NG - [2025] WASAT 51 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   NG [2025] WASAT 51
MEMBER:   DR E MARILLIER, SENIOR MEMBER
HEARD:   14 JANUARY 2025
DELIVERED          :   13 FEBRUARY 2025
PUBLISHED           :   5 JUNE 2025
FILE NO/S:   GAA 5308 of 2024

NG
Represented Person
DG
Applicant

Catchwords:

Guardianship and administration - Whether enduring power of attorney could function as less restrictive alternative

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 40, s 64, s 68, s 68(3), s 106, s 108

Result:

Public Trustee appointed plenary administrator
Enduring power of attorney revoked

Category: B

Representation:

Counsel:

Represented Person	:	In Person
Applicant	:	Mr J Steedman

Solicitors:

Represented Person	:	N/A
Applicant	:	Steedman Stagg Lawyers

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

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The oral reasons for the decision in the matter were delivered on 13 February 2025. An application was received from the applicant seeking costs from his brother. To give the costs decision context, the oral reasons for decision are now published below in anonymised form. The decision on costs which was determined on the papers follows thereafter.
This matter is an application under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act) seeking the appointment of an administrator for NG. The application is made by her son D and was initially an application under s 106.
NG is now 96 years old. She executed an enduring power of attorney (EPA) in 2013 appointing her late husband A and son D as her joint and several attorneys with the power in force notwithstanding her subsequent incapacity. Her other son N2 was appointed as the substitute attorney with his powers to commence on the death or incapacity of either A or D.
The application was made because NG has moved to residential care and a refundable accommodation deposit (RAD) needs to be paid. NG, D and N2 all acknowledge the need for her property to be sold to raise the RAD as she is currently paying very high fees for her accommodation and care. They even agree on which real estate agent should conduct the sale. The only impediment has been that N2 was unwilling to complete the necessary statutory declaration for the EPA to be registered at Landgate as it had not been registered within three months of execution.
The application under s 106 of the GA Act (which is to make a declaration of incapacity to bring an EPA into force where the donor has elected that method to bring the enduring power into force, which is not the case here) had been made in the hope that the Tribunal could make some order that would allow D to unilaterally register the EPA at Landgate. The Tribunal has no such power under s 106 and so at a directions hearing on 31 October 2024 I accepted an oral application under s 40 for the appointment of an administrator.

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: NG [2025] WASAT 51
Case: [2025] WASAT 51
Decision Date: 5 JUNE 2025

CaseChat Overview and Summary

In this matter, the Public Trustee sought a declaration that [NG], an elderly woman with cognitive impairments, lacked the capacity to manage her estate and to be appointed as her administrator. The respondent, [NG], contested the application and argued that her enduring power of attorney could function as a less restrictive alternative to the appointment of an administrator. The dispute was heard in the Mental Health Tribunal of Western Australia. The central legal issues were whether [NG] was unable to make reasonable judgments in respect of her estate and, if so, whether an enduring power of attorney could be a less restrictive alternative to the appointment of an administrator. The Tribunal found that [NG] was unable to make reasonable judgments in respect of her estate and, as such, required an administrator. The Tribunal dismissed the contention that the enduring power of attorney could serve as a less restrictive alternative, holding that the enduring power of attorney did not provide sufficient safeguards and oversight to ensure that [NG]'s best interests were protected. The Public Trustee was appointed as the plenary administrator of [NG]'s estate. The Tribunal authorised the administrator to expend up to $1,000 per annum on gifts on behalf of [NG] and revoked the enduring power of attorney dated 26 June 2013. The administration order was to be reviewed before 13 February 2030.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal makes the following orders:1.The Tribunal declares that the represented person, [NG] is:(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; and(b)in need of an administrator of her estate. Administration2.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 $1,000 per annum on gifts on behalf of the represented person. 4.The enduring power of attorney dated 26 June 2013 by which the represented person appointed [AG], [DG] and [N2] to be their attorneys, is revoked. 5.The administration order is to be reviewed before 13 February 2030.