The Prodigal Son Returns: Family Dynamics and Best Interests in Guardianship Law – Analysis of AA [2025] WA SAT 2

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.

Revocation of Enduring Powers of Guardianship by the State Administrative Tribunal of Western Australia

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

Cognitive fluctuations in dementia: A closer look🔍

A crucial aspect of dementia care is understanding and managing ▶ cognitive fluctuations, which are changes in a person's cognitive abilities and levels of awareness.

Dementia is a progressive neurological condition that encompasses various forms such as Alzheimer's, vascular dementia, Lewy Body dementia, and frontotemporal dementia.

The Australian Institute of Health and Welfare estimates that there were ▶ 219,000 Australians with dementia in 2020. This number is on the rise.

Cognitive fluctuations can be influenced by factors like:
1️⃣ environment,
2️⃣ fatigue,
3️⃣ medications, and
4️⃣ time of day.

For example, ▶ sundowning is a common phenomenon where individuals experience increased agitation or confusion during late afternoon or evening hours.

The neurobiology underlying cognitive fluctuations is not yet fully understood, but it is known that dementia results from damage to brain cells and their connections. In Alzheimer's disease, this deterioration begins in the memory centers of the brain and gradually spreads to regions governing attention and awareness.

Disruptions in the brain's "default mode network" can also lead to changes in cognition and self-awareness.

Behavioural interventions, such as music therapy, can temporarily improve mood and memory for those living with dementia.

When interacting with a loved one experiencing cognitive fluctuations, it's important to:
➡ communicate effectively using short sentences,
➡ maintain eye contact,
➡ minimise distractions, and
➡ listen calmly to their concerns.

Although some drugs show promise in slowing memory decline, further research is needed to better understand and treat dementia.

If you are facing guardianship issues related to dementia, I am a specialist guardianship lawyer and can help.

Understanding Schizophrenia: Dispelling Myths and ▶ Promoting Awareness

As a guardianship lawyer with experience in assisting families of schizophrenia patients, I want to raise awareness about this complex mental health condition that affects ▶ approximately 1% of the Australian population.

Schizophrenia is characterized by symptoms such as:
1️⃣ psychosis,
2️⃣ delusions,
3️⃣ hallucinations,
4️⃣ thought and behavioural disorganization, and
5️⃣ “negative symptoms” such as flat affect and loss of interest and motivation.

Proper treatment is crucial, as the World Health Organization estimates that ▶ one-third of people with schizophrenia can experience complete remission with the right approach.

It's essential to recognise that the ▶ hallmarks of schizophrenia vary from person to person, but often include impaired daily functioning and grossly disorganised and catatonic behaviour.

According to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), a ▶ formal diagnosis requires the presence of at least two major symptoms for a significant period within one month.

Though rare, childhood onset schizophrenia affects around 0.4% of kids aged 5-18, and symptoms may manifest differently in children and adolescents compared to adults.

Some common risk factors for schizophrenia include family history, environmental factors, brain chemistry, and brain anatomy.

Treatment for schizophrenia typically involves a combination of medications, evidence-based psychotherapy, lifestyle changes, supportive housing, ongoing care from a clinical team, and community/family support.

It's crucial to address the ▶ stigma surrounding schizophrenia, as misconceptions about the condition can exacerbate symptoms and hinder treatment-seeking behaviour.

By raising awareness about schizophrenia and dispelling myths, we can promote understanding and empathy for those affected by the condition and their families.

This knowledge can also assist in making informed decisions regarding ▶ guardianship and administration orders, to ensure the best possible support and care for individuals living with schizophrenia.

Understanding the Role of Limited Administrators as Litigation Guardians in Western Australia

Introduction

Navigating guardianship matters can be a complex and sensitive process, particularly when supporting individuals who are unable to make reasonable judgments due to mental or physical incapacity. In this article, we will discuss the role of Limited Administrators as Litigation Guardians in Western Australia, as guided by the Guardianship and Administration Act 1990 (WA). We will also explore a real-life case example to illustrate the importance of Limited Administrators as Litigation Guardians, and how they can provide crucial assistance in protecting the legal and financial interests of vulnerable individuals.

Understanding Limited Administrators as Litigation Guardians

In Western Australia, the State Administrative Tribunal has the authority to appoint substitute decision makers, such as Limited Administrators, for individuals who lack the capacity to manage specific legal and financial affairs. Limited Administrators can be appointed as Litigation Guardians to act on behalf of individuals involved in legal proceedings, ensuring their best interests are upheld throughout the process.

Key factors to consider when appointing a Limited Administrator as a Litigation Guardian include:

1. Legal proceedings: The individual concerned is involved in legal proceedings and lacks the capacity to make decisions or give instructions.

2. Settlement decisions: The individual concerned is required to make a decision regarding the settlement of a legal claim and is unable to make an informed decision due to their incapacity.

3. Limited scope: The individual's incapacity is restricted to a specific area of their legal or financial affairs. A Limited Administrator can be appointed to manage only those aspects, allowing the individual to manage their other affairs independently.

4. Duration: In cases where the individual's incapacity is temporary or expected to improve over time, a Limited Administrator can be appointed for a specific period, ensuring their legal and financial affairs are managed effectively during their period of incapacity.

Case Example: Jane's Story

To illustrate the importance of Limited Administrators as Litigation Guardians, let's take a look at Jane's story. Jane, a 35-year-old single mother, was suffering from severe depression that significantly impacted her ability to make informed decisions. At the same time, she was involved in a complex legal dispute, which required her to make crucial decisions and give instructions to her legal team.

With the approval of the State Administrative Tribunal, a Limited Administrator was appointed as a Litigation Guardian to act on Jane's behalf during the legal proceedings. The Limited Administrator's role was specifically tailored to:

1. Provide instructions to Jane's legal team on her behalf.

2. Make critical decisions regarding the settlement of Jane's legal claim.

3. Ensure that Jane's best interests were upheld throughout the legal process.

In Jane's case, the Limited Administrator's appointment was temporary and focused solely on the legal dispute. This arrangement allowed Jane to maintain control over other aspects of her life while ensuring her legal and financial interests were protected during her time of incapacitation.

Conclusion

This case highlights the importance of the guardianship jurisdiction in Western Australia and the value of Limited Administrators as Litigation Guardians. By understanding the available options and resources, legal professionals and families can work together to support and protect the rights and interests of those who may be unable to do so themselves. It is crucial to consult with an experienced lawyer in the guardianship jurisdiction to ensure that the application process is correctly followed, and the best interests of the person concerned are upheld.

The Importance of Properly Evaluating Mental Capacity in Legal Matters

There is no single legal definition of mental capacity in Western Australia. As a lawyer specializing in guardianship cases, this question is frequently top-of-mind when dealing with some of my clients.

It is important to understand the nuances of determining mental capacity in legal matters. The definition varies depending on the type of decision or transaction involved.

There are various legal tests for mental capacity, such as the test for testamentary capacity.

Despite the many different legal tests, the fundamental issue is whether the client is able to understand the general nature of what they are doing. If there is ongoing difficulty in this level of understanding it may indicate a lack of mental capacity which requires further exploration by the lawyer.

Any work done for a client who it later turns out lacked mental capacity could be invalid and expose the lawyer to potential legal and ethical issues.

For example, a client may appear to have the mental capacity to create a will, but in reality, they may be suffering from dementia and unable to understand the consequences of their actions. This could lead to the will being challenged and the lawyer facing potential legal repercussions.

Another example is, a client may not have the mental capacity to make a contract, but have mental capacity to make a will. A lawyer should be aware of this and should not proceed with the contract if they suspect the client lacks mental capacity. If a lawyer fails to do so, it could lead to the contract being challenged and the lawyer facing potential legal repercussions.

See a publication produced by The Law Society of New South Wales entitled “When a client’s mental capacity is in doubt – A practical guide for solicitors”, dated 2016" for more information.

Navigating Guardianship Applications: Some “signs” for Families Affected by Dementia

GUARDIANSHIP ... it is important to be aware of the early signs of dementia and the difference between dementia and Alzheimer's disease.

Dementia is the term used to describe losing one's memory and speech, with Alzheimer's disease being the most common cause.

In the early stages, it may appear as exaggerated forgetfulness, but as the disease progresses, memory loss, changes in thinking and speech, and changes in behavior may occur.

Other diseases that can cause dementia include vascular dementia, caused by small strokes, and Lewy body disease, which also presents symptoms similar to Parkinson's disease.

Although dementia is not hereditary, an early diagnosis is important as there are treatments that can be offered and it is important to prepare for the future.

Keep an eye out for extraordinary forgetfulness and out of character behaviour, such as putting food in the wrong place or tripping over words in conversation.

If you notice these signs, encourage your family members to seek medical attention for a proper diagnosis.

If you or someone you know needs help applying for or dealing with a guardianship application at the State Administrative Tribunal of Western Australia, please don't hesitate to contact me for assistance. I'm here to help, having acted in more than 100 such applications during the last 5 years.

Financial Elder Abuse: A Serious Issue Affecting Older Australians

As a guardianship lawyer, I've seen first-hand the devastating effects of financial elder abuse on Australian seniors.

If you are a financial advisor, read this blog for signs that financial elder abuse may be happening to your clients, and what role you can play in protecting your clients.

Financial elder abuse is a serious issue that affects many older Australians every year. Elder abuse can take many forms, including financial exploitation, physical abuse, and emotional abuse.

As financial advisors, you are often in a prime (and sometimes ‘only’) position to be aware of the signs of elder abuse and to take action when you suspect that a client may be at risk.

The following are 5 signs that financial elder abuse may be happening:

• Sudden changes in financial arrangements, such as the appointment of a new power of attorney or the transfer of assets to a new account.

• Unexplained withdrawals from accounts or the use of an elderly person's funds without their knowledge or consent.

• The appearance of new "friends" who are taking an interest in the elderly person's financial affairs, especially if they seem to be trying to isolate the person from their family and trusted advisors.

• Changes in the elderly person's demeanour or behaviour, such as increased confusion or agitation, that may be caused by financial stress or exploitation.

• Unexpected changes in the elderly person's financial situation, such as sudden debts or unpaid bills.

To help protect your clients from elder abuse, there are several steps you can take:

1. Stay in regular contact with your clients. This will help you to stay informed about their financial situation and to identify any changes that may be cause for concern.

2. Be aware of the signs of elder abuse. If you notice any unusual activity in your client's accounts or if you have concerns about the well-being of an elderly client, it's important to take action.

3. Work with other professionals. If you have concerns about a client, consider reaching out to other professionals, such as lawyers or social workers, for guidance on how to proceed.

4. Educate your clients about the dangers of elder abuse. Help your clients to develop strategies for protecting themselves, such as setting up a power of attorney (if they have capacity) or working with a trusted family member or friend.

By taking these steps, financial advisors can play a critical role in protecting their elderly clients from financial elder abuse. If you have any questions or would like to discuss how I can assist, please don't hesitate to contact me.