RS [2025] WASAT 59 (20 June 2025)

1. I am grateful to RS for attending the hearing on 3 June, particularly given that he thought the hearing was unnecessary and that the applications should be dismissed.
2. At the start of the hearing, he made it clear that he did not think he needed help in decision-making. As the hearing progressed, he was not able to answer questions that required detailed recall and it was apparent that the process was distressing for him.
3. The Public Advocate's delegate visited RS the week before the hearing. His evidence was that RS considers the house where he currently lives as his permanent address, and he expects to remain there indefinitely. His needs were being met, with his wife taking on anything he has difficulty with. When they need anything more, they have S and G (their two older children) nearby to help and there is no need for a guardian to be appointed.

Is RS a person for whom I can make a guardianship or administration order?

1. RS, like every other person that comes before the Tribunal in guardianship matters, is presumed to be capable of making reasonable judgments in matters relating to their person until the contrary is proven to the Tribunal's satisfaction.[4]
2. Before appointing a guardian, I must be satisfied that RS is:

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

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

(c) in need of oversight, care or control in the interests of their own health and safety or for the protection of others;[5] and

(d) I must also be satisfied that he is in need of a guardian.[6]

1. Before appointing an administrator, I must be satisfied that RS is:

(a) unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate;[7] and

What did the medical professionals say about RS's capacity?

1. RS was diagnosed with mixed Alzheimer's and vascular dementia in mid-2022 by a geriatrician. The geriatrician's letter provides that RS's presentation is most consistent with a mixed Alzheimer's and vascular dementia with the behavioural and psychological symptoms of dementia. RS scored 11/30 on a Montreal Cognitive Assessment, which is consistent with a moderate cognitive impairment.
2. RS's radiology results in May 2022 demonstrated severe generalised cerebral and hippocampal atrophy likely to have an Alzheimer's component, with the possibility of vascular dementia.
3. Dr S, RS's previous general practitioner (GP), provided a medical report with the proviso that she has not seen him since September 2022. Her evidence was that it was 'highly unlikely' that RS would be capable of making reasonable decisions in relation to medical treatment or services. She said that he was incapable of making reasonable decisions about his finances.
4. Ms R, an occupational therapist who treated RS in 2024 provided a service provider report. Her evidence is that RS has been diagnosed with dementia of vascular and Alzheimer's aetiology. She said that RS was no longer making financial decisions, with Mrs S managing payment of bills with the help of his daughters. She also said that RS would need assistance and prompting to follow medical interventions.
5. An aged care assessment conducted in November 2024 notes that RS's family (Mrs S and daughter S were present at the assessment) had noted a gradual decline in short-term memory. He scored 17/30 in a mini-mental state examination, with deficits in recall, orientation and praxis.
6. Dr C, RS's GP provided a medical report to the Tribunal. He answered that he was unsure to all the questions in the Tribunal's standard medical report and he made no reference to RS's diagnosis of dementia. This is surprising, given that the medical records subsequently provided by his office include the letters and reports outlined above.
7. An ambulance record from mid-May 2025 records that paramedics formed the view that RS was unable to make an informed medical decision.

Is RS a person for whom I can make a guardianship order?

1. I accept the clear and cogent evidence that RS does not have capacity to make reasonable decisions with respect to medical treatment decisions and services and I find that he is a person for whom I can make a guardianship order.
2. I accept that he was diagnosed with dementia in 2022. Whilst a dementia diagnosis, of itself, does not displace the presumption of capacity, I accept the evidence of the doctor and the occupational therapist that he is not capable of undertaking the cognitive process that cumulates in a reasonable decision. RS's short-term memory deficit means he cannot hold information to make decisions.
3. This is consistent with RS's presentation at the hearing. By the end of the hearing, he was tangential and confused, unable to answer questions that required detailed recall.

Is RS a person for whom I can make an administration order?

1. In order to appoint an administrator for RS, I need to be satisfied that he is unable, by reason of a mental disability, to make reasonable judgments in respect of all or part of his estate.
2. Dementia is a mental disability as defined in the GA Act.[7]
3. The GA Act also does not define 'reasonable judgments'. The meaning of that phrase involves both objective and subjective elements.
4. I must consider 'the extent to which a person with a mental disability is able to engage in the cognitive process that culminates in an ability to make a 'reasonable judgment' (which will vary from person to person and may include a lack of any observed ability)'.[8] That is the objective element.
5. I then must 'set that ability against the requirements of the person's individual estate and circumstances'.[9] That is the subjective element. RS must be unable to make reasonable judgments about his own estate, rather than the estate of an ordinary person.
6. An estate is a reference to the 'aggregate of a person's property their assets and liabilities and in practice encompasses the entirety of their real and personal property and all of their financial affairs'.[10]
7. In considering whether the presumption of capacity of the represented person is displaced and the represented person is a person for whom an administrator may be appointed I have had regard to the health professionals' evidence and that of the family of the represented person and the represented person's presentation in the hearing.
8. I accept the evidence of the consultants that RS has a mental disability, being mixed dementia of Alzheimer's and vascular mixed pathology.
9. As to whether or not RS remains able to engage in the cognitive process that culminates in an ability to make a reasonable judgment, the evidence in his aged care assessment and various outpatient clinic letters is that his short-term memory is impaired. His deficits in short-term memory mean that he is no longer able to retain information long enough to way up the risks of and benefits of particular decisions.
10. The evidence of Dr S is that he is not able to make reasonable judgments in relation to simple or complex financial matters.
11. This is consistent with the observations of occupational therapist that Mrs S is now attending to bills and finances. And, at the hearing RS was unable to answer questions put to him about whether he had visited a bank or settlement agent to affect his purported intent to combine his finances with Mrs S.
12. I find that because of RS's dementia, he is unable to engage in the cognitive process that culminates in an ability to make a reasonable judgment in respect of financial matters.[11]
13. It follows that he is a person for whom I can make an administration order.

Does RS need a guardian to make decisions for him?

1. In deciding whether RS is in need of a guardian, I must consider what his needs are and whether they can be met by any means less restrictive on his freedom of decision and action other than a formal appointment of a guardian.[12]
2. The evidence before me today demonstrates that RS is not capable of making reasonable decisions with respect to medical treatment and services.
3. The application to the Tribunal raises concerns that RS lives with a challenging family dynamic. The application states that Mrs S does not appear to have RS's best interests at heart and that the applicant's calls to RS were going unanswered.
4. Mrs S, daughter S and son G all filed written submissions and evidence. They agree with each other and their evidence is that RS's needs were being met at home with Mrs S. Mrs S's grandchildren gave evidence that she is a kind and caring person who is capable of looking after RS. G specifically requested that the Tribunal give RS and Mrs S the dignity of looking after their own matters.
5. Evidence was also filed, which I accept, which demonstrates that RS's needs are currently being met:

(a) the home in which he resides with Mrs S has accommodations built in, such as rails;

(b) a level 3 home care package in place, with Silver Chain visiting regularly;

(c) G and his wife C live 2 minutes away from RS and Mrs S and S is 5 minutes away. Should an emergency occur, help is easily available; and

(d) RS's strong preference is to remain at home and his needs are currently being met at home.

1. An ambulance report from 2 weeks ago was provided to the Tribunal. That report is helpful in supporting what the family has submitted. The report shows that RS had a fall, that an ambulance was called promptly and that Mrs S, daughter-in-law C and S were quickly on the scene. The ambulance officers identified that RS was not capable of making medical treatment decisions, but that Mrs S was available to make decisions on his behalf. The ambulance officers accepted her authority to make medical decisions on his behalf.
2. At the hearing, RS, Mrs S and both older siblings and their children, as well as the delegate of the Public Advocate all stated that they did not think a guardianship order was needed.
3. The applicant agreed that RS's health and safety is not currently at risk. She submitted, that whilst he does not currently need a guardian, he may well need one in the future, given his diagnosis. She had previously been the carer for RS during his separation from Mrs S and was concerned that she may be required to take responsibility for him in the future. However, she agreed that his medical, accommodation and services needs are currently being met.
4. With no difficulties reported, no apparent dispute within the family or from doctor and service providers in relation to current accommodation, services, and treatment, RS is not in need of a guardian.

1. Although acknowledging that it is against his expressed wishes, the Tribunal is satisfied that there is no less restrictive alternative to the appointment of an administrator for RS.
2. Less restrictive options are not available given:

(a) the fact that RS owns [Property] ('the Beach Property') and it is no longer his principal place of residence. Whether this property is to be rented out, or sold, RS requires an authorised substitute decision-maker to enter into the relevant agreements on his behalf as he is no longer able to do so; and

(b) the purported intention to re-combine finances with Mrs S, in particular the Beach Property.

Financial separation and purported intent to undo its effects

1. On this second point, much of the evidence filed at the Tribunal relates to the financial separation between RS and Mrs S. It is common ground that RS and Mrs S separated in 2021 and entered into a financial separation agreement by consent at the Family Court that year (Financial Separation). To implement the Financial Separation, the Beach Property was transferred solely to RS and another property was transferred solely to Mrs S.
2. The Applicant and her husband C said that it was RS's idea to financially separate. C said that RS had instructed a lawyer, who assisted in the separation process. There has been no evidence provided to displace the presumption that RS had the capacity to sign the separation agreement in 2021 (before his dementia diagnosis).
3. It is not the role of the Tribunal under the GA Act to make any findings in relation to the Financial Separation in 2021. However, the effects of the Financial Separation and any attempts to undo its effects are relevant to the question as to whether RS needs an administrator, and if so, who is suitable for that role.
4. Both S and G are of the view that the separation benefitted RS at Mrs S's expense. They are of the view that the financial separation was a mistake and that steps should be taken to undo the effects of the Financial Separation. RS and Mrs S both told me that they wish to remain together, and Mrs S has said she would like to re-combine finances.
5. Mrs S let me know that she and RS have been to the bank to discuss recombining their bank accounts. S told me that a settlement agent had visited their house to discuss transferring the properties. As of 30 May 2025, Landgate shows no change in titleholders on their website.
6. In taking these steps to correct the perceived injustice, Mrs S and the two older siblings, have not appreciated that RS no longer has the capacity to make such significant financial decisions. Whilst they have been able to organise/make arrangements on his behalf, there has been no recognition that he is no longer able to exercise judgment to decide whether or not steps should be taken to undo the effects of the Financial Separation, nor what particular steps should be taken to ensure his long­term financial security.
7. Because he no longer has capacity, RS will need an independent decision-maker to consider whether it is in his best interests to combine assets (transfer a share of the Beach Property to Mrs S, and in turn, obtain a share in the property in which he currently resides), and how his estate can be utilised in his best interests. This could foreseeably include signing a rental agreement with a tenant/s or transferring the property. In the absence of an enduring power of attorney only an administration order would allow this to occur.
8. Given that informal arrangements are insufficient to meet RS's needs, I am satisfied that he requires a substitute decision-maker to be appointed in relation to financial matters. I find that there is need for an administrator.

1. Having determined that an administrator is necessary, I am satisfied that it must be the Public Trustee.
2. I acknowledge that Mrs S has proposed herself for administrator and has been informally managing the household day-to-day expenses since their reconciliation (with help from her two older children). The delegate of the Public Advocate has suggested that, should an order be needed, Mrs S would be suitable for appointment.
3. However, only an administrator independent of the interests of the parties in dispute could take a wholly objective view of the best interests of RS in the context of the proceedings and in the assessment of his future financial needs.[13]
4. Mrs S's own interests may well be in conflict with those of RS. Whatever steps an administrator takes on RS's behalf would have a direct impact on Mrs S's finances. A decision which is in RS's best interests may be against her own interests. For this reason, I am not satisfied that she is suitable for appointment as RS's administrator.
5. Each of RS's children also indicated that they would be willing to act as his administrator.
6. The material filed by the parties including copies of text messages between the children of RS makes clear the level of conflict between them. It is also clear that a source of this conflict is financial. The conflict in itself is enough to suggest that none of them would be suitable.
7. Further, attempting to balance the needs of others with those of the represented person is not the role of an appointed administrator. There is an obligation on any administrator to place the interests of the represented person uppermost.[14] RS's children would understandably need to balance their mother's needs against those of RS.
8. RS's younger daughter, the applicant, LS, owns the land adjacent to the Beach Property. It would be difficult to manage the fiduciary obligations of an administrator against her own financial interests, if as administrator, she could combine properties for redevelopment potential.
9. The ongoing distrust and difficulties in communication between the siblings suggests that this indicates the need for an independent party to be appointed.

1. I have considered the extent of RS's dementia, the nature of his estate and the financial and legal functions that need to be conducted for him.
2. I am satisfied that the least restrictive order is a plenary administration order (that is, it covers the entirety of RS's estate) as RS is not able to make decisions about any aspect of his estate.
3. This includes any decision to right the perceived wrong of the Financial Separation.
4. Given that:

(a) Mrs S, S and G are all of the view that RS would like to undo the effect of the Financial Separation; and

(b) RS no longer has the capacity to make complex financial decisions;

(c) a direction is needed for his administrator to consider RS and Mrs S's reunification and purported intention to recombine finances, and what steps should be taken to help effect this reunification, taking into account RS's long-term best interests.

1. The Tribunal has the authority to require a function to be performed by an administrator and may give directions as to the time, manner or circumstances of the performance.[15]
2. I am also satisfied that it is in RS's best interests that provision be made to allow his estate to be spent on the maintenance, necessaries and comforts of Mrs S.

1. The evidence demonstrates that RS is a man of some means and that he has historically been very generous with his family.
2. In an application for guardianship filed in March this year (and later withdrawn), Mrs S suggests a gifting allowance of $3,000 per year.
3. I will make an allowance for gifting up to an amount of $3,000 per year.

1. The Tribunal is required to nominate a period of time by which a review of the administration orders must be reviewed. The maximum period of time allowed under the GA Act is 5 years.
2. RS has been diagnosed with dementia, a progressive illness, and the Tribunal sees no reason to think that there will not be an ongoing need for financial management given the assets that have been mentioned.
3. However, given that decisions regarding the assets may need to be made in the near future, RS's financial position may soon settle down and his need for an administrator may reduce. In addition, if the financial reconciliation with Mrs S is finalised, the friction between his children may subside - one hopes that it will - and it may well be that at some time in the future a family member may be suitable.[16]
4. I am making an order for one year, to be reviewed by 9 June 2026.

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

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

1. 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).
2. The administrator is authorised to expend up to a total amount of $3,000 per annum on gifts on behalf of the represented person.
3. The administrator is authorised to apply or expend moneys of the represented person, whether income or capital, for the maintenance, necessaries, comforts and benefits of the represented person or the spouse of the represented person, or of any person wholly or partially dependent on the represented person, in such manner and to such extent as the administrator, having regard to the circumstances and the value of the estate of that person, considers proper and reasonable.
4. The administrator is directed to consider the reunification of the represented person and his wife, [Mrs S] and the purported intention of the represented person to recombine his finances with [Mrs S] and to consider what steps, if any, should be taken to help effect this reunification, taking into account the represented person's long term best interests.
5. All documents submitted to the Tribunal for the purposes of these applications are to be provided to the Public Trustee including all medical reports and the report of the Public Advocate.
6. The administration order is to be reviewed by 9 June 2026.

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

[8] FS [2007] WASAT 202 at [101].

[10] SAL and JGL [2016] WASAT 63 at [22].

[11] FS; The Public Trustee (WA) v Brumar Nominees Pty Ltd [2012] WASC 161 [45].

[13] RM [2010] WASAT 152.

[14] MW [2015] WASAT 106 at [22], LR [2019] WASAT 38 at [47].

[16] AM and MM [2011] WASAT 200 at [25].