An Enduring Power of Guardianship (EPG) is a legal instrument in Western Australia that allows a person (the appointor) to appoint one or more individuals (the enduring guardian(s)) to make personal, lifestyle, and treatment decisions on their behalf if they lose capacity to make those decisions themselves [1]. This important legal tool provides individuals with autonomy and control over their future care, ensuring their wishes are respected even when they can no longer express them. However, circumstances may arise where the revocation of an EPG becomes necessary to protect the best interests of the appointor. The SAT's role in revoking EPGs requires a delicate balance between upholding the appointor's autonomy, as expressed through the EPG, and safeguarding their best interests when circumstances change or concerns arise.

The State Administrative Tribunal (SAT) of Western Australia plays a crucial role in overseeing EPGs and ensuring their proper execution. While the SAT does not have a role in the initial appointment of an enduring guardian, it has the authority to intervene in situations where concerns arise regarding the validity, operation, or appropriateness of an EPG [2]. This includes the power to revoke an EPG under certain circumstances. This article aims to explore the circumstances under which the SAT will order the revocation of an EPG, drawing upon relevant legal principles and, where available, case law from the SAT.

Legal Framework for Enduring Powers of Guardianship in Western Australia

The legal framework governing EPGs in Western Australia is primarily found in the Guardianship and Administration Act 1990 (WA). This legislation sets out the requirements for creating a valid EPG, the powers and responsibilities of enduring guardians, and the circumstances under which an EPG may be revoked. It is crucial that EPGs are drafted with clarity and precision, taking into account the appointor's wishes and potential future circumstances, to minimize the risk of disputes or the need for revocation.

Capacity to Create an EPG

A fundamental principle underlying EPGs is that the appointor must have the capacity to make reasoned decisions at the time of completing the document [1]. This means they must understand the nature and effect of the EPG, the implications of appointing an enduring guardian, and the potential consequences of their decisions [3]. If there is any doubt about the appointor's capacity, the written opinion of a doctor or other appropriately qualified health professional should be sought [1].

Circumstances for Revocation

While the Guardianship and Administration Act 1990 (WA) does not explicitly list all the grounds for revoking an EPG, the SAT has the power to revoke an EPG in situations where it is deemed necessary to protect the appointor's best interests. This may include situations where:

The enduring guardian is no longer able or willing to act. This could be due to the guardian's death, incapacity, or a change in their personal circumstances [4].
Where an EPG has joint enduring guardians, and one guardian dies or loses capacity, the remaining guardian may need to apply to the SAT for a variation or confirmation of their authority, depending on the provisions of the EPG document [4].
The enduring guardian is acting in a manner that is not in the appointor's best interests. This could involve financial abuse, neglect, or making decisions that contradict the appointor's known wishes. This aligns with the general principles of guardianship law, which prioritize the welfare and well-being of the person subject to the guardianship [5].
There is a conflict of interest between the enduring guardian and the appointor. For example, the guardian may be benefiting personally from their role or making decisions that prioritize their own interests over those of the appointor.
The appointor wishes to revoke the EPG. An appointor can revoke an EPG at any time while they have the legal capacity to do so [1]. They should inform their enduring guardian and all other relevant people and agencies, preferably in writing [1].
The EPG is invalid. This could be due to a lack of capacity on the part of the appointor at the time of creating the EPG, or due to a defect in the document itself [6].
Where the appointor's capacity to make decisions is fluctuating or unclear, the SAT may revoke the EPG to ensure the appointor's best interests are protected [6].

Powers of the SAT

The SAT has broad powers to intervene in EPG matters. In addition to revoking an EPG, the SAT can:

Appoint a substitute enduring guardian [7].
Vary the terms of an EPG [7].
Require the enduring guardian to provide accounts and records of their dealings [7].
Give directions to the enduring guardian on matters related to the exercise of their powers [7].

Conclusion

The SAT plays a vital role in safeguarding the welfare of individuals who have lost capacity by overseeing the operation of EPGs. In summary, the SAT may revoke an EPG if the enduring guardian is unable or unwilling to act, acts against the appointor's best interests, has a conflict of interest, or if the appointor themselves revokes the EPG while still having capacity. Ultimately, the SAT's decisions are guided by the principle of protecting the appointor's welfare.

Footnotes

[1] www.wa.gov.au, accessed January 5, 2025, https://www.wa.gov.au/system/files/2023-07/opa-is-9-enduring-powers-guardianship.pdf

[2] www.wa.gov.au, accessed January 5, 2025, https://www.wa.gov.au/system/files/2024-07/opa-epg-guide.pdf

[3] www8.austlii.edu.au, accessed January 5, 2025, https://www8.austlii.edu.au/au/journals/SydUPLawBk/2011/11.pdf

[4] Enduring Power Of Guardianship (Western Australia) - Cleardocs, accessed January 5, 2025, https://www.cleardocs.com/products-enduring-power-of-guardianship-western-australia.html

[5] palliativecarewa.asn.au, accessed January 5, 2025, https://palliativecarewa.asn.au/wp-content/uploads/2023/05/10-Enduring-Power-of-Guardianship-kit.pdf

[6] Enduring Power of Guardianship - Government of Western Australia, accessed January 5, 2025, https://www.wa.gov.au/organisation/department-of-justice/office-of-the-public-advocate/enduring-power-of-guardianship

[7] Word - Western Australian Legislation, accessed January 5, 2025, https://www.legislation.wa.gov.au/legislation/statutes.nsf/RedirectURL?OpenAgent&query=mrdoc_28305.docx