JJ - [2025] WASAT 48 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   JJ [2025] WASAT 48
MEMBER:   MS F CHILD, MEMBER
HEARD:   12 FEBRUARY AND 19 MARCH 2025
DELIVERED          :   19 MARCH 2025
PUBLISHED           :   4 JUNE 2025
FILE NO/S:   GAA 6408 of 2024
GAA 6410 of 2024
GAA 840 of 2025
JJ
Represented Person

Catchwords:

Guardianship and administration - Application for the appointment of a guardian and administrator - Represented person with complex chronic health problems and progressive cognitive impairment - Whether existing enduring powers of attorney and guardianship can operate as less restrictive alternatives to orders being made - Enduring power of guardianship invalid as purporting to appoint joint and several enduring guardians - Wishes of represented person including as to future treatment - Enduring attorneys appointed jointly and severally in conflict - Refusal by attorney to share financial information with the other attorney - Obligations of donee of enduring power of attorney to act with reasonable diligence - Liability for failure to do so - Donee unable to renounce during incapacity of the donor - Whether a need for orders - Ongoing conflict - Public Advocate and Public Trustee appointed

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 40, s 43(1)(b), s 43(1)(c), s 44, s 64(1), s 68, s 102, s 107, s 107(1), s 107(1)(a), s 107(1)(c), s 108(1a), Pt 9A, s 110B, s 110B(b), s 110E, s 110J, s 110K, s 110N, s 110ZD, s 110ZD(3), s 110ZD(4)

Result:

Public Advocate appointed limited guardian
Public Trustee appointed plenary administrator
Enduring power of attorney revoked
Enduring power of guardianship declared invalid and revoked

Category: B

Representation:

Counsel:

Represented Person

In Person - by Videolink

Solicitors:

Represented Person

N/A

Case(s) referred to in decision(s):

EW [2010] WASAT 91
EW [2021] WASAT 111
FY [2019] WASAT 118
FY [2019] WASAT 118
GC and PC [2014] WASAT 10
GG [2021] WASAT 133
KS [2008] WASAT 29
MBC [2016] NSWCATGD 36
Parker v Higgins [2021] NSW SC 1516
Re C [2012] WASAT 50
SAL and JGL [2016] WASAT 63
Szozda v Szozda [2010] NSWSC 804

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These are the reasons of the Tribunal on applications made under the Guardianship and Administration Act1990 (WA) (GA Act) in respect of JJ (represented person).
The represented person is a 79-year-old woman who has lived in a residential aged care facility (RACF) since 18 October 2024. She was widowed as a young woman and has two adult daughters MGB and MJ.
On 6 November 2024 the represented person appointed both her daughters as enduring attorneys and enduring guardians in enduring powers of attorney and guardianship (2024 EPA and 2024 EPG) both of which were prepared by the represented person's solicitor and witnessed by him.

Applications before the Tribunal

An application was filed with the Tribunal on 5 December 2024 by MGB (the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: JJ [2025] WASAT 48
Case: [2025] WASAT 48
Decision Date: 4 JUNE 2025

CaseChat Overview and Summary

The case involves an application for the appointment of a guardian and administrator for JJ, a person with complex chronic health problems and progressive cognitive impairment. The Public Advocate applied to the Supreme Court of New South Wales for the appointment of a Public Trustee as guardian and administrator, and the Public Trustee applied to be appointed as such. The court was required to determine whether existing enduring powers of attorney and guardianship could operate as less restrictive alternatives to the orders being sought. The court found that the enduring power of guardianship was invalid as it purported to appoint joint and several enduring guardians, which is not permitted under the relevant legislation. The court also found that the enduring attorneys appointed jointly and severally were in conflict, with one attorney refusing to share financial information with the other. The court held that the donee of an enduring power of attorney has an obligation to act with reasonable diligence and can be held liable for failure to do so. The court also held that a donee is unable to renounce during the incapacity of the donor. The court found that there was a need for orders due to ongoing conflict between the attorneys and the represented person's wishes as to future treatment. The Public Advocate and Public Trustee were appointed as guardian and administrator, respectively. The court's decision provides guidance on the interpretation and operation of enduring powers of attorney and guardianship in cases involving individuals with cognitive impairment.

Orders