C [2025] WASAT 113 | Case summary

State Administrative Tribunal (WA)|2025-10-16

For the reasons given I made the following declarations and orders.

The Tribunal declares that the represented person, [C] is:

(a) unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate;

(d) unable to make reasonable judgments in respect of matters relating to her person;

(e) in need of oversight, care or control in the interests of her own health and safety; and

The order made on 5 September 2025 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked.
The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
The administrator is authorised to expend up to a total amount of $3,500 per annum on gifts on behalf of the represented person.
The administrator is directed to investigate all transactions made by the attorney [R] pursuant to the enduring power of attorney dated 15 November 2024.
The enduring power of attorney dated 15 November 2024 by which the represented person appointed [R] to be her attorney, is revoked.
The administration order is to be reviewed before 11 September 2027.

The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions:

(a) to decide where the represented person is to live, whether permanently or temporarily; and

(b) to decide with whom the represented person is to live.

The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
[R] of [address] is appointed limited guardian of the represented person with the following functions:

(a) to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA); and

(b) to determine the services to which the represented person should have access.

It is declared that the represented person is not capable of making judgments for the purpose of complying with the provisions of the Electoral Act 1907 (WA) relating to compulsory voting.
The guardianship order is to be reviewed before 11 September 2027.

On an application by [R] pursuant to s 110N of the Guardianship and Administration Act 1990 (WA) concerning an enduring power of guardianship dated 15 October 2024 by which [C] appointed [R] as her enduring guardian.

The enduring power of guardianship dated 15 October 2024 by which the represented party appointed [R] to be their guardian, is revoked.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[9] Letter to Tribunal dated 23 December 2023 '[t]his letter is written for the purpose of the State Administrative Tribunal and [disability accommodation provider] to keep on record ... [disabled son] in time is due to inherit my family home [address] and possibly a Trust Fund'.

[10] R agreed she dated the contract 6 March 2025 by mistake. The correct date is 3 June 2025 as stated next to the builder's signature.

[11] R's submissions filed on 5 September 2025.

[12] R's submissions filed on 4 September 2025.

[13] At which point R sought to withdraw the applications; leave was refused as I did not consider this to be in C's best interests. I made an emergency order pursuant to s 65 of the GA Act to secure C's estate. The order appointed the Public Trustee and authorised the exercise of the functions of a plenary administrator. R was directed not to act under the EPA until further order of the Tribunal.

[14] Letter to Tribunal dated 23 December 2023.

[16] Section 44(5) of the GA Act provides that the Public Advocate may only be appointed as guardian of the represented person where there is no other person who is suitable and willing to act.

Administration Act 1990

CITATION : C [2025] WASAT 113

Member Child further stated at [47]:
1. In Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268 His Honour, EM Heenan J when considering other provisions of the GA Act described at [43] - [44] the protective intention of the GA Act when considering dispositions which might be made:
  1. ... it is obvious that the legislation is designed for the protection of adult persons whose faculties may be impaired, for any reason, and who are therefore in need of protection and assistance so as to ensure that their financial affairs and other welfare is not jeopardised by improvident, or ill-considered personal decisions or action, or by unscrupulous or ill-advised influence of relatives, friends and others who may deliberately or inadvertently exploit the vulnerability of the person in need of assistance and protection.
  2. ... The emphasis is on conserving the property and financial resources of the disabled person to ensure that they are available for his or her own needs, welfare and enjoyment and are not dissipated. These seem to be the primary objectives of the legislation and all the provisions of the Act can be seen to have meaning and effect as leading towards the achievement of those purposes. In the main, these will be accomplished by conserving the resources and property of the person under administration for use to his or her own advantage or, in cases where expenditure or imminent disposition of property are necessary or advantageous, by scrutinising the transaction to see that it is justifiable or provident having regard to all the circumstances, bearing always in mind the continuing and future needs of the person whose estate is under administration.
  3. ... the protective intent of the legislation is clear.
C's lack of capacity reinforces R's fiduciary obligations to her because of her complete reliance and dependence on her. Although R may have acted without unscrupulous intent she has not fulfilled the obligations upon her.
Firstly, R lodged a confusing assortment of undated, poorly identified bank accounts and an incomplete list of financial records in response to Tribunal orders. These materials show many unexplained withdrawals from C's accounts. Transactions during C's lengthy hospitalisation and the payment of utilities and rates for properties which C does not own raise particular concerns which R did not satisfactorily clarify.
R has failed to keep and preserve accurate records and accounts of all dealings and transactions made under the EPA in breach of the legal obligations under the GA Act
Secondly, R has not acted with reasonable diligence to protect C's interests. She has used the majority of C's estate to enhance the value of her own property without consideration for her future needs or personal wishes regarding her son.
Prior to losing capacity, there is no evidence that C intended to give R a large amount of money. To the contrary, her written wishes were to leave her entire estate to her disabled son.[14] The EPA makes no specific provision for gifting.
R's decision to build a granny flat on her property entirely at C's expense gave rise to an obvious conflict, which she did not dispute. The fact that C would be able to live on R's property and gain benefit from this decision did not eliminate the conflict.
R could have taken steps to address the conflict but did not. She could have sought directions from the Tribunal before entering into the building contract.[15]
R was aware of the conflict of interest and had consulted a lawyer about drafting a deed declaring the granny flat a gift from C to R. This did not proceed but the conflict was clearly apparent. There is no evidence that R sought independent legal advice on C's behalf or intended to repay her estate for the significant value she received.
There is no evidence that R weighed up any other relevant considerations on C's behalf, such as:

C [2025] WASAT 113 (16 October 2025)

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