RS - [2025] WASAT 59 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   RS [2025] WASAT 59
MEMBER:   MS K COBBETT, MEMBER
HEARD:   3 JUNE 2025
DELIVERED          :   9 JUNE 2025
PUBLISHED           :   19 JUNE 2025
FILE NO/S:   GAA 1786 of 2025

RS
Represented Person
LS
Applicant

Catchwords:

Guardianship and administration - Proposed represented person with progressive cognitive impairment - Wishes of the represented person - Need for a Guardian - Guardianship application dismissed - Suitability - Continuing conflict between the adult children of the represented person - Lack of insight into loss of capacity by family members - Significant financial decisions to be made - Independent decision-maker needed to make financial decisions - Public Trustee appointed plenary administrator with directions for financial support of the represented person and his partner

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4(1), s 4(2), s 4(4), s 4(7), s 40, s 43(1)(b), s 43(1)(c), s 71(4), s 82

Result:

Guardianship application dismissed
Public Trustee appointed plenary administrator

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):

AM and MM [2011] WASAT 200
FS [2007] WASAT 202
LR [2019] WASAT 38
MW [2015] WASAT 106
RM [2010] WASAT 152
SAL and JGL [2016] WASAT 63
The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons for decision were delivered orally on 9 June 2025 and have been edited only to anonymise parties and correct some infelicity of expression, without variation to the substance thereof.)

Summary

LS has applied for the appointment of a guardian and administrator for her father, RS under the Guardianship and Administration Act 1990 (WA) (GA Act).
RS is an 87 year old man who has been diagnosed with dementia, mixed Alzheimer's and vascular-type. He lives at home with his wife and has the assistance of a level 3 home care package.
RS, Mrs S and their two older children do not support the application and are of the view that it should be dismissed.
A factor which has influenced the making of this application and its strong opposition has been RS and Mrs S's recent separation and reconciliation. The couple married in 1960 and separated in around 2021, with a financial agreement to separate their assets signed and stamped in the Family Court. During that time, RS was living on a block adjacent to that of his and Mrs S's youngest daughter, the applicant. RS's older children, G and S are of the view that the financial settlement advantaged RS at the expense of Mrs S.
RS and Mrs S have since reconciled and have been living together since at least March 2024.
Mrs S and the two older children gave evidence that their view is that the separation of assets was a mistake. They told me that steps are being taken to remedy the mistake and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading RS

Details

AGLC: RS [2025] WASAT 59
Case: [2025] WASAT 59
Decision Date: 19 JUNE 2025

CaseChat Overview and Summary

The case involved RS, an individual with progressive cognitive impairment, and his family members, including his former spouse, Mrs S, and their adult children, S, G, and C. The primary dispute centred on the need for a guardian or administrator for RS due to his declining cognitive abilities. The matter was brought before the Tribunal under the Guardianship and Administration Act, seeking to determine whether RS required a substitute decision-maker to manage his affairs, and if so, who would be suitable for the role.

The legal issues before the court were whether RS had the capacity to make significant financial decisions and whether an administrator was necessary for his financial affairs. Additionally, the court needed to decide who would be suitable to act as the administrator if one was required. The evidence presented indicated that RS and Mrs S had entered into a financial separation agreement in 2021, prior to RS's diagnosis of dementia. Both RS and Mrs S expressed a desire to remain together and recombine their finances, despite the separation agreement. However, the family members involved had not recognised that RS lacked the capacity to make such significant decisions, leading to a conflict regarding the financial separation and its potential reversal.

The Tribunal concluded that RS no longer possessed the capacity to make significant financial decisions and that he needed an independent decision-maker to manage his financial affairs. The court found that informal arrangements were insufficient to meet RS's needs, thus an administration order was necessary. Given the ongoing conflict between RS's adult children and their lack of insight into RS's loss of capacity, the Tribunal determined that the Public Trustee was the most suitable person to act as RS's administrator. The court appointed the Public Trustee as RS's plenary administrator, with directions to provide financial support for both RS and his partner, Mrs S.

The final orders included the appointment of the Public Trustee as RS's plenary administrator, with specific directions to ensure RS's financial security and support for his partner. The Public Trustee was tasked with considering whether it was in RS's best interests to recombine his assets with Mrs S and how to utilise his estate to meet his long-term needs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On this second point, much of the evidence filed at the Tribunal relates to the financial separation between RS and Mrs S. It is common ground that RS and Mrs S separated in 2021 and entered into a financial separation agreement by consent at the Family Court that year (Financial Separation). To implement the Financial Separation, the Beach Property was transferred solely to RS and another property was transferred solely to Mrs S. The Applicant and her husband C said that it was RS's idea to financially separate. C said that RS had instructed a lawyer, who assisted in the separation process. There has been no evidence provided to displace the presumption that RS had the capacity to sign the separation agreement in 2021 (before his dementia diagnosis). It is not the role of the Tribunal under the GA Act to make any findings in relation to the Financial Separation in 2021. However, the effects of the Financial Separation and any attempts to undo its effects are relevant to the question as to whether RS needs an administrator, and if so, who is suitable for that role. Both S and G are of the view that the separation benefitted RS at Mrs S's expense. They are of the view that the financial separation was a mistake and that steps should be taken to undo the effects of the Financial Separation. RS and Mrs S both told me that they wish to remain together, and Mrs S has said she would like to re-combine finances. Mrs S let me know that she and RS have been to the bank to discuss recombining their bank accounts. S told me that a settlement agent had visited their house to discuss transferring the properties. As of 30 May 2025, Landgate shows no change in titleholders on their website. In taking these steps to correct the perceived injustice, Mrs S and the two older siblings, have not appreciated that RS no longer has the capacity to make such significant financial decisions. Whilst they have been able to organise/make arrangements on his behalf, there has been no recognition that he is no longer able to exercise judgment to decide whether or not steps should be taken to undo the effects of the Financial Separation, nor what particular steps should be taken to ensure his longterm financial security. Because he no longer has capacity, RS will need an independent decision-maker to consider whether it is in his best interests to combine assets (transfer a share of the Beach Property to Mrs S, and in turn, obtain a share in the property in which he currently resides), and how his estate can be utilised in his best interests. This could foreseeably include signing a rental agreement with a tenant/s or transferring the property. In the absence of an enduring power of attorney only an administration order would allow this to occur. Given that informal arrangements are insufficient to meet RS's needs, I am satisfied that he requires a substitute decision-maker to be appointed in relation to financial matters. I find that there is need for an administrator. Having determined that an administrator is necessary, I am satisfied that it must be the Public Trustee.