SO
[2025] WASAT 90
•2 SEPTEMBER 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: SO [2025] WASAT 90
MEMBER: MS F CHILD, MEMBER
HEARD: 12 FEBRUARY AND 28 APRIL 2025
DELIVERED : 28 APRIL 2025
PUBLISHED : 2 SEPTEMBER 2025
FILE NO/S: GAA 690 of 2025
GAA 5494 of 2024
GAA 740 of 2025
SO
Represented Person
Catchwords:
Guardianship and administration - Applications for the appointment of guardian and administrator - Applications to intervene in enduring power of guardianship and for declaration of validity or invalidity of Advance Health Directive - Represented person with diagnosis of dementia - Whether lacking capacity to make reasonable judgments about her person and her estate - Whether need for an administrator and a guardian - Son appointed under enduring powers of attorney and guardianship - Substantial arrears of nursing home fees - Attorney transferred the bulk of the estate of the represented person to his business now in receivership - Loss to the represented person's estate - Enduring power of guardianship and Advance Health Directive - Directions for end of life decision-making - Direction from son as enduring guardian that the represented person not be fed by spoon - Whether the Advance Health Directive valid under s 110W of the Guardianship and Administration Act 1990 (WA) - Advance Health Directive not signed by the maker or in her presence - Whether the direction by enduring guardian that the represented person not be spoon fed a 'treatment decision' - Whether dietary supplementation a 'life sustaining measure' - Need for a guardian - No less restrictive means to meet needs - Enduring power of attorney and guardianship revoked - Declaration Advance Health Directive invalid - Public Advocate appointed limited guardian - Public Trustee appointed plenary administrator
Legislation:
Criminal Code (WA), s 262
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 43(1)(b), s 43(1)(c), s 44, s 44(5), s 51, s 51(2)(d), s 64, s 64(1), s65, s 68, s 107(1)(a), s 108(1a)(a), s 110B, s 110H, s 110I(1), s 110J, s 110N, s110S, s110S(1)(a), s110S(1)(b), s 110W, s 110ZJ, s 110ZJ(2), Pt 9B
Guardianship and Administration Regulations 2005 (WA), Sch 2
Oaths, Affidavits and Statutory Declarations Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 34, s 35, s 66(1), s 67
Result:
Enduring Power of Attorney revoked
Enduring Power of Guardianship revoked
Declaration Advance Health Directive invalid
Public Trustee appointed plenary administrator
Public Advocate appointed limited guardian
Category: B
Representation:
Counsel:
| Represented Person | : | In Person |
Solicitors:
| Represented Person | : | N/A |
Case(s) referred to in decision(s):
Brightwater Care Group (Inc) v Rossiter [2009] WASC 229
JH [2022] WASAT 108
Legal Profession Complaints Committee and Wells [2014] WASAT 112
Legal Services and Complaints Committee and Hardie [2025] WASAT 50
MS [2025] WASAT 49
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Applications were brought on 21 October 2024 under the Guardianship and Administration Act 1990 (WA) (the GA Act) by the facility manager (applicant) of a residential aged care facility (RACF) seeking guardianship and administration orders to be made for a resident, SO (the represented person).
The represented person is a woman of 85 years who was widowed on 21 November 2016[1] and has two sons: E and B. According to E, the represented person has been estranged from B since the late 1990s and his whereabouts are unknown, consequently B was not given notice of the proceedings before the Tribunal.
[1] Report of the Public Trustee dated 7 February 2025. Although E gave a different date of his father's death I consider that the date provided by the Public Trustee is more likely to be accurate.
The represented person has a diagnosis of Alzheimer's disease with moderate to severe cognitive impairment. She has been a resident of the RACF since 19 July 2022.
In case management orders made on 22 October 2024 the application was also treated as an application for intervention in an enduring power of guardianship (EPG) pursuant to s 110N of the GA Act. Later an application pursuant to s 110W of the GA Act for the declaration of validity or invalidity of an Advance Health Directive (AHD) said to have been made by the represented person was also filed.
The application seeking guardianship and administration orders for the represented person raised three issues:
(1)E, who is the represented person's son and her attorney pursuant to an EPA made by the represented person in 2022 (the 2022 EPA) had not paid the represented person's aged care fees and arrears of $47,388.97 were owing.
(2)E as the represented person's enduring guardian appointed in an EPG made in 2022 (the 2022 EPG) relying on an advance health directive dated 19 September 2022 (2022 AHD) had directed the RACF staff that she not be assisted to eat or be spoon fed.
(3)The applicant contends that the 2022 EPA and 2022 EPG may not be valid as she asserts that they were signed three months before the represented person was diagnosed with severe dementia.
The application states that E did not respond to calls or emails from the care staff or the accounts department of the RACF. A previous application made in April 2024 by the same RACF, also referred to unpaid fees and issues regarding feeding of the represented person but was withdrawn in June 2024.[2]
[2] According to the Public Advocate's investigator's report submitted in the current proceeding E gave assurances at that time that the staff of the RACF could feed the represented person and that he would pay any care fees that he could confirm were due.
Following the application being received on 22 October 2024, the case management member made an emergency order pursuant to s 65 of the GA Act[3] to secure the estate of the then proposed represented person. The order appointed the Public Trustee and authorised the exercise of the functions of a plenary administrator in respect of the estate. In the same orders the applications were referred to the Office of the Public Advocate for investigation.
[3] An order may be made pursuant to s 65 of the GA Act if the Tribunal is satisfied that the proposed represented person may be a person who is according to s 64 of the GA Act unable to make reasonable judgments about her estate and there is judged to be an immediate need for protection of the estate until an application for the appointment of an administrator of the estate is finally determined by the Tribunal; …
E, was ordered to file by 12 November 2024 a statement of assets and liabilities and current regular income and expenditure of the represented person. E was directed not to act under the 2022 EPA until further order of the Tribunal.
The application was initially listed for hearing on 19 December 2024. That date was vacated at the request of E as he said his work commitments meant he was unable to attend the hearing. The request for an adjournment was supported by the Public Advocate's office as there was a s 65 order in place, the RACF had confirmed that the represented person was receiving needed care and the adjournment would allow the investigation to be completed by the Public Advocate's office. On that basis the date was vacated and the matter relisted on 12 February 2025.
In the letter requesting a different hearing date E stated:
…
I would like to take this opportunity to express my concerns for the bully tactics that [RACF] are displaying in using SAT as intimidation method to receive [sic] their objectives …
This is not the first time [that RACF] have attempted to use this tactic to intimidate me.
Despite verbal assurances to staff of the Tribunal that he would do so, E failed to comply with the orders of 22 October 2024 that he file a statement of the financial position of the represented person by 12 November 2024.
E advised he was unable to provide documents and information regarding his mother's assets and liabilities referred to in the case management orders as 'the [state] trustee had removed his enduring powers'.
On 10 December 2024 E filed a copy of the 2022 AHD in the name of the represented person and the following statement entitled '[u]rgent enquiry into the management of my mother's affairs':
I am writing to express my extreme concern and disappointment regarding the immediate relief of my powers as Enduring Power of Attorney for my mother's affairs. This decision was made without my knowledge or consent and I was not notified of the date or proceedings prior to the event.
Furthermore, I am deeply disturbed that my mother's Advance [Health] Directive has not been enforced by [the RACF]. The lack of dignity and care shown to my mother is appalling, and I have photographic and video evidence to support these claims.
I am shocked that $33,000 was withdrawn from my mother's account without my knowledge and consent by [the RACF] as a said costing without a substantial answer to why.
As Enduring Power of Attorney, I was not informed of this transaction.
In light of these events, I request a full explanation for the actions taken by the State Trustee and [the RACF]. I also intend to seek legal counsel to further investigate this matter[.]
In a submission filed on 14 January 2025 the Public Trustee advised that E had not responded to requests for information about the represented person's estate. The trust manager advised that an asset enquiry form was emailed to E on 23 October 2024, again on 11 November 2024 and posted on 2 December 2024. Attempts had been made to contact E by telephone on 13 January 2025 but there had been no response from E to the Public Trustee.
It is understood that a completed asset enquiry form is necessary to enable the Public Trustee to ascertain the extent of the estate of the then proposed represented person and to take steps to comply with the intent of the s 65 order to protect and secure her estate.
The Public Trustee sought orders pursuant to s 35 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) for the production of documents from E.[4] Given E's lack of compliance with the Tribunal's orders and lack of cooperation with the Public Trustee who were acting under the authority of the s 65 order, a summons issued from the Tribunal pursuant to s 66 (1) of the SAT Act, both for the provision of documents by E with the return date at a directions hearing on 6 February 2025 and for his attendance in person at the hearing on 12 February 2025. The document summons specified that copies of statements on any or all bank accounts in the name of the represented person from 15 February 2022 to 31 January 2025 and any documents related to any transfer of property of the represented person to E or any other person be produced.
[4] I considered that an order pursuant to s 35 was not appropriate in the circumstances since E was a party to the proceeding (a party is defined in the GA Act s 3 as a person to whom notice is required to be given or to whom notice is given). E had been given notice of the proceeding. By orders pursuant to s 34 (and s 67) of the SAT Act the Tribunal routinely orders the production of documents from parties and witnesses. In this case E had not complied with the case management orders made on 22 October 2024.
At the directions hearing on 6 February 2025 E told the Member that he had no access to his mother's bank statements (since the s 65 order) and was therefore unable to comply with the document summons.
The information E gave at the directions hearing was incorrect. It became apparent at the first hearing on 12 February 2025 that E did in fact have control of and access to electronic banking records of the represented person's bank accounts and other hard copy records of the represented person's relevant to her estate including the settlement statement on the sale of the represented person's property in [M] and had always been able to comply with the summons.
Financial records of the represented person were filed by E later that day. Further orders were made at the hearing on 12 February 2025 for the provision of further documents identified by the Public Trustee's trust manager in the hearing including a certificate of insurance on the represented person's property. At the hearing E agreed to provide these and these further documents were also filed by him on 12 February 2025 together with a statement from E.
In his statement E referred to the 'short notice' that is, of the requirement that he comply with the summons, which I had confirmed to him in the hearing on 12 February 2025. In this statement E failed to acknowledge the orders made in October 2024, the summons, the directions hearing, the efforts to engage him by the investigator, and his lack of cooperation with the Public Trustee from October 2024. E said that the application made to the Tribunal 'was all about money and money only'. He said that he would not oppose any orders made by the Tribunal and said his 'own health issues have been a priority at the minute for him'.[5]
[5] Statement filed by E on 12 February 2025.
Following evidence given at the first hearing by E about the execution of the 2022 AHD, I indicated to E at the conclusion of that hearing that I would seek the evidence of T, who was one of the witnesses to that document. E said that T had been engaged by him to advise and assist him regarding the care of the represented person for several years.[6]
[6] ts 40, 12 February 2025.
E did not attend the resumed hearing on 28 April 2025, (despite not being released from the summons). Having heard from the applicant, as well as from T and the investigator, and having considered the further reports of the Public Trustee, I made orders appointing the Public Advocate as the represented person's guardian and the Public Trustee as the administrator of her estate. I revoked the 2022 EPA.[7] I revoked the 2022 EPG and declared the 2022 AHD to be invalid.
[7] Pursuant to s 108(1a)(a) of the GA Act.
The following are the reasons for the decisions made.
Legislation and principles to be observed
In respect of the original applications for the appointment of a guardian of the represented person and an administrator of her estate. Section 64 of the GA Act for the appointment of an administrator requires that I must be satisfied that the represented person is unable by reason of a mental disability to make reasonable judgments about all or any part of her estate and that she is in need of an administrator of her estate.[8] To appoint a guardian for the represented person pursuant to s 43(1) of the GA Act I must be satisfied that the represented person has attained the aged of 18 years, and:[9]
(a)incapable of looking after her own health and safety;
(b)unable to make reasonable judgments about her person; or
(c)is in need of oversight care or control in the interests of her own health and safety and is in need of a guardian.
[8] GA Act, s 64(1).
[9] GA Act, s 43(1)(a) (b) and s 43(1)(c).
If satisfied that a represented person is a person for whom orders can and should be made, I must then consider who should be appointed[10] and other matters such as the scope of the authority and the duration of any orders made.
[10] GA Act, s 68 and s 44.
In respect of the application made for intervention in the 2022 EPG, the GA Act has the following provisions:
Pursuant to s 110J of the GA Act the Tribunal's jurisdiction to declare the validity or invalidity of an EPG and or to intervene in an EPG to revoke or vary it requires a finding that the applicant has a proper interest in the matter.
The GA Act sets out the formal requirements for execution of an EPG,[11] which includes that the appointor (the person making the power) be of full legal capacity. The GA Act provides for the operation of EPG's including the making of treatment decisions by an enduring guardian and the priority to be given to any treatment decision made in an AHD by a patient.[12]
[11] GA Act, s 110B.
[12] Section 110I(1) which provides that the priority given to the power is determined in accordance with s 110ZJ. Section 110ZJ(2) provides' [i]f the patient has made an [AHD] containing a treatment decision in respect of the treatment, whether or not the treatment is to be provided to the patient must be decided in accordance with the treatment decision'.
In respect of an AHD, the jurisdiction of the Tribunal and the requirements to make a valid AHD were explained in JH[2022] WASAT 108: [7] - [12]:
7Under s 110W of the Act, the Tribunal has jurisdiction to make a declaration that an AHD, or a treatment decision in an AHD, is valid or invalid.
8The term 'advance health directive' is defined in the Act solely by reference to an AHD made under Pt 9B of the Act or an instrument made in another jurisdiction but which is recognised as an advance health directive in this State.
9However, in practical terms, an advance health directive, of the kind which is able to be made under Part 9B of the Act, is a document:
•by which the maker of the AHD;
•sets out, in writing, and in the presence of witnesses;
•for the purpose of informing interested persons, particularly any health professional who may be required, at any stage in the future, to consider whether to commence or continue medical treatment in relation to the maker of the AHD, and who becomes aware of the existence and terms of the AHD;
•the treatment decisions - which include decisions to commence or continue 'treatment' as defined in the Act, and which includes medical or surgical treatment, including a life sustaining measure or palliative care, dental care, and other health care;
•to which the maker of the AHD wishes to be taken, by the operation of the Act, to have given or refused consent, in circumstances where the need for consent to that treatment arises; and
•which will operate, in accordance with the Act, when the maker of the AHD is unable to make reasonable judgments in respect of that treatment.
10Only a person who has reached 18 years of age and who has full legal capacity may make an AHD containing treatment decisions in respect of his or her future treatment.
11In order to determine whether to make a declaration as to whether an AHD is valid or invalid, the Tribunal must necessarily determine whether the requirements under the Act for a valid AHD have been met. It must also consider whether the circumstances which, under the Act, render an AHD invalid, existed in relation to the AHD in question.
12The requirements for a valid AHD are set out in s 110Q of the Act. Other than in a case where the maker of the AHD is unable to sign it, the requirements for a valid AHD, in summary, are:
•the AHD must be in the form, or substantially in the form, prescribed by the Guardianship and Administration Regulations 2005 (WA) (Regulations);
•the AHD must be signed by its maker; the signature of the person who signs the AHD must be witnessed by two persons. Each of them must be a person authorised to take declarations. Alternatively, one of them must be authorised by law to take declarations, and the other must be 18 years of age, and not the maker of the AHD; and
•the witnesses must sign the AHD in the presence of its maker and in the presence of each other.
Notably in the circumstances where the maker is physically unable to sign, an AHD may be signed in the presence of and at the direction of its maker (s 110Q(1)(c) GA Act).
Section 110S of the GA Act provides that a treatment decision in an AHD operates in respect of the treatment to which it applies at any time the maker of the AHD is unable to make reasonable judgments in respect of that treatment as if the treatment decision had been made by the maker at that time and the maker were of full legal capacity.[13]
[13] GA Act, s 110S(1)(a) and (b).
As with s 110J an applicant seeking a declaration pursuant to s 110W in respect of AHD must be found to have a proper interest in the matter.
Principles to be observed
In all proceedings brought under the GA Act the Tribunal must observe the principles as set out in s 4 of the GA Act.
The principles provide that the primary concern of the Tribunal is the best interests of the represented person or person for whom an application is made.
The principles also provide that the represented person is presumed to be capable of looking after her own health and safety; making reasonable judgments in respect of matters relating to her person; managing her own affairs; and making reasonable judgments in respect of matters relating to her estate, until the contrary is proved to the satisfaction of the Tribunal.[14]
[14] GA Act, s 4(3).
The principles also say that orders should not be made unless they are needed; if the needs of the person can be met by less restrictive means then guardianship and administration orders should not be made for her.[15] If an order is made it should be in the least restrictive terms possible of the represented person's freedom of decision and action.[16] A plenary guardian should not be appointed if a limited order will meet the needs of the represented person.[17] Finally, the principles require that in considering any matter relating to a represented person, the Tribunal should seek to ascertain her wishes as expressed at the time or gathered from her previous actions.[18]
What the Tribunal must decide
[15] GA Act, s 4(4).
[16] GA Act, s 4(6).
[17] GA Act, s 4(5).
[18] GA Act, s 4(7).
The questions to be decided in the applications for the appointment of a guardian and an administrator are:
(a)Is the presumption of capacity set aside and is the represented person a person for whom a guardian and administrator may be appointed?
(b)If so, is she in need of those orders?
(c)Are the 2022 EPA and 2022 EPG less restrictive means to meet the financial and personal decision-making needs of the represented person?
(d)If the represented person is in need of guardianship and administration orders, who should be appointed in those roles?
In respect of the applications pursuant to s 110N of the GA Act for intervention in the 2022 EPG and s 110W for a declaration as to the validity or invalidity of the 2022 AHD the questions to be decided are:
(a)Does the applicant have a proper interest in bringing the applications?
(b)Should orders be made to declare the 2022 EPG valid or invalid and/or to revoke it?
(c)Should orders be made to declare the 2022 AHD valid or invalid?
Evidence and material before the Tribunal
At the first hearing on 12 February 2025 I heard from the applicant, from E, the Public Advocate's investigator (investigator) and the Public Trustee's trust manager. At the resumed hearing on 28 April 2025, I heard again from the applicant and the investigator and also from T, the dementia care consultant engaged by E. The represented person did not attend either hearing.
In addition to the oral evidence a number of documents have been filed including the following:
(a)Medical Report of Dr RB dated 31 October 2024 which states that the represented person has a diagnosis of Alzheimer's disease and lacks capacity in all spheres of decision-making. In response to the question regarding the represented person's attendance at the hearing, Dr RB states '[S] is bed bound and does not have capacity to attend'.
(b)A report of DB, registered nurse which notes that the represented person appears to have a close relationship with [E] however reports he does not visit often 'finding it too upsetting seeing the physical and mental decline of his mother'. It is reported that E and the represented person 'talk often on the phone'. Reports that the represented person has a severe cognitive impairment … [and] lacks capacity to manage her finances and has no insight into her treatment support and accommodation needs.
(c)My Aged Care support plan dated 3 May 2022 records that the represented person experiences cognitive decline. Notes that E has her EPA and EPG. The represented person is reported to be alert and orientated but to experience short-term memory loss, poor orientation to time, needing prompting with medications, to eat and tend to personal care tasks. A recent hospital Montreal Cognitive Assessment (MoCA) is reported as 17/30 which indicated moderate cognitive impairment
(d)A copy of a MoCA dated 2 May 2022 from a Senior Occupational Therapist from Rehabilitation in the Home reports a score of 8/30 with the notes of the assessor stating that the represented person 'presents with global cognitive difficulties across all domains '8/30 demonstrating significant cog[nitive] dysfunction. [patient] is not safe to remain at home alone for long periods of time'.
(e)An EPG dated 15 February 2022 (2022 EPG) which appoints E as sole enduring guardian authorising all functions to be exercised by the enduring guardian without restriction. The 2022 EPG is prepared and witnessed by a solicitor and a law clerk.
(f)An EPA dated 15 February 2022 (2022 EPA) appoints E as sole attorney, with the power to continue in force notwithstanding the donor's subsequent legal incapacity. The 2022 EPA was prepared and witnessed by a solicitor and a law clerk.
(g)An AHD form completed in the name of the represented person dated 19 September 2022. The signature in the signature panel for the maker of the AHD is E's signature as it matches his signature on the acceptance of the EPA and EPG
(h)Letters from E dated 27 November 2024 and 12 February 2025 to which I have referred.
(i)Included in the number of documents submitted by E on 12 February 2025 are the following:
(i)The will of the represented person dated 15 June 2022 which appoints E as executor and make specific bequests to other relations of the represented person but does not refer to her other son B.
(ii)A photocopy of a letter dated 25 January 2019 signed by the represented person which states '[t]o whom it may concern. Please accept this letter as confirmation that I [the represented person] have knowingly and willingly provided Seed Capital financial support and assistance to [E] in his position as 'Director for the purposes of growth and stabilisation and development of [B] Investments Pty Ltd. The letter states 'I shall continue to provide Seed Capital until such time as it is no longer required by [B] Investments and do not expect repayment of any of the capital provided by me at any time. Should repayment occur, it may be at the discretion of the Director of [B] Investments. ('seed capital' agreement)
(iii)A settlement statement for the sale of a unit in the name of the represented person in [M] dated 5 September 2022 with a sale price of $665,000 with the balance received at settlement of $647,074.
(iv)A letter dated 24 October 2024 addressed to E from a licenced liquidator/business consultant consenting to appointment as liquidator of [B] Investments. The correspondence confirms 'recent discussions regarding the proposed voluntary winding up of the Company including a requirement that E provide $20,000 plus GST to cover the expected costs of liquidation.
(v)An insurance invoice for home contents only insurance in the name of E for home contents at the represented person's semi-rural property dated 13 November 2024. The occupancy type described in the Schedule is as Owner Occupier.
(vi)A Bank account in the name of the represented person showing a closing balance dated 16 December 2022 of $622,168.21. There are direct debits and also transfers including one notated in the name of E's company 'seed capital'.
(j)Public Advocate's investigator's report dated 6 February 2025 including an interview with the represented person at the RACF in which she presented as disoriented to person and confused at times believing her husband to be alive. She reported that E looked after her financial affairs and said he was doing a 'top job'.
(k)Submissions and reports of the Public Trustee dated 14 January 2025, 7 February 2025 and 23 April 2025. In the report dated 7 February 2025 the Public Trustee reports large transfers from the bank account of the represented person. Her liabilities are reported as unpaid care fees of $64,179.36, fines enforcement debt of $555.80, an outstanding St John Ambulance account of $799.83 and an unpaid refundable accommodation deposit (RAD) of $415,000. In the later report the Public Trustee referred the sale of two further properties and further transfers to E's company.
The Wishes of the represented person
As the represented person did not attend either hearing it was not possible to ascertain her wishes directly. However, she was interviewed at length by the investigator at the RACF and conveyed to him her confidence in E in the management of her affairs. The execution of the 2022 EPA and the 2022 EPG also reflect her previous choice in the appointment of E as her attorney and enduring guardian.
Arrears of RACF fees
The applicant indicated that the represented person's outstanding care fees to January 2025 were $64,179. She said that only $80,000 of a $495,000 RAD had been paid and interest was being charged to the represented person on the balance and a daily accommodation fee in addition.
The applicant said that when E had first attended the facility prior to the represented person's admission he had said he would pay a lump sum of $247,500 of the total[19] RAD charged but as only $80,000 had been paid, the interest charged and the daily fee had increased.
[19] ts 31, 12 February 2025
The applicant said that there had been continued correspondence with E from the RACF and that he had agreed to pay the debt but did not do so and it kept accumulating.[20]
[20] ts 25, 12 February 2025.
E agreed that he had spoken to the accounts staff at the RACF but said he did not understand the charges (as the process was new to him) and he needed someone to explain it to him.[21] He said he had relied on a consultant, R, who had assisted him to source the RACF placement to advise about the payment of the fees. The applicant said that the contract for the RACF placement had been signed by E.[22]
[21] ts 27, 12 February 2025.
[22] ts 31, 12 February 2025.
The investigator's report sets out details of the investigation undertaken with the RACF in respect of the arrears. The RAD paid by E of $80,000 had been paid in three instalments the last being made on November 2023 with the election that the balance of the RAD be met by non-refundable Daily Accommodation Payments. The investigator questioned the non-payment of the RAD by E. The investigator suggested that if there were funds to pay the whole RAD as would have been the case after the represented person's [M] property had been sold in September 2022 the whole RAD could have been paid.
The investigator said that payment of the nursing home fees was set up as a direct debit in October 2022. However, arrears accumulated initially due to a large amount $13,941.60 of the means tested fee being deemed by Services Australia as being owed. It is understood that this was the issue raised in E's letter of 10 December 2024 regarding a debit to the account without his authorisation. The investigator reported that T, the dementia care specialist, had advised him that she assisted E in dealing with this and some fees said to be owing were reversed.
The investigator reports that from October 2022 fees accumulated to the represented person's account as direct debits set up to pay the fees did not meet the fees owing. As at 1 July 2023 $37,837.71 was due. Over the next six months arrears accumulated however several large lump sum payments were made and by 20 December 2023 the balance owing had been cleared. Since then, the investigator reports that the last date that the account showed a zero-balance owing was when $5,348.96 was paid on 22 January 2024 via direct debit. The direct debit on 22 February 2024 did not pay the full account due and the payment was subsequently dishonoured as were regular monthly payments following this. Only a payment of $1,000 on 10 May 2024 was not rejected or dishonoured. The investigator reports that save for the payment on 10 May 2024, since 22 January 2024 the unpaid fees have again accumulated. This prompted the original application being made in April 2024, following which E gave assurances that the fees would be paid. However, at the time of the current application made on 21 October 2024 $47,348.97 in fees were owing.
The investigator noted that following the s 65 order being made only $3,028.45 had been collected from the represented person's bank account by the Public Trustee although there were several accounts holding minimal funds.
In response to enquiries made by the investigator about the semi-rural property in the names of the represented person and her late spouse which was confirmed as E's business address.[23] E had stated to the investigator that there is 'no lease [for the land] as there is no house'. E had said that he 'performs the maintenance on the property weekly, pays council rates electricity and other incidentals related to the property'.
[23] The investigator notes that in his submission to the Tribunal on 15 May 2024 that E had listed the semirural property address as his residential/contact address.
A view of the property by a colleague of the investigator reported that the property as 6 February 2025 was a well-maintained large block with at least one horse. It notes that E's hobby is jet boat racing and a jet boat and trailer were parked at the block, a large liveable shed with a satellite dish on the roof and a shipping storage container were on the block. The investigator said that it appeared that E was caring for the property but there was no evidence of him paying any outgoings. The insurance policy statement submitted by E following the first hearing describes the liveable shed as a 'stand alone house'.
When questioned in the first hearing about the represented person's financial affairs E said that the represented person's spouse (his father) had died in 2018 and that the represented person had inherited the estate. This included cash of about $600,000 or $700,000[24] and two jointly owned properties one in [M] and the unencumbered semi-rural property which E described as 'acreage'.[25] E denied awareness of any other assets held by his father.[26]
[24] ts 29, 12 February 2025.
[25] ts 30, 12 February 2025.
[26] ts 22, 12 February 2025.
E described his parents as self-funded retirees. He confirmed that the represented person did not receive a pension and he had not applied for a pension or tested her eligibility for one. E said the property jointly owned by the represented person and her late spouse remained in their joint names. E was unclear why the property had not been transferred to the represented person on survivorship. He said he had not been the executor of the deceased estate of his late father.
E said that the 2022 EPA had been prepared by solicitors and had been registered at Landgate. E said that he was using the 2022 EPA to '[b]asically look after mum and protect her from my brother, to be honest'.'[27] E said his brother B had approached him at his business three days after their father had died about 'wanting the property.'[28]
[27] ts 43, 12 February 2025.
[28] ts 30, 12 February 2025.
E said he had used the 2022 EPA for the represented person's entry into the RACF but had not produced it to her bank as he had access to the represented person's accounts since 2020 or 2021 and had operated the accounts online.[29]
[29] ts 44 and 13, 12 February 2025.
In the report dated 7 February 2025 the Public Trustee reports that between June 2023 and December 2023 there were withdrawals from the represented person's bank account totalling $141,000 transferred from her account to [B] Investments a company of which E was the founder. The trust manager sought clarification of the nature of the transfers: In response E said:[30]
[30] ts 16, 12 February 2025.
E:… That was basically a business that we had mum - well, legally mum and dad weren't on there …
That was just I have a letter stating from dad's estate that he was going to help us out with that. That has been - that was just basically to keep the business going.
MEMBER:When did your father pass away?
E:That was 2018 , I believe.
MEMBER:So these transfers between June 2023 and December 2023 were made out of your mother's account.
E:Yes, it was. Yes
MEMBER:And what were they? Loans or
E:Yes. That was basically seed capital for the company.
E said a letter had been written by the represented person providing an unspecified amount of funds[31] to E for his business described by E as 'seed capital'. E said there was no expectation that the funds would be reimbursed or that his parents took any equity in the business.[32] A copy of this letter was filed by E on 12 February 2025 later in the day after the hearing.
[31] ts 36, 12 February 2025.
[32] ts 36, 12 February 2025.
E agreed to a question put by the trust manager that the property of the represented person in [M] was sold in September 2022 and the proceeds of sale of approximately $665,000 was deposited into the represented person's bank account which E acknowledged he operated.[33] The trust manager said that the represented person now had 'practically zero by way of cash assets'[34] and sought an explanation from E of what had happened to the represented person's funds. E said that the funds had been transferred into his business.[35]
[33] ts 36, 12 February 2025.
[34] ts 37, 12 February 2025.
[35] ts 37, 12 February 2025.
When asked by the trust manager what plan E had to pay the represented person's aged care fees, E said the advisor (R) who had assisted him in locating the residential placement for the represented person had advised him to pay monthly fees. E said he had no recollection of having a conversation to pay the part RAD as the applicant had said.[36]
[36] ts 37, 12 February 2025.
E said that once his business was 'up and running' he was going to pay the represented person's nursing home fees monthly, but he agreed that this had not happened and his business had gone into liquidation in November 2024.[37]
[37] ts 38, 12 February 2025.
Prior to the second hearing in a report submitted dated 23 April 2025 the Public Trustee confirmed that E's company is in liquidation.
Further investigation by the Public Trustee since the first hearing revealed that a further two semi-rural properties owned by the represented person had been sold on 20 January 2021 for $357,328.82 and $339,146.88. The sale proceeds had been deposited into the represented person's bank accounts. Although at the first hearing E denied knowledge of any other assets held by his parents,[38] I consider it unlikely that E was not aware of these properties.
[38] ts 22, 12 February 2025.
The Public Trustee reports confirm that from 2021 a total of $851,299 was transferred to E's company most of which is narrated as 'seed capital' or similar. A further $13,326.01 was provided to E personally and appears to have related to costs associated with his former business and expenses for personal assets.
The Public Trustee reports that a preliminary overview of accounts from 2019 to 2021 alone show transfers relating to E's company totalling at least $417,000. Along with the already cited $851,299 transferred from 2021 the amount removed from the represented person's bank accounts for transactions relating to E's company alone is reported as $1,268,299. According to the report, this amount does not include the period prior to 2019 or transactions relating to E personally or for the previous business.
The Public Trustee advises that the sale of the remaining semirural property of the represented person will be necessary to settle the overdue aged care fees currently standing at $80,401.86 and to pay the outstanding $415,000 RAD.
The EPA
The represented person made the 2022 EPA on 15 February 2022. It was styled to be in effect from execution. The represented person also made the 2022 EPG and a will[39] on that date. All the documents are prepared and witnessed by a solicitor and another person.
[39] The will appoints E as executor and trustee and makes him the residuary beneficiary. It makes no mention of the represented person's other son B, even to exclude him from taking under the will. There is a specific gift to the sister of the represented person or her children if she predeceases the represented person.
In the application and at the first hearing on 12 February 2025 the applicant questioned the validity of the 2022 EPA and the 2022 EPG. She said the represented person's capacity to make the documents in February 2022 was in doubt as in a cognitive assessment of the represented person performed in May 2022, she had scored 8/30 which according to the applicant indicated a severe cognitive impairment.[40]
[40] ts 45, 12 February 2025.
The MOCA score was 8/30 and the notes accompanying the test state that 'the patient presents with global cognitive difficulties across all domains'.
The investigator reports the applicant's position in regard to the 2022 EPA and EPG is challenged by T who argues that the assessment may not have reflected the represented person's functioning at that time as she may have been acutely unwell when the cognitive assessment was undertaken.
There is, as the investigator submits, a presumption of capacity. As noted, the 2022 EPA and 2022 EPG were prepared by solicitors who were under a professional obligation to consider whether their client had the capacity to instruct them in respect of these matters.[41]
[41] Legal Profession Complaints Committee and Wells [2014] WASAT 112 recently cited in Legal Services and Complaints Committee and Hardie [2025] WASAT 50.
I do not need to reach a concluded view about the capacity of the represented person to execute the documents she did in September 2022, as whatever the position, regarding her capacity to make them, I am satisfied that the 2022 EPA and the 2022 EPG must be revoked for the following reasons.
An attorney acting under an EPA has long been recognised as owing fiduciary duties to the donor of the power.[42] The GA Act also provides that a person accepting appointment under an EPA accepts certain statutory obligations which are set out in s 107 of the GA Act. Section 107 provides:
[42] See for example Dal Pont, Powers of Attorney (3rd edition).
107.Obligations of donee
(1)The donee of an enduring power of attorney —
(a)shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure;
(b)shall keep and preserve accurate records and accounts of all dealings and transactions made under the power;
(c)subject to section 109(2), may not renounce a power during any period of legal incapacity of the donor; and
(d)shall, if the donee becomes bankrupt, report that bankruptcy to the State Administrative Tribunal.
Penalty applicable to paragraph (b): $2 000.
The reports of the Public Trustee make clear that there has been a significant diminution of the represented person's estate since her husband's death.
When her husband passed away in 2018, as E described it, the represented person inherited significant cash assets and properties. In contrast to her current position where the represented person now has a debt for outstanding aged care fees, 'next to zero cash assets' and her remaining property must now be sold to clear her accrued debts.
As noted, some of the transfers to E predate the 2022 EPA and the 2019 seed capital agreement. E said he operated the represented person's bank account from 2020 or 2021.
The debt to the RACF occurred when E was operating under the 2022 EPA and arose because E did not pay the represented person's aged care fees.
E's decision, he says on advice, to pay monthly fees rather than the RAD led to a higher level of interest being charged to the represented person and was also against her interests.
I accept the submission of the investigator that the payment of the RAD should have been possible from the proceeds of sale when the represented person's [M] property was sold in September 2022 and yet this did not occur and the proceeds of sale were transferred from the represented person's account by E to his business now in receivership.
Other debts of the represented person are reported by the Public Trustee including a St John Ambulance account in the hands of debt collectors and an unpaid fine.[43] These debts while not significant amounts (when compared with the unpaid RACF fees and the overall loss to the estate identified by the Public Trustee) likely include additional legal and collection costs because of non-payment of the original accounts and further illustrate the lack of attention and diligence of E in the conduct of his mother's affairs under the 2022 EPA.
[43] Given that the represented person circumstances it is more likely than not that the infringement relates to non-compliance with some aspect of the represented person's obligations as a property owner.
E as the represented person's attorney has manifestly not met the represented person's needs for management of her financial affairs. E said that the 2022 EPA was intended to 'protect' the represented person from his brother B. Given this statement, it can be inferred that E had some appreciation of the protective nature of the power and his obligations under it. From his own evidence, he failed to undertake even the most basic tasks as her attorney.
The 'seed capital agreement' dated 25 January 2019 appears to be a home-made document addressed 'To whom it may concern'. It is signed by the represented person and witnessed. The 2019 'seed capital agreement' provides no protection whatsoever for the represented person's position. It entirely favours E.
As E did not attend the second hearing, he could not be asked any further information the agreement: who drew up the agreement, or whether the represented person received independent legal advice and whether it was disclosed to the solicitors who prepared the 2022 EPA appointing E as the represented person's attorney. The conflict between the 'seed capital agreement' and E's acceptance of his appointment as the represented person's attorney is plain.
In my view, the 'seed capital agreement' does not relieve E of his fiduciary duty or the statutory obligations which he accepted on his appointment as an attorney to act with reasonable diligence to protect the interests of the donor of the power.
It is readily apparent that E as the represented person's attorney has failed to act with reasonable diligence to protect her interests. Her estate has been significantly diminished by the transfers he has made to himself since E had the carriage of the management of her estate following his father's death both when operating the bank accounts of the represented person and as her attorney acting under the 2022 EPA.
From E's own evidence it can be concluded that he preferred his own interests to those of the represented person when he transferred her funds to his failing business in preference to meeting the represented person's own financial needs. His letter to the Tribunal on the afternoon following the first hearing does not disclose any insight into the nature of his conduct over the period he had carriage of his mother's affairs or its consequences for the represented person.
Section 107(1)(a) of the GA Act provides that an attorney is liable to the donor for any loss to her estate occasioned by the failure of the attorney to act with reasonable diligence to protect the interests of the donor.
I am satisfied that the 2022 EPA has not met the needs of the represented person in any respect and should be revoked.
Administration order
I am satisfied that the presumption of capacity is displaced based on the medical and other evidence of the represented person's dementia and consequent significant cognitive impairment. I am satisfied and I find that the represented person is unable by reason of her dementia to make reasonable judgments about her estate and is in need of an administrator of her estate. For the reasons given, the 2022 EPA is not a less restrictive means by which her financial decision-making needs can be met.
I am satisfied that the represented person is in need of an administrator to manage her estate in her best interests to pay her debts and to meet her costs of care including the payment of the RAD which as indicated by the Public Trustee will require the sale of her remaining property.
Although not consistent with her wishes as expressed in her past actions of appointing E to manage her finances or in her comments to the investigator when she expressed confidence in his management of her affairs, I am satisfied that it is in the best interests of the represented person that the Public Trustee be appointed as the plenary administrator of her estate and that the 2022 EPA be revoked.
The feeding issue - 2022 AHD and 2022 EPG
In the first hearing E said the represented person made an AHD in 2019 'not to prolong life and not to resuscitate'.[44] The document submitted to the RACF and filed with the Tribunal is dated 19 September 2022 and is on the standard printed form entitled Advance Health Directive.
[44] ts 9, 12 February 2025.
The document is a copy of the printed form prescribed in the Guardianship and Administration Regulations 2005 (WA).[45] It states it is made under Pt 9B of the GA Act by E and then provides the full name of the represented person, her date of birth and her address being the RACF.
[45] Schedule 2, Advance Health Directive.
Part 3 of the form which provides for the maker of the AHD to state their values and preferences is left blank. Part 4 in respect of life‑sustaining treatment decisions option three is checked: 'I refuse consent to all treatment aimed at sustaining or prolonging my life'.
In Part 4.1 despite having completed option 3 (to refuse all lifesustaining measures) option C to refuse consent to treatment in all circumstances for the following treatments CPR, assisted ventilation, artificial hydration, artificial nutrition (which is described as a feeding tube through the nose or stomach) blood products such as a blood transfusion, antibiotics and where the option is given to the maker to identify other life-sustaining treatment which would be refused, these are also checked to refuse consent in all circumstances although the treatment refused is not specified. There is also a refusal to participate in any form of medical research.
Part 5 records that an EPG has been made on 15 February 2022 and notes that the [RACF] has a copy and the son has a copy. E is recorded as the enduring guardian. Part 5.3 of the form indicates that the represented person did not obtain medical or legal advice about the making of the 2022 AHD.[46]
[46] Section 110Q(1)(b) provides that there is encouragement but not a requirement that the maker seek legal or medical advice in making an AHD.
Part 6 of the 2022 AHD provides for the signature of the maker and witnessing. The printed information states:
You must sign this Advance Health Directive in the presence of two witnesses. If you are physically incapable of signing this Advance Health Directive, you can ask another person to sign for you.
You must be present when the person signs for you.
Two witnesses must be present when you sign this advance health directive or when another person signs for you.
Each of the witnesses must be 18 years of age or older and cannot be you or the person signing for you (if applicable).
At least one of the witnesses must be authorised by law to take statutory declarations.
The witnesses must also sign this Advance Health Directive.
Both witnesses must be present when each of them signs. You and the person signing for you (if applicable) must also be present when the witnesses sign.
In the 2022 AHD the option of the signature to be of a person directed to sign on the maker's behalf is chosen. In the signature panel the name of the person who the maker of the 2022 AHD has directed to sign, is the signature of E. The wording under his signature provides the following:
In the presence of, and at the direction of (insert name of maker of Advance Health Directive).
In the panel provided for the name of the maker of the 2022 AHD is the full name of the represented person with the date 19 September 2022.
The authorised witness to the 2022 AHD is [C] whose occupation is given as teacher and her signature is dated 19 September 2022. The other witness is T (the dementia care specialist).
In his detailed[47] evidence E said the 2022 AHD was signed by the represented person at her apartment in [M] and witnessed by T on a Tuesday. He said that later on a Thursday, C who was a neighbour of the represented person came over to the flat and signed the document.[48] When it was put to him that he had signed the 2022 AHD, E said he was sure[49] it had been signed by the represented person. E said that the represented person and E went through the AHD form with T the dementia care specialist[50]and the represented person ticked the boxes and signed it.
[47] E's evidence about the execution of the 2022 AHD goes on for some three pages of transcript.
[48] ts 8, 12 February 2025.
[49] ts 10, 12 February 2025.
[50] Submission of E dated 15 May 2024.
In the hearing E confirmed his written statement dated 16 December 2024, regarding the AHD of the represented person not being 'enforced' by the RACF related to the represented person being fed by spoon by the nursing home staff. E confirmed his view that the act of feeding the represented person with a spoon was inconsistent with the 2022 AHD.[51] He said: 'Yes. It was. Basically, mum was able to feed herself. I didn't see the sense in why someone had to spoon feed her'.[52] He went on to say, 'I believe that they're, in part of that spoon feeding and with the shakes and higher nutrient base than if she was just eating food'. He said he had discussed with the dementia care specialist T and 'it's well, it's a matter of prolonging the inevitable[53] and, look, don't get me wrong. It's, like, I love my mum to death, but just it kills me to go in there and see the state she's in'. The applicant advised that E had not visited the facility since early December 2024.[54]
[51] ts 5, 12 February 2025.
[52] ts 5, 12 February 2025.
[53] ts 6, 12 February 2025.
[54] ts 48, 12 February 2025.
In his submission dated 15 May 2024 (filed in the previous withdrawn matter) E refers to the 'final decision made as guardian for [the represented person]' … recently. I asked [RACF] not to have their carers feed my mother. This was due to them saying she needed feeding'. E's statement indicates that he did not accept that the represented person needed assistance and argues that she could feed herself. He states that he had witnessed his mother telling carers that she had had enough of a meal and food being 'forced on her'. He said he asked (the carers) to bring her food and let her eat. E says that a sign posted advising the represented person should not be fed by staff had given the represented person back her independence. However, E said that a registered nurse had gone to the head office and made a complaint saying that 'I was murdering my mother'. In this document E refers to an earlier decision made (as the represented person's enduring guardian) that the represented person enter residential aged care as 'having been discussed with the [represented person]. However, E states, 'although I did doubt whether she had the capacity to fully understand'.[55]
[55] Document filed by E on 15 May 2024 on GAA 1962 of 2024.
The applicant said that the 2022 AHD included a refusal to consent to enteral feeding but that the represented person was not being tube fed.[56] The applicant agreed that she did not regard the provision of food by spoon to be a treatment decision but described it as 'a basic human right, especially when [the represented person] wants to eat'.[57]
[56] ts 31, 12 February 2025.
[57] ts 32, 12 February 2025.
The applicant said that sometimes the represented person could feed herself once the tray was set up for her [and] 'she will eat everything'. She said '[s]he's the only lady … that can down two bowls of porridge and still want more, and some days, if you set it up, she doesn't have that cognitive ability to feed herself, but she certainly wants to eat'.[58] The applicant went on to say that the represented person's weight was stable at 54 kilograms but when E had 'asked us not to feed or assist her in eating her weight dropped down to 46 kilograms in two months'.[59]
[58] ts 32, 12 February 2025.
[59] ts 32, 12 February 2025.
The applicant clarified her comment that the represented person 'wants to eat', by explaining: 'if [the represented person] has had enough of what she's having she will push it away, but she will yell at you if you don't -if she's still hungry and you've not got enough'. The applicant described the represented person as '[w]illingly opens her mouth. Willingly swallows'.[60] The applicant said that at times the represented person was able to feed herself physically using a spoon but that the question was whether her cognition [enabled her] to put it all together to lift a spoon to her mouth'.[61]
Second hearing
[60] ts 32, 12 February 2025.
[61] ts 32, 12 February 2025.
In the second hearing T said that she was a dementia care specialist with a degree in dementia care from a university.[62] She said she had been assisting E with aspects of the represented person's care. In the investigator's report the investigator notes that T had advised him that she had worked with E and the represented person for around 8 years.[63] In T's evidence in the hearing she said she had been brought in about 2020 or 2021 when E was looking for aged care for the represented person as her business partner was assisting with the placement. T said she played an education and support role about the illness.[64]
[62] ts 2, 28 April 2025.
[63] Investigators report, page 6.
[64] ts 2 and 3, 28 April 2025.
T said E had spoken to her briefly after the first hearing and had told her that he had been confused and thought that she had come to the represented person's [M] address to witness the 2022 AHD.
In her evidence about the execution of the 2022 AHD T said that she had gone to E's business address in [A], that the represented person had not been present,[65] and that the 2022 AHD had been prepared there and signed by E and not by the represented person.
[65] ts 5, 28 April 2025.
T said the AHD had been made at a request to E by a former staff member of the RACF, W, 'for their records'.[66]
[66] ts 4, 28 April 2025.
T said that it was she who had arranged the other witness C, a friend of hers, who was a teacher and therefore an qualified witness for the purpose of witnessing the document.[67] T said that E had met C before at functions in support of a charity which she and C owned and which E's business had sponsored by supplying products and gift bags. She said E had provided this support for 18 months to 2 years.[68]
[67] ts 5, 28 April 2025.
[68] ts 5, 28 April 2025.
T said she understood that a person making an AHD had to have capacity to make one. She said, '[w]e don't generally make advanced health directives after that situation, it was only on request from the home'.[69]
[69] ts 6, 28 April 2025.
T confirmed that her knowledge of the reported wishes of the represented person (not to be fed by spoon) were conveyed to her by E and not by the represented person. She said, 'I don't think at that stage - I don't believe [the represented person] had capacity to understand if I asked her that question'.[70]
[70] ts 14, 28 April 2025.
T confirmed that she had discussed [dietary]supplementation with E and that E had not wanted the represented person to have any supplementation. T said in the hearing 'it is a life sustaining measure at this point in her illness'. She said, 'I said people give supplementation when they're not getting normal food in, and I think [E] was of the belief that she was eating so he said no to that'.[71]
[71] ts 13, 28 April 2025.
The applicant said that E had asked the RACF 'to put in writing that we would not feed [the represented person] and he actually employed someone where it was close to a week that he had people here around the clock. So we didn't actually assist [the represented person] with her meal. … People sitting in her room so we wouldn't assist her with eating'.[72] The applicant said she believed these people to work for or were friends of T.[73]
[72] ts 10, 28 April 2025.
[73] ts 10, 28 April 2025.
The applicant said 'once we sort of challenged [E] on the money situation, he then -basically, his mum had no life, and she needed to die and we weren't to assist her in feeding because we were keeping her alive'.[74]
[74] ts 10, 28 April 2025.
In his submission dated 15 May 2024 referred to above, E refers to his 'recent decision' to direct that carers not feed the represented person. Noting that the previous application made to the Tribunal by the RACF identifying unpaid fees was lodged in April 2024. This sequence appears to support the assertion of the applicant regarding the timing of E's direction that the represented person not be assisted to eat.
T confirmed that she and E had a meeting with the RACF staff following which a sign was put up that the represented person was not to be fed, … ' and then a staff member complained that E was trying to kill his mother'.[75] Following this T said 'so myself and my nurse went in, I think literally twice to check she was feeding herself and that was all being abided by. So yes, we did go into monitor if she was eating'.[76]
[75] ts 11, 28 April 2025.
[76] ts 11, 28 April 2025.
When the assertion of the applicant that E only raised the feeding issue when he was pressed by the RACF about payment of the fees arrears was put to T she said 'I can't say that I've ever really made a point in my mind to say that they were at the same time or link it together'.[77] She said she had not known then of extent of the arrears.[78] T advised her business partner[79] R, had sourced the RACF placement for the represented person and had advised E about the payment of aged care fees but that she, T was not privy to the advice given to him.[80]
The invalidity of the 2022 AHD
[77] ts 14, 28 April 2025.
[78] ts 14, 28 April 2025.
[79] ts 2, 28 April 2025. Initially T described R as her business partner but later said she was a business colleague with whom she shared an office; ts 3, 28 April 2025.
[80] ts 6, 28 April 2025.
Even if the execution of the 2022AHD as described by E had occurred with the represented person signing it and T and C signing as witnesses days later, this would not meet the requirements in the GA Act for the execution of an AHD as the signature of the maker of the AHD must be witnessed by the witnesses present at the time it is signed. Further I am satisfied from T's evidence that represented person did not make the 2022 AHD and it was in fact signed by E but not at the represented person's direction or in her presence.
Where the evidence of E and T regarding the execution of the 2022 AHD conflicts, I prefer and accept T's evidence, and I find that the 2022 AHD was signed by E at his business premises and not by the represented person at her former home as E said in the first hearing. By the time of the preparation of the 2022 AHD on 19 September 2022 the [M] property about which E gave a detailed description in his evidence as to the location of the execution of the 2022 AHD by the represented person had been sold. T says and I accept that she never attended that property. I accept T's evidence that the represented person was not present at the preparation of the 2022 AHD.
I consider it unlikely that E was confused about the preparation of the 2022 AHD as he suggested to T after the first hearing. Given the level of detail provided in his evidence in the first hearing about the process said to have been undertaken in the preparation of the 2022 AHD where he said T went through the document with the represented person and E's description of the represented person ticking the boxes. It is more likely than not, that E's evidence about the execution of the 2022 AHD was not confused but given in attempt to mislead.
The investigator submitted that as the creation of the 2022 AHD had not involved the represented person it could not be seen as an expression of her wishes and rather was an expression of E's wishes.[81]
[81] ts 9, 28 April 2025.
An essential element[82] of a valid AHD is that it is signed by or at the direction and in the presence of the maker. Since I am satisfied that the 2022 AHD was not signed by the represented person or made at her direction or in her presence, I am satisfied that it is not a valid AHD.
[82] JH [2022] WASAT 108 at [50].
As the 2022 AHD is not valid it is not strictly necessary to make any further comment about its provisions. However, because of the way that the 2022 AHD was prepared and relied on by both E and T in their communications with the RACF, its impact on the care of the represented person at E's directions as her enduring guardian and T's role both as a witness and an advocate for E's position, I consider that it is appropriate to make the following observations:
Treatment is defined in the GA Act as:[83]
[83] GA Act, s 3.
treatment —
(a)means —
(i)medical or surgical treatment, including a life sustaining measure or palliative care; or
(ii)dental treatment; or
(iii)other health care;
and
(b)in Parts 9B and 9E — includes medical research; and
(c)if paragraph (b) does not apply — does not include medical research;
A treatment decision is defined as:[84]
treatment decision, in relation to a person —
(a)means a decision to consent or refuse consent to the commencement or continuation of any treatment of the person; and
(b)in Part 9B — includes a decision to consent or refuse consent to the commencement or continuation of the person's participation in medical research.
[84] GA Act, s 3.
E's contention, and T's support for this, that assisting the represented person to eat or spoon feeding her was a treatment decision and that the RACF staff assisting her were in breach of the purported 2022 AHD is plainly wrong.
The interpretation of spoon feeding as a treatment decision is not consistent with the 2022 AHD document itself and in any event the provision of food by spoon is not 'treatment' as defined, as not being medical or surgical treatment, including a life sustaining measure or palliative care or 'other health care'. Health Care' means[85] 'medical and other services provided for the maintenance of health, prevention of disease'. Feeding a person by spoon could not be considered a treatment decision contemplated by an AHD. In contrast, enteral feeding is a specific treatment decision which may be refused by a capable person making an AHD in respect of future treatment. Enteral feeding of a patient requires both medical and surgical interventions to facilitate it.
[85] Macquarie Dictionary Online.
A capable person may refuse hydration and nutrition and medical treatment[86] but as agreed by the parties the represented person is not capable of making such a judgment and moreover, I accept the evidence of the applicant that she wants to eat. As the represented person is in the care of the RACF and entirely dependent on others for her care needs, the RACF has an obligation to provide her the necessaries of life.[87]
[86] Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 (Rossiter). In the case of Rossiter, the feeding was enteral feeding which was held to fall within the scope of 'surgical or medical treatment'.
[87] Section 262 of the Criminal Code (WA) imposes a duty on a person, who has the charge of another in circumstances where the other is by reason of age, sickness, mental impairment, detention or any other cause, to withdraw himself from such charge, and to provide the necessaries of life.
Whether or not the represented person ever indicated that she did not want to be fed by spoon when she lost the ability to feed herself is unknown. This was the view expressed by E in the hearing and as reported by him to T and the RACF staff. Having regard to what I consider to be the unreliability of E's evidence in the first hearing about the execution of the 2022 AHD, the lack of any independent evidence about the represented person's own wishes and what I accept to be the position as asserted by the applicant that E only pressed that the represented person not be fed by RACF staff around the time he was challenged about the arrears of her nursing home fees, means in my view that little if any weight can be given to E's assertions about this.
In respect of T's statement made in the second hearing and which she said she had advised E, that a nutritional supplement in the form of 'shakes' or a drink was 'a life sustaining measure' is also in my view incorrect.
Life sustaining measure is defined in the GA Act as:
life sustaining measure means a medical, surgical or nursing procedure directed at supplanting or maintaining a vital bodily function that is temporarily or permanently incapable of independent operation, and includes assisted ventilation and cardiopulmonary resuscitation;
A 'shake' or a drink is not a medical surgical or nursing procedure.
T's role in the preparation of the 2022 AHD is also of concern. T represents herself as a dementia care specialist providing education and is understood to be advising persons with a dementia diagnosis and their families. T's evidence makes clear that she was aware of the requirements for the execution of a valid AHD - fundamentally that it be made by a capable person. T says she was aware that the represented person was not capable at the time the 2022 AHD was created. T arranged the qualified witness to attend E's business address. T's arrangement that her friend, C attend to sign as a qualified witness was presumably to give the appearance that the 2022 AHD was regularly executed and valid.
The requirement for two witnesses (including at least one qualified witness,[88] that is, a person authorised by law to take declarations) and the role of witnesses to enduring documents was recently considered in MS [2025] WASAT 49. The Full Tribunal identified 'at least the following purposes of those requirements: to 'reduce the risk of an enduring power of attorney being created fraudulently, to ensure there are witnesses who may be able to attest to the circumstances of the execution including any observations going to the apparent capacity and willingness of the donor to confer the power, (although there was no requirement that the witness turn their mind to that issue) and finally to 'ensure that there is an understanding by the donor that the conferral of an enduring power of attorney is a serious matter'.
[88] That is a person authorised by law to take declarations under the Oaths, Affidavits and Statutory Declarations Act 2005 (WA).
The formality requirements of the execution of an AHD (and an EPG) also require two witnesses including at least one qualified witness. Anyone participating in the creation of these documents either as the maker or as a witness should understand the seriousness of the undertaking.
Although knowing that the 2022 AHD was not made by the represented person and that the represented person, in T's own view, lacked capacity to do so, T assisted E to assert the 2022 AHD's purported provisions to insist that the represented person not be fed by staff against advice of the staff at the RACF that she needed this assistance. This assertion included T attending meetings with E at the RACF and later attending and directing others to attend the bedside of the represented person 'to monitor' the RACF's adherence to E's direction as the enduring guardian of the represented person that she not be assisted to eat.
Guardianship
I am satisfied that the presumption that the represented person is capable of making reasonable judgements about her person is displaced. All the professional evidence demonstrates that the represented person has a dementia diagnosis, significant cognitive impairment and is entirely reliant on others for all her care needs to be met.
On the evidence of the health professionals to which I have referred I am satisfied that the represented person is incapable of looking after her own health and safety, unable to make reasonable judgements about her person and is in need of oversight and care in the interests of her own health and safety.
A guardian must act in the best interests of the represented person. Guidance as to how the best interests of the represented person may be achieved by a guardian is set out in s 51 of the GA Act. This provision (among others) applies to a person who is appointed as an enduring guardian under an EPG by operation of s 110H of the GA Act. The guidance given in s 51 as to the best interests of the represented person includes that the guardian act in such a way as to protect the represented person from neglect, abuse or exploitation.[89]
[89] GA Act, s 51(2)(d).
The evidence of the applicant is that E was difficult to contact by care staff and on his own evidence E found it difficult to attend the facility and to deal with the presentation of the represented person due to the progression of her illness.
I am satisfied and I find that the 2022 EPG has not operated to meet the best interests of the represented person including to protect her from neglect in respect of her need to be assisted to eat.
I am also satisfied and I find that the represented person is in need of a guardian to make decisions about her accommodation, medical treatment and to determine the contact she should have with others. The contact function is required to ensure the care needs of the represented person can continue to be met by the direct service staff responsible for her care
Although not consistent with the previous choice of the represented person that E be her enduring guardian, I am satisfied that the 2022 EPG should be revoked in the best interests of the represented person.
I am satisfied the represented person is in need of a guardian to exercise the functions to which I have referred.
As there is no one else proposed for appointment[90] as the represented person's guardian, I am satisfied that it is appropriate and in the best interests of the represented person that the Public Advocate be appointed her limited guardian. I am satisfied that the limited functions are sufficient to meet the current needs of the represented person and there is no need for a plenary order.
Duration of the orders
[90] Section 44(5) of the GA Act provides that the Public Advocate may only be appointed as guardian of the represented person where there is no other person who is suitable and willing to act.
As the represented person's condition is a progressive one, I am satisfied that the orders should be made for the maximum period, that is, for 5 years.
Applications pursuant to under s 110W and s 110N
I am satisfied and I find that the applicant on behalf of the RACF, an organisation providing the direct care to the represented person and on whom she was completely reliant for that care, who were responding to the directions from E as the represented person's enduring guardian that she not be assisted to eat, have a proper interest to bring the applications in respect of the 2022 EPG and 2022 AHD.
Orders
For the reasons given I made the following declarations and orders.
GAA 5494/2024
The Tribunal makes the following orders:
1.The Tribunal declares that the represented person, [SO] is:
(a)unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;
(b)in need of an administrator of her estate;
(c)incapable of looking after her own health and safety;
(d)unable to make reasonable judgments in respect of matters relating to her person;
(e)in need of oversight, care or control in the interests of her own health and safety; and
(f)in need of a guardian.
Administration
2.The order made on 22 October 2024 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
3.The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
4.The enduring power of attorney dated 15 February 2022 by which the represented person appointed [E] to be their attorney, is revoked.
5.The administration order is to be reviewed before 27 April 2030.
Guardianship
6.The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:
(a)to decide where the represented person is to live, whether permanently or temporarily;
(b)to decide with whom the represented person is to live;
(c)to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA); and
(d)to determine what contact, if any, the represented person should have with others and the extent of that contact.
7.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
8.The guardianship order is to be reviewed before 27 April 2030.
GAA 740/2025
The Tribunal orders:
1.On an application by [RACF] pursuant to s 110W of the Guardianship and Administration Act 1990 (WA) concerning an advanced health directive dated 19 September 2022.
2.The Tribunal declares the advanced health directive is invalid.
GAA 690/2025
The Tribunal orders:
1.On an application by [the applicant] pursuant to s 110N of the Guardianship and Administration Act 1990 (WA) concerning an enduring power of guardianship dated 15 February 2022 by which [SO] appointed [E] as her enduring guardian.
2.The enduring power of guardianship is revoked.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS F CHILD, MEMBER
2 SEPTEMBER 2025
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