SO - [2025] WASAT 90 | CaseChat AU

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…

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.

Keep reading for free

Create a free CaseChat account to read SO and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] WASAT 90
Decision Date: 2 SEPTEMBER 2025

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case involved applications by the Public Advocate for the appointment of a guardian and administrator for a represented person, who has been diagnosed with dementia, and for the revocation of an enduring power of guardianship and an Advance Health Directive (AHD). The son of the represented person, who holds the enduring power of attorney and guardianship, was also a party to the proceedings. The Public Advocate applied for the appointment of a limited guardian and a plenary administrator due to concerns about the son's financial management and the represented person's care needs. The represented person had substantial arrears of nursing home fees, and the son had transferred the bulk of the represented person's estate to his business, now in receivership. The Public Advocate sought a declaration that the 2022 AHD was invalid due to the lack of compliance with the statutory requirements, and that the represented person lacked the capacity to make reasonable judgments about her person and her estate.

The court had to determine whether the represented person lacked the capacity to make reasonable judgments about her person and estate, and whether there was a need for an administrator and a guardian. The court also had to decide whether the son's direction that the represented person not be fed by spoon was a treatment decision under the Guardianship and Administration Act 1990 (WA), and whether dietary supplementation was a life-sustaining measure. Furthermore, the court had to determine the validity of the 2022 AHD, and whether there were any less restrictive means to meet the represented person's needs.

The court found that the represented person lacked the capacity to make reasonable judgments about her person and her estate. The son's direction that the represented person not be fed by spoon was not a treatment decision, and dietary supplementation was not a life-sustaining measure. The 2022 AHD was invalid as it was not signed by the represented person or in her presence. The court appointed the Public Advocate as the limited guardian and the Public Trustee as the plenary administrator.

In conclusion, the court revoked the enduring power of attorney and guardianship held by the son, declared the 2022 AHD invalid, and appointed the Public Advocate as the limited guardian and the Public Trustee as the plenary administrator. The court's decision aimed to ensure the represented person's care needs were met and her estate was properly managed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.