OM
[2025] WASAT 71
•11 JULY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: OM [2025] WASAT 71
MEMBER: MS R BUNNEY, MEMBER
HEARD: 3 JULY 2025
DELIVERED : 11 JULY 2025
PUBLISHED : 11 JULY 2025
FILE NO/S: GAA 3293 of 2025
OM
Represented Person
HOSPITAL A
Applicant
Catchwords:
Guardianship - Administration - Ownership of represented person's home - Trustee relationship - Beneficial ownership - Bare trust
Legislation:
Guardianship and Administration Act 1990 (WA), s 3, s 110ZD
State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4)
Result:
Public Trustee appointed as administrator
Private guardians appointed
Category: B
Representation:
Counsel:
| Represented Person | : | N/A |
| Applicant | : | In Person |
Solicitors:
| Represented Person | : | N/A |
| Applicant | : | N/A |
Case(s) referred to in decision(s):
Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
OM is aged in his early 90s. He has one son, SC and two daughters, D1 and D2. OM is married to BH but they have been separated for over 30 years. OM lives with several chronic health conditions and he has recently been diagnosed with vascular dementia.
Hospital A made the application to the Tribunal in mid-June 2025 for the appointment of a guardian and an administrator. OM needs to move into aged care but his family did not agree for his home (Property) to be sold to pay for care. It was also unclear who owned the Property.
OM has a very close relationship with his brother ER and sister‑in‑law JR, who have been his primary supports for the last few years. In early 2024, ER started planning for OM to move into aged care. ER spoke with SC about selling the Property, but there was no agreement and heated words were exchanged. However, everyone now accepts that OM must move into aged care and the Property must be sold.
The most contentious issue for the Tribunal to decide is who will be the administrator of OM's estate due to the complexities relating to the ownership of the Property. For the reasons set out below, I will appoint the Public Trustee as OM's administrator and SC and D1 as his joint guardians.
Principles to be observed by the Tribunal
The primary concern of the Tribunal when making decisions under the Guardianship and Administration Act 1990 (WA) (GA Act) is the best interests of the person for whom the application was made, OM. The Tribunal must ascertain OM's views and wishes, as far as possible.
The starting point for the Tribunal is that every person is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments about matters relating to their estate and their person. If this 'presumption of capacity' is set aside by clear and cogent evidence, the Tribunal can consider making guardianship and administration orders.
The Tribunal must consider whether OM's needs could be met by other means less restrictive on his freedom of decision and action. If the Tribunal makes an order, the order needs to impose the least restrictions possible on him.
Evidence
BH, D1, D2 and SC attended the Tribunal hearing of 3 July 2025 in person. Ms C, an investigator advocate from the Office of the Public Advocate (Investigator), also attended in person to advocate for OM in his best interests. ER and the social worker from Hospital A, Ms L, attended by telephone. OM decided not to attend the hearing. He told Ms L that he was happy for his family to attend the hearing on his behalf.
The Tribunal will take all facts and circumstances into account when determining OM's best interests. The Tribunal may inform itself on any matter as it sees fit, and is not bound by rules of evidence, which ensures, as far as possible, that all relevant information can be considered by the Tribunal to make the correct decision in OM's best interests.[1]
[1] State Administrative Tribunal Act 2004 (WA), s 32(2) and s 32(4).
I have taken into account the oral evidence given at the hearing and the written evidence filed in the proceedings. The relevant features are summarised in these reasons.
Issues
When deciding whether to appoint a guardian or an administrator, the Tribunal must first determine whether OM lacks the capacity to make decisions about his personal and financial matters. If so, the Tribunal will consider whether it needs to make an order, or whether there is another way for decisions to be made that is less restrictive on OM's freedom of decision and action. If the Tribunal needs to make orders, the Tribunal must then decide who the guardian or administrator will be, the functions or powers they require and when the order will be reviewed.
As mentioned, the most contentious issue for the Tribunal to decide is who will be OM's administrator.
OM's views and wishes
OM told the Investigator that he wants his son SC to make his decisions. SC wants to make decisions for his father and has proposed himself as OM's guardian and administrator. However, in all the circumstances, I am satisfied that it is not in OM's best interests to strictly follow his views and wishes in determining this application and I am unable to appoint SC as OM's administrator for the reasons that follow.
Findings of fact
The facts set out in [15] to [21] below are not controversial and I make findings in accordance with those facts.
In the early 1990s, when OM was around 60 years of age, he and BH separated and started living apart. The Family Home where OM, BH and the children lived was sold and the proceeds of sale were used to purchase the Property. A residence in the southern suburbs was purchased for BH using funds under OM's control (Residence).
BH arranged to purchase the Property in OM's and SC's names as joint tenants. BH did this to protect the Property. OM has a long‑standing history of gambling and BH wanted to ensure that he could not sell the Property to pay his gambling debts. SC lived at the Property for a period but OM has generally lived alone at the Property.
In February 2024, following a long hospital admission, OM was assessed by an aged care assessment team (ACAT) assessor. The ACAT report states that OM was having frequent falls at home, dizziness and functional decline. He was not able to control his diabetes and needed support to manage his daily insulin regime.[2]
[2] ACAT assessment prepared following a face-to-face meeting on 21 February 2024 (ACAT Assessment).
ER and JR had been providing practical support to OM at home up until that admission but due to ER's health, he was unable to continue providing the level of support OM needed. Given OM's complex health challenges and frailty at the time, OM was at risk of entering residential care unless appropriate services could be put in place to assist him.[3] A Home Care Package Level 4 (HCP4), the highest package available, was recommended with high priority. OM started to receive daily support under the HCP4 shortly thereafter.
[3] ACAT Assessment.
Also in 2024, ER spoke to SC about selling the Property to pay for OM to move into aged care, but SC did not agree. The family say that OM did not want to move into aged care, so they respected his wish to stay living at home.
OM was again admitted to hospital in early 2025. OM was transferred to Hospital B for rehabilitation. He was discharged home on 11 May 2025, but the next day, he was readmitted to Hospital A as he was incoherent and confused, and has been there ever since.
The treating team at Hospital A have determined that it is no longer safe for OM to live at home as his care needs have exceeded what can be provided at home with the HCP4. The team has recommended residential aged care where OM can receive 24/7 care. OM and the family agree with this recommendation. SC has looked at aged care facilities in the suburb where OM lives and he has spoken to a real estate agent about selling the Property.
I will now examine OM's capacity to make decisions, starting with financial decisions.
Does OM lack the capacity to make financial decisions?
To appoint an administrator, the Tribunal must be satisfied that OM is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate.
At law a mental disability includes dementia.[4] OM was diagnosed with vascular dementia during the admission to Hospital A. Dr S's opinion is that OM is unable to make decisions about his financial matters and noted that OM does not know the value of the Property or his pension.[5] I accept the evidence of Dr S.
[4] GA Act, s 3.
[5] Medical report of Dr A of Hospital A dated 16 June 2025.
OM's estate is simple and consists of his interest in the Property and his savings. His income is the aged pension. ER gave evidence that he has been managing OM's finances for 3 - 4 years, although this arrangement originally started due to OM's mobility problems rather than a cognitive impairment.
As OM needs to move to aged care, he would need to understand the payment structure of aged care fees and make arrangements to pay them, including selling the Property to pay the refundable accommodation deposit (RAD). The family members all agreed that OM is not capable of making decisions about his finances and would not be able to think through and resolve these matters for himself.
There is no doubt, in my view, that the diagnosis of vascular dementia is the cause of OM's inability to make reasonable judgments in respect of his estate. OM has previously worked for himself, earned an income and he was able to manage his own affairs until relatively recently.
I am satisfied, and I find, that the mental disability causes OM to be unable to make reasonable judgments about his estate. I find that the presumption of capacity has been set aside in respect of OM's ability to make reasonable judgments about his financial matters. OM is therefore a person for whom I can appoint an administrator.
I next turn to explore whether OM can make decisions about his personal matters.
Does OM lack the capacity to make personal decisions?
To appoint a guardian for OM, I must be satisfied that he is over 18 years of age and that one or more of the following criteria apply:
(a)he is incapable of looking after his own health and safety;
(b)he is unable to make reasonable judgments in respect of matters relating to his person; or
(c)he is in need of oversight, care or control in the interests of his own health and safety or for the protection of others.
I am satisfied, and I find, that:
(a)OM is currently incapable of looking after his own health and safety. Social worker Ms L states that OM is unaware of the regular medications he takes and he receives formal support for insulin administration as he has a history of insulin mismanagement;[6]
(b)OM is currently incapable of making reasonable judgments in respect of his person. Dr S states that OM lacks insight into his medical condition and treatment needs. He is unable to understand why he is in hospital and receiving treatment. Ms L noted that OM is agreeable to entering residential care but she does not know whether he understands what this means as he has a very agreeable nature; and
(c)OM needs supervision and oversight to protect his health and safety. OM has a significant history of falls and he cannot manage his insulin. His care needs are now too high to live in the community.
[6] Service provider report by Ms L of Hospital A dated 17 June 2025.
I accept the evidence from Ms L and the evidence included in the ACAT assessment. I am therefore satisfied, and I find, that the presumption of capacity has been set aside in relation to personal decisions and OM is a person for whom I can appoint a guardian.
I next turn to explain why I am satisfied that OM needs a guardian and an administrator. I must bear in mind the need to adopt a less restrictive option if possible.
Does the Tribunal need to appoint a guardian or an administrator?
Depending on the types of decisions a person needs made for them, informal arrangements can sometimes suffice. For example, medical treatment decisions can be made on an informal basis by family members or close friends pursuant to s 110ZD of the GA Act which sets out the hierarchy of decision-makers.[7] At the top of the hierarchy is a spouse, followed by an adult child.
[7] Section 3 of the GA Act sets out the hierarchy in further detail.
As OM and BH have been separated for over 30 years, and BH has not been involved with OM's care, I am not satisfied that informal arrangements are appropriate as it is necessary for the medical professionals that treat OM to have certainty about who can make medical treatment decisions for him, noting that he has a wife and three adult children.
SC arranged for OM to sign an enduring power of attorney (EPA) and an enduring power of guardianship (EPG) in late June 2025. The EPA and EPG appointed SC as OM's decision-maker. These documents are usually considered a less restrictive way for decisions to be made for someone if they have capacity at the time the documents are signed.
SC lives around 400 km from Perth and spoke to OM by telephone about the EPA and EPG. Five days before the hearing, SC travelled to Hospital A to see OM and sign the documents. SC asserts that OM's doctors did not tell him that they had determined that OM did not have the capacity to sign the EPA and EPG.
Aside from the issue of OM's capacity, the Investigator advised SC that the EPA and EPG were not correctly signed. The Tribunal has not been provided with copies of the EPA and EPG but SC accepts that the documents are unworkable.
I am satisfied on the evidence before me, and I find, that there is no less restrictive way for decisions to be made for OM. The Tribunal needs to appoint a guardian and an administrator.
I will now examine who should be the guardian and administrator, what their functions or powers should be, and how long the orders should run. I will start with guardianship and then turn to administration.
Who should be OM 's guardian?
When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in OM's best interests, is not in a position where their interests conflict or may conflict with his interests and is suitable to act as the guardian. D1 and SC have proposed themselves as OM's joint guardians.
I find that D1 and SC are both over the age of 18 years and have consented to act as guardians. I find that D1 and SC will act in OM's best interests as the evidence demonstrates that appropriate aged care facilities are being investigated. D1 and SC are not in a position of conflict with OM in terms of personal decisions and I am satisfied that they will be able to perform the functions to be vested in the guardians, noting that D1 is a nurse. Appointing OM's children as his guardians is in accordance with his wishes. This appointment also has the support of the rest of the family.
I will appoint D1 and SC as OM's joint guardians.
What functions should the guardian have?
OM needs his guardians to make decisions about:
(a)medical treatment and give informed consent to medical procedures as required;
(b)accommodation, as once an appropriate aged care facility has been identified, OM's guardians will need to sign the relevant documents;
(c)services, as his guardians will need to cancel the HCP4 and may need to arrange other services for him that are not available at the aged care facility, such as a private physiotherapist or podiatrist; and
(d)restrictive practices as it is possible that over the next five years, OM may require the aged care facility to implement practices to keep him safe that may be classified as restrictive in an aged care setting.
I next turn to discuss who the administrator will be.
Who should be OM's administrator?
SC has proposed himself for appointment as OM's administrator. There are no other nominations. When considering the appointment of an administrator, the Tribunal must hold the opinion that the administrator will act in OM's best interests and is suitable to act as the administrator of his estate.
I find that SC is over the age of 18 years and has consented to act as the administrator. SC's appointment is consistent with OM's wishes. SC is also OM's guardian, jointly with D1, so he will be able to consistently implement the decisions that he would make in both roles.
To determine whether SC is 'suitable' to be appointed and will be capable of performing the functions vested in the administrator, I must analyse the ownership of the Property, as that will impact on SC's suitability for appointment.
SC's evidence
SC gave evidence that he and OM purchased the Property together in 1994. SC did not contribute to the purchase price and explained that it was purchased using the proceeds of sale of his 'mother's house'.
SC was equivocal when I asked whether he would view 50% of the proceeds of sale of the Property as his when it was sold. SC acknowledged that this was a complex matter and legal advice was needed. SC indicated that regardless of his possible entitlement, he intended to ensure that the proceeds of sale of the Property would pay OM's RAD and be used for his ongoing support.
BH's evidence
When OM and BH separated in the early 1990s, they did not conduct a formal financial settlement. However, they agreed that the Family Home they shared with their children would be sold and they would live separately and apart in different homes. BH continues to live in the Residence that OM purchased for her.
BH insisted that SC's name be included on the title of the Property due to OM's gambling problem, as she was concerned that he might try to sell the Property to pay his gambling debts. BH gave evidence that she always considered the Property to be OM's and the purpose of including SC's name on the title was to protect the Property.
ER's evidence
ER says that OM told him that OM purchased the Property. However, ER was aware that in fact BH arranged the purchase of the Property and put the title in OM and SC's names.
ER described the circumstances surrounding his attempt in 2024 to move OM into a nursing home and the discussion with SC about selling the Property. ER recalled that the family was against selling the Property to fund the RAD. ER and SC both recalled an emotional telephone call between them, where SC used strong language to disagree with the suggestion that the Property be sold. Now though, SC and ER have agreed to put the past behind them.
In terms of the proposal to appoint SC as the administrator, ER was happy to hear that SC had changed his mind about selling the Property. However, ER expressed uncertainty about whether this would occur.
Analysis
SC's position is that he and his father have been the legal owners of the Property for 30 years, evidenced by their registration as joint tenants. Being a joint legal owner would usually mean an entitlement to half of the proceeds of sale to each owner. SC was likely aged in his 20s when the Property was purchased and there is no evidence before the Tribunal about what was discussed between BH, OM and SC about what SC's legal ownership meant. It may not be unreasonable, in SC's mind, to presume that he is entitled to half the proceeds of sale when he has been a joint owner for 30 years.
However, given the evidence of BH and ER, it is likely in my view that SC is an owner of the Property 'in name only' and his role was to hold the title of the Property for OM's protection. It is therefore arguable that SC is a bare trustee and holds the title of the Property on trust for OM for the sole purpose of providing a permanent home for OM.
Bare trust
A bare trust is a term used to describe a trust:[8]
... under which the trustee or trustees hold property without any interest therein, other than that existing by reason of the office and the legal title as trustee, and without any duty or further duty to perform, except to convey it upon demand to the beneficiary or beneficiaries or as directed by them, for example, on sale to a third party.
[8] Herdegen v Federal Commissioner of Taxation (1988) 84 ALR 271 at 281.
The four essential elements of a trust are present in the arrangement between SC and OM:[9]
(1)The trustee is SC. He is a legal owner of the Property but he made no contribution to the purchase price and has not paid the usual expenses that an owner would pay, such as council rates, insurance or maintenance. The only contribution he has made is to hold the legal title.
(2)The trust property is the Property. For the Property to be OM's permanent home, BH thought it necessary to take measures to protect it by arranging for SC to hold the legal title as a joint tenant. Holding the title as tenants in common would not have provided the level of protection required to prevent OM from transferring or encumbering the Property in any way.[10]
(3)The beneficiary is OM. BH arranged the purchase of the Property in joint names but always considered it to be OM's. OM consented to SC being a joint tenant because he signed the purchase documents on that basis.
(4)A personal obligation annexed to the property. SC has a personal obligation to deal with the Property for OM's benefit, to protect it from being sold or encumbered in a manner where OM would lose his permanent home. In 2024, SC exercised his obligation to deal with the trust property when he refused to sell the Property on ER's suggestion on the basis that OM did not want to move to aged care. This indicates that SC considered the Property to be OM's and was advocating for him in that regard.
[9] Jacobs' Law of Trusts in Australia (7th ed, 2006) at [107] - [110].
[10] A tenant in common can sell, transfer or encumber their share of a property without the consent of the other tenant. A joint tenant cannot sell, transfer or encumber the property without the consent of the other joint tenant.
I accept that SC intends use the proceeds of sale to pay OM's expenses. However, I am persuaded on the balance of probabilities that SC believes he is entitled to half of the proceeds of sale. SC's offer to use the proceeds of sale for OM's benefit is benevolent but it is based on a belief that he is choosing to make 'his funds' available to OM. This means there is a conflict of interest between OM and SC.
It is possible that the Property is worth $1,000,000. OM has lost capacity and is unable to assert that the whole Property is beneficially owned by him. It is against SC's interests to concede he is a bare trustee as that would mean losing access to around $500,000 that, currently, he is entitled to by virtue of his legal position as joint owner.
The issue of OM's beneficial ownership of the Property must be resolved to ensure the correct valuation of his assets, as that information is needed to ascertain the standard of care he can afford and must also be provided to Centrelink to determine his aged care fees.
For these reasons, I am unable to find SC suitable to be appointed as the administrator of OM's estate. The only option open to the Tribunal is to appoint the Public Trustee.
What should the administrator's powers be?
The administration order will be a plenary order, which will allow the administrator to deal with all aspects of OM's estate. I am satisfied that OM is unable to make decisions about simple or complex financial matters, based on the evidence that ER has been managing the payment of OM's bills for around four years. I will include a direction to the Public Trustee to investigate the ownership of the Property.
I will also include a gifting authority of $1,000 per year so the administrator can purchase gifts on OM's behalf noting that he has three children.
How long should the orders run before review?
The Tribunal is required to fix a period for the review of the order, the maximum period allowed being five years. The medical evidence is clear that OM has a diagnosis of a progressive illness such that he will need a guardian and administrator for the rest of his life. I will therefore set the review period for 5 years from the date of these orders.
Orders
The Tribunal orders:
1.The Tribunal declares that the represented person, [OM] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate;
(b)in need of an administrator of his estate;
(c)incapable of looking after his own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to his person;
(e)in need of oversight, care or control in the interests of his own health and safety; and
(f)in need of a guardian.
Administration
2.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
3.The administrator is authorised to expend up to a total amount of $1,000 per annum on gifts on behalf of the represented person.
4.The Public Trustee is directed to investigate the ownership of the real property located at [Property address] Western Australia.
5.The Public Trustee is to be provided with copies of all documents filed in the matter.
6.The administration order is to be reviewed by 11 July 2030.
Guardianship
7.[D1] of [address] and [SC] of [address] are appointed joint limited guardians of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b) to decide with whom the represented person is to live;
(c) to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA);
(d) to determine the services to which the represented person should have access; and
(e) to decide whether to give or withhold consent to the use of any restrictive practices for the represented person proposed from time to time in compliance with Part 4A of the Quality of Care Principles 2014 made pursuant to the Aged Care Act 1997 (Cth).
8.The guardianship order is to be reviewed by 11 July 2030.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R BUNNEY, MEMBER
11 JULY 2025
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