GM
[2025] WASAT 127
•14 NOVEMBER 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: GM [2025] WASAT 127
MEMBER: MS M HIPWORTH, MEMBER
HEARD: 10 JULY AND 21 AUGUST 2025
DELIVERED : 14 NOVEMBER 2025
FILE NO/S: GAA 2650 of 2025
GM
Represented Person
VH
Applicant
Catchwords:
Application for review of guardianship order - Suitability of proposed guardian - Family conflict - Appointment of the Public Advocate as guardian - Jurisdiction of the State Administrative Tribunal
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 13, s 43(1)(b), s 43(1)(d), s 43(1)(c), s 43(4), s 44, s 44(3), s 44(5), s 45, s 51, s 86, s 90
Result:
Public Advocate reappointed limited guardian for functions of accommodation, medical treatment, contact, services, aged care restrictive practices
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):
TL v Office of The Public Advocate [2020] WASC 455
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This is a review of a guardianship order that is currently in place for GM.
GM is an elder who holds significant cultural authority and is recognised and celebrated within her community.
GM was first declared to be in need of a guardian and administrator in August 2023, and her daughter VH was appointed in both roles. Since that date, VH has continued as GM's Administrator, however, as a result of family conflict, there have been several reviews of GM's guardianship order, resulting in the appointment of the Public Advocate as GM's sole limited guardian in June 2024 and reappointment in that role on 11 December 2024.
VH made this application to review the order made on 11 December 2024, alleging the Public Advocate's delegated guardian (delegated guardian) was exposing GM to serious risk by virtue of a decision she was considering, to remove GM from the residential aged care facility (RACF) where she had recently been accommodated, to return her to her own home. In her application, VH stated there was extensive evidence of elder abuse and safety risks at GM's home and that GM should not be returned there. In the circumstances, VH requested an urgent review, seeking orders to remove the Public Advocate and for herself to be appointed as sole limited guardian.
I conducted a review hearing on 10 July and 21 August 2025 and reserved the decision and these are the reasons for the decision I have made.
Background
GM is a respected elder and her family and culture are very important to her.
GM has three children in Western Australia, her eldest daughter, EK, son, QC, and youngest daughter, VH. GM is close to her sister SR, who lives in a [rural town]. GM has a large family and a number of grandchildren.
GM was diagnosed with dementia in 2022. Her geriatrician is of the view that her cognitive abilities have been deteriorating since that date, and that GM lacks insight into her condition, and her care and support needs.
GM's family agree with the diagnosis of dementia and agree she has problems with her memory.
However, GM's family members do not agree on matters affecting her safety and welfare. GM's children and her sister SR are divided about GM's living arrangements. The division effectively creates two factions in the family - one faction supports VH's views that GM cannot be safely cared for at home and has no other option than to reside permanently in a RACF, and the other faction supports EK's view that GM can be safely cared for in her own home with family and formal supports.
GM herself says she does not want to live at a RACF, rather, she wants to be at home or with family. EK's faction of the family is of the view that GM's views and wishes should be followed.
History of Orders
GM has had a guardian and administrator appointed since August 2023.
The original application for the appointment of a guardian and administrator was made on 11 July 2023 by Hospital A.
Although GM had some appreciation of her memory problems at that time, it was the view of her treating health practitioners that due to a cognitive impairment, GM lacked insight into her care and support needs and was at risk of being exposed to harm in her home environment.
At the hearing of the original application, on 8 August 2023, VH was appointed as plenary administrator, and as limited guardian, to make decisions about GM's accommodation, treatment, services, the use of restrictive practices in the aged care setting, and as GM's legal next friend. Both guardian and administrator orders were made for a five-year period. They were to be reviewed on 8 August 2028.
During the period from 8 August 2023 until 13 June 2024, as GM's guardian and administrator, VH voiced her concerns about GM being exposed to risks in her own home, a three-bedroom Department of Housing home in [suburb]. This had been GM's home for some 26 years and had also been home to various other family members.
VH voiced her concerns to GM's doctors and to Department of Housing staff about family violence and risks associated with illicit drug use at the home, about GM's safety, about the neglect of her needs and financial exploitation by family members residing with her.
On 2 January 2024, VH applied to the Tribunal to review GM's guardianship order, seeking to include a contact function, to enable VH as GM's guardian to restrain certain people from being at GM's home, or coming into contact with GM.
In her application, VH reported, in the context of GM's worsening dementia symptoms, she had significant concerns about harm that GM was being exposed to in her own home.
VH alleged that people affected by illicit drug use were living at the house, that people were engaging in drug dealing there, and undesirable and drug affected people were frequenting the house.
In her application, VH stated that she had wanted to move GM to an aged care facility nearby, though this plan had been met with resistance from family members, namely EK and QC. VH reported that EK and QC had threatened her and were behaving aggressively towards her.
At the hearing of VH's application on 5 January 2024, conflict between family members was evident and the Member found it was not appropriate to give to VH as limited guardian, the power to make decisions about contact that GM could have with others.
The Member determined that the personal conflict between siblings could impact on VH's decisions as guardian and it was not appropriate for VH to make decisions that would effectively restrain some family members from seeing GM.
The Member found however, that there was a need for a guardian to make decisions about contact and to also apply for a restraining order if required and appointed the Public Advocate as limited guardian to conduct those functions, as no one else was suitable to appoint to that role. The Member found VH suitable to be re-appointed as limited guardian to make decisions about accommodation, treatment, services and restrictive practices. That guardianship order was made for five years, to be reviewed by 9 January 2029.[1]
[1] On 2 February 2024, VH made an application to appeal the decision of the single member, though withdrew her application shortly after it was lodged, without an appeal being heard.
In late 2023 and early 2024, VH took steps to terminate GM's Department of Housing lease and move GM to a RACF. This was met with resistance from GM herself, EK, and other members of the family. On 21 May 2024, out of concern for GM's safety, VH decided to place GM at a RACF, though other family members managed to locate GM and return her home. This event caused family relationships to fracture further.
Following that event, VH liaised with GM's delegated guardian to seek review of the guardianship order, with the intention of VH 'relinquishing' her role as guardian, in order to have the Public Advocate appointed to make all decisions, including an anticipated decision about GM's eventual placement into an aged care facility. On 23 May 2024, the Public Advocate made an application to review the guardianship order and at a hearing on 13 June 2024, the Public Advocate was appointed as GM's sole limited guardian, to make decisions about accommodation, treatment, contact, services, to decide on restrictive practices, and act as GM's legal next friend for a short, six-month period.
At the scheduled review of that six-month order in December 2024, as family tensions remained high and decisions about where GM was to live and whether she could be safely cared for at home, had not yet been resolved, the Public Advocate was reappointed as sole limited guardian with the same functions, for a further period of one year. That guardianship order was to be reviewed in December 2025.
In early April 2025, a significant safety incident occurred while GM was staying with QC, in that GM set out to walk to her own home, a distance of some 30 kms. On the way, GM sought assistance and went on to be admitted to hospital as a social admission. Following this incident, whilst GM was an inpatient, VH found a bed for her at [RACF], and the delegated guardian decided to admit GM to [RACF]. On 11 April 2025, GM was transferred from hospital to the memory support unit at [RACF].
Current proceedings
Evidence and material before the Tribunal
On 19 May 2025, VH lodged this application to review GM's guardianship order, I granted leave to apply for the review, and I commenced hearing the matter on 10 July 2025 (the first hearing).
The first hearing was attended in person by GM, her sister SR, her daughter EK and her niece, RT. Also in attendance was VH, VH's husband AP, GM's son, QC, and GM's niece LP. The delegated guardian and a senior officer from the Office of the Public Advocate were also in attendance.
Prior to the hearing commencing, tensions broke out between family members who had come together on the same floor at the Tribunal, requiring separate hearing rooms to be arranged. The family was effectively separated into its two factions, with GM, EK, SR and RT seated together in one room, and VH, AP, QC, and LP, in the other.
Due to the apparent conflict and heightened emotion, prior to opening the hearing to all attendees, I decided it was in GM's best interests to hear from her in private to ascertain her views and wishes, with only the delegated guardian present.
At the commencement of the hearing VH explained the reason for her application. VH is concerned about what she believes is the delegated guardian's intention to return GM home. She also says that the delegated guardian has not made a decision about permanent accommodation for GM at [RACF] and has not taken steps to surrender GM's home to the Department of Housing. VH proposed herself as sole guardian to make all decisions needed for GM.
VH is firmly of the view that GM should reside permanently in residential care due to risks associated with her cognitive decline in the context of risks posed by family and other people who reside at, or frequent, GM's home.
In opposition to VH's view, EK and SR are firmly of the view that GM should remain living at her home, and say that it is safe, or can be made safe, for her to do so. As an elder, they maintain GM should be cared for by family and the family should have regard to GM's views and wishes. Initially, QC supported GM remaining at home with family and additional support, though he is now firmly of the view that due to risks associated with alleged illicit drug use at GM's home, that GM should live permanently in aged care.
At the hearing, EK, SR and RT provided a different view about GM's safety and wellbeing and there was strong disagreement about whether GM should reside at a RACF at all. GM was of the view she should be allowed to return home and be cared for, or live with, family.
The hearing was disrupted numerous times. Family members openly addressed each other with animosity and made disparaging remarks about each other throughout the hearing.
VH's faction of the family accused EK's faction of illicit drug use, and of exposing GM to harms associated with that.
EK and other family seated with GM, accused VH of forcing GM to reside at a RACF against her will and of over stating her concerns about GM's safety.
Throughout the hearing and family's exchanges GM became increasingly agitated and distressed and I brought the hearing to a close, reserving my decision.
On 11 July 2025, VH filed a letter with the Tribunal, stating that due to EK's disruptive behaviour at the hearing, she had not been given an opportunity to speak and requested a further hearing.
In her letter, VH responded to a question I had asked her, as to whether, if appointed as guardian, she would be able to communicate with EK about medical treatment decisions. In her letter, VH stated that if medical decisions had to be made, that she would work with her brother QC, and her son N who maintains a close relationship with EK's sons L and D, to obtain EK's views, and VH says she would take EK's views, and those of her children, into account.
In the letter, VH set out again her dissatisfaction with the delegated guardian's conduct and alleged the delegated guardian had '… significantly increased family conflict by siding with and supporting [EK] and family members who have been exploiting [GM]'.
In response to VH's request for a further hearing, I made an order listing the matter for a further three-hour hearing, with issues to be limited to:
(a)whether GM is in need of a guardian;
(b)if so, who should be appointed in accordance with s 44 of the Guardianship and Administration Act 1990 (WA) (GA Act); and
(c)the scope and duration of a guardianship order if one is made.
In the event family members were to attend again in person, the Tribunal prepared to separate people across three hearing rooms, to control disruption and avoid the distress previously experienced.
The further hearing took place on 21 August 2025 (further hearing) with GM, EK, SR, the delegated guardian and another officer from the Office of the Public Advocate attending in person, and VH, AP and QC attending by telephone.[2] Neither RT, nor LP were in attendance.
[2] VH advised that she had to leave the further hearing at 12 noon for another appointment, and both VH and AP left at that time. The other parties left when the hearing concluded at 1.00 pm.
At the further hearing, I heard from VH, AP, QC, from EK and SR, and from GM herself. I also heard from the delegated guardian.
VH was firmly of the view that she should be appointed to replace the Public Advocate as guardian. VH claimed that as matters had relatively stabilised for GM, there was no need for the Public Advocate to play a role in decision-making for GM, and VH should once again be appointed as GM's sole guardian.
AP, in support of VH's application, asserted that in making a decision about who to appoint as guardian, I must consider whether the delegated guardian had acted in GM's best interests in seeking to keep GM's house open for her return to when there was evidence before the Tribunal that it was demonstrably unsafe for GM.[3] AP asserted that a decision about suitability of the guardian could not be made without forming a view about where it is safe for GM to live.
[3] ts 14, 21 August 2025.
VH asserted that matters of safety were paramount and urged me to consider the delegated guardian's actions in the context of information provided by the inter-agency committee that had been set up to monitor GM's safety in the community.
EK and SR gave evidence stating that VH had not considered GM's views and wishes about residing in residential aged care, they felt strongly about GM's desire to return home, and stated GM's home had been 'cleaned up', that no undesirable people were there, and it was safe for GM to return there.
In her evidence at hearing, the delegated guardian gave an account of the manner in which she meets with and communicates with GM, the enquiries she has made in relation to GM's health and welfare, and how she considers the factors set out in the GA Act when making decisions for her. As of 21 August 2025, the delegated guardian explained that a permanent accommodation decision for GM had not been made. The delegated guardian had considered alternative accommodation options for GM, out of concern for her level of distress being at [RACF], and for her overall wellbeing. The options included making enquiries to determine whether there was a way to keep GM's home with her family. The delegated guardian explained, due to the significance of the home to GM, there was a concern about completely relinquishing it.
VH states that the failure to make a permanent accommodation decision and hand GM's home back to Department of Housing, has financial implications for GM and is a point of concern for VH as her administrator. VH wants the home handed back to the Department of Housing.
During the further hearing, it transpired that QC and EK also proposed themselves for appointment as GM's guardian.
In addition to evidence given by interested parties at the first and further hearing, I also read and considered the following documentary evidence filed with the Tribunal:
Medical and service provider evidence
(a)Letter dated 14 September 2022 from Prof W and Dr B to GM's general practitioner, following G's first assessment at [hospital] geriatric outpatient clinic.
(b)Letter dated 3 October 2024 from Prof W to GM's general practitioner.
(c)Letter dated 6 February 2025 from Prof W to GM's general practitioner.
(d)Report dated 27 May 2025, from IH, a registered nurse and the facility manager at [RACF] where GM currently resides.
(e)Report dated 10 June 2025, from SM the co-ordinator of the home care package service that GM was receiving prior to her entering [RACF].
(f)Report of Dr Y dated 26 June 2025.
(g)Report of Prof W dated 3 July 2025.
Submissions from VH
(a)A three-page statutory declaration, made by VH dated 19 October 2024.
(b)A two-page submission from VH filed on 11 June 2025.
(c)A 14-page statutory declaration made by VH, dated 12 June 2025.
(d)Letter from VH addressed to the Tribunal dated 11 July 2025.
Various documents provided by other parties
(a)The Department of Communities virtual file containing meeting minutes from Family and Domestic Violence Multi Agency Case Management (MACM) meetings, held on 26 March 2025, 8 April 2025 and 12 May 2025.
The MACM meetings were convened by KC, the Family Safety Service Coordinator at Department of Communities and were attended by various agency leads, including from the Department of Communities, the WAPOL Family Violence Team, and the Department of Housing. GM's Home Care Package service provider, her delegated guardian and the director from the Office of the Public Advocate also attended these meetings.
(b)A copy of GM's tenancy agreement with Department of Housing, commencing 1 July 1996.
(c)Email dated 23 June 2025, from the Area Manager at Department of Communities Housing Division forwarding three pages of file notes from the Department of Communities Housing Division, to the MACM team lead from Department of Housing. The file notes record interactions from February 2022 to June 2025 between Department staff and VH, and Department staff and GM and EK.
(d)A ten-page Family and Domestic Violence Risk Assessment Tool completed on 28 May 2025 by KC, the Family Safety Service Coordinator at the Department of Communities.
(e)A 29-page table recording events from 11 December 2023 to 1 July 2025. This record appears to be a register of certain activities conducted by several agencies and includes references to correspondence in relation to GM. There are several references to correspondence from VH as GM's administrator addressed to various agencies in relation to her concerns about the delegated guardian, and complaints made by VH to various agencies, local members of parliament, government ministers and the Ombudsman.
(f)A short letter dated 6 June 2025, from GM's friend of some fifty years, ER. ER is of the view that GM has an advanced form of dementia and that she is very concerned for GM's welfare if she is returned to live at her home or if she lives with any of her family. ER reports that she has visited GM at [RACF] and has observed her happily living there. ER notes that when she has been unavailable, GM has tried to contact her more than 20 times, which ER takes as a sign of GM's confusion.
(g)A formal letter of endorsement from Dr Z, the interim chief executive officer of [health service], filed with the Tribunal 7 July 2025, supporting the appointment of VH as G's guardian and administrator. Dr Z states VH's appointment is essential to ensure GM's interests are protected and her care is managed in a manner that respects her cultural identity and personal dignity.
(h)Four WAPOL documents:
(i)16 November 2024 incident report that GM's phone was missing or stolen.
(ii)WAPOL file created on 27 March 2025 as MACM member.
(iii)22 February 2025 incident report - report by VH to Police about threats of violence made towards AP, and allegations that GM was the victim of elder abuse.
(iv)A family violence restraining order, protecting GM, as well as five other family members, from M, for a two-year period commencing 13 October 2023.
(i)Two-page document submitted by SR at the hearing on 21 August 2025, reiterating SR's oral submissions.
Reports from the Office of the Public Advocate
(a)Three reports prepared by the delegated guardian for the purpose of hearings at the Tribunal.
(b)The first report dated 6 December 2024, was prepared for the scheduled s 84 review of the guardianship order on 11 December 2024.
(c)The second and third reports, dated 8 July and 20 August 2025 were prepared for the current s 86 review.
Principles and legislation to be observed
In all proceedings brought under the GA Act the Tribunal must observe the principles set out in s 4 of the GA Act.
The primary concern of the Tribunal when making decisions under the GA Act, is the best interests of the represented person for whom an application is made.
The represented person is presumed to be capable of looking after her own health and safety and making reasonable judgments in respect of matters relating to her person, until the contrary is proved to the satisfaction of the Tribunal.[4]
[4] GA Act, s 4(3).
A guardianship order should only be made if it is needed; if the needs of the person can be met by less restrictive means then a guardianship order should not be made for her.[5] If an order is made it should be in the least restrictive terms possible.[6] And, a plenary guardian should not be appointed if a limited order will meet the represented person's needs.[7]
[5] GA Act, s 4(4).
[6] GA Act, s 4(6).
[7] GA Act, s 4(5).
Finally, the principles require that in considering any matter relating to a represented person, the Tribunal is required, as far as possible, to seek to ascertain her views and wishes as expressed at the time or gathered from her previous actions.[8]
Nature of the s 86 review
[8] GA Act, s 4(7).
My role, in conducting a review of GM's guardianship order, is to determine, on the evidence before me, whether it is necessary and in GM's best interests to confirm, revoke or vary the order.[9]
Making a guardianship order
[9] GA Act, s 90.
To appoint a guardian either initially or on review, I must be satisfied that GM is:
(a)incapable of looking after her own health and safety; or
(b)unable to make reasonable judgments about her person; or
(c)in need of oversight and care in the interest of her own health and safety or for the protection of others;[10] and
(d)I must also be satisfied that there is a need for a guardian.[11]
[10] GA Act, s 43(1)(b).
[11] GA Act, s 43(1)(c).
If I decide that GM is in in need of a guardian, I must appoint one.[12] And, the order appointing a guardian must also specify the functions that are vested in the guardian.[13]
Who may be appointed as guardian
[12] GA Act, s 43(1)(d).
[13] GA Act, s 43(4).
Section 44 of the GA Act provides that I may appoint a guardian, only if I am satisfied that the proposed guardian:
(a)is 18 years or older;
(b)will act in GM's best interests;
(c)is not in a position where their interests conflict or may conflict with GM's interests, noting that by s 44(3) being a relative is not enough on its own to create a conflict or potential conflict of interest; and
(d)is otherwise suitable to act as GM's guardian.
In seeking to understand whether a proposed guardian is otherwise suitable to act as GM's guardian, I am to take into account:
(a)the desirability of preserving existing relationships within GM's family;
(b)the compatibility of the proposed appointee with that person and with the administrator of GM's estate;
(c)GM's wishes; and
(d)whether the proposed appointee will be able to perform the functions vested in him or her.
Section 44(5) of the GA Act provides that the Tribunal must not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act as guardian.
Powers of a guardian
The powers of a guardian are set out at s 45 of the GA Act and include the power to make decisions about where and with whom the represented person is to live, whether permanent or temporary, medical treatment, who the represented person is to associate with and legal proceedings, as the represented person's next friend or as the guardian ad litem.
Jurisdiction of State Administrative Tribunal
Section 13 of the GA Act invests the Tribunal with the power to appoint a guardian or administrator. Once a guardian or administrator is appointed, the powers that may be exercised by that guardian or administrator are set out in the GA Act, or, in the order itself.
Best interests of the represented person
Guardians are required to act according to their opinion of the represented person's best interests. Section 51 of the GA Act provides guidance about what that involves, including, if the guardian acts as far as possible:
(a)as an advocate for the represented person;
(b)in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
(c)in such a way as to encourage and assist the represented person to become capable of caring for themselves and of making reasonable judgments in respect of matters relating to their person;
(d)in such a way as to protect the represented person from neglect, abuse or exploitation;
(e)in consultation with the represented person, taking into account as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the persons previous actions;
(f)in the manner that is least restrictive of the rights while consistent with the proper protection of the represented person;
(g)in such a way as to maintain supportive relationships the represented person has; and
(h)in such a way as to maintain the represented person's familiar cultural, linguistic and religious environment.
GM's views and wishes
GM attended and gave evidence, in private on the first day, and openly, with others present, on both days.
In the closed hearing and during the further hearing, GM advised that if she had to have another person make decisions for her, she would want that person to be EK. She said as EK was the eldest daughter, culturally it was expected that the role should fall to her.
GM said if EK wanted GM to live with her, she would rather be with EK.[14]
[14] ts 44, 21 August 2025.
In her evidence, although she appeared to be confused at times between the role of a carer and that of a guardian, GM stated that both VH and EK take her out and will buy her things. However, she said that EK takes her out quite a lot, she enjoys her company, that she is the eldest daughter and that is her main role, she is the first one GM will ask.[15]
[15] ts 82, 21 August 2025.
GM stated she would not want VH as her guardian.[16]
[16] ts 84, 21 August 2025.
GM said that as VH fosters children and has little children, that she does not expect to see her as often. GM also observed that VH is '… busy … that [s]he has got a lot to do … travels … a lot, so if I had the choice [about who she wants to be her guardian], … it would be [EK]'.[17]
[17] ts, 85, 21 August 2025.
During the hearing on 21 August 2025, in discussing who should be GM's guardian, GM expressed herself, saying '… in the […] way it should be the oldest one … that if [EK] wants to be, I would prefer her …'.[18]
[18] ts 63, 21 August 2025.
When the possibility of appointing QC was raised, GM paid little attention to that suggestion, shaking her head in the hearing to indicate she did not agree with the proposal.[19] GM did not appear to be keen to explore QC's appointment.[20]
[19] ts 41, 21 August 2025.
[20] ts 82, 21 August 2025.
In her evidence, GM also expressed her views and wishes about wanting to return to live in her own home and wanting to be with her family.[21] She said that living at [RACF] was like jail and being locked up, that she wants to be free. GM acknowledged that there were good people at [RACF] though she said she wanted to be with people from her own culture, stating, '…I'm with all […] people, not with my culture'.[22] GM stated a number of times during the hearings, that she was an elder, to add context to the importance of her views and wishes.
[21] ts 73, 21 August 2025.
[22] ts 76 and ts 77, 21 August 2025.
In her report of 8 July 2025, the delegated guardian stated that GM often expresses her views and wishes to her, that GM often and currently shares her views about who she deems is her priority carer and who she would prefer to live with, citing EK with whom she states she feels a particular connection.[23]
[23] Delegated guardian's report dated 8 July 2025, page 10.
In her evidence GM stated that she knew EK and VH were fighting.
Towards the conclusion of the first hearing, in a distressed state, GM stated VH just wanted to put her away and questioned why she wanted to take her life from her.[24]
[24] ts 47, 10 July 2025.
Although not obliged to give effect to GM's wishes, I give them due weight. Ultimately, my decision about who to appoint as guardian must be reached on the basis of my conclusion as to what is in GM's best interests.
Capacity
As set out in s 4 of the GA Act, the starting position is that GM is presumed to be capable of making reasonable judgments about her person until such time as the evidence clearly shows that that presumption is displaced.
There is no dispute about GM's diagnosis of dementia. In Prof W's report of 3 July 2025, he states he has known GM for three years and is of the view that she has a mental disability, being mixed Alzheimer's and vascular dementia. He states GM lacks capacity in all spheres of decision-making.
Having regard to the professional reports and other evidence, including the views of family members present on both hearing days, and with reference to GM's short-term memory issues and confusion that was apparent at the hearings, I am satisfied and find that the presumption of capacity is set aside. I am satisfied and find that GM is a person for whom a guardianship order may be made.
In their letter of 14 September 2025, Dr B and Prof W set out that GM has a number of significant medical conditions that need to be monitored, and, for which, she takes daily medications. I am satisfied on the medical evidence, the evidence of family members and the report from service provider, SM, dated 10 June 2025 that GM's dementia affects her ability to understand her mental and physical condition and renders her incapable of caring for herself.
I am satisfied on the evidence in VH's submissions, Prof W's reports, the Department of Communities virtual file, and the evidence of family members at hearings that GM does not have the capacity to make reasonable decisions in respect of matters relating to her person, particularly as to where she should live, and how necessary support services may be provided to her.
In his letter of 3 October 2024, Prof W opines that GM is at high risk and gives an example that GM was lost in the city and had to be returned by a stranger. In addition to that, I note the incident when GM set off to walk to her house, from QC's home, and had to seek physical assistance on that occasion. On this evidence, I am satisfied that GM is in need of oversight, care and control in the interests of her own health and safety.
Need
VH submits that although there is friction in the family, the issue of GM's care arrangements now seems quite settled. She submitted there was no need for the Public Advocate to be involved any more.[25]
[25] ts 16, 10 July 2025.
In contrast to VH's submission, is GM's ongoing expressed desire to return home and to EK and SR's strong belief that G should not reside in a RACF at all.
At both the first and further hearing, EK and SR were of the view that the risks to GM at her home were being overstated by VH. They were of the view that GM's needs could be met safely at home.[26] Further, they were of the view that GM's views and wishes about not wanting to be in residential aged care should be taken into consideration, and that for cultural reasons, GM should not be in residential aged care.
[26] ts 36 - ts 37, ts 45, ts 46, ts 47, 21 August 2025, R's submission handed up at the hearing on 21 August 2025.
In addition to her oral evidence and advocacy for GM, SR submitted a document at the further hearing, listing the reasons why GM should be cared for at home and the complicating effect that family conflict was having on people meeting GM's needs.[27]
[27] SR's submission handed up at the hearing on 21 August 2025.
On the evidence before me, I find that the matter of where GM is to live, and how her care needs are to be met, is not resolved.
Due to the chronic family conflict about where GM should live, how she is to have her care and support needs met, whether she goes to hospital and stays for treatment at times,[28] and who should make personal decisions for her, it is clear that informal family arrangements cannot be relied on to make decisions about GM's personal health and welfare.
[28] In December 2024, GM allegedly discharged herself from hospital against medical advice after being visited by EK and RT.
In such circumstances, to leave GM without formal orders granting certainty about substitute decision-making for her, is to leave her as the likely subject of conflict and dispute. That is not in her best interests.
It follows, and I find, that there are no less restrictive means to meet GM's needs, and I find that GM is in need of a guardian.
What decision-making functions does the guardian need?
I am satisfied that the appointment of a limited guardian will be sufficient to meet GM's needs.
A decision about where and with whom GM lives, whether temporarily or permanently, needs to be made and I find GM needs a guardian with this function.
Due to her cognitive impairment and chronic medical conditions, I find that GM will also require a guardian to make treatment decisions for her.
Due to GM's symptoms of dementia including confusion and wandering and at times, emotional dysregulation, I find that GM will need a guardian to give or withhold consent to the use of restrictive practices that may be used in the aged care setting.
Due to GM's functional frailty and cognitive impairment, I find she needs a guardian to identify and arrange for appropriate support services to be provided to her.
Due to longstanding family conflict and openly hostile relationships between GM's family members, I find that GM will need a guardian to make contact decisions, to ensure she has access to, and can socialise with all of her family and to ensure that she is protected from people that may cause harm.
As there is no evidence of GM being threatened personally since the last orders were made, and the family violence restraining order protecting GM from M expired in October 2025, there is no current need for a guardian to act as GM's next friend in legal proceedings.
Who should be appointed as GM's guardian?
Section 44 of the GA Act sets out the criteria for who may be appointed a guardian.
VH seeks appointment as GM's sole guardian. VH's appointment is supported by AP and QC and is opposed by EK and GM.
In the course of the further hearing, VH nominated QC for appointment as GM's guardian, and EK proposed herself for appointment as well.
On the evidence, I am satisfied and find that neither VH, QC nor EK are suitable to appoint as GM's guardian.
Despite endorsement by the CEO of [health service] and without reflection on VH's good character, I find that VH is unsuitable to appoint as guardian for the following reasons.
The evidence supports the conclusion, and I find, that in the past, VH has not communicated with EK about significant decisions in relation to GM.[29] For example, VH did not communicate with EK when she placed GM at a RACF in May 2024.
[29] VH did not communicate with family members or advise as to where she had taken GM in May 2024.
There is a history of tension between the sisters, with EK stating that their relationship has never been good.[30] VH stated she has declined mediation with EK as she finds it a form of family violence.[31]
[30] ts 20, 21 August 2025.
[31] ts 17, 10 July 2025.
As the sisters' relationship is so fractured, and in light of the views they expressed about each other at the hearings, I also find that VH would not adequately communicate with EK in the future.
In VH's letter filed on 11 July 2025, in response to being asked whether she could communicate with EK, VH states if she was to be appointed as guardian, in relation to medical decisions, that she would work with her brother QC, and her son N who maintains a close relationship with EK's sons L and D, to enable them to discuss and obtain the views of EK, and VH will take EK's views, and those of her children, into account.
VH states that her family has managed ongoing conflict with EK due to her drug issues for over 30 years without the need for external authorities to intervene in family disputes.
VH states that I should consider and place significant weight on her professional history and her professional ability to act in an impartial and fair manner when it comes to making decisions in GM's best interest.
In response to VH's proposed consultation method, without reflection on VH's professional ability or experience, I find that the proposal is without merit. At the hearing on 21 August 2025, neither VH's son nor EK's sons were in attendance, nor did they provide a submission of their own about their willingness or ability to take part in VH's proposal. Rather, EK's evidence suggested that conflict between EK and VH has at times affected communication between EK and VH's children.[32]
[32] ts 20 - ts 21, 21 August 2025.
Additionally, I find the proposed consultation method would not be in GM's best interests as medical decisions may need to be made for her in a timely manner.
Further, I do not accept that VH would take EK's views into account. Numerous times in her written submissions and oral evidence, VH has stated that EK has been an illicit drug user for many years and alleges that EK has financially exploited GM. VH has reported EK to Centrelink for alleged fraudulent behaviour. VH has a very poor opinion of her sister.
At both the first and further hearings, VH and EK continued to say disparaging things about each other, making allegations about neglect of their own children and the lack of care and respect they have for family.
Their dislike of each other was apparent and they do not tolerate being in the same room whether at the Tribunal or when visiting their mother.[33]
[33] Despite the contact roster being in place at [RACF] there have been incidents there, ts 17, 10 July 2025 and ts 69, 21 August 2025.
Further, there is no evidence before me that VH has sought EK's views or opinions about GM's health or wellbeing or taken EK's views into consideration. EK's evidence is that an independent decision-maker is needed, so that she may have input, as VH does not acknowledge, or speak to her.[34]
[34] ts 56, 21 August 2025.
It is my view that a guardian appointed for GM must be able to communicate effectively with GM's family members. This is crucial in relation to all aspects of GM's health and lifestyle.
I accept that both VH and EK have a close relationship with GM, however GM consistently states that she would choose EK as her guardian and that it is culturally preferable for EK as the eldest to be her guardian. In addition to EK being consulted in her role as GM's eldest daughter, I find it is also necessary for EK, on the evidence of GM's expressed wish for EK to be her guardian, to be consulted and have input into decisions about GM's health and lifestyle.
Further, there is no evidence to suggest that VH consults with GM about lifestyle decisions or takes GM's wishes into account. This is evident from VH, EK and GM's evidence about decisions VH has made about moving GM to residential care in the past, from VH's view about GM's current needs, and is also evident from the Department of Housing file notes from December 2023, and January and February 2024.
There is no evidence before me that VH has consulted with GM, or sought GM's views about entering into a RACF or discussed other alternatives to a RACF, with GM.
I am also satisfied and find that a decision about GM's accommodation is likely to cause harm to family relationships if it is not consistent with GM's views and wishes. This is a further consideration in determining whether any family member would be suitable as guardian.
I accept VH's submission that the family has experienced ongoing conflict for many years without the need for external authorities to intervene in family disputes.[35] However, I note it is only in recent times that GM has been affected by her cognitive impairment, and disputes amongst her family have arisen about GM's safety and where she should live. This is new territory for the family.
[35] VH's letter to the Tribunal, filed 11 July 2025.
If decisions about GM's health and lifestyle need to be made and cannot be agreed upon in an informal way by her children, in accordance with Western Australian law, a Tribunal appointed guardian is required. If no family member is found suitable and willing to appoint, the Public Advocate as guardian of last resort must be appointed. I do not accept that GM's family will be able to rely on the conflict management methods they have used in the past, when dealing with conflict about GM's health and lifestyle.
For similar reasons related to chronic family conflict, mistrust and breakdown in communication, I also find that EK and QC are unsuitable to appoint as GM's guardian.
In his evidence, QC accepted that GM was not willing to have him appointed as her guardian.
In EK's evidence, although she said she was happy to be considered for appointment, she was of the view that an independent person was preferable in the circumstances, with GM making the observation that EK '…doesn't want the fight, that's all'.[36]
[36] ts 61, 21 August 2025.
As significant family members disagree on lifestyle decisions that need to be made for GM, I am of the view that GM continues to need a formally appointed guardian with clear authority to make personal and lifestyle decisions for her.
The GA Act provides for the appointment of the Public Advocate when there is no other person suitable or willing to act. The appointment of the Public Advocate is not determined by the Public Advocate's suitability, rather, it is determined by all other proposed appointee's unsuitability.
As I find that there is no other person suitable and willing to appoint as GM's guardian, it follows, in accordance with s 44 of the GA Act, that I must appoint the Public Advocate.
I am satisfied on the evidence before me that it is in GM's best interests to reappoint the Public Advocate as an independent guardian to make decisions in accordance with GM's best interests, free of family conflict.
Public Advocate as guardian
VH and AP, on her behalf, assert that the Public Advocate has made and intends to make further decisions about GM's accommodation that are unsafe. They contend that GM's safety is paramount and rely on evidence filed in this matter to prove that the Public Advocate is not looking at GM's safety at all.
Both VH and AP assert that I must come to a view about where it is safe for GM to live in order to come to a view about whether it is in GM's best interests to continue with the Public Advocate as guardian.
I accept that material has been filed with the Tribunal that raises concerns about GM's safety at her own home, and I acknowledge VH, AP and QC's concerns about illicit drug use in general. I also accept, in the context of GM's declining cognitive capacity, that she requires greater supervision, care and support at this time in her life than ever before.
I have considered the oral and documentary evidence before me, and I have observed and interacted with GM over the course of two hearings. I am satisfied that GM is incapable of looking after her own health and safety, that she is unable to make reasonable decisions in respect of matters relating to her person and that she is in need of oversight care or control in the interests of her own health and safety. I am satisfied that GM is in need a guardian.
It is beyond my authority to choose where GM should live. It is the role of the delegated guardian to make an accommodation decision, weighing the factors set out in s 51 of the GA Act and it is not for the Tribunal to review how such a decision is made by the Public Advocate.[37]
Duration of the order
[37] TL v Office of The Public Advocate [2020] WASC 455 [89] (Curthoys J).
GM lives with dementia and she is unable to make decisions about her own health and welfare.
Since the commencement of the guardianship order, GM's accommodation and support needs have been significant issues that continue to divide the family.
In making short-term orders previously, the Tribunal acknowledged that it was undesirable for GM and her family to appoint a non-[…] person as GM's guardian. In previous review hearings, it had been hoped that if an accommodation decision was made which was accepted by all, that family tensions might ease and the need for a guardian might abate.
On the evidence before me, the family remains divided about what is best for GM and family relationships remain fractured.
I have witnessed GM become very distressed during hearings and believe it is best not to subject her to a further hearing without good reason. These issues provide a sound basis for the making of a guardianship order that remains in place for a considerable period of time.
I am of the view that a period of three years is appropriate. Due to the intractable nature of conflict between significant members of GM's family, it is unlikely that a family member will become suitable to appoint as guardian in the near future. I am satisfied it is in GM's best interests to align the review date with the current administration order - being 8 August 2028.
Should anyone consider that GM's guardianship or administration orders require review prior to August 2028, they can apply (or seek leave to apply) for such review under s 86 of the GA Act.
For these reasons I make the following orders
The Tribunal makes the following orders:
The Tribunal orders:
1.Leave is granted to [VH] to apply for the review.
2.The Tribunal declares that the represented person, [GM], is:
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments in respect of matters relating to her person;
(c)in need of oversight, care or control in the interests of her own health and safety; and
(d)in need of a guardian.
3.The guardianship order dated 11 December 2024 is revoked and replaced with the following order:
4.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 what contact, if any, the represented person should have with others and the extent of that contact;
(e)to determine the services to which the represented person should have access; and
(f)to decide whether to give or withhold consent to the use of any restrictive practices for the represented person proposed from time to time under the Aged Care Act 2024 (Cth) or subsidiary legislation.
5.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.
6.The guardianship order is to be reviewed before 8 August 2028.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS M Hipworth, MEMBER
14 NOVEMBER 2025
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