Legal Capacity and Guardianship: Understanding the Fundamentals Through Recent Case Law

Introduction: The BIF23 Case

In a significant ruling on legal capacity in December 2024, the High Court of Australia delivered a judgment that sheds light on how mental capacity intersects with legal processes.

In BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44, the Court considered whether a notice given to a person lacking mental capacity was legally effective.

The case involved a Cambodian citizen (BIF23) who had lived in Australia since the age of 12. In 2021, BIF23 was convicted of various offences including theft and affray, and was sentenced to 18 months imprisonment. Due to these convictions, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth).

On December 1, 2021, while receiving psychiatric care in prison, BIF23 was given notice of the visa cancellation and invited to make representations about revocation within 28 days. Critically, evidence showed that BIF23 suffered from schizoaffective disorder with "grandiose delusions, disorganisation, visual hallucinations and absent insight." On January 11, 2022 (after the 28-day period had expired), the Victorian Civil and Administrative Tribunal appointed the Public Advocate as BIF23's guardian.

The High Court found that BIF23's mental incapacity at the time of notification vitiated the Minister's notice, rendering it legally ineffective.

Understanding Legal Capacity

Legal capacity is a foundational concept in our legal system and refers to a person's ability to make legally effective decisions or take legally effective actions. As the High Court noted in BIF23, it is "a fundamental principle that, in order for a person to do a legally effective act, they must have the necessary legal capacity to do so" (citing Masterman-Lister v Brutton & Co [Nos 1 and 2] [2003] 1 WLR 1511).

Legal capacity is not a one-size-fits-all concept. As Lord Reid stated in Crowther v Crowther [1951] AC 723, "there are many degrees of mental incapacity." A person may have capacity to make some decisions but not others. The assessment of capacity is decision-specific and depends on the nature and complexity of the particular decision at hand.

This was elegantly expressed by Dixon CJ, Kitto and Taylor JJ in Gibbons v Wright (1954) 91 CLR 423, where they stated that "[t]he law does not prescribe any fixed standard of sanity... [but] requires, in relation to each particular matter... that each party shall have such soundness of mind as to be capable of understanding the general nature of what [they are] doing."

The Distinction Between Mental and Legal Capacity

It's important to understand that not every psychiatric or cognitive impairment will amount to a lack of legal capacity. In BIF23, the High Court clarified that whether a "mental incapacity" constitutes a relevant "legal incapacity" must be understood by reference to context.

In the context of the mandatory visa cancellation scheme, the Court found that a relevant mental incapacity is one where the person cannot:

1. Understand the nature of the notice and invitation to make representations

2. Make representations in response to the invitation

3. Understand the substantial effect of the notice and invitation on them

This lack of capacity must also be "insuperable" - that is, not capable of being overcome by assistance from interpreters, lawyers, or other advisers.

Presumption of Capacity and Burden of Proof

Our legal system presumes that adults have the capacity to make their own decisions. The burden of proving otherwise rests with those asserting incapacity, as established in numerous cases including Masterman-Lister v Brutton & Co [Nos 1 and 2] [2003] 1 WLR 1511 and Murphy v Doman (2003) 58 NSWLR 51.

In BIF23, the Court had to assess whether the evidence was sufficient to rebut this presumption. The evidence included psychiatric assessments showing that BIF23's delusions "significantly impact[ed] on [the] weighing of information as part of [his] decision-making process."

The Role of Guardianship

When a person lacks capacity to make certain decisions, guardianship may be necessary. Guardianship has its roots in the parens patriae jurisdiction, where the sovereign (now represented by the courts) has a duty to protect those who cannot protect themselves.

As Justice Edelman noted in Perpetual Trustee Co Ltd v Cheyne (2011) 42 WAR 209, this prerogative "was virtually unlimited" and "based on the care that the King has for those who cannot take care of themselves."

Modern guardianship legislation provides a structured framework for this protection. For example, the Guardianship and Administration Act 2019 (Vic) defines "decision-making capacity" as the ability to:

• Understand relevant information and the effect of a decision

• Retain that information

• Use or weigh the information as part of making the decision

• Communicate the decision

Implications

The BIF23 decision has several important implications:

1. Assessment of capacity: When dealing with clients who may have impaired decision-making capacity, lawyers must carefully assess whether the client can understand the nature and effect of the legal matter at hand.

2. Authority to act: As the Court observed, a "lawyer's authority can only ever occupy that range which is marked out by the client's mental capacity" (Goddard Elliott v Fritsch [2012] VSC 87). If a client lacks capacity to instruct, the lawyer cannot act on their purported instructions.

3. Timing of capacity: In BIF23, the Court emphasized that capacity is assessed at the time a person is required to make a decision. A person's capacity may fluctuate over time, and the validity of legal actions must be assessed in light of their capacity at the relevant moment.

4. Context-specific assessment: The assessment of capacity must be contextualized to the specific decision at hand. As Holland J observed in Crago v McIntyre [1976] 1 NSWLR 729, "for the purposes of considering legal capacity, a person's mind is not one and indivisible."

Judicial vs Administrative Decisions: The Unique Nature of Guardianship Powers

Understanding the Distinction Through Case Law

In July 2019, the Supreme Court of Western Australia delivered an important decision in GS v MS [2019] WASC 255 that dealt with the fundamental nature of guardianship and administration powers.

The case involved MS, who lived in New South Wales, applying to the State Administrative Tribunal (SAT) for guardianship and administration orders over his mother, GS, who lived in Western Australia.

Following the High Court's decision in Burns v Corbett [2018] HCA 15, which ruled that state tribunals cannot exercise jurisdiction in matters "between residents of different States," a constitutional question arose: Did the SAT have jurisdiction to hear these applications?

Chief Justice Quinlan's reasoning provides insights into the distinction between judicial and administrative powers, particularly in the guardianship context.

The Fundamental Distinction: Judicial vs Administrative Decisions

At its core, the distinction between judicial and administrative decisions reflects fundamentally different purposes and processes.

While both involve applying rules to facts, they operate with different objectives and characteristics:

Judicial powers typically:

• Resolve existing disputes about legal rights and obligations

• Determine what rights and obligations currently are

• Apply the law to past events

• Create binding determinations that settle controversies between parties

• Often involve adversarial proceedings

Administrative powers typically:

• Create new rights and obligations for the future

• Determine what rights and obligations should be

• Are protective or regulatory in nature

• Often pursue policy objectives rather than strictly applying existing law

• May be more inquisitorial than adversarial

As Chief Justice Quinlan observed in GS v MS, "judicial power is generally concerned with the ascertainment and enforcement of existing rights and obligations; it involves the determination of what the relevant person's rights or obligations are, not what they should be."

What Makes a Decision "Judicial" in Nature?

Identifying judicial power has challenged courts for generations. In GS v MS, Chief Justice Quinlan cited Justice Kitto's useful formulation from R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8:

"A judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons."

Judicial power generally involves determining existing rights and obligations through the application of law to facts. The closer a power is to this core concept, the more likely it is to be classified as judicial.

In contrast, as the High Court noted in Precision Data Holdings Ltd v Wills [1991] HCA 58: "If the object of the adjudication is not to resolve a dispute about the existing rights and obligations of the parties by determining what those rights and obligations are but to determine what legal rights and obligations should be created, then the function stands outside the realm of judicial power."

The Historical Perspective on Guardianship Powers

Guardianship powers have a unique historical origin that helps explain their administrative nature. As described in GS v MS, the jurisdiction of English courts over both infants and "lunatics" originated not from ordinary judicial power but from the delegation of Royal prerogatives.

In Scott v Scott [1913] AC 417, Viscount Haldane LC observed that in cases of "wards of Court and lunatics," the court's jurisdiction was "parental and administrative." The judge was "administering their affairs, in the exercise of what has been called a paternal jurisdiction delegated to him from the Crown through the Lord Chancellor."

This history reveals that guardianship powers were never conceived as strictly judicial in nature but rather as protective and administrative powers that happened to be exercised by courts.

Why Guardianship and Administration Orders Are Administrative in Nature

Chief Justice Quinlan identified several key reasons why guardianship and administration powers are administrative rather than judicial:

1. Future-oriented: Guardianship orders are not concerned with determining existing rights but with creating new arrangements for future decision-making.

2. Protective function: The proceedings are fundamentally protective in nature, aimed at safeguarding vulnerable individuals rather than resolving disputes.

3. Not inter partes: Although proceedings may be contested, they are not essentially about resolving disputes between parties. As Chief Justice Quinlan noted, "The Tribunal, in hearing a guardianship order or an administration order, does not decide a dispute between the parties; it applies its statutory obligation to act in 'the best interests of [the] person in respect of whom an application is made'."

4. Creation of new rights: The appointment of a guardian creates new legal rights and obligations rather than determining existing ones.

5. Welfare-oriented: The focus is on the person's welfare and best interests, not on competing legal claims.

In PJB v Melbourne Health [2011] VSC 327 (also known as Patrick's Case), Justice Bell similarly concluded that "the functions of the tribunal under the Guardianship and Administration Act to appoint guardians and administrators are administrative in the public law sense."

Implications for Guardianship Practice

The classification of guardianship powers as administrative rather than judicial has significant practical implications:

1. It influences which bodies can exercise these powers. The decision in GS v MS means the SAT can make guardianship and administration orders regardless of where the parties reside, as the constitutional limitation in Burns v Corbett only applies to judicial powers.

2. It shapes the procedures that should be followed. Administrative proceedings can be more flexible, inquisitorial, and welfare-focused than strictly judicial ones.

3. It reinforces the focus on best interests rather than adversarial dispute resolution. Guardianship proceedings should prioritize the welfare of the person rather than treating them as contests between competing parties.

4. It highlights the need for specialized expertise in decision-making bodies beyond strict legal knowledge. Administrative tribunals can incorporate diverse expertise relevant to the welfare of vulnerable persons.

Conclusion

The distinction between judicial and administrative powers may seem technical, but it reflects fundamentally different approaches to decision-making. Guardianship and administration powers, given their protective and future-oriented nature, properly fall within the administrative realm.

As Chief Justice Quinlan concluded in GS v MS [2019] WASC 255, these powers "are not at the core of judicial power." Instead, they represent a unique type of protective jurisdiction with origins in the parens patriae power of the Crown - a power concerned not with settling disputes but with protecting those unable to protect themselves.

Understanding this distinction helps everyone approach guardianship matters with the appropriate focus on welfare and best interests, rather than treating them as conventional legal disputes.

It also ensures these protective mechanisms remain accessible and effective for those who need them most.

Retrospective capacity assessment

Introduction

Retrospective capacity assessment is a process where geriatricians or psychiatrists (often with forensic expertise) evaluate whether an individual had cognitive capacity at a specific point in the past. This is commonly done in legal disputes – for example, to determine if a person with suspected Alzheimer’s disease had the capacity to sign a will or execute a contract years ago. Such assessments are necessary because Alzheimer’s disease is progressive, and capacity may diminish over time. Since the person’s mental state at the past date can no longer be directly examined, experts must reconstruct it using all available evidence (Testamentary capacity | BJPsych Advances | Cambridge Core) (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). The goal is to provide the court with a professional opinion, grounded in clinical data and observations, about whether the legal criteria for capacity were met at that time.

Methodologies for Retrospective Capacity Assessment

Clinical and Forensic Approach: Retrospective assessments rely on a “neuropsychological autopsy” approach (Neuropsychological autopsy of testamentary capacity) – essentially a posthumous or after-the-fact evaluation of the person’s mental state. The expert (e.g. a forensic psychiatrist or a geriatrician experienced in cognitive disorders) does not have the benefit of interviewing or examining the person at the relevant time, so they act as a detective piecing together information (Testamentary capacity | BJPsych Advances | Cambridge Core). They gather a bundle of evidence from the period in question and often create a detailed timeline of the individual’s health and behavior around the time of the decision in question (Testamentary capacity | BJPsych Advances | Cambridge Core) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). This includes identifying any diagnosed conditions (like dementia) or events (e.g. episodes of delirium or strokes) that could affect cognition. The expert then analyzes this evidence in light of clinical knowledge (e.g. the typical course of Alzheimer’s disease) and the legal standards for capacity. Finally, they form an opinion on whether it is more likely than not (“balance of probabilities”) that the person had or lacked capacity at that point (Testamentary capacity | BJPsych Advances | Cambridge Core). Throughout, a forensic methodology is applied – meaning the expert remains objective, uses established guidelines for evaluations, and understands their duty is to assist the court rather than advocate for either side (Testamentary capacity | BJPsych Advances | Cambridge Core) (Testamentary capacity | BJPsych Advances | Cambridge Core).

Sources of Evidence: In a retrospective capacity evaluation, experts draw on many sources to reconstruct past cognitive status (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey):

• Medical records: General practice (GP) notes, specialist consultations (e.g. neurology, psychiatry, geriatrics), hospital records, and memory clinic files around the time in question (Testamentary capacity | BJPsych Advances | Cambridge Core). These may contain diagnoses (like Alzheimer’s), cognitive test scores, medication history, and physicians’ observations.

• Care records: If the person was in a nursing home or received in-home care, care notes and assessments (for example, any mental capacity assessments done upon care home admission) are reviewed (Testamentary capacity | BJPsych Advances | Cambridge Core) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). Social services records or in-home caregiver logs can also provide insight into daily functioning.

• Collateral interviews and testimonies: Statements from family members, friends, neighbors, or caregivers who interacted with the person during that period are considered (Testamentary capacity | BJPsych Advances | Cambridge Core) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). These lay witnesses can describe the person’s memory, behavior, and ability to handle tasks at that time. Sometimes even video recordings of the individual (if available) are reviewed to observe their demeanor and cognition (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey).

• Legal and personal documents: The expert will examine documents related to the transaction in question – for example, the will file and the solicitor’s (attorney’s) notes taken when the will was made (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). Prior wills can be relevant to see any sudden or unusual changes in wishes. Personal correspondence (letters, emails) or notes written by the person around that time might also shed light on their mental clarity.

• Objective tests and data: Any cognitive testing results (e.g. Mini-Mental State Exam scores, neuropsychological testing) performed near that time are invaluable. Laboratory results or brain imaging can be relevant (for instance, ruling out other causes of confusion). Even medications and their dosages are reviewed – an expert will check what drugs the person was taking (e.g. cognitive enhancers or medicines with sedating side effects) to understand their potential impact on cognition (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). Forensically, details like a sudden change in medication or an acute illness (delirium) at the critical time are carefully noted.

Using these sources, the clinician constructs a narrative of the person’s cognitive state at the time of the transaction. For example, they might note the progression of Alzheimer’s disease by collating reports of memory decline, functional impairment in managing finances, or disorientation in conversations leading up to that date. They then assess this against the legal criteria for capacity (discussed below) to form an opinion. Throughout the process, best practices and any available guidelines are followed to ensure the assessment is systematic and unbiased (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity).

Role of Medical Records in Retrospective Assessment

Contemporaneous medical records are often the cornerstone of a retrospective capacity evaluation. Doctors’ notes made at or around the time in question provide objective, unbiased evidence of the individual’s health and mental status. For instance, a general practitioner’s (GP) records might show that the patient was reporting memory problems, was referred to a memory clinic, or even received a diagnosis of dementia prior to the transaction. Such entries carry significant weight because they were recorded without hindsight and as part of routine care (Testamentary capacity | BJPsych Advances | Cambridge Core).

Medical records can include: diagnoses (e.g. “probable Alzheimer’s disease” noted by a neurologist), cognitive screening scores (perhaps an MMSE or MOCA result with date), and observations of mental state (“patient appeared confused” or “short-term memory poor on exam”). If a memory clinic or specialist saw the person, their assessment letters are crucial – they might detail the level of dementia (mild, moderate, severe) and functional impairments at that time. For example, if a specialist noted in 2015 that the patient had moderate Alzheimer’s with impaired judgment, an expert in 2025 can use that to infer the person’s decision-making capacity in 2015 was likely compromised.

Because of their importance, experts will often comb through years of medical files. As one article notes, GP and secondary care records around the time of the will (or transaction) “can be very helpful” and may amount to thousands of pages (Testamentary capacity | BJPsych Advances | Cambridge Core). Every relevant entry is extracted to build the timeline. In addition to narrative notes, medical data such as lab tests or imaging might be considered – for example, a brain MRI showing significant atrophy (shrinkage) could support the presence of advanced Alzheimer’s at that time. Likewise, medication history is reviewed: if the person had been prescribed cholinesterase inhibitors (like donepezil) or memantine, it indicates a diagnosis of Alzheimer’s disease was made, whereas records of antipsychotic use might hint at behavioral symptoms of dementia or another psychiatric issue.

Medical records are generally given substantial weight in legal proceedings because they are contemporaneous and created by professionals without stake in the legal outcome. A well-documented history of progressive cognitive decline in the charts can strongly support a retrospective diagnosis of Alzheimer’s and resultant lack of capacity. However, the expert must also be cautious: not every note explicitly mentions capacity, and absence of a dementia diagnosis in the records doesn’t always mean the person was cognitively normal (sometimes dementia was present but undocumented). Therefore, experts read “between the lines,” looking for subtle clues (e.g. repeated appointments for forgetfulness, or notes about a family member increasingly managing the patient’s affairs) that suggest cognitive impairment even if Alzheimer’s wasn’t formally diagnosed yet (Testamentary capacity | BJPsych Advances | Cambridge Core). All this medical evidence is synthesized in the expert’s report to conclude, for example, that “on the balance of probabilities, Mr. X was already exhibiting moderate Alzheimer’s disease by mid-2018, which would have impaired his ability to understand and appreciate the transaction in question.”

Weight of Lay Evidence (Family and Caregiver Testimony)

Lay evidence – testimonies and observations from those who knew the person – also plays a role in retrospective assessments. Family members, friends, neighbors, and paid caregivers can often describe the person’s day-to-day functioning around the time in question. For instance, family might recall that “Dad was repeating questions and getting lost driving in 2015” or a caregiver might note that “Mrs. Y needed help managing her finances and often forgot what day it was.” Such firsthand accounts help paint a fuller picture of the individual’s mental capacity in real-world settings, beyond what is written in medical charts.

Experts conducting the retrospective evaluation will typically review witness statements or even conduct interviews to hear these accounts. Consistent reports from multiple sources can corroborate that the person was showing signs of Alzheimer’s (memory loss, confusion, poor judgment) at that time. Lay evidence can be especially useful to fill gaps; for example, if the person had not seen a doctor for a while, the family’s observations might be the only evidence of cognitive decline during that period. Courts do take these narratives into consideration, especially if they are detailed and come from disinterested witnesses (people with no stake in the legal outcome).

That said, lay testimony is generally given less weight than contemporaneous medical evidence (Testamentary capacity | BJPsych Advances | Cambridge Core). There are a few reasons for this. First, memories are fallible – by the time of a court case, relatives might be recalling events years later, and their recollections may be unintentionally distorted. Second, in legal disputes (like will contests), family members often have a vested interest in the outcome, which can consciously or unconsciously bias their testimony. One guide cautions that witness statements “are often less useful and may be subject to bias if prepared on the instructions of one side or the other” (Testamentary capacity | BJPsych Advances | Cambridge Core). In other words, each side in litigation might present a different story of the person’s capacity, colored by their interests.

Due to these concerns, forensic experts treat lay evidence with caution. They will look for consistency: do the caregiver’s notes, the neighbor’s observations, and the daughter’s testimony all align with the medical evidence? If, for example, multiple people describe the individual at the time as having severe memory lapses and inability to recognize relatives, and medical records also show an Alzheimer’s diagnosis, the expert can be more confident in concluding the person lacked capacity. On the other hand, if the only evidence of incapacity is a few family members saying “he seemed off,” but doctors at the time noted intact cognition, the expert (and ultimately the court) may put less stock in the lay statements.

In sum, lay evidence provides context and often vivid examples of the person’s mental functioning, but it is typically weighed alongside and checked against the more objective medical documentation. Strong lay testimony can reinforce a case of lack of capacity (or capacity), but by itself it rarely determines the outcome unless unopposed by other evidence. The court will evaluate the credibility of each witness and how their accounts fit with the clinical picture. Experts will usually comment on the lay observations in their report, noting whether those observations are consistent with the expected effects of Alzheimer’s at that stage. For example, an expert might write that a son’s description of his mother forgetting her own birthday and getting lost in her own home is consistent with moderately advanced Alzheimer’s disease and supports the conclusion that she was not mentally competent to sign legal documents at that time.

Frameworks and Guidelines for Retrospective Evaluation

When conducting a retrospective assessment, experts use established legal criteria for capacity as the framework for their opinion, and they adhere to professional guidelines to ensure a thorough, unbiased approach. The exact criteria for “capacity” depend on the type of decision in question (e.g. making a will, entering a contract, medical consent), but generally these criteria are well-defined in law and guide the evaluation.

For example, the classic legal test for testamentary capacity (capacity to make a will) comes from the case Banks v. Goodfellow (1870). In plain terms, it requires that at the time of making the will, the person: (1) understood the nature and effect of making a will, (2) knew the general extent of their property, (3) could comprehend and appreciate the claims of potential beneficiaries (i.e. who might expect to inherit), and (4) was not suffering from any mental disorder or delusion that distorted their thinking in making the bequests (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey). An expert assessing a past will-signing will explicitly evaluate whether the person, given their Alzheimer’s disease, likely met these elements. For instance, if due to dementia the person forgot about an entire bank account or a close family member, that would indicate they failed the second or third prong of Banks v Goodfellow. Similarly, other types of capacity (like capacity to enter a contract or to give informed consent) have their own legal tests, often boiling down to the person’s ability to understand, retain, use/weigh information, and communicate a decision (as in the Mental Capacity Act 2005 in England, or similar standards elsewhere).

Professional Guidelines: Forensic and clinical bodies have developed guidance for how to perform these evaluations. In forensic psychiatry, experts are expected to follow the rules of expert evidence in their jurisdiction – for example, in the UK they must follow Civil Procedure Rules for expert witnesses, and in the US an equivalent duty to the court. This means the expert must be impartial, base conclusions on facts and sound reasoning, and disclose any limitations. Courts will only accept retrospective evaluations that are prepared in line with these rules (Testamentary capacity | BJPsych Advances | Cambridge Core). Experts are often encouraged to get specialized training in conducting such assessments because of their complexity (Testamentary capacity | BJPsych Advances | Cambridge Core).

Additionally, over the years clinicians have proposed more specific frameworks to guide retrospective capacity assessments. For instance, researchers have published comprehensive guidelines to improve the validity of retrospective testamentary capacity opinions (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). One example is the concept of a “neuropsychological autopsy,” which provides a structured method to posthumously evaluate cognition and decision-making capacity (Neuropsychological autopsy of testamentary capacity). This approach, described by Zago and Bolognini (2020), includes systematically reviewing medical and psychosocial history, and even novel techniques like analyzing handwriting samples over time for signs of cognitive decline ( Testamentary capacity assessment in dementia using artificial intelligence: prospects and challenges - PMC ). Another example: Shulman et al. (2021) have outlined best practices gleaned from experience with will contests, emphasizing thorough documentation review, collateral interviews, and use of standardized criteria in forming an opinion (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity) (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity).

In practice, an expert will often structure their report by first stating the legal standard (e.g. the Banks v Goodfellow criteria or the relevant mental capacity statute) and then discussing the evidence in relation to each element. For instance, “Criterion 1: Understanding the nature of a will – Discussion: At the time, Mr. Doe had a diagnosis of Alzheimer’s and doctors noted confusion about his finances; however, the solicitor’s notes indicate he did articulate what a will means. My opinion is that he did understand the nature of making a will.” The expert will go through each capacity component like this. They will also cite any clinical guidelines they followed. For example, they might mention using the American Bar Association/American Psychological Association handbook for assessing older adults’ capacities as a reference, or adhering to the American Academy of Psychiatry and Law’s guideline on forensic evaluation. All of this demonstrates to the court that a systematic, accepted approach was used, lending credibility to the retrospective opinion.

It’s important to note that retrospective assessments are recognized as inherently more challenging and potentially less accurate than contemporaneous evaluations. Guidelines often stress that whenever possible, capacity should be assessed at the time of the decision, because retrospective opinions have to overcome gaps in evidence and fading memories (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). Indeed, one article observes that while comprehensive retrospective guidelines exist, it is “more reliable and valid” to measure capacity contemporaneously than retrospectively (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). This is why lawyers sometimes invoke the “Golden Rule” in estate planning (having an older or ill client assessed by a doctor at the time of making a will to create a record of capacity) – such contemporaneous evidence can carry more weight later. Nonetheless, when a retrospective assessment is unavoidable, following a standard framework ensures the expert’s analysis is as rigorous as possible. By using these frameworks and clearly tying their findings to the legal criteria, the expert provides a structured, easy-to-follow opinion for the court.

Case Examples of Retrospective Assessment

Example 1 – Indications of Incapacity: Retrospective evaluations can sometimes clearly reveal that a person lacked capacity due to Alzheimer’s disease. For instance, consider a scenario described in the literature: a testator rewrote his will to exclude his daughter, justifying the disinheritance by claiming he “had not seen her for years.” However, the factual evidence showed that the daughter had frequent contact and was actively supporting him (Testamentary capacity | BJPsych Advances | Cambridge Core). Such a discrepancy between the testator’s stated belief and reality strongly suggested a cognitive impairment. In a retrospective analysis, a psychiatrist noted that the father’s memory and perception were so distorted by dementia that he failed to recognize his daughter’s ongoing presence in his life – a sign that he likely did not comprehend who his natural beneficiaries were. This formed part of the expert’s opinion that the testator lacked testamentary capacity when making that will (Testamentary capacity | BJPsych Advances | Cambridge Core). In court, this kind of retrospective expert evidence, combined with family testimony about the father’s forgetfulness, led to the will being deemed invalid. It shows how an expert can use both medical facts (e.g. diagnosis of Alzheimer’s, known to cause memory delusions) and lay evidence to conclude that the legal criteria for capacity were not met.

Example 2 – Capacity Despite Alzheimer’s: Not every case of Alzheimer’s means incapacity, and retrospective assessments may sometimes support that a person did have capacity at the relevant time. A case example in a psychiatric report involved a 93-year-old woman with a formal diagnosis of mixed Alzheimer’s and vascular dementia (Testamentary capacity | BJPsych Advances | Cambridge Core). She changed her will in 2019 to favor one child who had been caring for her. After her death, her other child challenged the will, alleging she lacked capacity. The retrospective assessment had a lot of evidence to consider: doctors had diagnosed her dementia in 2016 and she was being followed by a memory clinic; a few months after making the new will, her cognitive test score was quite low (Addenbrooke’s Cognitive Examination score of 68/100, indicating moderately severe impairment) (Testamentary capacity | BJPsych Advances | Cambridge Core). On the other hand, the lawyer who drafted the will wrote contemporaneous notes stating he had no concerns about her understanding or decision-making at the time (Testamentary capacity | BJPsych Advances | Cambridge Core). The expert reviewing the case weighed these facts and ultimately opined that, on the balance of probabilities, the woman did have capacity when signing the 2019 will (Testamentary capacity | BJPsych Advances | Cambridge Core). The reasoning was that despite her dementia, she still understood the consequences of making the will, grasped the extent of her estate, and knew she had two children (and consciously decided to benefit the one who lived with her) (Testamentary capacity | BJPsych Advances | Cambridge Core). There was no evidence of delusions influencing her choice. Essentially, the retrospective opinion was that her Alzheimer’s disease had not yet robbed her of the specific understanding and judgment needed for the will. The court, persuaded by this well-substantiated expert report and the solicitor’s testimony, upheld the will. This example illustrates that a nuanced retrospective evaluation can distinguish between having a diagnosis of Alzheimer’s and actually lacking legal capacity – they are not automatically the same, especially in early or moderate stages of the disease (Testamentary capacity | BJPsych Advances | Cambridge Core) (Testamentary capacity | BJPsych Advances | Cambridge Core).

Example 3 – Divergence Between Expert Opinion and Outcome: It’s worth noting that while courts highly value expert retrospective assessments, they are one piece of the puzzle. In some cases, a court may reach a conclusion that differs from the expert’s opinion when other evidence weighs heavily. For example, in Hughes v. Pritchard (2021), an elderly testator’s will was challenged. A contemporaneous medical capacity assessment (following the so-called Golden Rule) had found him capable at the time the will was made, and later on in the lawsuit a jointly-appointed expert psychiatrist also concluded that the testator had testamentary capacity. One might expect these medical opinions to settle the issue. However, the High Court examined all the circumstances – the testator had recently suffered a bereavement and made an abrupt, significant change to his will – and ultimately held the will invalid for lack of capacity despite the medical evidence (How important is an expert’s opinion when seeking to establish testamentary capacity? - Birketts). The judge in that case found that the testator’s grief and cognitive state actually impaired his decision-making more than the experts believed. This demonstrates that retrospective assessments, while critically important, do not guarantee the legal outcome. The court must weigh the expert’s report alongside lay evidence, the credibility of witnesses, and its own application of the legal test. In most instances, a well-founded retrospective evaluation is highly influential, but the final determination of past capacity rests with the judge or jury.

Conclusion

Retrospective capacity assessments are complex endeavors at the intersection of medicine and law. Geriatricians and psychiatrists use clinical and forensic methodologies to retrospectively diagnose conditions like Alzheimer’s disease and evaluate decision-making capacity at a specific point in time. They meticulously review medical records for contemporaneous evidence of cognitive decline, consider lay observations from family and caregivers, and apply standard legal criteria and professional guidelines to ensure a structured and impartial analysis (Testamentary capacity | BJPsych Advances | Cambridge Core) (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity). Each element – clinical data, eyewitness accounts, and established frameworks – contributes pieces to the puzzle of whether the person, more likely than not, understood and appreciated their actions back then. These expert retrospective opinions often carry significant weight in legal proceedings, helping the court reach a just determination about past transactions. Ultimately, by integrating medical science (e.g. the effects of Alzheimer’s on the brain) with legal standards of capacity, such assessments enable fact-finders to make informed decisions about the validity of wills, contracts, or other decisions made by individuals who may have been impaired. The process is rigorous and evidence-driven: medical records provide objective benchmarks, lay testimony adds context, and guidelines keep the evaluation consistent and reliable. In the end, while the court has the final say on a person’s past capacity, it is this careful assembly of clinical and collateral evidence – guided by established methods – that forms the backbone of determining whether Alzheimer’s disease had undermined an individual’s capacity at the relevant moment in time.

Sources:

• Hackett M. et al., BJPsych Advances: Discussion on conducting retrospective testamentary capacity assessments and weighing evidence (Testamentary capacity | BJPsych Advances | Cambridge Core) (Testamentary capacity | BJPsych Advances | Cambridge Core).

• Shulman K. et al., 2021: Emphasis on reviewing records, tests, and testimonies for retrospective capacity, noting guidelines for improving validity (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity) (Frontiers | A Comprehensive Approach to Assessment of Testamentary Capacity).

• Foot Anstey (law firm) – Using medical experts in testamentary claims: Outline of what documents and information a retrospective capacity assessor examines (medical records, witness statements, prior wills, etc.) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey) (Using medical experts in testamentary claims – retrospective capacity assessments | Foot Anstey).

• Hackett M. et al., BJPsych Advances (case vignette): Example of a retrospective report in moderate dementia, showing analysis that even with Alzheimer’s, capacity might be intact for specific decisions (Testamentary capacity | BJPsych Advances | Cambridge Core) (Testamentary capacity | BJPsych Advances | Cambridge Core).

• Birketts LLP – Expert’s opinion and testamentary capacity: Noted that courts consider expert evidence but will make an independent judgment (e.g. Hughes v Pritchard case) (How important is an expert’s opinion when seeking to establish testamentary capacity? - Birketts).

Understanding Refundable Accommodation Deposits in Aged Care: Centrelink Implications and Protected Person Considerations

As Australia’s population ages, navigating the financial and legal complexities of residential aged care has become increasingly critical.

For families in Western Australia, understanding refundable accommodation deposits (RADs), their interplay with Centrelink assessments, and the role of protected persons is essential for making informed decisions.

This article synthesizes legislative frameworks, financial strategies, and guardianship considerations to provide clarity on these interconnected topics.

Refundable Accommodation Deposits: An Overview

Refundable Accommodation Deposits (RADs) are lump-sum payments made to aged care providers to secure accommodation for residents.

Under the Aged Care Act 1997, these deposits must be refunded in full (minus agreed deductions) within 14 days of a resident’s departure or death[1][11].

Residents may also opt for daily accommodation payments (DAPs), which represent interest on the unpaid RAD, calculated using the Maximum Permissible Interest Rate (MPIR)[7].

The choice between RAD and DAP hinges on factors like liquidity, estate planning, and means-testing outcomes[2][13].

Providers may use RADs for capital expenditures, such as constructing new facilities, but not for operational costs like staff wages[6].

This distinction ensures RADs remain protected assets, though their strategic use can influence aged care fees and pension entitlements.

Centrelink Treatment of RADs: Exemptions and Means Testing

Age Pension Assessments

For Centrelink’s Age Pension purposes, RADs are exempt from the assets test.

This exemption allows pensioners to retain higher Age Pension entitlements despite holding substantial lump sums[4][13].

For example, a resident paying a $500,000 RAD would not have this amount counted toward their asset threshold, potentially preserving their full pension[2].

Aged Care Means-Tested Care Fees

Contrastingly, RADs are included in the aged care means test, directly affecting the daily means-tested care fee (MTCF).

The MTCF calculation blends income and asset assessments, with RADs contributing to the latter[4][9].

A higher RAD increases the assets-tested component, potentially raising MTCF liabilities.

This dual treatment underscores the need for financial advice before committing to a RAD[9][13].

The Role of Protected Persons in Aged Care Planning

A “protected person” is an individual whose continued residence in the family home exempts the property from aged care means testing.

Under the Aged Care Act, protected persons include:

1. Partners - residing in the home.

2. Dependent children - under 18 or full-time students under 25.

3. Carers who have lived in the home for ≥2 years and receive income support.

4. Close relatives eligible for income support who have resided in the home for ≥5 years[5][10].

Impact on Aged Care Fees

If a protected person remains in the home, its value is disregarded in the aged care assets test, reducing MTCF obligations. For instance, a home valued at $800,000 with a protected occupant would not inflate the resident’s assessable assets[5][10]. However, Centrelink treats the home differently: after two years in care, the property is assessed unless a protected person (e.g., a spouse) remains[5][13].

Case Study: Balancing RAD Payments and Protected Person Status

Consider Mary, a single aged pensioner with a $800,000 home and $30,000 savings. Upon entering care, she opts for a $500,000 RAD.

- Centrelink Impact: Her RAD is exempt, preserving her Age Pension.

- Aged Care Impact: The RAD increases her assets-tested MTCF.

- Protected Person Scenario: If Mary’s brother (a carer receiving JobSeeker) remains in the home, the property is exempt from aged care assessments, lowering her MTCF[5][10].

Without a protected person, selling the home after two years would trigger Centrelink’s asset test, disqualifying her pension until the RAD is paid[10][13].

Sources

[1] Aged care home accommodation refunds https://www.myagedcare.gov.au/aged-care-home-accommodation-refunds

[2] Paying a parent's aged care accommodation costs | BT Professional https://www.bt.com.au/professional/knowledge-centre/client-strategies/retirement-strategies/paying-for-a-parents-aged-care.html

[3] Adult Guardianship (WA) - Court Lawyers https://www.gotocourt.com.au/civil-law/wa/adult-guardianship/

[4] Refundable Accommodation Deposit Assets Test Explained https://www.corevalue.com.au/refundable-accommodation-deposit-assets-test/

[5] What Is a Protected Person For Aged Care & Who Qualifies? https://www.corevalue.com.au/protected-person-aged-care/

[6] Permitted use of refundable deposits | Aged Care Quality and Safety ... https://www.agedcarequality.gov.au/providers/financial-prudential-standards/permitted-use-refundable-deposits

[7] RAD and DAP Frequently asked questions - Simply Retirement https://simplyretirement.com.au/aged-care-accommodation-payments-faqs

[8] Enduring Power of Guardianship - Government of Western Australia https://www.wa.gov.au/organisation/department-of-justice/office-of-the-public-advocate/enduring-power-of-guardianship

[9] Means assessment for residential aged care https://www.health.gov.au/our-work/residential-aged-care/charging/means-assessment

[10] Protected Person Status - General - Aged Care 101 https://forum.agedcare101.com.au/t/protected-person-status/773

[11] Refunding lump sums in residential aged care https://www.health.gov.au/our-work/residential-aged-care/charging/refunds

[12] Appoint a guardian or administrator https://www.sat.justice.wa.gov.au/A/appoint_a_guardian_or_administrator.aspx

[13] Aged Care Tips and Strategies - Financial Decisions https://financialdecisions.com.au/aged-care-tips-and-strategies/

[14] [PDF] Guardianship - Legal Aid WA https://www.legalaid.wa.gov.au/sites/default/files/inline-files/Video-Fact-Sheet-Guardianship.pdf

[15] FIS aged care refundable accommodation deposits (RADs) video https://www.servicesaustralia.gov.au/fis-aged-care-refundable-accommodation-deposits-rads-video?context=21836

[16] What is a Refundable Accommodation Deposit (RAD)? https://agedcaredecisions.com.au/what-is-a-rad/

[17] [DOC] video-transcript-refundable-accommodation-deposits.docx http://www.servicesaustralia.gov.au/sites/default/files/video-transcript-refundable-accommodation-deposits.docx

[18] Guardianship and administration | Legal Aid WA https://www.legalaid.wa.gov.au/find-legal-answers/managing-your-affairs/guardianship-and-administration

[19] Refundable accommodation deposits (RADs) - IHACPA https://www.ihacpa.gov.au/aged-care/refundable-accommodation-deposits-rads

[20] [PDF] Guardianship and Administration Act 1990 https://www.legislation.wa.gov.au/legislation/statutes.nsf/RedirectURL?OpenAgent&query=mrdoc_44836.pdf

[21] Refunding refundable deposits | Aged Care Quality and Safety ... https://www.agedcarequality.gov.au/resource-library/refunding-refundable-deposits

[22] Guardianship: OPA information - Government of Western Australia https://www.wa.gov.au/organisation/department-of-justice/office-of-the-public-advocate/guardianship-opa-information

[23] West Perth Accommodation Payments - Rosewood aged care https://rosewoodcare.org.au/aged-care-facilities/west-perth/accommodation-payments/

[24] [PDF] Guardianship and Administration Act 1990 https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/mrdoc_28305.pdf/$FILE/Guardianship%20and%20Administration%20Act%201990%20-%20%5B05-j0-02%5D.pdf?OpenElement

[25] Understanding aged care home accommodation costs https://www.myagedcare.gov.au/understanding-aged-care-home-accommodation-costs

[26] CAP-02 Incapable Persons - Landgate https://www.landgate.wa.gov.au/land-and-property/land-transactions-hub/land-transaction-policy-and-procedure-guides/land-titles/proprietor/cap-02-incapable-persons/

[27] Aged care carer or close relative assessment - Services Australia https://www.servicesaustralia.gov.au/aged-care-carer-or-close-relative-assessment-for-aged-cost-care?context=23296

[28] Understanding Aged Care Costs: Unpacking the RAD & Its Impact ... https://www.laterlifeadvice.com.au/our-blog/refundable-accomodation-deposit

[29] The “protected person rule” – what happens if your spouse remains ... https://attwoodmarshall.com.au/the-protected-person-rule-when-does-it-apply/

[30] Assets test for Age Pension - Services Australia https://www.servicesaustralia.gov.au/assets-test-for-age-pension?context=22526

[31] Income and means assessments | My Aged Care https://www.myagedcare.gov.au/income-and-means-assessments

[32] Aged care: how a protected person protects the family home – CPSA https://cpsa.org.au/article/aged-care-how-a-protected-person-protects-the-family-home/

[33] Western Australian Enduring Power of Guardianship https://legalconsolidated.com.au/wa-medical-poa/

[34] Changes to aged care fees, annual and lifetime caps https://www.myagedcare.gov.au/changes-aged-care-fees-annual-and-lifetime-caps

Understanding the Diagnostic Process for Alzheimer’s Disease: A Comprehensive Guide for Western Australians

Alzheimer’s disease, the most common form of dementia, represents a significant challenge for individuals, families, and healthcare systems worldwide.

In Western Australia, where approximately 40,000 people live with dementia, understanding the diagnostic process is critical for early intervention and legal planning[13][15].

This article synthesizes the latest clinical guidelines, biomarker advancements, and diagnostic tools to explain how Alzheimer’s disease is identified and confirmed.

The Shift to Biological Diagnosis: Core Biomarkers and Revised Criteria

Historically, Alzheimer’s disease could only be definitively diagnosed postmortem through the identification of amyloid plaques and neurofibrillary tangles in brain tissue[8].

However, the 2024 revised criteria from the Alzheimer’s Association Workgroup have revolutionized diagnosis by emphasizing **biological markers** (biomarkers) that detect the disease years before symptoms appear[1]. These biomarkers fall into two categories:

Core 1 Biomarkers: Early Detection and Diagnostic Certainty

Core 1 biomarkers include amyloid PET scans, cerebrospinal fluid (CSF) analysis, and plasma tests for phosphorylated tau 217 (p-tau217).

These tools identify the presence of Alzheimer’s neuropathological change (ADNPC), which encompasses both amyloid plaques and tau tangles[1][12]. For example:

- Amyloid PET scans visualize amyloid-beta deposits in the brain, with abnormal results strongly correlating with AD pathology[3][10].

- CSF tests measure amyloid-beta 42, total tau, and p-tau levels, providing a 90% accuracy rate in predicting amyloid positivity[2][16].

- Blood-based biomarkers like p-tau217 now offer comparable accuracy to CSF testing, enabling accessible screening through services like Western Diagnostic Pathology’s PrecivityAD2™ test in Perth[7][16].

An abnormal Core 1 biomarker result is sufficient for an Alzheimer’s diagnosis, even in asymptomatic individuals, reflecting the disease’s biological onset[1][8].

Core 2 Biomarkers: Tracking Progression and Staging

Core 2 biomarkers, such as tau PET scans and neurofilament light chain (NfL) measurements, become abnormal later in the disease course.

These help clinicians predict symptom onset and monitor neurodegeneration[1][3].

For instance, tau PET scans reveal the spread of neurofibrillary tangles from the medial temporal lobe to cortical regions, which correlates with cognitive decline[10].

Clinical Evaluation: Ruling Out Reversible Causes

Comprehensive Medical History and Physical Examination

The diagnostic journey begins with a detailed medical history, including psychiatric conditions, medication use, and family history of dementia[2][14].

GPs in WA follow the RACGP Silver Book guidelines, which mandate:

- Reviewing cardiovascular risk factors (e.g., hypertension, diabetes) linked to vascular dementia[6].

- Exposing alcohol misuse or vitamin deficiencies (B12, folate) that mimic dementia symptoms[14].

- Assessing for depression, which presents as “pseudodementia” in 15–20% of cases[11][15].

A neurological exam evaluates reflexes, coordination, and sensory function to identify stroke, tumors, or Parkinson’s disease[5][8]. Blood tests rule out thyroid dysfunction, infections, and metabolic disorders[2][14].

Cognitive and Functional Assessments: Beyond Memory Testing

Standardized Cognitive Screening Tools

The Montreal Cognitive Assessment (MoCA) and Mini-Mental State Examination (MMSE) are widely used in WA clinics to evaluate:

- Short-term memory (e.g., recalling three words after five minutes).

- Executive function (e.g., trail-making tests).

- Language skills (e.g., naming objects)[2][9].

However, these tests have limitations.

A score of 25/30 on the MMSE may miss early Alzheimer’s, prompting specialists to use more sensitive tools like the CANTAB Mobile® battery, which assesses paired associative learning and spatial working memory[9][10].

Behavioral and Psychological Evaluations

The Neuropsychiatric Inventory Questionnaire (NPI-Q) identifies agitation, apathy, or sleep disturbances that support an Alzheimer’s diagnosis and guide non-pharmacological interventions[2][15].

Neuroimaging: Visualizing Brain Changes

Structural MRI and CT Scans

Structural imaging remains a cornerstone in WA’s diagnostic workflow to exclude subdural hematomas, tumors, or hydrocephalus. MRI findings in Alzheimer’s typically show:

- Hippocampal atrophy: A 20–30% volume loss in early stages[10][12].

- Cortical thinning: Particularly in parietal and temporal lobes[10].

Advanced PET Imaging

Amyloid and tau PET scans are available through tertiary centers like Royal Perth Hospital. Studies show amyloid PET positivity in 85% of clinically diagnosed Alzheimer’s cases, while tau PET correlates with cognitive decline rates[3][8].

Cerebrospinal Fluid and Blood Biomarkers: A Game Changer for WA Patients

Lumbar Puncture and CSF Analysis

CSF testing via lumbar puncture measures amyloid-beta 42 (low levels indicate plaque formation) and p-tau (elevated in tangle pathology).

The FDA-approved Lumipulse® and Elecsys® assays standardized these measurements, reducing inter-lab variability[2][12].

Blood-Based Testing: The PrecivityAD2™ Innovation

Western Diagnostic Pathology’s PrecivityAD2™ test, available at select WA collection centers, measures plasma p-tau217 and amyloid-beta 42/40 ratio.

This non-invasive tool achieves 85–90% concordance with amyloid PET, enabling GPs to initiate referrals without specialist waitlists[7][16].

Putting It All Together: Australia’s Diagnostic Guidelines

The Clinical Practice Guidelines and Principles of Care for People with Dementia (2016, updated 2023) provide a roadmap for WA clinicians[4][15]:

1. Timely diagnosis: Cognitive testing within 4 weeks of symptom report.

2. Biomarker integration: Use CSF/blood tests for atypical cases.

3. Multidisciplinary collaboration: Involve neurologists, geriatricians, and neuropsychologists.

4. Ethical communication: Disclose diagnosis with sensitivity, avoiding terms like “senility”[11][15].

Conclusion: The Future of Diagnosis in WA

With blood biomarkers and AI-driven cognitive tests revolutionizing early detection, WA’s healthcare system is poised to reduce diagnostic delays.

For families, understanding this process demystifies Alzheimer’s and underscores the importance of legal preparedness.

As research advances, the integration of emerging tools like retinal amyloid imaging and digital gait analysis promises even greater precision in the years ahead[12][16].

By synthesizing clinical evaluations, biomarkers, and imaging, clinicians can now diagnose Alzheimer’s with >95% accuracy during life—a paradigm shift empowering patients and families to plan with clarity[1][8][16].

Sources

[1] Revised criteria for diagnosis and staging of Alzheimer's disease ... https://alz-journals.onlinelibrary.wiley.com/doi/10.1002/alz.13859

[2] Medical Tests for Diagnosing Alzheimer's & Dementia | alz.org https://www.alz.org/alzheimers-dementia/diagnosis/medical_tests

[3] Regional variability of imaging biomarkers in autosomal dominant ... https://www.pnas.org/doi/10.1073/pnas.1317918110

[4] Clinical guidelines for dementia https://cdpc.sydney.edu.au/research/clinical-guidelines-for-dementia/

[5] Alzheimer's Disease Fact Sheet | National Institute on Aging https://www.nia.nih.gov/health/alzheimers-and-dementia/alzheimers-disease-fact-sheet

[6] [PDF] RACGP aged care clinical guide (Silver Book) https://www.racgp.org.au/getattachment/af2d2506-9c65-43ab-a442-319a56f12fb7/Dementia.aspx

[7] Western Diagnostic Pathology - Pathology diagnostics & testing ... https://www.wdp.com.au

[8] Alzheimer's disease - Diagnosis and treatment - Mayo Clinic https://www.mayoclinic.org/diseases-conditions/alzheimers-disease/diagnosis-treatment/drc-20350453

[9] 7 tests for assessing cognition in early Alzheimer's disease https://cambridgecognition.com/7-tests-for-assessing-cognition-in-early-alzheimers-disease/

[10] Current understanding of magnetic resonance imaging biomarkers ... https://alz-journals.onlinelibrary.wiley.com/doi/10.1016/j.trci.2018.04.007

[11] Clinical practice guidelines and principles of care for people with ... https://www.racgp.org.au/afp/2016/december/clinical-practice-guidelines-and-principles-of-car

[12] Detection and treatment of Alzheimer's disease https://alzheimerswa.org.au/detection-and-treatment-of-alzheimers-disease/

[13] Dementia in Australia, How is dementia diagnosed? https://www.aihw.gov.au/reports/dementia/dementia-in-aus/contents/understanding-dementia/how-is-dementia-diagnosed

[14] Tests used in diagnosing dementia - Healthdirect https://www.healthdirect.gov.au/tests-used-in-diagnosing-dementia

[15] Clinical practice guidelines for dementia in Australia https://www.mja.com.au/journal/2016/204/5/clinical-practice-guidelines-dementia-australia

[16] Alzheimer's disease and PrecivityAD2™ blood test | WDP https://www.wdp.com.au/tests/precivityad2

[17] Dementia in Australia, National policy response to dementia https://www.aihw.gov.au/reports/dementia/dementia-in-aus/contents/national-policy-response-to-dementia

[18] Alzheimer's disease - Diagnosis - NHS https://www.nhs.uk/conditions/alzheimers-disease/diagnosis/

[19] How Alzheimer's is diagnosed - Mayo Clinic https://www.mayoclinic.org/diseases-conditions/alzheimers-disease/in-depth/alzheimers/art-20048075

[20] Cognitive Screening and Assessment | Alzheimer's Association https://www.alz.org/professionals/health-systems-medical-professionals/cognitive-assessment

[21] Molecular and Imaging Biomarkers in Alzheimer's Disease: A Focus ... https://pmc.ncbi.nlm.nih.gov/articles/PMC7565667/

[22] Alzheimer's Disease: Symptoms & Treatment - Cleveland Clinic https://my.clevelandclinic.org/health/diseases/9164-alzheimers-disease

[23] How Is Alzheimer's Disease Diagnosed? | National Institute on Aging https://www.nia.nih.gov/health/alzheimers-symptoms-and-diagnosis/how-alzheimers-disease-diagnosed

[24] Tests and scans to diagnose dementia - Alzheimer's Society https://www.alzheimers.org.uk/about-dementia/symptoms-and-diagnosis/dementia-diagnosis/how-to-get-dementia-diagnosis/tests-and-scans

[25] How Biomarkers Help Diagnose Dementia | National Institute on Aging https://www.nia.nih.gov/health/alzheimers-symptoms-and-diagnosis/how-biomarkers-help-diagnose-dementia

[26] [PDF] Clinical Practice Guidelines and Principles of Care for People with ... https://cdpc.sydney.edu.au/wp-content/uploads/2019/06/CDPC-Dementia-Guidelines_WEB.pdf

[27] Alzheimer's disease - symptoms, causes, diagnosis and prevention https://www.healthdirect.gov.au/alzheimers-disease

[28] Alzheimer's disease - HealthyWA https://healthywa.wa.gov.au/Articles/A_E/Alzheimers-disease

[29] Assessment and diagnosis of dementia https://www.dementia.org.au/professionals/assessment-and-diagnosis-dementia

[30] The difficulty in getting a diagnosis - Alzheimer's WA https://alzheimerswa.org.au/the-difficulty-in-getting-a-diagnosis/

[31] Testing and diagnosis - Dementia Australia https://www.dementia.org.au/about-dementia/dementia-test-and-diagnosis

[32] Dementia - Alzheimer's disease - Better Health Channel https://www.betterhealth.vic.gov.au/health/conditionsandtreatments/dementia-alzheimers-disease

[33] ADNeT Memory and Cognition Clinic Guidelines https://www.australiandementianetwork.org.au/initiatives/memory-clinics-network/adnet-memory-and-cognition-clinic-guidelines/

When Administrators Can Step into a Trustee's Shoes: The Powers of the State Administrative Tribunal

Introduction: The JKJ Case

A recent Western Australian case has provided important clarification about the powers of the State Administrative Tribunal (SAT) to authorize administrators to exercise trustee powers on behalf of represented persons. In JKJ [2025] WASAT 6, the Public Trustee sought directions regarding a represented person who was the executor and trustee of his late aunt's estate. Before losing capacity, JKJ had received a grant of probate for his aunt's will and had partially administered the estate, with approximately $20,000 remaining for distribution. The solicitors who had acted for JKJ in his capacity as executor refused to provide information to the Public Trustee (as JKJ's administrator) without instructions from JKJ himself—instructions he could no longer provide due to his incapacity.

The Legal Question: Can Administrators Exercise Trustee Powers?

When someone loses capacity and has an administrator appointed under the Guardianship and Administration Act 1990 (WA) ("GA Act"), a key question arises: does the administrator's authority extend to exercising powers the represented person held as a trustee? This is particularly relevant when the represented person was a trustee of family trusts, self-managed superannuation funds, or deceased estates.

The issue stems from a fundamental legal principle: property held by a person as trustee does not form part of their personal estate. Section 69 of the GA Act gives administrators authority to perform functions "in respect of the estate of the represented person." This creates uncertainty about whether an administrator can act in relation to trust assets.

Schedule 2, Part B, Paragraph (h): The Key Provision

The solution lies in Schedule 2, Part B, paragraph (h) of the GA Act, which provides that where a power is vested in a represented person in the character of a trustee or guardian, the SAT may:

"...authorise the administrator to exercise the power or give the consent in such a manner as the Tribunal may direct."

This provision effectively bridges the gap between an administrator's general authority over a represented person's estate and their ability to exercise the represented person's trustee powers.

The Full Tribunal's Interpretation

In Public Trustee of Western Australia and VV [2012] WASAT 170, the Full Tribunal provided important guidance on interpreting paragraph (h). That case concerned a represented person who was trustee of his self-managed superannuation fund.

The Tribunal adopted a broad interpretation of the provision, stating that it "arises where there is a power vested in the represented person in the character of a trustee or a guardian at, or immediately before, the appointment of an administrator for the represented person, or where the power is vested in the represented person through his legal personal representative."

This interpretation prioritizes the beneficial purpose of the GA Act, which as noted in Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268, is "designed to serve the best interests of those who lack capacity to manage their own affairs or to look after their own health and safety" and "to conserve the property and financial resources of a disabled person."

A More Restrictive View

Not all tribunal decisions have adopted such a broad interpretation. In SQ and IQ [2012] WASAT 165, a single member took a more restrictive view, interpreting paragraph (h) as envisaging "the performing of a single act or a one-off exercise of power rather than the adopting of an ongoing role encompassing many and varied decisions into the future."

However, in JKJ [2025] WASAT 6, the member explicitly disagreed with this narrow interpretation, finding that it was not supported by the language of the provisions.

When Should the Power Be Exercised?

The Full Tribunal in Public Trustee and VV provided guidance on when the SAT should exercise its discretion under paragraph (h):

"The question as to whether the Tribunal ought to give authority under paragraph (h) will always turn on the particular circumstances of the case. The provisions of the relevant trust deed, the nature of the trust, the identity of the beneficiaries, the nature of the trust property and the character and extent of the powers in respect of which authority is sought, will all be significant considerations in the exercise of the discretion as to whether authority should be granted."

In JKJ, the Tribunal found it was in the best interests of the represented person to authorize the Public Trustee to exercise his powers as trustee—both to obtain information about the deceased estate and to complete the administration by distributing the remaining funds to beneficiaries.

Practical Implications

This case highlights several important considerations for administrators:

1. Administrators do not automatically have authority to exercise a represented person's trustee powers—specific authorization from the SAT is required

2. The SAT has broad jurisdiction to authorize administrators to exercise trustee powers

3. The need for such authorization applies to various trustee roles, including trustees of deceased estates, family trusts, and self-managed superannuation funds

4. In applying for authorization, administrators should address how exercising the trustee powers advances the represented person's best interests

5. The scope of authorization can be tailored to specific circumstances, from obtaining information to completing trust distributions

Conclusion

The JKJ decision confirms the SAT's jurisdiction to authorize administrators to exercise a represented person's trustee powers. This jurisdiction is particularly valuable in preventing trust administration from being paralyzed when a trustee loses capacity. When used appropriately, it allows administrators to protect the represented person's interests without the need for costly applications to other courts for the appointment of substitute trustees.

For represented persons who are trustees, this mechanism provides a practical solution to ensure their legal obligations as trustees can continue to be fulfilled despite their incapacity, protecting both their interests and those of trust beneficiaries.

Jurisdiction to Make Administration Orders for Non-Residents in Western Australia

Introduction: The JCB Case

In a significant decision from early 2025, the Western Australian State Administrative Tribunal (SAT) addressed important jurisdictional questions regarding administration orders for non-residents. In JCB [2025] WASAT 1, the represented person had been subject to guardianship and administration orders in Western Australia since September 2020. In October 2022, JCB relocated to South Australia to live with her daughter, CCB. The Public Advocate subsequently applied to the South Australian Civil Administrative Tribunal (SACAT), which declined to make a guardianship order but appointed CCB as limited administrator for specific functions. This created potential jurisdictional conflict, as JCB still had assets managed by the Public Trustee in Western Australia.

When Can SAT Make Administration Orders for Non-Residents?

Legislative Basis

Section 67(1) of the Guardianship and Administration Act 1990 (WA) explicitly provides that an administration order may be made for a person who is not resident or domiciled in Western Australia. However, any such order is limited to the person's estate within Western Australia.

This provision establishes SAT's jurisdiction to make administration orders over incapable persons' property in Western Australia, regardless of whether they reside or are domiciled in the state. As noted in NCK [2004] WAGAB 6 at [54], this puts the Tribunal's jurisdiction beyond doubt.

What Constitutes "Estate" in Western Australia?

The term "estate" is not defined in the Act but has been interpreted to bear its ordinary meaning of "the collective assets and liabilities viewed as an aggregate" (SAL v JGL [2016] WASAT 63 at [23]).

In JCB, the Tribunal found that funds held in the Public Trustee's trust account for the represented person, as well as rights to claim compensation monies under a criminal injuries compensation claim, constituted "estate within Western Australia" over which an administration order could be made.

Recognition of Interstate Guardianship and Administration Orders

Sections 44A and 83D of the Act set out interjurisdictional arrangements for recognizing interstate guardianship and administration orders. These provisions allow relevant orders made under laws of another state or territory to be recognized in Western Australia.

However, this recognition only applies where a person "enters" Western Australia after the interstate order is made. In JCB, as there was no evidence that JCB had entered Western Australia since the SACAT orders were made in June 2024, section 83D had no application.

Full Faith and Credit Considerations

A significant legal question addressed in JCB was whether the "full faith and credit" provisions in the Commonwealth Constitution and federal legislation required SAT to recognize and give effect to the SACAT orders.

Section 118 of the Commonwealth Constitution provides that "[f]ull faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State." Section 185 of the Evidence Act 1995 (Cth) similarly requires that public acts, records and judicial proceedings of a state that are properly authenticated be given "such faith and credit as they have by law or usage in the courts and public offices of that State or Territory."

The Tribunal noted conflicting views on whether section 185 applies to tribunal proceedings and orders:

1. In EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501, Young J determined that proceedings before the Guardianship Board in Victoria did not constitute "judicial proceedings" within the meaning of section 118 of the Constitution.

2. Conversely, in Re PQR and the Protected Estates Act 1983 [2005] NSWSC 729, Campbell J found that orders made by the Guardianship and Management of Property Tribunal in the ACT were entitled to full faith and credit.

3. In Ocalewicz v Joyce [2012] NSWSC 1163, Macready AsJ concluded that section 185 was applicable to a South Australian Guardianship Board's order.

The Tribunal in JCB ultimately determined that it retained discretion in how to give "full faith and credit" to interstate tribunal orders, particularly in light of the paramount consideration of the represented person's best interests.

Practical Implications for Practitioners

This decision has several important implications:

1. Jurisdiction over WA Assets: SAT retains jurisdiction to make administration orders over assets located in Western Australia, even when the represented person has moved interstate.

2. Dominance of Best Interests: The ultimate consideration in any guardianship or administration proceeding remains the best interests of the represented person, which can override considerations of full faith and credit.

3. Discretionary Power: Even where interstate orders exist, SAT retains discretionary power to make different orders if satisfied they are in the represented person's best interests.

4. Coordinated Approach: The Tribunal suggested that administrators should consider participating in interstate review proceedings to ensure consistent submissions and evidence across jurisdictions.

5. Staggered Review Periods: In cases of jurisdictional overlap, SAT may set review periods that allow consideration of outcomes from interstate tribunal reviews.

Conclusion

The JCB decision clarifies that while a person's departure from Western Australia terminates jurisdiction for guardianship orders, administration orders can continue for assets remaining in the state. This highlights the importance of understanding jurisdictional boundaries in guardianship and administration law and ensures that represented persons' assets can be protected even when they relocate interstate.

Confidentiality in Guardianship Proceedings: When Can Information Be Published?

Introduction

In guardianship and administration proceedings, confidentiality is the norm rather than the exception. However, a recent Western Australian Supreme Court decision has clarified when exceptions to this confidentiality may be permitted. In Australian Broadcasting Corporation v Public Trustee [2022] WASC 85, the ABC sought court approval to identify a deceased person (referred to as "AC") and their adult children in a Four Corners report about public trustee systems. AC had been subject to guardianship and administration orders made in 2015, with AC's daughter appointed as guardian and the Public Trustee as administrator of financial affairs. AC died in September 2016, and AC's adult children consented to being identified in the report.

The Confidentiality Framework

The Guardianship and Administration Act 1990 (WA) ("the Act") imposes strict confidentiality requirements on proceedings under the Act. These requirements are found in Schedule 1, clause 12, which makes it an offense to publish an account of proceedings that identifies parties, persons related to parties, or witnesses.

As Justice Hill noted in the ABC case, these confidentiality provisions do not prevent reporting of proceedings generally, but simply prevent identification of the persons involved. This contrasts with the principle of "open justice" that normally applies in court proceedings.

The rationale for confidentiality was well articulated by Justice Pritchard in CD [2020] WASAT 41, explaining that the provisions reinforce two important policies:

1. Protection of the privacy of persons involved in proceedings, particularly the represented person

2. The public interest in the integrity of the Tribunal's processes, which relies on obtaining sensitive information from various sources

Exceptions to Confidentiality

Schedule 1, clause 12(8) of the Act provides several exceptions to these strict confidentiality obligations. Of particular interest is clause 12(8)(d), which permits "the publishing of a notice or report in pursuance of the direction of the Tribunal or of a court."

The ABC case is significant because it clarifies the scope of the court's discretion under this provision. Justice Hill concluded that clause 12(8)(d) confers a broad discretion on the court to direct publication of a notice or report by taking into account all relevant facts, matters, and circumstances.

Importantly, Justice Hill rejected the view that "exceptional circumstances" are required before an order allowing identification can be made. Instead, the court should consider all logically relevant factors without imposing constraints not found in the express terms of the Act.

Factors the Court Considers

Drawing on decisions in family law cases interpreting similar provisions in the Family Law Act 1975 (Cth) and Family Court Act 1997 (WA), Justice Hill identified several factors relevant to the exercise of the discretion:

1. The public interest in the publication

2. The public interest in personal privacy

3. Freedom of communication

4. The position (if known) of the person who is the subject of the application

5. Whether there is any opposition to the application

6. Whether the publication is in the best interests of the person who was subject to the orders

7. Whether the person consents to the application

8. Whether the welfare of the person will improve or suffer if publication is allowed

9. How publication will impact on relevant relationships

In AH v SS (2005) 194 FLR 111, Chief Justice Bryant expressed the view that, in considering whether to make a direction for publication, the applicant must identify reasons for publication, and the court should consider both public interest and the best interests of the party subject to the application.

The Court's Approach in Practice

In the ABC case, Justice Hill granted the application, subject to the ABC giving an undertaking not to disclose medical or other personal information beyond what was necessary for a fair and accurate report.

Several factors influenced this decision:

• The orders were made more than five years earlier and were no longer operative due to AC's death

• AC's children actively supported the application and consented to being identified

• No one appeared to object to the application

• There was public interest in understanding how the Public Trustee interacts with community members, particularly those from multicultural backgrounds

• There was public interest in understanding the operation of the Act and the role of the Public Trustee

Implications for Practice

This decision provides valuable guidance for practitioners in this area:

1. Applications for publication should address the factors identified by Justice Hill, particularly the public interest in publication and the position of the affected person

2. Consent of relevant parties, while not determinative, is a significant factor

3. The death of the represented person may simplify matters, but doesn't automatically justify publication

4. The court will balance privacy interests against the value of transparency in particular circumstances

5. Restrictions may be imposed to protect particularly sensitive information even when publication is generally permitted

The decision in Australian Broadcasting Corporation v Public Trustee [2022] WASC 85 strikes a balance between the competing principles of privacy and open justice. It recognizes that while confidentiality remains the default position in guardianship proceedings, there are circumstances where transparency serves both individual and public interests.

For practitioners advising clients on these matters, the case underscores the importance of considering all relevant factors when seeking (or opposing) publication of information from guardianship proceedings, rather than focusing solely on whether "exceptional circumstances" exist.

Guardianship Jurisdiction: Administrative Power Rather Than Judicial Power

Introduction: The GS v MS Case

In 2019, the Supreme Court of Western Australia delivered an important decision on the jurisdiction of the State Administrative Tribunal (SAT) to make guardianship and administration orders. In GS v MS [2019] WASC 255, a son (MS) who resided in New South Wales made an application to the SAT for guardianship and administration orders in relation to his mother (GS) who lived in Western Australia. The case raised an important constitutional question: could the SAT exercise jurisdiction in a matter where the applicant and respondent were residents of different states? This question arose in the context of the High Court's decision in Burns v Corbett [2018] HCA 15 which held that state tribunals cannot exercise jurisdiction in certain "matters" between residents of different states.

Is Guardianship Jurisdiction Judicial Power?

The central question in determining whether the SAT had jurisdiction was whether applications for guardianship and administration orders involve the exercise of judicial power. This is because the limitation identified in Burns v Corbett only applies to matters involving judicial power, not administrative power.

Chief Justice Quinlan held that guardianship and administration orders do not involve the exercise of judicial power, but rather are administrative in nature. This finding is significant because it means that the constitutional limitation in Burns v Corbett does not apply to guardianship applications.

Characteristics of Judicial Power vs. Administrative Power

The judgment provides a helpful analysis of what distinguishes judicial power from administrative power:

1. Judicial power typically involves settling a question about the existence of a right or obligation, creating a "new charter" by which that question will be decided in the future (R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8).

2. Administrative power generally involves determining what rights and obligations should be created, rather than what they already are (Precision Data Holdings Ltd v Wills [1991] HCA 58).

The court found that guardianship and administration applications fall clearly on the "administrative" side of this distinction because:

• They are not concerned with settling questions about existing rights and obligations

• They are concerned with creating new rights and obligations for the future

• They are protective in nature rather than adversarial

• They are not "inter partes" (between parties) in the ordinary sense

The Protective Nature of Guardianship Jurisdiction

A key aspect of guardianship jurisdiction is its protective nature. As noted in Scott v Scott [1913] AC 417, guardianship jurisdiction has historically been characterized as "parental and administrative." The Supreme Court emphasized that applications for guardianship orders are not primarily about resolving disputes between parties but rather about protecting the proposed represented person.

In the words of Chief Justice Quinlan:

"The Tribunal, in hearing a guardianship order or an administration order, does not decide a dispute between the parties; it applies its statutory obligation (in s 4(2) of the Guardianship Act) to act in 'the best interests of [the] person in respect of whom an application is made'."

Historical Origins of Guardianship Jurisdiction

The court's analysis also delved into the historical origins of guardianship jurisdiction, which supports its administrative character. The jurisdiction of English courts in relation to both infants and "lunatics" originated in the delegation by the Crown of its Royal prerogatives – the parens patriae jurisdiction.

As quoted from Secretary, Department of Health & Community Services v B [1992] HCA 15 (commonly known as Marion's Case):

"[T]he parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind."

This historical foundation further supports the conclusion that guardianship jurisdiction is fundamentally administrative rather than judicial in character.

Implications for Interstate Guardianship Applications

The practical implication of this finding is significant: the State Administrative Tribunal can hear guardianship applications even when the applicant and the proposed represented person are residents of different states.

This is because applications for guardianship orders:

1. Do not involve the exercise of judicial power

2. Are not "matters" within the meaning of s 75(iv) of the Constitution

3. Are not "between" residents of different states in the constitutional sense

Conclusion

The decision in GS v MS [2019] WASC 255 provides important clarity on the nature of guardianship jurisdiction. The court's finding that guardianship and administration applications involve the exercise of administrative rather than judicial power ensures that the SAT can continue to perform its vital protective function, regardless of the residence of the applicant.

This characterization of guardianship jurisdiction as administrative aligns with its historically protective character and distinguishes it from adversarial proceedings that determine existing rights and obligations. It reinforces the fundamental purpose of guardianship law: the protection of vulnerable persons rather than the adjudication of disputes.

For practitioners in this area, the case serves as a useful reminder of the unique nature of guardianship jurisdiction, which stands apart from traditional adversarial litigation and maintains its historically protective character.

Mental Disability in Guardianship Law: A Critical Distinction Between Administration and Guardianship

Introduction: A Case of Communication Barriers

The recent Western Australian State Administrative Tribunal decision in K [2025] WASAT 15 highlights a crucial but often overlooked distinction in guardianship law: the different thresholds for appointing an administrator versus a guardian. The case involved K, a 34-year-old Aboriginal man who was deaf and mute from birth. Despite being assessed at age 6 as "a very capable and enthusiastic learner, held back only by his linguistic needs," K reached adulthood without developing conventional communication skills. He communicated using a combination of Aboriginal hand signs, family-developed signs, and some Auslan, leaving him functionally illiterate and with significant communication barriers. Despite finding that K was unable to manage his financial affairs and was incapable of looking after his own health and safety, the Tribunal came to different conclusions regarding the need for administration versus guardianship orders.

The Critical Distinction: Mental Disability Requirements

The most significant insight from K [2025] WASAT 15 is the distinction between the legislative requirements for administration versus guardianship orders:

Administration Orders

Under s 64(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act), the Tribunal can only make an administration order if 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."

This means two elements must be established:

1. The person has a mental disability

2. The mental disability causes the person's inability to make reasonable judgments about financial matters

Guardianship Orders

By contrast, under s 43(1)(b) of the GA Act, the Tribunal may appoint a guardian if satisfied that the person:

1. Is incapable of looking after their own health and safety; or

2. Is unable to make reasonable judgments in respect of matters relating to their person; or

3. Is in need of oversight, care or control in the interests of their own health and safety or for the protection of others

Crucially, there is no explicit requirement that these conditions be caused by a mental disability. The focus is on the functional incapacity itself, regardless of its cause.

The Definition of "Mental Disability"

The GA Act defines "mental disability" in s 3(1) as including "an intellectual disability, a psychiatric condition, an acquired brain injury and dementia." As explained in FY [2019] WASAT 118, this is an inclusive definition rather than an exhaustive one.

In K [2025] WASAT 15, the Tribunal elaborated on the six key features of "mental disability" as established in FY [2019] WASAT 118:

1. The ordinary meaning of "mental disability" contemplates that a person's mind is affected by an impairment, incapacity, or inability to function in a manner considered normal.

2. The definition encompasses recognized medical conditions that may result in impairment of mental functioning.

3. An "intellectual disability" specifically refers to impairment in a person's power to understand or reason.

4. There is no requirement that the mental disability be permanent - some may be transient.

5. No precise degree of mental disability is required - there is no medical or scientific benchmark that must be met.

6. A finding of mental disability does not necessarily require the existence of a recognized medical condition or disorder - the underlying cause may not be entirely clear or diagnosed, but the existence of the mental disability may be beyond doubt.

Application in K's Case: Different Outcomes for Administration vs. Guardianship

In K's case, the Tribunal reached different conclusions regarding administration and guardianship:

Administration Application Dismissed

The Tribunal found that K had a substance use disorder, which qualified as a mental disability. The Tribunal also found that K was unable to manage his own financial affairs. However, the application for administration was dismissed because the Tribunal was not satisfied that K's inability to manage his finances was caused by his substance use disorder.

As Member Haigh stated: "On the evidence before me I am not satisfied that K is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate. I am not satisfied that the criterion in s 64(1)(a) is met."

Instead, K's financial difficulties appeared to stem primarily from his communication barriers, financial exploitation by others, and his anger and frustration at these circumstances.

Guardianship Application Granted

By contrast, the Tribunal granted the guardianship application, appointing the Public Advocate as limited guardian with authority over treatment decisions, services, restrictive practices/restraint, and accommodation.

The Tribunal found that K was incapable of looking after his own health and safety, unable to make reasonable judgments in respect of matters relating to his person, and in need of oversight, care or control in the interests of his own health and safety and for the protection of others.

Importantly, these findings did not require establishing that K's incapacity was caused by a mental disability. The Tribunal was concerned with K's functional capacity to make personal welfare decisions, regardless of the cause of that incapacity.

The Nexus Requirement for Administration Orders

The case clearly illustrates the importance of the causal nexus requirement for administration orders. As explained in FY [2019] WASAT 118 at [73], "an inability to make reasonable judgments in relation to one's estate does not, of itself, constitute a sufficient basis for the making of an administration order."

The use of the phrase "by reason of" in s 64(1)(a) implies a relationship of cause and effect between a mental disability and the person's inability to make reasonable judgments. The Tribunal noted that this phrase equates to "because of" and "due to," requiring the application of ordinary causation principles.

This strict causation requirement reflects the more intrusive nature of administration orders, which remove a person's legal capacity to make financial decisions and transfer that authority to another person.

Distinguishing Between Communication Barriers and Mental Disability

K [2025] WASAT 15 highlights the importance of distinguishing between communication barriers and mental disability. The Tribunal noted that K's communication difficulties "give rise to practical difficulties in making decisions in respect of financial matters, however they do not of themselves render a person incapable of making reasonable judgments about financial matters."

This distinction is crucial for practitioners working with clients who have sensory impairments or come from culturally and linguistically diverse backgrounds. Communication barriers may create practical obstacles that make decision-making more challenging, but these obstacles may be overcome with appropriate support strategies. They do not necessarily constitute a mental disability that causes an inability to make reasonable judgments.

Practical Implications for Legal Practitioners

This case offers several important lessons for practitioners in guardianship and administration law:

1. Different evidentiary requirements: For administration applications, practitioners must gather evidence not just of a mental disability and financial incapacity, but of a causal relationship between them. For guardianship applications, the focus is on establishing functional incapacity in personal welfare matters, regardless of cause.

2. Consider alternatives to administration: When a client is struggling with financial management due to communication barriers rather than a mental disability causing impaired judgment, alternatives to administration should be explored.

3. Guardianship may be appropriate even when administration is not: As demonstrated in K's case, a person may need a guardian for personal welfare decisions even if they do not require an administrator for financial matters.

4. Careful assessment of diagnostic evidence: Courts require clear and cogent evidence to establish that a person has a mental disability. In GC and PC [2014] WASAT 10 at [36] (quoted in MH [2022] WASAT 74 at [130]-[131]), the Tribunal emphasized the need for such evidence to displace the presumption of capacity.

Conclusion

K [2025] WASAT 15 provides a valuable reminder of the critical distinction between the requirements for administration versus guardianship orders. While administration requires that a mental disability causes an inability to make reasonable financial judgments, guardianship focuses on functional incapacity in personal welfare matters without an explicit causation requirement.

This distinction reflects the different nature and purposes of these orders and ensures that administration orders, which involve significant restrictions on financial autonomy, are only made when truly necessary and when the statutory causation requirement is met.

For lawyers, medical professionals, and families navigating the guardianship system, understanding this distinction is essential to proper application of the law and to ensuring that individuals receive appropriate support while maintaining maximum autonomy.