NJ
[2025] WASAT 35
•22 APRIL 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: NJ [2025] WASAT 35
MEMBER: MS R BUNNEY, MEMBER
HEARD: 21 JANUARY AND 4 APRIL 2025
DELIVERED : 4 APRIL 2025
PUBLISHED : 22 APRIL 2025
FILE NO/S: GAA 5795 of 2024
GAA 5926 of 2024
GAA 372 of 2025
NJ
Represented Person
EV
Applicant
Catchwords:
Guardianship - Administration - Voluntary assisted dying - Presumption of capacity - Capacity to make voluntary assisted dying decision - Capacity to sign advance health directive - Full legal capacity - Capacity to make reasonable judgments about person - Capacity to make medical treatment decisions - Capacity to make reasonable judgments about estate - Testamentary capacity - Capacity to sign enduring power of attorney - Capacity to sign enduring power of guardianship - Effect of later enduring power of attorney on earlier appointment - Effect of later enduring power of guardianship on earlier appointment - Revocation of both enduring powers of attorney - Revocation of both enduring powers of guardianship - Declaration of incapacity revoked - Appointment of private plenary administrator - Appointment of private limited guardian
Legislation:
Aged Care Act 2024 (Cth), s 18(1)(f), s 163(2)
Family Court Rules 2021 (WA), r 102, r 105(5)
Guardianship and Administration Act 1990 (WA), s 3, s 3B, s 4, s 4(1), s 4(3), s4(4), s 40, s 43(1)(b), s 43(1)(b)(ii), s 43(1)(b)(iii), s 44(1), s 44(2), s 51(2)(e), s51(2)(g), s 64(1)(a), s 65, s 66, s 68(1), s 68(1)(c), s 68(1)(d), s 68(3)(a), s 68(3)(b), s 68(3)(c), s74, s 104, s 104(2)(a)(ii), s 104(1a), s 108, s 109(1)(c), s110B, s110L, s110N, s 110ZND, s 110P, s 110S(3), s 110T, s 144, Pt 9B
Guardianship and Administration Regulations 2005 (WA), Sch 2
Oaths, Affidavits and Statutory Declarations Act 2005 (WA), Sch 2
Powers of Attorney Act 1998 (Qld), s 47, s 50, s 52, s 53
Restraining Orders Act 1997 (WA), s 18(2)(b)
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4)
Voluntary Assisted Dying Act 2017 (Vic), s 4(4)
Voluntary Assisted Dying Act 2019 (WA), s 5, s 6, s 6(2), s 6(3), s 16, s 16(1)(c), s 16(1)(d)
Voluntary Assisted Dying Act 2021 (Qld), s 11(3)
Voluntary Assisted Dying Act 2021 (SA), s 4(4)
Voluntary Assisted Dying Act 2022 (NSW), s 6(2)
Result:
Both enduring powers of attorney revoked
Private administrator appointed
Declaration of incapacity revoked
Both enduring powers of guardianship revoked
Private guardian appointed for limited functions
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
| Applicant | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | N/A |
Case(s) referred to in decision(s):
AB and CD [2024] WASAT 6
Banks v Goodfellow (1870) LR 5 QB 549
BMR, MTH and CJG v THE COORDINATING PRACTITIONER FOR MTH [2024] WASAT 44
Briginshaw v Briginshaw (1938) 60 CLR 336
C [2024] WASAT 50
CD [2020] WASAT 41
EF, GH AND IJ and KL [2024] WASAT 18
FC [2016] WASAT 2
FY [2019] WASAT 118
GC and PC [2014] WASAT 10
GG [2021] WASAT 133
Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423
HM and THE CO-ORDINATING PRACTITIONER FOR HM [2024] WASAT 23
Hunter and New England Area Health Service v A [2009] NSWSC 761
KRM [2017] WASAT 135
KRL [2010] WASAT 187
Legal Profession Complaints Committee v Wells [2014] WASAT 112
LP [2020] WASAT 25
Ms G [2017] WASAT 108
NP v QR [2024] WASAT 97
Public Trustee v Nezmeskal [2018] WASC 394
QU [2024] WASAT 92
SMM [2020] WASAT 85
Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91
Szozda v Szozda [2010] NSWSC 804
T [2018] WASAT 128
W v S [2025] WASCA 21
XYZ (Guardianship) [2007] VCAT 1196
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
NJ is a 77-year-old woman with a diagnosis of progressive supranuclear palsy (PSP) which is a neurodegenerative disorder that affects movement, balance and sometimes cognition. NJ also lives with chronic pain. NJ's children, son EV and daughters KL and DE, are extremely supportive. They have acted, at various times and in different combinations, as her carers and/or her substitute decisions-makers.
NJ first came to the attention of the Tribunal in May 2024 while an inpatient at Hospital A as her treating team was unable to determine her capacity to make informed decisions about her discharge destination. NJ was a high falls risk, having fallen six times in Hospital A in one month and previously fracturing her skull.
NJ signed an enduring power of guardianship in early 2023 appointing her daughter DE as her guardian (First EPG). To enliven this document to allow DE to make decisions about NJ's discharge from Hospital A, the Tribunal would need to make a declaration that NJ was 'incapable of making reasonable judgments in respect of matters relating to her person' (Declaration).
NJ had expressed a desire to access voluntary assisted dying (VAD) when she was eligible to do so. She also made an advance health directive (AHD) in 2023 stating that she did not want any treatment that would prolong her life. Geriatrician Dr W stated NJ did not meet the criteria for VAD in May 2024, not because she lacked capacity to decide, but she was not eligible as she did not have a prognosis of less than one year and the possibility of a fatal fall did not meet the criteria for VAD.
I made the Declaration as I was satisfied that NJ did not have the capacity to make informed decisions about her discharge destination. I found that the First EPG was the least restrictive and appropriate way for those decisions to be made for NJ at that time.
EV made the current application to the Tribunal in November 2024 in relation to concerns about the management of NJ's finances by DE under an enduring power of attorney signed in early 2023 (First EPA). At the first hearing in January 2025, NJ asserted that her capacity had improved. I was satisfied that it was in NJ's best interests that the matter be adjourned to allow time for NJ's capacity to be assessed by a geriatrician and/or a neuropsychologist. I appointed KL as NJ's interim administrator to ensure NJ's finances were managed as NJ's clear wish was that DE not continue to act under the First EPA.[1] The matter was adjourned to 4 April 2025.
[1] KL was appointed as the interim administrator pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) (GA Act).
Unfortunately, NJ's condition deteriorated suddenly, and she attended the April hearing from Hospital B. KL gave evidence that on 1 April 2025, NJ was declared ineligible for VAD by the VAD Team at Hospital B due to the Declaration made in 2024.
On 4 April 2025, I made orders to, among others, revoke the Declaration and appoint KL as NJ's administrator and guardian. I indicated that I would provide written reasons at a later stage to explain how the orders I made will provide NJ with sufficient protection without declaring that she is incapable of making reasonable judgments about her personal matters, as such a declaration had prevented NJ from being assessed for VAD. These are my reasons.
Background to current application
Sale of share portfolio
NJ is a self-funded retiree and managed her self-managed superannuation fund (Fund) for around 20 years. In February 2024, NJ received advice from her accountant that the cost to run the Fund, including accounting and auditing fees, was similar to the tax that NJ would pay if the Fund was wound up and the share portfolio (Portfolio) the subject of the Fund was liquidated.[2] DE and EV were on the call with NJ and the accountant.
[2] Affidavit sworn by DE on 20 January 2025 (DE Affidavit) at paragraphs 6 - 7.
It was around this time that NJ's children became aware that NJ had not paid some of her utility bills. NJ forgot her online banking passwords so DE started to assist NJ with managing her estate.[3]
[3] ts 10 - 11, 22 May 2024.
Later in 2024, Hospital A recommended that NJ move to residential aged care. NJ did not want to sell her home, so DE used the First EPA to liquidate the Portfolio to raise funds to pay a refundable accommodation deposit (RAD).[4] DE gave evidence that NJ consented to this decision, which was also supported by EV and KL.[5]
Discharge to aged care and home care
[4] ts 44, 21 January 2025.
[5] DE Affidavit at paragraph 11.
NJ was discharged from Hospital A to Nursing Home M for a short time but was asked to leave because of behavioural issues and verbal aggression towards staff. NJ moved to Nursing Home S in July 2024 although the staff there were also unable to care for her.[6] She was taken home by her family in October 2024 who arranged for 24/7 care with private carers.
[6] Letters from Dr W dated 16 May 2024 and 7 March 2025.
NJ receives around $5,000 per month from a government home care package although the cost of her carers is $4,900 per week,[7] which indicates that NJ may be paying around $15,000 per month to be cared for at home. NJ is a wealthy woman and if this estimate is correct, based on the current balance in NJ's bank accounts, she can afford to be cared for at home for over five years. In May 2024 when NJ was managing her own finances and making her own decisions, she declined to have an overnight carer based on cost, in addition to her belief that she did not need overnight care.[8] This was the basis for Hospital A's application to the Tribunal.
[7] DE Affidavit at paragraphs 42 - 44.
[8] Letter of Dr W dated 7 March 2025.
In the five months that NJ was cared for at home following October 2024, the family struggled to retain and hire care staff as they often quit due to the difficulty of providing care because of NJ's verbally abusive behaviour towards them.[9] Currently, NJ wants to return home when discharged from Hospital B but she lacks insight into the challenges in arranging and retaining staff to care for her. When she met with Dr W in early March 2025, he noted that she was unaware that there was only one carer left that was working alternating shifts with EV.[10]
Dissatisfaction about sale of Portfolio
[9] Letter by Dr W dated 7 March 2025 and service provider report prepared by social worker Ms B from Hospital B dated 1 April 2025.
[10] Letter of Dr W dated 7 March 2025.
In late 2024, NJ became unhappy about the sale of the Portfolio as the value of the shares had increased, she was now liable to pay income tax and, as she was being cared for at home, there was no need to pay a RAD. NJ alleged that the Portfolio was sold without her knowledge or consent.[11] She was vocal about, and fixated on, the perceived harm that DE's actions caused in terms of her net wealth and the requirement to pay tax.
[11] ts 4 and 44, 21 January 2025.
This issue has caused tremendous turmoil in the family, prompting EV's application to the Tribunal for the review of the operation of the First EPA and First EPG, and seeking the appointment of a guardian and an administrator.[12]
[12] EV filed applications to the Tribunal pursuant to s 40 and s 110N of the GA Act.
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.
Presumption of capacity
The starting point for the Tribunal is that every person is presumed to be capable of making their own decisions about their estate and their person. The presumption of capacity is enshrined in the GA Act as follows:[13]
[13] GA Act, s 4.
(3)Every person shall be presumed to be capable of —
(a)looking after [their] own health and safety;
(b)making reasonable judgments in respect of matters relating to [their] person;
(c)managing [their] own affairs; and
(d)making reasonable judgments in respect of matters relating to [their] estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
The presumption of capacity is a fundamental principle in the GA Act and can only be displaced by clear and cogent evidence of incapacity leading the Tribunal to be actually persuaded that the person in respect of whom the proceeding is brought is a person for whom a guardianship or an administration order can be made.[14]
[14] Briginshaw v Briginshaw (1938) 60 CLR 336; LP [2020] WASAT 25 at [48]; GC and PC [2014] WASAT 10 at [36].
Considering the seriousness of the consequences for a proposed represented person that flow from a finding by the Tribunal of incapacity, or the consequences of the Tribunal failing to identify an incapable person in need of protection, the Tribunal must make findings of fact about capacity by reference to evidence which may be from a wide variety of sources, including the evidence of medical and allied health professionals and also lay evidence.[15] The Tribunal will 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 in order to make the correct decision in the best interests of the proposed represented person.[16]
Specific matters addressed by the Tribunal
[15] XYZ (Guardianship) [2007] VCAT 1196 (XYZ) at [65]; CD [2020] WASAT 41 at [30].
[16] State Administrative Tribunal Act 2004 (WA), 32(2) and s 32(4).
When deciding whether to appoint a guardian or an administrator, the Tribunal must address the following 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. If the person has capacity, the matter will be dismissed;
(b)if the person lacks capacity, the second stage is a consideration of whether the Tribunal needs to make an order, or whether there is another way for decisions to be made for the person that is less restrictive on their freedom of decision and action. If there is no need for an order, the matter will be dismissed; and
(c)if the Tribunal needs to make an order, the third stage involves the Tribunal determining who the guardian or administrator will be, the functions or powers they require that will be the least restrictive on the person, and how long the orders will run before they are reviewed.
I have taken into account the oral evidence given at the Hearing and the written evidence filed in these proceedings and need not set it out in detail. The relevant features are summarised in these reasons.
NJ's views and wishes
The Tribunal must take NJ's views and wishes into account, as expressed, or as gathered from her previous actions. NJ had the foresight to sign documents and make arrangements for her affairs to be managed if she ever lost capacity.
The earliest evidence before the Tribunal as to NJ's capacity is the report prepared by neuropsychologist Dr C. NJ was referred to Dr C by her long-term neurologist Dr S in November 2022 to assess her capacity to make a will. Dr C noted only mild cognitive slowing and attentional/executive weakness. Dr C confirmed in her report dated 23 January 2023 that NJ had capacity to sign a will, an enduring power of attorney and an enduring power of guardianship.[17]
[17] Report of neuropsychologist Dr C dated 23 January 2023.
Dr S was the first doctor that discussed VAD with NJ. Dr S recalls that they spoke about VAD in the setting of the diagnosis of PSP on 14 November 2023.[18] NJ's mother had PSP and died in her late 70s and her sister had motor neurone disease and died around 20 years ago while in her 50s. NJ is a trained nurse and therefore understands the progression of her illness.
Views and wishes gathered from previous actions
[18] Letter from Dr D dated 1 April 2025.
On 10 February 2023, NJ signed the First EPA appointing DE as her attorney and the First EPG appointing DE to be her enduring guardian. NJ's clear wish at that time was that DE would make her personal and financial decisions.
In October 2023, NJ signed a new suite of documents to remove DE as her substitute decision-maker. EV explained that this was because DE asked for a payment to compensate for her time in caring for NJ.[19] DE's evidence is that her employment was affected by her caring role and NJ agreed to pay her $30,000, which was paid in around August 2023.[20] EV states that NJ made the payment and then decided that she did not want DE to manage her affairs.
[19] ts 32, 21 January 2025.
[20] DE Affidavit at paragraphs 42 - 44.
On 8 October 2023, NJ signed:
(a)a new enduring power of guardianship document that appointed KL to make her personal decisions (Second EPG). However, the authorised witness did not sign the Second EPG meaning it was not valid. This issue was identified by Hospital A, which is why the First EPG was provided to the Tribunal and brought into effect in May 2024. While the Second EPG was not validly signed, it is an expression of NJ's wishes as at October 2023;
(b)a new enduring power of attorney document appointing KL and EV as joint attorneys (Second EPA). There was no indication in the Second EPA that it revoked the First EPA; and
(c)the AHD which records NJ's decision that she does not consent to any future treatment aimed at sustaining or prolonging her life.
I am satisfied that in October 2023, there was no evidence that NJ did not have the capacity to decide who she wanted to be her substitute decision-maker. The evidence from the Tribunal hearing in May 2024 shows that it was not until early 2024 that NJ forgot her internet passwords and DE started assisting her.
The Tribunal was not told of the existence of the Second EPG or the Second EPA in May 2024, although the AHD was discussed.[21] NJ's children advised that this was because they were aware of the flaw identified with the Second EPG and they understood that it was not valid. In relation to the Second EPA, they did not know that financial matters would be discussed at the Tribunal proceedings in May as they understood that the Tribunal's involvement only related to NJ's ability to make personal decisions.[22] Copies of the Second EPA and Second EPG were disclosed to the Tribunal in January 2025.
Views and wishes expressed verbally
[21] ts 15, 22 May 2024.
[22] ts 36, 21 January 2025. I note that both the First EPA and Second EPA were expressed to 'continue in force notwithstanding' NJ's subsequent legal incapacity. This meant that both EPAs were able to be used even while NJ had the capacity to make her own financial decisions, as the authority of the attorney runs in parallel to the authority of the donor: SMM [2020] WASAT 85.
In terms of NJ's views expressed verbally since early 2024:
(a)in March 2024, NJ told the social worker at Hospital A that she was concerned about her children using her money for their debts and questioning whether their intentions were in her best interests;[23]
(b)on 5 May 2024, NJ told the social worker that she had willingly helped her children financially over the years and had no concerns about them accessing or misusing her funds.[24] On 22 May 2024 at the first Tribunal hearing, NJ said she was happy for her children to make her personal and financial decisions;
(c)at some time prior to 5 November 2024 when EV filed the current application, NJ no longer wanted DE to manage her finances or personal decisions and wanted EV and KL to be her decisionmakers in accordance with the Second EPA and Second EPG signed in October 2023;
(d)on 7 January 2025, NJ told Ms M, the representative from the Office of the Public Advocate (Public Advocate) that DE had sold the Portfolio without her knowledge or consent, but her preference was for her children to be her substitute decisionmakers, rather than public appointments;[25]
(e)on 21 January 2025, NJ told me that her capacity had improved and she wanted her 'powers' returned to her so she could make her own decisions. She wanted the Declaration to be revoked as she felt it would prevent her from being able to access VAD at some point in the future if she became eligible; and
(f)at the April Hearing, when I explained that I was planning to revoke the Declaration, both EPAs, both EPGs and appoint KL as her guardian and administrator, NJ initially stated that she was agreeable to KL being her substitute decision-maker. Later in the hearing she stated that she did not want any of her children involved in making her decisions, particularly about VAD and her finances, as she feared they would spend all her money.
Observations of NJ
[23] Notes of social worker dated 18 March 2024, cited in report of neuropsychologist Dr F dated 9 May 2024, pages 3 - 4.
[24] Notes of social worker dated 5 May 2024, cited in report of neuropsychologist Dr F dated 9 May 2024, pages 3 - 4.
[25] Report by Ms M, representative from the Office of the Public Advocate, dated 15 January 2025.
NJ appeared to make the same or similar comments and repeat the same information at the Tribunal hearings in 2024 and 2025, and in discussions with professionals over that time, particularly about the aged care system, without demonstrating that she had integrated any new information over that time. She referred to her experience in nursing and her success in business and investing as a basis for her views. However, when topics were raised that exposed a gap in her memory or knowledge, she would confabulate or respond in an aggressive or dismissive matter.
I observed that the way NJ spoke to, or about, each of her children became more belligerent between January and April 2025. This was in contrast to her presentation in May 2024 where, although I was comfortably satisfied that she lacked the capacity to make certain decisions, she was complimentary towards her children and clearly wanted the decision-making process to remain within the family. This is likely to be a symptom of her cognitive impairment as her increasing combativeness, particularly in the afternoons, was noted by the geriatricians who assessed her in March 2025 as 'sundowning'.[26]
[26] Dr H letter dated 4 March 2025 and Dr W letter dated 7 March 2025.
NJ's level of distain expressed towards the Tribunal also increased over time. In 2024, she felt 'insulted' by the Tribunal process as she perceived the enquiry to be unjustified based on her experience in business and in hospitals.[27] When asked about her plan for discharge, she expressed her resentment at being 'interrogated'.[28] In 2025, she became more disrespectful towards the Tribunal and made inappropriate comments about the perceived shortcomings of the decision-maker, revealing an increasing lack of judgment.
[27] ts 13, 22 May 2024.
[28] ts 12, 22 May 2024.
While NJ can state her views and wishes, this is not the same as being able to make a reasonable judgment about the matters that are required to protect her health, safety and estate. NJ's views have been inconsistent over time, particularly about her choice of substitute decision-maker. I acknowledge that NJ wants to be able to make her own decisions, but I am unable to give effect to her wishes. All the evidence before the Tribunal suggests that NJ is no longer able to make decisions about her finances, living and care arrangements. There is evidence that NJ may be able to make certain medical decisions, which is discussed later in these reasons.
I am satisfied on the evidence before me that NJ's children have consistently acted in NJ's best interests when caring for their mother, particularly EV who has been a hands-on carer, for blocks of several months at a time, since November 2022. I have no concerns about the actions that DE and KL have taken when they have acted as their mother's substitute decision-makers. Issues were ventilated at the January and April hearings in relation to the use of NJ's funds and resolved to my satisfaction. It is unfortunate that managing their mother's grave illness and her declining cognition has taken such a toll on the siblings' relationships, particularly between EV and DE.
I will next turn to discuss the eligibility requirements to access VAD. I will then discuss the concept of decision-making capacity, the presumption of capacity and the capacity to make certain types of medical treatment decisions.
Voluntary assisted dying in Western Australia
Eligibility criteria
To access VAD in Western Australia, a person must meet the eligibility criteria set out in the Voluntary Assisted Dying Act 2019 (WA) (VAD Act). Section 16 of the VAD Act sets out the criteria as follows:
16.Eligibility criteria
(1)The following criteria must be met for a person to be eligible for access to voluntary assisted dying —
(a)the person has reached 18 years of age;
(b)the person —
(i)is an Australian citizen or permanent resident; and
(ii)at the time of making a first request, has been ordinarily resident in Western Australia for a period of at least 12 months;
(c)the person is diagnosed with at least 1 disease, illness or medical condition that —
(i)is advanced, progressive and will cause death; and
(ii)will, on the balance of probabilities, cause death within a period of 6 months or, in the case of a disease, illness or medical condition that is neurodegenerative, within a period of 12 months; and
(iii)is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable;
(d)the person has decision-making capacity in relation to voluntary assisted dying;
(e)the person is acting voluntarily and without coercion;
(f)the person's request for access to voluntary assisted dying is enduring.
(2)A person is not eligible for access to voluntary assisted dying only because the person has a disability or is diagnosed with a mental illness (as defined in the Mental Health Act 2014 section 4).
Section 16(1)(c) - medical condition will cause death within 12 months
In terms of this subsection, it was acknowledged by Dr W that there was no indication at the hearing in May 2024 that NJ's condition was terminal. In January 2025, NJ was being cared for at home and felt that her capacity had improved. In addition to NJ's desire for all substitute decision-making to be removed, I asked if she would like to make an oral application for the Declaration to be revoked. She did, as she felt the Declaration was a barrier to her accessing VAD in the future.[29] It was agreed that all applications would be adjourned for three months to allow time for NJ to be assessed by a geriatrician and/or a neuropsychologist to obtain further evidence of her capacity.
[29] NJ's application was accepted as an application pursuant to s 110L(3) of the GA Act with the matter number GAA/372/2025.
However, NJ's health declined in late January, and she was hospitalised at Hospital B for two days with a pulmonary embolism in her right lung. In late February, she returned to Hospital B for a further four days with aspiration pneumonia. In late March, she represented to Hospital B with pneumonia and attended the April Hearing from her hospital bed. NJ was able to meet with a new geriatrician Dr H on 4 March and also see her previous geriatrician from Hospital A, Dr W, on 7 March. NJ was unable to meet with a neuropsychologist before her hospitalisation.
On 1 April 2025, the VAD Team declared NJ ineligible for VAD based on the Declaration made in 2024 that she was 'incapable of making reasonable judgments in respect of matters relating to her person'. This meant that NJ's decision-making capacity for VAD was not assessed, which will be discussed next in these reasons.
Section 16(1)(d) - capacity to make decisions about VAD
Voluntary assisted dying is when someone chooses medical assistance to end their life. It is imperative that the person has the capacity to make that choice or decision. As famously stated in an English case, the more serious the decision, the greater the capacity required.[30]
[30] Re T (Adult: Refusal of Treatment) [1993] Fam 95 at 113 per Lord Donaldson.
Section 6(2) of the VAD Act sets out the indicia of decision-making capacity as follows:
6.Decision-making capacity
(1)In this section —
voluntary assisted dying decision means —
(a)a request for access to voluntary assisted dying; or
(b)a decision to access voluntary assisted dying.
(2)For the purposes of this Act, a patient has decisionmaking capacity in relation to voluntary assisted dying if the patient has the capacity to —
(a)understand any information or advice about a voluntary assisted dying decision that is required under this Act to be provided to the patient; and
(b)understand the matters involved in a voluntary assisted dying decision; and
(c)understand the effect of a voluntary assisted dying decision; and
(d)weigh up the factors referred to in paragraphs (a), (b) and (c) for the purposes of making a voluntary assisted dying decision; and
(e)communicate a voluntary assisted dying decision in some way.
(3)For the purposes of this Act, a patient is presumed to have decision-making capacity in relation to voluntary assisted dying unless the patient is shown not to have that capacity.
Section 6(3) (above) of the VAD Act sets out the statutory presumption of capacity in respect of making a VAD decision.
The Western Australian Department of Health has developed guidelines to support compliance with the VAD Act by assisting health professionals to understand the VAD Act and their roles and responsibilities in the voluntary assisted dying process (Guidelines). The Guidelines refer to the possibility that a person seeking VAD may be subject to an existing order as follows:[31]
A person may be subject to an existing order e.g. a mental health order under the Mental Health Act 2014, a guardianship or administration order under the Guardianship and Administration Act or another order. A person subject to such an order is not automatically precluded from requesting voluntary assisted dying. However, the person may not meet the eligibility criteria regarding decision-making capacity for voluntary assisted dying.
The content of the order(s) should be taken into consideration by the Coordinating and Consulting Practitioners while completing the assessment regarding a person's decision-making capacity to access voluntary assisted dying, as it could provide some understanding as to the person's decision-making capacity.
It should be noted that a person who is subject to an order is able to request that the order be reviewed by the appropriate authority (e.g. the SAT, the Mental Health Review Board, the Mentally Impaired Accused Review Board etc). Prior to making a First Request or commencing the assessment process for voluntary assisted dying, the person may wish to seek a review of their existing orders to assist in their ability to be found eligible for voluntary assisted dying. (Emphasis added).
[31] Western Australian Department of Health, Western Australian Voluntary Assisted Dying Guidelines (2021) at paragraph 8.3.2, accessed 10 April 2025 at < guidelines.pdf.
Accordingly, the existence of an order of the Tribunal does not prevent a person from undergoing an assessment of their capacity to consent to VAD. The contents of the order are a factor to be taken into consideration by the VAD practitioner during an assessment as it may provide some understanding as to the person's capacity to make decisions in relation to VAD.
The presumption of capacity - common law, GA Act and VAD Acts
The position at common law is that there is a presumption of capacity whereby an adult is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted.[32] That position is reflected in s 4(3) of the GA Act and s 6(3) of the VAD Act.
[32] Hunter and New England Area Health Service v A [2009] NSWSC 761 at [23].
The 'presumption' contained in legislation in other states of Australia is more descriptive than that contained in the Western Australian acts mentioned. In the VAD Act in New South Wales, the presumption is expressed as follows:[33]
(2)For the purposes of this Act, a patient is—
(a)presumed to have the capacity to understand information or advice about voluntary assisted dying if it reasonably appears the patient is able to understand an explanation of the consequences of making the decision, and
(b)presumed to have decision-making capacity in relation to voluntary assisted dying unless the patient is shown not to have the capacity.
[33] Voluntary Assisted Dying Act (2022) (NSW), s 6(2).
In the Victorian act, which was the first enacted in Australia, the presumption of capacity is legislated as follows:[34]
[34] Voluntary Assisted Dying Act 2017 (Vic), s 4(4). Section 4(4) in the South Australian legislation, Voluntary Assisted Dying Act 2021 (SA), is largely in the same terms, as is s 11(3) in the Queensland legislation, the Voluntary Assisted Dying Act 2021 (Qld).
(4)In determining whether or not a person has decision-making capacity, regard must be had to the following—
(a)a person may have decision-making capacity to make some decisions and not others;
(b)if a person does not have decision-making capacity to make a particular decision, it may be temporary and not permanent;
(c)it should not be assumed that a person does not have decision-making capacity to make a decision—
(i)on the basis of the person's appearance; or
(ii)because the person makes a decision that is, in the opinion of others, unwise;
(d)a person has decision-making capacity to make a decision if it is possible for the person to make a decision with practicable and appropriate support.
Examples
Practicable and appropriate support includes the following—
(a)using information or formats tailored to the particular needs of a person;
(b)communicating or assisting a person to communicate the person's decision;
(c)giving a person additional time and discussing the matter with the person;
(d)using technology that alleviates the effects of a person's disability.
(5)A person who is assessing whether a person has decision-making capacity for the purposes of this Act must take reasonable steps to conduct the assessment at a time and in an environment in which the person's decision-making capacity can be most accurately assessed.
To have capacity to make this specific type of medical treatment decision, which is to choose medical assistance to end one's life, is clearly very different to a person being 'unable to make reasonable judgments in respect of matters relating to his or her person', which is the global declaration required to enliven an enduring power of guardianship.[35] This broad mandatory declaration does not allow the Tribunal to address the specifics of a particular decision that the person is incapable of making. As mentioned, I was satisfied in 2024 that NJ lacked the capacity to make certain types of decisions about her person, namely her discharge destination, which involves decisions about where she will live and the services to which she will have access. Those were the most important decisions to be made at that time to protect NJ's health and safety.
Capacity to make specific medical treatment decisions
[35] GA Act, s 110L.
A recent Tribunal matter involved a woman, Ms AB, who was seeking an abortion, which is a very specific type of medical procedure.[36] Ms AB had a longstanding diagnosis of schizophrenia and a comorbid diagnosis of polysubstance use disorder. In February 2024 when Ms AB was an inpatient at the Mental Health Hospital, the Tribunal found that Ms AB was incapable of making reasonable judgments in respect of matters relating to her person and appointed the Public Advocate as her limited guardian to make medical treatment decisions, among other things.
[36] C [2024] WASAT 50 (C).
In March 2024, the jurisdiction of the Tribunal was expanded to allow the Tribunal to consent to an abortion if a pregnant person was unable to make reasonable judgments in respect to whether an abortion should be performed on them.[37] This meant that when Ms AB's doctors learned that she was pregnant in May and wanted an abortion, she was unable to consent to the abortion due to the declaration made by the Tribunal in February that she was incapable of making reasonable judgments in respect of her person.[38]
[37] GA Act, s 110ZND.
[38] Under the GA Act, a guardian, even one with the function of making treatment decisions, is unable to give consent to the performance of an abortion on a represented person and the consent of the Full Tribunal must be obtained.
Dr C, the obstetrician at the Maternity Hospital that consulted with Ms AB about the abortion, made the application to the Tribunal to seek the Full Tribunal's consent to perform the abortion in accordance with Ms AB's wishes.
The Full Tribunal determined on 14 May 2024 that Ms AB was capable making reasonable judgments in respect of whether or not the abortion should be performed on her. Ms AB was able to explain her views and reasons for wanting to have an abortion, which recognised her limited supports, her desire to have a baby only with a partner, and her preference not to carry the pregnancy to full term. Ms AB's reasons suggested to the Full Tribunal that she had taken a rational approach when deciding whether an abortion was the appropriate choice for her.[39]
[39] C at [54].
The Full Tribunal made the following observations:[40]
[40] C at [34] - [45].
34.In the context of decision-making capacity in relation to personal matters, the common law authorities provide some guidance as to what is required for a person to be able to give or refuse consent to medical treatment.
35.In Hunter and New England Area Health Service v A (Hunter), the Supreme Court of New South Wales outlined the common law position as follows:
[23]There is a presumption of capacity whereby an adult is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted.
[24]In this context, it is necessary to bear in mind that there is no sharp dichotomy between capacity on the one hand and want of capacity on the other. There is a scale, running from capacity at one end through reduced capacity to lack of capacity at the other. In assessing whether a person has capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision and the capacity required to make a contract to buy a cup of coffee may be present where the capacity to decide to give away one's fortune is not.
36.Similar sentiments were expressed by the New South Wales Court of Appeal in Guthrie v Spence [at 175]. In that case, Campbell JA stated:
It is well-accepted that there is no single test for capacity to perform legally valid acts and that the task-specific nature of these tests for capacity has the effect that the one person could have capacity to perform one task, but lack capacity to perform a different task.
…
41.… The New South Wales Supreme Court in Hunter discussed the common law approach to the question of capacity in medical treatment decisions and said:
[25]As Butler-Sloss LJ said in Re MB, in deciding whether a person has capacity to make a particular decision, the ultimate question is whether that person suffers from some impairment or disturbance of mental functioning so as to render him or her incapable of making the decision. That will occur if the person:
(1)is unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision; or
(2)is unable to use and weigh the information as part of the process of making the decision.
…
(7)… In considering the question of capacity, it is necessary to take into account both the importance of the decision and the ability of the individual to receive, retain and process information given to him or her that bears on the decision.
…
42.Similarly, in Re T (Adult: Refusal of Treatment) [1993] Fam 95 at [295], Thorpe J observed that:
the question to be decided is whether it has been established that the patient's capacity is so reduced that he does not sufficiently understand the nature, purpose and effect of the proper treatment.
43.Thorpe J went on to identify the following aspects of the decision-making process that were required to be present for a person to have the capacity to make a decision about medical treatment: the person needs to be able to comprehend and retain treatment information, they need to believe that information, and they need to be able to weigh it in the balance to make a choice.
44.Drawing on that common law approach, we consider that in order for the Tribunal to determine whether or not Ms AB is able to make reasonable judgments in respect of whether or not an abortion should be performed on her, it is necessary to consider:
(a)What cognitive ability – that is, reasoning process – a person is required to be able to undertake in order to make a reasonable judgment of that kind;
(b)What is the evidence as to Ms AB's capacity in that respect; and
(c)Is that evidence sufficient to displace the presumption of capacity under the GA Act to make such decisions as this one.
…
45.At the outset, we should say that we do not consider that a person needs to be able to demonstrate a level of sophisticated medical knowledge in order to be able to make a reasonable judgment in respect of a decision such as whether to have an abortion. We think it is sufficient if they are capable of understanding the main elements of the procedure, and its risks and consequences, rather than the technical or exact details of the treatment or its effect.
The same considerations could be used when determining a person's capacity to make a voluntary assisted dying decision. However, the assessment of decision-making capacity for VAD is not a matter for the Tribunal when making decisions under the GA Act;[41] it is a matter for the highly specialised medical professionals that practice in this area.[42] In the context of the presumption of decision-making capacity in s 6(3) of the VAD Act, the Declaration made in 2024 upon which the First EPG was enlivened does not, in my view, preclude a finding, if the evidence supports that finding, that NJ has decision-making capacity in relation to VAD at the time she is assessed by the VAD team. This is consistent with the Guidelines and the VAD Act.
[41] Section 3B of the GA Act states '[n]othing in this Act authorises the making of a treatment decision, whether in an advance health directive or otherwise, in relation to voluntary assisted dying as defined in the VoluntaryAssisted Dying Act 2019 section 5.
[42] However, if a person disagrees with the outcome of a decision made by one of their doctors during the VAD process, they can apply to the Tribunal for a review of that decision if it is about the duration of their residency in Western Australia, their decision-making capacity, or whether they are acting voluntarily. Decisions of this kind are made by a judicial member of the Tribunal. To date, only decisions about the duration of residency have been reviewed by the Tribunal - AB and CD [2024] WASAT 6; EF, GH AND IJ and KL [2024] WASAT 18; HM and THE CO-ORDINATING PRACTITIONER FOR HM [2024] WASAT 23; BMR, MTH and CJG v THE COORDINATING PRACTITIONER FOR MTH [2024] WASAT 44 and NP v QR [2024] WASAT 97.
I will now turn to the first stage of enquiry by the Tribunal, beginning with NJ's capacity to manage her personal matters in accordance with the test for capacity set out in the GA Act.
Stage 1 - does NJ lack the capacity to manage her personal matters?
When can a guardian be appointed? The test for incapacity for personal matters - s 43(1)(b) GA Act
For the Tribunal to appoint a guardian, the person must be over 18 years of age and one or more of the following criteria set out in s 43(1)(b) of the GA Act apply in that the person is:
(i)incapable of looking after her own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to their person; or
(iii)is in need of oversight, care or control in the interests of their own health and safety or for the protection of others.
The disjunctive use of 'or' implies that each limb of s 43(1)(b) has a distinct meaning and only one of the three criteria is needed to allow the Tribunal to make a guardianship order. This issue has been the subject of differing views in previous matters before the Tribunal, particularly in relation to whether subsection (iii) alone can be the basis for making a guardianship order, particularly if the goal when implementing a guardianship order was for 'the protection of others'.[43]
[43] Ms G [2017] WASAT 108 at [33] - [48], KRM [2017] WASAT 135 at [19] - [20], T [2018] WASAT 128, and GG [2021] WASAT 133 at [52] - [63].
Because it is not in contention in this matter, this issue does not need to be addressed in any detail other than to note that I am satisfied that I can appoint a guardian for NJ by making declarations in respect of subsections (i) and (iii) only. There is a clear need to avoid making a global declaration in accordance with subsection (ii) due to the barrier it has created for NJ to be assessed for VAD.
Is NJ incapable of looking after her own health and safety? Section 43(1)(b)(i)
NJ has a significant history of falls due to the symptoms of PSP and the effects on her balance. She suffered a traumatic brain injury in November 2021 following a fall which resulted in a skull fracture. The reason for NJ's admission to Hospital A on 13 March 2024 was a fall.
The risk of falls to NJ's health and safety was discussed in detail in oral evidence and the documents before the Tribunal in May 2024. NJ had suffered six falls in April 2024 while an inpatient at Hospital A, but when I asked in May 2024, she reported that she had not had a fall for two years. When I raised this at the hearing in January 2025, NJ accused me of trying to imply that she was 'dumb',[44] although by that time, NJ was largely bedbound, so falls were no longer a pressing issue.
[44] ts 14, 21 January 2025.
Dr W reports that:[45]
… [KL] notes that there is frequent confusion in the afternoons and [NJ] could be resistant to taking her tablets. She cannot recall or understand the reason for tablets despite the situation being explained to her. There is a degree of sundowning. It has been a struggle to keep carers because they often quit because of the difficulty of providing care to [NJ].
Colateral [sic] history is that [NJ] can at times misidentify her son and daughter as other family members. She can be quite anxious at times if they need to take her out. She can become disorientated to place. She often does not recognise the carers. The collateral history suggests that she often forgets the nature of her condition and wants to make plans based on when she recovers from her illness. She can also perseverate on issues that attract her attention[.]
[45] Letter by Dr W dated 7 March 2025, pages 3 - 4.
I am satisfied, and I find, that NJ is currently incapable of looking after her own health and safety.
Is NJ unable to make reasonable judgments in respect of matters relating to her person? Section 43(1)(b)(ii)
Section 43(1)(b)(ii) of the GA Act deals with the question of capacity in the global sense rather than by reference to the question of capacity to make particular kinds of decisions. The declaration in s 43(1)(b)(ii) is in the same terms as the declaration required to enliven an enduring power of guardianship under s 110L of the GA Act. This means that if a person has signed an enduring power of guardianship and an application under s 40 of the GA Act is on foot for the appointment of a guardian, if no application is before the Tribunal pursuant to s 110L, the Tribunal can make a declaration under s 43(1)(b)(ii) to enliven an enduring power of guardianship.[46]
Geriatrician Dr H
[46] The application for guardianship could then be dismissed on the basis that the enduring power of guardianship was currently a less restrictive option.
NJ met geriatrician Dr H once on 4 March 2025. Dr H noted that she had significant problems with her memory.[47] Dr H's opinion is that NJ has capacity to make medical treatment decisions depending on the complexity of the decision. Dr H's view is that NJ is not capable of making complicated decisions, but she should not be unduly punished for not having access to these capacities.[48] Dr H's opinion was that NJ could make decisions about accommodation and services and that she has capacity to sign an advanced health directive.[49]
[47] Letter by Dr H to NJ's general practitioner dated 4 March 2025 (Dr H Letter).
[48] Dr H Letter.
[49] Dr H Letter and medical report by Dr H dated 18 March 2025.
Capacity to sign an advanced health directive
Proceedings commenced under Part 9B of the GA Act, which deals with advance health directives, are subject to the presumption of capacity set out in s 4(3) GA Act.[50] In order to sign an advance health directive, the GA Act requires that the person must have full legal capacity, which is not defined in the GA Act.[51] The meaning of 'full legal capacity' in this context is described by the Western Australian Department of Health as follows:[52]
To make an Advance Health Directive, you must be 18 years or older and have full legal capacity at the time of making the Advance Health Directive.
This means you:
•understand any information or advice given to you to help make decisions in your Advance Health Directive
•understand the likely effect(s) of the decisions you make in your Advance Health Directive on your future treatment and care
•are able to weigh up the possible pros and cons of your decisions about your future treatment and care
•are able to communicate your decisions about your future treatment and health care in some way[.]
[50] GA Act, s 4(1).
[51] GA Act, s 110P.
[52] A Guide to Making an Advance Health Directive in Western Australia, Government of Western Australia, Department of Health (Guide), page 6. The Guide is referred to in the prescribed form of an advance health directives in Schedule 2 of the Guardianship and Administration Regulations 2005 (WA).
The similarities between this definition and the definition of decision-making capacity for VAD (see [42]) are clear.
Geriatrician Dr W
Dr W has known NJ since September 2023 and was her treating doctor at Hospital A when the first application was made to the Tribunal. Dr W's opinion was that NJ does not have capacity to make decisions about her medical care, where she should reside or decisions about carers.[53]
[53] Medical Report of Dr W dated 7 March 2025 and letter dated 7 March 2025.
Dr W discussed VAD with NJ on 6 March 2025. He summarised their discussion as follows:[54]
[NJ] had previously discussed VAD as an inpatient at [Hospital A] and she was referred to VAD co-ordinator at that stage and the appropriate steps were followed. It was not thought she was eligible at that stage. Today although she was able to understand what VAD is and how it was done she was quite inconsistent about timing. At one stage stating she would not like it at the moment but wants it available if she deteriorates, and then later in midpoint in the review stating that if she could have it she would have it now, so as to preserve some money for her children given concerns she is spending all her money on her care …
[54] Medical Report of Dr W dated 7 March 2025 and letter by Dr W dated 7 March 2025, page 4.
I acknowledge the differences in opinion between Dr H and Dr W in relation to NJ's ability to make decisions about accommodation and services, but it is not necessary that I make a finding in this regard. I find that it is not in NJ's best interests that a further declaration is made that she is 'unable to make reasonable judgments in respect of matters relating to her person' due to NJ being declared ineligible for VAD as a result of the Declaration made in those terms in May 2024.
Is NJ in need of oversight, care or control in the interests of her own health and safety? Section 43(1)(b)(iii)
NJ requires 24/7 care, so the retention of appropriately qualified care staff is essential for her ability to live in her own home. If the level of care she requires cannot be provided at home, she will need to move into a residential aged care facility. NJ is not capable of recalling or understanding the difficulties faced by the family in hiring and retaining care staff, and she is reliant on the family to make arrangements for her proper care.
I am satisfied, and I find, that NJ is in need of oversight, care or control in the interests of her health and safety.
Conclusion on ability of the Tribunal to appoint a guardian
Having regard to the extensive 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 NJ's ability to look after her own health and safety, and she is in need of oversight, care and control in the interests of her own health and safety. NJ is therefore a person for whom I can appoint a guardian.
I next turn to explain why I am satisfied that NJ is in need of a guardian.
Stage 2 - is there a need to appoint a guardian or is a less restrictive option available?
Having regard to that evidence, there is no doubt that NJ requires assistance with managing some of her personal matters. The question I need to answer at this stage is not whether she needs assistance, but whether she needs a guardian to be appointed for that purpose. I must bear in mind the need to adopt a less restrictive option if possible.
I have also taken into account NJ's view that she does not need a guardian and she is capable of making her own decisions.
Is the First EPG or Second EPG a less restrictive option?
The First EPG that appointed DE is not a less restrictive option due to the broad mandatory Declaration blocking NJ from being assessed for VAD. In addition, NJ has expressed a clear view that she does not want DE involved in her decision-making. I will therefore revoke the First EPG in accordance with NJ's wishes.
The Second EPG is not a viable option because it is not correctly executed as the authorised witness did not sign it to indicate that he witnessed NJ's signature. I will revoke the Second EPG for the sake of clarity.
In the event that the Second EPG was correctly witnessed, the GA Act does not provide for an enduring power of guardianship executed later in time to revoke an earlier power, meaning that NJ could have had two enduring powers of guardianship in force at the same time. In terms of the priority given to earlier signed documents, the GA Act does state that if a person has signed an advance health directive, then an enduring power of guardianship signed later in time does not affect the treatment decisions made in the advance health directive.[55]
Capacity to sign enduring documents
[55] GA Act, s 110T.
NJ met with neuropsychologist Dr C in November 2022 to have her capacity to make a will assessed. Dr C noted only mild cognitive slowing and attentional/executive weakness and confirmed that NJ had capacity to sign a will, an enduring power of attorney and an enduring power of guardianship.[56] Thus, there are no concerns about NJ's capacity to execute the First EPG and Second EPG in February 2023.
[56] Report of neuropsychologist Dr C dated 23 January 2023.
The GA requires that a person have 'full legal capacity' to make an enduring power of attorney or an enduring power of guardianship.[57] There is no definition of full legal capacity in the GA Act but under the common law, capacity is decided in relation to each particular transaction by reference to whether the person has sufficient mental ability 'to be capable of understanding the general nature of what he is doing by his participation', with the capacity to sign any legal instrument being 'relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained'.[58]
[57] GA Act, s 104(1a) and s 110B.
[58] Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423 (Gibbons v Wright) at 437-8 per Dixon CJ, Kitto and Taylor JJ cited in FC [2016] WASAT 2 per Child M.
To put that another way:[59]
… There is no fixed standard of the mental capacity required at law for a person to be deemed 'capable' of managing their own affairs. It will fluctuate according to the legal character, complexity and significance of the relevant transaction (also known as an 'issue-specific' approach) …
Capacity to sign an enduring power of attorney
[59] Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91 at [89], cited with approval in W v S [2025] WASCA 21 at [47].
For a person (the donor) to have the capacity to sign an enduring power of attorney, the common law position is that the donor must be able to understand:[60]
… the nature and effect of the power: first, if such be the terms of the power, that the attorney will be able to assume complete authority over the donor's affairs; second, if such be the terms of the power, that the attorney will in general be able to do anything with the donor's property which he himself could have done; third, that the authority will continue if the donor should be or become mentally incapable; fourth, that if he should be or become mentally incapable, power will be irrevocable without confirmation by the court.
[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.
Capacity to sign an enduring power of guardianship
[60] Legal Profession Complaints Committee v Wells [2014] WASAT 112 at [18] citing Szozda v Szozda [2010] NSWSC 804.
It therefore follows that for a person (the appointor) to have the capacity to sign an enduring power of guardianship, they must be capable of understanding that an enduring power of guardianship is a complete and lasting delegation of authority. The authority begins when the appointor loses capacity and is incapable of making reasonable judgments about their person. The guardian will assume complete control over the appointor's personal and lifestyle decisions, including but not limited to decisions about certain types of legal actions,[61] where they will live, what medical treatment they will receive, who they will have contact with and whether they can travel. The appointor can revoke the power while they retain capacity, but once the appointor has lost capacity, the only way to revoke the power is by order of the Tribunal.
[61] For an example, see QU [2024] WASAT 92. A guardian acting under an enduring power of guardianship is 'taken to be' the case guardian in proceedings in the Family Court of Western Australia pursuant to r 102 and r 105(5) of the Family Court Rules 2021 (WA), which includes financial and parenting proceedings. A guardian can also obtain a restraining order to prevent other people from having contact with the appointor pursuant to s 18(2)(b) Restraining Orders Act 1997 (WA).
Dr H and Dr W share the opinion is that NJ is currently incapable of executing an enduring power of guardianship.[62] This means that she is unable to sign a new enduring power of guardianship.
Future medical treatment decisions - the AHD
[62] Medical Report by Dr H dated18 March 2025 and Medical Report of Dr W dated 7 March 2025.
In terms of the hierarchy of medical treatment decision-making, decisions must be made in accordance with an advance health directive unless circumstances have changed or could not have been foreseen by the maker.[63] For end-of-life decisions, NJ's AHD executed in October 2023 clearly records her decision that she does not consent to any future treatment aimed at sustaining or prolonging her life.[64]
Are informal arrangements sufficient? Is s 110ZD GA Act an option?
[63] GA Act, s 110S(3).
[64] The AHD was signed on 8 October 2023.
For treatment decisions that are not covered by the AHD, health professionals can seek consent from the 'person responsible' pursuant to s 110ZD of the GA Act, which sets out who can make medical treatment decisions on behalf of others. This section prescribes that KL, EV and DE, as NJ's children, can make medical treatment decisions for NJ if her treating team do not consider her to have the capacity to make that decision.
Section 110ND of the GA Act provides as follows:
110ZD.Circumstances in which person responsible may make treatment decision
(1)If a patient is unable to make reasonable judgments in respect of any treatment proposed to be provided to the patient, the person responsible for the patient under subsection (2) may make a treatment decision in respect of the treatment.
(2)The person responsible for the patient is the first in order of the persons listed in subsection (3) who —
(a)is of full legal capacity; and
(b)is reasonably available; and
(c)is willing to make a treatment decision in respect of the treatment.
(3)For subsection (2), the persons are the following —
(a)the patient's spouse or de facto partner if that person —
(i)has reached 18 years of age; and
(ii)is living with the patient;
(b)the patient's nearest relative who maintains a close personal relationship with the patient;
(c)the person who —
(i)has reached 18 years of age; and
(ii)is the primary provider of care and support (including emotional support) to the patient, but is not remunerated for providing that care and support;
(d)any other person who —
(i)has reached 18 years of age; and
(ii)maintains a close personal relationship with the patient.
(4)For subsection (3)(b), the patient's nearest relative is the first in order of priority of the following relatives of the patient who has reached 18 years of age —
(a)the spouse or de facto partner;
(b)a child;
(c)a parent;
(d)a sibling.
(5)For subsection (3)(b) and (d)(ii), a person maintains a close personal relationship with the patient only if the person —
(a)has frequent contact of a personal (as opposed to a business or professional) nature with the patient; and
(b)takes a genuine interest in the patient's welfare.
(6)For subsection (3)(c)(ii), a person is not remunerated for providing care and support to the patient although the person receives a carer payment or other benefit from the Commonwealth or a State or Territory for providing home care for the patient…
The term 'nearest relative' is defined in s 3 of the GA Act as follows:
nearest relative in relation to a person means the first in order of priority of the following persons, who has attained the age of 18 years and is reasonably available at the relevant time —
(a)a spouse or de facto partner;
(b)a child;
(ba)a step child;
(c)a parent;
(ca)a foster parent;
(d)a brother or sister;
(e)a grandparent;
(f)an uncle or aunt;
(g)a nephew or niece,
and for the purposes of this definition —
[(h) deleted]
(i)a brother or sister of a person includes a brother or sister of the half-blood, and a person who was adopted by one or both of the parents of the first-mentioned person; and
(j)the elder or eldest of 2 or more relatives described in a paragraph of this definition shall be preferred to the other or any other of those relatives regardless of sex, and no distinction shall be made between relatives of the same age;
The GA Act prescribes that the decisions of the eldest child will be preferred. KL is the eldest child.
NJ's children are aware of her wishes in respect of VAD and as set out in the AHD. EV is a practising Buddhist and his beliefs do not allow him to be involved in any decision about end-of-life care or ending NJ's life prematurely.[65] EV is supportive of his mother but was clearly distressed by the situation.
[65] ts 35, 21 January 2025.
KL has spoken with the palliative care team at Hospital B if the request for VAD does not progress. She has been advised that palliative care is peaceful and they can manage pain well.[66] KL has been liaising with all health providers on NJ's behalf and has attended and organised medical appointments with NJ since the hearing of 21 January 2025. KL put a 'do not resuscitate' direction in place on 27 March 2025 in accordance with NJ's AHD.
[66] Submissions filed by KL on 3 April 2024.
I am satisfied, and I find, that NJ does not require a guardian to make decisions about medical treatment not covered by the AHD as KL has the authority conferred by s 110ZD. KL has been involved with each hospital admission in 2025 and has been able to make decisions with no formal authority as the Second EPG was not correctly executed. KL has the support of DE and EV in this role. KL has set up a family group chat to communicate easily with EV and DE to update them and obtain their views about decisions to be made, which all parties report has been working well. KL also set up a group chat with NJ's grandchildren.
Conclusion - Is there a need for a guardian?
For the reasons set out in more detail below, I am satisfied that NJ needs a substitute decision-maker with the legal authority to make decisions, give consent and sign legal documents in relation to:
(a)services, to ascertain whether private carers can be sourced to allow for NJ to return home safely without the ongoing assistance of EV;
(b)accommodation, as in the event that private carers cannot be sourced, NJ will need to move to residential aged care; and
(c)aged care restrictive practices if NJ moves to aged care.
I am therefore satisfied on the evidence before me, and I find, that there are no less restrictive means available for certain personal matters to be dealt with in NJ's best interests. The Tribunal needs to appoint a guardian.
I will now turn to the third stage of enquiry which deals with the specifics of the guardianship order.
Stage 3 - who should be the guardian and what functions are required?
Who should be NJ'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 not in a position where their interests conflict or may conflict with NJ's interests and is suitable to act as the guardian.[67]
[67] GA Act, s 44(1). Section 51(2) sets out the way a guardian must act when acting in the best interests of the represented person.
When assessing suitability, the Tribunal must take into account:[68]
(a)the desirability of preserving existing relationships within NJ's family;
(b)the compatibility of the proposed guardian with NJ;
(c)whether the appointment is consistent with NJ's wishes; and
(d)whether the proposed guardian will be able to perform the functions to be vested in the guardian.
[68] GA Act, s 44(2).
KL is the only nominee for guardian. I find that KL is over the age of 18 years and has consented to act as the guardian.[69] I find that KL will act in best interests of NJ. I have observed KL to patient, compassionate and she clearly understands the difficulties that NJ is having. I am satisfied that KL will advocate for NJ and take her wishes into account, as far as possible, which is evidenced by KL putting the 'do not resuscitate' direction in place.
[69] GA Act, s 44(1).
KL can maintain the supportive relationships that NJ has with her family members as evidenced by KL setting up the group chats. I am satisfied, and I find, that appointing KL as NJ's guardian is in accordance with NJ's wishes as expressed in the Second EPG which was signed in October 2023 when there was no doubt about NJ's capacity. KL has been managing NJ's personal decision-making for the past three months so I am satisfied that KL is able to perform the functions to be vested in the guardian.
I am satisfied, and I find, that KL will act in NJ's best interests, there is no conflict of interest and she is suitable to be appointed as NJ's guardian. I will appoint KL as NJ's guardian.
What functions should the guardian have?
Accommodation
NJ's guardian needs to have the legal authority to make decisions about where she will live and with whom. Documents may need to be signed in relation to discharge from Hospital B and admission to residential aged care.
Services
NJ's guardian needs to have the legal authority to make decisions about services, specifically in relation to sourcing and engaging private care staff.
Aged care restrictive practices
NJ's guardian needs to have the legal authority to give informed consent to restrictive practices in an aged care setting. While an environmental restraint is likely not needed due to NJ being largely immobile, Dr H and Dr W both noted that NJ will become agitated in the evening (sundowning) and that she has responded well to quetiapine.[70] If this type of medication was given to NJ as needed in an aged care setting, this would constitute a chemical restraint.[71]
Conclusion in relation to functions
[70] Letter by Dr H dated 4 March 2025 and letter from Dr W dated 7 March 2025.
[71] The Aged Care Act 2024 (Cth) will commence on 1 July 2025. Sections 18(1)(f) and s 163(2) of this act requires that informed consent is given to the use of a restricted practice.
I am therefore satisfied, and I find, that there is a need for a guardian appointed by the Tribunal to make decisions for NJ about her accommodation, services and restrictive practices in an aged care setting.
I will discuss the length of the guardianship order at the conclusion of these reasons.
I will now go through the same three stage process in relation to financial matters, starting with NJ's capacity to make decisions about her estate.
Stage 1 - does NJ lack the capacity to make decisions about her estate?
When can an administrator be appointed? The test for incapacity
To appoint an administrator for NJ, s 64(1)(a) of the GA Act requires that 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.
(4)(b) Does NJ have a mental disability?
The term 'mental disability' is defined in the GA Act and describes certain disabilities such as an intellectual disability, a psychiatric condition, dementia, and acquired brain injury.[72] The definition is inclusive and is described by the Full Tribunal in the case of FY as follows:[73]
The ordinary meaning of the term 'mental disability' in the GA Act thus contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal, or which is objectively measurable. A mental disability may manifest in a variety of ways, including as a disturbance or limitation in a person's thought processes or their cognitive ability, in their perceptions of reality, emotions or judgments, in disturbed behaviour or in learning difficulties.
…
… A finding that a person has a 'mental disability' may, of course, be referrable to the existence of one, or a combination of more than one, identified medical conditions. In other cases, the underlying cause of a person's mental disability may not be entirely clear, or susceptible to a particular medical diagnosis, but the existence of the mental disability may be beyond doubt.
[72] GA Act, s 3.
[73] FY [2019] WASAT 118 (FY) at [27] and [32].
Dr H's opinion is that NJ has PSP complicated by cognitive dysfunction.[74] Dr H's opinion is that NJ is not capable of making decisions about complex financial matters.[75]
[74] Medical Report by Dr H dated 18 March 2025 and letter by Dr H dated 4 March 2025.
[75] Medical Report by Dr H dated 18 March 2025.
Dr W recorded NJ's mental disability as a cognitive impairment consistent with dementia as part of a progressive extrapyramidal syndrome most consistent with PSP.[76] Dr W's opinion was that NJ was not capable of making decisions about simple or complex financial matters. Dr W noted that NJ scored 22/30 on a Montreal cognitive assessment in September 2023.[77] His view was that she could not accurately recall her financial position as collateral information suggested that her estimates of her financial status and current costs were markedly wrong.[78] This is consistent with the evidence NJ gave at the January hearing, which is discussed later in these reasons.
[76] Medical Report of Dr W dated 7 March 2025 and letter dated 7 March 2025.
[77] Letter by Dr W dated 7 March 2025.
[78] Medical Report of Dr W dated 7 March 2025.
I find that NJ has a mental disability as defined in the GA Act in terms of Dr W's diagnosis of dementia, and as described in FY, in terms of Dr H's description of cognitive dysfunction.
I will next explain why I am satisfied that NJ is unable, by reason of the mental disability, to make reasonable judgments in respect of matters relating to all of her estate.
Does the mental disability cause NJ to be unable to make reasonable judgments about her estate?
For the Tribunal to decide whether NJ is 'unable' to make reasonable judgments about her estate, I must consider NJ's estate and circumstances and then compare that against the extent to which NJ is able to engage in the cognitive processes required to make a 'reasonable judgment'.
NJ's estate
A person's 'estate' includes their real and personal property, all assets and liabilities, and all of their financial affairs. NJ's wealth is substantial, but her estate is simple, consisting only of her home, cash in her bank accounts, household contents and her car.
Reasonable judgments about estate
The ability of a person to make reasonable judgments about their estate is a subjective test, because the person's ability must be assessed in relation to their actual estate. The Tribunal must consider whether the person has the cognitive capacity to:[79]
… understand the need for, and sources of, income available to them; to understand the value of any income received relative to items of expenditure; identify and calculate necessary expenditure for day to day living, together with expenditure for longer term financial objectives and discretionary items; to devise a budget so as to be able to live within their means; to identify and to assess the financial implications of particular items of expenditure or of financial decisions (for example whether to enter into contracts such as those for the purchase of a phone, household items, a car, or a house); to organise their affairs so as to be able to meet debts as they fall due; and to identify and implement problem solving strategies for resolving any unexpected financial issues.
[79] FY at [53].
NJ sought the revocation of the First EPA so that she could manage her own finances in the belief that she had the capacity to do so. In order to ascertain NJ's understanding of her expenses, I asked her at the January hearing if she knew the cost of being cared for at home. She told me that she did not know as it is managed by her children.[80] I asked if she was receiving any money from the Government that was used to pay for her care and she again deferred that question to her children.[81] I then asked her, based on the costs of care and how much money she had, how long she could afford to stay at home. NJ responded as follows:[82]
NJ: Well, that will remain to be seen, because I've lent the kids money, and I'm hoping that they will support me in some way. And we're not just talking about any money. There's a lot of money.
MEMBER: So, is your plan then, to stay home and continue to pay for 24/7 care, and then if your money runs out, your kids will pay for the 24/7 care.
NJ:Well, I'm hoping they will.
[80] ts 11, 21 January 2025.
[81] ts 12, 21 January 2025.
[82] ts 13, 21 January 2025.
I explained to NJ that the questions about the costs of care were designed to assess her capacity to make reasonable judgments about her finances, but she could not provide me with an answer. NJ told me that she avoided the question because she 'might get into trouble' if she answered it. When asked to clarify what that meant, she admitted that she avoided the question because she did not want to get the answer wrong.[83]
[83] ts 20, 21 January 2025.
NJ then promptly changed her position to declare that she was not prepared to discuss anything personal, such as what she pays carers.[84] I am satisfied that this response is a likely confabulation as she had just given evidence that she did not know what the carers were paid and deliberately avoided answering the question on that basis.
[84] ts 20 - 21, 21 January 2025.
I acknowledged to NJ that it was uncomfortable to talk about personal financial matters, but I needed to understand what NJ knew about her finances and the cost of her care. The following exchange then occurred which demonstrates a typically dismissive response:[85]
NJ: I understand the difficulty of your position, and I'm sorry, but, yes, you need to know that I'm okay, and that I will have enough funds. I will speak to my accountant, whom I've had since I was 18. So, yes, let it lie low, please.
MEMBER: All right. So, these kinds of discussions, you might have to have those types of discussions with the doctors that you go and see, and so whether that's a geriatrician and/or a neuropsychologist, because they will be providing - - -
NJ:They don't handle money. I handle money. My accountant handles money. And they are the best people to tell you about money. Not a doctor, who I've worked with for a long time, and they've got no idea of money. They know about medicine, but not about money.
MEMBER:So would a geriatrician, based on your experience as a nurse, would a geriatrician be able to provide an opinion about your ability to make good decisions or judgments about managing your finances?
NJ:I don't believe that I would get a good answer, because they are a doctor of medicine, not an accountant like my group of friends. My accountant. Surely that would have some weight. You go to see a doctor about a cough, not about your money.
Testamentary capacity
[85] ts 21, 21 January 2025.
NJ made repeated assertions in 2024 and 2025 that she has been declared to have testamentary capacity by her long-term neurologist Dr S. At the April hearing, she claimed that the doctors at Hospital B also concluded that she has testamentary capacity. There is no evidence before the Tribunal from Hospital B to that effect but on 31 December 2024, Dr S reviewed NJ and stated that 'she clearly has testamentary capacity'.[86]
[86] Letter of Dr S dated 1 April 2025, which attached his letter to NJ's general practitioner dated 31 December 2024.
The traditional test for determining testamentary capacity is stated by Cockburn CJ in Banks v Goodfellow, namely:[87]
It is essential to the exercise of [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; [and] shall be able to comprehend and appreciate the claims to which he ought to give effect.
[87] Banks v Goodfellow (1870) LR 5 QB 549 at 565 per Cockburn CJ as cited by Pritchard J in Public Trustee v Nezmeskal [2018] WASC 394 at [36].
Cockburn CJ was clear that testamentary capacity does not require perfect insight and memory:[88]
mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. … [The testator's] memory may be very imperfect; it may be greatly impaired by age or disease … and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. … To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?
[88] Banks v Goodfellow at [566], [568] per Cockburn CJ as cited by Pritchard J in Public Trustee v Nezmeskal at [39].
It is clear that the common law test for determining testamentary capacity is significantly different to the test prescribed in s 64(1)(a) of the GA Act which is whether, by reason of a mental disability, the person is incapable of making reasonable judgments in respect of their estate. Whether or not NJ had testamentary capacity on 31 December 2024 does not assist my enquiry in April 2025 pursuant to the GA Act, which is a higher test involving the examination of whether NJ is capable of making reasonable judgments on an ongoing basis about her actual estate and circumstances.
NJ's actual estate and circumstances
NJ continued to criticise DE for selling the Portfolio. At the April hearing, NJ told me that because of the liquidation of the Portfolio and requirement to pay tax, she feared she would not have any money left as she was 'living off capital'. This is inconsistent with NJ's comments made at the January hearing about having enough funds to last her the rest of her life, for example, 'I feel confident that I will have enough 'til I leave the planet'.[89] Further, the involvement of the VAD team at Hospital B likely indicates that NJ's lifespan is less than 12 months and her need for funds would be limited to that period.
[89] ts 20, 21 January 2025.
NJ was consistently unable to comprehend that DE's decision to sell the Portfolio:
(a)preserved NJ's home so she could be cared for at home in accordance with her wishes;
(b)ensured that funds were available to pay carers 24/7, which is estimated to be in the vicinity of around $15,000 per month;
(c)in respect of the requirement to pay income tax, accorded with the accounting advice that the costs of running the Fund was similar to the tax NJ would pay upon the sale of the Portfolio; and
(d)if it is necessary for NJ to move into residential aged care at some point in the future, NJ has the funds readily available to pay the RAD.
I am satisfied that NJ's inability to understand the above can only be explained by a limitation in her cognitive ability and significant memory impairment. The evidence provided to the Tribunal, which I accept is, that NJ is a trained nurse, she ran a business and managed a significant selfmanaged superannuation fund for 20 years or more. There is no doubt, in my view, that the diagnosis of a cognitive impairment consistent with dementia as identified by Dr W and cognitive dysfunction described by Dr H is the cause of NJ's inability to make reasonable judgments in respect of her estate. NJ managed her estate and made her own financial decisions until her decline started in early 2024 when she forgot her internet passwords and DE needed to start assisting with paying her bills.
I am satisfied, and I find, that the mental disability is the cause of NJ's inability to make reasonable judgments in respect of her estate.
Conclusion on capacity to make financial decisions
Having regard to the extensive 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 NJ's ability to make reasonable judgments in respect of her estate. NJ is therefore a person for whom I can appoint an administrator.
Stage 2 - is there a need for an administration order or is a less restrictive option available?
I must bear in mind the need to adopt a less restrictive option if possible. I have also taken into account NJ's views that she does not need an administrator and she feels she is capable of making decisions about her estate.
Is the First EPA or Second EPA a less restrictive option?
When NJ had capacity, she decided in February 2023 that she wanted DE to make financial decisions for her if she was not able to. However, NJ was reportedly dissatisfied with DE's request for compensation for being her primary carer and did not want DE to manage her estate. NJ signed the Second EPA in October 2023 to jointly appoint EV and KL as her attorneys. Both EPAs were drafted to allow each attorney to act immediately.
As mentioned earlier in these reasons, the Tribunal was not advised of the existence of the Second EPA in May 2024 and only became aware of its existence in January 2025.[90] KL explained that the Second EPA was not discussed at the hearing of May 2024 as the family's understanding was that only guardianship was being considered by the Tribunal. That is true, and at the May Hearing, I explained to the family that the First EPA was in effect immediately, meaning that DE could exercise the power to manage NJ's finances.
[90] ts 36, 21 January 2025.
I asked DE whether she was aware of the existence of the Second EPA. DE said she received a telephone call from KL's daughter 'E' to advise that the Second EPA had been signed but she was told by the staff at Hospital A that it had not been executed properly, so she was asked to take on the role under the previously signed documents.[91]
[91] ts 37, 21 January 2025.
It appears that there was a fundamental misunderstanding at this point as while the Second EPG was incorrectly executed, the Second EPA was correctly executed, and on the face of it, appears to comply with all the technical requirements of the GA Act,[92] meaning that NJ had two enduring powers of attorney in force at the same time.
What is the position when two enduring powers of attorney have been signed?
[92] GA Act, s 104.
The GA Act does not provide for a new appointment under an enduring power of attorney to revoke an earlier appointment. In fact, the GA Act is silent as to when or how the donor of an enduring power of attorney can revoke the power.[93] The position at common law is that the donor can revoke an enduring power of attorney if they have capacity:[94]
… to understand, when explained to [them] the authority given to [their] attorneys, and that, by signing the revocation document [they were] taking that authority away and the consequences of doing so.
[93] In contrast, the GA Act provides the Tribunal with the power to revoke an enduring power of attorney under s 109(1)(c) and pursuant to s 108 when appointing an administrator pursuant to sections 65 or 66.
[94] KRL [2010] WASAT 187 at [44] based on the formula set out in Gibbons v Wright.
On one view, it follows from the execution of a second power of attorney that an inference can be drawn that the person executing that power intended to revoke the earlier power of attorney. However, this is not the current position in Western Australia and were it so, it would mean that DE took numerous actions, including liquidating the Portfolio, using a revoked enduring power of attorney. While DE was told that NJ signed another enduring power of attorney by KL's daughter, I accept DE's evidence that in May 2024, she was advised by Hospital A that it was not signed correctly.
While ideally DE would have asked to see a copy of the Second EPA and made her own enquiries about the legal status of the document, I acknowledge that this was an incredibly stressful time for the family and they had reposed significant trust in Hospital A, who correctly identified that the Second EPG was not signed. I am satisfied that in those circumstances, it was reasonable for DE to believe that the Second EPA was not correctly signed, particularly when EV and KL held the same belief.
The GA Act provides that anyone performing a function under the GA Act is not personally liable for any act done in the performance, or purported performance, of their functions unless the act was done dishonestly, in bad faith or without reasonable cause.[95] I am satisfied that DE acted in good faith and diligently protected NJ's interests while acting under the First EPA in her belief that the Second EPA was not correctly signed.
[95] GA Act, s 114.
For the avoidance of doubt, I will revoke the First EPA on the basis that NJ likely intended to revoke it by her action of signing the Second EPA.
The Second EPA - witnessed by family
The GA Act requires that an enduring power of attorney is witnessed by two witnesses and:[96]
(a)one must be a witness authorised by law to take declarations;[97] and
(b)the other must be over the age of 18 and not appointed as a donee or substitute donee.
[96] GA Act, s 104(2)(a)(ii).
[97] Oaths, Affidavits and Statutory Declarations Act 2005 (WA), Schedule 2.
The authorised witness on the Second EPA is KL's son-in-law F, who is an accountant and thus a person who is authorised to take declarations. The second witness is KL's daughter E, who is married to F. The witnesses for the Second EPG were F as the authorised witness and EV as the other witness.
While there are no restrictions on family members being witnesses to an enduring power of attorney or enduring power of guardianship, the lack of an independent witness means that if there was a contention about whether or not NJ had capacity to sign the Second EPA and Second EPG, there would be no one outside the family that could give evidence about the circumstances surrounding the signing of the documents, such as about NJ's state of mind or whether she was signing the documents voluntarily.
The Second EPA - joint appointment
While the Second EPA appears to conform with the technical requirements of the GA Act, it is a joint power that requires KL and EV to act jointly for every transaction. EV currently moves between Western Australia and the eastern states and is planning to be overseas for two months from mid-April. I am not satisfied that the Second EPA is an effective way for NJ's finances to be managed due to administrative burden involved in the requirement for both attorneys to consent to every transaction.
I will therefore revoke the Second EPA.
Dr H and Dr W share the opinion that NJ is currently incapable of executing an enduring power of attorney.[98] This means that she is unable to sign a new enduring power of attorney.
Conclusion in relation to the need for an administrator
[98] Medical Report by Dr H dated 18 March 2025 and Medical Report of Dr W dated 7 March 2025.
As I will revoke the First EPA and Second EPA, and I am satisfied that NJ lacks the capacity to manage her estate or sign a new enduring power of attorney, I find that the Tribunal needs to appoint an administrator.
I will now turn to the specifics of the administration order.
Stage 3 - who should be the administrator, what functions should they have and how long should the orders run?
Who should be NJ'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 NJ and is suitable to act as the administrator of her estate.[99] When making this assessment, the Tribunal must also have regard to:[100]
(a)the compatibility of the proposed appointee with NJ and the guardian (if appointed);
(b)NJ's wishes; and
(c)whether the proposed appointee will be able to perform the functions to be vested in the administrator.
[99] GA Act, s 68(1)(c) and s 68(1)(d).
[100] GA Act, s 68(3)(d).
KL has proposed herself for nomination. I find that KL is over the age of 18 years and has consented to act as the administrator.[101] I am satisfied, and I find, that KL will act in NJ's best interests. KL filed submissions and supporting documents to explain the steps taken while appointed as NK's emergency administrator for the three months between the January and April hearings, so I have been able to observe KL's ability to manage NJ's finances directly.
[101] GA Act, s 68(1).
KL's appointment is likely to be consistent with NJ's wishes due to NJ wanting one of her children to manage her finances, and because NJ's wish in October 2023 was that KL and EV would jointly manage her finances.[102] KL's appointment has the support of DE and EV, and as KL is also NJ's guardian, she will be able to consistently implement the decisions that she makes in both roles.[103]
[102] GA Act, s 68(3)(b).
[103] GA Act, s 68(3)(a).
I am satisfied that KL will be able to perform the functions to be vested in the administrator due to her experience as a bookkeeper and due to my direct observations.
I am therefore satisfied, and I find, that KL will act in NJ's best interests, the appointment is consistent with NJ's wishes and KL is suitable to be appointed. I will appoint KL as NJ's administrator.
What should the administrator's powers be?
I am satisfied that that the administration order should be a plenary order, which will allow the administrator to deal with all aspects of NJ's estate in her best interests. I am satisfied that due to NJ's memory issues, she is unable to make decisions about simple matters as there was evidence before the Tribunal in May 2024 that as she had forgotten to pay her utility bills. In around April 2024, NJ told DE that she could not remember the passwords to her online banking. When DE assisted with resetting her password, DE noticed that her Mastercard and Amex had not been paid.[104]
[104] ts 10 - 11, 22 May 2024.
I will also include a gifting authority of $18,000 per year. It was estimated that NJ would spend around $5,000 per year on gifts for her seven grandchildren and five great-grandchildren. The additional $13,000 per year covers the $250 per week that NJ was gifting to KL. NJ discussed with neuropsychologist Dr C in 2022 that to ensure that the 'equal distribution' to her children in her will was truly equal, she will need to financially assist some of them more before her passing.[105] It appears that this was a reference to providing more financial assistance to KL based on the implementation of the weekly payment.
[105] Report of neuropsychologist Dr C dated 23 January 2023, page 6.
When DE was managing NJ's finances, she ensured this payment continued. However, when I appointed KL as the emergency administrator, KL stopped the payment. This is further evidence of KL's suitability to be administrator as she understands the obligations of an administrator not to gift funds without the authorisation of the Tribunal.
When I asked NJ about the $250 payment, she stated that she did not know about the payment or what was being discussed. However, the evidence before me is that NJ was making this payment prior to 2024. I am therefore satisfied that it is consistent with NJ's wishes for the payment to KL to continue, and for KL to continue to transfer $250 per week by way of a gift to herself. DE and EV were supportive of the payment continuing.
While the $250 per week is not the usual type of gifting anticipated in a gifting order, such as birthdays and Christmas gifts, I am satisfied that it is appropriate that it is included in the gifting authority. If any issues are raised by the Public Trustee as part of KL's annual reporting requirements, it is open to KL to apply to the Tribunal for a direction pursuant to s 74 of the GA Act.
How long should the administration and guardianship orders run before review?
When making orders, the Tribunal is required to fix a period for the review of the order. The medical evidence is clear that NJ has a progressive condition and a continuing need for a guardian and an administrator. 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 5795/2024
The Tribunal orders:
1.The Tribunal declares that the represented person, [NJ] 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.
Administration
2.The order made on 21 January 2025 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
3.[KL] of [address] 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 $18,000 per annum on gifts on behalf of the represented person.
5.The enduring power of attorney dated:
(a)10 February 2023 by which the represented person appointed [DE] to be her sole attorney is revoked; and
(b)8 October 2023 by which the represented person appointed [KL] and [EV] to be her joint attorneys is revoked.
6.The administration order is to be reviewed by 4 April 2030.
Guardianship
7.The Tribunal declares that the represented person, [NJ] is:
(a)incapable of looking after her own health and safety;
(b)in need of oversight, care or control in the interests of her own health and safety; and
(c)in need of a guardian.
8.[KL] of [address] is appointed limited guardian of the represented person with the following function:
(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 determine the services to which the represented person should have access; and
(d)to decide whether to give or without 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).
9.The guardianship order is to be reviewed by 4 April 2030.
GAA 5926/2024
On the application of [EV] pursuant to s110N of the Guardianship and Administration Act 1990 (WA), the Tribunal orders:
1.The enduring power of guardianship dated 10 February 2023 by which [NJ] appointed [DE] to be her sole enduring guardian is revoked.
2.The enduring power of guardianship dated 8 October 2023 by which [NJ] appointed [KL] to be her sole enduring guardian is revoked.
GAA 372/2025
On the application of [NJ] pursuant to s 110L(3) of the Guardianship and Administration Act 1990 (WA),
The Tribunal notes:
1.On 10 February 2023 [NJ] signed an enduring power of guardianship to appoint [DE] as her sole enduring guardian.
2.On 8 May 2024, [the Hospital] made an application to the Tribunal in respect of [NJ] due to predominant concerns about her ability to make decisions in relation to discharge planning, where she would live and the services she would have access to.
3.On 22 May 2024, the Tribunal made a declaration that [NJ] was unable to make reasonable judgements in respect of matters relating to her person to bring the enduring power of guardianship dated 10 February 2023 into effect.
The Tribunal orders:
4.The declaration made on 22 May 2024 pursuant to s 110L(1) of the Guardianship and Administration Act 1990 (WA) is revoked.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
22 APRIL 2025
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