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

Introduction: The JKJ Case

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

The Legal Question: Can Administrators Exercise Trustee Powers?

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

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

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

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

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

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

The Full Tribunal's Interpretation

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

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

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

A More Restrictive View

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

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

When Should the Power Be Exercised?

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

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

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

Practical Implications

This case highlights several important considerations for administrators:

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

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

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

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

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

Conclusion

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

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

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

Introduction: The JCB Case

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

When Can SAT Make Administration Orders for Non-Residents?

Legislative Basis

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

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

What Constitutes "Estate" in Western Australia?

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

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

Recognition of Interstate Guardianship and Administration Orders

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

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

Full Faith and Credit Considerations

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

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

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

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

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

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

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

Practical Implications for Practitioners

This decision has several important implications:

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

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

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

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

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

Conclusion

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

Confidentiality in Guardianship Proceedings: When Can Information Be Published?

Introduction

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

The Confidentiality Framework

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

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

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

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

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

Exceptions to Confidentiality

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

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

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

Factors the Court Considers

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

1. The public interest in the publication

2. The public interest in personal privacy

3. Freedom of communication

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

5. Whether there is any opposition to the application

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

7. Whether the person consents to the application

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

9. How publication will impact on relevant relationships

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

The Court's Approach in Practice

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

Several factors influenced this decision:

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

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

• No one appeared to object to the application

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

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

Implications for Practice

This decision provides valuable guidance for practitioners in this area:

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

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

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

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

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

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

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

Guardianship Jurisdiction: Administrative Power Rather Than Judicial Power

Introduction: The GS v MS Case

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

Is Guardianship Jurisdiction Judicial Power?

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

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

Characteristics of Judicial Power vs. Administrative Power

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

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

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

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

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

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

• They are protective in nature rather than adversarial

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

The Protective Nature of Guardianship Jurisdiction

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

In the words of Chief Justice Quinlan:

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

Historical Origins of Guardianship Jurisdiction

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

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

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

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

Implications for Interstate Guardianship Applications

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

This is because applications for guardianship orders:

1. Do not involve the exercise of judicial power

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

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

Conclusion

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

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

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

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

Introduction: A Case of Communication Barriers

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

The Critical Distinction: Mental Disability Requirements

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

Administration Orders

Under s 64(1)(a) of the Guardianship and Administration Act 1990 (WA) (GA Act), the Tribunal can only make an administration order if satisfied that the person is "unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate."

This means two elements must be established:

1. The person has a mental disability

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

Guardianship Orders

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

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

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

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

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

The Definition of "Mental Disability"

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

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

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

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

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

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

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

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

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

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

Administration Application Dismissed

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

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

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

Guardianship Application Granted

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

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

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

The Nexus Requirement for Administration Orders

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

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

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

Distinguishing Between Communication Barriers and Mental Disability

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

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

Practical Implications for Legal Practitioners

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

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

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

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

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

Conclusion

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

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

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

Jurisdiction and Power to Make Injunctions in Guardianship and Administration Matters

Introduction

In a recent Western Australian case, AP [2025] WASAT 18, the State Administrative Tribunal (SAT) provided important clarification on its power to make injunctions in guardianship and administration matters. The case involved an 83-year-old man with advanced dementia whose daughter sought an urgent injunction to prevent morphine from being administered to him at his nursing home. She claimed he was having a severe allergic reaction and was at risk of death. This application raised fundamental questions about the Tribunal's jurisdiction to make injunctive orders in guardianship matters, particularly when they involve medical treatment decisions.

The Power to Make Injunctions Under the SAT Act

The State Administrative Tribunal Act 2004 (WA) provides a general power to make injunctions under section 90. This section allows the Tribunal to "grant an interim injunction in any proceeding if it is just and convenient to do so." However, as highlighted in AP [2025] WASAT 18, this power has significant limitations when applied to guardianship matters.

The Tribunal has previously exercised this power in administration matters, as seen in cases such as Public Trustee and BG [2010] WASAT 195, where the Public Trustee sought an injunction to freeze a bank account of a joint administrator who had misappropriated funds. Similarly, in G and N [2009] WASAT 99, the Tribunal restrained parties from acting under competing enduring powers of attorney without prior approval.

However, these cases all relate to financial matters, not personal decisions about health care or welfare.

Inherent Powers Under the Guardianship and Administration Act

The Guardianship and Administration Act 1990 (WA) contains its own provisions that can achieve outcomes similar to injunctions, particularly in administration matters. Section 72(1) and Part B of Schedule 2 provide the Tribunal with broad powers to make orders preserving property.

Paragraph (e) of Part B specifically empowers the Tribunal to "make such orders as it thinks fit for the purpose of preserving the nature, quality, tenure or devolution of any property forming part of the estate." As demonstrated in MK [2013] WASAT 146, the Tribunal can use these powers to restrain third parties from dealing with a represented person's property.

These provisions create an alternative pathway to achieve outcomes similar to injunctions in administration matters without relying on the general injunctive power in the SAT Act.

Critical Distinction: Administration vs. Guardianship

The case of AP [2025] WASAT 18 highlights a crucial distinction between the Tribunal's powers in administration matters versus guardianship matters:

1. Administration matters: The Tribunal has broad powers to give directions to administrators and third parties to protect a represented person's estate, as illustrated in Public Trustee and BG [2010] WASAT 195.

2. Guardianship matters: The Tribunal's powers are more constrained. It can only give directions to a guardian if the guardian themselves request that the Tribunal do so under section 47(1) of the Guardianship and Administration Act.

As the Tribunal noted in AP [2025] WASAT 18, there is no equivalent to Part B of Schedule 2 for guardianship matters. The only requirement placed on guardians is that they make decisions solely in the best interests of the represented person, as required by section 51.

The Role of Guardians in Medical Decision-Making

The Tribunal in AP [2025] WASAT 18 emphasized that the role of a guardian involves considering, weighing, and accepting (or not) the opinions and advice of appropriately qualified professionals. As noted in Director Clinical Services, Child & Adolescent Health Services and Kiszko & Anor [2016] FCWA 75 at [101], "determination of best interests is not a precise science. It is multifaceted and complex. It is susceptible to very different conclusions being drawn by different people of equal compassion, sincerity and integrity."

This complexity makes it inappropriate for the Tribunal to make injunctive orders directly interfering with medical treatment decisions that should properly be made by an appointed guardian.

Conclusion

The case of AP [2025] WASAT 18 provides valuable clarification on the limits of the State Administrative Tribunal's injunctive powers in guardianship matters. While the Tribunal has broad powers to protect property in administration matters, it lacks jurisdiction to make injunctive orders regarding personal matters such as medical treatment.

For practitioners advising clients concerned about decisions being made by guardians, the proper course is to seek an urgent review of the guardianship appointment rather than pursuing an injunction. This approach respects the guardian's role as an independent decision-maker acting in the best interests of the represented person while still providing a pathway for concerned family members to have their issues addressed.

Extensions of Time for Costs Assessments: When Will Courts Grant Relief?

Introduction

The recent Western Australian State Administrative Tribunal (SAT) decision in Kaya and WA Summit Lawyers [2025] WASAT 22 offers valuable insights into when clients may obtain an extension of time to have legal costs assessed. In this case, Ms Kaya engaged WA Summit Lawyers for a family law dispute but later became dissatisfied with both the representation received and the costs charged. She sought to have a particular bill (Invoice 107) assessed, but her application came approximately 7.5 months after the statutory 12-month time limit had expired. The Tribunal had to determine whether it was "just and fair" to allow the assessment to proceed despite being out of time.

The Legislative Framework

Under the Legal Profession Uniform Law (WA), s 198(3) requires that applications for assessment of legal costs must be made within 12 months after the bill was given to the client. However, s 198(4) provides that late applications may proceed if the designated tribunal "determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period."

This provision balances the legitimate expectations of legal practitioners to have their bills finalized within a reasonable timeframe against the right of clients to challenge potentially excessive costs.

Key Factors in Determining Extensions

The Tribunal in Kaya referenced several significant cases that have established principles for determining when extensions should be granted. Drawing from Monopak Pty Ltd v Maxim Litigation Consultants [2007] WASC 112, the following factors are particularly relevant:

1. Reasons for Delay

The tribunal will examine why the client failed to bring the application within the statutory timeframe. In Kaya, the applicant's limited English proficiency, financial constraints, family responsibilities, and initial attempts to resolve the matter through the Legal Practice Board were considered adequate explanations for the delay.

2. Potential Injustice to the Client

Courts consider whether refusing an extension might result in injustice to the client. This involves evaluating whether there appears to be merit in the client's concerns about the bills.

3. Evidence of Potentially Excessive Bills

If there is preliminary evidence suggesting the bill might be excessive or contain charges for work not performed, this weighs in favor of granting an extension. In Kaya, the applicant asserted that the bill included costs for work that could not have been done on days for which costs were claimed.

4. Prejudice to the Practitioner

As noted in Frigger v Murfett Legal Pty Ltd [2012] WASC 447, law practices have legitimate expectations that bills will be finalized within the statutory period. They may arrange their business accordingly, and delays can prejudice them through fading memories or staff changes. However, in Kaya, the Tribunal noted that the firm had not provided evidence of any specific prejudice beyond delayed payment.

5. Practitioner's Reasons for Opposition

As officers of the court, legal practitioners should be acting honestly, ethically, and with proper motives when opposing an extension—not merely to prevent assessment. In Lin v WJ Legal (Aust) Pty Ltd [2023] VCS 52, the court noted that an unjustified reluctance to provide an itemized bill or serious delay in providing one might favor allowing an out-of-time application.

6. Statutory Purpose

The provisions exist to protect clients against excessive charges while preventing frivolous objections or tactical delays in payment. As Master Sanderson stated in Watson v Hewett & Lovitt Pty Ltd [2022] WASC 184, "the discretion, while unfettered, must pay particular regard to the length of the delay and the reasons for the delay."

Special Considerations for Self-Represented Litigants

The Kaya decision underscores that tribunals may give some latitude to self-represented litigants, particularly those with language barriers. The Tribunal acknowledged that navigating the legal system would likely be difficult for someone in Ms Kaya's position. Similarly, in Lin v WJ Legal (Aust) Pty Ltd, the court considered the applicant's incomplete knowledge of English as a constraint in enforcing his rights.

The Balancing Exercise

Ultimately, the question requires exercising a broad discretion to ensure that the interests of justice are properly administered. As Justice Dixon noted in Lin v WJ Legal (Aust) Pty Ltd [2023] VCS 52, the test "requires a consideration of the right of one party to seek an assessment against the legitimate expectation of the other party that any request for an assessment will be made within the statutory period."

Conclusion

For practitioners, the Kaya decision highlights the importance of maintaining detailed records of work performed and being prepared to justify charges if challenged, even outside the standard timeframe. For clients, while the 12-month limitation period should be respected, there remains scope for extensions where justified by the circumstances.

The case reinforces that the "just and fair" test is applied on a case-by-case basis, with tribunals weighing multiple factors to balance the competing interests at stake. While time limitations serve important purposes in finalizing legal obligations, they will not be rigidly enforced where doing so would produce an unjust outcome.

Legalwise CPD Seminar - Evidence in the State Administrative Tribunal

Here is my paper given at this seminar held on 7 March 2025.

The Prodigal Son Returns: Family Dynamics and Best Interests in Guardianship Law – Analysis of AA [2025] WA SAT 2

As counsel for the successful Applicant in this matter, I had the opportunity to argue several significant issues regarding capacity assessment and the obligations of attorneys and guardians under Western Australian guardianship law.

The case provides important guidance on these issues in the context of family conflict and disputed property transactions.

Background

The matter concerned AA, a 92-year-old widow who had appointed two of her three sons (S2 and S3) as her joint enduring attorneys and guardians in October 2021. As detailed at [3]-[7] of AA [2025] WASAT 2, AA there was a history of excluding the eldest son (S1, the Applicant) from her affairs, including through explicit exclusions in her 1991 and 2013 wills. However, in mid-2022, AA's relationship with S1 was rekindled after limited contact since 2007.

The key catalyst for the proceedings was a series of property transfers in April 2023, where AA transferred substantial interests (65-66%) in eight properties to S2 and S3 for no consideration beyond "natural love and affection" (at [12]). These transfers occurred at a time when there were documented concerns about AA's cognitive function, with evidence showing decline from at least September 2022 (at [97]).

The proceedings involved applications to revoke AA's enduring power of attorney (EPA) and enduring power of guardianship (EPG), as well as seeking the appointment of an administrator and guardian.

The case required detailed consideration of AA's capacity at various times and the conduct of S2 and S3 as attorneys and guardians.

Legal Analysis

Capacity Assessment

The Tribunal emphasized that capacity must be assessed in the context of contemporaneous medical evidence and should not be inferred merely from prior assessments. In AA [2025] WASAT 2 at [106]-[108], the Tribunal rejected submissions that there was continuity of capacity between earlier favourable capacity assessments and later periods, particularly where there was evidence of cognitive decline. The decision reinforces that capacity is time and decision-specific.

The case also demonstrates the importance of obtaining specialist geriatric assessments where cognitive impairment is suspected. At [157]-[159], the Tribunal was critical of the failure to arrange timely geriatric assessment despite documented concerns about cognitive decline. This highlights that attorneys and guardians have obligations to proactively address capacity concerns through appropriate medical assessment.

The Tribunal placed significant weight on geriatrician evidence at [41]-[45], which established that AA had a mental disability likely Alzheimer's dementia and was incapable of making reasonable decisions about financial matters, medical treatment, accommodation, and services. This comprehensive medical assessment was crucial in establishing both the need for orders and the unsuitability of continuing the existing EPA and EPG arrangements. 

Fiduciary Obligations of Attorneys

The decision provides a detailed analysis of the fiduciary obligations of attorneys under enduring powers of attorney. At [116]-[117], the Tribunal confirmed that the relationship between donor and attorney is fiduciary in nature, citing Dal Pont, Powers of Attorney (Third edition), 2020. The Tribunal emphasized that attorneys cannot make decisions in their own interests unless fully informed consent is given by the donor.

Significantly, at [118]-[120], the Tribunal found that where attorneys are aware of the donor's impaired cognition, they cannot rely on the donor's apparent consent to transactions that benefit the attorneys to the donor's detriment. The property transfers in this case exemplified this principle - while they may have aligned with AA's historical wishes as expressed in her wills, they were facilitated by the attorneys at a time when they knew or ought to have known of her cognitive decline.

Grounds for Revoking Enduring Powers

The decision illustrates several grounds that may justify revoking enduring powers under section 109(1)(c) of the Guardianship and Administration Act 1990 (WA). These include:

• Facilitating property transfers that benefit the attorneys when aware of the donor's cognitive impairment (at [118]-[119])

• Failing to obtain appropriate medical assessment of cognitive decline (at [236])

• Using powers in ways that restrict the donor's family relationships without clear evidence this serves the donor's interests (at [219])

• Demonstrating lack of understanding about the scope and proper use of enduring powers (at [221])

The Tribunal's analysis suggests that revocation may be warranted where attorneys lose sight of their fundamental obligation to act in the donor's best interests, even if they have otherwise provided good care to the donor.

Best Interests Analysis

A key aspect of the decision was the Tribunal's detailed consideration of AA's best interests under section 4 of the Guardianship and Administration Act 1990 (WA). At [207], the Tribunal emphasized that guardians must act to maintain supportive relationships and encourage community participation. The evidence that S2 and S3 had restricted AA's contact with S1 and his family, including through surveillance measures and redirecting phone calls (at [162]-[165]), demonstrated their inability to fulfill these obligations.

Appointment of Independent Administrator/Guardian

The decision provides guidance on when the Public Trustee and Public Advocate should be appointed instead of family members. At [232]-[239], the Tribunal identified several factors warranting independent appointment:

• Acrimonious family relationships affecting ability to maintain supportive relationships

• Conflicts of interest regarding property and financial matters

• Need for independent assessment of competing views about care arrangements

• Lack of proper understanding of statutory powers and obligations

Significantly, at [215], the Tribunal held that differing views between proposed guardians about future care options do not necessarily preclude joint appointment if they have not yet had to actively consider those issues. This suggests the Tribunal will focus on demonstrated conflicts rather than theoretical ones.

The decision also emphasizes the importance of gifting provisions in administration orders. At [132], the Tribunal recognized AA's history of gifting to grandchildren and great-grandchildren and included a specific authorization for modest gifting to continue, demonstrating the importance of maintaining normal family practices where appropriate.

Review Periods

At [241]-[242], the Tribunal confirmed that where there is clear medical evidence of a progressive cognitive condition, the maximum five-year review period under the Act may be appropriate. This provides useful guidance on structuring orders in cases involving diagnosed dementia or similar conditions.

Conclusion

This decision provides a comprehensive analysis of key guardianship and administration principles in the context of family conflict and questionable property transactions. It emphasizes the paramount importance of protecting the represented person's interests and demonstrates the Tribunal's willingness to appoint independent decision-makers where family dynamics create risks to those interests. The case serves as an important reminder of the high standards expected of attorneys and guardians, particularly regarding their obligations to obtain appropriate medical assessment and avoid conflicts of interest. Read the full decision here.

Revocation of Enduring Powers of Guardianship by the State Administrative Tribunal of Western Australia

An Enduring Power of Guardianship (EPG) is a legal instrument in Western Australia that allows a person (the appointor) to appoint one or more individuals (the enduring guardian(s)) to make personal, lifestyle, and treatment decisions on their behalf if they lose capacity to make those decisions themselves [1]. This important legal tool provides individuals with autonomy and control over their future care, ensuring their wishes are respected even when they can no longer express them. However, circumstances may arise where the revocation of an EPG becomes necessary to protect the best interests of the appointor. The SAT's role in revoking EPGs requires a delicate balance between upholding the appointor's autonomy, as expressed through the EPG, and safeguarding their best interests when circumstances change or concerns arise.

The State Administrative Tribunal (SAT) of Western Australia plays a crucial role in overseeing EPGs and ensuring their proper execution. While the SAT does not have a role in the initial appointment of an enduring guardian, it has the authority to intervene in situations where concerns arise regarding the validity, operation, or appropriateness of an EPG [2]. This includes the power to revoke an EPG under certain circumstances. This article aims to explore the circumstances under which the SAT will order the revocation of an EPG, drawing upon relevant legal principles and, where available, case law from the SAT.

Legal Framework for Enduring Powers of Guardianship in Western Australia

The legal framework governing EPGs in Western Australia is primarily found in the Guardianship and Administration Act 1990 (WA). This legislation sets out the requirements for creating a valid EPG, the powers and responsibilities of enduring guardians, and the circumstances under which an EPG may be revoked. It is crucial that EPGs are drafted with clarity and precision, taking into account the appointor's wishes and potential future circumstances, to minimize the risk of disputes or the need for revocation.

Capacity to Create an EPG

A fundamental principle underlying EPGs is that the appointor must have the capacity to make reasoned decisions at the time of completing the document [1]. This means they must understand the nature and effect of the EPG, the implications of appointing an enduring guardian, and the potential consequences of their decisions [3]. If there is any doubt about the appointor's capacity, the written opinion of a doctor or other appropriately qualified health professional should be sought [1].

Circumstances for Revocation

While the Guardianship and Administration Act 1990 (WA) does not explicitly list all the grounds for revoking an EPG, the SAT has the power to revoke an EPG in situations where it is deemed necessary to protect the appointor's best interests. This may include situations where:

• The enduring guardian is no longer able or willing to act. This could be due to the guardian's death, incapacity, or a change in their personal circumstances [4].

• Where an EPG has joint enduring guardians, and one guardian dies or loses capacity, the remaining guardian may need to apply to the SAT for a variation or confirmation of their authority, depending on the provisions of the EPG document [4].

• The enduring guardian is acting in a manner that is not in the appointor's best interests. This could involve financial abuse, neglect, or making decisions that contradict the appointor's known wishes. This aligns with the general principles of guardianship law, which prioritize the welfare and well-being of the person subject to the guardianship [5].

• There is a conflict of interest between the enduring guardian and the appointor. For example, the guardian may be benefiting personally from their role or making decisions that prioritize their own interests over those of the appointor.

• The appointor wishes to revoke the EPG. An appointor can revoke an EPG at any time while they have the legal capacity to do so [1]. They should inform their enduring guardian and all other relevant people and agencies, preferably in writing [1].

• The EPG is invalid. This could be due to a lack of capacity on the part of the appointor at the time of creating the EPG, or due to a defect in the document itself [6].

• Where the appointor's capacity to make decisions is fluctuating or unclear, the SAT may revoke the EPG to ensure the appointor's best interests are protected [6].

Powers of the SAT

The SAT has broad powers to intervene in EPG matters. In addition to revoking an EPG, the SAT can:

• Appoint a substitute enduring guardian [7].

• Vary the terms of an EPG [7].

• Require the enduring guardian to provide accounts and records of their dealings [7].

• Give directions to the enduring guardian on matters related to the exercise of their powers [7].

Conclusion

The SAT plays a vital role in safeguarding the welfare of individuals who have lost capacity by overseeing the operation of EPGs. In summary, the SAT may revoke an EPG if the enduring guardian is unable or unwilling to act, acts against the appointor's best interests, has a conflict of interest, or if the appointor themselves revokes the EPG while still having capacity. Ultimately, the SAT's decisions are guided by the principle of protecting the appointor's welfare.

Footnotes

[1] www.wa.gov.au, accessed January 5, 2025, https://www.wa.gov.au/system/files/2023-07/opa-is-9-enduring-powers-guardianship.pdf

[2] www.wa.gov.au, accessed January 5, 2025, https://www.wa.gov.au/system/files/2024-07/opa-epg-guide.pdf

[3] www8.austlii.edu.au, accessed January 5, 2025, https://www8.austlii.edu.au/au/journals/SydUPLawBk/2011/11.pdf

[4] Enduring Power Of Guardianship (Western Australia) - Cleardocs, accessed January 5, 2025, https://www.cleardocs.com/products-enduring-power-of-guardianship-western-australia.html

[5] palliativecarewa.asn.au, accessed January 5, 2025, https://palliativecarewa.asn.au/wp-content/uploads/2023/05/10-Enduring-Power-of-Guardianship-kit.pdf

[6] Enduring Power of Guardianship - Government of Western Australia, accessed January 5, 2025, https://www.wa.gov.au/organisation/department-of-justice/office-of-the-public-advocate/enduring-power-of-guardianship

[7] Word - Western Australian Legislation, accessed January 5, 2025, https://www.legislation.wa.gov.au/legislation/statutes.nsf/RedirectURL?OpenAgent&query=mrdoc_28305.docx