CR [2026] WASAT 53

[2026] WASAT 53 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : CR [2026] WASAT 53 MEMBER : MS R BUNNEY, MEMBER HEARD : 12 MAY 2026 DELIVERED : 12 MAY 2026 PUBLISHED : 15 MAY 2026 FILE NO/S : GAA 581 of 2026 CR Proposed Represented Person HU Applicant Catchwords: Guardianship - Administration - Presumption of capacity - Separation - Misconceived - Lacking in substance - Presumption of capacity not set aside - Application dismissed Legislation: Guardianship and Administration Act 1990 (WA), s 4(2), s 4(3), s 4(7), s 40, s 43(1), s 64(1), State Administrative Tribunal Act 2004 (WA), s 47, s 47(2) -- 1 of 8 -- [2026] WASAT 53 Page 2 Result: Application for guardianship and administration orders dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) as it is misconceived and lacking in substance Category: B Representation: Counsel: Proposed Represented Person : In Person Applicant : In Person Solicitors: Proposed Represented Person : N/A Applicant : N/A Case(s) referred to in decision(s): Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 Briginshaw v Briginshaw (1938) 60 CLR 336 GC and PC [2014] WASAT 10 Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102; (1997) EOC 92-875 -- 2 of 8 -- [2026] WASAT 53 Page 3 REASONS FOR DECISION OF THE TRIBUNAL: Summary 1 CR is a 69-year-old woman. She has eight adult daughters and has been married to her second husband HU for 28 years. CR has a history of strokes and aneurysms and now lives with significant physical health issues. CR was an inpatient at Hospital A when the application was filed. 2 CR recently decided that rather than returning to live with HU and continue in the marriage, she wants to separate and live in residential aged care. In late January 2026, CR signed an enduring power of attorney (EPA) and enduring power of guardianship (EPG) to appoint her third eldest daughter D3 as her enduring attorney and enduring guardian. 3 Upon learning of CR's wish to separate, HU filed this application seeking the appointment of a guardian and administrator for CR. The basis for the application was HU's concerns about the sudden and significant change in CR's expressed wishes and her vulnerability to influence. HU and the daughter he shares with CR, SS, wanted CR to return home with NDIS supports to assist with her care. 4 In late February 2026, a Senior Member of the Tribunal held a directions hearing to discuss the application and CR's current medical evidence, which set out that CR has the capacity to make her own decisions. 5 The Senior Member explained the medical evidence to HU and invited him to withdraw the application on the basis that the presumption of capacity had not been set aside. However, HU's view was that as CR did not want to see him, she must lack capacity, and he was unwilling to withdraw the application. 6 The Senior Member programmed the matter for final hearing on 12 May 2026 and referred the matter to the Public Advocate for investigation. The Senior Member included the following order: 1. The matter is to be considered under s 47 of the State Administrative Tribunal Act 2004 (WA) given that the applicant has been informed by the Tribunal that the medical report of the current treating team states that the proposed represented person has capacity, and has declined to withdraw the application. -- 3 of 8 -- [2026] WASAT 53 Page 4 Principles to be observed by the Tribunal 7 The primary concern of the Tribunal when making decisions under the Guardianship and Administration Act 1990 (WA) (GA Act) is the best interests of the person for whom the application was made.1 The Tribunal must ascertain CR's views and wishes, as far as possible.2 8 The starting point for the Tribunal is that every person is capable of making their own decisions. This is known as the presumption of capacity which is enshrined in the GA Act as follows:3 … (3) Every person shall be presumed to be capable of - (a) looking after [their] own health and safety; (b) making reasonable judgments in respect of matters relating to [their] person; (c) managing [their] own affairs; and (d) making reasonable judgments in respect of matters relating to [their] estate, until the contrary is proved to the satisfaction of the [Tribunal.] 9 The Full Tribunal stated in GC and PC4 that the statutory presumption of capacity is a fundamental principle in the GA Act and serves to protect persons who are the subject of proceedings under the GA Act from having their decision-making capacity removed from them and a substitute decision-maker appointed under the GA Act. Because of the significant consequences for an individual of having their decision-making capacity removed and a substitute decision-maker appointed, clear and cogent evidence is required to rebut the statutory presumption of capacity. 10 The evidence of incapacity must lead the Tribunal to be actually persuaded that the person in respect of whom the application was made is a person for whom a guardianship and administration order can be made.5 1 Guardianship and Administration Act 1990 (WA) (GA Act), s 4(2). 2 GA Act, s 4(7). 3 GA Act, s 4(3). 4 GC and PC [2014] WASAT 10. 5 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 4 of 8 -- [2026] WASAT 53 Page 5 11 When considering an application for administration, the presumption of capacity can only be displaced if the Tribunal is satisfied, on the balance of probabilities, that the person for whom the application was made is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or part of their estate.6 12 When considering an application for guardianship, the presumption of capacity can only be displaced if the Tribunal is satisfied to the same standard that the person for whom the application was made is: (a) incapable of looking after their own health and safety; or (b) unable to make reasonable judgments in respect of matters relating to their person; or (c) in need of oversight, care or control in the interests of their own health and safety or for the protection of others.7 CR's views and wishes 13 CR told the Investigator from the Public Advocate's office that she no longer wanted to be married to HU and she was strongly opposed to HU being appointed as her decision-maker. She wanted her trusted daughters to support her to separate from HU and facilitate discharge planning into residential aged care.8 14 The Investigator was satisfied that the views and wishes expressed to her by CR were CR's genuine views and wishes, and she was not being influenced by any other party. The Investigator confirmed that she inspected the EPG and EPA and verified the documents were correctly completed, with the EPA being witnessed by a doctor. 15 All the family members that attended the hearing, save for HU, agreed that the matter should be dismissed and agreed CR can make her own decisions. 6 GA Act, s 64(1). 7 GA Act, s 43(1). 8 Report prepared by Investigator from the Office of the Public Advocate dated 6 May 2026 (Investigator Report), page 4. -- 5 of 8 -- [2026] WASAT 53 Page 6 Medical evidence 16 CR's treating doctor at Hospital A, Dr W, prepared a medical report dated 5 February 2026. The report states that CR has no medical condition that would cause a mental disability. Dr W's medical opinion was that CR has the capacity to make decisions about her personal, financial and legal matters, and also to sign an enduring power of attorney and enduring power of guardianship. HU's evidence 17 At the directions hearing of 26 February 2026, HU did not accept the evidence of Dr W. HU asked the Senior Member if CR remembered having her capacity assessed by Dr W. Ms B, the social worker from Hospital A, confirmed that the treating team was satisfied that CR retained information from previous meetings with them and there were no concerns in relation to her recall. 18 Following the directions hearing, HU advised the Investigator that while he understands CR has capacity, he does not believe D3 is the best person to manage CR's affairs. HU believes an independent party would be best to assist in splitting their assets.9 HU acknowledged to the Investigator that during their marriage, he made all decisions for CR and managed their money.10 19 At the final hearing of 12 May 2026, HU confirmed that he wanted to proceed with the application. HU was concerned as D3 had moved money out of joint accounts and he wanted someone to oversee the actions taken by D3 to ensure they were correct. I explained that the Tribunal does not have that role in this type of application.11 20 The Investigator confirmed that she advised the parties that the Tribunal is not the correct jurisdiction to address the types of concerns raised by HU in relation to the division of property. Dismissal of proceeding 21 I will dismiss this proceeding pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) as I am satisfied the proceeding is misconceived and lacking in substance. 9 Investigator Report, page 5. 10 Investigator Report, page 5. 11 The application was made under s 40 of the GA Act for guardianship and administration orders. -- 6 of 8 -- [2026] WASAT 53 Page 7 22 Section 47 provides: (1) This section applies if the Tribunal believes that a proceeding - (a) is frivolous, vexatious, misconceived or lacking in substance; or (b) is being used for an improper purpose; or (c) is otherwise an abuse of process. (2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders. (3) The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member. (4) The Tribunal may act under subsection (2) on the application of a party or on its own initiative. 23 The terms 'misconceived' and 'lacking in substance' are not defined in the SAT Act. 24 The term 'misconceived' means 'to conceive wrongly; misunderstand'12 and implies a misunderstanding of legal principle.13 I must consider whether HU has misunderstood the law and if so, I can be satisfied it is appropriate to dismiss the proceeding as misconceived. 25 The term 'lacking in substance' refers to an untenable proposition of law or fact that cannot possibly succeed.14 In Ambrus,15 Chaney J stated that an application that lacks substance is one where after very careful consideration of the case, 'it is clear that there is no realistic prospect of success'. I must therefore consider the issues raised by HU's application and whether it has any realistic prospect of success before I can be satisfied it is appropriate to dismiss the proceeding as lacking in substance. 12 Macquarie Dictionary (2013). 13 Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 at [23] referring to State Electricity Commission of Victoria v Rabel [1998] 1 VR 102; (1997) EOC 92-875 at VR 108-109 (Ormiston JA). 14 Laurent and Commissioner of Police at [23] referring to State Electricity Commission of Victoria v Rabel at VR 108-109 (Ormiston JA). 15 Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 at [44]. -- 7 of 8 -- [2026] WASAT 53 Page 8 Conclusion 26 I am satisfied, and I find, that the proceeding is misconceived as HU has misunderstood the legal principles involved in an application for guardianship or administration. The medical evidence demonstrates that CR has capacity, so the application fails as the presumption of capacity has not been set aside. The Tribunal is not the appropriate forum to address HU's concerns about the division of marital assets. 27 In addition, I am satisfied that the proceeding is lacking in substance as HU's position is untenable at law. The proceeding discloses a case which I am satisfied cannot succeed. 28 The proceeding is therefore dismissed as it is misconceived and lacking in substance. Orders The Tribunal orders: 1. Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) the proceeding is dismissed as it is misconceived and lacking in substance. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MS R BUNNEY, MEMBER 15 MAY 2026 -- 8 of 8 --