Introduction: The JKJ Case

A recent Western Australian case has provided important clarification about the powers of the State Administrative Tribunal (SAT) to authorize administrators to exercise trustee powers on behalf of represented persons. In JKJ [2025] WASAT 6, the Public Trustee sought directions regarding a represented person who was the executor and trustee of his late aunt's estate. Before losing capacity, JKJ had received a grant of probate for his aunt's will and had partially administered the estate, with approximately $20,000 remaining for distribution. The solicitors who had acted for JKJ in his capacity as executor refused to provide information to the Public Trustee (as JKJ's administrator) without instructions from JKJ himself—instructions he could no longer provide due to his incapacity.

The Legal Question: Can Administrators Exercise Trustee Powers?

When someone loses capacity and has an administrator appointed under the Guardianship and Administration Act 1990 (WA) ("GA Act"), a key question arises: does the administrator's authority extend to exercising powers the represented person held as a trustee? This is particularly relevant when the represented person was a trustee of family trusts, self-managed superannuation funds, or deceased estates.

The issue stems from a fundamental legal principle: property held by a person as trustee does not form part of their personal estate. Section 69 of the GA Act gives administrators authority to perform functions "in respect of the estate of the represented person." This creates uncertainty about whether an administrator can act in relation to trust assets.

Schedule 2, Part B, Paragraph (h): The Key Provision

The solution lies in Schedule 2, Part B, paragraph (h) of the GA Act, which provides that where a power is vested in a represented person in the character of a trustee or guardian, the SAT may:

"...authorise the administrator to exercise the power or give the consent in such a manner as the Tribunal may direct."

This provision effectively bridges the gap between an administrator's general authority over a represented person's estate and their ability to exercise the represented person's trustee powers.

The Full Tribunal's Interpretation

In Public Trustee of Western Australia and VV [2012] WASAT 170, the Full Tribunal provided important guidance on interpreting paragraph (h). That case concerned a represented person who was trustee of his self-managed superannuation fund.

The Tribunal adopted a broad interpretation of the provision, stating that it "arises where there is a power vested in the represented person in the character of a trustee or a guardian at, or immediately before, the appointment of an administrator for the represented person, or where the power is vested in the represented person through his legal personal representative."

This interpretation prioritizes the beneficial purpose of the GA Act, which as noted in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268, is "designed to serve the best interests of those who lack capacity to manage their own affairs or to look after their own health and safety" and "to conserve the property and financial resources of a disabled person."

A More Restrictive View

Not all tribunal decisions have adopted such a broad interpretation. In SQ and IQ [2012] WASAT 165, a single member took a more restrictive view, interpreting paragraph (h) as envisaging "the performing of a single act or a one-off exercise of power rather than the adopting of an ongoing role encompassing many and varied decisions into the future."

However, in JKJ [2025] WASAT 6, the member explicitly disagreed with this narrow interpretation, finding that it was not supported by the language of the provisions.

When Should the Power Be Exercised?

The Full Tribunal in Public Trustee and VV provided guidance on when the SAT should exercise its discretion under paragraph (h):

"The question as to whether the Tribunal ought to give authority under paragraph (h) will always turn on the particular circumstances of the case. The provisions of the relevant trust deed, the nature of the trust, the identity of the beneficiaries, the nature of the trust property and the character and extent of the powers in respect of which authority is sought, will all be significant considerations in the exercise of the discretion as to whether authority should be granted."

In JKJ, the Tribunal found it was in the best interests of the represented person to authorize the Public Trustee to exercise his powers as trustee—both to obtain information about the deceased estate and to complete the administration by distributing the remaining funds to beneficiaries.

Practical Implications

This case highlights several important considerations for administrators:

Administrators do not automatically have authority to exercise a represented person's trustee powers—specific authorization from the SAT is required
The SAT has broad jurisdiction to authorize administrators to exercise trustee powers
The need for such authorization applies to various trustee roles, including trustees of deceased estates, family trusts, and self-managed superannuation funds
In applying for authorization, administrators should address how exercising the trustee powers advances the represented person's best interests
The scope of authorization can be tailored to specific circumstances, from obtaining information to completing trust distributions

Conclusion

The JKJ decision confirms the SAT's jurisdiction to authorize administrators to exercise a represented person's trustee powers. This jurisdiction is particularly valuable in preventing trust administration from being paralyzed when a trustee loses capacity. When used appropriately, it allows administrators to protect the represented person's interests without the need for costly applications to other courts for the appointment of substitute trustees.

For represented persons who are trustees, this mechanism provides a practical solution to ensure their legal obligations as trustees can continue to be fulfilled despite their incapacity, protecting both their interests and those of trust beneficiaries.