As counsel for the successful Applicant in this matter, I had the opportunity to argue several significant issues regarding capacity assessment and the obligations of attorneys and guardians under Western Australian guardianship law.
The case provides important guidance on these issues in the context of family conflict and disputed property transactions.
Background
The matter concerned AA, a 92-year-old widow who had appointed two of her three sons (S2 and S3) as her joint enduring attorneys and guardians in October 2021. As detailed at [3]-[7] of AA [2025] WASAT 2, AA there was a history of excluding the eldest son (S1, the Applicant) from her affairs, including through explicit exclusions in her 1991 and 2013 wills. However, in mid-2022, AA's relationship with S1 was rekindled after limited contact since 2007.
The key catalyst for the proceedings was a series of property transfers in April 2023, where AA transferred substantial interests (65-66%) in eight properties to S2 and S3 for no consideration beyond "natural love and affection" (at [12]). These transfers occurred at a time when there were documented concerns about AA's cognitive function, with evidence showing decline from at least September 2022 (at [97]).
The proceedings involved applications to revoke AA's enduring power of attorney (EPA) and enduring power of guardianship (EPG), as well as seeking the appointment of an administrator and guardian.
The case required detailed consideration of AA's capacity at various times and the conduct of S2 and S3 as attorneys and guardians.
Legal Analysis
Capacity Assessment
The Tribunal emphasized that capacity must be assessed in the context of contemporaneous medical evidence and should not be inferred merely from prior assessments. In AA [2025] WASAT 2 at [106]-[108], the Tribunal rejected submissions that there was continuity of capacity between earlier favourable capacity assessments and later periods, particularly where there was evidence of cognitive decline. The decision reinforces that capacity is time and decision-specific.
The case also demonstrates the importance of obtaining specialist geriatric assessments where cognitive impairment is suspected. At [157]-[159], the Tribunal was critical of the failure to arrange timely geriatric assessment despite documented concerns about cognitive decline. This highlights that attorneys and guardians have obligations to proactively address capacity concerns through appropriate medical assessment.
The Tribunal placed significant weight on geriatrician evidence at [41]-[45], which established that AA had a mental disability likely Alzheimer's dementia and was incapable of making reasonable decisions about financial matters, medical treatment, accommodation, and services. This comprehensive medical assessment was crucial in establishing both the need for orders and the unsuitability of continuing the existing EPA and EPG arrangements.
Fiduciary Obligations of Attorneys
The decision provides a detailed analysis of the fiduciary obligations of attorneys under enduring powers of attorney. At [116]-[117], the Tribunal confirmed that the relationship between donor and attorney is fiduciary in nature, citing Dal Pont, Powers of Attorney (Third edition), 2020. The Tribunal emphasized that attorneys cannot make decisions in their own interests unless fully informed consent is given by the donor.
Significantly, at [118]-[120], the Tribunal found that where attorneys are aware of the donor's impaired cognition, they cannot rely on the donor's apparent consent to transactions that benefit the attorneys to the donor's detriment. The property transfers in this case exemplified this principle - while they may have aligned with AA's historical wishes as expressed in her wills, they were facilitated by the attorneys at a time when they knew or ought to have known of her cognitive decline.
Grounds for Revoking Enduring Powers
The decision illustrates several grounds that may justify revoking enduring powers under section 109(1)(c) of the Guardianship and Administration Act 1990 (WA). These include:
Facilitating property transfers that benefit the attorneys when aware of the donor's cognitive impairment (at [118]-[119])
Failing to obtain appropriate medical assessment of cognitive decline (at [236])
Using powers in ways that restrict the donor's family relationships without clear evidence this serves the donor's interests (at [219])
Demonstrating lack of understanding about the scope and proper use of enduring powers (at [221])
The Tribunal's analysis suggests that revocation may be warranted where attorneys lose sight of their fundamental obligation to act in the donor's best interests, even if they have otherwise provided good care to the donor.
Best Interests Analysis
A key aspect of the decision was the Tribunal's detailed consideration of AA's best interests under section 4 of the Guardianship and Administration Act 1990 (WA). At [207], the Tribunal emphasized that guardians must act to maintain supportive relationships and encourage community participation. The evidence that S2 and S3 had restricted AA's contact with S1 and his family, including through surveillance measures and redirecting phone calls (at [162]-[165]), demonstrated their inability to fulfill these obligations.
Appointment of Independent Administrator/Guardian
The decision provides guidance on when the Public Trustee and Public Advocate should be appointed instead of family members. At [232]-[239], the Tribunal identified several factors warranting independent appointment:
Acrimonious family relationships affecting ability to maintain supportive relationships
Conflicts of interest regarding property and financial matters
Need for independent assessment of competing views about care arrangements
Lack of proper understanding of statutory powers and obligations
Significantly, at [215], the Tribunal held that differing views between proposed guardians about future care options do not necessarily preclude joint appointment if they have not yet had to actively consider those issues. This suggests the Tribunal will focus on demonstrated conflicts rather than theoretical ones.
The decision also emphasizes the importance of gifting provisions in administration orders. At [132], the Tribunal recognized AA's history of gifting to grandchildren and great-grandchildren and included a specific authorization for modest gifting to continue, demonstrating the importance of maintaining normal family practices where appropriate.
Review Periods
At [241]-[242], the Tribunal confirmed that where there is clear medical evidence of a progressive cognitive condition, the maximum five-year review period under the Act may be appropriate. This provides useful guidance on structuring orders in cases involving diagnosed dementia or similar conditions.
Conclusion
This decision provides a comprehensive analysis of key guardianship and administration principles in the context of family conflict and questionable property transactions. It emphasizes the paramount importance of protecting the represented person's interests and demonstrates the Tribunal's willingness to appoint independent decision-makers where family dynamics create risks to those interests. The case serves as an important reminder of the high standards expected of attorneys and guardians, particularly regarding their obligations to obtain appropriate medical assessment and avoid conflicts of interest. Read the full decision here.