Here is my paper given at this seminar held on 7 March 2025.
The Prodigal Son Returns: Family Dynamics and Best Interests in Guardianship Law – Analysis of AA [2025] WA SAT 2
As counsel for the successful Applicant in this matter, I had the opportunity to argue several significant issues regarding capacity assessment and the obligations of attorneys and guardians under Western Australian guardianship law.
The case provides important guidance on these issues in the context of family conflict and disputed property transactions.
Background
The matter concerned AA, a 92-year-old widow who had appointed two of her three sons (S2 and S3) as her joint enduring attorneys and guardians in October 2021. As detailed at [3]-[7] of AA [2025] WASAT 2, AA there was a history of excluding the eldest son (S1, the Applicant) from her affairs, including through explicit exclusions in her 1991 and 2013 wills. However, in mid-2022, AA's relationship with S1 was rekindled after limited contact since 2007.
The key catalyst for the proceedings was a series of property transfers in April 2023, where AA transferred substantial interests (65-66%) in eight properties to S2 and S3 for no consideration beyond "natural love and affection" (at [12]). These transfers occurred at a time when there were documented concerns about AA's cognitive function, with evidence showing decline from at least September 2022 (at [97]).
The proceedings involved applications to revoke AA's enduring power of attorney (EPA) and enduring power of guardianship (EPG), as well as seeking the appointment of an administrator and guardian.
The case required detailed consideration of AA's capacity at various times and the conduct of S2 and S3 as attorneys and guardians.
Legal Analysis
Capacity Assessment
The Tribunal emphasized that capacity must be assessed in the context of contemporaneous medical evidence and should not be inferred merely from prior assessments. In AA [2025] WASAT 2 at [106]-[108], the Tribunal rejected submissions that there was continuity of capacity between earlier favourable capacity assessments and later periods, particularly where there was evidence of cognitive decline. The decision reinforces that capacity is time and decision-specific.
The case also demonstrates the importance of obtaining specialist geriatric assessments where cognitive impairment is suspected. At [157]-[159], the Tribunal was critical of the failure to arrange timely geriatric assessment despite documented concerns about cognitive decline. This highlights that attorneys and guardians have obligations to proactively address capacity concerns through appropriate medical assessment.
The Tribunal placed significant weight on geriatrician evidence at [41]-[45], which established that AA had a mental disability likely Alzheimer's dementia and was incapable of making reasonable decisions about financial matters, medical treatment, accommodation, and services. This comprehensive medical assessment was crucial in establishing both the need for orders and the unsuitability of continuing the existing EPA and EPG arrangements.
Fiduciary Obligations of Attorneys
The decision provides a detailed analysis of the fiduciary obligations of attorneys under enduring powers of attorney. At [116]-[117], the Tribunal confirmed that the relationship between donor and attorney is fiduciary in nature, citing Dal Pont, Powers of Attorney (Third edition), 2020. The Tribunal emphasized that attorneys cannot make decisions in their own interests unless fully informed consent is given by the donor.
Significantly, at [118]-[120], the Tribunal found that where attorneys are aware of the donor's impaired cognition, they cannot rely on the donor's apparent consent to transactions that benefit the attorneys to the donor's detriment. The property transfers in this case exemplified this principle - while they may have aligned with AA's historical wishes as expressed in her wills, they were facilitated by the attorneys at a time when they knew or ought to have known of her cognitive decline.
Grounds for Revoking Enduring Powers
The decision illustrates several grounds that may justify revoking enduring powers under section 109(1)(c) of the Guardianship and Administration Act 1990 (WA). These include:
Facilitating property transfers that benefit the attorneys when aware of the donor's cognitive impairment (at [118]-[119])
Failing to obtain appropriate medical assessment of cognitive decline (at [236])
Using powers in ways that restrict the donor's family relationships without clear evidence this serves the donor's interests (at [219])
Demonstrating lack of understanding about the scope and proper use of enduring powers (at [221])
The Tribunal's analysis suggests that revocation may be warranted where attorneys lose sight of their fundamental obligation to act in the donor's best interests, even if they have otherwise provided good care to the donor.
Best Interests Analysis
A key aspect of the decision was the Tribunal's detailed consideration of AA's best interests under section 4 of the Guardianship and Administration Act 1990 (WA). At [207], the Tribunal emphasized that guardians must act to maintain supportive relationships and encourage community participation. The evidence that S2 and S3 had restricted AA's contact with S1 and his family, including through surveillance measures and redirecting phone calls (at [162]-[165]), demonstrated their inability to fulfill these obligations.
Appointment of Independent Administrator/Guardian
The decision provides guidance on when the Public Trustee and Public Advocate should be appointed instead of family members. At [232]-[239], the Tribunal identified several factors warranting independent appointment:
Acrimonious family relationships affecting ability to maintain supportive relationships
Conflicts of interest regarding property and financial matters
Need for independent assessment of competing views about care arrangements
Lack of proper understanding of statutory powers and obligations
Significantly, at [215], the Tribunal held that differing views between proposed guardians about future care options do not necessarily preclude joint appointment if they have not yet had to actively consider those issues. This suggests the Tribunal will focus on demonstrated conflicts rather than theoretical ones.
The decision also emphasizes the importance of gifting provisions in administration orders. At [132], the Tribunal recognized AA's history of gifting to grandchildren and great-grandchildren and included a specific authorization for modest gifting to continue, demonstrating the importance of maintaining normal family practices where appropriate.
Review Periods
At [241]-[242], the Tribunal confirmed that where there is clear medical evidence of a progressive cognitive condition, the maximum five-year review period under the Act may be appropriate. This provides useful guidance on structuring orders in cases involving diagnosed dementia or similar conditions.
Conclusion
This decision provides a comprehensive analysis of key guardianship and administration principles in the context of family conflict and questionable property transactions. It emphasizes the paramount importance of protecting the represented person's interests and demonstrates the Tribunal's willingness to appoint independent decision-makers where family dynamics create risks to those interests. The case serves as an important reminder of the high standards expected of attorneys and guardians, particularly regarding their obligations to obtain appropriate medical assessment and avoid conflicts of interest. Read the full decision here.
Revocation of Enduring Powers of Guardianship by the State Administrative Tribunal of Western Australia
An Enduring Power of Guardianship (EPG) is a legal instrument in Western Australia that allows a person (the appointor) to appoint one or more individuals (the enduring guardian(s)) to make personal, lifestyle, and treatment decisions on their behalf if they lose capacity to make those decisions themselves [1]. This important legal tool provides individuals with autonomy and control over their future care, ensuring their wishes are respected even when they can no longer express them. However, circumstances may arise where the revocation of an EPG becomes necessary to protect the best interests of the appointor. The SAT's role in revoking EPGs requires a delicate balance between upholding the appointor's autonomy, as expressed through the EPG, and safeguarding their best interests when circumstances change or concerns arise.
The State Administrative Tribunal (SAT) of Western Australia plays a crucial role in overseeing EPGs and ensuring their proper execution. While the SAT does not have a role in the initial appointment of an enduring guardian, it has the authority to intervene in situations where concerns arise regarding the validity, operation, or appropriateness of an EPG [2]. This includes the power to revoke an EPG under certain circumstances. This article aims to explore the circumstances under which the SAT will order the revocation of an EPG, drawing upon relevant legal principles and, where available, case law from the SAT.
Legal Framework for Enduring Powers of Guardianship in Western Australia
The legal framework governing EPGs in Western Australia is primarily found in the Guardianship and Administration Act 1990 (WA). This legislation sets out the requirements for creating a valid EPG, the powers and responsibilities of enduring guardians, and the circumstances under which an EPG may be revoked. It is crucial that EPGs are drafted with clarity and precision, taking into account the appointor's wishes and potential future circumstances, to minimize the risk of disputes or the need for revocation.
Capacity to Create an EPG
A fundamental principle underlying EPGs is that the appointor must have the capacity to make reasoned decisions at the time of completing the document [1]. This means they must understand the nature and effect of the EPG, the implications of appointing an enduring guardian, and the potential consequences of their decisions [3]. If there is any doubt about the appointor's capacity, the written opinion of a doctor or other appropriately qualified health professional should be sought [1].
Circumstances for Revocation
While the Guardianship and Administration Act 1990 (WA) does not explicitly list all the grounds for revoking an EPG, the SAT has the power to revoke an EPG in situations where it is deemed necessary to protect the appointor's best interests. This may include situations where:
The enduring guardian is no longer able or willing to act. This could be due to the guardian's death, incapacity, or a change in their personal circumstances [4].
Where an EPG has joint enduring guardians, and one guardian dies or loses capacity, the remaining guardian may need to apply to the SAT for a variation or confirmation of their authority, depending on the provisions of the EPG document [4].
The enduring guardian is acting in a manner that is not in the appointor's best interests. This could involve financial abuse, neglect, or making decisions that contradict the appointor's known wishes. This aligns with the general principles of guardianship law, which prioritize the welfare and well-being of the person subject to the guardianship [5].
There is a conflict of interest between the enduring guardian and the appointor. For example, the guardian may be benefiting personally from their role or making decisions that prioritize their own interests over those of the appointor.
The appointor wishes to revoke the EPG. An appointor can revoke an EPG at any time while they have the legal capacity to do so [1]. They should inform their enduring guardian and all other relevant people and agencies, preferably in writing [1].
The EPG is invalid. This could be due to a lack of capacity on the part of the appointor at the time of creating the EPG, or due to a defect in the document itself [6].
Where the appointor's capacity to make decisions is fluctuating or unclear, the SAT may revoke the EPG to ensure the appointor's best interests are protected [6].
Powers of the SAT
The SAT has broad powers to intervene in EPG matters. In addition to revoking an EPG, the SAT can:
Appoint a substitute enduring guardian [7].
Vary the terms of an EPG [7].
Require the enduring guardian to provide accounts and records of their dealings [7].
Give directions to the enduring guardian on matters related to the exercise of their powers [7].
Conclusion
The SAT plays a vital role in safeguarding the welfare of individuals who have lost capacity by overseeing the operation of EPGs. In summary, the SAT may revoke an EPG if the enduring guardian is unable or unwilling to act, acts against the appointor's best interests, has a conflict of interest, or if the appointor themselves revokes the EPG while still having capacity. Ultimately, the SAT's decisions are guided by the principle of protecting the appointor's welfare.
Footnotes
[1] www.wa.gov.au, accessed January 5, 2025, https://www.wa.gov.au/system/files/2023-07/opa-is-9-enduring-powers-guardianship.pdf
[2] www.wa.gov.au, accessed January 5, 2025, https://www.wa.gov.au/system/files/2024-07/opa-epg-guide.pdf
[3] www8.austlii.edu.au, accessed January 5, 2025, https://www8.austlii.edu.au/au/journals/SydUPLawBk/2011/11.pdf
[4] Enduring Power Of Guardianship (Western Australia) - Cleardocs, accessed January 5, 2025, https://www.cleardocs.com/products-enduring-power-of-guardianship-western-australia.html
[5] palliativecarewa.asn.au, accessed January 5, 2025, https://palliativecarewa.asn.au/wp-content/uploads/2023/05/10-Enduring-Power-of-Guardianship-kit.pdf
[6] Enduring Power of Guardianship - Government of Western Australia, accessed January 5, 2025, https://www.wa.gov.au/organisation/department-of-justice/office-of-the-public-advocate/enduring-power-of-guardianship
[7] Word - Western Australian Legislation, accessed January 5, 2025, https://www.legislation.wa.gov.au/legislation/statutes.nsf/RedirectURL?OpenAgent&query=mrdoc_28305.docx