MA - [2025] WASAT 11 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   MA [2025] WASAT 11
MEMBER:   MS R BUNNEY, MEMBER
HEARD:   22 JANUARY 2025
DELIVERED          :   5 FEBRUARY 2025
PUBLISHED           :   7 FEBRUARY 2025
FILE NO/S:   GAA 6203 of 2024
GAA 6230 of 2024
MA
Represented Person
DA
Applicant

Catchwords:

Guardianship - Administration - Divorce - Mixed dementia - Behavioural and psychological symptoms of dementia - Risperidone - Paranoid beliefs - Suspicion - Confusion - Allegations of control - Allegations of medication mismanagement - Letter to represented person - Suspension of enduring power of attorney - Appointment of Public Trustee as administrator - Suspension of enduring power of guardianship - Appointment of Public Advocate as guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 51, s 107, s 110H

Result:

Enduring power of attorney suspended
Public Trustee appointed as administrator
Enduring power of guardianship suspended
Public Advocate appointed as guardian

Representation:

Counsel:

Represented Person	:	In Person
Applicant	:	In Person

Solicitors:

Represented Person	:	N/A
Applicant	:	N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons for decision were delivered orally on 5 February 2025 and have been edited only to anonymise parties and correct some infelicity of expression, without variation to the substance thereof.)

Introduction

MA is a 75-year-old woman who has been diagnosed with numerous physical health issues over the last 20 years. She has needed many operations and cancer treatment twice. MA has also been diagnosed with mixed dementia (vascular and Alzheimer's) and the behavioural and psychological symptoms of dementia (BPSD). She has lived in the Nursing Home for 14 months.
The BPSD causes MA to experience paranoia, where she believes that other people are trying to harm or control her, particularly her husband PE. She is suspicious of the staff at the Nursing Home and believes they are taking her things.[1] The dementia and paranoia mean that MA cannot understand what is real and what is not.
[1] Letter prepared by Consultant in Rehabilitation and Aged Care Dr B dated 25 July 2024 (Dr B Letter), page 2 and document filed by DA (DA document) 14, paras 5 and 10 on page 2.
MA settled in well to the Nursing Home in November 2023. PE and their son DA would visit together. However, something changed in around March 2024, and PE and DA have a different view about what that was. PE says that DA started saying things to MA that were untrue.
DA says that he and MA realised that PE had being lying to them about MA's medical condition and circumstances.[2] DA and MA hold three beliefs about PE:
(a)he unnecessarily controls MA's life;
(b)he mismanaged MA's medication which caused a delirium; and
(c)he removed MA from the family home by taking her to Hospital and then to live in the Nursing Home (collectively, the Three Beliefs).
[2] Submission filed by DA dated 7 December 2024 (DA Submissions).
As I will explain in detail, I find that the Three Beliefs are not in keeping with reality. MA accepts the Three Beliefs as true because the paranoia and confusion caused by the dementia means she does not know what is real and what is not. I do not know why DA accepts the Three Beliefs as true. DA told me that he believes what his mother says and he had no reason to think she is lying. These written reasons will explain why I have found that MA is not lying but she might say things that are not true because the dementia has changed how she thinks and behaves.
When MA spoke at the hearing of 22 January 2025 (Hearing), she would change topics and talk about irrelevant things or things that may have happened in the past. I noticed that she was confused at times and would repeat herself. The dementia causes problems with her short-term memory but the problems I observed with MA's thinking were more complicated than just forgetting.
MA signed an enduring power of attorney (EPA) and enduring power of guardianship (EPG) in 2022 appointing PE as her enduring attorney and guardian. These documents allow PE to manage MA's finances and make decisions about her health and lifestyle. DA filed this application to ask the Tribunal to revoke the EPA and EPG, and to appoint him as MA's guardian and administrator.
All the evidence I have seen demonstrates that PE has followed medical advice and made good decisions for MA using the EPA and EPG. However, I have decided to suspend the operation of the EPA and EPG for one year and appoint the Public Trustee as MA's administrator and the Public Advocate as her guardian. Even though the paranoia is causing MA to mistrust PE, her distress is real to her and she is genuinely upset and believes that PE can 'control' her.
I am concerned about MA and how this decision will be communicated to her. I requested that the letter I have written to MA, which is annexed to these reasons, be read to her by the staff at the Nursing Home at a time when MA is happy and settled. The staff have agreed to do so.

Background

MA and PE married when MA was 18. They have two sons, DA and JR. All the family members that attended the Hearing acknowledged that over the course of their 57‑year marriage, MA had asked PE for a divorce many times. Sometimes she would ask during an argument and sometimes in a joking manner.
The Hospital discharge summary dated 20 October 2023 (Discharge Summary) and MA's other medical records set out a long history of physical health conditions which include the following:
(a)long-lasting pain in her hands and back;
(b)major depression and anxiety;
(c)surgery on numerous parts in her body including both shoulders, both knees, both ankles, both thumbs, three spinal fusions, weight-loss surgery, removal of gall bladder and hysterectomy. In 2022, MA required 'burr holes' to be drilled in her skull, which caused her brain tissue to soften, which may have contributed to MA's dementia diagnosis;[3]
(d)head and throat cancer, first on her tongue and tonsils, and second on her neck, with treatment including chemotherapy and radiation, which she was not expected to survive; and
(e)a non-cancerous brain cyst, which cannot be removed as it would likely cause MA's death.
[3] The Dr B Letter states that MA experienced frontal lobe encephalomalacia which may have contributed to the dementia diagnosis. DA document 14, point 1.3 on page 1 and para 3 on page 2.
PE has taken MA to all medical and other appointments. When an aged care assessment team (ACAT) assessment occurred seven years ago, MA was given approval for the highest home care package available, being level 4. The ACAT assessment recorded that in 2018 MA was a high falls risk, always required supervision and relied on PE for all meal preparation. The assessment noted that MA would retire to her bedroom from 9 pm to 9 am, and would toss and turn all night in pain.[4]
[4] ACAT assessment dated 23 April 2018, page 2.
In September 2023, PE took MA to Hospital after she had been getting lost in the house, repeatedly going hot and cold, and having uncontrolled outbursts of crying for four days.[5] The diagnosis was functional decline, mixed dementia with behavioural disturbances, complicated by aggression.
[5] Discharge summary from Hospital dated 20 October 2023 (Discharge Summary), page 1. DA document 9, page 1.
In November 2023, MA moved to the Nursing Home and everything was fine for the first few months. In about March 2024, MA started to say things that made DA realise that something was not right and PE had lied about how unwell MA was.[6] MA and DA formed the Three Beliefs.
[6] DA Submissions.
When PE was on a short holiday in May 2024, MA asked DA to take her to the local Police station. They told the Police their concerns about PE's control of MA. The Police advised them to get evidence to support their claims.[7] They needed MA's identification documents so they could get evidence from MA's doctor and from the Hospital. DA took his mother to the Department of Transport, the Registry of Births, Deaths and Marriages and Services Australia. When PE was told that DA took MA out of the Nursing Home to these places, DA says that PE told the Nursing Home they were not to let MA leave the Nursing Home unless PE approved.
[7] DA Submissions.
DA prepared letters to tape to every wall in MA's room which said, 'I want a divorce'. The letters were on her walls for a few weeks so PE could see them when he came to visit her. DA says that he has always acted on MA's instructions with her full agreement, and he will help his mother get a divorce if that is what she wants.
In August 2024, PE was told by Ms H, the Manager of the Nursing Home, that the staff were concerned about how upset MA was following visits from DA where she would sit with staff and inconsolably cry afterwards. The letter prepared in September 2024 by MA's doctor, Dr C, records the staffs' observations that DA's visits increased MA's paranoia.[8] The staff needed to give MA antipsychotic medication called Risperidone to calm her down after DA's visits. I will discuss the regular administration of Risperidone to MA later in these reasons.
[8] Letter prepared by Consultant in Rehabilitation and Aged Care Dr C dated 12 September 2024 (Dr C Letter) page 1. DA document 13, para 4 on page 1.
From August onwards, DA's visits with MA were limited to one per week. Ms Z, the Manager of Clinical Services at the Nursing Home, attended the Hearing and told me the staff noticed that MA's behaviour improved when DA's visits were reduced. She is much happier overall and no longer comes to sit with staff to cry after visits.
DA says that MA is not only upset after his visits. He says that MA is often crying when she calls him and already crying when he arrives. He can sometimes console her, and sometimes he asks the staff to medicate her. DA said that it might look like she is crying because of him, but she is venting to him. I asked DA if he agrees that her distress is caused by the dementia and paranoia. He agreed that is part of it, but believes that PE's control of MA is upsetting her the most.
PE is devastated as currently MA is refusing to see him and had not spoken to him for around 6 weeks. PE will attend the Nursing Home every day and let Reception know that he was waiting in the café if MA would like to come out and see him. PE explained that he is so upset that he will often go home to bed and cry because he does not know what to do. PE suffered a stroke in 2024 that he believes was caused by the stress of the discussions about divorce and the conflict with DA.
PE's two sisters, SU and MO, his brother WA, youngest son JR and JR's partner ND attended the Hearing in support of PE. They all spoke of the close and loving bond between PE and MA over the course of their lengthy marriage, acknowledging MA's multiple requests for a divorce. All members of the family, except DA, supported PE and did not believe that he mistreated MA in any way.
MA's friend of 30 years, LO, attended the hearing and supported MA's wish that DA be her substitute decision-maker. Also attending were Ms Z from the Nursing Home and Ms V, the representative from the Office of the Public Advocate (Public Advocate).

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, being MA. The starting point for the Tribunal is that every person is presumed to be capable of looking after themselves and making reasonable judgments, or good decisions, about their finances and personal matters. This is referred to as the 'presumption of capacity' and must be set aside before the Tribunal can consider making guardianship and administration orders.
When deciding whether to appoint a guardian or an administrator, the Tribunal must go through 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;
(b)if the evidence shows that the person lacks capacity, the second enquiry is whether there is a need for the Tribunal to make an order. The Tribunal must consider whether there is another way for decisions to be made for the person that is less restrictive on their freedom of decision and action than making orders. It is at this stage that the Tribunal will examine the operation of the EPA and EPG; and
(c)if there is a need for the Tribunal to make an order, the third stage involves the Tribunal deciding who the guardian or administrator will be, the functions or powers they need that will be the least restrictive on the person, and how long the orders will run before they are reviewed.
The Tribunal will consider all facts and circumstances to make the correct decision in MA's best interests. I have taken into account the oral evidence given at the Hearing and the written evidence filed in these proceedings, the majority of which was filed by DA. I will summarise the relevant features of the evidence in these reasons.

MA's views and wishes

The Tribunal must take MA's views and wishes into account, as expressed now and as gathered from her previous actions. MA's wish in July 2022, as recorded in the EPA and EPG, was that PE would manage her finances and personal matters. MA signed these documents when she had the capacity to decide who she wanted to make decisions for her if she was not able to. She chose her husband PE.
At the Hearing, MA told me that she could make her own decisions and she did not want PE controlling her anymore. She wanted to live in the Nursing Home and if she needed anyone to make her decisions, she wanted her son DA or the Government (meaning the Public Trustee and the Public Advocate) to be her substitute decision-makers.
MA can express her views and wishes but that is not the same as being able to make a good decision about the matters that are required to keep her safe. This is because:
(a)the medical evidence satisfies me that the dementia causes MA to be suspicious, paranoid and confused;[9]
(b)the medical evidence explains that MA does not have the capacity to make her own decisions;[10]
(c)the conversation I had with MA during the Hearing demonstrated that MA has difficulty explaining her thoughts in a sensible way, and she will speak in tangents and about random things, which satisfied me that she cannot make good decisions for herself;
(d)the conversation I had with PE and the documents I have read demonstrate that PE has made good decisions for MA. PE's decisions have kept MA safe and managed all her medical issues;
(e)the staff at the Nursing Home have not expressed any concerns about PE's behaviours or interactions with MA;[11] and
(f)when Dr C observed PE and MA in September 2024, she commended that MA was pleased to see PE and they:[12]
… seem quite convivial and in fact mutually affectionate with interaction between them …
[9] Dr B Letter and DA document 14, para 10 on page 2. Dr C Letter, page 1 and DA document 13, para 6 on page 1.
[10] Dr B Letter and DA document 14, paras 8 and 9 on page 2.
[11] Dr B Letter and DA document 14, para 10 on page 2.
[12] Dr C Letter, page 1 and DA document 13, para 6 on page 1.
The documents MA signed in 2022 allow PE to make decisions for her. The EPA allows PE to make all financial decisions for MA. MA and PE jointly own their home and they have a joint bank account that PE uses to pay all of MA's care fees. All the evidence I have reviewed demonstrates that MA's bills are paid and that PE gives her cash when she asks for it. DA has a different view, that MA should have more access to her money, and I will discuss DA's view later in these reasons.
The EPG allows PE to make decisions and give consent to matters that relate to MA's personal and lifestyle matters. This includes choosing where she will live, what medical treatment she will have, who she will have contact with and the extent of that contact.
PE, as MA's enduring guardian, followed the suggestion made by the Nursing Home to reduce DA's visits. Because PE is the enduring guardian, he is the only person that can authorise those changes if he believes it is in MA's best interests. DA has interpreted the changes to mean that PE has 'banned' him from the Nursing Home. However, I am satisfied that PE was acting protectively towards MA, and following the advice of the Nursing Home, to limit the visits to reduce the distress MA experienced after the visits.
Therefore, the EPA and EPG that MA signed provide PE with the power to make financial and personal decisions for her. The GA Act sets out the rules that PE has followed to comply with the requirement to act in MA's best interests when acting under the EPA and EPG.[13]
[13] GA Act, s 51, s 107 and s 110H.
It is very important to understand that MA appointed PE as her attorney and guardian in 2022 when she still had the capacity to decide who she wanted to make decisions for her. She chose PE as her decision‑maker when she had the capacity to make good decisions.
MA no longer has capacity, and while I will take her views and wishes into account, I know that the issues she is concerned about, being the Three Beliefs, are not based in reality. They are based on the paranoia and confusion that is caused by the dementia disease.
I will follow MA's wishes because I am persuaded that MA's distress is real, even though the reason for her distress is not. In accordance with MA's current wishes, I will appoint the Public Trustee and the Public Advocate to make decisions for her. I will suspend the operation of the EPA and EPG to allow that to happen.
I will next examine the circumstances surrounding the Three Beliefs, and specifically, the evidence of Dr B, Dr C, the staff of the Nursing Home, the documents filed with the Tribunal and the oral evidence that was given at the Hearing.

The Three Beliefs

The notes from MA's general practitioner Dr L (Dr L Notes) made in August 2023 state that MA has:[14]
… mood swings – nice as pie then nasty as anything …
[14] Dr L consultation notes (Dr L Notes), DA document 8, page 5.
An ACAT assessment dated October 2023 said that MA has:[15]
… regular mood swings with decreased social etiquette towards her husband …
[15] ACAT assessment prepared following face to face meeting on 18 October 2023, DA document 10, pages 1 ‑ 2.
These comments show that MA has been having negative thoughts and behaviours towards PE since at least August 2023.
In July 2024, Dr B met with MA. Dr B reported that MA had increasing paranoia towards PE and the staff at the Nursing Home, which most likely related to BPSD.[16] The letter prepared by Dr B states:[17]
In discussion with [MA] today, she was not aware of her current diagnosis of Dementia and her insight into any cognitive impairment is poor. She could not explain how any cognitive factors might impact her function but did agree that [the Nursing Home] was very useful as they can provide 24-hour care which she would 'at risk of at home' without. She was quite fixated on her husband being the reason that she cannot go home and the fact that previously she felt her medications were mismanaged by him. She believes she was poisoned by her husband leading to her cognitive impairment and agitated delirium which led to a hospital admission last year. Her reasoning was poor in this discussion and she was quite tangential relating to this issue.
She did not display capacity to manage her financial or medical decision making given her poor insight into her cognitive impairment and the functional impairments this causes … (original emphasis)
… [PE] has had a stroke earlier this year and is under significant stress as [MA] has been accusing him of leaving her here and poisoning her previously. She has discussed attempting to [bring] divorce legal proceedings with the help of her son [DA].
[MA] has some features of BPSD which were more severe previously with a possible element of delirium while an inpatient but she does remain suspicious of staff regarding missing objects. She did not describe any hallucinations. Her suspicion of [PE] is likely to also represent a paranoia associated with dementia if no evidence is found of any untoward actions on his behalf. From my assessment, [PE] has acted in line with prior hospital recommendations and the staff report no concerns regarding his behaviour or interactions with his wife …
… [PE] appears to have made choices in keeping with the hospital recommendations regarding care and her needs are being adequately met safely in her current facility, with no concerns from staff …
[16] Dr B Letter, page 3. DA document 14, para 5 on page 3.
[17] Dr B Letter, pages 2 - 3. DA document 14, paras 8, 9 and 10 on page 2 and para 4 on page 3.

In July 2024, Dr B also spoke with DA:[18]
I discussed with [DA] over the phone to address any of his concerns. He observed a significant improvement between hospital admission and now and was concerned [PE] had 'over inflated' the severity of [MA's] Dementia. I have explained her BPSD management as an inpatient and given her improvement over time that there could have been [an] element of delirium or alternatively [she] has improved with settling in, [and] adequate management (including regular risperidone). I have explained [the] context of at least moderate dementia with BPSD including paranoia [as] evident still. I have explained my opinion that she no longer retains capacity for changing legal documentation (EPA/EPG) and that I believe [PE] has made decisions in the past that align with the medical opinions and safety concerns (including admission to residential care) and that if he had ongoing concerns to discuss with the State Administrative Tribunal.
[18] Dr B Letter, page 3. DA document 14, para 2 on page 2.
This is what DA has done by filing this application to the Tribunal.
Two months later, MA met with Dr C for a medication review. The letter prepared following the review states that the most complex issues for MA were her significant suspicion of PE and the conflict between PE and DA. Dr C said that MA referred to numerous:[19]
… concerns and suspicions about her husband [PE] but on the other hand was quite affectionate and appeared quite pleased to see him when he arrived to visit …

My conclusion about the basis of the Three Beliefs

[19] Dr C Letter, page 1.

When I consider that the evidence shows:
(a)MA has been having negative thoughts and behaviours towards PE from at least August 2023 as recorded in the Dr L Notes made at that time;
(b)the evidence from Dr B and Dr C prepared around one year later records increasing paranoia towards both the Nursing Home staff and PE, but MA was still happy to see PE when he visits;
(c)the letters and reports I have reviewed demonstrate that PE has followed the advice of medical professionals and made good decisions for MA that was consistent with that advice; and
(d)the oral evidence given by those who attended the Hearing, particularly from MA herself, which I found difficult to follow,
I am satisfied, and I find, that the Three Beliefs are not based in reality, but are based on the paranoia and confusion that is caused by MA's dementia.
I will next address the concerns DA and MA have raised as their evidence that PE controls MA unnecessarily.

The First Belief – PE is unnecessarily controlling MA

DA gave examples of the First Belief, which is that PE unnecessarily controls MA because:
(a)he would not give MA her identification documents;
(b)he will not allow MA to have a bank account;
(c)he would not give approval for a new set of dentures;
(d)he is punishing MA for 'stepping out of line';[20] and
(e)he will not allow MA to get a divorce.

Identification documents

[20] Submissions filed by DA dated 7 December 2024.

DA says that MA asked PE for her identification and he did not give it to her. DA believes that PE taking MA's identification documents is a way for him to control her. DA thought that PE being worried that MA would lose her documents was a 'lame excuse'.
PE told me that he gave MA her identification and I believe him. I found PE to be honest and truthful when giving his evidence. His sister SU also gave evidence that PE gave MA the identification. PE says that even though he was concerned that MA may lose her identification documents, he still gave them to her, including her Medicare card and expired driver's license. She has since lost her driver's licence.
I am satisfied, and I find, that PE gave MA her identification and that he has acted protectively towards her in relation to those documents. It was appropriate for PE to be cautious about giving the identification documents to MA. There are legitimate concerns about identity theft and if MA's identification documents were found by someone that wanted to scam her or steal her identity, they might be able to do that.

MA not having a bank account

DA and MA think that PE unnecessarily controls MA's access to money. They think it is unreasonable that PE does not allow MA to have her own bank account with a bank card. DA acknowledged that everything is provided for MA at the Nursing Home so she does not need much money, but she uses cash to buy DA lunch and they spent $143 on Christmas presents last year.
DA's view is that MA can make simple financial decisions because she uses cash to buy him lunch at the Nursing Home café and collects the change from the cashier, putting it in an envelope. However, PE gave evidence that around two weeks before the Hearing, the staff at the Nursing Home told PE that MA owed them for two lunches, which PE asked to be added to MA's account. I find that this is evidence that MA is not able to make simple financial decisions, such as using cash to buy lunch.
I am satisfied that PE provides MA with cash as she requires. PE's evidence is that when MA asks for cash, he gives it to her, including two payments of $100 in December and $50 in the first week in January, totalling $350 in three weeks.
PE's decision not to arrange for MA to have her own bank account and unlimited access to a bank card was made to protect MA as I am satisfied, and I find, that:
(a)MA cannot manage her own finances;
(b)the purpose of PE's decision was not to control her, or deny MA her freedom and independence:
(c)it is appropriate that MA's spending and access to cash be monitored closely, as evidenced by the non-payment of the lunches; and
(d)the supervision and oversight PE provides is consistent with his obligations as her enduring attorney to protect her interests.[21]

Request for brand-new dentures

[21] GA Act, s107.

DA told me that he and MA wrote a message to PE stating that they want MA to have a new set of dentures because 'she is wealthy and can afford it'.
PE explained that MA chipped four of the teeth in her dentures by dropping them into the sink at the Nursing Home. PE arranged for the teeth to be repaired and when they met with MA's dentist Dr A, they were told that if there were any issues with the dentures, MA had a further appointment in May 2025 where the dentures could be reviewed.
When MA complained that food was getting under the repaired dentures because they were loose, PE reported those complaints to Dr A. Dr A suggested that PE use some sealer to secure the dentures, and to let her know if there were any further problems.
PE's evidence shows that he has been responsive to MA's concerns and consistently sought advice from an appropriately qualified professional. I am satisfied, and I find, that PE's actions of:
(a)arranging for the dentures to be repaired;
(b)reporting concerns back to the dentist; and
(c)following further advice given,
are an appropriate exercise of his obligations towards MA in respect of her finances as her enduring attorney and in relation to her dental treatment as her enduring guardian.

MA is being punished

DA's view is that PE has 'banned' him from the Nursing Home to punish MA and stop her from strategising with DA about the divorce and Family Court proceedings.[22] DA stated that when the Tribunal proceedings were finalised, he intended to make an application to the Family Court for a divorce.
[22] DA Submissions.
Ms Z gave detailed evidence that the restriction on DA's visits came about because the staff noticed a pattern where DA was visiting almost every day and after the visits, MA would always be in tears. Ms Z recalled that on multiple occasions, MA would sit with the staff, talk about historic personal matters and say that she wanted to divorce PE. The only way the staff could calm her down was to give her Risperidone. As mentioned earlier in these reasons, since the frequency of the visits have been reduced, the staff have noticed that MA is more settled and happier.
I am satisfied, and I find, that:
(a)it was reasonable for PE to accept the recommendation of the Nursing Home and limit the visits with DA to reduce the distress MA experienced following the visits;
(b)limiting DA's visits was not an action taken to punish MA; and
(c)it was in MA's best interests to reduce the visits.

Divorce

I asked MA how her life would be different if she was divorced. She said that she would have freedom and PE would not tell her what she can and cannot do anymore. MA told me that she was raised in a strict Catholic family. The traditional Catholic wedding vows, which are common in Australia, involve each partner stating that they take the other as their lawful husband or wife:
to have and to hold from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part. I will love and honour you all the days of my life.
I do not have evidence of the exact marriage vows or promises that PE and MA made to each other 57 years ago, but I am satisfied, and I find, that it is reasonable for PE to refuse to make an application for divorce when his wife has a diagnosis of dementia and suffers from paranoia.

The Second Belief – medication mismanagement

The Second Belief is that PE gave benzodiazepines to MA to deliberately cause a delirium and accelerate her dementia.
DA filed documents with the Tribunal that he says demonstrate that:
(a)the problems MA is experiencing are caused by delirium, which can resolve over time, and not dementia, which is a steady decline in someone's ability to think;[23]
(b)the symptoms MA has experienced such as aggression, refusal to cooperate, mood swings, delusions and loss of 'filter' can be symptoms of delirium;[24] and
(c)a mild cognitive impairment can be caused by the side effects of medication.[25]
[23] DA document 16, page 3.
[24] DA document 16, pages 6 - 7.
[25] DA document 22, page 3.
DA also relies on:
(a)the Dr L Notes;[26] and
(b)the Discharge Summary,
to say that PE gave MA benzodiazepines to accelerate her dementia and cause a delirium.
[26] DA document 8, pages 1 - 5 are consultation notes dated from 7 June 2022 to 25 August 2023.
The Dr L Notes refer to discussions Dr L had with PE to explain the risks of benzodiazepines and how they are 'terrible for cognitive impairment'.[27] I accept that Dr L made PE aware of the risks of MA taking benzodiazepines and that Dr L continued to prescribe benzodiazepines to MA.
[27] Dr L Notes dated 25 August 2023, DA document 8, page 5.
In support of his contention that MA should not have been given benzodiazepines by PE, DA points to the fact that MA was taken off benzodiazepines when she attended Hospital. DA submits that:
(a)within three weeks, her behaviour improved and she was calm; and
(b)within five weeks, she was fixed.
However, this explanation of the change in MA's behaviour does not take into account the new medication she was prescribed to manage her behaviours, which is called Risperidone.
Risperidone is an antipsychotic medication that may be prescribed to dementia patients to treat agitation, aggression and delusions, and it can stabilise the person's mood and behaviour.[28] Like benzodiazepines, Risperidone can have a sedative, or calming, effect when a person becomes agitated or upset. This medication is often prescribed on a 'prn' basis, which means that the medication is given as needed.[29]
[28] Dementia in Australia, Antipsychotics and other medications dispensed to people with dementia - Australian Institute of Health and Welfare (
[29] 'prn' is an abbreviation for the Latin term pro re nata which means 'as the thing is needed'. In the context of medication, it means that the administration of medication is not scheduled but taken as needed.
Risperidone was prescribed for MA by the Hospital to treat dementia 'with behavioural disturbance' with half of a 1 mg tablet given to MA every evening. She was also prescribed an extra quarter to half a tablet every 4 hours for agitation, up to a total of 2 mg in 24 hours.[30] I will discuss the continued use of Risperidone 'as needed' to manage MA's agitation in the Nursing Home later in these reasons.
[30] Discharge Summary, page 5 and DD Document 9 on page 5.
There was a significant change in MA's behaviour over the course of her 6-week admission to Hospital. There were multiple 'code blacks' throughout the admission where restraints were required.[31] PE recalls one occasion where four security guards had to be called to get MA back into bed before she could be given an injection to calm her down.
[31] A 'code black' is an alert used by hospital staff to warn others of a threat or existing aggressive incident towards a staff member.
MA was reviewed by a psychogeriatrician,[32] who commented in the Discharge Summary:[33]
> ongoing review in light of multiple code blacks
> antipsychotics altered; commenced regular risperidone, prns charted for code blacks
> behavioural interventions
- delirium screen: [no abnormalities detected]
- behaviour much more settled
- no more code blacks since 08/10/23
[32] A psychogeriatrician is a psychiatrist who specialises in treating mental and emotional disorders in elderly people.
[33] Discharge Summary, page 2. DA document 9 on page 2.
Risperidone could be safely trialled while MA was in Hospital as her response to the medication could be closely monitored. It appears that Risperidone has been successful in treating MA's symptoms due to its continued prescription.
I do not accept DA's suggestion that PE took steps to deliberately harm MA by continuing to fill the prescriptions for benzodiazepines prepared by Dr L. I acknowledge that Dr L warned PE of the side effects of benzodiazepines, however I am satisfied that the medical records demonstrate that MA has a history of anxiety and difficulty sleeping due to pain, which is likely what the benzodiazepines were prescribed to treat.
The Dr L Notes demonstrate that benzodiazepines had been prescribed to MA from at least prior to June 2022, which was 14 months before she was admitted to Hospital.[34] The fact that the Hospital stopped giving MA benzodiazepines does not mean that they were not appropriately prescribed by Dr L at an earlier time.
[34] Dr L Notes dated 7 June 2022 and DA document 8 on page 1.
I am satisfied, and I find, that there is no evidence before the Tribunal that indicates that PE mismanaged MA's medication or harmed her in any way. The consistent evidence from MA's doctors, the Nursing Home staff and all family members save for DA is that PE has acted, and continues to act, in MA's best interests.

The Third Belief – MA was ejected from the family home by PE

In support of the Third Belief that PE 'kicked' MA out and refused to take her home when she was ready to be discharged, resulting in her admission to the Nursing Home, DA relies on the following comment in the Discharge Summary:[35]
Husband reports not being able to cope at home with patient.
[35] Page 1 of discharge summary dated 20 October 2023.
DA's reasoning is as follows. DA asserts that PE and MA do not have a 'usual' marriage because they have slept in separate bedrooms for decades. DA explained that historically it was difficult for women to leave a marriage, particularly in MA's case as she had two small children. DA suggests that PE and MA had previously agreed to be co‑owners/cohabitants to keep their home. That was the agreement until PE changed his mind and 'kicked' MA out of their home.
DA accepted that he had been an adult for around 30 years and his mother took no steps to obtain a divorce before she became unwell. The evidence records multiple cancer treatments and operations that MA had endured over the last 20 years, as well as the chronic pain which causes her to toss and turn in pain all night, as referred to in the ACAT assessment prepared in 2018. PE's devotion to MA, as her carer, her family and her husband of 57 years, in my view, demonstrates exactly what a marriage is, regardless of whether they sleep in the same bedroom or not.
When explaining the comment in the Discharge Summary, PE gave evidence that he told the doctors that he did not know how to care for MA when she was in this state, as it had never happened before. He told the doctors he would not take MA home until they could provide a diagnosis. I find that PE was advocating strongly for his seriously unwell wife to ensure she would receive the appropriate care and treatment.
I am satisfied that PE's comment as recorded in the Discharge Summary, that he was no longer able cope at home with MA, was accurate because he persevered for four days when she was acutely unwell before taking her to Hospital when he was no longer able to cope with caring for her at home.
The Discharge Summary states that the allied health team's view was that it was no longer suitable to care for MA at home.[36] I am satisfied, and I find, that PE decided that MA should move to the Nursing Home because he was following that advice.
[36] Discharge Summary, page 1.
I will next examine the three states of enquiry to determine whether or not to appoint a guardian or an administrator for MA.

Stage 1 - does MA lack the capacity to make her own decisions about her personal and financial matters?

(1)(a) When can an administrator be appointed? The test for incapacity

To appoint an administrator for MA, I must be satisfied that she is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate.

(1)(b) Does MA have a mental disability?

The medical evidence filed with the Tribunal confirms that MA has a diagnosis of mixed dementia, being vascular and Alzheimer's dementia.[37]
[37] Discharge Summary, Dr B Letter and medical report prepared by Dr B dated 2 January 2025, Dr C Letter and medical report prepared by Dr C dated 2 January 2025.
I find that the diagnosis of mixed dementia falls within the meaning of 'mental disability' as defined in the GA Act.

(1)(c) Does the mental disability cause MA to be unable to make reasonable judgments about her estate?

For the Tribunal to decide whether MA is 'unable' to make reasonable judgments about her estate, I must consider the extent to which MA is able to engage in the cognitive process required to make a 'reasonable judgment' and then compare that against MA's estate and circumstances.
A person's 'estate' includes their real and personal property, all assets and liabilities, and all of their financial affairs. MA's estate consists of her jointly owned home with PE and funds held in joint accounts. MA mentioned that she has some savings in a safe in the family home. Her ongoing expenses are her fees at the Nursing Home, medical expenses and the costs relating to the family home she owns with PE.
MA took multiple Montréal cognitive assessment tests. A score of 24 or higher indicates no impairment or 'normal'. If a score of less than 24 is achieved, it may indicate a cognitive impairment. MA obtained the following scores:
(a)on 17 February 2023, she scored 21/30;[38]
(b)on 4 April 2024, she scored 15/30;[39] and
(c)on 8 July 2024, she scored 19/30.[40]
[38] Dr L Notes dated 17 February 2023, DA document 8 on page 3.
[39] DA document 12 on page 2.
[40] DA document 12 on page 1.
In medical reports prepared by Dr B and Dr C, both doctors confirm that MA is not capable of making decisions about her financial, legal or personal matters, and she is not capable of signing a new enduring power of attorney or enduring power of guardianship.[41]
[41] Medical report prepared by Dr B dated 2 January 2025 and medical report prepared by Dr C dated 2 January 2025.

DA's evidence is that if the options are explained to MA, she can make a good decision for herself. I do not accept DA and MA's suggestion that she can make decisions about her financial matters, which would involve paying her ongoing fees at the Nursing Home and her medical specialists.
DA gave evidence that MA has offered to give him her money from the sale of PE and MA's home, when they are divorced, to pay off his mortgage. I am satisfied that gifting her money to DA would not be a reasonable financial decision made in MA's best interests as she would need that money to pay her ongoing care fees and medical costs. Her aged pension does not cover these costs, as PE has ensured that MA receives all extra services available from the Nursing Home at a significant, but affordable, cost to the couple.
DA said that he would not accept the money from his mother, which suggests that he agrees that such a decision is not in his mother's best interests. I also refer to MA's inability to consistently pay for DA's lunch once per week in the Nursing Home café.
In my view, there is no doubt that the diagnosis of mixed dementia identified by MA's medical specialists is the cause of MA's inability to make reasonable judgments in respect of her estate. MA gave evidence that she was previously able to manage her own money, and PE said that he only needed to take over the management of their finances once her physical decline began and she was no longer mobile. I am satisfied that MA's cognitive decline is the reason that she is now unable to manage her finances.
I am satisfied, and I find, that the mental disability is the cause of MA's inability to make reasonable judgments in respect of her estate.

(1)(d) Conclusion on capacity to make financial decisions

Having regard to the documentary and oral 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 MA's ability to make reasonable judgments in respect of her estate. MA is therefore a person for whom I can appoint an administrator.

(1)(e) When can a guardian be appointed? The test for incapacity

To appoint a guardian for MA, I must be satisfied that she is over 18 years of age and that one or more of the following criteria apply:
(a)she is incapable of looking after her own health and safety;
(b)she is unable to make reasonable judgments in respect of matters relating to her person; or
(c)she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.

(1)(f) Does MA lack the capacity to make personal decisions?

I am satisfied, and I find, that MA is currently incapable of looking after her own health and safety. Ms Z advised that MA requires regular reminders for activities and will refuse assistance with her activities of daily living. By way of example, MA recently developed rashes on her limbs. After investigation, it was found that she had been using shower cream, which is soap, as moisturising lotion.[42]
[42] Service provider report from Ms Z dated 17 January 2025 (Ms Z Report) page 5.
I am satisfied, and I find, that MA is currently incapable of making reasonable judgments in respect of her person. Ms Z states that MA is unable to understand advice of her treating medical professionals and lacks insight into her medical conditions, treatment, support and accommodation needs.[43] The medical reports from Dr B and Dr C echo this view.
[43] Ms Z Report, page 4.
I am satisfied, and I find, that MA is in need of supervision and oversight in order to protect her health and safety. In addition to the example given about the incorrect use of soap, the Nursing Home needed to recommend that her visits with DA be limited to once per week, and that she be given Risperidone as needed, to protect her emotional safety.

(1)(g) Conclusion on capacity to make financial decisions

Having regard to that evidence, I am satisfied on the balance of probabilities, and I find, that the presumption of capacity has been set aside in respect of MA's ability to make reasonable judgments in respect of her person. MA is therefore a person for whom I can appoint a guardian.

Stage 2 - is there a need for orders or a less restrictive option available?

There is no doubt that MA requires assistance to deal with her estate and to make decisions about her personal matters. The question I need to answer at this stage is not whether she needs assistance, but whether she needs an administrator or guardian appointed for that purpose. I must adopt a less restrictive option if possible, so it is necessary to examine whether the EPA and EPG are a less restrictive way for decisions to be made in MA's best interests.
As mentioned, I have no criticism or concern about any decision made by PE in his role as enduring attorney or enduring guardian. However, the distress that MA is currently expressing is real for her. This satisfies me that the Tribunal needs to appoint substitute decision‑makers so that MA will know that the Government is making decisions for her. She may perceive that she has more independence and control.
I am also satisfied, and I find, that it is appropriate that I suspend the EPA and EPG as it is possible that at some point in the future, PE may be able to resume his roles at a time where it would not distress MA.
I am satisfied that the Tribunal needs to appoint substitute decision‑makers for MA only for a short period of time, to follow her wishes and allow her to feel like she is not being controlled. The public appointments are also necessary to protect PE from the responsibility of making decisions about contact between MA and DA, which have had an immense physical and emotional impact on him.
I next turn to explain who should be appointed as the guardian and administrator, what functions are required and how long the orders should run for.

Stage 3 – who, what and how long?

(3)(a) Who should be MA's administrator?

When considering the appointment of an administrator, the Tribunal must hold the opinion that the administrator will act in the best interests of MA, is suitable to act as the administrator of her estate and will be able to perform the functions vested in them.
DA has proposed himself for nomination, either solely or jointly with the Public Trustee. I find that DA is over the age of 18 years and has consented to act as the administrator. However, I find that DA will not be able to perform the role of administrator and manage MA's estate protectively in her best interests, and he is not suitable to act as MA's administrator, due to his stated intention to allow her to live how she wants.
DA acknowledged that an administrator would have to say 'no' to protect MA's best interests, but DA views his father's actions in limiting his mother's access to money as controlling and abusive, rather than protective and necessary. DA told me that he did not want to be the next person to control his mother.
DA told me that he would place minimal restrictions on MA's access to her finances, holding the view that it is her money, her life and she should be able to live the way she wants, including having access to a bank account with a bank card. DA stated that he would not give her $50,000 in cash but $5,000 may be permissible for a purchase such as jewellery, if it was something she really wanted. I find that such a decision would not be sufficiently protective of MA's finances.
I am satisfied, and I find, that the appropriate person to be appointed the administrator of MA's estate is the Public Trustee. A joint appointment between DA and the Public Trustee would not be practical.

(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 MA's estate in her best interests. I am satisfied that MA cannot make even simple financial decisions, which is supported by the evidence of Dr B and Dr C.
I will include a gifting authority of $500 per year so the administrator can purchase gifts on MA's behalf as the evidence before the Tribunal is that she likes to buy Christmas presents for her family. I will also include the usual authorisation required for married couples with joint accounts to allow the administrator to spend 'MA's money' on PE.

(3)(c) Who should be MA's guardian?

When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in the best interests of the person, is suitable to act as the guardian, is not in a position where their interests' conflict or may conflict with MA's interests and that the proposed guardian will be able to perform functions of the guardian.

DA has proposed himself as MA's guardian, either individually or with the Public Advocate. I find that DA is over the age of 18 years and has consented to act as the guardian. However, I am not satisfied that DA is able to act in MA's best interests as I am not confident that DA really understands how MA's illness affects her.
DA explained that he believes what MA says because he has no reason to believe that she is lying. This response does not account for how MA's illness affects her thinking and behaviour, and that she might say she wants a divorce or a brand-new set of dentures, but that does not mean that those things should happen.
I am concerned that DA would follow all of MA's wishes without considering whether granting that wish would be in her best interests or not, because DA is not able to distinguish whether her requests are caused by her illness or not. DA accepts the Three Beliefs, which I find are not in keeping with reality. DA genuinely believes that his father is controlling his mother, he gave her benzodiazepines to harm her and he kicked her out of their home.
DA's own evidence is that he thought he was living in a normal family for his entire 56 years until recently when he came to believe that something was not right. The only change is that his mother is now paranoid and confused, which is caused by dementia.
I hope that these written reasons help DA to understand his mother's illness better and that he re-reads the documents he has filed with the Tribunal. These documents support my findings that his mother is seriously unwell and his father had made appropriate decisions to look after her.
I am satisfied that the only option open to the Tribunal is to appoint the Public Advocate as MA's guardian.

(3)(d) What functions should the guardian have?

Medical treatment

I find that MA requires a medical treatment guardian to give informed consent to medical treatment and procedures, as due to her complex medical history, it is likely that further medical treatment decisions will need to be made. It is in MA 's best interests that:
(a)all health professionals that treat MA know who has the authority to give informed consent to medical treatment decisions for her; and
(b)MA knows that the 'Government' is giving that consent.
The appointment of the Public Advocate will not prevent PE from arranging or taking MA to appointments. The day-to-day management of her medical issues should continue as they always have, as PE has an extensive understanding of her medical conditions and various specialists. I am satisfied on the evidence before me that there is no other person more appropriate to continue to manage the day‑to‑day aspects of MA's health and medical treatment than PE.
MA's guardian would also have the authority to arrange for MA, if possible or appropriate, to receive counselling to help her move past the Three Beliefs and to reunify with her family members.[44] In addition to PE, PE's sister SU states that she had not visited MA at the Nursing Home for around 2 months because of the conflict and the difficulties with communicating with MA when she was continuously speaking negatively about PE.

Contact

[44] Counselling for the family may also be in MA's best interests.

I find that it is in MA's best interests that her guardian has the authority to decide who she will have contact with and the extent of that contact to protect MA's supportive, meaningful relationships, most importantly with PE.
While the Nursing Home has made suggestions about the frequency of DA's visits with MA, it does not appear that consideration has been given to the frequency of MA's telephone contact with DA. DA gave evidence that he speaks with his mother by telephone often three or four times per day and they will often discuss the Three Beliefs, which may have reinforced the Three Beliefs between their weekly visits.

Next friend

The issue of whether or not to apply for a divorce can be considered by a guardian with a next friend function.

Restrictive practices in aged care

MA is receiving Risperidone to alter her behaviour, which constitutes a restrictive practice in an aged care setting. It is therefore necessary that MA's guardian have the authority to consent to this medication and any other restrictive practices and BPSD interventions that may arise.

Conclusion in relation to functions

I am therefore satisfied that there is a need for a guardian appointed by the Tribunal to make decisions for MA about her medical treatment, contact, the legal function of next friend and aged care restrictive practices.

(3)(e) How long should the orders run before review?

When making orders, the Tribunal must fix a period for the review of the order, the maximum period allowed being five years. The medical evidence is clear that MA has a diagnosis of dementia, which is a progressive illness, meaning that she will need a substitute decision‑maker for the rest of her life.
As MA's illness progresses and if the Three Beliefs are no longer being reinforced, it is possible that in 12 months' time, MA may no longer be distressed if decisions were made using the EPA and EPG she signed in 2022.
Therefore, these orders are to be reviewed within 1 year.

Orders

GAA 6203 of 2024
The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, [MA] 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 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).
3.The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person.
4.The enduring power of attorney dated 12 July 2022 by which the represented person appointed [PE] to be their attorney, is suspended until further order of the Tribunal.
5.The administrator is authorised to apply or expend moneys of the represented person, whether income or capital, for the maintenance, necessaries, comforts and benefits of the represented person or the spouse of the represented person, in such manner and to such extent as the administrator, having regard to the circumstances and the value of the estate of that person, considers proper and reasonable.
6.The Public Trustee is to be provided with copies of all documents on files GAA/6203/2024 and GAA/6230/2024.

7The administration order is to be reviewed before 5 February 2026.

Guardianship
8.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 make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(b)to determine what contact, if any, the represented person should have with others and the extent of that contact;
(c)as the next friend of the represented person, commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person; and
(d)to decide whether to give or withhold consent to the use of any restrictive practices for the represented person proposed from time to time in compliance with Part 4A of the Quality of Care Principles 2014 made pursuant to the Aged Care Act 1997 (Cth).

9.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.
10.The guardianship order is to be reviewed before 5 February 2026.

GAA 6230 of 2024
The Tribunal notes:
1.[MA] signed an enduring power of guardianship on 12 July 2022 appointing [PE] to be her enduring guardian.

The Tribunal orders:
2.The operation of the enduring power of guardianship is suspended until further order of the Tribunal.

Annexure – letter to [MA]

Dear [MA],

My name is Member Bunney and I spoke to you and your family about a week ago at a meeting. I was on the screen that you were watching at [the Nursing Home] with [Ms Z and LO].

I've been thinking about who should help you with important decisions about your money, health and lifestyle. [PE] has been making these decisions for you, and he has been able to do that because you signed an enduring power of attorney and enduring power of guardianship a few years ago.

I have read various reports from your doctors. I have also talked to [Ms Z] who has come to know you really well since you have been living at [the Nursing Home]. I have thought a lot about what everyone had told me, but most importantly, what you told me.

Everything I have read and heard tells me that [PE] has made good decisions for you. When you were at hospital, the doctors told [PE] that you would need to move into a nursing home. [PE] wanted you to live in your home for as long as possible but it wasn't safe for you anymore. He chose [the Nursing Home] because he wants you to have the very best. You told me that you really like it and you want to keep living there. I was happy to hear that you are being looked after so well.

I have decided that the Government will make decisions for you because that is what you told me you want. The Public Advocate will be your guardian to make decisions about your personal and lifestyle matters. The Public Trustee will be your administrator to look after your money. Someone from [the Nursing Home] will be able to help you talk to your guardian and administrator.

I have made this decision after thinking for a long time about you and your family, who have all said very nice things about you. You deserve to be happy and spend time with all the people that love you so much. In one year, we will have another meeting so I can talk to you about what you want and to see if anything has changed.

I wish you all the very best.

Member Bunney

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
7 FEBRUARY 2025