PK [2025] WASAT 73 (18 July 2025)

Guardianship and Administration Act 1990 (WA), s3, s 17A, s 44(2), s 44(2)(a), s 44(2)(c), s 110ZD

State Administrative Tribunal Act 2004 (WA), s 32(2), s 32(4)

Appointment of private medical treatment guardian revoked

Public Advocate appointed guardian for all functions

1. When PK was in her early 50s, she was diagnosed with early onset dementia due to alcohol use, which is sometimes referred to as Korsakoff's dementia. PK is now in her mid-50s and shares two children with her former husband CR; daughter JA who is now aged 21 and son LA who is now aged 20.
2. PK was hospitalised in 2022 for six months. When the Tribunal made orders for PK in early 2023, CR was appointed her guardian for all functions, save for accommodation, which was held by the Office of the Public Advocate (Public Advocate) as PK's family and treating team had different views about where she should live when she was discharged from hospital. PK moved into supported accommodation in early 2023.
3. PK's specialist support coordinator (Coordinator) applied for the first review of the guardianship order, and the Public Advocate was appointed as PK's guardian for all functions in October 2023. At the second review in early 2024, CR was appointed as PK's medical treatment guardian and the Public Advocate retained all other functions.
4. This is the third review of the guardianship order. This review was sought by the Coordinator due to CR's management of PK's medical treatment. PK was scheduled to undergo surgery in March 2025 but CR could not be contacted to provide consent and the surgery had to be postponed.
5. CR wanted to remain PK's medical treatment guardian. JA also proposed herself as her mother's medical treatment guardian. LA proposed himself as his mother's guardian for all functions. Following the review, I appointed the Public Advocate as PK's guardian for all functions. These are my reasons for doing so.

1. The primary concern of the Tribunal when making decisions under the Guardianship and Administration Act 1990 (WA) (GA Act) is the best interests of the person for whom the application was made, PK. The Tribunal must ascertain PK's views and wishes, as far as possible.
2. The starting point for the Tribunal is that every person is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments about matters relating to their estate and their person. If this 'presumption of capacity' is set aside by cogent evidence, the Tribunal can consider making guardianship and administration orders.
3. The Tribunal must consider whether PK's needs could be met by other means less restrictive on her freedom of decision and action. If the Tribunal makes an order, the order needs to impose the least restrictions possible on her.
4. The Tribunal will take all facts and circumstances into account when determining PK's best interests. The Tribunal may inform itself on any matter as it sees fit, and is not bound by rules of evidence, which ensures, as far as possible, that all relevant information can be considered by the Tribunal to make the correct decision in PK's best interests.[1]
5. CR and JA attended the Tribunal hearing of 10 April 2025 in person, as did PK's guardian from the Public Advocate (Guardian). The Coordinator attended by videolink. LA and CR's brother PT, who shares a close relationship with PK, attended by telephone. PK did not attend as she was due to be discharged from hospital on the day of the hearing and she had been experiencing escalations in her mood. PK has significant hearing loss, so would have found it difficult to engage in the hearing by telephone or by videolink. It was determined by the Coordinator that it was not worth the risk to PK's health and safety to attend the hearing in person on the same day she was being discharged from hospital.
6. I have taken into account the oral evidence given at the hearings in 2023, 2024 and 2025, and the written evidence filed in the proceedings in 2023, 2024 and 2025. The relevant features are summarised in these reasons.

1. When deciding whether to appoint a guardian, the Tribunal must first determine whether PK lacks the capacity to make decisions about her personal matters. If so, the Tribunal will consider whether it needs to make an order, or whether there is another way for decisions to be made that is less restrictive on PK's freedom of decision and action. If the Tribunal needs to make orders, the Tribunal must then decide who the guardian will be, the functions or powers they require and when the order will be reviewed.
2. The issues for the Tribunal to decide at this review is whether CR should continue to be PK's medical treatment guardian, whether JA should be PK's medical treatment guardian or whether LA should be her guardian for all functions.

1. At the hearing in March 2024, PK stated that she did not want CR to make decisions for her and she would prefer the Public Advocate to make her decisions, although her view was that ultimately, she could make her own decisions. CR was appointed as her medical treatment guardian because he had known her the longest and had a thorough understanding of her history.
2. While PK did not attend the hearing in April 2025, she expressed her view to her Guardian and the Coordinator that she did not want CR to be her decision-maker or be involved in her life. The Coordinator reported that PK told her that the most important things in her life were her children and that she spoke of her love for her children often.
3. CR and PK separated prior to her becoming unwell and I acknowledge that CR feels a close bond to her. It appears that PK's attitude towards CR may be influenced by the paranoia she experiences due to her illness. In 2023, PK believed that she was living in National Disability Insurance Scheme (NDIS) supported accommodation because CR had an affair.[2] The Coordinator described how in the three years that she has known the family, PK has always felt an innate distrust towards CR. The Coordinator recalls that:[3]

(a) PK told her that the first time PK was admitted to Hospital A was because CR drugged her beer; and

(b) when PK and the Coordinator were driving through a forest, PK told the Coordinator that CR was after her because he was going to bury her in that forest.

1. The Coordinator confirmed that these things were not true, but PK would confabulate, go back in time and become angry at CR about things that may or may not have happened, due to their long history together. In 2025, PK would still become distressed and agitated when talking about CR.[4] The family's view is that when she is with them, she displays no anger towards CR and wants him to be her guardian.
2. The GA Act requires that, when considering who to appoint as guardian, I must take PK's views and wishes into account.[5] As PK's view expressed to the Tribunal about not wanting CR to be her decision-maker has been consistent for more than one year, and there is evidence discussed later in these reasons that surgery was postponed due to CR being uncontactable, I will follow PK's views and wishes when determining this application and appoint the Public Advocate as her decision-maker for all functions.

1. The facts set out in [19] to [30] are not controversial and I make findings in accordance with those facts.
2. CR and PK met in the 1990s, backpacking as young adults. They married in 2000. JA and LA were born in 2004 and 2005 respectively. CR and PK separated in 2009 but are still legally married.[6] They jointly own the Family Home.
3. PK has a long history of issues with alcohol. CR recalls that her drinking and associated illnesses worsened between 2019 and 2022. Throughout 2020 her alcohol consumption increased to around 10 beers per day, which was exacerbated by the COVID-19 pandemic. By mid to late 2021, her intake had further increased to over 20 beers per day. Her physical health deteriorated in 2021 and CR noticed that her memory and cognitive abilities declined significantly.[7]
4. PK was admitted to Hospital A in June 2022 when she was experiencing paranoid thoughts that CR gave her medications that she should not have. She also reported to staff that she had ovarian cancer, and that LA had tried to strangle her. PK called the police and was transferred to Hospital A by ambulance. CR and JA had attempted to have her admitted to hospital on a few occasions prior to this admission due to their concern about her.
5. In 2022, PK was described as highly confused on the mental health unit at Hospital A and not oriented to time, person or place. She experienced 'sun downing' in the afternoons which caused an increase in confusion, anxiety and aggression. Her paranoia involved people 'planting drugs' on her and that her home was 'bugged'. She would sometimes report that she was in jail or in another country.[8]
6. PK was admitted to Hospital A to wait for approval for the NDIS. She received a plan that included supported independent living (SIL) and funded supports of around $503,000.[9] However, the family wanted PK to be discharged to the Family Home so they could care for her at home with supports.[10] The treating team's view was that PK should move to SIL accommodation. In late January 2023, Hospital A applied to the Tribunal for guardianship and administration orders.
7. On 2 February 2023, the Tribunal appointed the Public Trustee as PK's administrator and the Public Advocate as her guardian to make decisions about accommodation. CR was appointed as her guardian to make decisions about medical treatment, services, NDIS restrictive practices and to liaise with consular authorities as PK was born overseas and is a citizen of Country C. The orders were to be reviewed in 5 years.
8. Seven months later, the Coordinator applied for a review of the February 2023 orders to seek that the services and medical treatment functions be given to the Public Advocate due to concerns that service agreements had not been signed, medical advice had not been followed and PK had been returned to the SIL accommodation intoxicated. CR did not agree with the allegations but acknowledged that PK had consumed one beer on a few occasions when he had taken her out.
9. At the review hearing in October 2023, the Public Advocate was appointed as PK's limited guardian for all functions, and a contact function was included, so that the Public Advocate could decide who PK would have contact with and the extent of that contact. CR sought a review of that decision before the Full Tribunal and proposed that he and JA be appointed as PK's limited guardians.[11]
10. In early 2024, PK moved to a different SIL accommodation which was closer to the Family Home. Due to the inclusion of the contact function on the guardianship order in October 2023, from then on, PK was always accompanied by a carer when she left the SIL accommodation. This was so that if PK wanted alcohol while she was out with her family, the carer could say 'no' and this would prevent the family from being put in an uncomfortable situation.
11. In March 2024, the Full Tribunal reviewed the October 2023 orders and appointed CR as the limited guardian to make medical treatment decisions and the Public Advocate to make decisions about accommodation, services, contact, NDIS restrictive practices and to liaise with consular authorities.
12. The current application was filed by the Coordinator to review the March 2024 orders due to concerns that CR was difficult to contact and did not give consent to medical procedures in a timely manner. Surgery was scheduled for PK in March 2025 and PK consented to the surgery but CR could not be reached to give consent. While waiting at hospital as staff attempted to reach CR, PK became highly distressed and ran into traffic in a hospital gown and assaulted support and medical staff.
13. I next turn to explore whether PK can make decisions about her personal matters.

Does PK lack the capacity to make personal decisions?

1. To appoint a guardian for PK, I must be satisfied that she is over 18 years of age and that one or more of the following criteria apply:

(a) she is incapable of looking after her own health and safety;

(b) she is unable to make reasonable judgments in respect of matters relating to her person; or

(c) she is in need of oversight, care or control in the interests of her own health and safety or for the protection of others.

1. I am satisfied, and I find, that PK is currently incapable of looking after her own health and safety. In mid-2022, occupational therapist Ms T recommended that PK needed 24-hour supports to assist with self-care, domestic tasks, household management, medication management, meal preparation and community access.[12] I accept the evidence from Ms T and note that PK continues to reside in 24/7 supported accommodation and now needs more support and supervision, which is discussed further below.
2. I am satisfied, and I find, that PK is currently incapable of making reasonable judgments in respect of her person. The Coordinator's evidence, which I accept, is that PK consistently denies having any memory or cognitive issues and states that her memory is strong and that she does not require support, which is not consistent with her observed functioning and the level of support she requires in her daily life. PK is unable to recognise the extent of her cognitive impairment or understand why the treatment, support and accommodation arrangements are necessary for her safety and wellbeing.[13]
3. I am satisfied, and I find, that PK needs oversight, care or control to protect her health and safety. As PK's behaviours of concern are increasing, that the Coordinator mentioned that PK's team are now looking into more 'robust' housing options to keep her, her housemates and staff safe. I accept that evidence from the Coordinator and the family confirmed that they had also considered robust housing.
4. I am satisfied, and I find, that the presumption of capacity has been set aside in relation to personal decisions and PK is a person for whom I can appoint a guardian. I next turn to explain why I am satisfied that PK is in need of a guardian. I must bear in mind the need to adopt a less restrictive option if possible.

1. Depending on the types of decisions a person needs made, informal arrangements can sometimes suffice. Section 110ZD of the GA Act sets out a hierarchy of family members that can make medical treatment decisions for other family members.[14] PK is legally married and has two adult children. However, I am satisfied informal arrangements are not appropriate in this case as PK requires someone to have the legal authority to make a number of different types of decisions.
2. The evidence before me is that PK has not signed an enduring power of guardianship. The medical evidence from January 2023 confirmed that PK did not have the capacity to sign such a document. I am satisfied that there are no less restrictive means available by which the kinds of decisions which need to be made for PK can be made. The Tribunal must appoint a guardian with those functions.
3. I next turn to discuss who should be appointed.

1. When considering the appointment of a guardian, the Tribunal must hold the opinion that the proposed guardian will act in PK's best interests, is not in a position where their interests conflict or may conflict with her interests and is suitable to act as the guardian.
2. When assessing suitability, the Tribunal must consider:[15]

(a) the desirability of preserving existing relationships within PK's family;

(b) the compatibility of the proposed guardian with PK;

(c) whether the appointment is consistent with PK's wishes; and

(d) whether the proposed guardian can perform the functions vested in the guardian.

1. CR is the current medical treatment guardian and wishes to remain so. I find that CR is over the age of 18 years and has consented to act as the guardian. JA and LA have also proposed themselves as PK's guardian. I find that they too are over the age of 18 and have consented to act. I will first discuss CR's nomination for appointment.

CR's nomination for appointment as medical treatment guardian

1. The difficulty experienced by service providers and PK's treating team when trying to reach CR have been consistently described in documents filed with the Tribunal in 2023, 2024 and 2025. CR explained that he has two mobile telephones and the first phone does not accept calls from private numbers. The second phone does accept private numbers. This means that anyone calling the first phone from a private number cannot reach him. This specific issue was discussed and acknowledged at the hearing in October 2023.[16]
2. CR has continued to give the first phone number to treating health professionals despite knowing that:

(a) they cannot reach him if they call on a private number; and

(b) such professionals are likely to call him on a private number.

1. I am satisfied that CR cannot perform the function of a medical treatment guardian as he has not taken steps to ensure that he is contactable by the relevant professionals. I accept the evidence from the Coordinator and the Guardian that PK's surgery that was scheduled for March 2025 had to be postponed to April 2025 because CR could not be reached to provide consent to the surgery.
2. In addition, PK has been very clear for more than one year that she does not want CR to make her decisions. As mentioned earlier, while this may be caused by paranoia related to her illness, the distress PK feels is real to her. I accept the evidence of the behaviour support practitioner, Ms D, who has recently observed PK as agitated and upset when talking about CR.[17] It is not in PK's best interests to be distressed, and I am satisfied that she is not compatible with CR. This means that I am unable to find CR suitable to be appointed as her medical treatment guardian.

JA' s nomination for appointment as medical treatment guardian

1. JA is now aged 21. She impressed me as an intelligent and articulate young woman who has a high level of insight into her mother's illness and the level of support that she requires.
2. I explained to JA my concerns about how appointing her as a decision-maker might cause PK to view JA with the same level of mistrust that PK now views CR. JA stated that the relationship with her mother had been fraught for some time because of PK's alcoholism and dementia. JA did not believe that the relationship could deteriorate any further, and JA wanted to be involved because she loved her mother, not because her mother was kind to her. JA's view was that even if her mother was not happy with her making decisions and the relationship was damaged, it would bounce back because, due to her dementia, PK would likely forget.
3. While JA may be correct that her relationship with her mother would not change, PK's current behaviour is based on a clear love and connection with her children, particularly JA. It appears that the relationship between PK and JA is the most close and loving relationship PK is capable of having with anyone.
4. I am concerned that appointing JA could cause PK to mistrust JA, who is acknowledged to be the person to whom she is closest. I therefore find that it is not in PK's best interests that JA be appointed as her medical treatment guardian. I am unable to find JA suitable for appointment as her mother's guardian at this time on that basis.

LA' s nomination for appointment as guardian for all functions

1. LA is proposing himself as PK's guardian for all functions. The Coordinator gave evidence at the hearing that PK is having significant behavioural issues. A recent example was where she ran out onto the road and was followed by security guards from the hospital and her support workers. LA's view is that the restrictions on PK's freedom are causing her behavioural issues, as she cannot choose where she lives, who she lives with and when she can go out. LA was confident that PK's behaviour would improve if some of the restrictions were lifted, as she tries to escape because she feels trapped. LA stated that if he was the guardian, he would remove many of the restrictions.
2. LA explained that his understanding of dementia is that it can stabilise and will not progress as quickly if the person is living in a stress-free environment. LA also discussed the possibility of PK moving back to the Family Home if funding was provided to make the home safer, acknowledging that CR would have to move out as the Family Home only has three bedrooms.
3. LA acknowledged that he needed time to learn about what is involved with being a guardian. The Coordinator stated that training was available, which she was happy to arrange, so the family could learn more about dementia. The Coordinator invited both JA and LA to attend the multidisciplinary meetings so they could obtain a greater understanding of the matters that are discussed in terms of PK's support requirements, accommodation and health issues. The Coordinator confirmed that CR had been invited to participate in all multidisciplinary team meetings concerning PK's care but had not attended.[18]
4. I am satisfied that LA does not have a sufficient understanding of PK's illness to be appointed as her guardian as his views are not consistent with the weight of the medical and allied health evidence. LA's view that PK needs more freedom demonstrates, in my view, that he lacks an appreciation of how her disability causes her behaviour and the level of protection she requires. I am unable to find LA suitable to be appointed as PK's guardian.
5. I find that the only option open to the Tribunal is to appoint the Public Advocate as PK's guardian.

1. PK requires a medical treatment guardian to give informed consent to medical treatment and procedures. I accept the evidence from the Coordinator that PK would refuse all medical interventions due to her lack of insight into her condition and her strong distrust of medical professionals. She has a significant memory impairment and cannot retain or recall medical information or conversations. PK is therefore at significant risk of untreated or poorly managed medical conditions if she does not have a medical treatment guardian.[19]

1. One of the issues with the surgery that was scheduled in March 2025 was that on a previous occasion, CR gave informed consent to the surgery but PK did not consent. Even though a guardian can give informed consent to the doctors for the surgery to occur, the doctors will respect the patient's bodily autonomy if they refuse to have surgery.
2. As PK has refused surgery in the past, I am satisfied that it is in PK's best interests that I include a function that will allow the guardian to give consent to the use of necessary restraints to give effect to a decision of the guardian, after all available less restrictive alternatives have been considered and found not to be successful. Where restraint is proposed, a medical plan must be developed setting out the purpose and circumstances under which restraint is to be used.

1. PK requires a guardian to make decisions about services, specifically in relation to the management of her complex NDIS plan to ensure she has the supports she requires as her needs change over time.

1. The Guardian described a recent discussion about changing PK's medication to regulate her behaviour due to her outbursts, loss of control and possible injury to PK's house mates, staff and damage to property. A restraint management plan may be implemented for the safety of PK and others. Consideration is also being given to installing robust fittings at the existing SIL accommodation and if this is not successful, then a move to new accommodation with more robust fittings in place may be needed. The guardian therefore needs the authority to give or withhold consent to any restrictive practices proposed for PK in a behaviour support plan.[20]

1. PK requires a guardian to make decisions about her accommodation. The current evidence is that PK's escalating behaviours may require her to move into robust SIL accommodation. CR stated that he and LA had discussed constructing a purpose-built robust home for PK at the site of the Family Home, which is a duplex block. The Coordinator mentioned that specialist disability accommodation funding could be sought to pay for the build as the family already has the land. The Coordinator was agreeable to applying for that funding as a change in circumstances.

1. The contact function was added to the guardianship order in October 2023. The director of the SIL accommodation where PK was living at the time noted that on some occasions when PK returned from visits with CR, she would smell of alcohol, would have slurred speech and was unsteady while walking.[21] PK's behaviours would escalate, resulting in verbal and physical displays of aggression towards property and staff. CR acknowledged that PK had a beer on 'a few occasions' when he took her out.[22] He denied that she was intoxicated when she returned.
2. As mentioned earlier in these reasons, PK has been accompanied by a carer when leaving her SIL accommodation since October 2023 to ensure that PK could not access alcohol and to protect the family from being put in an uncomfortable situation by having to say 'no'.
3. CR expressed frustration that the family cannot take PK out without a carer. CR's view is that family members or friends should be able to attend PK's SIL accommodation at any time to take her out without a carer as PK should manage. JA confirmed that they would watch PK when they take her out to make sure she does not run away. LA's view was that PK's behaviour is caused by her not wanting to be with carers and that running off is an act of retaliation.[23]
4. The Coordinator noted that if CR, JA and LA were more frequently involved in the multidisciplinary meetings and attended training, there would be documentation to show that they understood her disability. It would then be more likely that a recommendation could be made that PK could spend time with her family without a carer present.
5. I am satisfied that it is in PK's best interests that her guardian has the authority to decide who she will have contact with and the extent of that contact.

1. PK is a citizen of her country of origin, Country C. Her elderly relatives still live in Country C, so PK may travel to Country C in the future. This function is therefore necessary so that her guardian can make the necessary arrangements.

1. The Tribunal is required to fix a period for the review of the order, the maximum period of time allowed being five years. The medical evidence is clear that PK has a diagnosis of a progressive illness such that she will need a guardian for the rest of her life. However, the administration order is due for review on 1 February 2028 so I will set the review date for the guardianship order at the same time.

1. The Tribunal declares that the represented person, [PK] is:

(a) incapable of looking after her own health and safety;

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

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

1. The guardianship order dated 25 March 2024 is revoked and substituted with the following order.
2. 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;

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

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

(d) to determine what contact, if any, the represented person should have with others and the extent of that contact;

(e) to determine the services to which the represented person should have access;

(f) to decide whether to give or withhold consent to the use of any restrictive practices proposed in any behaviour support plan developed from time to time for the represented person in compliance with the requirements of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018.

(g) to decide whether to give or withhold consent to the use of restraint to give effect to a decision of the guardian made pursuant to these orders and in the interest of the represented person's health and safety, on the following basis:

(i) where restraint is proposed, a medical plan must be developed setting out the purpose and circumstances under which restraint is to be used. The plan must be approved by a medical practitioner and, if it remains in place, be regularly reviewed; and

(ii) a decision to use restraints should be made only after all reasonably available less restrictive alternatives have been considered and found not to be successful; and

(h) to liaise with the represented person's administrator, any airline or other transport organisations, and any state, federal or consular authorities as required to complete the functions under this order.

1. 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.
2. The guardianship order is to be reviewed before 1 February 2028.

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

[1] State Administrative Tribunal Act 2004 (WA), s 32(2) and s 32(4).

[2] Service provider report by Ms D, the positive behaviour support practitioner (Ms D) dated 25 September 2023.

[4] Service provider report by Ms D dated 2 April 2025.

[6] Submissions filed by CR dated 1 December 2023 at [6] - [21].

[7] Submissions filed by CR dated 1 December 2023 at [37] - [40].

[8] Report by Occupational therapist Ms T dated 28 June 2022.

[9] Service Provider Report of Ms C of Hospital A dated 18 January 2023.

[10] Application filed by Hospital A on 18 January 2023.

[11] This review was pursuant to s 17A of the GA Act. These reviews are heard by a panel consisting of a Judicial member of the Tribunal and two members.

[12] Report by Occupational therapist Ms T dated 28 June 2022.

[13] Service provider report by the Coordinator dated 4 April 2025.

[14] Section 3 of the GA Act sets out the hierarchy in further detail.

[17] Service provider report by Ms D dated 2 April 2025.

[18] Service provider report by the Coordinator dated 4 April 2025.

[19] Service provider report by the Coordinator dated 4 April 2025.

[20] Report of Guardian dated 4 April 2025.

[21] Service provider report by Ms B, director of the SIL accommodation provider dated 20 September 2023.

[22] Submissions filed by CR dated 1 December 2023 at [106].