Proving Your Costs Were Incurred: The Evidentiary Threshold for Costs Applications in the State Administrative Tribunal

An Analysis of Kaur and The Owners of Code Strata Plan 58103 [2026] WASAT 40

1. Introduction

In Kaur and The Owners of Code Strata Plan 58103 [2026] WASAT 40 (Kaur), the State Administrative Tribunal dismissed a costs application by the successful respondent strata company. The decision, delivered on 15 April 2026 by Member Oldfield and Sessional Member Smith, turned on a deceptively simple point: the strata company had lodged a clear and well-expressed schedule of costs, but had failed to adduce any evidence that those costs were actually incurred.

The decision warrants attention from practitioners who appear before the Tribunal because it provides a sharp illustration of a principle that is sometimes overlooked in costs applications: that the onus lies on the party seeking costs not merely to quantify the costs claimed, but to prove, by way of evidence, that the costs were in fact incurred. Submissions, however detailed, do not constitute evidence. The decision also addresses the distinct question of whether an unrepresented party’s failure to challenge a costs claim can be treated as an implied admission – the Tribunal held that it cannot, at least where the unrepresented party does not demonstrate a sound understanding of the applicable legal principles.

This article analyses the decision in Kaur, situates it within the broader framework of costs jurisprudence in the Tribunal, and provides practical guidance for practitioners preparing costs applications. The contrasting treatment of costs in Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S) (Ebtash) – one of the authorities cited in Kaur – is examined as an example of the evidentiary standard that a successful costs application must meet.

2. Relevant Legal Framework

The starting point for costs in the Tribunal is s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which provides that each party is to bear their own costs unless otherwise specified. Section 87(2) confers a discretionary power on the Tribunal to order that one party pay all or a portion of another party’s costs.

The guiding principles applicable to costs applications, as summarised by the Tribunal in Kaur at [5], are well established. The onus is on the party seeking costs to satisfy the Tribunal that it is fair and reasonable to make an award of costs in all the circumstances. The rationale for a costs order is compensatory, not punitive: it exists to compensate or reimburse a party for costs incurred. The presumptions regarding costs which apply in court proceedings – including the general rule that costs follow the event – do not apply in Tribunal proceedings. Where there is a genuine dispute, parties should expect to bear their own costs unless the circumstances otherwise justify an order. A party’s failure to succeed does not, of itself, mean the party has acted contrary to the Tribunal’s statutory objectives.

These principles have been articulated and applied in numerous decisions, but the specific evidentiary requirement – that costs must be proved to have been incurred – was most clearly stated in Ebtash at [143]–[144]. In that decision, President Pritchard observed that the Tribunal must be satisfied that the costs claimed are reasonable and necessary, and that in respect of disbursements, the Tribunal “must know what disbursements have been incurred – a disbursement is unlikely to be allowed without an appropriate invoice being produced” (at [144]).

It is against this framework that Kaur must be understood. The principle that costs must be evidenced – not merely asserted – is not novel. What Kaur contributes is a practical demonstration of the consequences when that evidentiary step is omitted entirely.

3. The Facts of the Case

The substantive proceedings concerned an application by Dr Harjit Kaur under the Strata Titles Act 1985 (WA). The respondent was The Owners of Code Strata Plan 58103 (the Strata Company), which was legally represented by Taylor Smart. Dr Kaur was unrepresented throughout the proceedings (at [9]). The substantive decision was delivered orally on 19 February 2026 and was not published as at the date of these reasons (footnote 1). The Strata Company was entirely successful in defending Dr Kaur’s application (at [6]).

Following its success, the Strata Company applied for costs. The costs application was determined on the documents, without a hearing (at [3]). The material before the Tribunal comprised the Strata Company’s submissions lodged on 5 March 2026, Dr Kaur’s submissions lodged on 2 April 2026, and the Tribunal’s records of the proceedings (at [3]).

The Strata Company’s schedule of costs was described by the Tribunal as “clear and well expressed” (at [6]). However, the Strata Company lodged only submissions in support of its claim; it did not lodge any evidence – such as invoices, receipts, or an affidavit from its solicitors – supporting the schedule of costs (at [8]).

Dr Kaur did not explicitly agree that the costs had been incurred, nor did she specifically oppose the application on the basis that costs had not been proved. The Tribunal observed, however, that Dr Kaur’s submissions demonstrated she did not possess “a sound understanding of the applicable legal principles” (at [9]).

4. Analysis of the Tribunal’s Reasoning

The Tribunal’s reasoning proceeds in two steps, each of which merits analysis.

The evidentiary gap

The Tribunal first identified the fundamental deficiency in the Strata Company’s application: the absence of evidence. At [7], the Tribunal stated that “because costs are in the nature of compensation or reimbursement, it is necessary there be satisfactory evidence that the costs were in fact incurred.” The Tribunal cited Ebtash at [143]–[144] and Panegyres at [415] as authorities for this proposition.

This is the critical passage. The Tribunal drew a clear distinction between a schedule of costs (which quantifies the claim) and evidence of costs (which proves the claim). The Strata Company’s schedule, however clear, was a submission – an assertion of what was owed. Without supporting evidence – invoices, a solicitor’s affidavit, fee agreements, or trust account records – the Tribunal had no basis upon which to be satisfied that the costs were actually incurred.

At [8], the Tribunal put the point bluntly: “the strata company lodged only submissions, and submissions do not constitute evidence.”

The unrepresented party’s silence

The second limb of the reasoning addressed whether the Tribunal could treat Dr Kaur’s failure to challenge the quantum as an agreed fact. The Tribunal held that it could not, for two reasons. First, Dr Kaur did not explicitly agree (at [9]). Secondly, the Tribunal declined to treat her failure to oppose the application on the specific basis that costs had not been proved as an implied admission, because Dr Kaur was not legally represented and her submissions demonstrated a lack of understanding of the applicable legal principles (at [9]).

This reasoning reflects a broader principle of procedural fairness in Tribunal proceedings. The Tribunal was careful not to attribute forensic sophistication to an unrepresented litigant. It would be unfair to infer that Dr Kaur’s silence on a particular point constituted agreement, when her submissions as a whole revealed that she was not in a position to identify the evidentiary deficiency in the Strata Company’s application.

The combined effect of these two findings was decisive: the Tribunal had no evidence that the costs were incurred, and could not treat the absence of challenge as proof. The application was dismissed (at [10]–[11]).

5. Assessing the Consequences

The cost of the evidentiary omission

The practical consequence for the Strata Company was the loss of its entire costs claim. This is a stark outcome for a party that was entirely successful on the merits, and which had engaged solicitors to prepare what the Tribunal acknowledged was a clear and well-expressed schedule. The costs schedule presumably reflected fees that were in fact incurred – the Strata Company was represented by Taylor Smart throughout the proceedings. Yet the failure to take the elementary step of adducing evidence in support of the schedule was fatal.

The irony is that the evidentiary deficiency could have been remedied with relative ease. An affidavit from the solicitor with carriage of the matter, annexing copies of invoices rendered, would likely have been sufficient. The cost of preparing and filing such an affidavit would have been modest in comparison to the costs the Strata Company was seeking to recover.

Contrast with Ebtash

The contrast with the costs assessment in Ebtash is instructive. In that case, the Chiropractic Board of Australia sought costs of $233,899 (inclusive of disbursements and GST), ultimately recovering $178,500 (at [129], [201]–[202]). The Board supported its costs application with an affidavit from its solicitor, Ms M Naylor, dated 28 October 2020, annexing copies of all accounts rendered (at [129]). This enabled the Tribunal to undertake a detailed assessment of each item claimed, allowing or adjusting hours for each category of work. The evidentiary foundation was never in doubt; the only questions were reasonableness and necessity.

The juxtaposition is revealing. In Ebtash, evidence was adduced and costs were recovered. In Kaur, no evidence was adduced and costs were refused entirely. The merits of the underlying substantive proceeding and the quality of the costs schedule were irrelevant in the absence of proof that the costs were incurred.

6. Worked Example

Consider the following hypothetical scenario. ABC Pty Ltd successfully defends a building dispute application brought by a homeowner in the Tribunal. The dispute ran for two days and involved a jointly appointed expert. ABC’s solicitors incurred fees of $18,500 (exclusive of GST) and disbursements of $4,200, comprising the expert’s fee and filing costs.

Scenario A: The Kaur approach

ABC’s solicitors file written submissions in support of a costs application. The submissions set out the legal principles, describe the work undertaken, and attach a schedule of costs itemising the fees and disbursements claimed. No affidavit is filed. No invoices are annexed.

On the reasoning in Kaur, the Tribunal would likely dismiss the application. The schedule of costs, however detailed, constitutes submissions rather than evidence. The Tribunal cannot be satisfied that the costs were in fact incurred, and accordingly has no basis upon which to make an order.

Scenario B: The Ebtash approach

ABC’s solicitors file the same written submissions, but also file an affidavit from the solicitor with carriage of the matter. The affidavit deposes that ABC has been invoiced for the fees and disbursements particularised in the schedule, and annexes copies of each invoice. The affidavit also annexes copies of the expert’s invoice and receipt for the filing fee.

On this basis, the Tribunal has evidence that the costs were incurred. The inquiry shifts to whether the costs are reasonable and necessary – the familiar territory of costs assessment. The Tribunal may allow the full amount claimed or may reduce individual items, but the application will not fail for want of proof.

Analysis

The difference between the two scenarios is not the quantum of the claim or the merits of the underlying proceeding, but the presence or absence of evidence. The additional cost of preparing the affidavit and assembling the annexures in Scenario B would be modest – perhaps one to two hours of solicitor time. The failure to take that step in Scenario A forfeits the entire claim.

7. Practitioner Guidance: A Step-by-Step Framework

The following steps are derived from the principles stated in Kaur and Ebtash, and are intended to assist practitioners preparing costs applications in the Tribunal.

1.      Step 1: Identify the evidentiary foundation before drafting submissions

Before preparing written submissions in support of a costs application, identify the evidence that will be relied upon to prove the costs were incurred. This is the threshold question: without evidence, the application will fail regardless of the strength of the underlying submissions (Kaur at [8], [10]).

2.      Step 2: Prepare a solicitor’s affidavit

File an affidavit from the solicitor with carriage of the matter. The affidavit should depose to the total fees invoiced, the total disbursements incurred, and the fact that these costs were incurred in connection with the proceedings. The affidavit serves as the evidentiary bridge between the schedule of costs and the Tribunal’s assessment. In Ebtash, the affidavit of Ms Naylor provided this foundation (at [129]).

3.      Step 3: Annex all relevant invoices and receipts

Annex copies of all invoices rendered by the solicitors and, where applicable, counsel. Annex receipts or invoices for disbursements. In Ebtash at [144], the Tribunal stated that “a disbursement is unlikely to be allowed without an appropriate invoice being produced.” This applies equally to professional fees: the invoice is the primary evidence that the cost was incurred.

4.      Step 4: Prepare a detailed schedule of costs

The schedule should itemise the work undertaken, the time spent, the applicable rate, and the total for each category. In Ebtash, the Tribunal assessed costs item by item (at [157]–[199]), which was only possible because the Board had provided a sufficiently detailed breakdown.

5.      Step 5: Address reasonableness and necessity in submissions

Written submissions should address why each category of work was reasonable and necessary. Anticipate likely objections – for example, whether the time claimed for a particular task is proportionate, or whether it was necessary to brief counsel. In Ebtash, the Tribunal assessed each item against these criteria and reduced or allowed hours accordingly.

6.      Step 6: Do not assume silence is consent

Do not rely on the opposing party’s failure to challenge the quantum as an implied admission, particularly where the opposing party is unrepresented. The Tribunal in Kaur at [9] expressly declined to draw that inference. Practitioners should proceed on the basis that the Tribunal will require proof, irrespective of whether the opposing party engages with the application.

7.      Step 7: Consider the applicable rate

Be aware of the rates allowed under the applicable Costs Determination. In Ebtash at [145], the Tribunal adopted a blended rate of $368.50 per hour for non-counsel legal work, having regard to the two scales applicable over the period and the seniority of the practitioners involved. Practitioners should justify any departure from the Determination rates.

8. Evidence and Arguments Available to Each Side

The party seeking costs

A party applying for costs should assemble the following evidence and arguments:

Evidence of costs incurred. An affidavit from the solicitor with carriage deposing to the fees invoiced and disbursements paid, annexing copies of all invoices and receipts. This is the minimum evidentiary requirement identified in Kaur at [7]–[8] and Ebtash at [143]–[144].

A detailed schedule of costs. The schedule should be organised by category of work (e.g., preparation, interlocutory attendances, hearing, submissions) with time, rates, and totals for each. The schedule in Ebtash was organised into 22 items, each assessed separately by the Tribunal.

Submissions on reasonableness and necessity. Address why the costs claimed were reasonable and necessary having regard to the nature and complexity of the proceedings. Refer to the applicable Costs Determination to demonstrate that the rates charged are within, or proximate to, the Determination rates.

Submissions on the conduct of the opposing party. If relevant, identify any conduct by the opposing party that impaired the Tribunal’s statutory objectives (Kaur at [5](e)). However, be mindful that a party’s failure to succeed does not, of itself, justify a costs order (Kaur at [5](f)).

The party resisting costs

Challenge the evidentiary basis. If the applicant has failed to adduce evidence that costs were incurred, submit that the application must fail for want of proof, relying on Kaur at [7]–[10].

Invoke the presumption against costs. Emphasise that s 87(1) of the SAT Act provides that each party is to bear their own costs. Costs orders in the Tribunal are the exception, not the rule, and the onus lies on the party seeking costs to justify a departure from the default position.

Challenge reasonableness and necessity. If evidence of costs has been adduced, challenge the reasonableness or necessity of specific items. In Ebtash, Dr Ebtash challenged numerous items and argued that the Board had conducted the proceedings in a way that incurred disproportionate costs (at [139], [192]). Although most items were allowed, the Tribunal did reduce some categories.

Submit that the dispute was genuine. Where the dispute was genuine and the losing party’s position was reasonably arguable, submit that the parties should bear their own costs in accordance with the Tribunal’s general approach (Kaur at [5](d)).

9. Key Takeaways for Legal Practice

1.      Submissions are not evidence. A schedule of costs, however detailed and well-expressed, is a submission. It does not prove that the costs were incurred. Practitioners must adduce separate evidence – typically an affidavit annexing invoices – to establish the evidentiary foundation for a costs application (Kaur at [8]).

2.      The onus is on the party seeking costs. The Tribunal will not make a costs order in the absence of a sufficient evidentiary basis. The onus does not shift to the opposing party to disprove the claim; rather, the applicant must affirmatively prove it (Kaur at [5](a), [7]).

3.      An unrepresented party’s silence does not constitute agreement. The Tribunal will not treat a self-represented litigant’s failure to challenge quantum as an implied admission, particularly where the litigant’s submissions reveal a limited understanding of the applicable principles (Kaur at [9]).

4.      The compensatory rationale demands proof. Because costs orders are compensatory rather than punitive, the Tribunal must be satisfied that the costs claimed were actually incurred. A party cannot be “compensated” for costs it has not proved it incurred (Kaur at [5](b), [7]).

5.      Disbursements require invoices. A disbursement is unlikely to be allowed without production of an appropriate invoice (Ebtash at [144]). This principle extends naturally to all categories of costs: the Tribunal needs documentary proof.

6.      The Ebtash costs assessment provides a model. Practitioners preparing costs applications should study the Tribunal’s item-by-item assessment in Ebtash at [157]–[199] as a model for the level of detail and evidentiary support that a successful costs application requires.

7.      Success on the merits is necessary but not sufficient. The Strata Company in Kaur was entirely successful in defending the application. Its schedule was clear. Yet its costs application was dismissed. Success on the merits creates the opportunity for a costs application; it does not discharge the evidentiary burden.

8.      The cost of proving costs is modest. The evidentiary deficiency in Kaur could have been remedied with an affidavit and annexed invoices – a task that would have required one to two hours of solicitor time. The cost of not doing so was the loss of the entire costs claim.

9.      Adopt a robust but evidence-based approach. The Tribunal takes a “robust and broad-brush approach” to costs assessment (Ebtash at [134]) and does not descend into an inquiry into small items. However, that approach presupposes that there is evidence to assess. The broad-brush cannot paint without paint.

10. Conclusion

Kaur is a brief decision, but its practical significance should not be underestimated. It stands as a clear reminder that costs applications in the Tribunal require evidence, not merely argument. The distinction between submissions and evidence is fundamental – and the consequences of overlooking it are absolute.

The decision also carries a broader systemic message. In a jurisdiction where costs do not follow the event and where each party is presumed to bear its own costs, the evidentiary burden on the party seeking costs is not a mere formality. It reflects the Tribunal’s principled approach to costs: that no order should be made unless the Tribunal is satisfied, on the evidence, that it is fair and reasonable to do so.

Practitioners appearing before the Tribunal should treat the evidentiary requirements for costs applications with the same rigour they bring to the substantive proceeding. An affidavit, a set of invoices, and a detailed schedule are the minimum requirements. Without them, even the most meritorious costs application may fail – as the Strata Company in Kaur discovered.

Post-Death Access to SAT Guardianship Files: Why the Will-Challenger's Door Remains Closed

An Analysis of AC [No 2] [2026] WASAT 30

1. Introduction

AC [No 2] [2026] WASAT 30 is a short but significant decision of the State Administrative Tribunal of Western Australia on the use that may be made of a Tribunal guardianship file after the represented person has died. Member Child refused two applications under s 112(4) of the GA Act for access to material held on the Tribunal's file: one brought on behalf of the represented person's son to support a proposed Supreme Court challenge to the represented person's will, and another brought by the represented person's daughter who said she had not been properly informed about the earlier proceedings.

The decision is of particular interest to practitioners in estates litigation, guardianship and administration, and elder law. In short, it confirms that a SAT guardianship file is not a discovery device for will challenges. The decision draws a clear line between applications that serve the interests of the represented person — which may attract access (as in OR [2024] WASAT 2 (S)) — and applications that are, in substance, directed to the interests of others. The latter remain subject to the strict confidentiality regime in s 112 and s 113 of the GA Act, and an applicant must show very cogent reasons for access.

The practical consequence is that estate practitioners contemplating a challenge under the Administration Act 1903 (WA), a family provision claim, or a capacity-based probate dispute cannot assume that evidence assembled by the Tribunal — medical reports, capacity assessments, transcripts and affidavits — will be made available to them following the death of the represented person. The decision is a timely reminder that the confidentiality protections in the GA Act survive death.

2. Relevant Legal Framework

Section 112 and s 113 of the GA Act

Section 112 of the GA Act establishes three distinct classes of access to Tribunal documents. First, under s 112(1), the proposed represented person (or represented person) has a conditional entitlement to inspect material lodged with or held by the Tribunal for the purposes of any application in respect of that person. Second, under s 112(2), any other party to proceedings commenced under the GA Act has a conditional entitlement to inspect documents (other than medical opinions not concerning that party) for the purpose of those proceedings. Third, under s 112(4), the Tribunal may, on the application of any person, authorise access to documents or materials, conditionally or unconditionally.

Section 113 imposes a parallel confidentiality obligation on persons performing functions under the GA Act, prohibiting the divulging of personal information relating to a represented person or proposed represented person except in prescribed circumstances. Section 112(3) backs the regime with criminal sanctions: unauthorised inspection attracts a penalty of $2,000 or imprisonment for nine months.

The cogent reasons threshold

The leading authority is CD [2020] WASAT 41 (CD), in which the then President of the Tribunal articulated the test for applications under s 112(4). Where an applicant seeks access for purposes unrelated to proceedings before the Tribunal, the applicant must provide very cogent reasons and demonstrate a particular need (see CD at [43]). A general desire to be informed is not sufficient, nor are convenience or cost savings. Those principles had earlier been stated in MM (2001) 28 SR (WA) 320 and AB and the Public Trustee [2015] WASAT 68.

The rationale reflects two public interests. The first is the privacy of the represented person. The second is the integrity of the Tribunal's processes: the exercise of the Tribunal's jurisdiction depends upon candid evidence from medical practitioners, service providers and family members. If those sources believed their material might routinely be released for use in collateral civil litigation, the frankness and supply of evidence would be compromised (see CD at [36]–[37]).

Where access has been granted: OR

In OR [2024] WASAT 2 (S) the Tribunal granted the represented person access to transcripts of hearings in Tribunal proceedings concerning him. Access was granted because it was in OR's own best interests and relevant to closely related Family Court property settlement proceedings between OR and his former wife, who had acted under OR's enduring power of attorney. The critical feature was that the access served the represented person's interests, not the interests of a third party seeking to litigate against him or his estate.

The post-death boundary

The objects of the GA Act are directed to the personal and financial affairs of adults who need assistance during their lifetime. In Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [57], Heenan J held that the conservation of an estate under administration during the represented person's lifetime does not extend to the preservation of the estate after death; this is reflected in s 78(1)(b), under which the administrator's authority ceases on death. The legislation is not concerned with will-making or the administration of deceased estates. AC [No 2] applies that orientation to the access regime: the Tribunal's file is not to be repurposed to serve the probate jurisdiction.

3. The Facts of the Case

AC was an 86-year-old businessman with a diagnosis of dementia at the time of the earlier Tribunal proceedings (at [1]). In those earlier proceedings, the partner of AC sought appointment as guardian and administrator of AC's estate, while AC's son, RC, sought orders bringing into force an enduring power of attorney made by AC which appointed RC as attorney (at [2]).

Orders were made appointing guardians and an administrator, and bringing into force and then varying the EPA. Those proceedings concluded in 2024 (at [3]). Oral reasons were delivered on the day of the final hearing and were only recently published following the present access applications (at [4]). AC died on 23 December 2025 (at [5]).

RC's application

On 5 January 2026, and through his solicitors, RC applied under s 112(4) for access to documents held on the Tribunal's file, including medical and other material. The purpose stated was to obtain advice about commencing proceedings in the Supreme Court under the Administration Act 1903 (WA). The concerns articulated related to AC's alleged lack of testamentary capacity, lack of knowledge and approval, and undue influence in respect of a will made by AC after RC believed AC had lost mental capacity (at [8]).

MR's application

On 21 January 2026, AC's daughter MR applied for all information on the Tribunal's file. MR asserted that she had not received any letters about AC's matters and believed she had not been properly informed. She said her brother RC had told her she would be advised in due course, and that although Tribunal staff had told her five letters had been sent to her, she had received none and it was unlikely all had gone missing (at [9], [19]–[20]).

The Tribunal noted that three notices had been sent by mail to MR at her confirmed home address — a notice of the original hearing, and subsequent orders. MR did not attend the original or subsequent hearings. It was apparent from her application that she had been aware of the proceedings through RC. It had been indicated in the earlier proceedings that MR was estranged from AC; whether accurate or not, MR had not sought access during AC's lifetime (at [20]–[21]).

4. Analysis of the Tribunal's Reasoning

MR's application: a general desire to be informed

Member Child characterised MR's application as being in the nature of a general desire to be informed, applying MM (as followed in CD). The timing weighed against the applicant: MR had not sought information during AC's lifetime, when the GA Act processes were on foot and capable of responding to a genuine informational interest in a represented person's welfare. The Tribunal was not satisfied that MR had demonstrated cogent reasons for access and dismissed the application (at [21]).

RC's application: interests of others, not the represented person

The reasoning on RC's application is the heart of the decision. Member Child accepted that material on a Tribunal file may sometimes be relevant to matters outside the stated purposes of the GA Act, including testamentary capacity (at [23], [26]). The tests for capacity differ: the test for capacity to execute a will is the Banks v Goodfellow test of sound mind, memory and understanding ((1870) LR 5 QB 549 at 565), whereas appointment of an administrator under s 64 of the GA Act requires a finding that the person is unable by reason of a mental disability to make reasonable judgements about his or her estate (at [26] and footnotes 9 and 10). There may therefore be overlap in the evidentiary subject matter, without identity of the legal tests.

The Tribunal nevertheless refused access. The critical distinction drawn from OR is that, in OR, access advanced the represented person's interests in closely related proceedings; here, access was sought not to advance AC's interests (AC having died), but the interests of RC as a potential will-challenger (at [27]).

Member Child then applied the CD rationale directly (at [28]–[31]). Granting access to the documents for RC's stated purpose would not uphold the public interest in maintaining the integrity of the Tribunal's processes. Medical practitioners and other professionals produce reports on the footing that those reports will be used for the Tribunal's statutory function. The candour of evidence from proposed represented persons, applicants and family members relies on a reasonable expectation that the information given will be used only in GA Act proceedings (at [31], citing PJB [2008] WASAT 190 at [46], which was in turn cited in OR). If it became known that GA Act material would be routinely released to support post-death will challenges, those sources may be hesitant to provide material, or less frank in doing so.

Death does not dissolve confidentiality

A further plank of the reasoning — picked up from AB and the Public Trustee at [14] — is that personal information does not cease to be confidential simply because the person has died. The result is that the s 113 confidentiality regime, and by extension the s 112 access controls, survive the represented person's death. The fact that the represented person can no longer consent does not convert the file into something more accessible; if anything, it heightens the protection because the person whose interests are at stake can no longer speak for herself or himself.

5. Assessing the Consequences

The practical consequences of AC [No 2] for estates practitioners are significant. Will-challengers frequently look to guardianship proceedings as a ready-made evidentiary foundation. The Tribunal's file may contain capacity assessments by treating geriatricians, neuropsychological reports, affidavit evidence from family members, and transcripts of hearings at which the represented person's cognition was directly canvassed. That material is often more contemporaneous with the impugned testamentary act than any report a litigant could now procure.

After AC [No 2], practitioners must treat a Tribunal file as presumptively inaccessible for the purposes of will challenges or family provision claims. Access will be granted only on very cogent reasons, and the stated purpose of advancing a will challenge will ordinarily tell against access because it is directed to the interests of the applicant rather than the represented person.

The cost and time consequences for clients are real. Evidence of capacity at or around the time of a will may instead need to be reconstructed from medical records obtained by subpoena in the Supreme Court, interviews with treating clinicians, and expert retrospective reports — an undertaking substantially more expensive than copying the Tribunal file. Practitioners should factor this into scope, estimates and costs disclosure at the outset of any file where the testator was the subject of GA Act proceedings.

For the Tribunal system, the decision reinforces the integrity of its evidentiary environment. Medical and allied-health professionals can continue to provide candid reports to the Tribunal on the footing that their reports will not be routinely turned over to estate litigation. That protection is not absolute — s 112(4) remains a discretionary gateway — but the threshold is high and the cases in which it is cleared will be unusual.

6. Worked Example

Assume the following facts. E is an 84-year-old widower with a diagnosis of vascular dementia. In 2023, E's daughter D (with whom E lived) was appointed E's administrator by the Tribunal following a contested hearing at which E's son S opposed the application and asserted E retained capacity. In the course of those proceedings, the Tribunal received two geriatrician's reports, an occupational therapist's capacity assessment, and affidavits from each of D and S. In 2024, E executed a new will naming D as sole beneficiary. E died in 2026. S wishes to challenge the will, asserting lack of testamentary capacity and undue influence by D.

S's application for access under s 112(4)

S, as a former party to the GA Act proceedings, no longer has any entitlement under s 112(2) following final determination (see CD at [40]). S must apply under s 112(4). Following AC [No 2], the stated purpose — to challenge the will — places the application on the wrong side of the OR/AC [No 2] line: the access is directed to S's own interests, not those of E. The application would likely be refused, absent additional material such as evidence of fraud or of something seriously amiss in the underlying GA Act proceedings.

D's position

D, as propounder of the will, will resist access. D can point to AC [No 2] and CD and submit that the policy of the GA Act is to protect the evidentiary environment of the Tribunal. D might add that, even if access were granted, the distinct legal test (Banks v Goodfellow vs s 64 of the GA Act) means that GA Act material has only limited probative weight in a probate action in any event.

Could the position change?

Access may be more realistically available where, for example, S could identify a specific document (rather than the whole file), show that it could not be obtained from any alternative source (for example, the author of a medical report), and articulate the particular need for it in the proposed probate action. Even then, the Tribunal will weigh the cogency of the reasons against the confidentiality concerns (see CD at [45]).

7. Practitioner Guidance: A Step-by-Step Framework

Step 1 — Identify the purpose and the beneficiary of access

Before drafting any s 112(4) application, articulate in a single sentence whose interests the access serves. If the answer is the represented person (for example, to pursue a claim that benefits the represented person's estate during life, as in OR), access is realistic. If the answer is the applicant or a beneficiary seeking to litigate against the estate, the application will face the AC [No 2] headwind.

Step 2 — Audit available alternative sources

Catalogue every alternative source: treating doctors' clinical notes, hospital records, aged care facility notes, family observations, bank records, solicitor's file notes on the will instructions. The Tribunal will give weight to whether access is necessary, not merely convenient (see CD at [43]).

Step 3 — Scope the request narrowly

Avoid a blanket request for the whole file. Specify the documents sought (for example, a particular capacity report dated X by Y) and explain why each is needed. Narrow, reasoned requests are more likely to be granted than sweeping fishing expeditions (see AC [No 2] at [23]–[27]).

Step 4 — Articulate very cogent reasons

Translate the CD threshold into evidence. Address: (a) the relevance of each specific document to the proposed proceedings; (b) the impossibility or unreasonable cost of obtaining the evidence by any other means; (c) any undertaking to use the material only for identified purposes and to limit circulation; and (d) any features of the case that distinguish it from an ordinary will challenge.

Step 5 — Consider the public interest factors

Confront the CD public interest factors directly. Explain why granting access will not chill the supply of evidence in future GA Act cases. For example, identify whether the relevant report author has already consented, or whether the material has already entered the public domain in some form (at [28]–[31]).

Step 6 — Address confidentiality safeguards

Offer practical safeguards: limitation to identified solicitors, confidentiality undertakings, return or destruction at the end of the litigation, and restrictions on further disclosure. These mitigate the s 113 concerns (AB and the Public Trustee at [14]) and help address the weight against access.

Step 7 — Manage client expectations and costs

Advise the client at the outset that the Tribunal file is presumptively unavailable, that an application is likely to be refused if its purpose is a will challenge, and that the probate proceedings will generally need to be resourced on the footing that a fresh evidentiary record must be built. Build costs estimates accordingly and provide costs disclosure reflecting that scope.

Step 8 — Consider timing

If a GA Act file exists and the represented person is still alive, consider whether any access that may benefit the represented person (for example, to pursue claims for the represented person's benefit) should be sought before death. Post-death, the AC [No 2] bar operates, and the window for OR-type applications largely closes.

8. Evidence and Arguments Available to Each Side

Applicant seeking access

An applicant will seek to characterise access as serving the represented person's interests (for example, by reference to a claim that preserves or restores the estate for rightful beneficiaries). The applicant should be prepared to tender: (a) affidavit evidence of the proposed proceedings, the parties and the issues; (b) evidence of unsuccessful attempts to obtain the material from alternative sources; (c) a targeted list of the specific documents sought with a stated purpose for each; and (d) proposed confidentiality undertakings and orders limiting use.

Useful authorities include OR (where access served the represented person's interests in closely related proceedings) and s 112(4)'s broad, unlimited discretionary language recognised in CD at [42].

Party resisting access

AC [No 2] and CD together provide the skeleton of the resistance. The respondent should emphasise: (a) the confidentiality policy in s 112 and s 113; (b) the post-death persistence of confidentiality (AB and the Public Trustee); (c) the OR/AC [No 2] distinction that access must serve the represented person's interests; (d) the chilling effect on the Tribunal's evidentiary environment (CD at [36]–[37]; PJB at [46]); and (e) the availability of alternative evidentiary sources in the probate jurisdiction.

Respondents should also draw attention to the distinct legal tests: because GA Act findings are made on a different capacity standard from the Banks v Goodfellow test, the material is of limited weight in a probate action in any event, which is a further reason against taking the step of releasing it.

9. Key Takeaways for Legal Practice

1. A SAT guardianship file is not a discovery tool for will challenges.

The central message of AC [No 2] is that access under s 112(4) will not be granted where the stated purpose is to support a will challenge or similar claim directed to the interests of third parties (at [27]–[32]).

2. The CD threshold — very cogent reasons — remains intact.

A general desire to be informed is insufficient. So are convenience and cost savings. The applicant must demonstrate a particular need (CD at [43]–[44]).

3. Confidentiality survives death.

Personal information held on the Tribunal's file does not become releasable merely because the represented person has died (AB and the Public Trustee at [14]).

4. OR is a narrow authority.

The grant of access in OR reflected closely related proceedings in which access served the represented person. It does not provide a template for post-death will-challenge applications.

5. Different tests mean limited probative value.

Administration and testamentary capacity are assessed under different tests (Banks v Goodfellow and s 64 of the GA Act respectively). GA Act findings are not determinative of testamentary capacity, a point respondents can deploy against access.

6. Narrow, reasoned requests fare better than blanket requests.

Identify specific documents, their relevance, and the impossibility of obtaining them elsewhere. Offer confidentiality safeguards.

7. Build cost estimates on the assumption that access will be refused.

Where the testator was the subject of GA Act proceedings, practitioners advising a will-challenger should assume a fresh evidentiary record will need to be built and scope costs accordingly.

8. Timing matters.

Consider any possible OR-type access during the represented person's lifetime, where the access may serve the represented person's interests in related proceedings.

9. The integrity of the Tribunal's evidentiary environment is a substantive public interest.

The decision protects the willingness of clinicians, family members and represented persons to provide candid evidence, which has systemic benefits well beyond the individual case.

10. Document all alternative evidentiary avenues.

Subpoenas to treating clinicians, aged care records, the solicitor's will-taking file notes and contemporaneous bank records will usually need to carry the evidentiary burden in a capacity challenge.

10. Conclusion

AC [No 2] is a measured and principled restatement of the Tribunal's confidentiality regime applied to the post-death context. The decision is not a change in the law so much as a clear application of CD and AB and the Public Trustee to the common scenario of a will challenge following GA Act proceedings. Its significance for practitioners is practical: estate practitioners cannot rely on Tribunal material to carry the evidentiary weight of a testamentary capacity challenge; guardianship practitioners can reassure medical and other professionals that the integrity of the evidentiary environment will be protected after, as well as during, the represented person's lifetime.

The decision leaves room for unusual cases. Section 112(4) is a broad discretion, and access may be granted where it serves the represented person or where very cogent reasons are made out. But the default position, confirmed in AC [No 2], is firmly on the side of confidentiality. For those advising clients in estates litigation, that default position must now inform scope, strategy and costs from the outset.

Navigating the Intersection of Enduring Powers of Attorney, Administration Orders, and SMSF Compliance When a Member Loses Capacity

An Analysis of AC [2024] WASAT 146

1. Introduction

The decision in AC [2024] WASAT 146 addresses a problem of increasing practical significance for guardianship and administration practitioners in Western Australia: how to structure Tribunal orders when a represented person’s estate includes a self-managed superannuation fund (SMSF) and the interplay between the Guardianship and Administration Act 1990 (WA) and the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) creates constraints on the form and scope of administration orders.

The decision is notable for three reasons. First, it provides a worked example of the Tribunal varying an EPA under s 108 of the GA Act to carve out a limited role for an attorney alongside a Public Trustee appointment. Second, it applies the conflict of interest provisions in s 44(1)(b) to a partner who had used a power of attorney to purchase property in her own name with the represented person’s funds. Third, it addresses the evidentiary weight of estate planning documents executed when the represented person’s capacity was in question.

The decision warrants attention beyond the immediate parties because the combination of an SMSF, a corporate trustee, and an incapacitated member is a scenario that will arise with increasing frequency as the population ages. Practitioners advising families in these circumstances need to understand the structural limitations of the Public Trustee’s powers and the mechanisms available under the GA Act to address them.

2. Relevant Legal Framework

The Guardianship and Administration Act 1990 (WA)

The GA Act provides for the appointment of guardians and administrators for persons who, by reason of a mental disability, are unable to make reasonable judgments about their person or estate. The guiding principles in s 4 establish a presumption of capacity, require that orders be made only where necessary, and mandate the least restrictive intervention consistent with the represented person’s needs. The primary consideration in all proceedings is the best interests of the represented person, and the Tribunal must ascertain the wishes of the represented person as expressed or gathered from past actions (s 4(7)).

Section 43 provides for the appointment of a guardian where the Tribunal is satisfied that a person is incapable of looking after his or her own health and safety, unable to make reasonable judgments in respect of matters relating to his or her person, and in need of oversight, care, or control. Section 44(1) requires that a proposed guardian has consented, will act in the best interests of the represented person, is not in a position where his or her interests conflict or may conflict with those of the represented person (s 44(1)(b)), and is otherwise suitable.

Section 64(1) provides for the appointment of an administrator where the Tribunal is satisfied that a person is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his or her estate, and is in need of an administrator. Section 65 confers an interim power, enabling the Tribunal to exercise such powers as may be necessary for the protection of a person’s estate pending determination of the question whether an administration order should be made.

Enduring Powers of Attorney and s 108

Part 9 of the GA Act governs enduring powers of attorney. Section 105 provides that an EPA created under the Act survives the incapacity of the donor. Section 106 empowers the Tribunal to declare that a donor does not have legal capacity and to bring an EPA into force.

Section 108 is of central importance to this decision. Subsection (1) provides that where the Tribunal makes an administration order or an order under s 65 or s 66, the Tribunal may revoke or vary an EPA. Subsection (1a) goes further: where the continued operation of an EPA would be inconsistent with the functions of the administrator, the Tribunal shall revoke the power or vary it to remove the inconsistency. Subsection (2) provides that where an administrator is appointed, the donee of the EPA is accountable to the administrator as if the administrator were the donor, and the administrator has the same power to vary or revoke the EPA as the donor would have if of full legal capacity.

The Superannuation Industry (Supervision) Act 1993 (Cth)

Section 17A of the SIS Act prescribes requirements for SMSFs. A fund is an SMSF only if each member is a trustee (or, where the trustee is a body corporate, a director of the trustee). Section 17A(3)(b)(ii) provides an exception: a member who is under a legal disability is not required to be a trustee or director if the member’s “legal personal representative” is a trustee or director in the member’s place. The SIS Act defines “legal personal representative” to include a person who holds an EPA in respect of a member of the fund.

Related Case Law

The Tribunal referred to two earlier decisions. In FY [2019] WASAT 118, the Tribunal considered the assessment of a person’s ability to make reasonable judgments about their estate by reference to their actual estate. In SAL and JGL [2016] WASAT 63, the Tribunal defined “estate” broadly to encompass the aggregate of a person’s property, assets, liabilities, and the entirety of their real and personal property and financial affairs.

3. The Facts of the Case

The represented person and his estate

AC was an 87-year-old retired businessman with a diagnosis of vascular dementia (at [1]). His estate was large and complex, comprising commercial properties (some rented), real property, bank accounts and term deposits in his sole name, a company ([redacted] Investments Pty Ltd) of which he was the sole shareholder and sole director, and an SMSF ([redacted] Superannuation Fund) of which the company was the corporate trustee (at [71]–[72]).

The medical evidence was extensive and consistent. AC had been diagnosed with vascular dementia in July 2023. His MMSE score was 15/30 in October 2023, declining to 3/10 by November 2023 and 5/30 by February 2024 (at [24]–[27]). He required full assistance with all activities of daily living, could not communicate, and had no insight into his personal care needs (at [25]–[28]).

The parties and their competing interests

MC, the applicant, described herself as AC’s de facto partner from 30 November 2020. She had previously worked as his cleaner and then became his carer during the COVID-19 pandemic (at [16]). She sought her own appointment as plenary guardian and administrator.

RC, AC’s son, held an EPA made on 23 May 2017 as part of a broader estate planning exercise that included a will with testamentary trust, a binding death benefit nomination, and an enduring power of guardianship (EPG) (at [33]–[34]). The 2017 EPA was unrestricted in its terms and styled to come into force only on a declaration by the Tribunal that AC lacked legal capacity (at [31]).

The relationship between MC and RC was acrimonious. A brief reconciliation at the second hearing in June 2024 collapsed before the third hearing in August 2024, with each opposing the other’s appointment in any form (at [14]).

The power of attorney and the property purchase

AC had made a general power of attorney in favour of MC in October 2022, but its terms specified that it did not survive his loss of capacity (at [8], [30]). Using that power, MC withdrew funds from a term deposit in AC’s sole name and purchased a property in her own name in January 2024. Her explanation was that the purchase “perfected” a gift AC had made when he undertook to redevelop her property, which had been demolished, but the redevelopment was abandoned due to problems with the builder (at [102]–[104]).

The SMSF compliance problem

The Public Trustee’s solicitor identified a significant compliance issue. On AC’s loss of capacity, his position as sole director of [redacted] Investments was vacant (at [74]–[75]). The SMSF was at risk of non-compliance with s 17A of the SIS Act because neither a trustee nor a director of the corporate trustee was a member or the legal personal representative of a member (at [74]). The Public Trustee submitted that it could not act as a director of the company (at [77], [90]).

Procedural history

The matter was heard across three hearings on 13 March, 19 June, and 28 August 2024. At the first hearing, MC was appointed limited guardian with functions in treatment and services, and the Public Trustee was appointed under s 65 on an interim basis (at [5], [10]). The administration application was adjourned for further information. RC’s application under s 106 to bring the 2017 EPA into force was filed on 17 July 2024 (at [3]). The reasons were delivered orally on 28 August 2024 and published on 1 April 2026 following AC’s death and applications for access to documents (preamble to the reasons).

4. Analysis of the Tribunal’s Reasoning

Displacement of the presumption of capacity

The Tribunal’s finding on capacity was straightforward. Member Child was satisfied on the medical evidence that AC had a significant cognitive impairment, impaired memory, and was dependent on others for all aspects of personal care and management of his affairs (at [48]). The diagnosis of vascular dementia established the “mental disability” required by s 64(1)(a), and the complexity of AC’s estate – assessed by reference to his actual estate in accordance with FY [2019] WASAT 118 – meant he lacked the intellectual ability to make the decisions required for its management (at [50]–[52]).

Guardianship: the conflict of interest under s 44(1)(b)

The more instructive aspect of the reasoning concerned the suitability of MC for appointment as guardian. The Public Advocate submitted that MC was in a position of conflict because she had potentially breached her obligations as attorney and may therefore be liable to AC’s estate (at [63]). The Tribunal accepted this submission and found that the conflict related “in particular” to the property of the represented person (at [63]).

The Tribunal’s approach was to disaggregate the guardian’s functions. MC was found suitable to exercise treatment and restrictive practices functions, as she was the primary carer and familiar with AC’s medical needs, and there was no conflict in that role (at [69]–[70]). However, the conflict precluded her appointment for accommodation and services decisions. The Public Advocate was appointed limited guardian for those functions, with the additional function of seeking information from health professionals and providing it as necessary to advance AC’s best interests (at [64]–[65], [70]).

RC was found unsuitable for appointment as guardian because of his limited involvement in AC’s direct care and his lack of knowledge of AC’s current circumstances (at [67]–[68]).

Administration: the EPA and SMSF compliance solution

The Tribunal’s reasoning on the administration order was shaped by the structural limitation that the Public Trustee could not act as a director of [redacted] Investments (at [77], [90]). This meant that the appointment of the Public Trustee as plenary administrator – the outcome sought by MC – would not resolve the SMSF compliance problem.

The solution adopted was a composite one. The 2017 EPA was brought into force under s 106, but varied under s 108(1) and s 108(1a) to confine the attorney’s powers to four specified matters: rights and functions as a member or beneficiary of the SMSF; the office of trustee of the Fund; the office of director of the company in its capacity as trustee; and the management of specified commercial properties (at Orders 3–4). The Public Trustee was appointed limited administrator with plenary authority save for those reserved powers (at Order 5).

The legal reasoning proceeds in steps. First, the Public Trustee’s submission was that the SIS Act definition of “legal personal representative” includes a person who holds an EPA in respect of a member – and that a limited administrator may not qualify (at [78]–[79]). Second, s 108(1a) requires the Tribunal to vary an EPA to remove any inconsistency with the administrator’s functions. Third, the variation was drafted to limit the EPA to those functions that the Public Trustee could not perform, thus avoiding the inconsistency while maintaining SIS Act compliance (at [80], [89]–[93]).

The 2022 documents and the question of wishes

The Tribunal addressed the competing evidence of AC’s wishes with care. The 2022 will referred to estrangement from RC commencing in 2015, but this was inconsistent with the 2017 estate planning documents by which AC appointed RC as his attorney and guardian (at [84]). The Public Advocate submitted that questions arose about AC’s capacity to give instructions in 2022, given these anomalies (at [85]). The Tribunal concluded that it could not place weight on the 2022 will as a true reflection of AC’s wishes (at [108]).

Conversely, the 2017 EPA was made before any suggestion of cognitive impairment and as part of a comprehensive estate planning exercise conducted through solicitors (at [88]). The Tribunal treated it as an expression of AC’s wishes at a time when his capacity was not in question.

5. Assessing the Consequences

Structural consequences of the orders

The orders made in AC created a tripartite decision-making structure: MC as limited guardian for treatment and restrictive practices; the Public Advocate as limited guardian for accommodation, services, and information-sharing; and a split administration between RC as attorney (for the SMSF, corporate trustee, and specified properties) and the Public Trustee as limited administrator (for all other aspects of the estate, including day-to-day maintenance, investigation of the alleged misappropriation, and any litigation).

Practical implications for SMSF compliance

The decision demonstrates that where an SMSF member loses capacity and the fund’s corporate trustee has only one director (the member), the fund will be non-compliant unless the member’s legal personal representative is appointed as a trustee or director. Because the Public Trustee cannot act as a director of a private company, an EPA is the most practical mechanism to achieve compliance. If no EPA exists, or if it does not extend to SMSF-related functions, the fund may face prolonged non-compliance and regulatory consequences.

Implications of the alleged misappropriation

The Tribunal found that MC’s purchase of property in her own name using AC’s funds, while holding a general power of attorney and acknowledging AC’s incapacity, may amount to a breach of fiduciary duty (at [105]). The Public Trustee’s appointment was directed in part at investigating this allegation (at [94], [99], [105]). MC remains accountable to the Public Trustee, who holds the same power to vary or revoke the EPA as the donor would have at full capacity (s 108(2)).

Financial consequences

The orders directed RC as attorney to place the Public Trustee in funds and to reimburse costs and expenses from AC’s resources (at Order 7). The Public Trustee was authorised to apply AC’s funds for the maintenance and benefit of both AC and MC (at Order 8). The maximum review period of five years was imposed given the progressive nature of AC’s condition (at [111]).

6. Worked Example

Consider the following hypothetical, adapted from the facts of AC.

Scenario: David, aged 82, is diagnosed with moderate Alzheimer’s disease. He is the sole member, sole shareholder, and sole director of DK Pty Ltd, the corporate trustee of his SMSF. The SMSF holds two commercial properties and a share portfolio worth a total of $3.2 million. David’s personal estate includes a residential property, bank accounts, and term deposits worth approximately $1.5 million. David made an EPA in 2018 appointing his daughter, Emma, as his sole attorney, but the EPA is unrestricted and does not specifically reference the SMSF or the company. David’s second wife, Fiona, has been his primary carer for the past four years. Fiona applies for her appointment as plenary guardian and administrator.

Analysis from Fiona’s perspective (applicant)

Fiona’s strongest case is for appointment as guardian with treatment and care-related functions, given her role as primary carer. However, following AC, if there is any allegation that Fiona has used David’s funds for her own benefit, or any basis for suggesting a conflict of interest, s 44(1)(b) may preclude her appointment for accommodation and financial decisions. Fiona’s application for plenary administration is unlikely to succeed if the estate includes an SMSF, because she cannot resolve the compliance issue unless she holds an EPA.

Analysis from Emma’s perspective (attorney)

Emma’s position is that the 2018 EPA should be brought into force under s 106 and should operate as a less restrictive alternative to administration. However, following AC, the Tribunal is unlikely to accept that an unrestricted EPA can operate on its own where there is family conflict and the estate is complex. The probable outcome is a variation of the EPA under s 108 to confine Emma’s powers to SMSF-related functions (and perhaps property management), with the Public Trustee appointed as limited administrator for the balance of the estate.

The SMSF compliance pathway

The practitioner advising Emma should ensure the s 106 application is filed promptly, as the SMSF is non-compliant from the date David’s directorship is vacant. The proposed variation of the EPA should be drafted to expressly address s 17A of the SIS Act and to include authority to act as a director of DK Pty Ltd in its capacity as trustee. The variation should mirror the formulation in the AC orders, specifying the attorney’s authority in relation to membership and beneficial interests, the office of trustee, the office of director, and any ancillary powers required.

7. Practitioner Guidance: A Step-by-Step Framework

The following framework is derived from the Tribunal’s approach in AC and is intended for practitioners advising clients where the represented person’s estate includes an SMSF with a corporate trustee.

Identify the SMSF structure early. At the outset of any guardianship or administration matter, ascertain whether the represented person is a member of an SMSF and, if so, the identity and structure of the trustee. If the trustee is a body corporate and the represented person is the sole director, the compliance problem identified in AC will arise on loss of capacity (at [74]–[75]).

Locate and assess existing estate planning instruments. Determine whether there is an EPA in force or capable of being brought into force, an EPG, a will with testamentary trust, and a binding death benefit nomination. Note the terms and date of execution of each instrument. If the EPA is unrestricted, it will likely require variation under s 108 if an administration order is also made (at [80], [101]).

Assess the Public Trustee’s capacity to act. Confirm whether the Public Trustee is able to act as a director of the corporate trustee. The position in AC was that the Public Trustee could not do so (at [77], [90]). If this remains the position, the EPA is the primary mechanism for achieving SMSF compliance.

File a s 106 application promptly. If the EPA is styled to take effect only on a Tribunal declaration, file the s 106 application as early as possible. Delay extends the period of SMSF non-compliance. The application should be accompanied by a minute of proposed orders that addresses the variation required under s 108 (at [40]).

Draft the EPA variation with specificity. The variation should expressly address the attorney’s authority in relation to: (a) rights as a member or beneficiary of the fund; (b) the office of trustee; (c) the office of director of the corporate trustee, including the power to appoint a director; and (d) management of any real property held by the fund or specified in the EPA. The formulation in the AC orders provides a precedent (at Orders 3–4).

Address potential conflicts of interest. Assess whether any proposed guardian or administrator has a conflict of interest under s 44(1)(b). If the partner or carer has used the represented person’s funds for personal benefit, this will likely disqualify them from appointment for financial or accommodation functions, even if they remain suitable for treatment decisions (at [63], [69]–[70]).

Consider the role of the Public Advocate. Where there is family conflict, the Public Advocate may be the appropriate appointee for accommodation and services decisions, and for information-sharing functions that reduce tension between the parties (at [64]–[65], [70]).

Prepare for accountability obligations. Advise the attorney that under s 108(2), they are accountable to the administrator as if the administrator were the donor. The administrator has the power to vary or revoke the EPA. The attorney should maintain detailed records of all transactions and decisions made under the EPA (at [110]).

8. Evidence and Arguments Available to Each Side

For the applicant seeking appointment as guardian and/or administrator

The applicant in a comparable matter should lead evidence of their role as primary carer, familiarity with the represented person’s medical needs, and the practical difficulties of managing care without formal legal authority. The letter from the dementia support specialist in AC was relied upon in support of the initial guardianship order (at [17]–[18]). Evidence of cohabitation and the nature of the relationship will be relevant to the question of suitability.

However, the applicant must address any allegation of conflict of interest squarely. If the applicant has used the represented person’s funds for personal benefit, an explanation should be prepared in advance, supported by documentary evidence. The Tribunal in AC considered MC’s explanation that the property purchase “perfected” an earlier gift, but found a prima facie breach of fiduciary duty (at [103]–[105]). An applicant in this position should consider whether a regularisation proposal (such as returning equivalent value to the estate) can be advanced.

For the attorney seeking to act under an EPA

The attorney should demonstrate knowledge of the represented person’s estate and financial affairs. In AC, RC’s detailed understanding of his father’s financial affairs at the second hearing was a factor in the Tribunal’s satisfaction that he could operate under the EPA (at [97]). The attorney should file a minute of proposed orders early, addressing the s 108 variation and the SMSF compliance mechanism. Expert evidence or submissions on the SIS Act requirements may assist.

The attorney should also address any allegation that the represented person’s wishes have changed since the EPA was made. The Tribunal’s approach in AC was to give weight to the 2017 estate planning documents (made with legal advice and at a time of unquestioned capacity) over the 2022 will and power of attorney (made at a time when capacity was doubtful and the content was internally inconsistent) (at [84]–[85], [108]).

For the Public Advocate or Public Trustee

The Public Advocate’s role in AC was critical. The investigator’s reports provided the evidentiary foundation for the conflict of interest finding and the recommendation for an independent administrator. Practitioners should consider requesting a referral to the Public Advocate for investigation where allegations of financial mismanagement are made, as the Public Advocate’s report carries significant weight with the Tribunal.

The Public Trustee’s submissions on the SIS Act were determinative of the form of the orders. Practitioners acting for or against the Public Trustee should be prepared to address the structural limitations of the Public Trustee’s powers and the interaction with Commonwealth superannuation legislation.

9. Key Takeaways for Legal Practice

The Public Trustee cannot act as a director of a private company. This structural limitation means that where an SMSF is held through a corporate trustee and the represented person is the sole director, the Public Trustee alone cannot bring the fund into compliance with s 17A of the SIS Act. An EPA is the most practical alternative mechanism (at [77], [90]).

Section 108 of the GA Act mandates variation of an EPA where inconsistency arises with an administration order. The obligation under s 108(1a) is mandatory (“shall”). Practitioners must draft the EPA variation with sufficient specificity to delineate the attorney’s powers from the administrator’s functions, avoiding overlap and potential conflict (at [101]).

An EPA holder may qualify as a “legal personal representative” under the SIS Act. Section 17A(3)(b)(ii) of the SIS Act permits a legal personal representative to act as trustee or director in place of an incapacitated member. A person holding an EPA satisfies this definition, whereas there is doubt whether a limited administrator would (at [78]–[79]).

Conflict of interest under s 44(1)(b) can be addressed by disaggregating guardian functions. A person may be suitable for appointment as guardian with some functions (such as treatment) but disqualified from others (such as accommodation) where there is a conflict. The Tribunal’s approach in AC was to split functions between the partner and the Public Advocate (at [69]–[70]).

Use of a donor’s funds to purchase property in an attorney’s own name raises a prima facie breach of fiduciary duty. Even where the attorney offers an explanation (such as perfecting an earlier gift), the Tribunal may find the conduct gives rise to a conflict warranting an independent investigation by the Public Trustee (at [102]–[105]).

Estate planning documents executed when capacity is questionable may be given reduced weight. The Tribunal in AC declined to place weight on the 2022 will because of internal inconsistencies and doubts about the represented person’s capacity at the time of execution, preferring the 2017 instruments made with legal advice and at a time of unquestioned capacity (at [84]–[85], [108]).

An enduring power of guardianship that cannot be produced in completed form cannot operate as a less restrictive alternative. The GA Act requires execution and a signed acceptance. Where the completed document cannot be produced, the Tribunal will not rely on it as a basis for declining to make a guardianship order (at [58]–[59]).

Estate planners should ensure EPAs specifically address SMSF functions. The compliance problem in AC could have been mitigated at the planning stage if the 2017 EPA had expressly addressed the attorney’s authority in relation to the SMSF, the corporate trustee, and the directorship. Practitioners drafting EPAs for clients with SMSFs should include these provisions as a matter of course.

The involvement of a neutral administrator can reduce family conflict. The Tribunal’s approach of appointing the Public Trustee to manage day-to-day finances and maintenance – removing the attorney’s responsibility to provide an allowance to the partner – was directed at reducing contact points for conflict between family members (at [96], [107]).

10. Conclusion

AC [2024] WASAT 146 provides important guidance at the intersection of state guardianship legislation and Commonwealth superannuation regulation. Where a represented person’s estate includes an SMSF with a corporate trustee, the appointment of an administrator alone may not resolve compliance issues under the SIS Act. The Tribunal’s use of s 108 to vary an EPA – confining the attorney’s powers to SMSF-related functions while appointing the Public Trustee for the balance of the estate – provides a workable template for analogous cases.

The decision also reinforces the significance of the conflict of interest provisions in s 44(1)(b) and the Tribunal’s willingness to disaggregate guardian functions to manage conflicts. Practitioners should be alert to the possibility that a person who is suitable for one category of guardian function may be disqualified from another.

For estate planners, the decision underscores the importance of drafting EPAs with sufficient specificity to address SMSF-related functions, corporate trustee directorships, and the interaction with Commonwealth legislation. An EPA that does not address these matters may require variation by the Tribunal at a time of family conflict – a situation that careful planning could avoid.

Note: All names used in this article are pseudonyms assigned by the Tribunal. The judgment was published under those pseudonyms in accordance with the standard practice of the State Administrative Tribunal in proceedings brought under the Guardianship and Administration Act 1990 (WA) to protect the privacy of the represented person. No details in this article identify or are intended to identify any party, witness, or associated person.

Sterilisation of Males Under Guardianship: The Risk Threshold and the Best Interests Test

An Analysis of AB [2026] WASAT 31

1. Introduction

In AB [2026] WASAT 31, the State Administrative Tribunal (SAT) refused an application by a represented person’s guardian for the Tribunal’s consent to the carrying out of a vasectomy under s 59(1) of the Guardianship and Administration Act 1990 (WA) (GA Act). The decision is notable for several reasons. It is only the second reported case in which a Tribunal has been required to determine whether to consent to the sterilisation of a male represented person by vasectomy, following JC [2026] WASAT 13 delivered only weeks earlier. More significantly, it crystallises the practical threshold of risk that must be established before sterilisation can be found to be in a represented person’s best interests.

The majority’s reasoning establishes that, even where the psychological consequences of fatherhood would be catastrophic for the represented person, sterilisation will not be authorised where the current risk of sexual activity is assessed as negligible. The dissenting opinion of Dr Winterton provides a counterpoint, reasoning that even a low-probability risk justifies sterilisation where the severity of the consequence is sufficiently grave. This divergence on risk tolerance has direct implications for the way practitioners advise guardians contemplating such applications.

The decision warrants attention from practitioners in guardianship and administration, disability law, and health law. It provides a comprehensive worked example of the multi-factorial best interests analysis required by s 63 of the GA Act, and demonstrates the Tribunal’s insistence that sterilisation remains a measure of last resort—even where the represented person’s own expressed wishes appear to favour it.

2. Relevant Legal Framework

2.1 The Statutory Scheme

The sterilisation of a represented person is governed by Division 3 of Part 5 of the GA Act. Section 57(1) makes it an offence to carry out a sterilisation procedure on a represented person unless specified requirements are met. Those requirements, as summarised by the Tribunal at [7], are threefold: (a) both the guardian and the Tribunal must have consented in writing; (b) all rights of appeal under s 63 must have lapsed or been exhausted; and (c) the sterilisation must be carried out in accordance with any conditions imposed under the GA Act.

Section 58(1) prohibits the guardian from consenting until the Tribunal’s consent is first obtained. Section 56A requires that any decision on a sterilisation application be made by a Full Tribunal, defined in s 3 as the President or a Deputy President together with two other members. These procedural safeguards reflect the gravity of sterilisation decisions and the inherent difficulty in disentangling the represented person’s interests from those of their carers (at [5]).

Section 63 provides the substantive test: the Tribunal may consent to sterilisation if it is satisfied that sterilisation is in the best interests of the represented person. The GA Act does not prescribe the matters that must be considered in applying this test (at [8]).

Notably, the definition of “procedure for the sterilisation” in s 56 excludes a lawful procedure carried out for a lawful purpose other than sterilisation that incidentally results, or may result, in sterilisation. As the Tribunal in EW [2021] WASAT 111 identified, to “sterilise” means to deprive a person of fecundity or to render them incapable of producing offspring (at [10]).

2.2 The Common Law Framework

The leading authority on the sterilisation of persons with intellectual disability remains Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Marion’s Case). Although that decision concerned a child, its principles have been adopted in the guardianship context. Brennan J held that sterilisation required “compelling justification” (at 268–269). The majority held that sterilisation was a “step of last resort” to be undertaken only when alternative and less invasive procedures had failed or it was certain that no other treatment would work (at 259–260).

In Re Jane (1988) 94 FLR 1, the Family Court similarly emphasised the seriousness of sterilisation and the need for rigorous scrutiny of the justification advanced.

In EW [2021] WASAT 111, the Tribunal held that if there is no real likelihood that a represented person will engage in sexual activity, it is difficult to see how the sterilisation procedure could be necessary and in their best interests (at [82]). This proposition was adopted in JC [2026] WASAT 13 at [39] and again in the present case at [9].

The Tribunal in JC developed a comprehensive ten-factor framework for assessing sterilisation applications, which was adopted in full in AB at [8]. That framework is discussed in detail at Section 4 below.

Finally, the Tribunal at [7] cited the observation of O’Brien J in Director Clinical Services, Child & Adolescent Health Services and Kiszko [2016] FCWA 75; (2016) 312 FLR 319 at [101], that the determination of best interests is “not a precise science” but rather “multifaceted and complex” and “susceptible to very different conclusions being drawn by different people of equal compassion, sincerity and integrity.”

3. The Facts of the Case

3.1 The Represented Person

AB is a 19-year-old male with a severe intellectual disability and autism spectrum disorder, diagnosed in early childhood. His cognitive capacity has been assessed as equivalent to that of a child between 5 and 7 years old. These conditions are static and not expected to improve (at [16]). AB also has a number of other chronic health conditions (at [16](d)).

AB’s parents have been appointed as his limited guardians with functions including the power to make treatment decisions, subject to Division 3 of Part 5 of the GA Act (at [10]).

3.2 The Application

AB’s mother applied under s 59(1) for the Tribunal’s consent to a vasectomy. AB’s father supported the application. The vasectomy was proposed to be carried out at the same time as a cystoscopy that AB required to investigate a possible urethral stricture, thereby avoiding a second anaesthetic and hospital admission (at [19]).

3.3 The Evidence

The Tribunal received oral evidence from AB, his parents, his general practitioner (the GP), and an investigator appointed by the Public Advocate (the Investigator). Documentary evidence included a joint statement from AB’s parents, reports from the GP, the treating urologist (the Urologist), a psychologist (the Psychologist) and a functional capacity report (at [13]).

3.4 Key Factual Findings

The Tribunal made the following material findings of fact:

Capacity. AB has no understanding, nor any capacity to understand, the purpose of a vasectomy, its permanent implications, the surgical steps involved, its risks, or post-operative requirements (at [16](e)). He does not have the intellectual capacity to make a reasonable decision about whether to undergo the procedure (at [18]).

Expressed wishes. AB has consistently said that he does not want children, telling his GP, the Urologist and the Psychologist on multiple occasions that he is “retired from having children.” He told the Tribunal that the idea of children made him feel “very sad” and “useless” (at [28]–[31]). The topic causes him marked distress, including visible physical manifestations: bending over, covering his head, rocking, and ultimately leaving the hearing room (at [32]).

Effect of fatherhood. The Psychologist expressed the view that AB was likely to suffer “serious and unmanageable trauma” and a “catastrophic collapse” in the event of unplanned fatherhood (at [38]). The Tribunal accepted this evidence and found that if AB fathered a child and became aware of that fact, he would experience distress that would be “psychologically damaging and have a seriously adverse impact on his capacity to function” (at [41]).

Sexual understanding and activity. AB does not understand the concept of sex, has no understanding of its consequences, and has expressed no desire for a sexual relationship (at [48]–[50]). He does experience sexual arousal and is physically capable of forming and maintaining an erection (at [44]–[45]). The Tribunal found that the risk of AB initiating sexual activity was “negligible” (at [50]).

Vulnerability. AB is extremely vulnerable to exploitation. He has a tendency to comply with others’ wishes in order to please and be liked (at [56]–[57]). The Psychologist considered that his intellectual disability and lack of awareness of risk made him “particularly vulnerable to sexual exploitation” (at [58]).

Former relationship. AB had a long relationship with a girl with an intellectual disability, lasting approximately two to three years, which ended shortly before the hearing. The relationship had no sexual component. However, at one point the girlfriend announced that “they wanted to have sex.” AB’s parents managed this by ensuring they were not left alone (at [66]–[68]).

Supervision. AB requires almost constant care. He attends structured activities on five days per week and lives with his parents. He is left alone for short periods but does not tend to stray far from his home (at [60]–[61]). His parents have plans to place him in a supported living facility in the coming years (at [51]).

Alternative contraception. The only alternative contraceptive measure—the use of condoms—requires organisational capacity beyond AB’s abilities (at [23]). The Tribunal found there were no reasonable alternative contraceptive measures available (at [24]).

4. Analysis of the Tribunal’s Reasoning

4.1 The Ten-Factor Framework

The Tribunal adopted the ten-factor framework articulated in JC at [37] for assessing whether sterilisation is in the represented person’s best interests (at [8]). That framework addresses: (a) the represented person’s views about having children; (b) the likelihood of changing those views; (c) the likelihood of the represented person having children without the procedure; (d) the likely effect on the represented person if a child were conceived; (e) the extent of physical invasion and effect on self-perception; (f) risks and side effects; (g) availability of alternative contraceptive measures; (h) the likelihood of future improvement in capacity; (i) the likelihood of development of alternative contraception; and (j) whether the application is made in good faith.

4.2 The Majority’s Reasoning

The majority (Judge Vernon, Deputy President, and Member Sadleir) accepted that several factors favoured granting consent. They found that the psychological harm to AB from fatherhood would be catastrophic (at [41]); that AB consistently expressed a wish not to have children (at [33]); that there were no reasonable alternative contraceptive measures (at [24]); that a vasectomy carried relatively low surgical risk, especially if performed concurrently with the cystoscopy (at [21]); and that the application was made in good faith (at [79]).

However, the majority identified the “crucial issue” as whether there was any real prospect that AB might father a child, either at the present time or in the reasonably foreseeable future, such that the adverse consequences might eventuate (at [42]). On this critical question, the majority found that it was “highly unlikely” that AB would engage in sexual relations with a female (at [78]). This finding rested on three pillars: AB’s demonstrated lack of interest in sexual activity (at [50]); his current level of supervision (at [60]–[61]); and the evidence that his parents had managed the risk during his prior relationship (at [73], [76]).

The majority acknowledged two potential pathways to AB fathering a child. The first was sexual assault by a person with intellectual capacity. The Tribunal dismissed this as a basis for sterilisation, reasoning that a vasectomy would not lessen the risk of sexual assault itself, and that it was “highly unlikely” that AB would ever become aware of any child conceived in such circumstances (at [64]–[65]). The second was consensual activity with a female partner with an intellectual disability. The Tribunal accepted that AB was capable of forming such a relationship and that there were reasonable prospects he would do so in the future (at [71]). However, the evidence showed that AB’s prior relationship had no sexual component, and that the risk had been managed by parental supervision (at [73]).

Critically, the majority held that the level of supervision AB currently required would not be “significantly reduced” by a vasectomy (at [75]–[76]). AB’s mother herself described the benefit of a vasectomy as only removing an additional “layer” of monitoring and allowing them to step back “slightly” (at [74]). The majority concluded that the concern about the effect of AB’s likely distress if he became aware of fathering a child was “insufficient to support a finding that the sterilisation procedure is in his best interests” given the very low probability of the triggering event (at [78]).

The majority also considered and dismissed several subsidiary arguments. The possibility of AB passing on a genetic condition to any child lacked supporting medical evidence and was therefore speculative (at [86]–[89]). The stress placed on AB’s parents by their worry was a relevant but insufficient consideration (at [90]–[92]). The possibility of a child making a claim on AB’s estate could be addressed through estate planning (at [95]).

4.3 The Dissenting Opinion

Dr Winterton, Senior Sessional Member, agreed with the majority’s statement of the law and findings of fact but reached a different conclusion (at [100]). Dr Winterton reasoned that because AB was capable of entering into a relationship with a woman and there were reasonable prospects he would do so in the future, sexual intercourse “may happen, with the risk of pregnancy following” (at [102]). Given the finding that AB would experience a high level of distress if he fathered a child, with potentially significant consequences for his functioning, Dr Winterton considered it was in AB’s best interest to undergo a vasectomy now.

Additionally, Dr Winterton identified a quality-of-life argument: on the evidence, AB may be given more freedom to interact with a female partner, including engaging in sexual intercourse, if there were no risk of his fathering a child (at [103]). In Dr Winterton’s view, this may result in AB having a greater quality of life.

The divergence between the majority and the dissent reflects a fundamental difference in risk tolerance. The majority required a real prospect of the feared event occurring before sterilisation could be justified. Dr Winterton appears to have applied a lower threshold, accepting that the possibility of the event occurring, when combined with the severity of its consequences, was sufficient.

5. Assessing the Consequences

The practical consequences of the majority’s approach are significant for future sterilisation applications.

The risk threshold. The majority’s reasoning establishes that the test under s 63 is not simply whether sterilisation would remove a risk of harm. Rather, the risk of the harm materialising must itself be assessed, and where that risk is low, the severity of the consequences is not determinative. This is consistent with the “step of last resort” principle from Marion’s Case, but applies it in a way that may be uncomfortable for guardians who perceive even a small probability of catastrophic harm as warranting preventive action.

Supervision as a mitigating factor. The majority placed significant weight on the fact that AB’s current supervision arrangements effectively managed the risk of sexual activity. This creates a tension for practitioners: on the one hand, evidence of effective supervision reduces the assessed risk and militates against sterilisation; on the other hand, it imposes an ongoing supervisory burden on carers that sterilisation might alleviate. The majority resolved this tension by finding that AB required constant care in any event, so a vasectomy would not materially reduce the supervision required (at [75]–[76]).

The door left open. The majority expressly noted that AB is a young man whose circumstances may change, and that if a relevant change occurs, his parents may make a further application (at [98]). This indicates that a sterilisation application is not assessed on a once-and-for-all basis but is responsive to evolving circumstances. A change such as AB entering a supported living facility with less intensive supervision, or forming a relationship with a sexual component, could provide the factual foundation for a renewed application.

The sexual assault pathway. The majority’s treatment of the sexual assault concern is significant. By finding that a vasectomy would not reduce the risk of sexual assault itself, and that AB would be unlikely to become aware of any child conceived by sexual assault, the Tribunal effectively foreclosed reliance on the sexual assault pathway as a justification for sterilisation in most cases (at [64]–[65]).

6. Worked Example

Consider the following hypothetical. CD is a 28-year-old female with a moderate intellectual disability. She has a cognitive capacity equivalent to a 10-year-old. CD lives in a supported living facility with overnight staff supervision but is largely unsupervised during daytime activities. CD has been in a relationship with a male resident of the same facility for approximately 12 months. Staff have observed physical affection between them, including kissing and embracing, and have on one occasion found them together in CD’s bedroom with the door closed. CD has told staff that she and her partner “love each other.” CD’s guardian, her sister, applies for the Tribunal’s consent to a sterilisation procedure.

Arguments for the applicant

Applying the ten-factor framework from JC as adopted in AB, the applicant would emphasise the following. Unlike AB, CD is in an active relationship with a sexual component that is progressing toward intercourse. The level of supervision, while present, has not prevented intimate contact. CD’s cognitive capacity, while higher than AB’s, is insufficient to understand the responsibilities of parenthood or to use contraception independently. The risk of CD engaging in unprotected sexual activity is not merely theoretical but is supported by direct observational evidence. The consequences of an unplanned pregnancy for CD—including the physical demands of pregnancy, the psychological impact, and the potential removal of a child by child protection authorities—would be severe. Unlike in AB, the current supervisory arrangements have not effectively managed the risk.

Arguments for the Public Advocate or represented person

The respondent would argue that CD’s higher cognitive capacity means there is a greater prospect that she can be taught to use contraception, such as an implant or injection, which would be less invasive and reversible. The fact that CD appears to welcome the relationship and expresses affection for her partner raises the possibility that she may, in the future, wish to have children, and at 28 she is still of an age where that wish could emerge. A long-acting reversible contraceptive could be trialled before the “last resort” of sterilisation is pursued. The respondent would also argue that sterilisation does not protect against sexually transmitted infections and that the facility’s supervisory arrangements should be improved rather than CD’s reproductive capacity permanently removed.

On the majority’s reasoning in AB, this hypothetical is distinguishable. The real prospect of sexual activity—the factor that was absent in AB’s case—is present. However, the availability of alternative, less invasive contraceptive measures may still mean that sterilisation is not a step of last resort, depending on whether a trial of such measures has been undertaken.

7. Practitioner Guidance: A Step-by-Step Framework

The following framework is derived from the principles established in AB, read with JC, EW and Marion’s Case.

Step 1: Confirm jurisdiction and standing. Verify that a guardianship order is in force and that the applicant is the represented person, the guardian, or the Public Advocate (s 59(1)). Confirm that the guardian’s functions include treatment decisions subject to Division 3 of Part 5 (at [10]).

Step 2: Obtain expert evidence on the nature of the procedure. Secure a report from the treating specialist addressing the procedure, its permanence, risks, side effects, and whether reversal is feasible. If the procedure can be combined with another medically necessary procedure to reduce the burden on the represented person, that should be documented (at [19]).

Step 3: Assess the represented person’s capacity and views. Obtain evidence, ideally from a psychologist or psychiatrist, as to the represented person’s cognitive capacity, whether they understand the concept and consequences of sterilisation, and their expressed wishes regarding having children. Note that the represented person’s wishes are relevant but not determinative where they lack the capacity to understand the implications (at [36]).

Step 4: Assess the likelihood of sexual activity. This is the critical threshold question. Gather evidence addressing whether the represented person has any understanding of sexual activity, whether they have expressed any desire for sexual relationships, whether they are in or have been in a relationship with a sexual component, and whether they have engaged in any sexually motivated behaviour. The Tribunal’s reasoning in both EW (at [82]) and AB (at [42]) makes clear that without a “real prospect” of sexual activity, sterilisation is unlikely to be found to be in the represented person’s best interests.

Step 5: Assess the consequences of the represented person having a child. Obtain psychological evidence addressing the likely effect on the represented person of learning they had become a parent. The Tribunal gave significant weight to evidence of likely “catastrophic collapse” in AB’s case (at [38]), and identified this as the most important factor favouring consent (at [37]). However, this factor alone is insufficient without a corresponding finding of real risk.

Step 6: Investigate alternative contraceptive measures. Identify all available alternatives to sterilisation, assess whether the represented person is capable of using them, and determine whether any have been tried and failed. Sterilisation is a step of last resort (Marion’s Case at 259–260). The absence of any reasonable alternative strengthens the application (at [24]).

Step 7: Address the supervision context. Be aware that evidence of effective supervisory arrangements may cut both ways. Where current supervision effectively manages the risk, the Tribunal may conclude that sterilisation is unnecessary (at [76]). Conversely, if a change in living arrangements is imminent that will reduce the level of supervision, this should be documented and evidenced.

Step 8: Demonstrate good faith. Ensure the application clearly distinguishes between the represented person’s interests and the interests of the guardian or family members. The Tribunal is alert to the difficulty of disentangling these interests (at [5]). Be prepared for the Tribunal to scrutinise subsidiary concerns—such as the financial burden of raising a grandchild, claims on the represented person’s estate, or the inconvenience of supervising the represented person—and to assess whether these are properly characterised as concerns about the represented person’s welfare.

Step 9: Engage with the Public Advocate. The Tribunal may request the Public Advocate to provide an independent view of the represented person’s best interests (at [12]). Practitioners should co-operate with the Public Advocate’s investigator and provide access to the represented person. The investigator’s evidence may carry significant weight, particularly where it provides independent corroboration of the clinical evidence.

Step 10: Consider timing and changed circumstances. If the application is likely to fail on the current evidence, consider whether it is premature. The Tribunal in AB expressly left open the possibility of a further application if circumstances change (at [98]). A change in the represented person’s living arrangements, the development of a relationship with a sexual component, or the failure of alternative contraceptive measures may provide a stronger factual foundation.

8. Evidence and Arguments Available to Each Side

8.1 Arguments for the Applicant (Guardian)

Practitioners acting for a guardian should focus on the following categories of evidence and argument:

Severity of consequences. Psychological and psychiatric evidence demonstrating the likely impact on the represented person of learning they had become a parent. In AB, the Psychologist’s evidence of “catastrophic collapse” was accepted in full (at [38]), and the majority acknowledged this as the “most important consideration” in favour of consent (at [37]).

Vulnerability to exploitation. Evidence that the represented person is susceptible to suggestion, unable to recognise unsafe situations, and may acquiesce to sexual activity without genuine consent. This was accepted in AB (at [59]) but was insufficient without a corresponding finding of real risk.

Absence of alternatives. Evidence that the represented person is unable to use any available contraceptive measure independently. Where condoms are the only alternative and the represented person lacks the organisational capacity to use them, this factor is established (at [23]–[24]).

Anticipated change in supervision. If a move to a supported living facility or other change in living arrangements is planned, evidence that the represented person will be subject to less intensive supervision and correspondingly greater exposure to the risk of sexual activity. In AB, the anticipated move was “at least a few years away” (at [63]), which limited its weight.

Expressed wishes. Where the represented person has consistently expressed a wish not to have children, this is relevant, although not determinative where capacity to understand the implications is lacking (at [36]).

8.2 Arguments for the Respondent

Low probability of sexual activity. Evidence that the represented person has no understanding of sex, has expressed no desire for sexual relationships, and has not engaged in sexually motivated behaviour. The Tribunal in EW and AB held that without a real likelihood of sexual activity, sterilisation cannot be in the represented person’s best interests.

Effective supervision. Evidence that the current level of supervision effectively manages the risk and that sterilisation would not materially reduce that supervisory burden. In AB, the Tribunal found that AB required constant care in any event (at [75]–[76]).

Permanence and irreversibility. Emphasise that vasectomy is to be treated as permanent, even though reversal is technically possible but unreliable (at [20]–[21]). This engages the “step of last resort” principle.

Youth and potential for change. Where the represented person is young, argue that their circumstances may change and their views on children may evolve. In AB, the Tribunal noted that at 19, “we must assume that it is not impossible that he might” change his mind about children (at [35]).

Disentangling interests. Scrutinise whether the application is motivated in part by the guardian’s own interests, such as the burden of caring for a grandchild, financial concerns about claims on an estate, or anxiety about the represented person’s genetic conditions being inherited by a child (at [80], [86]–[89], [93]–[95]).

9. Key Takeaways for Legal Practice

1. The real prospect of sexual activity is the threshold question. Where the evidence does not establish a real prospect that the represented person will engage in sexual activity, sterilisation will not be found to be in their best interests, regardless of how severe the psychological consequences of parenthood might be (at [42], [78]; EW at [82]).

2. Severity of harm, standing alone, is insufficient. The majority’s reasoning establishes that the analysis requires both a risk assessment and a consequence assessment. A finding of catastrophic psychological harm from fatherhood is necessary but not sufficient; the probability of the triggering event must also be established (at [78]).

3. Sterilisation remains a step of last resort. The requirement of “compelling justification” from Marion’s Case is applied with full rigour. Even where no alternative contraceptive measures are available and the represented person’s expressed wishes appear to align with sterilisation, the Tribunal will not consent unless the overall constellation of factors supports it (at [97]).

4. Effective supervision may undercut the application. Paradoxically, evidence that the guardian is effectively managing the risk of sexual activity may demonstrate that sterilisation is unnecessary. Practitioners should be aware that presenting evidence of vigilant supervision, while demonstrating good care, may weaken the application (at [76]).

5. The represented person’s expressed wishes are relevant but not determinative. Where the represented person lacks the cognitive capacity to understand the implications of sterilisation or parenthood, their expressed preferences are taken into account but cannot determine the outcome (at [36]). Practitioners should not overstate the significance of expressed wishes.

6. Applications may be renewed on changed circumstances. The Tribunal expressly contemplated that a further application might be brought if circumstances change (at [98]). This indicates that a refusal is not necessarily final, and practitioners should advise guardians about the circumstances that may provide a stronger factual foundation for a future application.

7. The sexual assault pathway is of limited utility. A vasectomy does not protect against sexual assault itself. The Tribunal found that, in the context of sexual assault by a person with intellectual capacity, it was highly unlikely that the represented person would ever become aware of any resulting child (at [65]). This limits the usefulness of this concern as a basis for sterilisation.

8. Subsidiary concerns about family interests will be scrutinised. While the Tribunal accepted that AB’s parents were motivated by genuine concern for his welfare (at [79]), it separately analysed each subsidiary concern—estate claims, genetic conditions, parental stress—and found each insufficient. Practitioners should focus arguments on the represented person’s interests and avoid reliance on benefits that accrue primarily to family members.

9. The dissent signals an alternative approach. Dr Winterton’s dissent indicates that reasonable minds may differ on the weight to be given to low-probability but high-consequence risks. This divergence may be relevant on appeal or in future cases where the factual matrix falls between the clearly insufficient risk in AB and the clearly established risk in a case involving active sexual behaviour.

10. The ten-factor framework from JC is now established. The adoption by successive Full Tribunals of the ten-factor framework articulated in JC at [37] confirms its status as the standard analytical tool for sterilisation applications in Western Australia. Practitioners should structure their evidence and submissions around each of these factors.

10. Conclusion

AB [2026] WASAT 31 reinforces that the Tribunal will approach applications for consent to sterilisation with the rigour that the gravity of the decision demands. The case confirms that the best interests test under s 63 of the GA Act incorporates not only an assessment of the severity of harm that might follow from the represented person having a child, but also a threshold assessment of the real prospect of that event occurring.

For practitioners, the decision provides both a detailed analytical framework and a cautionary illustration. The fact that the majority was prepared to refuse consent—notwithstanding accepted evidence of catastrophic psychological harm, the absence of alternative contraceptive measures, the represented person’s own expressed wishes, and the good faith of the applicant—demonstrates the height of the bar that sterilisation applications must clear.

The dissenting opinion of Dr Winterton offers a defensible alternative analysis, grounded in the same factual findings but applying a lower threshold of risk tolerance. The divergence between the majority and the dissent is likely to be of particular interest in future cases where the factual matrix presents a closer question on the likelihood of sexual activity.

The core practical message is clear: practitioners advising guardians must carefully assess the real prospect of the represented person engaging in sexual activity before bringing an application. Where that prospect is low, the appropriate course may be to monitor the situation and document any change in circumstances that may provide the foundation for a renewed application at a later date.

 Note: All names used in this article are pseudonyms assigned by the Tribunal. The judgment was published under those pseudonyms in accordance with the State Administrative Tribunal’s standard practice in guardianship proceedings. No details in this article identify or are intended to identify any party, witness, or associated person.

Disaggregating Co-Morbid Conditions in Guardianship Applications: When Medication Misuse, Personality Disorder and Mental Illness Cannot Ground a Guardianship Order

An Analysis of J [2026] WASAT 29

1.  Introduction

The decision of Senior Member Marillier in J [2026] WASAT 29 is a significant contribution to the jurisprudence of the State Administrative Tribunal (“the Tribunal”) on the scope of the Guardianship and Administration Act 1990 (WA) (“the GA Act”). The decision addresses a question of considerable practical importance for guardianship practitioners: where a represented person presents with multiple co-morbid conditions, which of those conditions can properly sustain a guardianship order?

The Tribunal’s analysis required the disaggregation of four distinct conditions — Cluster B personality disorder, bipolar affective disorder, chronic medication misuse, and mild cognitive impairment consistent with vascular dementia — and a principled determination of whether each condition, individually or in combination, met the statutory criteria in s 43(1)(b) and (c) of the GA Act.

The decision warrants close attention from practitioners for three reasons. First, it articulates a clear analytical framework for multi-diagnosis cases. Second, it draws a principled distinction between episodic substance-induced impairment and intrinsic cognitive incapacity, holding that the former does not constitute the “lack of decision-making ability” contemplated by the GA Act. Third, it demonstrates the evidentiary weight the Tribunal accords to longitudinal professional observation of functional deterioration when formal diagnostic evidence is equivocal.

2.  Relevant Legal Framework

The Statutory Test

Section 43(1) of the GA Act provides that the Tribunal may appoint a guardian for a person if satisfied that the person is: (a) incapable of looking after their own health and safety; (b) unable to make reasonable judgments in respect of matters relating to their 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. In addition, s 43(1)(c) requires that the Tribunal be satisfied the person is “in need of a guardian.”

Section 4 of the GA Act sets out the principles governing the exercise of the Tribunal’s jurisdiction, including the presumption of capacity, the requirement that any order be the least restrictive alternative, and the obligation to ascertain the views and wishes of the represented person.

The Concept of “Mental Disability” and the Legislative Purpose

The GA Act does not define “mental disability” in terms that prescribe specific diagnoses. In FY [2019] WASAT 118 at [32], the Full Tribunal confirmed that a finding of mental disability may rest on one or a combination of identified medical conditions, or it may be established where the underlying cause is not entirely clear or susceptible to a particular medical diagnosis, provided the existence of the mental disability is beyond doubt.

Senior Member Marillier drew on the long title of the GA Act and the second reading speech of the Minister for Health (Legislative Assembly, 6 June 1990) to identify the legislative purpose. The long title describes the Act as providing “for the guardianship of adults who need assistance in their personal affairs.” The second reading speech contemplates that the Tribunal will appoint a guardian “only where it is established that a person lacks a decision-making ability” and identifies the intended beneficiaries as persons who, “as a result of” an intrinsic condition, “are unable to make decisions.”

S and SC [2015] WASAT 138

In S and SC [2015] WASAT 138, Member Leslie appointed a guardian for a man who consumed alcohol to the point of complete intoxication daily (at [84]). However, as the Tribunal in J noted, the critical finding in S and SC was that the chronic alcohol abuse had caused “significant memory deficits that are irreversible” rendering the represented person’s judgment impaired “even during the limited times when he is sober” (at [85]). The guardianship order was therefore grounded not in the intoxication itself but in the permanent cognitive damage it had caused.

3.  The Facts of the Case

The Represented Person and the Procedural History

J, a retired nurse in her mid-70s, was the subject of a fourth application to the Tribunal since January 2024 (at [1]). Her husband B applied under s 40 of the GA Act for the appointment of the Public Advocate as J’s guardian, citing medication misuse, falls, unresponsiveness, and calls to emergency services (at [23]).

The procedural history is striking. The first application in February 2024 resulted in the appointment of J’s adult children as limited guardians for three months to cover B’s overseas absence (at [7]). At review, equivocal capacity evidence led the Tribunal to revoke the order (at [10]). A second application in October 2024 culminated in J’s involuntary admission to an older adult psychiatric unit for 55 days (at [13], [21]), but the order was again dismissed after B confirmed he remained willing to provide support at home (at [22]).

The Medical Evidence

J’s diagnostic history was characterised by shifting and conflicting assessments across multiple clinicians and settings. A long-standing diagnosis of bipolar affective disorder was rescinded in 2021 during a 17-day hospital admission where lithium toxicity was identified (at [5]). A diagnosis of vascular dementia was made by physicians at two tertiary hospitals and a geriatrician during the same period, supported by a CT brain showing an old lacunar infarct and microvascular ischaemic change, and a Montreal Cognitive Assessment (MoCA) score of 10/30 (at [5], [67]).

During the 55-day psychiatric admission in late 2024, J’s Addenbrooke’s Cognitive Examination (ACE-III) score was 72/100, below the highly specific cut-off of 82 (at [15], [68]). An MRI brain scan showed changes consistent with moderate chronic small vessel ischaemic change (at [16]). The treating psychiatrist diagnosed bipolar affective disorder with a resolving depressive relapse, co-morbid Cluster B personality disorder (emotionally unstable and histrionic), and mild cognitive impairment (at [16]). However, the psychiatrist subsequently retreated from the bipolar diagnosis in oral evidence, and the discharge summary listed only personality disorder and mild cognitive impairment (at [21], [58]).

The OAMHS psychiatrist, who had seen J three times in the preceding twelve months, remained unsure of J’s diagnosis or diagnoses and was unsure of her capacity in all three domains of personal decision-making (at [30], [32]). The OAMHS case manager described chronic medication misuse (particularly the analgesic Targin), urinary and faecal incontinence, neglect of personal hygiene, and social isolation (at [34]–[40]). Five emergency department attendances between July 2025 and January 2026 were documented, including three episodes of opioid intoxication (at [41]).

The Evidence of Functional Impairment

B’s oral evidence included that J could not work out how to use the keys to unlock the apartment from the inside, and could not heat pre-prepared meals in the microwave (at [43], [47], [72]). The OPA investigator observed physical deterioration since his previous visit, including visible faecal soiling, a nightshirt worn inside out, and increased agitation, while noting that J denied any continence issues and expressed anger at B for purchasing continence pads (at [51]).

4.  Analysis of the Tribunal’s Reasoning

The Disaggregation Methodology

The analytical structure adopted by Senior Member Marillier is the most significant methodological contribution of the decision. Rather than treating J’s multiple conditions as a composite clinical picture, the Tribunal assessed each condition separately against the statutory criteria, asking: does this condition, of itself, ground a guardianship order?

Personality Disorder

The Tribunal accepted that J had Cluster B personality disorders, supported by consistent family evidence over two years and findings by two psychiatrists (at [56]). However, Senior Member Marillier found that J had managed to pursue a professional career throughout adulthood, and the personality disorder was not causing a loss of capacity to make reasonable judgments, notwithstanding that it compromised her ability to maintain supportive relationships (at [56]). This is an important finding: personality disorder, even when diagnosed and behaviourally significant, is not of itself a basis for guardianship.

Mood Disorder

The Tribunal’s treatment of the mood disorder is nuanced. Senior Member Marillier was satisfied that J suffered from a mental illness causing recurrent crises, with two long hospital admissions and differing psychiatric opinions over time (at [60]). The Tribunal found that when acutely unwell, J was not able to make reasonable decisions. However, the Tribunal held that the Mental Health Act 2014 (WA) was the relevant legislation for responding to J’s impaired decision-making during acute episodes, not the GA Act (at [60]). This channels acute psychiatric crises into the involuntary treatment regime and reserves guardianship for conditions with a more enduring character.

Medication Misuse

The Tribunal’s analysis of medication misuse at [61]–[66] is the centrepiece of the decision. Senior Member Marillier accepted that J had a long-standing pattern of medication misuse that put her health and safety at risk (at [62], [66]). However, the Tribunal held that “episodic intoxication due to substance misuse is not a basis for the Tribunal to appoint a guardian in the absence of cognitive impairment when not intoxicated” (at [62]).

This finding was grounded in a purposive analysis of the GA Act. The Tribunal looked to the long title and the second reading speech, observing that the legislation “appears to anticipate an intrinsic condition underpinning the appointment of a guardian rather than a temporary impairment predictably caused by a self-administered chemical agent” (at [64]). Senior Member Marillier drew a clear line: “[t]he Tribunal could and should not appoint a guardian for every person who has made or may make impaired decisions while intoxicated” (at [64]).

The Tribunal distinguished S and SC [2015] WASAT 138, where guardianship was appropriate because chronic alcohol abuse had caused irreversible cognitive deficits persisting during sobriety (at [65]–[66]). In J’s case, the medication misuse did not appear to cause cognitive impairment when she was not intoxicated (at [66]). Accordingly, the misuse contributed to risk but did not constitute a “lack of decision-making ability” with the “implication of chronicity” required by the legislation (at [66]).

Mild Cognitive Impairment / Vascular Dementia

Having excluded personality disorder, mood disorder, and medication misuse as independent grounds, the Tribunal turned to the cognitive impairment. Senior Member Marillier engaged carefully with the neuroimaging and psychometric evidence. The CT and MRI findings of cerebrovascular disease were accepted as structural abnormalities present for at least five years, unaffected by transient illness or medication (at [69]). The 2021 MoCA score of 10/30 was discounted because it occurred during lithium toxicity (at [70]). However, the ACE-III score of 72/100, obtained after three weeks as an inpatient and accepted by the treating psychiatrist as demonstrating at least mild cognitive impairment, was given significant weight (at [71]).

Critically, the Tribunal accorded substantial evidentiary weight to the longitudinal observations of the OAMHS clinicians and the OPA investigator, who had provided evidence across multiple hearings over two years and could attest to progressive deterioration in J’s functional capacity (at [73]). Senior Member Marillier described this longitudinal professional collateral evidence as “highly persuasive of a progressive neuro-degenerative condition” (at [73]).

On this basis, the Tribunal was satisfied that J suffered from a measurable cognitive impairment, accompanied by changes on brain imaging and progressive functional deterioration, consistent with the diagnosis of vascular dementia made in 2021, and that she had lost the capacity to make reasonable decisions about her person (at [74]–[75]).

5.  Assessing the Consequences

The practical consequences of the Tribunal’s disaggregation methodology are significant for both applicants and represented persons.

For applicants, the decision makes clear that applications grounded primarily in medication misuse or substance-related impairment face a high threshold. Unless the applicant can demonstrate that the substance misuse has caused permanent cognitive damage persisting during sobriety (as in S and SC), the intoxication itself — however dangerous — will not sustain an order. This has particular implications in cases involving elderly persons who misuse prescription opioids, benzodiazepines, or other medications, a scenario of increasing clinical prevalence.

For represented persons, the decision provides an important safeguard against the appointment of a guardian on the basis of behaviours that, however risky, are within the person’s autonomous decision-making. The Tribunal’s reasoning preserves the distinction between unwise decisions and incapable decisions — a distinction fundamental to the GA Act’s rights-based framework.

The decision also has systemic implications for the relationship between the GA Act and the Mental Health Act 2014 (WA). By channelling acute psychiatric crises into the involuntary treatment regime, the Tribunal reinforces the separate and distinct purposes of the two legislative schemes. The GA Act provides for ongoing substitute decision-making for persons with enduring incapacity; the Mental Health Act provides for crisis intervention and compulsory treatment for persons whose decision-making is temporarily impaired by acute mental illness.

6.  Worked Example

Consider a hypothetical represented person, “M,” aged 68, who has a history of alcohol use disorder and chronic obstructive pulmonary disease. M lives alone. His adult daughter applies for a guardianship order after M is hospitalised three times in six months following falls sustained while intoxicated. M has been prescribed opioid pain medication for a fractured hip and has on two occasions taken more than the prescribed dose. A GP report states that M has a “possible mild cognitive impairment” but formal neuropsychological testing has not been undertaken. An MRI brain shows age-related changes only.

Applicant’s Perspective

The applicant would seek to establish that M’s combined alcohol misuse and medication misuse, in the context of his chronic illness and social isolation, have caused or are causing a progressive loss of decision-making capacity. She would point to the repeated hospitalisations as evidence that M is incapable of looking after his own health and safety (s 43(1)(b)). She should obtain formal neuropsychological testing (not merely GP screening) and, if possible, neuroimaging showing structural pathology beyond age-related changes. Without evidence of cognitive impairment persisting during sobriety, the application is at risk of failing on the reasoning in J at [62]–[66].

Represented Person’s Perspective

M’s representative would argue that M’s hospitalisations resulted from episodic intoxication and do not demonstrate an intrinsic lack of decision-making ability. Relying on J at [64], M would submit that the GA Act is not intended to appoint guardians for persons who make impaired decisions while intoxicated. M would resist formal neuropsychological testing if confident it would return a normal result, or seek to have testing conducted in optimal conditions. M would point to the absence of structural brain pathology beyond age-related changes as distinguishing his case from J, where both CT and MRI showed cerebrovascular disease.

7.  Practitioner Guidance: A Step-by-Step Framework

The following framework is derived from the Tribunal’s reasoning in J and is intended to assist practitioners advising clients in multi-diagnosis guardianship applications.

Step 1: Identify and Itemise Each Condition Separately.  Do not present the represented person’s conditions as a composite clinical picture. The Tribunal’s methodology requires each diagnosis to be assessed independently against the statutory criteria. Practitioners should ensure that medical reports address each condition separately and specify which condition or conditions are said to cause the loss of capacity.

Step 2: For Each Condition, Ask Whether It Causes an Intrinsic Loss of Decision-Making Ability.  Apply the test derived from the long title and second reading speech as articulated at [63]–[64]: does this condition cause a lack of decision-making ability that is intrinsic rather than the temporary, predictable result of a self-administered chemical agent? If the impairment is episodic and substance-induced, it will not sustain an order unless permanent cognitive damage has resulted (S and SC at [85]).

Step 3: Consider the Appropriate Legislative Regime.  If the represented person’s impaired decision-making arises from acute mental illness, consider whether the Mental Health Act 2014 (WA) is the more appropriate vehicle for intervention (at [60]). The GA Act is reserved for enduring incapacity, not crisis management.

Step 4: Obtain and Present Objective Cognitive Evidence.  Formal psychometric testing (ACE-III, MoCA, or neuropsychological assessment) and neuroimaging (CT or MRI brain) are essential where cognitive impairment is alleged. The Tribunal will scrutinise the circumstances in which testing was conducted: scores obtained during acute illness or medication toxicity may be discounted (at [70]), while scores obtained after a period of stabilisation carry greater weight (at [71]).

Step 5: Assemble Longitudinal Evidence of Functional Deterioration.  The Tribunal placed significant weight on the longitudinal observations of the OAMHS clinicians and the OPA investigator, describing their evidence of progressive deterioration as “highly persuasive” (at [73]). Practitioners should seek to adduce evidence from clinicians or professionals who have observed the represented person over time, not merely at a single point in time.

Step 6: Address Need Separately from Capacity.  Even where the capacity threshold is met, the Tribunal must be separately satisfied that the person is “in need of a guardian” (s 43(1)(c)). The Tribunal’s analysis at [76]–[80] shows that need may be absent where an informal carer is willing and able to provide adequate support. The need inquiry is dynamic: what was unnecessary at one hearing may become necessary at the next if the carer’s willingness or ability changes.

Step 7: Ascertain and Present the Represented Person’s Views.  Section 4 of the GA Act requires the Tribunal to ascertain the represented person’s views and wishes. Where the represented person does not attend, practitioners should ensure that the OPA investigator or another independent person has met with the represented person and can convey their views (at [50]–[54], [81]). The Tribunal may decline to follow those wishes but must address them.

8.  Evidence and Arguments Available to Each Side

For the Applicant

An applicant in a multi-diagnosis case should: (a) obtain medical reports that disaggregate each condition and address its individual effect on capacity; (b) secure formal cognitive testing conducted during a period of clinical stability, not during acute illness or intoxication; (c) obtain neuroimaging to identify structural brain pathology; (d) adduce longitudinal evidence from clinicians who have observed the represented person over an extended period; (e) if medication misuse is a significant feature, present evidence that it has caused permanent cognitive damage persisting during sobriety, relying on S and SC at [85]; (f) address the need requirement separately, with evidence of the inadequacy of less restrictive alternatives; and (g) ensure that the represented person’s views have been obtained and can be presented to the Tribunal.

For the Represented Person

A represented person resisting a guardianship application in a multi-diagnosis case should: (a) challenge each condition separately, arguing that personality disorder does not cause incapacity (at [56]), that acute mental illness is properly addressed under the Mental Health Act 2014 (at [60]), and that substance-induced impairment is not an intrinsic lack of decision-making ability (at [62]–[66]); (b) challenge the reliability of cognitive testing conducted during periods of acute illness, medication toxicity, or hospitalisation; (c) present evidence of functional capacity during periods of stability; (d) argue that less restrictive alternatives exist, such as informal carer support, community services, or three-day medication dispensing (at [61], [76]); and (e) assert the person’s own views and wishes, including their opposition to the appointment of a guardian.

9.  Key Takeaways for Legal Practice

1.  Disaggregate co-morbid conditions.  The Tribunal requires each diagnosis to be assessed independently against the statutory criteria. A composite clinical picture is insufficient; each condition must be shown to cause, or contribute to, a loss of decision-making ability.

2.  Episodic intoxication is not a basis for guardianship.  Medication misuse or substance misuse that causes temporary impairment while intoxicated does not constitute the “lack of decision-making ability” contemplated by the GA Act unless permanent cognitive damage has resulted.

3.  Personality disorder does not equate to incapacity.  A personality disorder, even when diagnosed and behaviourally significant, is not of itself a basis for guardianship. The Tribunal will look for evidence of whether the person was able to function independently throughout adulthood despite the personality disorder.

4.  Acute mental illness is addressed under the Mental Health Act.  The GA Act provides for enduring substitute decision-making. Where the represented person’s impaired decision-making arises from an acute psychiatric episode, the Mental Health Act 2014 (WA) is the appropriate legislative vehicle.

5.  Cognitive testing must be contextualised.  Scores obtained during lithium toxicity, acute illness, or medication side effects may be discounted. Testing conducted after a period of clinical stabilisation carries greater weight.

6.  Longitudinal professional evidence is highly persuasive.  The Tribunal placed significant weight on the evidence of clinicians and OPA investigators who had observed the represented person across multiple hearings over two years. Single-point-in-time assessments are less compelling.

7.  Neuroimaging supports the case for structural pathology.  CT and MRI findings of cerebrovascular disease were accepted as objective evidence unaffected by transient illness or medication, providing a stable foundation for the finding of cognitive impairment.

8.  The need requirement is dynamic and must be addressed at each hearing.  A person may have lost capacity but not be “in need” of a guardian where adequate informal support exists. The inquiry is situational and may change between hearings as the carer’s willingness or ability to continue fluctuates.

9.  The Tribunal will not allow withdrawal without scrutiny.  Where the procedural history and cognitive evidence warrant continued oversight, the Tribunal may decline to permit withdrawal of an application, as occurred at the second application stage (at [19]).

10.  Participation and communication support matter.  The Tribunal arranged voice-to-text instant transcription to accommodate J’s hearing impairment and the OPA investigator communicated by typing questions for J to answer verbally (at [8], [50]). Practitioners should consider and advocate for appropriate communication supports where a represented person has sensory impairments.

10.  Conclusion

J [2026] WASAT 29 provides a disciplined analytical framework for multi-diagnosis guardianship applications. By requiring each co-morbid condition to be assessed independently, the Tribunal has clarified the limits of the GA Act’s reach and reinforced the distinction between temporary, substance-induced impairment and the enduring cognitive incapacity that the legislation was enacted to address.

The decision’s central message for practitioners is one of analytical rigour: identify each condition, assess its individual effect on capacity, and present evidence that is both objective and longitudinal. Applications that rest on a generalised impression of incapacity, or that conflate the effects of substance misuse with intrinsic cognitive decline, will not succeed. Equally, represented persons can take comfort that the Tribunal will not strip their autonomy on the basis of behaviours — however risky — that do not demonstrate an enduring loss of the ability to make decisions.

The decision also serves as a reminder that the GA Act and the Mental Health Act 2014 (WA) serve distinct purposes. Guardianship is not a crisis-response tool; it provides for ongoing substitute decision-making where a person’s intrinsic capacity is permanently or progressively diminished. Where the impairment is acute, episodic, or substance-induced, other legislative regimes are more appropriate.

The Role of Expert Evidence in Guardianship and Administration Proceedings

Guardianship and administration applications in Western Australia often involve contested questions of mental capacity. In such cases, the State Administrative Tribunal (“the Tribunal”) must weigh lay evidence alongside professional assessments by medical and allied health practitioners. The recent decision in MM [2025] WASAT 103 provides a useful illustration of the principles the Tribunal applies when considering expert evidence.

Background: MM [2025] WASAT 103

The case concerned MM, a woman in her early 80s. Her daughter, YY, applied to be appointed administrator of MM’s financial affairs, alleging that MM lacked capacity and was the victim of coercion and elder abuse by her son, SS. Central to the dispute was whether MM had the ability to manage her financial affairs, particularly in light of a complex property transaction with SS.

YY arranged for MM to be assessed by a neuropsychologist, Dr J, who concluded that MM had a mild cognitive impairment and was unable to independently advocate for her interests in complex financial decisions. In contrast, MM’s general practitioner and a geriatrician (Dr F) found that MM had capacity to manage her affairs. Evidence was also provided by the Public Advocate and Public Trustee.

The Tribunal ultimately held that the presumption of capacity under the Guardianship and Administration Act 1990 (WA) had not been rebutted, and dismissed the application2025WASAT103.

The Presumption of Capacity

Section 4 of the Guardianship and Administration Act 1990 (WA) enshrines the presumption that every person is capable of managing their own affairs until the contrary is proved to the satisfaction of the Tribunal. As observed in Briginshaw v Briginshaw (1938) 60 CLR 336, clear and cogent evidence is required to displace such a presumption where serious consequences follow2025WASAT103.

In MM, the Tribunal emphasised that it will only be persuaded to override the presumption where the evidence is strong and consistent. Lay testimony, observed behaviour, and professional assessments all form part of this evaluative exercise.

The Tribunal’s Approach to Expert Evidence

The Tribunal is not bound by the rules of evidence (see State Administrative Tribunal Act 2004 (WA), ss 32(2), 32(4)) and may inform itself in any manner it thinks fit. This allows the Tribunal to consider expert reports while also taking into account the circumstances in which they were obtained.

In MM, the Tribunal noted several concerns with Dr J’s report:

• MM did not understand the purpose of the assessment and was not given the opportunity to review key documents provided to Dr J by YY.

• Dr J relied heavily on information supplied by YY, without equivalent input from SS.

• The conclusions were inconsistent with the direct observations of the Tribunal, as well as the reports of MM’s GP, geriatrician, and the Public Trustee.

As a result, the Tribunal gave less weight to Dr J’s opinion, preferring the evidence of Dr F and others who concluded that MM retained capacity.

The Weight to Be Given to Expert Evidence

The decision underscores that while expert reports are often central to guardianship proceedings, the Tribunal will assess their independence, methodology, and consistency with other evidence before determining the weight to be attached to them.

As noted in XYZ (Guardianship) [2007] VCAT 1196, the Tribunal may consider evidence from a wide variety of sources, both lay and professional, when assessing capacity. In GC and PC [2014] WASAT 10 and LP [2020] WASAT 25, the Tribunal stressed that expert assessments are important but not determinative; they must be viewed in light of the whole factual matrix.

In MM, the Tribunal concluded that the difficulties MM experienced in advocating for herself were not caused by cognitive impairment but rather by family conflict and complex personal relationships.

The Right to Make Unwise Decisions

A further theme in MM was the Tribunal’s recognition that capacity does not equate to making only “good” decisions. As stated in T [2018] WASAT 128, people have the right to make bad or unwise decisions, provided they have capacity. In this case, even if some considered MM’s financial choices imprudent, the Tribunal found she was entitled to make them.

Lessons from MM [2025] WASAT 103

This case illustrates several important principles for guardianship and administration proceedings:

1. Expert evidence must be independent and fairly obtained. Reports arranged without transparency, or based on incomplete or biased information, may be given reduced weight.

2. The presumption of capacity is robust. It requires clear and persuasive evidence to be set aside.

3. Lay and professional evidence are both important. The Tribunal considers the whole of the evidence, including its own observations of the proposed represented person.

4. Capacity is not judged by the wisdom of decisions. Adults with capacity retain the right to make decisions others may consider unwise.

Conclusion

MM [2025] WASAT 103 provides timely guidance on how the Tribunal evaluates expert evidence in guardianship and administration cases. While expert reports remain a critical tool, their weight depends on independence, context, and consistency with other evidence. Above all, the case reaffirms the central principle that capacity is presumed, and only compelling evidence will justify interference with a person’s autonomy.

Mental Disability as a Prerequisite for the Appointment of an Administrator

Introduction

The decision in RN [2025] WASAT 46 provides guidance on the meaning and application of "mental disability" as a prerequisite for appointing an administrator under section 64 of the Guardianship and Administration Act 1990 (WA).

In this case, the State Administrative Tribunal considered whether a woman in her 60s who had fallen victim to a sophisticated international romance scam, losing at least $1 million over seven years, had a mental disability warranting the appointment of an administrator.

The Tribunal ultimately found that RN's combination of histrionic personality disorder and low average IQ constituted a mental disability within the meaning of the Act, with her abnormal susceptibility to exploitation being a significant symptom or manifestation of this disability.

The Statutory Framework

To appoint an administrator under the Guardianship and Administration Act 1990 (WA), section 64(1)(a) requires the Tribunal to be satisfied that the person is "unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate" (RN [2025] WASAT 46 at [31]).

This provision establishes a two-stage test: first, the existence of a mental disability, and second, a causal connection between that disability and the inability to make reasonable judgments about one's estate.

The term "mental disability" is defined inclusively in section 3 of the Guardianship and Administration Act 1990 (WA) to include "intellectual disability, a psychiatric condition, dementia, and acquired brain injury" (RN [2025] WASAT 46 at [32]). However, as the Full Tribunal clarified in FY [2019] WASAT 118, this definition is not exhaustive.

The Meaning of Mental Disability

The Full Tribunal's decision in FY [2019] WASAT 118 provides the authoritative interpretation of "mental disability" in Western Australian guardianship law. As cited in RN [2025] WASAT 46 at [32], the Full Tribunal held that:

"The ordinary meaning of the term 'mental disability' in the GA Act thus contemplates that a person's mind is affected by an impairment, incapacity or inability to function in a manner, or within a range, considered normal, or which is objectively measurable. A mental disability may manifest in a variety of ways, including as a disturbance or limitation in a person's thought processes or their cognitive ability, in their perceptions of reality, emotions or judgments, in disturbed behaviour or in learning difficulties" (FY [2019] WASAT 118 at [27]).

Importantly, the Full Tribunal emphasized that "the definition of 'mental disability' does not require any precise degree of mental disability, measured by reference to some medical or scientific benchmark" (FY [2019] WASAT 118 at [31], cited in RN [2025] WASAT 46 at [32]). This recognizes that mental ability exists along a spectrum, with various aspects of cognitive functioning including "the speed and ease of information processing, problem solving, reasoning, and memory" (FY [2019] WASAT 118 at [31]).

Furthermore, the Full Tribunal noted that while a mental disability may be "referrable to the existence of one, or a combination of more than one, identified medical conditions," in other cases "the underlying cause of a person's mental disability may not be entirely clear, or susceptible to a particular medical diagnosis, but the existence of the mental disability may be beyond doubt" (FY [2019] WASAT 118 at [32], cited in RN [2025] WASAT 46 at [32]).

Application to Complex Cases

The decision in RN [2025] WASAT 46 demonstrates how the Tribunal approaches cases where mental disability arises from a combination of factors rather than a single, clearly diagnosed condition. The Tribunal found that RN had a mental disability comprising two core elements:

First, a histrionic personality disorder, which the Tribunal described by reference to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, as "an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual's culture, is pervasive and inflexible, has an onset in adolescence or early adulthood, is stable over time, and leads to distress or impairment" (RN [2025] WASAT 46 at [35]). The Tribunal noted specific features including high suggestibility, being easily influenced by others, and being "overly trusting, especially of strong authority figures whom they see as magically solving their problems" (RN [2025] WASAT 46 at [36]).

Second, a low average IQ that "contributes to her poor judgment and limited financial literacy" (RN [2025] WASAT 46 at [39]). The Tribunal emphasized that cognitive screening tools like the Montreal Cognitive Assessment or Rowland Universal Dementia Assessment Scale may not capture impairments in higher-order executive functions, noting that "being able to make a deliberated, informed decision after weighing up the pros and cons of different options, which is the type of decision-making the Tribunal is concerned with, falls into this highest category of executive functions" (RN [2025] WASAT 46 at [41]).

The Tribunal also identified "a further aspect of RN's mental disability, or a symptom of it," namely her "abnormal susceptibility to being exploited or coerced, and her inability to identify when it is occurring" (RN [2025] WASAT 46 at [43]). Importantly, the Tribunal stressed that "the fact that a person is a victim of a scam does not of itself mean that a person has a mental disability" but found that RN demonstrated "a pattern, over the course of her life, of being persuaded or pressured into making decisions that are not in her best interests" (RN [2025] WASAT 46 at [43]). This susceptibility to exploitation was viewed as a manifestation of the underlying mental disability rather than a separate constituent element.

Distinguishing Temporary Conditions

The Tribunal in RN [2025] WASAT 46 also addressed the distinction between mental disability and temporary emotional responses. While RN was diagnosed with an adjustment disorder, defined as "an emotional or behavioural response to an identified stressor, with such distress being out of proportion to the severity or intensity of the stressor," the Tribunal specifically noted that it "have not relied on this diagnosis as a basis for RN's mental disability" because adjustment disorders are temporary and symptoms do not persist beyond six months after the stressor concludes (RN [2025] WASAT 46 at [48]-[49]).

The Tribunal concluded: "I am satisfied, and I find, that RN's condition falls within the meaning of 'mental disability' as described in FY, based on the most comprehensive and recent assessment of RN that was performed by Dr F. I am satisfied that the existence of the mental disability was clearly established by the evidence and is referable to the combination of the personality disorder, her low average IQ and her abnormal, and long-standing, susceptibility to being exploited" (RN [2025] WASAT 46 at [50]). This formulation suggests that while the susceptibility to exploitation forms part of the overall picture, the core mental disability comprises the personality disorder and low IQ, with the exploitation vulnerability being a significant manifestation of these underlying conditions.

Conclusion

The decision in RN [2025] WASAT 46 reinforces that determining whether a person has a mental disability for the purposes of the Guardianship and Administration Act 1990 (WA) requires a holistic assessment of their cognitive functioning and decision-making capacity. The Tribunal's approach demonstrates that mental disability can arise from a combination of factors that collectively impair a person's ability to make reasonable judgments, even where no single factor might be sufficient on its own. Importantly, the decision clarifies that vulnerability to exploitation, while not itself constituting a mental disability, can be a significant symptom or manifestation of underlying cognitive or psychiatric conditions. This nuanced approach ensures that vulnerable individuals who genuinely require protection can access the safeguards provided by the Act, while maintaining the high threshold required to override personal autonomy through the appointment of an administrator.

Jurisdiction to Make Administration Orders for Interstate Residents and Recognition of Interstate Orders

1. Introduction

This article examines the jurisdictional authority of the State Administrative Tribunal (SAT) to make administration orders for individuals residing outside Western Australia, and the legal effect of administration orders made by tribunals in other Australian states. The decision in JB [2025] WASAT 42 provides significant guidance on these issues, particularly in situations where a represented person has relocated interstate but maintains assets within Western Australia.

2. Facts of JB [2025] WASAT 42

In JB [2025] WASAT 42, the represented person (JB) had moved from Western Australia to South Australia but continued to have assets in Western Australia, specifically funds held by the Public Trustee in its common account. JB suffered from chronic paranoid schizophrenia and had previously been subject to administration orders in Western Australia. After relocating to South Australia, the South Australian Civil and Administrative Tribunal (SACAT) made orders appointing JB's daughter (CB) as her administrator, including powers over the Western Australian assets. The case before the SAT concerned a review of a decision to appoint the Public Trustee as JB's limited administrator in Western Australia, with JB's daughter seeking to be appointed instead, consistent with the SACAT orders.

3. Jurisdiction to Make Administration Orders for Non-Residents

3.1 Statutory Basis

The Guardianship and Administration Act 1990 (WA) (GA Act) explicitly provides for the SAT to make administration orders in respect of individuals who are not resident or domiciled in Western Australia.

Section 67(1) of the GA Act states that an order under s 64(1) may be made in respect of a person who is not resident or domiciled in Western Australia, but such an order is limited to the person's estate in Western Australia (JB [2025] WASAT 42 at [29]).

As explained in JB [2025] WASAT 42 at [29], there was no dispute that JB had an estate in Western Australia, being the amount held by the Public Trustee in its common account, which was physically located in Western Australia.

3.2 Limitations of Jurisdiction

The jurisdiction to make an administration order for a non-resident is strictly limited to the person's assets or estate within Western Australia. This territorial limitation reflects the principle that the SAT's powers cannot extend beyond the geographical boundaries of the state except where specifically provided for by statute.

As noted in SAL and JGL [2016] WASAT 63 and referenced in JB [2025] WASAT 42 at [31]-[32], the SAT's jurisdiction is confined to the person's Western Australian estate. This territorial limitation is an important constraint on the SAT's powers.

4. Recognition of Interstate Administration Orders

4.1 Statutory Recognition Mechanism

The GA Act includes provisions for the recognition of administration orders made in other Australian jurisdictions. Section 83D of the GA Act establishes a framework for the mutual recognition of interstate orders.

Section 83D(3) of the GA Act provides that an order made under the laws of another State has the same force and effect as an administration order made under the GA Act, where an interstate arrangement under s 83D(1) has been entered into between the relevant ministers in Western Australia and that other State for the recognition of such orders (JB [2025] WASAT 42 at [30]).

4.2 Requirement for Physical Presence

Importantly, s 83D(3) provides that the relevant order in force under the laws of the other State has force "while the person to whom it relates is in this State" (JB [2025] WASAT 42 at [31]). This means the represented person must be physically present in Western Australia for the interstate order to have effect under this provision.

As the Tribunal noted in JB [2025] WASAT 42 at [31], this requirement is consistent with the interstate arrangement being in respect of "adult persons who enter Western Australia."

In JB [2025] WASAT 42 at [32], the Tribunal found that since JB had not entered Western Australia since the SACAT orders were made, s 83D(3) did not operate to give the SACAT orders the force of an order made under s 64 of the GA Act. The Tribunal referred to SAL and JGL [2016] WASAT 63 at [13], which had previously established this principle.

5. Constitutional Considerations

5.1 "Full Faith and Credit" Provisions

The Tribunal in JB [2025] WASAT 42 considered whether it was required to give "full faith and credit" to the SACAT orders pursuant to s 118 of the Commonwealth of Australia Constitution Act (Constitution) and s 185 of the Evidence Act 1995 (Cth) (JB [2025] WASAT 42 at [33]).

Section 118 of the Constitution requires that "Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State."

The application of these provisions turns on whether the interstate tribunal proceedings can be classified as "judicial proceedings" (JB [2025] WASAT 42 at [33]).

5.2 Nature of Guardianship and Administration Powers

In determining whether the "full faith and credit" provisions applied, the Tribunal in JB [2025] WASAT 42 at [34] referred to the decision in GS v MS [2019] WASC 255, where Quinlan CJ held that s 40, s 43 and s 64 of the GA Act do not confer judicial power on the Tribunal and that the nature of the powers to appoint guardians and administrators are properly regarded as essentially administrative powers.

The Tribunal in JB [2025] WASAT 42 at [34] noted that this authority is binding on the Tribunal. While it specifically concerned the GA Act and not the South Australian legislation, the Tribunal found that there was nothing in the Chief Justice's reasoning or the South Australian Act that would suggest a different conclusion should be reached in relation to the SACAT proceedings.

Consequently, the Tribunal concluded that neither s 118 of the Constitution nor s 185 of the Evidence Act 1995 (Cth) had any application in this case (JB [2025] WASAT 42 at [34]).

5.3 Alternative Analysis

The Tribunal in JB [2025] WASAT 42 provided an alternative analysis in case its primary conclusion regarding the administrative nature of the powers was incorrect. It observed at [35] that even if those provisions did apply, their effect would be that an order of another State's court is to be treated as having the same effect as that order would be afforded in the State where the order was made.

The Tribunal referred to Re DEF and the Protected Estates Act 1983 [2005] NSWSC 534 at [58], which established this principle (JB [2025] WASAT 42 at [35]).

5.4 Analogous Nature to Child Custody Orders

The Tribunal in JB [2025] WASAT 42 at [36] drew an analogy to child custody orders, referring to G v G (1986) 64 ALR 273; (1985) 10 Fam LR 718, where McLelland J held that the constitutional and statutory provisions required the Supreme Court of New South Wales to treat a Queensland Supreme Court order as "having the same degree of finality and conclusiveness (but not more) as that order would have in Queensland."

The Tribunal noted that administration orders in both South Australia and Western Australia can be revisited on application and are subject to mandatory periodic review (JB [2025] WASAT 42 at [35]).

Specifically, administration orders made by SACAT under the South Australian Act may be revisited under s 37(1)(b) and (d) of the Guardianship and Administration Act 1993 (SA), while orders made by the SAT may be reviewed under s 86(1)(a), s 86(1)(aa) and s 86(1)(b) of the GA Act (JB [2025] WASAT 42 at [35]).

6. Practical Application

6.1 Independent Assessment

The Tribunal in JB [2025] WASAT 42 at [37] concluded that there was no prohibition on it considering whether, on the evidence before it, an administrator for JB's Western Australian estate could or should be appointed, as s 67(1) of the GA Act expressly authorizes.

This affirms that the SAT retains the authority to make its own assessment and determination regarding the appointment of an administrator for Western Australian assets, even where another state's tribunal has made an order covering those same assets.

6.2 Evidentiary Value of Interstate Orders

While not binding, interstate orders may have evidentiary value in the SAT's determination. In JB [2025] WASAT 42 at [82], the Tribunal noted that CB had been appointed administrator of JB's estate by SACAT, and while the SACAT decision did not state its reasons for appointing CB or expressly state that CB was suitable for appointment, the Tribunal observed that the South Australian legislation required SACAT to be satisfied that CB was suitable to act as administrator.

The Tribunal considered that this appointment provided "some support for a finding that CB is a suitable person to be appointed, albeit limited in the absence of reasons" (JB [2025] WASAT 42 at [82]).

7. Procedural Considerations

7.1 Service Requirements

The GA Act contains specific provisions regarding service requirements for persons not resident or domiciled in Western Australia. Section 89(1)(b) of the GA Act provides that the Tribunal's executive officer must cause notice of a review to be given to the represented person (JB [2025] WASAT 42 at [16]).

However, under s 67(2) of the GA Act, the requirement for notice may be dispensed with if the represented person is not resident or domiciled in Western Australia (JB [2025] WASAT 42 at [16]).

In JB [2025] WASAT 42 at [18], the Tribunal dispensed with the requirement for notice of the application pursuant to s 67(2) of the GA Act, noting that it was not possible to be certain that all the requirements of s 89(2) and s 115(2) of the GA Act had been met, and there was no apparent disadvantage to JB given her objection to the order appointing the Public Trustee as administrator.

8. Conclusion

The decision in JB [2025] WASAT 42 provides important guidance on the jurisdictional authority of the SAT to make administration orders for non-residents and the effect of interstate orders. Key principles established include:

1. The SAT has jurisdiction to make administration orders for non-residents, but strictly limited to their Western Australian assets.

2. Interstate administration orders are recognized in Western Australia under s 83D of the GA Act, but only when the represented person is physically present in the state.

3. The powers to appoint guardians and administrators are administrative, not judicial, meaning the "full faith and credit" provisions of the Constitution and Evidence Act 1995 (Cth) do not apply.

4. Even if those provisions did apply, they would only require giving the interstate order the same effect it would have in its state of origin.

5. The SAT retains the authority to make its own determination regarding the appointment of an administrator for Western Australian assets, even where another state's tribunal has made an order covering those assets.

These principles balance respect for interstate administrative decisions with the need to ensure appropriate protection for vulnerable individuals with assets in Western Australia, regardless of where they reside.

The Capacity to Make Specific Medical Treatment Decisions

Introduction

The law concerning capacity to make medical treatment decisions operates under the general presumption of capacity enshrined in section 4(3) of the Guardianship and Administration Act 1990 (WA) (GA Act). This article examines the nuanced approach that must be taken when assessing capacity for specific medical treatment decisions, as distinct from the broader declarations of incapacity that may be made under the GA Act.

The Legislative Framework for Medical Treatment Decisions

Part 9B of the GA Act

Part 9B of the GA Act establishes a legislative framework for medical treatment decisions when an individual lacks capacity. This framework is critical to understanding how the law deals with specific medical decisions as distinct from broader capacity determinations.

Section 110P of the GA Act requires "full legal capacity" for a person to make an advance health directive. This represents the highest threshold for capacity under the Act, reflecting the serious and enduring nature of such directives.

For individuals who lack capacity to make treatment decisions, section 110ZD establishes a hierarchy of decision-making authority that operates outside the guardianship system. This hierarchy is as follows:

1. The patient's spouse or de facto partner who is living with the patient (section 110ZD(3)(a))

2. The patient's nearest relative who maintains a close personal relationship with the patient (section 110ZD(3)(b))

3. The primary provider of care and support who is not remunerated for providing that care and support (section 110ZD(3)(c))

4. Any other person who maintains a close personal relationship with the patient (section 110ZD(3)(d))

As noted in NJ [2025] WASAT 35 at [91], the term 'nearest relative' is defined in section 3 of the GA Act and establishes that the eldest child will be preferred if multiple children could be considered the nearest relative.

The person responsible framework in section 110ZD represents a less restrictive alternative to guardianship, allowing treatment decisions to be made without formal Tribunal intervention where appropriate. In NJ [2025] WASAT 35 at [94], the Tribunal observed that this mechanism was effective for certain medical decisions, noting that "NJ does not require a guardian to make decisions about medical treatment not covered by the AHD as KL has the authority conferred by s 110ZD."

Limitations on Medical Decision-Making Authority

Importantly, the GA Act contains specific provisions that limit decision-making authority in relation to certain medical procedures. Section 110ZJ expressly prohibits sterilization procedures unless authorized by the Tribunal under Division 3 of Part 5 of the Act. Section 3B of the GA Act specifically excludes voluntary assisted dying decisions from the scope of treatment decisions that can be made under an advance health directive or by a guardian.

These provisions highlight the legislature’s intent to ensure that particularly significant medical decisions remain subject to special procedures and safeguards, reflecting the principle articulated in Re T (Adult: Refusal of Treatment) [1993] Fam 95 that "the more serious the decision, the greater the capacity required."

The Presumption of Capacity

The starting point for any consideration of capacity is the statutory presumption that all adults possess capacity. As noted in NJ [2025] WASAT 35 at [18]:

"The starting point for the Tribunal is that every person is presumed to be capable of making their own decisions about their estate and their person. The presumption of capacity is enshrined in the GA Act as follows: (3) Every person shall be presumed to be capable of — (a) looking after [their] own health and safety; (b) making reasonable judgments in respect of matters relating to [their] person; (c) managing [their] own affairs; and (d) making reasonable judgments in respect of matters relating to [their] estate, until the contrary is proved to the satisfaction of the State Administrative Tribunal."

This statutory presumption reflects the common law position that "there is a presumption of capacity whereby an adult is presumed to have the capacity to consent to or to refuse medical treatment unless and until that presumption is rebutted" (Hunter and New England Area Health Service v A [2009] NSWSC 761 at [23], cited in NJ [2025] WASAT 35 at [47]).

Evidentiary Standards for Capacity Determinations

The Tribunal applies a heightened standard of proof when making determinations about capacity, reflecting the serious consequences of such findings. In NJ [2025] WASAT 35 at [19], the Tribunal articulated this standard:

"The presumption of capacity is a fundamental principle in the GA Act and can only be displaced by clear and cogent evidence of incapacity leading the Tribunal to be actually persuaded that the person in respect of whom the proceeding is brought is a person for whom a guardianship or an administration order can be made."

This approach reflects the principles established in Briginshaw v Briginshaw (1938) 60 CLR 336, which requires a higher degree of persuasion for findings that are serious in nature or have significant consequences for the individual. The Tribunal in NJ explicitly referenced Briginshaw in conjunction with previous Tribunal decisions in LP [2020] WASAT 25 and GC and PC [2014] WASAT 10.

The evidentiary burden for displacing the presumption of capacity has practical implications for how the Tribunal assesses evidence. As noted in NJ [2025] WASAT 35 at [20]:

"Considering the seriousness of the consequences for a proposed represented person that flow from a finding by the Tribunal of incapacity, or the consequences of the Tribunal failing to identify an incapable person in need of protection, the Tribunal must make findings of fact about capacity by reference to evidence which may be from a wide variety of sources, including the evidence of medical and allied health professionals and also lay evidence."

This approach means that the Tribunal will:

1. Require clear and cogent evidence of incapacity, not merely a balance of probabilities

2. Consider evidence from multiple sources, not just medical opinions

3. Be particularly careful when the finding will result in a loss of decision-making autonomy

4. Consider both the risk of incorrectly finding incapacity and the risk of failing to identify incapacity when it exists

The application of this evidentiary standard was demonstrated in NJ [2025] WASAT 35 when the Tribunal carefully weighed conflicting medical opinions from Dr. H and Dr. W regarding NJ's capacity to make different types of decisions. Rather than simply accepting one opinion over another, the Tribunal engaged in a detailed analysis of NJ's specific capabilities, ultimately concluding that she lacked capacity for some decisions but not necessarily for others.

Capacity as Decision-Specific Rather Than Global

A fundamental principle in assessing capacity is that capacity is decision-specific rather than global. As noted in NJ [2025] WASAT 35 at [55], when discussing the Full Tribunal's decision in C [2024] WASAT 50:

"In Guthrie v Spence [at 175], Campbell JA stated: 'It is well-accepted that there is no single test for capacity to perform legally valid acts and that the task-specific nature of these tests for capacity has the effect that the one person could have capacity to perform one task, but lack capacity to perform a different task.'"

This position is further reinforced by the observation in Hunter and New England Area Health Service v A [2009] NSWSC 761 at [24] (cited in NJ [2025] WASAT 35 at [55]):

"In this context, it is necessary to bear in mind that there is no sharp dichotomy between capacity on the one hand and want of capacity on the other. There is a scale, running from capacity at one end through reduced capacity to lack of capacity at the other. In assessing whether a person has capacity to make a decision, the sufficiency of the capacity must take into account the importance of the decision and the capacity required to make a contract to buy a cup of coffee may be present where the capacity to decide to give away one's fortune is not."

The Test for Capacity to Make Medical Treatment Decisions

The test for capacity to make medical decisions at common law has been articulated in several key decisions. In NJ [2025] WASAT 35 at [55], the Tribunal cited the Full Tribunal's summary in C [2024] WASAT 50, which restated the test from Re MB (as summarized in Hunter and New England Area Health Service v A):

"As Butler-Sloss LJ said in Re MB, in deciding whether a person has capacity to make a particular decision, the ultimate question is whether that person suffers from some impairment or disturbance of mental functioning so as to render him or her incapable of making the decision. That will occur if the person: (1) is unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision; or (2) is unable to use and weigh the information as part of the process of making the decision."

Similarly, in Re T (Adult: Refusal of Treatment) [1993] Fam 95 at [295] (cited in NJ [2025] WASAT 35 at [55]), Thorpe J observed that:

"the question to be decided is whether it has been established that the patient's capacity is so reduced that he does not sufficiently understand the nature, purpose and effect of the proper treatment."

Thorpe J further identified that a person needs to be able to "comprehend and retain treatment information, they need to believe that information, and they need to be able to weigh it in the balance to make a choice" (NJ [2025] WASAT 35 at [55]).

The Full Tribunal in C [2024] WASAT 50 developed a structured approach to determining capacity for specific medical decisions, summarized in NJ [2025] WASAT 35 at [55]:

"Drawing on that common law approach, we consider that in order for the Tribunal to determine whether or not [a person] is able to make reasonable judgments in respect of whether or not [a specific medical procedure] should be performed on her, it is necessary to consider: (a) What cognitive ability – that is, reasoning process – a person is required to be able to undertake in order to make a reasonable judgment of that kind; (b) What is the evidence as to [the person's] capacity in that respect; and (c) Is that evidence sufficient to displace the presumption of capacity under the GA Act to make such decisions as this one."

Notably, the Full Tribunal emphasized that sophisticated medical knowledge is not required to demonstrate capacity to make medical decisions (NJ [2025] WASAT 35 at [55]):

"At the outset, we should say that we do not consider that a person needs to be able to demonstrate a level of sophisticated medical knowledge in order to be able to make a reasonable judgment in respect of a decision such as whether to have [a medical procedure]. We think it is sufficient if they are capable of understanding the main elements of the procedure, and its risks and consequences, rather than the technical or exact details of the treatment or its effect."

Distinguished from Global Declarations of Incapacity

A critical distinction exists between capacity to make specific medical decisions and the broader declarations of incapacity that may be made under the GA Act. In NJ [2025] WASAT 35 at [50], the Tribunal noted:

"To have capacity to make this specific type of medical treatment decision, which is to choose medical assistance to end one's life, is clearly very different to a person being 'unable to make reasonable judgments in respect of matters relating to his or her person', which is the global declaration required to enliven an enduring power of guardianship. This broad mandatory declaration does not allow the Tribunal to address the specifics of a particular decision that the person is incapable of making."

This distinction is important because global declarations of incapacity can sometimes inappropriately prevent a person from making specific medical decisions they are capable of making. As evidenced in NJ [2025] WASAT 35, a declaration that a person is "unable to make reasonable judgments in respect of matters relating to his or her person" under section 110L of the GA Act prevented NJ from being assessed for voluntary assisted dying, even though such an assessment includes its own capacity evaluation.

Advance Health Directives and Capacity Requirements

The capacity required to execute an advance health directive under the GA Act is defined as "full legal capacity" (section 110P), which is not specifically defined in the Act. However, as noted in NJ [2025] WASAT 35 at [67], the Western Australian Department of Health provides guidance that "full legal capacity" in this context means the person:

"• understands any information or advice given to you to help make decisions in your Advance Health Directive • understands the likely effect(s) of the decisions you make in your Advance Health Directive on your future treatment and care • are able to weigh up the possible pros and cons of your decisions about your future treatment and care • are able to communicate your decisions about your future treatment and health care in some way."

The Tribunal in NJ [2025] WASAT 35 at [68] observed that these requirements closely parallel the decision-making capacity requirements for voluntary assisted dying under section 6(2) of the Voluntary Assisted Dying Act 2019 (WA).

Balancing Protection with Autonomy

The Tribunal's approach in cases like C [2024] WASAT 50 (described in NJ [2025] WASAT 35 at [51]-[55]) demonstrates the careful balance required between protecting vulnerable individuals and respecting personal autonomy in medical decision-making. In that case, despite having a guardian appointed with authority to make medical treatment decisions, Ms AB was found capable of making a reasonable judgment about whether to have an abortion.

Similarly, in NJ [2025] WASAT 35, the Tribunal revoked a declaration of incapacity to make reasonable judgments in respect of matters relating to the person, which allowed NJ to be assessed for capacity to make decisions about voluntary assisted dying. This approach recognized that capacity is decision-specific and that a person may retain capacity to make certain medical decisions even if they require assistance with other aspects of their personal affairs.

Worked Example: Assessing Capacity for a Specific Medical Decision

Case Study: Mrs. Wilson

Mrs. Wilson is a 72-year-old woman diagnosed with early-stage dementia. She resides in an aged care facility and has a limited guardian appointed by the Tribunal who makes decisions about her accommodation and services, but not for medical treatment decisions. The Tribunal previously made a declaration that she was "unable to make reasonable judgments in respect of matters relating to where she should live and what services she should access." Mrs. Wilson requires surgery for cataracts that will significantly improve her vision. The surgeon has requested an assessment of Mrs. Wilson's capacity to consent to this procedure.

Application of Principles

Step 1: Consider the presumption of capacity

The absence of a limited guardian appointed specifically for medical treatment decisions is significant in this case because section 4(3) of the GA Act establishes a presumption of capacity that applies to specific decisions not covered by existing guardianship orders. The limited nature of the guardian's authority and the specificity of the earlier declaration of incapacity (relating only to accommodation and services) means that the presumption of capacity remains intact for medical decisions like the proposed cataract surgery (consistent with the approach in NJ [2025] WASAT 35 at [50]).

Step 2: Assess capacity specifically for the cataract surgery decision

Following the approach in C [2024] WASAT 50 (as cited in NJ [2025] WASAT 35 at [55]), the assessment considers:

(a) What cognitive ability Mrs. Wilson requires to make this specific decision; (b) The evidence of Mrs. Wilson's capacity in respect of this decision; and (c) Whether that evidence displaces the presumption of capacity.

During the assessment, Mrs. Wilson demonstrates that she:

• Can explain that the surgery will "fix her cloudy eyes" and help her see better

• Understands the procedure involves removing her natural lens and replacing it with an artificial one

• Comprehends that there are risks of infection and bleeding, though cannot recall all the technical details

• Recognizes that without surgery her vision will continue to deteriorate

• Expresses a consistent preference for having the surgery to improve her quality of life

• Can communicate her decision and reasoning clearly

Step 3: Apply the legal test for capacity

Applying the test articulated in Re MB (cited in NJ [2025] WASAT 35 at [55]), Mrs. Wilson:

• Can comprehend and retain the material information about the cataract surgery

• Can use and weigh that information in the decision-making process

• Can communicate her decision

Step 4: Determine if Mrs. Wilson has capacity for this specific decision

The assessment concludes that Mrs. Wilson has capacity to make this specific medical decision regarding cataract surgery, despite having previously been declared unable to make reasonable judgments about accommodation and services. Consistent with NJ [2025] WASAT 35 at [50], her capacity for this specific medical decision is distinguished from her difficulties with decisions about where she should live and what services she should access. This demonstrates the decision-specific nature of capacity assessments and reflects the Tribunal's approach of avoiding overly broad declarations of incapacity that might unnecessarily restrict autonomy in areas where capacity remains intact.

Checklist for Assessing Capacity for Specific Medical Decisions

Preliminary Considerations

☐ Review existing orders and declarations regarding capacity (guardianship orders, administration orders, declarations under s.110L)
☐ Identify the specific medical decision requiring assessment
☐ Consider the complexity and gravity of the decision (following Lord Donaldson's principle in Re T (Adult: Refusal of Treatment) [1993] Fam 95)
☐ Begin with the presumption of capacity regardless of any existing orders

Assessment Process

☐ Provide information about the medical decision in clear, simple language
☐ Assess the person's ability to understand the information provided
☐ Determine if the person can retain the information long enough to make a decision
☐ Evaluate whether the person can weigh the benefits and risks
☐ Confirm the person can communicate their decision
☐ Consider whether any impairment or disturbance of mental functioning affects:
☐ Comprehension of information material to the decision
☐ Retention of that information
☐ Use or weighing of that information in the decision process
☐ Communication of the decision

Documentation Requirements

☐ Record the specific medical decision being assessed
☐ Document the information provided to the person
☐ Note the questions asked and responses given
☐ Detail observations of the person's understanding and reasoning
☐ Specify the date, time, and environment of the assessment
☐ Document any fluctuations in capacity observed
☐ Record the conclusion regarding capacity for this specific decision
☐ Provide reasoning that references the applicable legal tests

Next Steps

If the person HAS capacity for the specific medical decision: ☐ Respect their decision even if it contradicts a guardian's view
☐ Document the finding of capacity
☐ Proceed according to the person's decision
☐ Consider whether a review of existing guardianship orders is warranted

If the person LACKS capacity for the specific medical decision: ☐ Determine the appropriate substitute decision-maker:
☐ Enduring Guardian pursuant to an Enduring Power of Guardianship (if applicable and specifies appropriate functions)
☐ Person responsible under s.110ZD of the GA Act
☐ Consider whether a guardianship application is required
☐ Document the finding of incapacity and the basis for this conclusion
☐ Ensure the substitute decision-maker has sufficient information to make the decision

This checklist reflects the principles established in NJ [2025] WASAT 35 and the cases cited therein, particularly the emphasis on decision-specific capacity assessments rather than global determinations of capacity.

Conclusion

The assessment of capacity to make specific medical treatment decisions requires a nuanced, decision-specific approach rather than global determinations of capacity. As demonstrated in NJ [2025] WASAT 35, the Tribunal must carefully consider whether a person has the cognitive ability to understand, retain, and weigh information relevant to a particular medical decision, rather than applying broader findings about capacity to all types of decisions. This approach ensures that individuals retain autonomy over medical decisions they are capable of making, even if they require assistance with other aspects of their personal or financial affairs.

The Tribunal's approach in these cases reflects the fundamental principle articulated by Lord Donaldson in Re T (Adult: Refusal of Treatment) [1993] Fam 95 (cited in NJ [2025] WASAT 35 at [42]): "the more serious the decision, the greater the capacity required." This principle guides the assessment of capacity for specific medical decisions, ensuring that the standard of capacity required is proportionate to the gravity of the decision at hand.

Growth in Guardianship Applications in Western Australia (2016-2024)

Growth in Application Volume

Since 2016-17, Western Australia has experienced a significant increase in Guardianship and Administration (GA) applications processed by the State Administrative Tribunal (SAT). Starting from a base of 3,879 applications in 2016-17, the volume has grown to over 6,000 annually by 2023-24.

Growth Pattern (2016-2024)

Using 2016-17 as our starting point, application numbers show the following trend:

• 2016-17: 3,879 applications (base year)

• 2017-18: 3,864 applications (-0.4% from base year)

• 2018-19: 3,938 applications (+1.5% from base year)

• 2019-20: 4,903 applications (+26.4% from base year)

• 2020-21: 5,061 applications (+30.5% from base year)

• 2021-22: 5,602 applications (+44.4% from base year)

• 2022-23: 5,624 applications (+45.0% from base year)

• 2023-24: 6,061 applications (+56.3% from base year)

This represents an overall increase of 56.3% in GA applications since 2016-17.

Factors Contributing to Growth

Several factors have contributed to the increased volume of GA applications:

Demographic Changes

Western Australia's 65-plus population has grown by approximately 3% annually over the past decade, increasing the number of people who may require substitute decision-makers.

NDIS and Regulatory Changes

Post-2021 changes to disability support systems have required formal consent for many decisions affecting people with disability. These regulatory changes have increased the need for guardianship applications.

Mandatory Review Requirements

Section 84 of the Guardianship and Administration Act requires reviews of existing orders every five years. As the number of active orders increases, so does the volume of mandatory reviews.

Recent Growth Factors

The 7.8% increase in 2023-24 was primarily due to new appointment applications (2,860) and Tribunal-initiated reviews (1,806).

Operational Impact

GA matters now constitute approximately 99% of the Human Rights stream and about 83% of all SAT applications. Despite this volume, SAT has maintained efficiency, finalizing 80% of GA matters within nine weeks during 2023-24, which exceeds its ten-week target.

Future Outlook

Based on current trends:

• Demographic projections suggest continued growth of 3-5% annually

• Proposed reforms to the Guardianship and Administration Act may alter application types but are unlikely to reduce overall volume

• SAT's implementation of digital filing and regional video hearings should help maintain processing efficiency as numbers continue to increase

The data indicates that GA applications in Western Australia will likely continue their upward trajectory in the coming years, reflecting ongoing demographic and policy changes.