D
[2025] WASAT 129
•17 NOVEMBER 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: D [2025] WASAT 129
MEMBER: DR E MARILLIER, SENIOR MEMBER
HEARD: 7 AND 23 OCTOBER 2025
DELIVERED : 13 NOVEMBER 2025
PUBLISHED : 17 NOVEMBER 2025
FILE NO/S: GAA 4281 of 2025
GAA 4381 of 2025
GAA 5614 of 2025
D
Represented Person
KGD
First Applicant
G2S
Second Applicant
Catchwords:
Guardianship and Administration - Enduring powers as a less restrictive alternative - Allegations of abuse in context of impaired memory - Importance of views and wishes of proposed represented person in determining suitability for appointment
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 40, s 43(1)(b), s 43(1)(c), s 44, s 44(5), s 51, s 64(1)(a), s 64(1)(b), s 65, s 68, s 68(5), s 70, s 109(1)(c), s 110N, Div 3, Pt 5
Result:
Public Trustee appointed plenary administrator
Joint private limited guardians appointed
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
| First Applicant | : | In Person |
| Second Applicant | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons were delivered orally on 13 November 2025. They have been anonymised and citations have been added for the purpose of publication as written reasons, as parties were unable to attend.)
These are my reasons for decision in matters GAA 4281 of 2025, GAA 4381 of 2025 and GAA 5614 of 2025. These are applications under the Guardianship and Administration Act 1990 (GA Act).
They are applications under s 109(1)(c) for the revocation of an enduring power of attorney (EPA), s 40 for the appointment of an administrator and guardian, and s 110N for the revocation of an enduring power of guardianship (EPG) for D.
I conducted hearings on 7 October 2025 and 23 October. On 23 October I made orders appointing RS and KS (two of D's sons) as her joint limited guardians for accommodation, treatment, support services and contact decisions. I revoked the enduring power of attorney of 3 May 2013 by which D had appointed her daughter RD as attorney, and the enduring power of guardianship of 6 March 2022 which appointed RD as enduring guardian. I advised parties I would deliver my reasons later, given the lengthy hearing process, the volume of evidence and submissions, and the toll on D. These are those reasons.
Background
D is in her 80s, a retired family day care educator and the mother of six children: KS, CS, RD, RS, G1S and G2S. Four of D's siblings also participated in the hearings, as well as children-in-law and grandchildren.
In the last few years D has spent the majority of her time with RD (RD reports this is since 1999), but also fairly often spent up to a few weeks at a time staying at a remote site with G2S, both to give RD a break and because she enjoyed spending time out bush.
Over the last 3 - 4 years, all family members have noted some degree of memory deterioration in D, and largely they agree it has been much worse in the last 12 months.
The applications were made by G2S and his niece KGD (G1S's daughter) after D told G2S that RD had forced her to take medication against her will, and that she was unwilling to return to RD's care. The application also alleged that large sums of money had been transferred from D's account to RD and others. D had not been returned to RD's care and is currently staying with G1S and his family.
Due to the serious concerns raised, the Tribunal made an emergency administration order appointing the Public Trustee under s 65 of the Act and suspending the operation of the EPA. The Public Advocate was requested to conduct an investigation.
Evidence
I have considered the written submissions and reports of:
•The applicants;
•RD (including CCTV footage of an altercation where she was left unconscious);
•Dr M (geriatrician);
•Discharge summaries from a regional Hospital (Hospital A);
•The Public Advocate; and
•The Public Trustee.
I have also heard the evidence given at both hearings by:
•The 20 members of D's family who participated;
•D herself;
•The Senior Investigator Advocate from the Public Advocate; and
•RD's friend CF.
Principles to be observed
In making my decision, I am mindful of the principles set out in s 4 GA Act:
•My primary concern is the best interests of D;
•D is presumed to be capable of looking after their own health and safety; of making reasonable judgments in matters relating to their person; of managing their own affairs; and of making reasonable judgments in respect of matters relating to their estate until the contrary is proved to the satisfaction of the Tribunal;
•A guardianship or administration order may not be made where there is an alternative means of meeting D's needs that is less restrictive of their freedom of decision and action;
•Where an order is made, it must be in terms that impose the least restrictions on the D's freedom of decision and action; and
•I must seek to ascertain, as far as possible, the views and wishes of D.
What the Tribunal must be satisfied of
Before appointing an administrator, I must first be satisfied that D is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate.[1]
[1] GA Act, s 64(1)(a).
I must also be satisfied that D is in need of an administrator.[2]
[2] GA Act, s 64(1)(b).
Before appointing a guardian, I must be satisfied that D is:[3]
(ii)incapable of looking after their own health and safety; or
(iii)unable to make reasonable judgments in respect of matters relating to their person; or
(iii)in need of oversight, care or control in the interests of their own health and safety or for the protection of others.
[3] GA Act, s 43(1)(b).
In addition, I must be satisfied that D is in need of a guardian.[4]
[4] GA Act, s 43(1)(c).
Mental Disability
In this case the evidence regarding D's condition is consistent and there is no dispute in relation to this issue. I am satisfied and I find that:
D has Alzheimer's dementia formally diagnosed by Dr M. This is consistent with the description by family members that they have noticed D's memory declining in the last few years, and especially the last 12 months. D herself told the Investigator 'I am not as sharp as I was'.
Dr M's letter of 30 September 2025 to D's GP states the diagnosis is based on the history of memory loss, a score of 11/30 on Mini Mental State Examination (MMSE) and changes consistent with Alzheimer's disease on FDG PET brain scan.
I find that D has dementia because of the evidence of Dr M's letter and the oral evidence from family and this comes within the meaning of a 'mental disability' as defined in s 3 of the GA Act.
Capacity
I have considered the issue of capacity, starting from the presumption that every person has the ability to make reasonable judgments in relation to their finances and person and then considering whether the evidence before me is sufficient to rebut that presumption and positively establish that D is unable to make such reasonable decisions.
Personal decisions
D has expressed concerns that she is being given medication that she does not want or understand the need for by RD. D has told multiple members of the family including G2S, KGD and G1S, and the Public Advocate investigator that this has happened. To the Advocate, D said 'She would make me take medicine that I didn't want to take. 3 times per day. I would say why am I having them? She would just say don't worry, they are good for you'. D then gestured with her hand to her mouth 'tablets. I told her I don't want them' then gesturing with a grabbing action to her arm said 'rough. Made me do it'. D repeated this a few times to the investigator in similar terms.
RD says she has only ever given her mother medication prescribed by a doctor. RD says this has been for urinary tract infections and an anti‑emetic when D was discharged from regional hospital B in November 2024. RD absolutely rejects any suggestion she has been rough to D or forced her to take any medication. She stated in her written submissions and oral evidence that during the hospital B admission D had bitten the finger of a nurse who was attempting to insert a nasogastric tube. The Tribunal did not have documents from that admission before it, however, the Hospital A discharge summary from August 2024 gives a diagnosis of a urinary tract infection (cystitis) with sudden onset vomiting, and a past history of multiple abdominal surgeries including for bowel cancer in 2017. On the August 2024 admission, D was discharged on the antibiotic cephalexin and an acid-suppressing medication.
KGD filed photos said to be medication given by RD to G2S when D went to stay with him - they included cephalexin, anti‑emetic and anti‑diarrhoeal tablets, an antihistamine, paracetamol and Mylanta (antacid). This is not inconsistent with what RD described and the types of medication documented from the hospital, other than the anti‑diarrhoeal medication.
G2S and KGD have alleged D was made to wear incontinence pads (which G2S described as adult nappies) by RD, and that D had been told to go in the nappy when she had asked to stop to use a toilet on a car ride. KGD filed photos said to be soiled adult diapers from the May 2025 handover from RD to G2S. G2S gave oral evidence that when D came to stay with him in May, she had a single vomit and one episode of incontinence just after she arrived, and then did not have any need for incontinence aids. RD says D uses incontinence pads in case of accidents, not nappies.
D told the OPA investigator that she does not want to live with RD. She indicated she would like to stay where she currently is (with G1S and his wife JGW) for a while, and then hopefully go home. When asked what she meant by home she indicated regional town A (where there is a house registered in her name). When the investigator asked if that house was where she meant, D said 'Yes, as long as RD is not there. I don't want to live with her anymore'. When asked about RD's friend CF who currently lives there, D said 'No. I don't want him there either'.
D believed she would be able to manage in that property because she has 'a lot of family' to help her. D was unable to recall the names of G1S and KGD when trying to indicate to the investigator who she would want to help make decisions and manage her affairs, although she could remember relationships calling them 'my son and granddaughter'.
I am satisfied that D's memory loss as shown by the MMSE score of 11/30 is contributing to difficulties for her in recalling what medication she has been prescribed and the indication for it. I do not need to make a finding about whether or not D is accurately recalling being forced to take medication by RD or whether that is a misremembering caused by dementia of the incident reported by RD of D biting a nurse's finger during the attempted insertion of a nasogastric tube (which is plausible). It is clear that D's current wishes include significant changes to where she lives, and with whom. Her memory loss impacts her recall of the names of close family members. Dr M's letter indicates that D needs prompting to complete activities of daily living, as well as some support.
These challenges with remembering medical advice, and the need to be prompted to complete daily tasks satisfy me, and I find, that as a consequence of her dementia, D is no longer able to take care of her own health and safety, or to make reasonable decisions in relation to her person, and she is in need of oversight, care or control in the interests of her own health and safety.
Finances
The application was made in circumstances where D had alleged RD was taking control and possession of her money.
Bank statements seen by the Public Advocate and Public Trustee showed transfers of $10,000 on 10 January 2025 to RD, and $5,000 to JCF (the young man raised by RD and CF) on 11 February 2025. RD told the Public Advocate that she believed these sums were less than costs she had met for her mother. RD told me she and D had intermingled their funds for many years.
There are complex claims regarding property transactions over several years relating to the town A property with RD indicating she believes she has an interest which is not reflected on the title.
The Public Trustee as emergency administrator discovered that D had multiple bank accounts, and at times this year one has been held in joint names with RD, and one in joint names with KGD.
D said at the first hearing 'She's gone and got everything else - for a long time she done my money - took it all off and then she's just took away everything else'. When I asked who she was talking about, D said 'RD'.
I am satisfied that with her significant memory loss on formal testing, D is unable to advocate for herself in resolving the financial situation and the competing claims. There is clear evidence that at least the two transactions set out above occurred, and that D does not currently believe that was with her consent.
I am satisfied, and I find that by reason of her dementia D is no longer able to make reasonable judgments in relation to her estate, and is vulnerable to exploitation.
In this case I find the presumption of capacity is rebutted by the evidence. I am satisfied and I find D is unable to make reasonable decisions in relation to all of her estate and in relation to her person and is therefore a person for whom I can appoint an administrator and a guardian.
Need
Is there a less restrictive means of meeting D's needs?
There is evidence from the reports of the Public Advocate and Public Trustee, D herself and the family that D is in need of someone to (at least):
•operate bank accounts and pay bills;
•consider the competing claims in relation to her property;
•make appointments with health professionals and attend them with D to ensure exchange of information is accurate and advice is remembered and acted upon;
•make decisions about accommodation and support services; and
•make decisions regarding contact with others for reasons to be set out below.
I have considered whether there is any less restrictive means of meeting D's needs than the appointment of a guardian and administrator, because of the existence of the EPA and EPG appointing RD.
D has made serious allegations against RD to multiple family members including G2S, KGD, and G1S and to the Public Advocate investigator. She has indicated that she no longer wants to live with RD.
RD denies the allegations, and multiple family members have said they find them very hard to believe as they have always felt RD took good care of D. These family members appreciated RD ensuring D could see them even though they live considerable distances from one another (including D's siblings RHS, TB, and LS, and niece KN). RD still wishes to be involved in making personal decisions for D but indicated at the first hearing that she felt this could potentially be through a joint guardianship appointment with some of her brothers.
RD admits to intermingling funds with D and transferring sums to herself and to JCF this year from D's account. She claims an interest in a property which is in D's sole name based on complex and apparently undocumented transactions involving third parties including CF who lives in that property rent-free.
It is not my role to make findings of fact in relation to whether or not RD has been abusive to D, but rather to determine whether the current enduring powers can stand as alternatives to the Tribunal appointing an administrator and a guardian.
I am satisfied and I find that the enduring power of guardianship cannot stand as it is now contrary to D's wishes. RD believes D may be being influenced by the family members with whom she currently lives. This is possible. D moved from her stay with G2S in May when the allegations against RD were made, to G1S and JGW's rather than returning to RD. However, the break down in trust between D and RD means it would be detrimental to D if RD continued to have the power to make decisions about where D lives and with whom. Given D firmly believes that RD has forced her to take medication against her will, it would be detrimental if RD were the one with power to make medical decisions for D as D would mistrust the decisions.
In relation to finances, RD indicated at the first hearing that she was happy to step back from the power of attorney. KS gave evidence that RD had approached him earlier in the year regarding potentially becoming a joint attorney. I am satisfied and I find that RD now has a conflict of interest with D in relation to finances, given the transactions on D's account that do not appear to be in D's best interests and where it is questionable whether she had capacity to consent if she was asked. A conflict of interest also exists in relation to the complex claims in relation to D's town A property, which require investigation and resolution.
I am satisfied, on the evidence before me, that there is no less restrictive means available than the appointment of a guardian and an administrator because:
•D no longer trusts RD, and does not want to live with her, and believes she has forced her to take medication, so the EPG cannot work as a less restrictive alternative to the appointment of a guardian; and
•Conflicts of interest now exist which mean that it is not in D's best interests for RD to be her enduring attorney.
As there is no less restrictive means of meeting D's needs than a formal appointment, I am satisfied that D is in need of an administrator and a guardian.
What are the views and wishes of D?
I have been able to ascertain D's views and wishes from her own evidence and from the Public Advocate's report. I have taken those wishes into account.
D told me at the start of the first hearing 'I just want to know that all my kids and everything are going to be all right and it's going to be for a long, long time. I love all my kids'.
It was not until later in the hearing that D expressed the view that RD had taken everything.
I am therefore approaching the question of who should be appointed, and with what functions, on the basis that D has told me she loves all her kids.
Who should be appointed?
An administrator or guardian must be a person over the age of 18 who is willing to undertake the role, and whom the Tribunal finds will act in the best interests of D[5] and is otherwise suitable.[6] Their interests must not conflict with those of D and the Tribunal must take into account:
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator/guardian (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
[5] GA Act, s 51 and s 70.
[6] GA Act, s 44 and s 68.
The Public Advocate shall not be appointed as guardian or administrator unless there is no other person the Tribunal finds suitable who is willing to act.[7]
[7] GA Act, s 44(5) and s 68(5).
In this case, at the first hearing many family members expressed the view that guardianship decisions should be made by the family. The adjournment to a second hearing was to permit discussion within the family about whether there was any combination of family members who could work together in D's best interests, and bridge the two factions that appeared to have formed - those who believe at least some of the allegations against RD and are concerned for D's well‑being under RD's care, and those who do not believe that RD has acted contrary to D's best interests.
At the second hearing I was informed that the children of D had met with her and the consensus was that RS and KS should be appointed as guardians. At the first hearing these two sons of D had expressed the view that it was very sad that matters had led to the applications, and that ideally the family would resolve the issues and find a way to support D.
The proposal of RS and KS was generally met with approval by family present, however I opened the consideration of whether G1S, as the current primary carer, might advantageously be added to the joint guardianship, which appeared may assist when attending medical appointments.
This was strongly opposed by RD, who gave evidence that G1S had threatened her with physical violence at the family meeting, and only settled after '[RS] pulled him into line'.
RS gave evidence that he did not completely agree with RD's version of what happened with G1S at the family meeting.
RD had also filed evidence of another incident in the form of CCTV footage which showed her approaching a vehicle which it is alleged by RD contained G2S and D. I am not in a position to make findings regarding the identities of any person in the footage other than RD. A male person exited the vehicle as RD talked through the passenger window. The male wrestled RD away from the vehicle, and during that physical altercation RD fell, knocking her head on the kerb and being rendered unconscious. A passerby rendered assistance to RD, and the male moved the vehicle a short distance, parked it and exited the vehicle again. He appeared to be making a telephone call before the video ended. RD's written submissions say she made a police report regarding the incident. It appears from the video that RD experienced a serious assault and I find that she has genuine concerns for her physical safety.
D's sister RHS expressed the view that there should be a female guardian, and that it should be RD.
At both hearings I observed G1S (current primary carer for D) become verbally and physically agitated when RD gave evidence. He made disparaging noises and turned his back to the bench and the videolink from which RD was appearing. RD was upset that I had organised for her to appear from a separate room at the Tribunal for the second hearing, as she believed it was because I thought she was violent. In fact, I had made the arrangement because I was concerned, given the CCTV footage, and the behaviours I had observed from G1S at the previous hearing that there was a risk of violence if the different factions within the family were in the same place at the same time.
The guardians will need to make decisions regarding where D will live. D is currently living with G1S and has expressed a view that she does not want to live with RD, but that she loves all her kids (and so I presume she would like to spend some time with RD). It is not possible for me to appoint RD (for the same reasons I revoked the enduring power of guardianship) or G1S (because of his obvious antipathy to RD which would compromise his willingness to support D having contact with RD if D wishes).
I am satisfied and I find that KS and RS will act in the best interests of D and are suitable to be appointed because they appear to have open minds regarding the impact of dementia on D's recollection of events, and an ability to speak with all members of the family. Their appointment was not opposed by any party, and is the proposal agreed by D and her children at the family meeting. Neither KS nor RS has a conflict of interest, and I am satisfied they will act in D's best interests.
I will appoint the Public Trustee as administrator. The complexity of the claims regarding the town A property is such that I am not satisfied that any member of the family is in a position to navigate it on D's behalf.
Scope of order
I am satisfied because of the complexity of her estate and the medical evidence that D is incapable of making simple financial decisions that a plenary administration order is necessary.
I am satisfied that it will be sufficient to meet D's needs for a guardianship appointment to be made with functions limited to medical treatment, accommodation (where and with whom), support services and contact. This is because D is currently living with G1S but has expressed a desire to return to her property in town A which is currently occupied. There are active accommodation and support decisions to be made. D has ongoing medical appointments and decisions to be made. D has a large extended family and has expressed her love for all her children. The current fractured relationships and RD's experience of physical violence and threats means that the guardians need the contact authority so that if D wishes to see RD that can be organised in a way that is safe for everyone.
Period of order
I am required to specify a period of time within which a review of the orders must be made. The maximum time period allowed by the GA Act is 5 years. In this case I consider that it is in D's best interests to set a review within 2 years (that is before 23 October 2027) because I hope that there may be resolution of some of the complex financial issues that may permit consideration of a family member as administrator. I am also aware of the significant strains on the supportive relationships around D, which may resolve, and mean there is no longer a need for the contact authority.
Orders
For those reasons, on 23 October 2025 I made the following orders:
GAA 5614 of 2025
The Tribunal notes:
[D] made an enduring power of guardianship on 6 March 2022 appointing [RD].
The Tribunal orders:
1.The enduring power of guardianship is revoked.
GAA 4281 of 2025
The Tribunal notes:
[D] made an enduring power of attorney on 3 May 2013 appointing [RD].
The Tribunal orders:
1.The enduring power of attorney is revoked.
GAA 4381 of 2025
The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, [D] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
Administration
2.The order made on 7 August 2025 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 administration order is to be reviewed before 23 October 2027.
Guardianship
5.[RS] of [address] Western Australia and [KS] of [address] Western Australia are appointed joint limited guardians of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to make treatment decisions for the represented person, subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990 (WA);
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact; and
(e)to determine the services to which the represented person should have access.
6.The guardianship order is to be reviewed before 23 October 2027.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR E Marillier, SENIOR MEMBER
17 NOVEMBER 2025
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