Walking the Tightrope: When to Consider Capacity Applications in Litigation

Introduction

The decision in M -v- P [No 3] [2024] WASC 123 provides guidance on the approach courts take when considering applications regarding a litigant's capacity.

Justice Lundberg's judgment illuminates the delicate balance courts must strike between protecting potentially vulnerable litigants and respecting individual autonomy. This decision carries particular significance for practitioners faced with opposing self-represented litigants whose capacity may be questionable, offering a roadmap for appropriate procedural steps while highlighting the evidentiary threshold required for such applications.

The case reinforces the Court's protective jurisdiction while demonstrating judicial reluctance to make declarations of incapacity without proper evidence. It establishes an intermediate pathway through referral to the Public Advocate that practitioners should note when contemplating similar applications.

Background of Relevant Case Law

The principles applicable to applications under Order 70 of the Rules of the Supreme Court 1971 (WA) ('RSC') have been developed through several key decisions.

In A v City of Swan [No 5] [2010] WASC 204, Murphy JA provided a detailed analysis of the Court's parens patriae jurisdiction and the principles governing determinations of capacity. His Honour emphasised that capacity is not a fixed standard but fluctuates according to the legal character, complexity, and significance of the matter in question.

More recently in Snook v Magistrate Trevor Darge [No 2] [2024] WASC 91, Seaward J summarised the applicable principles, noting that proof of complete incapacity is not required, and that a person can lack mental capacity to participate in legal proceedings whilst still being capable of performing the usual activities of daily life.

The Court in Farrell v Allregal Enterprises Pty Ltd [2008] WASCA 264 established a procedural framework for seeking assistance from the Public Advocate in determining questions of capacity, which Justice Lundberg adopted in the present case.

Facts of the Case

M -v- P [No 3] concerned a defamation action brought by an unrepresented plaintiff against the defendant, both of whom were medical practitioners (at [1]). The action, which had been on foot for over a year, involved allegations of defamation through "several oral and written communications allegedly published by the defendant" with "around 18 publications identified in the pleadings" (at [1]).

The plaintiff was engaged in multiple disputes across various courts and tribunals, all whilst self-represented (at [1]-[2]).

The defendant applied for an order that the plaintiff be declared a person under a disability by reason of mental illness, defect or infirmity, within the meaning of paragraph (c) of the definition of 'person under disability' in Order 70 rule 1 of the RSC (at [3]).

Order 70 RSC relates to the Court's parens patriae jurisdiction, which derives from "the inherent obligation of the Crown to care for those who are unable to care for themselves" and is expressly conferred by s 16(1)(d) and s 23 of the Supreme Court Act 1935 (WA) (at [5]).

Significantly, the defendant did not present any medical evidence in support of the application (at [14]) but rather invited the Court to draw inferences about the plaintiff's capacity from the plaintiff's conduct, communications, and court documents.

The defendant presented an alternative pathway in the event the Court was not prepared to make an immediate declaration, proposing orders that would request the Public Advocate investigate and report on whether the plaintiff had the ability to make reasonable judgments about the conduct of the proceedings (at [7]-[8]).

The plaintiff strongly opposed the application, filing multiple submissions totalling 87 pages and a 156-page affidavit (at [15]).

Analysis of the Court's Reasoning

Justice Lundberg commenced his analysis by acknowledging the serious nature of the application and the Court's duty to consider whether a person has the requisite capacity when put on notice (at [19]). His Honour emphasised the risk that any final determination of the action could later be challenged as irregular if the plaintiff were subsequently found to be under a disability (at [20]).

The Court accepted the following principles from Snook v Magistrate Trevor Darge [No 2] (at [21]):

1. There is no fixed standard of mental capacity required at law

2. The standard fluctuates according to the legal character, complexity and significance of the matter

3. Proof of complete incapacity is not required

4. A person can lack capacity for legal proceedings while still managing daily activities

5. The Court must consider whether the person can understand the case, make decisions, and give instructions

6. Self-represented litigants are held to a higher standard of capacity than those with legal representation

Justice Lundberg stressed the serious consequence of a declaration under Order 70 RSC - namely, that it would "preclude the individual exercising their right to prosecute, compromise or participate in the specific litigation in their own name" (at [22]).

Rather than determining the application on the material before the Court, His Honour opted for the alternative pathway of seeking assistance from the Public Advocate (at [24]), but only after satisfying himself that the application had a "reasonable basis of succeeding" (at [24]).

The Court found that the defendant had raised the issue in a "legitimate manner" and that there was material capable of supporting the declaration sought (at [25]). This conclusion was reached after considering:

1. The material in the plaintiff's submissions and affidavit

2. The Court's own observations of the plaintiff in several appearances since early 2023

3. The "volume of the material adduced by the plaintiff and the nature of the serious allegations he raises"

4. The manner in which the plaintiff articulated allegations, which "goes well beyond the ordinary language of a passionate or zealous litigant in person" (at [26])

Of particular note, Justice Lundberg observed that the plaintiff's affidavit material contained "lengthy personal accounts of the plaintiff's life, his family and background, personal photographs one would not expect to be adduced in evidence in this action, and personal and intimate WhatsApp and text messages, as well as records of voicemail messages" - all deemed irrelevant to both the application and the proceeding (at [27]).

The Court also highlighted the plaintiff's "intense focus on those who stand against him" and "the belief that there is a network of people coordinating actions against him" (at [28]).

Justice Lundberg considered the complexity of defamation actions and the significant decisions a plaintiff would ordinarily need to make regarding pleadings, evidence, and responses to defences (at [29]).

Ultimately, the Court decided to request assistance from the Public Advocate under s 97(1)(c) of the Guardianship and Administration Act 1990 (WA) (at [30]-[31]), with specific orders structured to facilitate this assistance while preserving procedural fairness (at [37]).

Quantification and Assessment Aspects

Justice Lundberg's judgment provides valuable guidance on how courts assess a litigant's capacity in the absence of direct medical evidence. The Court identified several quantifiable factors that may indicate capacity concerns:

1. The volume of material produced by a litigant (the plaintiff filed 87 pages of submissions and a 156-page affidavit)

2. The relevance of material to the proceedings (substantial irrelevant personal content was noted)

3. The nature and manner of allegations made (references to "criminal networks" and conspiracies)

4. The complexity of the underlying proceedings (defamation involving multiple publications)

5. The litigant's conduct in court proceedings over time

The Court acknowledged that drawing inferences about capacity from these factors is "legitimate" (at [14]) but also that "the absence of direct medical evidence renders an applicant's task of discharging its burden of proof more onerous" (at [14]).

The judgment establishes that the threshold for referring the matter to the Public Advocate is that "the application has a reasonable basis of succeeding" (at [24]), which is evidently lower than the threshold for making the declaration itself.

Worked Example: Practical Application

Consider a solicitor representing a defendant in a complex commercial dispute where the unrepresented plaintiff exhibits concerning behaviours:

Scenario: The plaintiff has filed multiple, excessively lengthy submissions containing irrelevant personal information, makes allegations of widespread conspiracy against various institutions, demonstrates an inability to focus on relevant legal issues despite judicial guidance, and produces volumes of irrelevant evidence.

Step 1: Document all instances of concerning conduct or communications

• Compile court transcripts showing the plaintiff's inability to follow judicial directions

• Collate all written communications demonstrating disorganised thinking or paranoid ideation

• Catalogue filed documents showing irrelevant content or inability to address legal issues

Step 2: Assess whether the conduct crosses the threshold from merely vexatious to suggesting incapacity

• Compare to established case law (e.g., M -v- P [No 3], A v City of Swan [No 5])

• Consider the complexity of the particular proceedings and demands on the litigant

• Evaluate whether the conduct suggests an inability to understand the proceedings or make reasonable judgments

Step 3: Consider the ethical implications and proportionality

• Is the application genuinely in the interests of justice, or merely tactical?

• Are there less intrusive alternatives available?

• What impact would the application have on the proceedings and the plaintiff?

Step 4: Frame the application with appropriate sensitivity

• Propose the "alternative pathway" approach rather than seeking an immediate declaration

• Structure orders similar to those in M -v- P [No 3] requesting Public Advocate assistance

• Ensure all evidence presented is objective and factual, avoiding speculation

Step-by-Step Guidance for Practitioners

When faced with a potentially incapacitated opposing party, practitioners should:

1. Maintain detailed records of all interactions with the opposing party, particularly noting:

   • Inability to understand or engage with legal concepts

   • Persistent irrelevant submissions or evidence

   • Paranoid or delusional thinking in correspondence or submissions

   • Inability to follow court directions or understand procedural requirements

2. Consult the relevant procedural rules governing capacity in your jurisdiction (e.g., Order 70 RSC in Western Australia)

3. Consider whether the threshold for intervention is met:

   • Is there a genuine basis for concern beyond mere frustration with a difficult litigant?

   • Does the conduct go "well beyond the ordinary language of a passionate or zealous litigant in person"?

   • Is the nature of the proceedings sufficiently complex to require a higher standard of capacity?

4. Explore alternative pathways:

   • Consider whether a less intrusive approach might assist the opposing party

   • Identify relevant support services or authorities (e.g., Public Advocate) that might provide assistance

5. Frame the application appropriately:

   • Seek preliminary assistance from appropriate authorities before requesting declarations

   • Structure proposed orders to allow for investigation before determination

   • Request the court's guidance on procedure

6. Prepare for procedural delays:

   • Advise clients that such applications may extend timeframes

   • Consider whether interim arrangements are necessary

7. Maintain proportionality:

   • Ensure the scope of any application is confined to the specific proceedings

   • Avoid unnecessarily broad declarations that might impact the opposing party's autonomy in other matters

Evidence and Arguments for Each Side

For the Applicant (Party Questioning Capacity)

Evidence:

• Court documents containing irrelevant, excessive, or disorganised content

• Transcripts demonstrating inability to follow judicial guidance or respond to questions

• Correspondence showing paranoid ideation or delusional thinking

• Witness evidence of behaviour in court or mediation settings

• Expert evidence (if available) regarding the cognitive demands of the specific proceedings

Arguments:

• The Court has a duty to ensure parties can meaningfully participate in proceedings

• Allowing proceedings to continue risks injustice to both parties

• The complexity of the proceedings requires a certain level of capacity

• The Court's parens patriae jurisdiction is protective, not punitive

• The alternative pathway approach provides appropriate procedural safeguards

For the Respondent (Party Whose Capacity is Questioned)

Evidence:

• Evidence of capacity to manage other aspects of life

• Examples of logical and coherent submissions or correspondence

• Evidence of previous successful litigation management

• Character evidence from professional colleagues or associates

• Expert evidence (if available) supporting capacity

Arguments:

• The presumption of capacity must be respected

• Passionate or unusual advocacy is not equivalent to incapacity

• The application represents an attempt to impede access to justice

• Less restrictive alternatives have not been explored

• The absence of medical evidence is fatal to the application

• The serious consequences for civil rights require a high evidentiary threshold

Key Takeaways for Legal Practice

1. Evidence threshold: While medical evidence is not strictly required for capacity applications, its absence significantly increases the burden of proof on the applicant.

2. Alternative pathways: Courts may prefer a staged approach involving investigative assistance from authorities such as the Public Advocate before making declarations.

3. Contextual assessment: Capacity requirements fluctuate according to the nature and complexity of the proceedings - defamation actions, with their complexity, demand a higher standard.

4. Preserving autonomy: Courts remain conscious of the serious impact of declarations on individual autonomy and will only intervene where genuinely necessary.

5. Tactical considerations: Practitioners must ensure capacity applications are genuinely motivated by legitimate concerns rather than tactical advantage.

6. Self-representation factor: Courts recognise that self-represented litigants require a higher standard of capacity than those with legal representation.

7. Documentation importance: Systematic documentation of concerning conduct or communications is essential for establishing sufficient grounds for investigation.

Conclusion

M -v- P [No 3] offers a nuanced approach to the challenging intersection of mental capacity and litigation rights. The judgment reinforces the Court's protective role while establishing procedural safeguards that respect individual autonomy. By adopting the "alternative pathway" of seeking Public Advocate assistance, Justice Lundberg has demonstrated a balanced approach that other courts may follow.

For practitioners, the case underscores the need for careful consideration before initiating capacity applications, the importance of thorough documentation, and the value of structured, proportionate approaches that prioritise investigation before declaration.

The decision ultimately serves as a reminder that while the legal system must protect vulnerable individuals, it must do so with appropriate restraint and procedural fairness, recognising that declarations of incapacity represent a significant limitation on fundamental rights of access to justice.

Understanding Advance Health Directives in WA: Legal Analysis of CK [2025] WASAT 27

Introduction

The decision in CK [2025] WASAT 27 provides significant guidance on the requirements for valid Advance Health Directives (AHDs) in Western Australia, particularly regarding the capacity necessary to execute such instruments.

The case is notable for its detailed examination of the 'full legal capacity' test under the Guardianship and Administration Act 1990 (WA) ('GA Act') and its application to persons with cognitive impairments.

This decision clarifies the standards that must be met for an AHD to be legally enforceable, especially concerning consent to medical research—an area that has seen legislative development in recent years following the COVID-19 pandemic.

The case has substantial implications for legal practitioners advising clients on AHDs, medical practitioners assessing capacity, and substitute decision-makers navigating complex healthcare decisions. It also addresses the critical intersection between autonomy in healthcare decision-making and protection of vulnerable individuals.

Detailed Facts of the Case

Background and Initial Orders

CK, a 63-year-old man, was diagnosed with Autism Spectrum Disorder (ASD) at age 61 after being found dehydrated and wandering the streets following his mother's sudden death in late 2022 (at [1]). The Tribunal initially appointed the Office of the Public Advocate as CK's guardian in early 2023 to make decisions about services (the '2023 Orders') (at [1]).

Execution of Legal Documents

In late 2023, CK signed several legal documents, including:

• A will

• An enduring power of attorney appointing his younger sister EK as attorney

• An advance health directive recording consent to participate in medical research ('CK AHD') (at [2])

Deterioration and Further Applications

In August 2024, CK was admitted to hospital following a significant decline in his mental health. He had stopped taking medication after hearing voices that instructed him to do so. He was subsequently diagnosed with schizophrenia (at [3]). During this admission, concerns arose about financial transactions, with allegations that CK had given significant sums to EK to pay her mortgage and purchase diamonds (at [3]). This prompted the Hospital to seek review of the 2023 Orders and appointment of an administrator (at [3]). The Tribunal appointed the Public Trustee as emergency administrator (at [3]).

The Advance Health Directive Issue

At the October 2024 hearing, CK expressed that he did not want to participate in medical research where he would receive a placebo, yet this was precisely what he had agreed to in the CK AHD (at [4]). The Tribunal accepted an oral application from CK to determine the validity of the CK AHD (at [4]).

Final Orders

At the November 2024 hearing, the Tribunal appointed the Public Trustee as CK's administrator and reappointed the Public Advocate as his guardian. Critically, the Tribunal revoked the enduring power of attorney and declared the CK AHD invalid (at [5]).

Analysis of the Tribunal's Reasoning

Legal Framework for Advance Health Directives

The Tribunal's analysis begins with the fundamental legal requirements for creating a valid AHD under Part 9B of the GA Act. Section 110P provides that a person who has reached 18 years of age and who has "full legal capacity" may make an AHD containing treatment decisions for future treatment (at [16]).

Notably, the GA Act does not define 'full legal capacity'. The Tribunal referred to the Western Australian Department of Health's guidance, which describes this standard as requiring that a person:

• Understands information or advice relevant to decisions in the AHD

• Understands the likely effects of decisions on future treatment

• Can weigh potential pros and cons of decisions

• Can communicate decisions about future treatment (at [16])

Medical Research Consent Provisions

The Tribunal considered the 2020 amendments to the GA Act introducing Part 9E, which created mechanisms for substitute decision-makers to consent to medical research for people lacking capacity (at [17]). The Tribunal noted that in August 2022, the prescribed AHD form was expanded to include a section allowing consent to participate in medical research (at [18]).

Assessment of CK's Capacity

The Tribunal employed a multi-faceted approach to determine whether CK lacked capacity at the time of executing the AHD:

1. Evidence of Mental Disability: The Tribunal found that CK's diagnoses of ASD, schizophrenia, and cognitive impairment constituted a 'mental disability' within the meaning of the GA Act (at [31]).

2. Capacity for Financial Decisions: Extensive evidence demonstrated CK could not manage day-to-day finances without assistance, including inability to calculate necessary expenditure, identify financial implications of decisions, or implement problem-solving strategies for financial issues (at [47]).

3. Capacity for Personal Decisions: Medical evidence indicated CK lacked capacity to make medical treatment decisions due to impaired understanding of illness and treatment requirements (at [55]). He also showed limited ability to make accommodation decisions or identify service needs (at [56-57]).

4. Understanding of the AHD Terms: The Tribunal found a crucial disconnect between CK's expressed wishes and the content of the AHD. While CK clearly articulated not wanting to receive a placebo in research, the AHD he signed explicitly consented to this (at [24]). This demonstrated he did not understand the nature or consequences of the treatment decisions in the document when he signed it.

The Tribunal concluded that CK lacked the "full legal capacity" required under s 110P of the GA Act at the time the AHD was executed (at [58]). This finding formed the basis for declaring the AHD invalid under s 110W (at [82]).

Practical Application: A Doctor's Guide to Capacity Assessment for AHDs

When assessing capacity for an AHD, medical practitioners should follow this structured approach based on the CK decision:

Step 1: Assess Understanding of General Information

• Does the person understand what an AHD is?

• Can they explain the purpose of the document in their own words?

• Do they understand when the AHD would take effect? (i.e., when they can no longer make decisions)

Step 2: Evaluate Comprehension of Specific Treatment Decisions

• Ask the person to explain each treatment decision included in the AHD

• For medical research consent, determine if they understand:

  • The difference between treatment and research

  • The concept of placebos and control groups

  • That research may not improve their condition

  • The specific types of research they are consenting to

Step 3: Test Ability to Weigh Consequences

• Ask the person to explain potential benefits and risks of each decision

• Determine if they can articulate why they are making specific choices

• Assess if they can explain how the decisions align with their values and preferences

Step 4: Identify Red Flags from the CK Case

• Discrepancy between verbal statements and written consent (as with CK's placebo consent)

• Evidence of influence from family members or others

• Demonstrated deficits in managing other aspects of life (financial matters, healthcare)

• Recent significant medical or psychiatric diagnoses

• Evidence of cognitive fluctuations or decline

Step 5: Document the Assessment Process

• Record specific questions asked and responses received

• Document the person's explanation of treatment decisions in their own words

• Note any concerns about capacity and how these were explored

• Consider obtaining a specialist psychiatric or geriatric assessment if concerns arise

Step 6: Reassess When Necessary

• If the person's condition fluctuates, consider reassessment when they are at their best

• For progressive conditions, earlier documentation is advisable

Guidance for Legal Practitioners

Initial Client Assessment

1. Preliminary Capacity Screening

   • Observe client's ability to maintain focus during consultation

   • Ask open-ended questions about the purpose of the AHD

   • Assess consistency of instructions across multiple meetings

   • Document observations contemporaneously

2. Client Interview Strategy

   • Meet with the client alone initially

   • Use clear, simple language avoiding legal jargon

   • Break down complex concepts into manageable parts

   • Allow sufficient time for questions and clarification

3. Red Flags Requiring Further Investigation

   • Recent significant diagnoses (as with CK's late-life ASD diagnosis)

   • Family members providing instructions or answering for the client

   • Pronounced memory difficulties or confusion

   • Inconsistent instructions or significant changes to previous arrangements

Documentation and Professional Collaboration

1. Medical Evidence

   • Obtain specific medical opinion on capacity for AHD purposes

   • Ensure medical report addresses the elements of full legal capacity

   • Consider specialist assessment for clients with cognitive impairments

   • Document attempts to obtain medical evidence

2. Drafting Considerations

   • Use clear, simple language in the AHD

   • Include explanatory notes for complex decisions (particularly research consent)

   • Document discussions about the consequences of specific decisions

   • Consider video recording the execution and explanation process

3. Execution Process

   • Allow sufficient time for final review and questions

   • Ask the client to explain key decisions in their own words

   • Document the client's explanations

   • Consider involving an independent witness beyond statutory requirements

Post-Execution Practice

1. Regular Reviews

   • Recommend periodic review of the AHD, especially after significant health changes

   • Document client's continued understanding at each review

   • Update the AHD when necessary to reflect changed circumstances or wishes

2. Record Keeping

   • Maintain detailed file notes of capacity assessment process

   • Preserve all drafts and records of client instructions

   • Document reasons for proceeding despite any concerns

Evidence and Arguments

Evidence Supporting AHD Validity

1. Medical Evidence

   • Reports showing stable cognitive function at time of execution

   • Specialist assessments confirming decision-making capacity

   • Documentation of client explaining treatment decisions consistently

2. Procedural Evidence

   • Contemporaneous file notes showing thorough explanation process

   • Evidence that medical terminology was explained in plain language

   • Documentation showing client initiated the AHD process independently

   • Witnesses attesting to apparent understanding

3. Arguments for Validity

   • Diagnosis alone (e.g., ASD as in CK's case) does not automatically negate capacity

   • A person may have capacity for some decisions but not others

   • The right to make unwise decisions is preserved if understanding is present

   • Fluctuating capacity may include periods of valid decision-making

Evidence Supporting AHD Invalidity

1. Medical Evidence

   • Diagnoses affecting cognition or decision-making (as with CK's schizophrenia)

   • Clinical observations of confusion or limited understanding

   • Documentation of inability to manage other aspects of life (as with CK's finances)

2. Contradictory Statements

   • Documented statements contradicting the AHD terms (as with CK's placebo objection)

   • Inconsistent explanations of treatment decisions

   • Inability to explain consequences of decisions when questioned

3. Arguments for Invalidity

   • Failure to meet any element of the "full legal capacity" test is sufficient

   • The complexity of medical research consent requires sophisticated understanding

   • Evidence of influence or pressure from family members

   • Protection of vulnerable persons is a primary consideration

Key Takeaways for Legal Practice

1. Capacity Assessment is Multi-Dimensional

   • Capacity must be assessed specifically for the decision at hand

   • Evidence from multiple domains (financial, personal, healthcare) may be relevant

   • Medical diagnosis alone is insufficient—functional assessment is crucial

2. Medical Research Consent Requires Special Attention

   • The CK decision highlights particular vulnerability in research consent

   • Specific explanation of concepts like placebos and experimental treatments is essential

   • Practitioners should consider additional safeguards for research consent provisions

3. Documentation is Critical

   • Thorough contemporaneous records of the capacity assessment process

   • Documentation of explanations provided and client's demonstrated understanding

   • Evidence of steps taken to enhance understanding (plain language, visual aids)

4. Collaborative Approach

   • Engage with medical practitioners early in the process

   • Consider involving allied health professionals (psychologists, occupational therapists)

   • Multi-disciplinary assessment may strengthen the validity of the AHD

5. Risk Management

   • Identify high-risk clients who may require additional safeguards

   • Consider declining to act if capacity concerns cannot be resolved

   • Be prepared to justify the basis for proceeding despite potential concerns

Conclusion

The CK decision provides valuable guidance on the standards for valid AHDs in Western Australia, particularly regarding the capacity required for medical research consent. The case emphasises the importance of a person's functional understanding of treatment decisions rather than merely focusing on diagnostic criteria.

For legal practitioners, the decision underscores the need for thorough capacity assessment processes, meticulous documentation, and careful explanation of complex medical concepts. It highlights the tension between respecting autonomy in healthcare decision-making and protecting vulnerable individuals from consenting to procedures they do not fully comprehend.

The broader significance of this case extends beyond AHDs to inform practice in other areas requiring capacity assessment, including enduring powers of attorney and wills. As medical research continues to advance and legal instruments become increasingly complex, practitioners must develop robust methods for ensuring clients genuinely understand the documents they are executing.

The CK decision serves as a reminder that valid execution of legal documents requires more than mere formal compliance with signing requirements—it demands genuine understanding of content and consequences, particularly for vulnerable clients with cognitive impairments.

Coercive Control and Financial Abuse in Guardianship Applications: Lessons from Recent Case Law

Introduction

In a recent Western Australian State Administrative Tribunal (SAT) decision, CK [2025] WASAT 27, we see important principles regarding capacity, financial abuse, and coercive control in the context of guardianship and administration applications. The case involved a 63-year-old man diagnosed with Autism Spectrum Disorder at age 61, who later developed schizophrenia. Following his mother's sudden death in 2022, CK was found wandering the streets dehydrated and was hospitalized. Originally, the Public Advocate was appointed as his guardian in early 2023. Later that year, CK signed several legal documents including a will, an enduring power of attorney appointing his sister as attorney, and an advance health directive consenting to participate in medical research. When CK was re-admitted to hospital in 2024 with declining mental health, allegations of financial and emotional abuse emerged. The Tribunal ultimately revoked the enduring power of attorney, declared the advance health directive invalid, and appointed the Public Trustee as administrator and the Public Advocate as guardian.

Understanding Coercive Control in Vulnerable Adults

Coercive control is often discussed in the context of intimate partner relationships, but it can manifest in other relationships as well, particularly where there is a power imbalance. In guardianship matters, this can appear in relationships between vulnerable adults and their family members or caregivers.

In the CK case, the Tribunal noted that CK's support coordinator described certain behaviors from his sister that could be interpreted as controlling. The coordinator reported that the sister "aggressively interjected denying [CK] the freedom to participate in the conversation" and showed "confrontational body language" in meetings about CK's care.

It's important to note that in this case, the Tribunal did not find that the sister was deliberately engaging in coercive control, acknowledging that her actions likely stemmed from family communication patterns, grief, and genuine concern for her brother. The Tribunal noted: "I do not accept this as deliberate behaviour on EK's part designed to control and isolate CK."

This nuanced approach reminds us that what may appear as controlling behavior can sometimes be the result of complex family dynamics, particularly when families have established patterns of interaction that may seem problematic to outsiders.

Financial Abuse and Vulnerable Adults

Financial abuse of vulnerable adults is a serious concern in guardianship applications. The CK case highlights several warning signs:

1. Large or frequent cash withdrawals: CK's bank statements showed cash withdrawals totaling $16,260 over five months, with individual withdrawals as high as $3,600.

2. Blurred financial boundaries: The Tribunal observed that there seemed to be no distinction between "CK's money" and "EK's money," with funds being treated as "family money."

3. Lack of repayment arrangements: CK was giving substantial sums to his sister with no expectation of repayment.

4. Decision-making vulnerability: CK's support workers reported that "he will avoid conflict by agreeing with other people and by doing what he is told" and would "put EK's needs before his own needs."

The Tribunal determined that CK was "unable to identify and assess the financial implications of particular items of expenditure or of financial decisions," which made him particularly vulnerable.

Capacity Assessment in Financial Decision-Making

In determining whether a person lacks capacity to make financial decisions, the Tribunal follows principles established in case law. In FY [2019] WASAT 118, the Tribunal outlined what a person must be able to do to make reasonable judgments about their estate, including:

1. Identifying and calculating necessary expenditure for daily living and longer-term financial objectives

2. Devising a budget to live within their means

3. Organizing their affairs to meet debts as they fall due

4. Identifying and assessing financial implications of particular expenditure or decisions

5. Identifying and implementing problem-solving strategies for unexpected financial issues

The CK case demonstrates how these principles apply in practice. The Tribunal found CK lacked capacity because he was unable to fulfill these requirements, noting his ongoing reliance on his sister to pay bills and his inability to identify his own financial needs.

The Validity of Enduring Documents

An important aspect of the CK case concerns the validity of documents signed by persons with questionable capacity. The Tribunal declared CK's advance health directive invalid as he did not understand the nature of the treatment decisions or their consequences—specifically, he had consented to participate in medical research involving placebos but later stated he didn't want that.

Similarly, the enduring power of attorney was revoked because CK lacked the cognitive capacity to make and understand such an appointment. This highlights the importance of proper capacity assessment at the time enduring documents are created.

The Least Restrictive Approach

Western Australian guardianship law emphasizes using the least restrictive option to protect vulnerable adults. The SAT considers three stages of inquiry:

1. Whether the person lacks capacity

2. Whether less restrictive alternatives to formal orders exist

3. Who should be appointed and with what powers

In CK, the Tribunal carefully considered whether informal arrangements or statutory provisions (like s110ZD of the Guardianship and Administration Act 1990 for medical decisions) could meet CK's needs. Only after determining these would be insufficient did the Tribunal appoint formal decision-makers.

Conclusion

The CK case provides valuable insights into how the SAT addresses allegations of financial abuse and coercive control in guardianship matters. It demonstrates the careful balancing act required: protecting vulnerable adults while recognizing family dynamics and applying the least restrictive approach possible.

For practitioners, this case emphasizes the importance of thorough capacity assessment when clients create enduring documents, and the need to be alert to potential financial abuse while avoiding hasty judgments about family relationships.

For families of vulnerable adults, the case highlights the importance of maintaining clear financial boundaries and formal arrangements even when intentions are good, to protect both the vulnerable person and family relationships in the long term.

This blog post is for general information purposes only and does not constitute legal advice.

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.