MA [2026] WASAT 91

[2026] WASAT 91 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MA [2026] WASAT 91 MEMBER : MS F CHILD, MEMBER HEARD : 30 MARCH AND 6 MAY 2026 DELIVERED : 6 MAY 2026 PUBLISHED : 4 AUGUST 2026 FILE NO/S : GAA 434 of 2026 GAA 487 of 2026 MA Represented Person Catchwords: Guardianship and administration - Applications for guardianship and administration orders and for revocation of enduring powers of attorney and guardianship - Diagnosis of frontotemporal dementia - Whether the donor of full legal capacity when executing enduring powers - Whether donee acting with reasonable diligence to protect the interests of the donor - Son living in donor's property - Diversion of funds to which donor entitled to her daughter - Proposed sale of property and distribution of proceeds of sale to adult children of donor - No demonstrated need of donor for sale of property - Expressed wish of the donor her house not be sold - Allegation that gift in will of donor would be adeemed by sale - Role of Tribunal to supervise enduring powers - Failure by donee and enduring guardian to cooperate with Tribunal - Family conflict - Need for independent administrator and guardian - Enduring powers revoked - Public Trustee appointed plenary administrator and Public Advocate appointed -- 1 of 36 -- [2026] WASAT 91 Page 2 limited guardian Legislation: Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(7), s 40, s 43, s 44(1), s 44(1)(b), s 64, s 64(1), s 64(1)(a), s 64(1)(b), s 65, s 71(5), s 72(1), s 104(1a), s 106, s 107, s 108, s 108(1), s 108(1a), s 110B, s 110N, Sch 2, Pt B, cl (f), Pt 9A Result: Public Trustee appointed plenary administrator Public Advocate appointed limited guardian Enduring powers of attorney revoked Enduring powers of guardianship revoked Category: B Representation: Counsel: Represented Person : In Person Solicitors: Represented Person : N/A Case(s) referred to in decision(s): CMB [2004] QGAAT 20 DD [2007] WASAT 192 DW and JM [2006] WASAT 366 EW [2010] WASAT 91 Ex Parte The Public Trustee in and for the State of Western Australia, as administrator of the estate of Elizabeth Hartigan, Unreported Supreme Court Library Number 970736, 9 December 1997 ISH [2021] WASAT 169 KS [2008] WASAT 29 Legal Services Complaints Committee and Hardie [2025] WASAT 50 Re HAA [2007] QGAAT 6 -- 2 of 36 -- [2026] WASAT 91 Page 3 RK [2022] WASAT 112 Szozda v Szozda [2010] NSWSC 804 The Public Trustee as Executor and Trustee of the estate of Mary Agnes Horfsall v Halleen [2000] WASC 262 Union Bank of Australia v Harrison, Jones & Devlin Ltd [1910] HCA 44; (1910) 11 CLR 492 -- 3 of 36 -- [2026] WASAT 91 Page 4 REASONS FOR DECISION OF THE TRIBUNAL: Background 1 These are the reasons for decisions made on applications under the Guardianship and Administration Act 1990 (WA) (GA Act) in respect of MA. 2 MA is an 87 year old resident of a residential aged care facility. She has a diagnosis of frontotemporal dementia made by a geriatrician in October 2022.1 MA was widowed in 2016 and has two children, a son K, aged 42, the applicant in this matter, and daughter T aged 36 who lives in Queensland. MA's brother P, who lives overseas was appointed as MA's enduring guardian and enduring attorney in 2023. MA entered residential aged care in February 2024. Applications and proceedings before the Tribunal 3 K applied to the Tribunal on 21 January 2026 seeking orders to revoke an enduring power of attorney made by MA dated 8 September 2023 (2023 EPA) by which she had appointed her brother, P as her attorney. 4 K said he had made the application as P intended to sell MA's house in which K says he has lived for 42 years. K says that should the sale occur, he would be made homeless. K argues that retaining the house provides a 'therapeutic benefit' to MA and selling it is against her wishes. He says there has been a lack of transparency in P's conduct of MA's affairs. 5 K says that there is no need to sell MA's house as she has sufficient cash assets to meet her needs and the sale of the house would adeem a gift to him made in MA's will. K sought urgent action from the Tribunal to prevent the sale which he said was imminent. 6 On 27 January 2026 the Case Management Member made orders appointing the Public Trustee under an emergency order pursuant to s 65 of the GA Act2 to secure the estate of MA, including the lodging of a caveat on the house property. 1 Dr SJ letter dated 10 October 2022. 2 Section 65 of the GA Act provides that the Tribunal may make an emergency administration order if satisfied that the proposed represented person may be a person for whom an administration order may be made and there is an immediate need to make provision for the protection of that person's estate. -- 4 of 36 -- [2026] WASAT 91 Page 5 7 The case management orders also included orders treating K's application as an application for the appointment of a guardian and administrator of the estate of MA3 and for intervention in an enduring power of guardianship made by MA on 8 September 2023 (2023 EPG).4 8 The applications were referred to the Office of the Public Advocate for investigation of a range of matters including whether the 2023 EPA and 2023 EPG provide less restrictive alternatives to the making of administration and guardianship orders for MA. 9 P as the donee of the 2023 EPA was ordered to file by 27 February 2026 a statement of assets and liabilities and regular income and expenditure of MA and as her enduring guardian, a statement in writing of all decisions made by him as MA's enduring guardian. 10 On 23 March 2026 P was ordered to file a copy of the will5 of MA because of the allegation made by K that a gift intended to be made to him in the will would be adeemed if MA's house was sold. By order 6 of those orders no one other than officers of the Public Advocate (the investigator) and the Public Trustee could inspect the will. 11 P did not comply with any of the orders made. 12 The applications were first heard on 30 March 2026 (first hearing). The Public Advocate's investigator (investigator), MA, K and MA's friend, Ms H attended the hearing in person. P attended by video from New Zealand where he lives and T and her partner attended by video from Queensland where she lives. 13 In the hearing P said he could not comply with the orders that he file documents. He said he could not use a computer to access the documents on the Tribunal's portal and did not know what had been said in K's application. 3 Pursuant to s 40 of the GA Act. 4 Pursuant to s 110N of the GA Act. 5 Pursuant to s 72(1) and cl (f) of Sch 2, Pt B of the GA Act. As The Public Trustee had been appointed as an interim administrator of the estate of MA pursuant to the orders of 27 January 2026, I considered that the order provided for in Sch 2 of the GA Act could be made. -- 5 of 36 -- [2026] WASAT 91 Page 6 14 Following hearing from the parties I adjourned to give P an opportunity to read and respond to the applications.6 15 At the first hearing the investigator kindly agreed she would accept and lodge with the Tribunal on P's behalf any submission or documents sent by him by email to her office. P agreed7 he would email documents to the investigator following reading the application. 16 Following the first hearing the Senior Member approved the provision of the documents filed in the matters to be provided to P by email. The application filed by K ran to some 326 pages. 17 The investigator filed a copy of an email dated 20 April 2026 in which she confirmed the arrangements made to P; that she would submit to the Tribunal any submissions or documents provided by P by email to her office. The investigator's email was in response to an email from P to the investigator dated 19 April 2026. In that email P states he has received five email communications from the Tribunal but could only access two. The Tribunal's records indicate that four emails were sent to P.8 The investigator confirmed the arrangement made in a further email to P on 24 April 2026. 18 I am advised that the Tribunal's records indicate that all the emails sent to P from the Tribunal were retrieved at 6.00 am on 19 April 2026.9 19 From the date and time of P's email to the investigator, it is likely that his email to the investigator followed that retrieval. In his 19 April email, P asks the investigator to request the reinstatement of his access to MA funds, to legal support for MA and himself as the appointed enduring attorney and guardian and for the payment of costs of his travel to Perth which he says was a standing agreement between MA, T and himself. 6 Despite notice being given to all the parties in the orders made on 27 January 2026 that access to documents could be sought, P had not previously applied for access to inspect the application and documents filed. 7 ts 43 and 49, 30 March 2026. 8 (1) The order adjourning the 30 March 2026 hearing sent on 31 March 2026. (2) The order granting access to inspect documents sent on 2 April 2026 (3) A copy of the application and attachments sent on 2 April 2026; and (4) A further order dated 13 April 2026 noting that the P had not provided any correspondence by email to the Public Advocate and extending time for him to do so to 20 April 2026 including the filing of a copy of the will of MA, a complete copy of the 2023 EPG including the acceptance page and any written submissions that P considered relevant to the determination of the applications. 9 I am advised that if the emails could not be opened by the recipient they would 'bounce back' to the Integrated Courts Management System of the Tribunal. -- 6 of 36 -- [2026] WASAT 91 Page 7 20 These requests had already been dealt with prior to the first hearing (following them being referred to me by Tribunal staff following a verbal request from P). In respect of reinstatement of P's access to MA's bank account this was requested by P both prior to and during the first hearing and refused. In respect of his travel costs and payment of the costs of legal representation for P, this was dealt with in orders made prior to the hearing.10 There was, in my view, no barrier to P's (and T's) attendance remotely which was arranged through the normal processes allowing parties to attend hearings by video. Both P and T attended the first hearing in this way. 21 The payment of a party's legal costs from the estate of the represented person can be made pursuant to s 16(4) of the GA Act but only if the Tribunal is satisfied that the party has acted in the best interests of the represented person or a person in respect of whom an application is made. If satisfied of this, the Tribunal may order that such (legal) costs relative to those proceedings be paid from the assets of the represented person. 22 As was made clear in the orders of 23 March 2026, and explained in the first hearing, the determination of whether a party has acted in the best interests of MA could only be made once all relevant information was before the Tribunal. 23 The Tribunal's case management officer resent the application and attachments to P's email address on 1 May 2026, and I am advised the email was retrieved immediately. 24 The adjournment of the applications after the first hearing on 30 March 2026 was to give a further opportunity for P to respond to K's application. Although the issues raised in the application had been put to P in the first hearing and he had responded, as K's submissions were very lengthy it was appropriate that P have an opportunity to read them and to make any further written or oral response. 25 I am satisfied that P has retrieved the emails which included the orders, the application and annexures and other material filed including the report of the investigator and the Public Trustee. I am satisfied that P is aware of the substance of the applications. 26 On the morning of the final hearing on 6 May 2026 the investigator forwarded an email she had received from P dated 10 Order 4 of orders dated 23 March 2026. -- 7 of 36 -- [2026] WASAT 91 Page 8 6 May 2026 stating that he could not attend the hearing. This was despite P's availability for that date being confirmed with him in the first hearing and the date being changed (in the hearing) from an earlier date to accommodate his availability.11 27 MA, K, Ms H and the investigator all attended the final hearing in person. T attended the hearing by video from Queensland. 28 T said she was disappointed that P could not attend the hearing and that he should be involved. T said P may have been stressed at the first hearing and may have 'got his dates wrong'. She did not consider his non-attendance was intentional.12 29 Having reviewed the transcript of the first hearing and P's agreement to the date I was not persuaded that P had been confused about the proposed date of the resumed hearing. 30 I was satisfied that P had had notice of the hearing.13 I was also satisfied that P had received all the material sent to him and was therefore aware of the application and the other documents before the Tribunal and of the time and date of the resumed hearing. 31 I decided to proceed with the hearing of the applications given the attendance in person of MA and the need in my view to bring the matter to a conclusion in her best interests. 32 At the conclusion of the hearing, I made orders appointing the Public Advocate as MA's guardian and the Public Trustee as the administrator of her estate. The 2023 EPA and 2023 EPG were revoked. The 2022 EPA which had appointed K and T jointly and severally was also revoked following recommendation by the investigator. I advised that I would provide written reasons for the decisions made. Legislative framework and principles to be observed 33 To appoint a guardian for MA pursuant to s 43 of the GA Act, I must be satisfied that she has: (a) has attained the age of 18 years; (b) is - 11 ts 53, 30 March 2026. 12 ts 4, 6 May 2026. 13 The adjournment order, a notice and a Team's remote access link had all been sent to P. -- 8 of 36 -- [2026] WASAT 91 Page 9 (i) incapable of looking after her own health and safety; (ii) unable to make reasonable judgments in respect of matters relating to her person; or (iii) in need of oversight, care or control in the interests of her own health and safety or for the protection of others; and (c) is in need of a guardian[.] 34 To appoint an administrator of her estate pursuant to s 64 of the GA Act I must find that MA is: (a) unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of her estate; and (b) is in need of an administrator of her estate[.] 35 These provisions are subject to principles set out at s 4 of the GA Act which provide: (1) In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section. (2) The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made. (3) Every person shall be presumed to be capable of - (a) looking after his own health and safety; (b) making reasonable judgments in respect of matters relating to his person; (c) managing his own affairs; and (d) making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the State Administrative Tribunal. (4) A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the -- 9 of 36 -- [2026] WASAT 91 Page 10 State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action. (5) A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made. (6) An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action. (7) In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions. What the Tribunal must decide 36 Considering the provisions of the GA Act above I must decide the following: (a) Has the presumption that MA is capable of making reasonable judgments about her person and her estate been displaced. (b) If so, is MA in need of a guardian and or an administrator of her estate or do the 2023 EPA and 2023 EPG provide less restrictive alternatives to those orders. (c) If a guardian and administrator are required who should be appointed in those roles, what functions should be included in any orders made and what review period should be set. 37 In dealing with and deciding these matters I must ascertain MA's wishes. My primary concern is MA's best interests. Evidence and material before the Tribunal 38 The application and annexures in K's submission14is in support of his role in the life of MA and his contention that P has not met his 14 K filed 326 pages with his application including detailed submissions, photographs and information about the medical history, diet, recreation and financial records of MA and himself. K filed further material in the course of the proceedings. -- 10 of 36 -- [2026] WASAT 91 Page 11 obligations under the 2023 EPA. The lengthy submissions filed provide K's perspective on the history and report on his role in the care of MA up until her entry into residential aged care and since that time. Relevant documents filed with K's submissions include: (a) A copy of the 2023 EPA dated 8 September 2023 appointing P as MA's sole enduring attorney to continue in force notwithstanding the donor's loss of capacity witnessed by an accountant and T. (b) The first page of the 2023 EPG dated 8 September 2023 appointing P as sole enduring guardian of MA witnessed by an accountant and T. The acceptance page has not been filed. (c) A document tiled 'Deed of Understanding and Confirmation of Accuracy' between T, K and P dated 10 December 2022 (2022 Deed) referring to MA's Will which was 'duly done over a period of 2 weeks. The document was completed by [MA] on 9 December 2022'. It appoints [P] to be sole executor and trustee … It further states 'the Will provides for the Estate to be shared approximately equally between [K] and [T], respectively being given first and second right of refusal in respect of the [house]'. The deed goes on to say, '[MA] wishes that this ends any speculation about the Will and that she has asked [P] to secure its safekeeping in his own possession until the appropriate time'. The deed also refers to Enduring Powers of Attorney and Guardianship made in 2022 which appointed K and T jointly of which all copies are to be provided to P. (d) A series of emails and text messages between K and P regarding the proposed sale of MA's house which support K's assertions of the restricted timeframe imposed by P for the sale of the house; that K's first right of refusal to purchase the house would be extinguished if K did not exercise his right and indicate his intention to purchase the property within a week of the notice of the proposed sale. If K failed to do so, the right to purchase the property would transfer to T. P required strict confidentiality be observed about this process such that if MA or any of her friends or anyone else learnt of the proposal it would immediately terminate.15 (e) Bank transfers of funds to T from K. 15 Email P to K and T dated 21 January 2026; hearing book, page 300. -- 11 of 36 -- [2026] WASAT 91 Page 12 (f) Schedule of payments which K says shows his reimbursement to P for payment made by him for house expenses since 2024 of rates, insurance and electricity.16 39 K alleges that P has breached his obligations as MA's attorney by diverting funds paid by K for his occupancy of MA's property to T. K also says that P as the attorney failed to transfer K a vehicle he purchased from MA in July 2024 paying $2,750 to T's account as directed by P. 40 K says that the sale of the property is not necessary to meet the financial needs of MA as she has significant cash assets to meet her expenses and ongoing costs of her care for her lifetime. 41 K also argues that the sale of the house now would adeem the gift intended to be made to him in the will of MA and as such is against her wishes.17 He says this can be ascertained by her past conduct in letting K live rent free in her property (up until the payments required to be made by him by P) and that MA provided him a first right of refusal to purchase the property after her death. He describes his continuous unhindered residency of MA's property. 42 K asserts that his residence in MA's house is 'cost neutral' for MA. K also says he has maintained the property including cleaning up and making fire breaks. He asserts that the property is also maintained as a 'therapeutic sanctuary' to enable MA to access her familiar surroundings including her bedroom and to have excursions to have access to her home environment and contact with her pet cockatoo and 'visits with friends of over 30 years in a setting that is safe and dignified'. 43 T's submission dated 4 May 2026 says that MA sought assistance from P with her financial and estate matters both after her husband's death in January 2016 and during the time when she was becoming more vulnerable. T says that MA and P have a longstanding relationship of trust and cooperation. T says that K resisted P's involvement and sought to maintain control over MA's household finances and decision-making. T says that at that time MA seemed 16 K includes electricity which it is noted that he has had the exclusive use of from MA's admission to aged care. 17 Whether that would in fact be the case is not certain see for example Ex Parte The Public Trustee in and for the State of Western Australia, as administrator of the estate of Elizabeth Hartigan, per Parker J, Unreported Supreme Court Library Number 970736, 9 December 1997 cited The Public Trustee as Executor and Trustee of the estate of Mary Agnes Horfsall v Halleen [2000] WASC 262. -- 12 of 36 -- [2026] WASAT 91 Page 13 uncertain about decisions being made and from previously being frugal her spending changed. T says that when P became involved K's control over MA's finances ceased and P safeguarded MA's finances. With P's support T says she arranged residential care for MA. T says that the arrangement K proposed that he be MA's primary carer was not functioning sufficiently for MA's wellbeing and her condition was rapidly deteriorating. 44 T says that P has always acted from a genuine sense of duty to MA's wellbeing and in line with her expressed wishes. T says that her hope is that decisions of the Tribunal recognise and incorporate MA's original wishes. 45 The Facility Manager of the Residential Aged Care facility in which MA lives filed a report dated 23 March 2026 in response to the order of the Tribunal. The report notes that MA requires fulltime nursing care having a diagnosis of frontotemporal dementia and other physical health problems. The Facility Manager's opinion is that MA has no ability to make financial decisions or personal decisions. MA is reported to refuse assistance with her hygiene needs and declines participation in activities. Strategies are required to provide appropriate care. A Mini Mental State Examination (MMSE) score is reported as indicating a severe cognitive impairment. MA is reported to have very low insight into her medical conditions, treatments, supports and accommodation needs. The opinion given is that MA is incapable all spheres of decision-making. 46 A report of a Registered Nurse from the same facility dated 23 March 2026 refers to MA's diagnosis and that it is a progressive condition. The MMSE is attached with a score of 4 which is classified as severe. A Care Plan is also attached which documents aspects of MA's care including end of life care planning. It notes that the initial goals of care were discussed with P and T on 3 October 2024 and revisited on 17 January 2026 with T. T confirmed the Goals of Care and made no changes. K is not referred to in either report. 47 In the report of the Public Trustee dated 24 March 202618 the trust manager confirms that the bank accounts of MA have been secured. Her estate is described to include the house property, three vehicles and significant cash assets. The report confirms the MA has an estate valued at just under $7M including the house and term deposits and other funds. 18 Following the appointment of the Public Trustee pursuant to the s 65 order made on 27 January 2026. -- 13 of 36 -- [2026] WASAT 91 Page 14 48 The trust manager reports that telephone interactions with P have been 'unnecessarily combative' following the refusal by the trust manager to release $10,000 of MA's funds for P and T's travel costs to attend the hearing in person and the suggestion that P seek this approval from the Tribunal. The trust manager questions the 'equalisation payment' made from K to T and suggests that K pay rent to MA's estate. The trust manager reports the 'complicated and tenacious dispute' between P, K and T regarding how MA's estate should be managed. Noting that the Public Trustee has not been provided with a copy of MA's will, the trust manager makes the point that although MA's will is not in effect it could be used to guide the decisions of an appointed administrator within the limitations of the GA Act. 49 A report of the Public Advocate's investigator of the investigation conducted including interviews with MA T, K, P and registered nurses from the aged care facility and Ms H, MA's longtime friend. 50 The investigator notes that MA did not sign the 2022 Deed. She reports that this process was initiated as K would not share the 2022 enduring documents and reportedly kept them in a locked room. T said that due to this behaviour MA wanted P to become involved and the 2022 Deed was subsequently executed. 51 The investigator submits that both K's conduct in ceasing payments for his occupancy of MA's house and P's response to immediately initiate selling the property were unreasonable. The investigator notes that it appeared that P did not require a tenancy agreement and settle an amount of rent to be paid by K to MA which would have been within his role as the donee of the 2023 EPA. 52 The investigator reports that T supported P's continuing involvement in decision-making for MA with her assisting with the guardianship role. T did not support K's appointment as she said she did not trust him and he would not make decisions in MA's best interests. She said she was not estranged from K and that she K and P have a Whatapp chat group and they can communicate with each other. 53 K told the investigator that he had been excluded from decision-making despite being MA's primary carer prior to her entry into care and that P had put 'gate keeping measures' in place to the facility staff communicating with K. The investigator reports that the registered nurse interviewed said she had not had much contact with -- 14 of 36 -- [2026] WASAT 91 Page 15 K or observed him taking MA out of the facility and that he would need to advise staff he was doing so but stated she did not work every day. The nurse confirmed that T was the contact for decisions for MA and that the staff could not make international calls to P. 54 The investigator also submitted correspondence she had obtained from Dr HO a general practitioner who had referred MA for assessment to Dr SJ, a geriatrician. The letter to the investigator dated 24 March 2026 states: I confirm that I reviewed [MA] on 7 September 2023. At that time, she demonstrated significant difficulty with information retention and was unable to participate meaningfully in an assessment of decision-making capacity. As a result, I was not able to determine her capacity to execute Enduring Powers of Attorney (EPA) or Enduring Powers of Guardianship at that time. Due to these concerns she was referred back to psychogeriatrician Dr [SJ] for further assessment. 55 The investigator submitted correspondence and a series of reports from Dr SJ, geriatrician. 56 In a letter to a general practitioner dated 9 August 2022, Dr SJ reports that MA had had an episode at work and had been admitted to hospital. She was discharged and then followed up with the general practitioner who first noted cognitive issues in June 2022. He notes MA's MMSE is reported as 19/30. He reports that MA presents with 'global cognitive deficits [and was] an extremely poor historian' with 'obvious problems with word finding difficulties, … [t]here were difficulties with the short-term recall section losing 3/3 [points]' ... He suggested that there may be an 'underlying neurodegenerative process such as vascular dementia' or frontotemporal dementia process or even Alzheimer's'. K who accompanied MA to the appointment is described as 'highly attentive' but relatively 'unaware of the cognitive symptoms that [MA] is displaying'. Dr SJ recommends close supervision of MA's medications, that she not return to work and advises an EPA and EPG be made. 57 In a report to the general practitioner dated 27 September 2022, following a review of MA with the attendance of K and T, Dr SJ states that an EPA and EPG have been arranged to be held jointly and severally by MA's children. He confirms MA's diagnosis of frontotemporal dementia. 58 In a further report to the general practitioner dated 11 April 2023, Dr SJ refers to a review of MA with K, T and T's partner with the focus -- 15 of 36 -- [2026] WASAT 91 Page 16 more on 'issues to do with disharmony amongst her family members mainly surrounding issues such as [MA's] care planning, will and family's future use of enduring powers of attorney/enduring powers of guardianship'. Dr SJ refers to 'multiple accusations flying from both children'. He recommends contact with the Tribunal should the issues not be able to be resolved in MA's interests. He notes that the family reports MA has been assisted to make a will in 2022 'using her brother from New Zealand to draft this rather than going through local practicing lawyers'. Dr SJ refers to the most 'robust way for [MA] to make a will' is for a capacity assessment with a 'medical specialist in conjunction with a neuropsychologist'. He records the longstanding 'family relationship problems which may be deep-rooted long-term differences in personality, character and formed over many years'. He recommends T offer to provide some respite to K in the hope it will be a pleasant experience for her and useful to see some of the day-to-day situations K is managing. Dr SJ notes that 'should the family want a medical assessment of [MA's] capacity with regards to writing a will (or for other decision-making)' that they 'contact [him] for an earlier appointment otherwise [he] will make an appointment to review [MA] in six months'. 59 In a file note dated 16 May 2023 Dr SJ records that MA attended his rooms without a booked appointment 'quite agitated' and 'extremely dysphasic'. Dr SJ records that MA attended with 'bundles of $100 notes to pay me to redo her will immediately. She appeared to report her brother was in Florida and perhaps she did not want him involved in making the will and wanted me to assist with this'. Dr SJ states that from his 'interaction with [MA] today', he [would] very much doubt her ability to adequately communicate her wishes in creating a will'. Dr SJ notes that K was contacted to collect MA as her family had not been aware of her attendance. 60 In a further letter dated 1 September 2023 Dr SJ reports he reviewed MA in the presence of T and P. Dr SJ notes that he is pleased MA has been taken for dental care and that an Aged Care Assessment has been arranged to look at appropriate support services. T had arranged podiatry for MA's nail care. Extensive renovations to K's area of the home are reported and P and T are noted as wishing to have appropriate renovations made to MA's bathroom for her benefit and safety. 61 Dr SJ reports that the family did not want MA to undergo further cognitive or capacity assessments. MA is described as 'bright and -- 16 of 36 -- [2026] WASAT 91 Page 17 reactive ' but did not participate much in conversation. Dr SJ notes that MA 'is very vulnerable with respect to coercion or influence and her attitude, opinions and behaviour are likely to be different with different family members present'. 62 In an email dated 19 March 2026 in response to enquiries by the investigator seeking Dr SJ's opinion as to whether MA was capable of executing the 2023 EPA and EPG, Dr SJ responds: 'my best opinion would be strongly NO. Though my letter states I did not complete a thorough capacity assessment of her abilities as the family strongly declined my offers'. Dr SJ goes on to say 'I particularly found [MA's] Brother [P] to be acting very coercively in trying to get her to sign legal documents. I was told he lived in New Zealand and had a "legal background". I felt his conduct was inappropriate and very coercive given her dementia. There was very strong family conflict between her son [K] her brother [P] and her daughter [T]. [MA's] estate and the Estate of her late husband seemed to be the major issue. Her children could not work well together despite trying to mediate their differences in opinion on what was best for [MA]'. First hearing 63 In the first hearing P said he did not dispute19 K's statements regarding the equalisation payment or the proposed house sale. P agreed that once MA entered residential care after a 'grace period, he required K pay to T $500 per week to T's bank account which P calculated as half the rental value of the house property'.20 P's view was that K was receiving an unequal benefit by living in MA's property rent free. P said that MA had always wanted her children to be treated equally21 '50/50' which he said was confirmed in the December 2022 deed. 64 P said that both MA's children should derive a benefit from her estate prior to her death. P confirmed that both K and T are the intended beneficiaries of the deceased estate of MA. P saw no difficulty with the equalisation payment being made to T rather than to MA. He said there would be no point as if the payment was made to MA 'who would give it back to T'.22 19 ts 12, 30 March 2026. 20 ts 12, 30 March 2026. 21 ts 18, 30 March 2026. 22 ts 12, 30 March 2026. -- 17 of 36 -- [2026] WASAT 91 Page 18 65 When asked how K and T had been treated equally in the past, P replied that MA's request 'was really more going forward'.23 T confirmed that until P's intervention MA had not paid her travel costs to visit from Queensland. T speculated that P may have discussed this with MA and that since MA had bought K a car that she could pay T's air fares from Queensland.24 66 P agreed with K's assertions that he had initiated the sale of the house when K ceased the equalisation payments to T in January 2026. P said this was the primary reason for the house being sold. He said that the other reason was the house was not being maintained.25 67 P said there had been inadequate maintenance of the grounds putting the property at great fire risk. P acknowledged '[w]e did undertake a major clean up, principally conducted by [K], but, unfortunately, it was a one -off thing and it wasn't continued with.26 P confirmed that he had not inspected the property himself, but that T had done so. T said 'it had probably been cleaned up now' but when she saw the property in December/January 'the guttering needed doing. She described the property as 'a semi-rural property with no fish in the fishpond, building matter and debris, leaves everywhere'. She said at the time she was there it 'just seemed dirty and there were leaves everywhere and rodent poo'.27 68 In his submissions, K provided copies of text messages sent to P including photographs of the clean-up of the property. Some of the photographs submitted show MA outside at the property but it is not possible to see the state of the property in any detail. 69 In the hearing when asked about the proposed sale of her house MA said, 'I said No'. When asked about K living in her property MA said, 'It's all right'.'28 70 The 2023 EPA and 2023 EPG were made according to P when K would not provide a copy of the 2022 powers to T.29 P said, '[i]t came intolerable that we were always being sabotaged by [K]'s wishes for 23 ts 19, 30 March 2026. 24 ts 41, 6 May 2026. 25 ts 16, 30 March 2026. 26 ts 316, 30 March 2026. 27 ts 25, 30 March 2026. 28 ts 26, 30 March 2026. 29 ts 40, 30 March 2026. -- 18 of 36 -- [2026] WASAT 91 Page 19 control of his mother in a situation where she was never free to express herself or what she wanted for fear of retribution'.30 71 P said he was familiar with the role of attorney as he had acted in this role in the past and as executor of deceased estates. P said that he has a background in banking and finance but is not a legal practitioner and had not presented himself as such. P agreed in the first hearing to provide a copy of MA's will by email to the investigator during the adjournment31 but has not done so. 72 P said that the 2023 EPA and 2023 EPG were prepared by MA's solicitor on P's instructions. P confirmed that the solicitor had not seen MA or interviewed her and that it was he who had provided the instructions to the solicitor and arranged the execution of the documents.32 73 P would not confirm how the instructions were given or the name of the solicitor. P later said he had sought advice from that same solicitor about the Tribunal proceedings in the weeks prior to the hearing.33 Given this I found it implausible that he was unable to provide any detail of the solicitor when asked about the preparation of the 2023 EPA and 2023 EPG. 74 In her evidence in the hearing Ms H said that she had known MA since they were 15 years of age. Ms H said MA liked to go to her home and they met up there quite often.34 'Sometimes we have lunch together and just sit and chat and watch old photos and slides they've got of when we were young'.35 She said they would go to the house 'probably twice a month'. We meet up there for a couple of hours and then [MA] has to go back [to the residential aged care facility] for her tea'. 75 P said he had not known that MA visited her house. However, this did not change his assessment of the need to sell the house, saying '[i]t's not a shrine'.36 30 ts 40, 30 March 2026. 31 ts 23, 30 March 2026. 32 ts 41, 30 March 2026. 33 ts 45, 30 March 2026. 34 ts 27, 30 March 2026. 35 ts 28, 30 March 2026. 36 ts 29, 30 March 2026. -- 19 of 36 -- [2026] WASAT 91 Page 20 Final hearing 76 In the final hearing T said that she had known before MA's dementia diagnosis, that is, before 2022, that 'there was something wrong with her' but that K disregarded her concerns.37 77 Around 2022 T said that MA would call her in Queensland and be 'very abstract and fragmented about cash going missing and in the next phone call [MA] said it reappeared again'.38 T said that MA said to her that K was hovering around her and wanting to know who she was speaking to on the telephone. T said that both MA's and K's behaviour was getting 'meaner' towards her and T said she felt that there was 'an influence' over MA.39 78 T said that at that time she and K were communicating and that K would send her pictures [of MA] and she was assisting from afar giving her opinions on MA's needs and assisting with research about MA's dementia.40 She said she was visiting MA regularly.41 T said she was getting correspondence (presumably from K) 'about bruises and bee stings … and [MA] was having falls and whatnot' and 'so the house wasn't up to par for [MA].42 79 T said the way K was looking after MA was 'performative'.43 80 T said that K had shared his vulnerabilities about not wanting to be alone and that this perhaps led to his resistance to P's involvement.44 81 In terms of MA's current residential aged care accommodation T said that MA had visited the facility had immediately liked it and was happy there. MA had connected with others and was in a daily routine. T said MA was content.45 In a further lengthy submission in response to the primary carer reports K asserts that MA is 'unengaged and isolated in the clinical setting' as opposed to her presentation at her home.46 37 ts 11, 6 May 2026. 38 ts 7, 6 May 2026. 39 ts 8, 6 May 2026. 40ts 9, 6 May 2026. 41 T said she visited twice per year; ts 25, 30 March 2026. 42 ts 8, 6 May 2026. 43 ts 8, 6 May 2026. 44 ts 10, 6 May 2026. 45 ts 13, 6 May 2026. 46 Submission filed by K dated 8 April 2026. -- 20 of 36 -- [2026] WASAT 91 Page 21 82 T said that she had not spoken to K since the previous hearing. When asked if she communicated with K. She said '[n]o, I don't involve him if I really have to, but I had not really needed to involve him too much. The care has been very consistent'. T said she was quite close to the staff of the facility and was contacted fairly regularly by them. She said the facility policy was that there was one primary contact, which was her, so that the staff did not give K updates about MA which she received.47 T said she had become the primary contact from MA's entry into care assisted by P. When asked if P was contacted by the facility about MA, T said she did not think he was.48 83 In terms of the management of MA's affairs T said she was the 'middleman'.49 She said staff of the facility would contact her and she would then forward any invoice to P who would approve the expenditure and then T would undertake the logistics, for example for the provision of glasses for MA. K said he had alerted to need for new glasses for MA. 84 T said she was neutral about whether MA's home needed to be sold.50 85 K said he was disheartened to hear how his sister had downplayed the care he had provided MA.51 He said that he had never been valued for what he had done.52 When somebody is in my position and my mum had stopped driving by recommendation of the doctor. So I was doing all of the driving, getting all her groceries, washing her clothes, cooking her meals, paying her bills, we sat down and discussed her finances, I took her to the doctors, I helped instal the landline next to her bed and put the phone numbers on it, so I could preserve and expand her world and get in touch with friends fast. I was trying to do everything. I wasn't a son living with Mum. I was extensively and thoroughly caring for Mum across a full sweep of affairs. I feel that has been completely downplayed as coercive, controlling, derogatory to sort of imply that I just happen to be living with her[.]53 47 ts 13, 6 May 2026. 48 ts 13, 6 May 2026. 49 ts 26, 6 May 2026. 50 ts 15, 6 May 2026. 51 ts 30, 6 May 2026. 52 ts 42, 6 May 2026. 53 ts 8, 6 May 2026. -- 21 of 36 -- [2026] WASAT 91 Page 22 86 K said his proposal that he be responsible for everything and meet all the cost of the property. He said managing a property of the size of MA's property was considerable and that he would like to be valued for that.54 87 Ms H confirmed in the final hearing that she would visit MA at her home approximately fortnightly, usually on a Tuesday where they would have fish and chips. She said that K picked MA up from the facility and sometimes other members of H's family were also included in the visits.55 I accept Ms H's evidence regarding MA's visits to her home. 88 Ms H said that MA had been consistent about her wish that her house is not sold. She said she had asked MA about this 'quite a few times' since she became aware, from K, of P's proposal to sell the house.56 Is MA a person for who guardianship and administration orders may be made 89 The professional opinion is that MA has a diagnosis of frontotemporal dementia made by Dr SJ, who is a geriatrician, in 2022. The recent cognitive testing reportedly demonstrates MA experiences severe cognitive impairment. When interviewed by the investigator in February 2026 MA presented as confused and could not remember the name of her daughter and could provide no information about her estate or how it was managed. 90 Although K says that the MMSE score of 4/30 is not reflective of MA's functioning in her own home,57 none of the parties challenge the professional opinion that MA lacks capacity to manage her own affairs or make reasonable judgments about her person and her estate. 91 I am satisfied that the presumption that MA is capable of making reasonable judgments about her person, her estate and managing her affairs is displaced. 92 Pursuant to s 64 I am satisfied that MA has a diagnosis of dementia which is a mental disability58 defined in the GA Act. I am satisfied that because of the cognitive impairment she experiences 54 ts 42, 6 May 2026. 55 ts 18, 6 May 2026. 56 ts 35, 6 May 2026. 57 Submission of K filed 5 May 2026. 58 As defined in s 3 of the GA Act. -- 22 of 36 -- [2026] WASAT 91 Page 23 because of that diagnosis MA is unable by reason of her dementia to make reasonable judgements about any or all of her estate. 93 I am also satisfied pursuant to s 43 of the GA Act that MA is incapable of looking after her own health and safety, unable to make reasonable judgments about her person and is in need of oversight and care in the interests of her own health and safety. I accept the report of the Facility Manager of MA's dependence on others to make decisions about her personal matters and that MA has very low insight into her severe cognitive impairments. 94 I am satisfied that MA is a person for whom guardianship and administration orders may be made. For the reasons that follow I am satisfied that she is in need of those orders. Need for orders 95 Even when a person the subject of an application for the appointment of a guardian and an administrator lacks capacity in the relevant spheres of decision-making, before orders may be made for that person there must be a need for those orders. If there is a less restrictive alternative to meet the decision-making needs of that person orders should not be made. Validly executed enduring powers of attorney and guardianship, which are operating effectively to meet the needs of the proposed represented person may, in the normal course, be regarded as less restrictive alternatives to administration or guardianship orders. The enduring powers executed by MA 96 Both T and K confirm that MA made an EPA and an EPG in 2022 (2022 EPA and EPG) appointing them jointly and severally as attorneys and jointly as enduring guardians. However, on the evidence from K, T and P it seems they did not operate effectively due to distrust between T and K. 97 According to the December 2022 deed all the copies of the 2022 EPA and EPG were given to P. In the first hearing P said that the 2022 EPA was revoked by MA.59 The investigator reports that when she queried T and K about this, they did not believe that a 59 ts 40, 30 March 2026. -- 23 of 36 -- [2026] WASAT 91 Page 24 formal revocation of the 2022 EPA had occurred.60 K does not have a copy of the 2022 EPA. T says she has never had one. 98 The 2023 EPA of MA dated 8 September 2023 appoints P as sole attorney without restriction. As noted, it is styled to continue in force notwithstanding the subsequent incapacity of the donor. It was witnessed by MA's long-term accountant61 and T. 99 The 2023 EPG appoints P as sole enduring guardian. Efforts to obtain a complete copy of the 2023 EPG from P, including the acceptance page, were unsuccessful. 100 P argues that MA expressed her wishes in the appointment of him as her attorney and enduring guardian in 2023.62 101 T supports P's assertion that the 2023 enduring powers reflect MA's wishes. In her written submission she says that MA actively sought assistance from P with her financial affairs. T confirmed this in the final hearing and argued that the continued involvement of P in the management of MA's affairs would honour those wishes. 102 K says that MA regretted the 2023 powers and tried to have them returned. K says that MA expressed this to both him and to T.63 103 The differing reported wishes of MA may reflect the concerns expressed by Dr SJ in 2023 that MA was in his opinion very vulnerable to coercion or influence and her attitudes, opinions and behaviour were likely to be different with different family members. 104 The medical evidence indicates that at the time of the execution of the 2023 EPA and 2023 EPG, MA had an established diagnosis of frontotemporal dementia made by Dr SJ in October 2022. In his letter to Dr O dated 1 September 2023, Dr SJ reports he has reviewed MA in the presence of T and P and that 'the family did not want [MA] to undergo further cognitive or capacity assessments today'. Despite this, Dr O reports that she had a consultation with MA on 7 September 2023 which was for the purpose of assessing MA's capacity to make an EPA and EPG. This consultation was likely initiated by T and or P who attended with MA. 60 Investigator's report. 61 ts 13, 30 March 2026. 62 ts 8, 30 March 2026. 63 ts 29, 6 May 2026. -- 24 of 36 -- [2026] WASAT 91 Page 25 105 In the first hearing T confirmed she attended the consultation with Dr O. P was less clear about whether he had attended that consultation, but I am satisfied that he did. Both attended the appointment with Dr SJ on 1 September 2023 and reportedly declined assessment of MA's capacity.64 106 As can be seen in her letter to the investigator, Dr O states that MA demonstrated significant difficulty with information retention and was unable to participate meaningfully in an assessment of her decision-making capacity on 7 September 2023. The 2023 EPA and 2023 EPG were executed the following day on 8 September 2023. 107 When asked by the investigator whether in his opinion MA had the requisite capacity to make the 2023 EPA and 2023 EPG, Dr SJ's unequivocal opinion was that MA was not capable. Dr SJ states that he had not undertaken a thorough capacity assessment but his opinion, which I accept is an expert one, was no doubt based on his clinical assessments of MA. 108 In the first hearing when asked directly about this P said he did not have concerns regarding MA's capacity at the time of the execution of the documents. P said he had been speaking to MA about the need for a will and EPA and EPG since her husband's death in 2017.65 This does not address the question of MA's capacity at the time these instruments were made in 2023 or the failure to take up the referral to Dr SJ made by Dr O for a specialist assessment of MA's capacity prior to the execution. Notably MA made the 2022 EPA and 2022 EPG in the period to which P referred. 109 P's evidence was that he gave instructions to a solicitor regarding the 2023 EPA and 2023 EPG, but MA was not interviewed by the solicitor. P said there was no need for this to happen.66 110 A solicitor undertaking the preparation of an EPA (or other documents on behalf of a client) is under a professional obligation and a duty to the donor of the power to ensure capacity and voluntariness of an EPA.67 111 In her report, the investigator, referring to the opinion of Dr SJ and the inability of Dr O to assess MA because of her presentation, 64 P confirmed he had attended one of two appointments with Dr SJ. 65 ts 20, 30 March 2026. 66 ts 41, 30 March 2026. 67 Legal Services Complaints Committee and Hardie [2025] WASAT 50. -- 25 of 36 -- [2026] WASAT 91 Page 26 questions whether MA had the requisite cognitive capacity to execute the 2023 EPA and 2023 EPG. 112 The investigator argues that both the 2023 EPA and the 2022 EPA which appoints T and K jointly and severally should be revoked. 113 The GA Act requires that the donor of an EPA and an appointor of an EPG be of 'full legal capacity.68 There is a presumption of capacity of a person to execute an EPA.69 However, the cognitive capacity to execute an enduring power of attorney has been considered to require a higher cognitive ability and standard of capacity than that required for making a will.70 I accept the submission of the investigator given the opinion of Dr SJ and the circumstances surrounding the execution of the 2023 EPA and 2023 EPG. That MA did not give direct instructions to a solicitor to draw those documents and the recommended specialist capacity assessment prior to execution was declined by P and T reinforces my view of MA's lack of cognitive capacity at that time. 114 Having regard to the evidence to which I have referred I am satisfied and I find that it is more likely than not that MA was not of full legal capacity when she executed the 2023 EPA and 2023 EPG on 8 September 2023 as is required by s 104(1a) and s 110B of GA Act respectively to create those instruments. 115 As provided for in s 4(7) of the GA Act I must ascertain MA's wishes to the extent possible as expressed at the time or gathered from her past actions. While an EPA or EPG may not be effectively created because of lack of compliance with the formalities set out in the GA Act, they can provide guidance as to the wishes of a person for the conduct of their affairs. 116 Although MA made the enduring documents, given the degree of cognitive impairment experienced by MA identified by Dr O prior to their execution and the conflicting evidence about MA's subsequently expressed wishes together with Dr SJ's comments about her vulnerability, I am not satisfied that I could be confident that the 2023 EPA and EPG did in fact reflect the durable wishes of MA. 117 Even if I am incorrect about the lack of capacity of MA to execute these instruments, I am not satisfied that it is in the best interests of MA 68 GA Act, s 104(1a) and s 110B. 69 Szozda v Szozda [2010] NSWSC 804. 70 Re HAA [2007] QGAAT 6 at 34 cited with approval in Szozda v Szozda and Legal Services and Complaints Committee and Hardie [2025] WASAT 50. -- 26 of 36 -- [2026] WASAT 91 Page 27 to rely on the 2023 EPA and 2023 EPG as less restrictive alternatives for the management of her affairs. 2023 EPA 118 In respect of the operation of 2023 EPA, I am not satisfied that P has acted with reasonable diligence to protect the interests of MA as the donee of an EPA is required to do pursuant to s 107 of the GA Act.71 119 The diversion of the payments made by K (for his use of MA's house and for the purchase of MA's car) to T as directed by P is not consistent with P's obligation to act with reasonable diligence to protect the interests of the donor72 of the 2023 EPA being MA. It is not the role of an attorney to protect the interest of other persons to the detriment of the donor. 120 The primary reason P has given for the sale of the property is to divide the proceeds of sale of MA's property between K and T in MA's lifetime thereby diminishing her estate.73 121 P's decisions appear to be focussed on what he sees as an obligation to treat T equally with K as P says MA has provided for in her will. P fails to take account of MA's wishes that her house is not sold and her reported present use of the property to visit and spend time there with her friend, even after he became aware of it. There is no present financial need of MA that would require the sale of her house. 122 In respect of MA's will, in the first hearing P said that he had drafted the will of MA.74 In her evidence in the final hearing T said that she 'had set up everything on her laptop' and P wrote the will.75 K said the will was modelled on the will of their late father which had been prepared by a solicitor.76 123 The investigator reports in some detail the recollections of Ms H regarding the execution of MA's will.77 Ms H says that she and her husband were asked by P to witness MA's will but had not in fact 71 Section 107 of the GA Act provides certain obligations on an attorney one of which is to act with reasonable diligence to protect the interest of the donor. 72 GA Act, s 107. 73 ts 30, 30 March 2026. 74 ts 9, 30 March 2026. 75 ts 24, 6 May 2026. 76 ts 23, 6 May 2026. It is not known whether MA made a will at the same time with the same solicitor as is common practice. 77 Report of the investigator dated 25 March 2026, page 9. -- 27 of 36 -- [2026] WASAT 91 Page 28 witnessed MA signing. Ms H confirmed this in the final hearing saying that MA had been present, but she had not seen her sign.78 She said she had signed as she trusted P. 124 P said that MA's will largely provides for an equal division of the estate between T and K.79 This division is referred to in the 2022 Deed. Since P has failed to provide a copy of the will as he was ordered to do, the specific terms of the will are unknown.80 K does not have a copy81 and says that T was directed by P to delete the draft of the will created on her laptop.82 125 It is uncontroversial that a mother of two children would want to treat them equally in the division of her estate on her death. However, it is not P's role as donee of MA's enduring power of attorney to bring forward the distribution of MA's estate or adjust any inequality he sees in the use of MA's resources by diverting to T a rental income or other payments to which MA is entitled. 126 The 2023 EPA makes no provision for gifts to be made. 127 In her submission the investigator reviews previous decisions of the Tribunal83 regarding the question of whether an attorney could make gifts from the estate of an incapable donor and concludes that the position taken has been somewhat opaque. 128 More recently in a decision of the Full Tribunal in RK [2022] WASAT 112 when considering the proper operation of an enduring power of attorney for an incapable donor, the Tribunal said that an attorney is not entitled to make gifts from the estate of the donor.84 As the investigator and the trust manager suggest, MA should receive a rent for her property from K.85 K indicated in the final hearing that he would bear all property costs.86 78 ts 25, 6 May 2026. 79 ts 30, 6 May 2026. 80 P said that the distribution is slightly in favour of K ts 32, 30 March 2026. 81 ts 23, 6 May 2026. 82 ts 36, 6 May 2026. 83 DW and JM [2006] WASAT 366 per M Mansveld; DD [2007] WASAT 192 per M Child and a decision of QCAT CMB [2004] QGAAT 20. 84 RK [2022] WASAT 112 at [158] per Pritchard P, SM Marillier and M Child. 85 Section 71(5) of the GA Act provides that an administrator may be authorised to make a gift from the estate of the represented person which may include foregoing a market rent for a property of the represented person. 86 ts 42, 6 May 2026. -- 28 of 36 -- [2026] WASAT 91 Page 29 129 P says he was familiar with the role of an attorney and that of an executor of a deceased estate. Despite this he could see no difficulty with the diversion of MA's funds to T.87 P did not appear to appreciate that the sale of MA's house and the distribution of the proceeds of sale to T and K prior to MA's death would be both inconsistent with his obligations as the donee of her 2023 EPA and would defeat her testamentary intentions as expressed in the will P says he prepared and in which he is the appointed executor. 130 It is the duty of an appointed executor to distribute a deceased estate according to the terms of the will of the deceased.88 131 The evidence of Ms H regarding the witnessing of the 2022 will of MA raises obvious issues for its validity but that is not the jurisdiction of the Tribunal. As it is, it is said there is a will of MA in existence and all MA's family members appear to agree on its terms. P said in the hearing that it was 'highly likely' that MA's will was in his possession.89 132 As the trust manager submits, the will of a represented person is guidance to an appointed administrator in the lifetime of a testatrix. As the donee of MA's 2023 EPA, with knowledge of the terms of her will, P should also avoid exercising his authority to adeem a specific bequest where there was no financial need of the donor.90 P's insistence on the sale of MA's house in her lifetime either to punish K or to advance the interests of T failed in my judgment to meet his obligations to MA. 133 Respecting the previously expressed wishes in the will of an incapable person was considered in a decision of the Tribunal ISH [2021] WASAT 169 at [29], where the Senior Member said:91 … what can properly be done by an administrator should be done for the testamentary intentions of the represented person to be fulfilled. Indeed, in my view, there is a positive obligation upon an administrator, if he or she is aware of or becomes aware of the terms of a will, to turn his or her mind to the matter when exercising judgment about how to appropriately administer a person's affairs in his or her best interests during his or her lifetime. 87 ts 12, 30 March 2026. 88 See for example Union Bank of Australia v Harrison, Jones & Devlin Ltd [1910] HCA 44; (1910) 11 CLR 492. 89 ts 10, 30 March 2026. 90 Case law cited in Dal Pont Powers of Attorney, 4th Edition at 9.39. 91 Per Le Miere SM, ISH [2021] WASAT 169 at [29]. -- 29 of 36 -- [2026] WASAT 91 Page 30 Role of the Tribunal to supervise enduring powers 134 As was identified in KS [2008] WASAT 29, the Tribunal has under the GA Act a general supervisory jurisdiction in respect of the conduct of the donee of enduring powers of attorney.92 The Tribunal also has jurisdiction to intervene in enduring powers of guardianship.93 135 As P has not filed any submissions, little is known about his conduct of the estate other than his evidence in the first hearing that he operated MA's bank accounts and has banking records. P did not submit any records of any expenditure made on behalf of MA. 136 P was critical of the role of the Tribunal and has not taken up the opportunity provided by the adjournment to make any written submission regarding his conduct of MA's affairs under the 2023 EPA and 2023 EPG. P has not complied with any orders of the Tribunal, nor has he provided the documents which he had been ordered to file (and to which he had agreed in the first hearing to provide to the investigator by email.) P has failed to cooperate with the Tribunal even after special arrangements were made for him to obtain access and the provision of assistance by the investigator. 137 I accept K's assertion supported by the investigator that there is a lack of transparency demonstrated by P in the conduct of MA's affairs. P's insistence on the confidentiality of the proposed sale of the property, even from MA, reinforces this. 2023 EPG 138 The 2023 EPG appoints P as sole enduring guardian. From the material before me it appears that all three members of MA's family have in the past at least played some role in decision-making for MA's care. The historical medical reports indicate this. 139 The registered nurse's report refers to P as involved in a discussion regarding goals of care for MA in 2024 when she entered residential care. T is noted to have confirmed the details in 2026. K is not referred to in the reports of the direct service providers. K says he has been excluded from care decisions for MA. 140 K's submission argues he has played a significant role in MA's life prior to her entry into residential care. T is critical of K's role in the 92 Cited in EW [2010] WASAT 91 at [17] KS [2008] WASAT 29 per Barker J at [26] and [47]. 93 Part 9A of the GA Act. -- 30 of 36 -- [2026] WASAT 91 Page 31 care of MA prior to MA's entry into residential care which T says she facilitated against K's wishes. 141 The conflict between T and K is longstanding. As early as 2023 Dr SJ refers to family disharmony and 'longstanding family relationship problems'. 142 Family conflicts about the appropriate time for a person to enter residential aged care are common in this jurisdiction. The narratives provided by K and T regarding the circumstances of MA prior to her admission to residential care are completely at odds. It is impossible and unnecessary in the present circumstances of MA to attempt to reconcile these opposing views. 143 In the final hearing T described her interactions with the care staff who regularly contacted her but not K. T is now recorded as the responsible person for the care plan despite living in Queensland. T says she does not involve K in care decisions. From Ms H's evidence it is said that K visits MA regularly and supports the maintenance of the supportive relationship MA has with Ms H by taking MA to her house where they spend time together. 144 P said he was not aware of MA's regular visits to her home and did not appear to place any value on this activity for MA. Even after being told of the visits and MA's expressed wishes opposing the sale of her house P maintained that MA's house should be sold. 145 P did not provide the statement sought from him prior to the hearing regarding the decisions made for MA's as her enduring guardian. From T's evidence P does not now play any direct role in care decisions for MA. It appears that care and personal decision-making for MA has been delegated to T. 146 For the reasons I have given I am not satisfied that MA capably created the 2023 EPG but if I am wrong about that, the purported 2023 EPG which appoints P as sole enduring guardian is not operating according to its terms. 147 The investigator said the facility staff do not communicate with P and cannot not contact P overseas by telephone. The investigator submits that there is conflict and mistrust in the family. Although she reported there had been no concerns expressed by the facility staff about how T had responded to MA's needs no major decisions had been made. The investigator said that should major decisions be required for -- 31 of 36 -- [2026] WASAT 91 Page 32 MA there may be concerns about the level of communication between T and K. While T (and P) have been critical of the care K provided to MA in the past, as MA is now described as settled in the Facility, I cannot see the justification for the exclusion of K from information about MA's care, especially if he spends time with MA as he asserts. Who should be appointed and the scope and duration of orders 148 The investigator recommended the Public Advocate be appointed as guardian for treatment and restrictive practices as MA at times tries to leave the facility.94 149 When asked her views as to the determination of the applications T said that it would be ideal if P still had a role to play (in the management of MA's affairs) to honour MA's initial wishes but also said that a 'neutral party is for the best'.95 150 K said he would prefer to be MA's guardian and would be happy to do it with T if she were willing. He did not support T's appointment as sole guardian for treatment decisions. He said that it was difficult to separate his uncle and his sister as they appeared to be operating together.96 Having regard to comments of T reported by the investigator and K's comments in the hearing, I was not satisfied that a joint appointment of T and K as MA's guardians would be effective given the lack of trust and communication between them. 151 Ideally decision-making for MA's health and care needs would be made by her family members, but I was not satisfied that any are suitable for appointment as MA's guardian. The relationships are fractured and communication is limited or non-existent. K too has a potential conflict of interest as living in the property of MA and is strongly motivated to protect his interests in this regard. I am satisfied that K's appointment as MA's guardian is therefore precluded by operation of s 44(1)(b) of the GA Act.97 152 I was satisfied that there was no one else suitable for appointment as MA's guardian and so appointed the Public Advocate as MA's limited guardian for functions to make decisions regarding treatment, services restrictive practices as recommended by the investigator. I was 94 ts 38, 6 May 2026. 95 ts 17, 6 May 2026. 96 ts 34, 6 May 2026. 97 A proposed guardian may not have a conflict or a potential conflict with those of the represented person. -- 32 of 36 -- [2026] WASAT 91 Page 33 satisfied that these limited orders were sufficient to meet MA's decision-making needs. 153 The 2023 EPG was revoked. For the reasons given above I was not satisfied that 2023 EPG was created in compliance with the GA Act and revoked it. I revoked the 2022 EPG for the reasons given as it could not operate to meet the decision-making needs of MA. 154 K proposed himself as administrator but said that the Public Trustee would be appropriate if given the directions proposed by him.98 The directions proposed included the disclosure of MA's will to her beneficiaries, the neutral safekeeping of MA's will and the return of her identity documents to her home address by P. 155 P was ordered to provide a copy of the 2022 will of MA in orders made on 23 March 2026 but did not comply with that order. The terms of that order were that the will would not be inspected by anyone other than the investigator and the Public Trustee who had been appointed under the s 65 order. As I have appointed the Public Trustee as the administrator it is appropriate that all MA's personal documents are held by the administrator of her estate. Beneficiaries have no entitlement to see the will of the testatrix during her lifetime. 156 As MA has sufficient financial resources to meet her own needs, and in line with MA's previous conduct of allowing K to live in her house I authorised the Public Trustee to forgo a market rental on the property of MA while K lives there on the basis that he meets all outgoings on the property. Since MA has sufficient funds to meet her own needs and it is her best interests that her relationship with her daughter is maintained, the Public Trustee was authorised to meet T's travel costs up to $5,000 per annum to enable her to visit MA. 157 Given the progressive nature of MA's condition and the apparently entrenched conflict within the family I was satisfied that the orders should be made for the longest terms possible, that being for review by 2031. Orders GAA 434/2026 The Tribunal makes the following orders: 98 Submitted by K on 19 February 2026. -- 33 of 36 -- [2026] WASAT 91 Page 34 1. The Tribunal declares that the represented person, [MA] is: (a) unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of her estate; (b) in need of an administrator of her estate; (c) incapable of looking after her own health and safety; (d) unable to make reasonable judgments in respect of matters relating to her person; (e) in need of oversight, care or control in the interests of her own health and safety; and (f) in need of a guardian. Administration 2. The order made on 27 January 2026 pursuant to s 65 of the Guardianship and Administration Act 1990 (WA) is revoked. 3. The Public Trustee of 553 Hay Street, Perth, Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA). 4. The enduring power of attorney dated 28 September 2023 by which the represented person appointed [P] as her attorney is revoked. 5. The enduring power of attorney made by the represented person in or around September 2022 by which she appointed [K] and [T] as her attorneys is revoked. 6. The administrator is authorised to forgo a market rent for the property of the represented person at [address] Western Australia while her son lives there on the basis that he meets all outgoings on the property including but not limited to rates, insurance electricity and day to day maintenance. 7. The administrator is authorised to expend up to a total amount of $5,000 per annum on behalf of the represented person in the -- 34 of 36 -- [2026] WASAT 91 Page 35 payment of travel costs of her daughter [T] to visit the represented person. 8. The administration order is to be reviewed before 5 May 2031. Guardianship 9. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions: (a) to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA); (b) to determine the services to which the represented person should have access; and (c) to decide whether to give or withhold consent to the use of any restrictive practices for the represented person proposed from time to time under the Aged Care Act 2024 (Cth) or subsidiary legislation. 10. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate. 11. It is declared that the represented person is not capable of making judgments for the purpose of complying with the provisions of the Electoral Act 1907 (WA) relating to compulsory voting. 12. The guardianship order is to be reviewed before 5 May 2031. GAA 487/2026 In respect of the enduring power of guardianship made by the represented person on 8 September 2023 by which she appointed [P] as enduring guardian: The Tribunal makes the following orders: 1. The enduring power of guardianship is revoked. -- 35 of 36 -- [2026] WASAT 91 Page 36 In respect of the enduring power of guardianship made by the represented person in or around September 2022 by which she appointed [K] and [T] as her enduring guardians The Tribunal makes the following orders: 2. The enduring power of guardianship is revoked. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MS F CHILD, MEMBER 4 AUGUST 2026 -- 36 of 36 --