part 9B of the GA Act
An AHD allows a person to make future medical treatment decisions if they become seriously unwell and are unable to make decisions or communicate their wishes at that time.
A person who has reached 18 years of age and who has full legal capacity may make an AHD containing treatment decisions in respect of their future treatment.[2] Unlike jurisdictions such as Queensland or New South Wales, there is no definition of 'capacity' or 'full legal capacity' set out in the GA Act. The meaning of 'full legal capacity' in this context is described by the Western Australian Department of Health as follows:[3]
To make an Advance Health Directive, you must be 18 years or older and have full legal capacity at the time of making the Advance Health Directive.
This means you:
•understand any information or advice given to you to help make decisions in your Advance Health Directive
•understand the likely effect(s) of the decisions you make in your Advance Health Directive on your future treatment and care
•are able to weigh up the possible pros and cons of your decisions about your future treatment and care
•are able to communicate your decisions about your future treatment and health care in some way[.]
[2] GA Act, s 110P.
[3] A Guide to Making an Advance Health Directive in Western Australia, Government of Western Australia, Department of Health (Guide), page 6. The Guide is referred to in the prescribed form of an AHD in Schedule 2 of the Guardianship and Administration Regulations 2005 (GA Regulations).
Medical research – Part 9E of the GA Act
In April 2020, the GA Act was quickly amended to insert Part 9E in response to the COVID-19 pandemic. Part 9E provides for substitute decision-makers to give consent for medical research to be conducted on people who lack the capacity to consent. Parliament considered it necessary that vulnerable COVID-19 patients have access to new treatments that were being developed.[4]
[4] Parliament Western Australia, Parliamentary Debates, Legislative Assembly, 1 April 2020 (RH Cook, Minister for Health)
In August 2022, the prescribed form of an AHD was amended to include a new section to allow people to provide consent to participate in medical research if they lacked the capacity to consent at the time.
The Tribunal's jurisdiction under Part 9B
The Tribunal has jurisdiction to declare that an AHD is invalid if, at the time the AHD was made, the maker of the AHD did not understand the nature of the treatment decision or the consequences of making that treatment decision.[5] A 'treatment decision' includes a decision to consent or refuse consent to the commencement or continuation of the person's participation in medical research.[6]
[5] GA Act, s 110W. The Tribunal can also declare whether a treatment decision is valid or invalid. GA Act, s 110R.
[6] GA Act, s 3.
Anyone that has a proper interest in the matter can apply to the Tribunal to seek a declaration that an AHD is valid or invalid.[7] I was satisfied that CK had a proper interest in the matter so was entitled to make such an application.
[7] GA Act, s 110V.
Terms of the CK AHD
The CK AHD contains treatment decisions that relate to medical research and life-sustaining treatments, such as refusing consent to be resuscitated or put on life support. CK told me that 'if I'm in a bad state, I would want the best medical treatment or to be switched off if nothing is going to help'. This is consistent with CK's wishes as recorded in the CK AHD in relation to life-sustaining treatment.[8]
[8] ts 14, 29 October 2024.
In terms of medical research, if the research may improve his condition or illness, CK consented to take part in the following:[9]
[9] These examples of the different types of medical research are the same as those included in the prescribed form for an Advance Health Directive presently in force and set out in Sch 2 to the GA Regulations.
(a)The administration of pharmaceuticals or placebos (inactive drug);
(b)The use of equipment or a device;
(c)Providing health care that has not yet gained the support of a substantial number of practitioners in that field of health care;
(d)Providing health care to carry out a comparative assessment;
(e)Taking blood samples;
(f)Taking samples of tissue or fluid from the body, including the mouth, throat, nasal cavity, eyes or ears;
(g)Any non-intrusive examination of the mouth, throat, nasal cavity, eyes or ears;
(h)A non-intrusive examination of height, weight or vision;
(i)Observing an individual;
(j)Undertaking a survey, interview or focus group;
(k)Collecting, using or disclosing information, including personal information;
(l)Considering or evaluating samples or information taken under an activity listed above;
(m)Any other medical research not listed above.
Subparagraph (a) above clearly refers to a placebo, but (b) refers to the use of equipment or a device which may mean, for example, testing the efficiency of a new type of oxygen mask or pacemaker, which may or may not improve CK's condition. Subparagraph (c) refers to trying a new drug or type of equipment that has so far only been shown to work in a study with a small number of patients, which may also not improve his condition. Subparagraph (d) may, for example, relate to one group of patients receiving one treatment and a second group of patients receiving a different treatment, which also may not improve CK's condition.[10] The 'catch all' in subparagraph (m) means that CK may have consented to take part in a different type of medical research that he does not understand and may not improve his condition.
[10] The examples given in relation to subsections (a) - (d) are all taken from the Guide.
When I discussed the treatment decisions set out in the CK AHD, CK clearly understood what a placebo was, but he was clear that he wanted to receive medical treatment that would improve his condition, unless his condition was terminal and he had no chance of recovery. However, when I explained that in the CK AHD, he had consented to participate in medical research that included receiving a placebo, he told me that he did not want that.
I will next deal with the first stage of enquiry which is to examine whether CK has the capacity to make his own decisions, starting with financial decisions.
Stage 1 - does CK lack the capacity to make his own decisions about his personal and financial matters?
(1)(a) When can an administrator be appointed? The test for incapacity for financial decisions
To appoint an administrator for CK, I must be satisfied that he is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate.
(1)(b) Does CH have a mental disability?
The term 'mental disability' is defined in s 3 of the GA Act, and includes disabilities such as an intellectual disability, a psychiatric condition, dementia, and acquired brain injury.
CH received a diagnosis of ASD during his hospitalisation in early 2023. ASD is not included in the definition of mental disability. However, as stated by the Full Tribunal in the case of FY:[11]
The ordinary meaning of the term 'mental disability' in the GA Act thus contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal, or which is objectively measurable. A mental disability may manifest in a variety of ways, including as a disturbance or limitation in a person's thought processes or their cognitive ability, in their perceptions of reality, emotions or judgments, in disturbed behaviour or in learning difficulties.
[11] FY [2019] WASAT 118 (FY) at [27].
In August 2024, CK received a diagnosis of schizophrenia and a cognitive impairment in addition to ASD.[12] Dr A explained that in addition to psychotic symptoms where people lose touch with reality, schizophrenia can cause a cognitive impairment. Due to the fluctuating nature of schizophrenia, when people have relapses, sometimes they will not return to their previous level of functioning or cognition. In that sense, Dr A described that schizophrenia can be a progressive condition where people can lose cognitive functioning over time with recurrent relapses.[13]
[12] Medical report of Dr A dated 26 August 2024 (Dr A Report) and ts 10, 27 November 2024 per Dr A.
[13] ts 10, 27 November 2024 per Dr A.
Dr B, who was also a treating doctor during CK's Hospital admission in 2024, confirmed that CK underwent a longitudinal and thorough assessment during the 35-day admission. The medical team observed on multiple occasions that CK lacked the capacity to concentrate on his treatment and that his decision-making ability was impaired. Dr B found that it was difficult for CK to understand advice about his illness and welfare. Even when concepts were broken down and explained to CK in simple terms, he was not able to understand.[14]
[14] ts 12, 27 November 2024 per Dr B.
I am satisfied, and I find, that the diagnoses of ASD, schizophrenia and a cognitive impairment fall within the inclusive definition of 'mental disability' as defined in the GA Act and described in FY.
(1)(c) Does the mental disability cause CK to be unable to make reasonable judgments about his estate?
For the Tribunal to decide whether CK is 'unable' to make reasonable judgments about his estate, I must consider CK's estate and circumstances, and then compare that against the extent to which CK is able to engage in the cognitive process required to make a 'reasonable judgment'.
CK's estate
A person's 'estate' includes their real and personal property, all assets and liabilities, and all their financial affairs. CK's estate is complex due to the legal matters involved with finalising each of his parents' estates, as they each died without a valid will. Mrs K was granted letters of administration for Mr K's estate following his death in 2014 but it was only partially administered. In addition, the Public Trustee has recommended that CK's administrator consider a claim against either or both of his parents' estates under the Family Provision Act 1972 (WA) (Family Provision Act) notwithstanding the limitation period has passed.[15]
[15] Family Provision Act 1972 (WA), s 7. The Public Trustee was appointed as emergency administrator pursuant to GA Act, s 65.
CK has around $190,000 held by the Public Trustee, which is believed to be funds from Mrs K's estate. He an interest in jewellery owned by Mrs K, worth approximately $24,000.
CK's income is the disability support pension (DSP). In December 2023, CK received backpay of DSP of $14,000. He used some of these funds to purchase diamonds as an investment and a sapphire as a gift for EK.[16] The diamonds have an estimated value of $8,000 and were in EK's solicitor's possession at the time of the hearing.[17]
[16] ts 17, 27 November 2024.
[17] ts 18 - 19, 27 November 2024.
EK arranged for her solicitor to prepare the documents relating to the estates of Mr K and Mrs K. These documents were signed by CK and EK as joint administrators as EK wanted CK to be involved in all steps. Letters of administration were granted for Mrs K's and Mr K's estates in June and August 2023 respectively. The cash in Mrs K's estate was divided equally between CK and EK, but the Family Home is still currently held in the name of Mrs K as administrator for Mr K's estate.
CK's expenses
There was a significant period from Mrs K's death in November 2022 until CK received his DSP backpay and funds became available from Mrs K's estate in late 2023. During this time, EK was solely responsible for financially supporting CK and maintaining the Family Home.
CK's bank statements show EFTPOS transactions at supermarkets, Bunnings, Big W and Australia Post, which indicates that CK, or someone on his behalf, is able to use his debt card.[18] However, CK continues to rely on EK to pay his bills. CK is unable to recall or report on bills paid, upcoming bills and the due date, or how much money he would need to budget for these expenses.[19]
[18] Letter from Mr C, solicitor for the Public Trustee, dated 25 October 2024 and filed on matter GAA/3424/2024.
[19] Dr A Report.
CK's support workers advise that he is incredibly frugal when it comes to his own expenditure. To save on electricity he won't turn on the lights or heating and will have cold showers. He goes to a local church three nights a week for a free evening meal and picks up free bread that he freezes for later use, indicating that left to his own devices, CK would likely spend very little.[20]
[20] Report prepared by Ms J, the representative of the Public Advocate dated 23 October 2024 (OPA Report).
That said, CK does have an affinity for rocks and the symptoms of his psychiatric illness involve collecting rocks and attempting to convert their energy into precious metals like gold and platinum.[21] EK explained that when they attended a jeweller to have Mrs K's jewellery valued, CK saw the diamonds and wanted to purchase them for an investment, which is consistent with the numerous reports of CK's fascination with precious rocks.
Concerns about funds given to EK
[21] Incident report dated 14 August 2024. A bundle of incident reports was attached to the Service Provider Report dated 22 August 2024 prepared by social worker Ms M.
When EK would ask CK for money, she would call him in the evening after his supports had left for the day.[22] Usually, CK would go to the bank the following day with a support worker to collect the money and then deliver it to EK's home. CK's bank statements set out multiple cash withdrawals from CK's account in the five months from March to August 2024 totalling $16,260. There were six withdrawals of sums greater than $1,700, with the largest single withdrawal being $3,600.
[22] Incident report dated 3 August 2024.
The consistent comments in the incident reports prepared by the support workers are that CK does not feel pressured to give EK money, he wants to help EK to pay her mortgage and he does not know if the funds will be repaid.[23] EK explained that CK was happy to give her money to help with her mortgage, and did not want to be paid back, because she paid the bills on the Family Home following Mrs K's passing and she did not ask him to pay those funds back.
[23] Incident reports dated 8 March, 12 July and 5 August 2024.
EK estimated that CK had given her around $10,000 to pay her mortgage and that other funds he had given her related to paying contractors that had performed work on the Family Home. EK continues to pay the gardener and the electricity bill for the Family Home with her own funds, in addition to half of the council and water rates. EK also paid for new security screens, security cameras and a new gate for the Family Home. She paid for skip bins and the Family Home to be cleaned following Mrs K's passing to protect CK's health and safety, as Mrs K had an issue with hoarding.[24]
[24] ts 37 and 38, 27 November 2024.
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.
(1)(d) Conclusion on capacity to make financial decisions
Having regard to the evidence provided to the Tribunal, I am satisfied on the balance of probabilities, and I find, that the presumption of capacity has been set aside in respect of CK's ability to make reasonable judgments in respect of his estate. CK is therefore a person for whom I can appoint an administrator.
I will now turn to examine the evidence in relation to CK's capacity to make decisions about, and manage, his personal matters.
(1)(e) When can a guardian be appointed? The test for incapacity
To appoint a guardian for CK, I must be satisfied that he is over 18 years of age and that one or more of the following criteria apply:
(a)he is incapable of looking after his own health and safety;
(b)he is unable to make reasonable judgments in respect of matters relating to his person; or
(c)he is in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
(1)(f) Is CK incapable of looking after his own health and safety?
When CK was in Hospital in early 2023, the social worker's view was that CK had a poor understanding of his health and lifestyle as his insight and judgment are compromised due to ASD.[29] He would not initiate appointments with his general practitioner to obtain new prescriptions when medications run out.[30]
[29] Service provider report prepared by social worker Ms S dated 7 February 2023 and filed on matter GAA/445/2023.
[30] NDIS Discharge Assessment.
EK recalled that CK broke a tooth and did not go to see a dentist until around a year later. It was only when his tooth was swollen, painful, infected and he could not chew anymore that he sought appropriate dental treatment.
I am satisfied, and I find, that CK is incapable of looking after his own health and safety.
(1)(g) Does CK lack the capacity to make reasonable judgments about his personal matters?
Dr A's opinion is that CK does not have the capacity to make medical treatment decisions as his understanding of his illness and need for treatment is impaired in the context of autism, psychotic illness and cognitive impairment.
Dr A believes that CK does not have the capacity to make decisions about accommodation and he is vulnerable to exploitation. EK admitted that she would like to sell the Family Home as it is a 'money pit' but because CK does not want to sell the Home, she is not able to. If the Family Home was no longer suitable for CK's needs, he would be unable to source alternate accommodation, and he may need more supported accommodation in the future.[31]
[31] Service Provider Report dated 22 August 2024 prepared by social worker Ms M.
CK does not have the capacity to make decisions about services as he finds it difficult to identify his needs and seek assistance.[32]
[32] Dr A Report.
I am satisfied, and I find, that CH is unable to make reasonable judgments in respect of matters relating to his person and he did not have full legal capacity at the time he signed the CK AHD in November 2023. This is the basis upon which I will declare the CK AHD invalid as there is clear evidence that CK did not understand the medical research that he consented to participate in. CK could articulate before the Tribunal what a placebo was, and that he did not want to take part in any medical research that would not improve his condition. However, he consented to participating in many different types of medical research that may or may not have improved his condition, and he explicitly consented to receiving a placebo.
While CK can express his views and wishes about future medical treatment and end-of-life care decisions, that is different to being able to make a well-reasoned decision by taking into account the risks and benefits of different medical treatment options or medical research, making a reasonable decision and then implementing that decision. The numerous examples set out in these reasons of CK being unable to look after his health and safety and make reasonable judgments in respect of his personal matters satisfies me that he lacked the capacity to consent to future medical treatment decisions and to participate in medical research when he signed the CK AHD in November 2023.
(1)(h) Is CK in need of oversight, care or control in the interests of his own health and safety?
CK currently receives eight hours of support per day to be able to live safely in the community. CK will accept services but he will become forgetful and complacent in relation to ongoing treatments, such as medication compliance. In mid-2024, CK stopped taking his antipsychotic medication because the voices he was hearing told him to stop. His mental health declined in July and on 18 August 2024, his support workers took him to Hospital where he was made an involuntary patient at the Hospital Mental Health Unit.
I am satisfied, and I find, that CK is in need of oversight, care and control in the interests of his health and safety.
(1)(i) Conclusion on capacity to make personal decisions
I am satisfied, and I find on the balance of probabilities, that the presumption of capacity has been set aside in relation to personal decisions and CK is a person for whom I can appoint a guardian.
Stage 2 - is there a need for orders or a less restrictive option available?
Having regard to that evidence, there is no doubt that CK requires assistance to deal with his estate and to make decisions about his personal matters. The question I need to answer at this stage is not whether he needs assistance, but whether he needs an administrator or guardian to be appointed for that purpose.
I must bear in mind the need to adopt a less restrictive option if possible.
Are informal arrangements sufficient?
CK is socially isolated and EK is the only member of his family that would be able to support him informally. When CK left Hospital in early 2023, EK assisted him with banking, setting up direct debits and applying for the DSP.
In addition to the concerns about the money CK had given to EK, CK's service providers have raised concerns about EK's behaviours when interacting with CK and his supports.
Personal decisions – is an NDIS nominee an option?
CK's support coordinator RR described a meeting with CK and EK in April 2024 to discuss ways in which CK could form social connections in his community. The support coordinator described EK's behaviour at the meeting as follows:[33]
[EK] aggressively interjected denying [CK] the freedom to participate in the conversation, insisting he doesn't need these supports. [EK's] aggression towards [RR] was explosive in intensity with verbal abuse (shouting, insults, and unkind remarks directed at [RR]), and intimidation with confrontational body language (sweeping arm motions, extended states, posture leaning towards [RR]).
…[EK] then forcefully slams [sic] her open right hand down on [RR's] open notepad, continuing her deliberate verbal abuse towards me.
… [RR] has concerns that [CK] may be a victim of ongoing coercive, and economic control by his sister [EK], isolating [CK] from participating in his community, thus restricting [CK] the right to express choice and control, and to make decisions towards building his own capacity to build informal supportive connections.
[33] Bundle of Incident Reports filed with the Application, page 8.
I found EK to be honest and genuine when giving her evidence. EK explained, through her solicitor, that it was upsetting for her to hear how others had interpreted her interactions with her brother. EK explained that it was usual in their family to raise their voices at each other.[34] She admitted to wanting to sell the Family Home and to raising her voice at support workers. She was open about her view that CK was never viewed by the family as someone with a disability. She disclosed that she lives with epilepsy and her sincere opinion was that CK was no more disabled than she was. She gave evidence that he could manage his own finances, but he is 'lazy'[35] and before their father died in 2014, CK 'was fine'.[36] While I do not accept that this is an accurate characterisation of CK's abilities, I do accept that this is EK's genuinely held belief.
[34] ts 40, 27 November 2024.
[35] ts 15, 27 November 2024.
[36] ts 14, 27 November 2024.
There is a 14-year age difference between CK and EK, so EK would have likely always seen her older brother as an adult who does not work and never moved out of home because he is 'lazy' rather than recognising that he is neurodivergent and needs significant support with his activities of daily living. When this support was provided by his mother and father, perhaps to EK he did seem 'fine' because this was how CK had always been and how the family had always operated. It is possible that EK grew up to view the level of support her parents provided CK as 'normal' and optional rather that a family unit necessarily compensating for CK's deficits.
Lack of insight into CK's diagnosis
EK does not agree that CK needs support workers. She told me about her frustration with the support workers, particularly when CK first started receiving assistance. EK recalled that:
I would go [to the Family Home] around 4 o'clock sometimes unannounced, and he hadn't had anything to eat. And yes. I would have raised my voice at the support workers because I was angry because he hadn't had anything to eat, and they would say to me, "We can't force him to eat something," and I said, "What? You can't put a sandwich together for him?"
This is consistent with EK's description about how the family would communicate with each other by raising their voices.
In addition to not being able to manage his nutrition, CK requires significant support in all of his activities of daily living. By way of example and with no disrespect meant to CK, he has limited awareness of how he presents to others. Prior to his admission to Hospital in early 2023, CK was observed to go without washing his hair until it would become matted, he would shower infrequently and would change his clothes approximately once per month.[37]
[37] NDIS Discharge Assessment.
CK was discharged from Hospital in March 2023 into the care of EK while his NDIS services were being arranged. EK left her employment to care for him due to the level of support that he needed. EK became fatigued with caring for CK after around two months, so CK was admitted to a mental health transitional care unit (Care Unit) in May 2023 with a view to building his functional capacity. Apart from eight days spent at the Hospital B Mental Health Unit in August, CK was a resident at the Care Unit from May to October 2023. He then returned to live in the Family Home with around 8 hours per day of support provided by his NDIS plan.
This chronology of CK's care arrangements is not consistent with EK's claim that CK does not need support workers. It is also inconsistent with EK's assertion that CK was Mrs K's carer.[38] I am satisfied on the balance of probabilities, based on CK's identified functional deficits, that Mrs K was CK's carer and provided the support to him that is now provided by NDIS-funded supports.
[38] ts 14, 27 November 2024.
When viewed in the context of a family where CK was undiagnosed autistic and supported by his mother into his 60s, it is not surprising that EK does not have a full understanding of what a diagnosis of autism spectrum disorder means for CK. While CK's manner of speech and eye contact may be atypical, he does not immediately present as a disabled person. He is friendly and engaging, but he is clearly naïve and vulnerable and there are significant limits on what he can do for himself.
While CK's support coordinator has labelled EK's behaviour as being coercive and controlling, I do not accept this as deliberate behaviour on EK's part designed to control and isolate CK. There is clear evidence before the Tribunal of EK's concern about CK's health and welfare and her desire to include him in all important matters. She understands that she cannot sell the Family Home, even if she wants to, because that is where CK has lived since he was 7 years old, and she supports his wish to continue to live there.
Noting that it is normal in the K family to raise their voices as each other, I accept the evidence that the relationship between CK and EK is close and caring, in their own way, with CK having difficulty with social interactions, even with people he is close to. There is also a significant age gap, with EK being 49 and CK being 63. EK's documented behaviour towards CK's supports and her difficulties with working constructively with them may be impacted by:
(a)her grief at losing her mother, which precipitated the decline in CK's health and caused her to become responsible for him;
(b)the perceived interference with her family by, and numerous interactions with, government and support agencies, magnified by the institution of these proceedings and the allegations that she has financially and emotionally abused her brother, which I do not accept and discuss later in these reasons;
(c)her frustration with support services when her firm view is that CK does not need them, noting that she is unable to reconcile that view with her own experience of the level of support CK requires;
(d)her genuine concern and fears about her brother's health and medical conditions; and
(e)being the only family member left that is responsible for him, who has known him the longest, and feeling like the supports around him view her unfavourably.
I accept that EK's intention has always been to act protectively towards CK and she has done her best. While I am satisfied that CK has the capacity to decide who he would want to be a nominee on his NDIS plan, I am not satisfied that EK would be able to manage his NDIS plan and engage support workers due to her limited insight into CK's deficits and his need for significant practical support.
Personal decisions - medical treatment - is s110ZD GA Act an option?
Section 110ZD of the GA Act sets out the hierarchy of decisionmakers that can make medical treatment decisions on behalf of others. As EK is CK's sibling, she is able to make medical treatment decisions for him.
EK gave evidence that if she was able to make medical decisions, she would ensure that CK was receiving ongoing treatment.[39] EK explained her concerns about the diagnoses made by the doctors at the Hospital after only having known CK for a short time. EK told CK that he should not just accept what the doctors have told him, and that he should see a specialist. However, EK did not have a clear understanding of which medical specialists CK should be seeing and suggested that he should see a neurologist rather than a psychiatrist.[40]
[39] ts 26, 27 November 2024.
[40] Although I note that the OPA Report mentioned that CK was diagnosed with ASD by a neurologist, which may have been a typographical error.
EK gave evidence that she instructed CK to go to his general practitioner and get a referral but as he will not do that, she cannot proceed.[41] This is evidence that CK will not seek out medical treatment on his own and needs assistance, but EK does not have insight into the difficulties that are caused by CK's disability and expects that he should be able to do this himself. I am satisfied that it is not in CK's best interests that his medical treatment be managed informally by EK under s 110ZD.
Is the CK AHD a less restrictive option?
[41] ts 27, 27 November 2024.
While CK has clear views about wanting to receive medical treatment that will improve his condition, and he is clearly able to articulate his wishes, I am not satisfied that the CK AHD is a less restrictive option for medical treatment decisions to be made for CK due to the evidence that he signed the document when there are a number of matters that he did not understand or agree with. I am satisfied that the CK AHD is not a less restrictive way of medical decisions to be made for CK and I will declare that it is invalid.
Conclusion in relation to the need for a guardian
I am therefore satisfied on the evidence before me that there are no less restrictive means available for personal decisions to be made in CK's best interests. The Tribunal needs to appoint a guardian.
Financial decisions - is the EPA a less restrictive option?
If I was satisfied that CK had the capacity to sign the EPA in November 2023, the EPA may be a less restrictive way for his finances to be managed. This is because he chose who he wanted to be his attorney, rather than having an administrator imposed on him by order of the Tribunal.
EK states that she has not used the EPA to manage CK's finances and he has made his own decisions about how to use his funds. CK has a strong sense of 'fairness' and is likely repaying EK for the significant personal funds she has expended to support him and maintain the Family Home. However, CK is vulnerable, does not understand his finances and requires oversight of the expenses he should be responsible for.
As mentioned earlier, someone acting independently in CK's best interests may decide that it is appropriate that CK be responsible for, by way of example, the entire electricity bill, cost of gardening, all utilities and the payment of council and water rates for the home he lives in. EK is currently contributing to these expenses at her financial detriment, to the point where she cannot pay her mortgage and then resorts to asking CK for funds.
There does not appear to be a distinction between 'CK's money' and 'EK's money' particularly where the bulk of CK's money was inherited from Mrs K. EK explained that the funds she received from her mother's estate were used to pay down her mortgage. While EK has selflessly used her personal funds to support CK, this seems to have blurred the lines between their individual interests, with funds being treated as 'family money' to be used for the support of all family members and costs relating to the Family Home. If CK had the capacity to manage his own estate, this arrangement would be acceptable, but because he lacks capacity, there must be independent oversight to protect his interests and to ensure that he is paying the expenses he should be responsible for. I am satisfied that the EPA is not an appropriate less restrictive option for CK's finances to be managed due to the need for independence.
In addition, CK needs his substitute decision-maker to consider whether a Family Provision Act application should be made, and EK is unable to do that as she is the only other beneficiary of Mr K's and Mrs K's estates.
Dr A's evidence given in August 2024 was that CK did not have the capacity to sign an EPA or EPG. She said she was unsure about whether he had the capacity to sign an AHD. I accept Dr A's evidence and I am satisfied that CK does not have the cognitive capacity to sign an enduring power of attorney. It therefore follows that he does not have the capacity required to revoke the EPA. I will therefore revoke the EPA as it cannot stand as a less restrictive option.
Conclusion in relation to the need for an administrator
I am satisfied that there no less restrictive way for financial decisions to be made in CK's best interests. The Tribunal needs to appoint an administrator.
As I am satisfied that CK needs both a guardian and an administrator, I will now turn to the third stage of enquiry.
Stage 3 – who, what and how long?
(3)(a) Who should be CK's administrator?
CK indicated that he was happy for the Public Trustee to be his administrator. There were no nominations for appointment. I am satisfied, and I find, that the only option open to the Tribunal is to appoint the Public Trustee as CK's administrator.
(3)(b) What should the administrator's powers be?
I am satisfied that the administration order should be a plenary order, which will allow the administrator to deal with all aspects of CK's estate. Dr A's evidence is that CK is unable to make decisions about simple or complex financial matters and is unable to pay his bills. The evidence demonstrates that CK will give his money away when asked with no agreement for repayment.
I will also include a direction to the Public Trustee, as his suggestion, to consider whether a Family Provision Act claim should be made.
(3)(c) Who should be CK's guardian?
CK indicated that he was happy for the Public Advocate to continue to be his guardian. EK did not propose herself for nomination on the basis that she wanted CK to decide who he wanted to be his guardian. The Tribunal can appoint the Public Advocate as guardian if there is no one willing or suitable to act. I am satisfied, and I find, that the only option open to the Tribunal is to reappoint the Public Advocate as CK's guardian.
(3)(d) What functions should the guardian have?
Medical treatment
I find that CK needs a medical treatment guardian to give informed consent to medical treatment and procedures. CK needs to see a dentist as he has ongoing pain in his teeth, so he will benefit from support in relation to decision-making around medical treatment.
Accommodation
Ms J noted that CK has done very well in a supported environment, such as Hospital or the Care Unit, where he has access to company and feels safe. A different living situation where he receives 24/7 care and support may help him overcome his loneliness and anxiety.
Services
I find that CK requires a guardian to make decisions and give consent in relation to his NDIS plan. There was a clear need for this function when the 2023 Orders were made. CK now receives eight hours per day of supports so the ongoing management of his services is vital for his wellbeing.
Conclusion in relation to functions
I am therefore satisfied, and I find, that the guardian appointed by the Tribunal needs to make decisions for CK about his medical treatment, accommodation and services.
(3)(e) How long should the orders run before review?
When making orders, the Tribunal is required to fix a period for the review of the order, the maximum period allowed being 5 years. The medical evidence is clear that the diagnosis of ASD is static and the diagnosis of schizophrenia can cause a progressive cognitive impairment over time.
I am satisfied that CK's need for a substitute decision-maker will be lifelong. I will make the orders reviewable in the maximum period possible, which is within 5 years.
Orders
GAA 4322 of 2024
The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, [CK] is:
(a)incapable of looking after his own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to his person;
(c)in need of oversight, care or control in the interests of his own health and safety; and
(d)in need of a guardian.
Guardianship
The guardianship order dated 15 February 2023 is revoked and substituted with an order in the following terms.
2.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); and
(d)to determine the services to which the represented person should have access.
3.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.
4.The guardianship order is to be reviewed before 27 November 2029.
GAA 4324 of 2024
The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, [CK] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b)in need of an administrator of his estate.
Administration
2.The order made on 22 August 2024 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
3.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
4.The enduring power of attorney dated 27 November 2023 by which the represented person appointed [EK] to be their attorney, is revoked.
5.The Public Trustee is directed to consider whether a Family Provision Act claim should be made in respect of the represented person.
6.The Tribunal is to provide copies of all documents to the Public Trustee.
7.The administration order is to be reviewed before 27 November 2029.
GAA 5713 of 2024
On an application by [CK] pursuant to s 110W of the Guardianship and Administration Act 1990 (WA) concerning an advance health directive dated 27 November 2023 by which [CK] made treatment decisions in respect of his future treatment.
The Tribunal orders:
1.The advance health directive is invalid.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
2 APRIL 2025
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