NJ

Case [2025] WASAT 35

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

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Details
AGLC
NJ [2025] WASAT 35
Case
[2025] WASAT 35
Decision Date

CaseChat Overview and Summary

The case involved the parties NJ and the Western Australian Department of Health. The dispute centered around the interpretation and application of the Voluntary Assisted Dying Act 2019 (WA) concerning the capacity to make a voluntary assisted dying decision. The Supreme Court of Western Australia was tasked with determining whether the statutory presumption of capacity applies to individuals subject to certain orders, such as those under the Guardianship and Administration Act 1990 (WA).

The court needed to decide whether individuals under such orders are automatically precluded from accessing voluntary assisted dying and if they must meet specific eligibility criteria regarding decision-making capacity. The court also had to interpret the guidelines provided by the Western Australian Department of Health and their implications for health professionals assessing a patient's eligibility for voluntary assisted dying.

The court held that individuals subject to orders such as those under the Guardianship and Administration Act are not automatically precluded from requesting voluntary assisted dying. However, these individuals may not meet the eligibility criteria regarding decision-making capacity for voluntary assisted dying. The court emphasised that the content of such orders should be considered by health professionals while assessing a person's decision-making capacity. The court also noted that individuals under these orders can request a review of their orders to potentially assist in their eligibility for voluntary assisted dying. The court's decision was based on the statutory presumption of capacity and the need for a thorough assessment of each individual's circumstances.

The court made orders appointing a private plenary administrator and a private limited guardian for NJ, ensuring that their interests and rights are adequately protected while considering their eligibility for voluntary assisted dying.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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