NI
[2025] WASAT 60
•27 JUNE 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: NI [2025] WASAT 60
MEMBER: MS R BUNNEY, MEMBER
HEARD: 4 JUNE, 11 JUNE 2025 AND ON THE PAPERS
DELIVERED : 24 JUNE 2025
PUBLISHED : 27 JUNE 2025
FILE NO/S: GAA 2103 of 2025
GAA 2250 of 2025
NI
Represented Person
CARE PROVIDER
Applicant
AM
Third Party
Catchwords:
Guardianship - Administration - Enduring power of attorney - Enduring power of guardianship - Family conflict - Revocation of enduring power of attorney and enduring power of guardianship - Diligence of attorney - Delegation of authority of attorney - Appointment of Public Trustee as administrator - Appointment of Public Advocate as guardian
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 51(2)(g), s 104(1)(b)(i), s 107, s 109(1)(c), s 110H, s 110ZD
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4)
Result:
Enduring power of attorney revoked
Public Trustee appointed as administrator
Enduring power of guardianship revoked
Public Advocate appointed as limited guardian
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
| Applicant | : | In Person |
| Third Party | : | Mr M |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | N/A |
| Third Party | : | P Legal |
Case(s) referred to in decision(s):
EW [2010] WASAT 91
Scott v Scott [2012] NSWSC 1541
Szozda v Szozda [2010] NSWSC 804
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
NI is aged in his 90s and has a diagnosis of advanced Alzheimer's dementia. His daughters, AM and SC, do not get along. AM is NI's enduring attorney and enduring guardian, so she makes decisions for him about his finances and personal matters.
NI is currently living in a transitional care program with the Care Provider. The Care Provider made the application to the Tribunal because AM instructed them that SC was not to have contact with NI or be told any information about him. In addition, NI owed a debt to the Care Provider for a previous stay in transitional care in 2023.
Regrettably, the Tribunal was provided with an incorrect email address for AM. So while other parties to this matter received notice of the hearing in late April 2025, AM did not become aware of the Tribunal proceedings until 30 May 2025.
The Tribunal was informed on 4 June 2025 that AM intended to remove NI from transitional care with the Care Provider. A directions hearing was listed urgently and orders were made on 4 June 2025, with AM's consent, that she would not make any decisions about NI's accommodation until further order of the Tribunal.
The matter was heard on 11 June 2025 and the parties were permitted to file further submissions and documents. On 23 June 2025, I made orders to revoke AM's appointments as enduring guardian and enduring attorney. I appointed the Public Advocate as NI's limited guardian and the Public Trustee as his plenary administrator. These are the reasons for my decision.
Principles to be observed 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, NI.
The starting point for the Tribunal is that every person is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments about matters relating to their estate and their person. This is referred to as the 'presumption of capacity' and if set aside by clear and cogent evidence, the Tribunal can consider making guardianship and administration orders.
The Tribunal must consider whether NI's needs could be met by any other means less restrictive on his freedom of decision and action. If the Tribunal makes an order, the order must impose the least restrictions possible on him. The Tribunal must also take into account NI's views and wishes.
The Tribunal will take all facts and circumstances into account when determining NI's best interests. The Tribunal may inform itself on any matter as it sees fit, and is not bound by rules of evidence, which ensures, as far as possible, that all relevant information can be considered by the Tribunal to make the correct decision in NI's best interests.[1]
[1] State Administrative Tribunal Act 2004 (WA), s 32(2) and s 32(4).
Issues
When deciding whether to appoint a guardian or an administrator, the Tribunal must determine whether NI lacks the capacity to make decisions about his personal and financial matters. If so, the Tribunal will consider whether there is a need to make an order, or whether is there is another way for decisions to be made for NI that is less restrictive on his freedom of decision and action. If the Tribunal needs to make an order, the Tribunal must then decide who the guardian or administrator will be, the functions or powers they require, and when the order will be reviewed.
The most contentious issue in this matter is whether AM should continue to manage NI's personal and financial decisions as his enduring attorney and enduring guardian.
NI's views and wishes
The Tribunal must take NI's views and wishes into account, as expressed, or as gathered from his previous actions. NI did not attend the hearing of 11 June 2025 but he expressed his wish on 24 February 2022, as recorded in the enduring power of attorney (EPG) and the enduring power of guardianship (EPG), that AM would manage his financial and personal matters.
However, in all the circumstances, I am satisfied that it is not in NI's best interests to follow his views and wishes in determining this application.
Evidence
AM was represented by experienced counsel and attended the hearing with her daughter MO, son-in-law MM and granddaughter SO. SC attended with her daughter SS. Ms T, an investigator advocate (Investigator) from the Office of the Public Advocate (Public Advocate) attended to advocate for NI in his best interests. Representatives from the Care Provider, Ms A and Ms B, attended by videolink.
I had regard to the written evidence filed with the Tribunal and the oral evidence given at the hearing. SC and AM were given the opportunity to file any further written submissions or text messages. The relevant features of the written and oral evidence are summarised in these reasons.
Findings of fact
The facts set out in [17] to [23] below are not controversial and I make findings in accordance with those facts.
NI's wife, NW, had a stroke in late 2020. Hospital C made an application to the Tribunal for guardianship and administration orders for NW in December 2020. The Public Trustee was appointed as NW's administrator and the Public Advocate was appointed as her guardian. NW sadly passed away in the second half of 2021.
NI's health deteriorated in 2023 and he spent a significant amount of time in hospital from mid-January to August 2023. On 23 August 2023, he was admitted to transitional care with the Care Provider while the family investigated residential aged care.
On 27 December 2023, AM discharged NI from the Care Provider and took him home. No payment was made to the Care Provider for the four months that NI resided there. The current amount outstanding in respect of the 2023 admission is just over $9,000.
From 27 December 2023 to June 2024, SC and her family did not have contact with NI.
NI was admitted to Hospital C in June 2024. He spent time in Hospital O and Hospital F until he was transferred back to the same Care Provider on 15 April 2025.
The Care Provider attempted to contact AM on 15 April 2025 to discuss NI. As they were unable to reach her, they called SC. When they later spoke with AM, she told them that they were not to speak to SC about NI and they were not authorised to let SC see him. There was no information on NI's file about a restraining order and no notes on the file that would explain why SC was not to have contact with NI.
The Care Provider made this application to the Tribunal on 17 April 2025. The Public Trustee was appointed as NI's emergency administrator to protect and secure NI's estate until the matter could be heard.
Does NI have the capacity to make his own decisions about his personal and financial matters?
To appoint an administrator for NI, I must be satisfied that he is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate.
At law a mental disability includes dementia.[2] NI was assessed by Dr NS in May 2025, who confirmed the diagnosis of Alzheimer's dementia which had been progressive over years.[3] Dr NS's view is that NI is unable to make decisions about simple or complex financial matters. Dr NS noted that NI had very limited communication and was unable to respond to simple questions relating to financial or personal matters in either English or his first language.
[2] GA Act, s 3.
[3] Medical report by Dr NS dated 23 May 2025.
For the Tribunal to decide whether NI is 'unable' to make reasonable judgments about his estate, I must consider NI's estate and circumstances and then compare that against the extent to which NI is able to engage in the cognitive process required to make a 'reasonable judgment'.
A person's 'estate' includes their real and personal property, all assets and liabilities, and all their financial affairs. NI is wealthy but his estate is simple and consists of two properties next door to each other which are owned in the names of NI and his late wife. The Residential Property has been his residence since it was purchased. The Investment Property, recently valued at $1,300,000, has been rented out for years. AM intends to sell the Investment Property to pay the deposit for NI to move into residential aged care.
NI has two bank accounts with nominal balances and receives a part-pension. He has received $400 per week in rental income from the Investment Property until recently as the tenants have moved out in order for it to be readied for sale.
NI currently owes $12,112.83 to the Care Provider, which is understood to be made up of around $9,000 that has been owing since 2023 and the fees he has incurred since April 2025. NI also owes approximately $6,000 or $7,000 to his son-in-law MM. He also owes AM funds for bills she has paid on his behalf that she has not been able to reimburse herself.
I am satisfied that NI lacks capacity to make reasonable decisions about simple financial matters, such as paying routine bills, as well as making complex financial decisions, such as selling a property to pay for aged care.
In my view, there is no doubt that the diagnosis of dementia is the cause of NI's inability to make reasonable judgments in respect of his estate. The evidence set out in the aged care assessment team (ACAT) assessment, which I accept, is that NI previously worked, earned his own income, lived independently with his wife and make his own financial decisions until the decline caused by his illness.[4]
[4] ACAT Assessment prepared following face-to-face meeting at Hospital F on 31 July 2023 (ACAT Assessment).
I am satisfied, and I find, that the presumption of capacity has been set aside in respect of NI 's ability to make reasonable judgments in respect of his estate. NI is therefore a person for whom I can appoint an administrator.
I next turn to explore whether NI can make decisions about his personal matters.
Does NI lack the capacity to make personal decisions?
I am satisfied, and I find based on the report prepared by Ms A,[5] that:
(a)NI is currently incapable of looking after his own health and safety. NI requires 24/7 care in memory support accommodation;
(b)NI is currently incapable of making reasonable judgments in respect of his person. NI is confused and is not able to participate in conversations; and
(c)NI is in need of supervision and oversight in order to protect his health and safety. NI is agitated and can be fearful when receiving care and has physically lashed out. However, this has been managed by the Care Provider by giving a chemical restraint, risperidone, with good effect.
[5] Service Provider report by Ms A dated 5 May 2025.
I am satisfied, and I find, that the presumption of capacity has been set aside in relation to personal decisions and NI is a person for whom I can appoint a guardian.
I next turn to explain why I am satisfied that NI is in need of a guardian and an administrator.
Does the Tribunal need to appoint a guardian or an administrator? Or is a less restrictive option available?
I must adopt a less restrictive option if possible. The question is whether informal arrangements, the EPA and/or the EPG are less restrictive options for decisions to be made in NI's best interests. AM's position is that she should continue to act as NI's substitute decision-maker pursuant to the EPA and EPG. SC's view is that someone independent should be appointed to make NI's decisions.
Is informal decision-making appropriate?
Depending on the types of decisions a person needs made for them, informal arrangements can sometimes suffice. For example, medical treatment decisions can be made on an informal basis by family members or close friends pursuant to s 110ZD of the GA Act which sets out the hierarchy of decision-makers that can make medical treatment decisions on behalf of others.
As AM and SC are NI's children, they can make medical treatment decisions for their father. However, I am satisfied for reasons set out below that informal arrangements are not an appropriate way for decisions to be made for NI.
AM and SC
I consider that SC was an honest and reliable witness who gave her evidence in an open and balanced manner. SC acknowledged AM's role in managing her parents' finances and gave evidence that she encouraged NI to appoint AM as his enduring attorney in 2021. I considered that SC was a good historian and had a clear and consistent recollection of events which was confirmed by the documents filed with the Tribunal.
I had reservations about the reliability of AM's evidence. I considered that AM was selective or equivocal when giving her evidence. For example, AM was vague and inconsistent when explaining the management of NI's estate. I was confused by AM's evidence about NI's diagnosis of dementia which I discuss further below. Finally, AM was a poor historian, particularly in relation to what she told her sister when she discharged NI from the Care Provider on 27 December 2023.
Diagnosis of dementia
AM's affidavit says that NI:[6]
… has what I consider to be dementia, although I am unsure if this has been the subject of formal diagnosis.
[6] Affidavit sworn by AM on 11 June 2025 (AM Affidavit) para 68.
When this was explored at the hearing, AM clarified that NI has dementia but she was not aware of whether the doctors had performed any tests on NI to make the diagnosis. She explained that she had made enquiries but was unable to get a straight answer. AM acknowledged that it was irrelevant because it was obvious that NI has dementia. I found this evidence perplexing in light of:
(a)NI's numerous hospital admissions where AM would have spoken with NI's doctors as she has been responsible for making medical treatment decisions since early 2022 as his enduring guardian;
(b)the discharge summaries from those admissions which mention the diagnosis of dementia as well as the ACAT Assessment prepared in July 2023 that details the background of dementia and the behavioural and psychological symptoms of dementia that NI was exhibiting at that time;[7]
(c)AM's evidence that she is in regular contact with NI's long-term general practitioner Dr W; and
(d)AM's evidence that she has been in discussions with a Nursing Home about his admission, which would require detailed information being provided about any proposed resident's medical conditions.
[7] Hospital admissions in 2023 were from 18 - 27 February, 1 - 23 March, 28 March – 13 June, 14 July - 23 August. AM's evidence as set out in the AM Affidavit at paras 44 to 52 is that NI was discharged into her care after each admission save for the transfer to the Care Provider on 23 August 2023. NI was then admitted to Hospital C on 20 June 2024 where he remained a hospital inpatient until he was transferred to Hospital O and then to the Medi-Hotel at Hospital F in February 2025, and then to the Care Provider on 15 April 2025.
It is not clear why AM has questioned the diagnosis in this way or whether she is trying to minimise the severity of NI's dementia but it satisfies me that medical treatments should not be made informally by family members, particularly in light of the ongoing conflict between AM and SC.
Personal decisions - is the EPG a less restrictive option? And if not, should the EPG be revoked or varied under s 110N?
NI's wishes are clearly set out in the EPG; he wants AM to make his personal decisions. However, I have grave concerns about NI's ability to maintain his relationships with SC and her family due to decisions made by AM as NI's enduring guardian.
Restricting NI's contact with SC
AM agreed that she had taken pro-active steps in April 2025 to prevent contact between NI and SC and to prevent information about NI being shared with SC by staff of the Care Provider.
During the hearing, AM appeared to suggest that because she had not enforced her recent instruction to prevent contact between NI and SC, and had allowed SC and her family to visit NI at the Care Provider, the Tribunal could disregard her comments.
However, SC alleged that AM's behaviour had previously resulted in NI not having contact with SC and her family for six months from 27 December 2023 to June 2024. SC gave evidence that she did not know where NI was so she called nursing homes and hospitals from January to June 2024 when she was told that he was admitted to Hospital C.
AM disagreed and stated that SC knew where NI was living during that time. I asked AM how SC knew. AM took time to consider this question and then said that she was ‘pretty sure' that she had a text message on her phone in which SC asked to pick NI up to take him out for a coffee. AM's position is that this was proof that SC knew where NI was.
SC lodged text messages with the Tribunal from herself and her daughter L to AM. I have reviewed text messages sent in January, March, April, May and June 2024 in which SC and L make numerous pleas to AM to tell them where NI is so they can visit him. I did not see any responses from AM to the messages. The text message that SC sent on 16 May 2024 stated:
Hi [AM], it's dad's birthday today and we want to see him, can you please tell me where he is placed. Can you please let me know.
I prefer the evidence of SC in relation to this matter. The messages I reviewed did not include a request from SC to have a coffee with NI and AM did not provide any text messages or submissions in response although she was invited to do so.
As I am satisfied that SC and her family not see NI for six months, AM's suggestion that the Tribunal could take no notice of her instruction to the Care Provider in April 2025 because she had chosen not to prevent contact, in my view, demonstrates either a lack of insight into the impact of her actions, or an attempt to minimise her conduct.
Seeking to move NI from Care Provider in June 2025
Shortly after AM became aware of the Tribunal proceedings, she sought to move NI from the Care Provider on 4 June 2025. At the directions hearing of 4 June 2025, AM explained that she intended to move him because she was dissatisfied with the standard of care being provided. While it is acknowledged that NI needs to move into residential aged care, such a decision should be discussed with the other family members, particularly once Tribunal proceedings are on foot.
Conclusion in relation to less restrictive option
Given the history of AM's unilateral decision-making, I am not satisfied that the enduring power of guardianship is a less restrictive way for NI's personal decisions to be made as AM is unable to maintain the supportive relationships that NI has, which is one of the indicia of 'best interests' decisions.[8] I will therefore revoke the EPG. I am satisfied that NI needs a guardian to make decisions about, at the very least, his medical treatment, contact and accommodation. The Tribunal needs to appoint a guardian.
Financial decisions - is the EPA a less restrictive option? If not, should it be revoked?
[8] GA Act, s 51(2)(g). Section 110H directs that s 51 applies (with the necessary changes) in relation to an enduring guardian and appointor as if they were a guardian and represented person respectively.
NI's wishes are clear that he wants AM to manage his finances as his attorney if he is not able to. An enduring power of attorney is a private document in which the donor grants the power to the attorney and the Tribunal will only scrutinise the actions of an attorney if there is something about the matter that requires an inquiry. I was satisfied that the debt owing to the Care Provider for 18 months provided a basis for the Tribunal's scrutiny about whether NI's estate was being managed diligently. The statutory obligations of a donee of an enduring power of attorney are contained in s 107 of the GA Act, which provides:
107.Obligations of donee
(1)The donee of an enduring power of attorney —
(a)shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure;
(b)shall keep and preserve accurate records and accounts of all dealings and transactions made under the power;
(c)subject to section 109(2), may not renounce a power during any period of legal incapacity of the donor; and
(d)shall, if the donee becomes bankrupt, report that bankruptcy to the State Administrative Tribunal.
AM raised further issues in her affidavit that caused the Tribunal concern about the management of NI's estate due to the delegation of AM's authority to manage NI's properties and the payment of NI's alleged debt to MM. The final issue I will discuss is my concern that if AM continued in her role as NI's attorney, she may not give effect to a decision of a guardian appointed by the Tribunal.
Debt owing to the Care Provider from 2023
Ms A gave evidence and referred to file notes in which the Care Provider made numerous attempts in September 2023 to contact AM to discuss the costs of transitional care and to arrange for AM to sign documents relating to the payment of NI's fees. Ms A asserts that numerous calls were made and emails sent (possibly to the incorrect email address) and attempts were made to have a meeting with AM to have the documents signed.
AM advised that she has never received an invoice from the Care Provider. She was aware that NI owed a debt to the Care Provider since 2023 and asserted that the Care Provider could provide no evidence that it was brought to her attention that the debt was owed.
AM's affidavit sets out her recollection of having a telephone call with someone from the accounts department at the Care Provider about the amount owed, which she understood to be about $8,500. She recalls reaching an agreement that she would pay the debt when one of NI's properties was sold in the future and the Care Provider was happy with that arrangement.[9]
[9] AM Affidavit, paras 72 - 77.
AM then gave evidence at the hearing, which appeared to be inconsistent with her affidavit evidence, that on three separate occasions, she advised the Care Provider that as soon as she was able to, she would pay the amount outstanding.
However, Ms A and Ms B gave evidence and referred to records of the Care Provider that a third-party debt collector had been engaged to seek payment of the debt. This is not consistent with an agreement being reached between AM and the Care Provider in relation to the debt.
AM was not aware a debt collector was involved and it is possible that the debt collector may have been attempting to contact AM on the incorrect email address. It is also possible that the debt collector was attempting to contact NI for payment as the Care Provider's evidence is that AM did not sign the documentation that would have made her legally responsible as his attorney for the payment of his fees. This may be why AM did not receive an invoice from the Care Provider.
While I accept that AM did not receive an invoice or correspondence from the debt collector, I do not accept that AM exercised reasonable diligence in respect of this debt. A diligent attorney would have:
(a)signed the required documents to ensure that the Care Provider had accurate information and contact details for the person responsible for paying NI's fees;
(b)sought a copy of the invoice to confirm the amount owing; and
(c)prepared a written record of the agreement reached in relation to payment.
It is a serious oversight on the part of the attorney to have not taken any proactive steps to record the alleged oral agreement, as there was a risk that enforcement proceedings could have been commenced against NI's estate. If so, the attorney would have sought to rely on that evidence to diligently protect NI's interests.
Debt owing to MM and delegation of authority
AM's evidence is that NI did not have enough money to pay for NW's funeral. AM stated that she could not recall how much was paid but she knew that her son-in-law MM 'paid over $12,000 towards the funeral expenses'.[10]
[10] AM Affidavit, para 32.
In June 2024, AM 'caused' MM to be the person who 'dealt with' the Residential Property and the Investment Property, and to receive the rent of $400 per week to pay down the debt that NI owed him for the funeral.[11] There were also a number of maintenance issues with the Residential and Investment Properties that, in AM's view, MM could manage as he had the skills to do so. No formal documents were signed to evidence MM's appointment.
[11] In her affidavit, AM stated that in June 2024, AM 'caused' MM to be the person who 'dealt with' the Investment Property. In the hearing, AM stated that she also appointed MM to deal with the Residential Property.
AM was unaware of the current amount that was outstanding to MM as at the date of the hearing and she unable to answer my questions. MM explained that by collecting the rent, which had been paid into his bank account, the debt had reduced to around $4,000. However, further expenses had been incurred, so the debt had increased to around $6,000 or $7,000.
AM's lack of understanding about the amount currently owing to MM and the costs associated with the maintenance and renovation of the properties is not indicative of an attorney exercising reasonable diligence. The attorney should be aware of the specifics of the estate they are responsible for. Although, more importantly, the attorney cannot delegate their authority.
The authority of an attorney
A power of attorney is the 'authority for one person to act in the place of another as an agent'.[12] An enduring power of attorney is an authority that endures beyond the loss of capacity of the donor.[13] The relationship between the donor and the attorney is analogous to the relationship of a principal and agent, which is a fiduciary relationship of trust and confidence where the attorney must prioritise the donor's interests and avoid conflict of interests.
[12] Lexis Nexis Legal Dictionary,2nd Ed, LexisNexis Butterworths, Sydney, 2016, p 1,178.
[13] GA Act, s 104(1)(b)(i).
It is established law that an attorney is subject to the rule against delegation which states that an agent (such as an attorney) may not delegate their authority to act on behalf of their principal except with the express or implied authority of the principal.[14] In a case like this where the donor has lost capacity, they are unable to give that express or implied authority.
[14] S Fisher 'Agency Law' (2000) Butterworths [5.1.3] - [5.2.1] cited in EW [2010] WASAT 91 at [91].
An essential characteristic of the relationship between donor and attorney is that the attorney was chosen by the donor for their particular qualities or skills, and because the attorney is trusted by the donor. In Szozda v Szozda [2010] NSWSC 804, Barrett J said:[15]
[34]The central concept is thus one of complete and lasting delegation to a particular person, albeit with the ability to put an end to the delegation while capacity to do so remains. That concept of empowering another person to act generally in relation to one's affairs raises two basic questions. First, is it to my benefit and in my interests to allow another person to have control over the whole of my affairs so that they can act in those affairs in any way in which I could myself act - but with no duty to seek my permission in advance or to tell me after the event … Second, is it to my benefit and in my interests that all these things - indeed, everything that I can myself lawfully do - can be done by the particular person who is to be my attorney? Is that person someone who is trustworthy and sufficiently responsible and wise to deal prudently with my affairs and to judge when to seek assistance and advice? The decision is one in which considerations of surrender of personal independence and considerations of trust and confidence play an overwhelmingly predominant role: am I satisfied that I want someone else to be in a position to dictate what happens at all levels of my affairs and in relation to each and every item of my property and that the particular person concerned will act justly and wisely in making decisions?
[15] Cited in Scott v Scott [2012] NSWSC 1541 at [210].
By ‘causing' MM to be the person that ‘dealt with' the properties, AM has delegated her authority to manage (essentially) NI's entire estate to MM, who is not in a recognised category of professionals for whom an attorney may sensibly engage to assist with an estate, such as a property manager, financial planner or accountant. This is particularly so in circumstances where MM is allegedly owed money by NI, is collecting NI's rental income and making significant decisions in relation to NI's properties, such as expending further funds to renovate, which then increases the debt owing by NI's estate to MM. There may be an intermingling of monies and the GA Act requires that the attorney must be able to account for all transactions made in connection with the power.[16] While accurate accounts may exist in relation to these transactions, the evidence before the Tribunal suggests that AM has no oversight of the outgoings in relation to both properties.
Giving effect to decisions of the guardian
[16] GA Act, s 109(1)(c).
My final concern is that if AM continued to manage NI's estate as his attorney, she would not give effect to the decisions of an independent guardian. AM advised the Tribunal that there are three nursing homes that are suitable for NI on the basis that his long‑term general practitioner Dr W visits those facilities.
I asked AM if, as the attorney, she would give effect to a decision made by an independent guardian. AM did not provide me with a clear response.
If the guardian chose a nursing home that was not one of AM's three identified options, I am satisfied, and I find, that AM would not make the funds available to give effect to the decision of the guardian. I make this finding on the basis of AM's historic conduct as her father's decision‑maker which demonstrates that she will make decisions without consultation or communication with others.
Conclusion in relation to less restrictive option
I am satisfied, and I find, that the EPA has not operated to provide an effective way for NI's finances to be managed in his best interests. I will therefore revoke the EPA. I am satisfied that there is no less restrictive way for financial decisions to be made in NI's best interests. The Tribunal needs to appoint an administrator.
I will now turn to the third issue which involves the specifics of the guardianship and administration orders. I will start with guardianship and then turn to administration.
Who should be appointed, what functions are needed and how long should the orders run?
Who should be NI 's guardian?
AM is the only nominee for guardian. The reasons I have revoked the EPG are the same reasons that I am unable to find AM suitable to be appointed as NI's guardian. I am satisfied that the only option open to the Tribunal is to appoint the Public Advocate as NI's guardian due to the need for an independent third party to consult with everyone involved to ensure that their views can be taken into account, and to ensure that decisions are made solely in NI's best interests.
What functions should the guardian have?
Accommodation
NI needs his guardian to make decisions about where he will live and who he will live with. The evidence is clear that NI needs to move into residential aged care and it is in NI's best interests that his guardian take the views and wishes of all his family members into account when making the decision about where he will live.
Medical treatment
NI needs his guardian to give informed consent to medical treatment and procedures as required. It is in NI's best interests that there is clarity for all health professionals that treat NI about who has the authority to make medical treatment decisions for him.
A medical treatment guardian would also ensure that all family members were kept updated about NI's health and notified about any further admissions to hospital. If NI was nearing the end of his life, the guardian would ensure that all family members would be told and have the opportunity to say goodbye, when that time came.
Services
NI requires a guardian to make decisions about services that may not be provided in a residential aged care facility.
Contact
NI's guardian needs the authority to decide who he will have contact with and the extent of that contact in light of the history of the interruption of his relationships with some of his family members.
Next friend
The Investigator was made aware of the elevated nature of the interactions between family members in NI's family, which may have involved physical contact and aggression in NI's presence. In the event that the guardian needs to start legal proceedings for NI's protection, the guardian will need this function.
Restrictive practices
There are numerous mentions in the documents in relation to NI's behavioural and psychological symptoms of dementia and that he is given risperidone and olanzapine to manage these behaviours. As this medication is given to him on an 'as needed' basis to alter his behaviour, this is considered a restrictive practice in an aged care setting. The guardian therefore needs the authority to give or withhold consent to any restrictive practices proposed for NI.
I will now turn to discuss who should be NI's administrator.
Who should be NI's administrator?
AM is the only person nominating herself for appointment as administrator. I am unable to find AM suitable to act as administrator as I am not satisfied that she will give effect to the decisions of the Public Advocate and her actions as attorney demonstrate that she was not able to deal with NI's financial affairs with reasonable diligence as set out at [57] ‑ [73]. I am satisfied that the only option open to the Tribunal is to appoint the Public Trustee as NI's plenary administrator as NI is unable to make decisions about even simple financial matters.
I will include a gifting authority of $1,000 per year so the administrator can purchase gifts on NI's behalf for family members.
How long should the orders run before review?
The medical evidence is clear that NI has a diagnosis of a progressive illness such that his need for a guardian and an administrator will be lifelong. Therefore, these orders are to be reviewed within the maximum term possible which is within five years of the date of the orders.
Orders
GAA 2103 of 2025
The Tribunal orders:
1.The Tribunal declares that the represented person, [NI] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b)in need of an administrator of his estate;
(c)incapable of looking after his own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to his person;
(e)in need of oversight, care or control in the interests of his own health and safety; and
(f)in need of a guardian.
Administration
2.The order made on 28 April 2025 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
3.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
4.The administrator is authorised to expend up to a total amount of $1,000 per annum on gifts on behalf of the represented person.
5.The enduring power of attorney dated 24 February 2022 by which the represented person appointed [AM] to be their attorney, is revoked.
6.The administration order is to be reviewed by 23 June 2030.
Guardianship
7.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;
(f)as the next friend of the represented person, to commence, conduct or settle any legal proceedings on behalf of the represented person, except proceedings relating to the estate of the represented person; and
(g)to decide whether to give or withhold consent to the use of any restrictive practice 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).
8.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.
9.The guardianship order is to be reviewed before 23 June 2030.
GAA 2250 of 2025
The Tribunal notes:
1.[NI] signed an enduring power of guardianship on 24 February 2022 appointing [AM] as his enduring guardian.
The Tribunal orders:
2.The enduring power of guardianship is revoked.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
27 JUNE 2025
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