Re ZHP [2025] SACAT 90 (4 April 2025)

• The applicant is a suitable person to be the protected person's guardian. Special powers orders continue to be required for the safety and wellbeing of the protected person.
• The administration order is revoked and the enduring power of attorney is re-enlivened. The Tribunal's consideration in the original decision that formal management by way of an administration order was an appropriate measure to ensure management of the estate in the absence of evidence that the previous informal arrangement under the power of attorney was not appropriate is not supported. Increased supervision is not necessarily equated with a better outcome for the protected person. The protected person's pre-existing wishes insofar as they were competently expressed should be given effect.

Internal review - Guardianship and administration - Guardianship orders - Variation of guardianship order - Variation of identity of guardian - Suitability of appointee

Internal review - Guardianship and administration - Administration orders - Revocation of administration order - Where valid enduring power of attorney

Guardianship and Administration Act 1993 ss 32, 50, 57, 64

South Australian Civil and Administrative Tribunal Act 2013 s 70

Mr A Bickle, Legal Services Commission, appeared on behalf of the protected person

Ms E Dibden appeared on behalf of the Public Advocate

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Made under the Guardianship and Administration Act 1993 s 64(c)

Made under the Guardianship and Administration Act 1993 s 64(c) and the South Australian Civil and Administrative Tribunal Act 2013 s 70(6)(b)

Made under the Guardianship and Administration Act 1993 s 64(c) and the South Australian Civil and Administrative Tribunal Act 2013 s 70(6)(a)

Made under the Guardianship and Administration Act 1993 s 64(c) and the South Australian Civil and Administrative Tribunal Act 2013 s 70(6)(c)(i)

1. This matter is an internal review of a decision made in relation to the guardianship and administration of the protected person, ZHP. The protected person has been represented by Mr Bickle of the Legal Services Commission throughout these proceedings, and represented him in person in the full hearing.
2. The application for this internal review is brought by the protected person's son, QRD, who primarily submits that the Tribunal erred in appointing the Public Advocate as guardian and that it erred in making an administration order. The applicant contends that he should be appointed guardian of his father in place of the Public Advocate and that the administration order should be revoked.
3. There have been three decisions made by the Tribunal under the Guardianship and Administration Act 1993 ('G&A Act') and South Australian Civil and Administrative Tribunal Act 2013 ('SACAT Act') concerning the protected person that are relevant to consider for the purposes of this internal review.
4. The first decision was made on 25 October 2024. It resulted in the Tribunal making a limited guardianship order appointing the Public Advocate as guardian of the protected person (limited to accommodation and home services decisions), the authorisation of special powers under s 32(1)(a) and (b) of the G&A Act (directing place of residence and authorising detention, respectively), and the making of a full administration order with QRD appointed as administrator.
5. The second decision made on 23 January 2025 led to short-term variation orders made in response to an urgent application by professionals caring for the protected person, to expand the guardianship order and extend the scope of the authorisation of special powers. This resulted in the Public Advocate being made full guardian of the protected person, and the authorisation of use of such force as may be reasonably necessary for the purpose of ensuring the protected person's proper medical or dental treatment, day-to-day care and well-being. Given that these were orders made urgently without notice, they were in force for a short period only and the original expiration date of the variation was 13 February 2025.
6. The day after these orders were made, on 24 January 2025, a directions hearing was held before me in this matter to set down directions regarding the full hearing of the internal review. All parties on this occasion agreed that it would be convenient that the orders made on 23 January 2025 should operate until review on the full hearing date of 4 March 2025, as opposed to the scheduled earlier review date of 13 February 2025. This necessitated a fresh order made under ss 30 and 32 of the G&A Act. As a result, on 24 January 2025,[1] orders were made that varied the guardianship order made on 25 October 2024 with the effect that the Public Advocate was appointed full guardian and authorisation of the exercise of the special powers listed in s 32(1) (a), (b) and (c). Practically speaking, this did not change the effect of the 23 January 2024 orders but changed the expiry of these orders from 13 February 2025 to 4 March 2025, the date of the full hearing.

1. When the matter came on for hearing of the internal review, the parties had substantially agreed on its disposition.
2. Having had regard to the evidence that was filed prior to the hearing, the written submissions filed by the applicant and respondent, a statement from the protected person's representative, and an updated medical report by the protected person's treating medical practitioner, I was in a position to assess the appropriateness of the proposed resolution of the internal review.

Variation of the guardianship order such that the identity of the guardian is varied

1. The parties agreed, and the Tribunal finds, that a full guardianship order remains appropriate for the proper care of the protected person in light of his medical condition. The parties agreed, and the Tribunal finds, that the orders of 24 January 2025 appointing the Public Advocate of the full guardian should be varied such that the Tribunal appoints the applicant as the full guardian of the protected person.
2. Given the agreement of the parties, it is not necessary to rehearse the submissions or evidence in any detail. I am satisfied that a full guardianship order continues to be necessary in relation to the protected person by virtue of his ongoing and deteriorating dementia.
3. The evidence supports the conclusion that the applicant meets the criteria for appointment as a guardian under s 50 of the G&A Act, with no party disputing this. The report of the protected person's delegated guardian,[2] supports his appointment. I have also considered the statement submitted by Mr Bickle on behalf of the protected person.[3] It is evident that the protected person would have wanted his son to have as great a role in his care as possible, and that continues to be his expressed wish.

1. The respondent submitted that the authorisation of all three special powers, in accordance with variance on 23 January 2025, should remain in place. The applicant made no submission on internal review in relation to the appropriateness of the special powers orders and deferred to the expertise of the protected person's medical team, and the Tribunal.
2. Mr Bickle was unable to obtain instructions from the protected person on this point, however, he observed that it was consistent with his interactions with the protected person that he would likely oppose the use of force to prevent him from expressing his autonomy. He submitted that there should be clearly identifiable reasons if the authorisation were to remain.
3. I accept the respondent's submissions as to the need to retain the authority for use of special powers.[4] There is clear support in Dr Huang's report for the continuation of special powers (a) and (b) in regard to direction as to residence and detention due to the protected person expressing his wishes to leave the facility. Additionally, on 20 February 2025, hospital staff were consulted about special power requirements for the protected person. They stated that the protected person tended to try to leave the hospital which created a significant risk of harm to himself. Despite there having been a recent willingness, since the protected person moved from hospital to a residential aged care facility, to comply with directions not to leave, Dr Huang noted the protected person's 'significant history [of] refusal of medications'. In the past, this has led to him refusing to consume food and I accept that there is a malnutrition risk if this occurred in the future.
4. While I take into consideration the understandable concern of Mr Bickle in regard to the protected person's likely opposition, I am satisfied that the medical evidence presented before the Tribunal supports that for the welfare of the protected person I should affirm the order of the Tribunal authorising all three special powers set out in s 32 of the G&A Act.
5. I note that there has been changed circumstances in that the protected person was transferred to a residential aged care facility. In accordance with s 57 of the G&A Act, there must be a review of the person's circumstances with a view to the need to revoke or vary or affirm the orders. Such a review can occur in a manner that the Tribunal thinks fit. I consider that the internal review process has addressed the matters that would otherwise have been address on a s 57 review. I will therefore order that the review date for the special powers orders will be six months from the date of this full hearing. If the need arises, an application to vary or revoke is available to the parties.

1. A full administration order was made on 25 October 2024, whereby the applicant was appointed administrator. Prior to this, in January 2014, the protected person appointed his son as his attorney, under an Enduring Power of Attorney. The scope of the substitute decision-maker's powers is, of course, different.
2. On the internal review, Mr Bickle expressed the view that the protected person had demonstrated, by the appointment of an attorney, his wish that his son be able to make decisions on his behalf. Mr Bickle submitted that as s 5 of the G&A Act provides that paramount consideration must be given to the wishes of the protected person, he contended that the protected person's decision made prior to his incapacity is indicative of the protected person's wish for this to prevail over a formal administration order. Mr Bickle put forward that the common law presumption is that in absence of evidence to the contrary, capacity is presumed. He pointed to the financial transactions entered into together by the protected person and his son when the former had capacity, suggestive of his positive attitude towards his son in respect to financial affairs.
3. The respondent did not advance a particular view on this issue. Although the respondent noted that the enduring power of attorney was put in place some time ago, reference was made to the report of Ms Gac which notes that there are no identifiable concerns regarding protected person's relationship with his son.
4. I adopt Mr Bickle's reasoning and do not accept the approach taken in the original decision that increased supervision is necessarily equated with a better outcome for the protected person. The protected person's pre-existing wishes insofar as they were competently expressed, should remain in force in the absence of evidence to not comply with them. I also take into account the report of Ms Gac which reflects positively in respect of QRD's interactions as administrator, with her as delegate guardian.
5. I will revoke the administration order made on 25 October 2024. As the enduring power of attorney was never revoked, the effect is that the applicant may rely upon it in respect of future actions taken on behalf of his father that are consistent with the terms of the instrument.

1. The Tribunal grants leave to proceed with the internal review.
2. The guardianship order made on 24 January 2025 is varied with the effect that the applicant, QRD, is appointed the full guardian of the protected person, ZHP.
3. The special powers orders made on 25 October 2024, and as varied on 24 January 2025, are affirmed.
4. Order 3 above shall be reviewed on or before 23 July 2025.
5. The administration order made on 25 October 2024 is revoked.

[1] Note that these orders were made orally on 24 January 2025 but the written record of the orders was signed on 29 January 2025. These are referred to in these reasons as the 24 January 2025 orders.

[4] Dated 24 February 2025 at [43]-[50].