AS [2026] WASAT 93

[2026] WASAT 93 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : AS [2026] WASAT 93 MEMBER : MS M HIPWORTH, MEMBER HEARD : 18 DECEMBER 2025 AND 16 MARCH 2026 DELIVERED : 7 AUGUST 2026 FILE NO/S : GAA 5291 of 2025 GAA 7169 of 2025 GAA 7166 of 2025 AS Represented Person KS Applicant MB Third Party Catchwords: Guardianship - administration - Enduring power of guardianship - Enduring power of attorney - Reasonable diligence - Protect the interests of the donor - Vulnerability - Conflict of interest - Breach of fiduciary duty - Independent legal advice required to give fully informed consent Legislation: Guardianship and Administration Act 1990 (WA), s 4, s 40, s 43(1)(a), s 43(1)(b), s 64(1)(a), s 107, s 107(1), s 109(1)(c), s 110H(a), s 110N Property Law Act 1969 (WA), s 34 -- 1 of 34 -- [2026] WASAT 93 Page 2 State Administrative Tribunal Act 2004 (WA), s 32 Result: Application for guardianship dismissed Application to revoke or vary enduring power of guardianship dismissed Enduring power of attorney revoked Public Trustee appointed for 2 years Category: B Representation: Counsel: Represented Person : In Person Applicant : Mr T Camp Third Party : Mr E Tan Solicitors: Represented Person : N/A Applicant : Butcher Paull and Calder Third Party : Robertson Hayles Lawyers Case(s) referred to in decision(s): AI and OF [2008] WASAT 87 DW and JM [2006] WASAT 366 EW, Re (2010) 72 SR (WA) 49 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 KS [2008] WASAT 29 Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449 Or [2024] WASAT 2 SAL and JGL [2016] WASAT 63 SMM [2020] WASAT 85 Soia v Bennett, [2014] WASCA 27; (2014) 46 WAR 301 -- 2 of 34 -- [2026] WASAT 93 Page 3 REASONS FOR DECISION OF THE TRIBUNAL: Background 1 AS is 75 years old and lives with a number of chronic medical conditions. He has resided in full-time residential aged care since March 2024. 2 AS has two sisters, MB and KS. KS has applied to the Tribunal for the appointment of a guardian and administrator for AS1 and for the revocation or variation of the enduring Power of Attorney (EPA) and Enduring Power of Guardianship (EPG) by which AS appointed MB as his attorney and enduring guardian.2 3 As a seven-year-old boy in 1957, AS suffered a traumatic brain injury and has lived with a mild cognitive impairment since that time. He received specialised schooling, though went on to complete an apprenticeship and work in open employment. 4 AS has had a relationship with both of his sisters throughout his life, though MB and KS' relationship is very strained. KS has been estranged from her sister for 30 years, throughout which time she has refused to provide her contact details to AS, MB or MB's legal representative, Mr TN.3 KS has made previous applications to the Tribunal though for fear of her details being revealed, she has withdrawn those applications.4 She has stated that she regards the disclosure of her personal information as a matter of life and death.5 5 For several years, the sisters have used AS as an intermediary for their communications. 6 Throughout his life, AS has been supported by close family relationships, he was an accomplished ballroom dancer and enjoyed social engagement with theatre and church activities. After his father's passing in 1993, he continued to reside in the family home (family home) with his mother. 1 Pursuant to s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act). 2 Pursuant to s 109(1)(c) and s 110N of the GA Act, respectively. 3 Application to the Tribunal, 17 September 2025, Letter from Mr TN to the Tribunal, 16 December 2025. 4 Applications GAA 973/2024 and GAA 6257/2024. 5 Letter from KS to the Tribunal, 17 September 2025. -- 3 of 34 -- [2026] WASAT 93 Page 4 7 During his working life, with assistance from his parents, AS bought his own home (AS' home) which he rented out. 8 On 19 September 2006 and again on 17 April 2024, AS appointed MB as his enduring attorney. On 15 April 2013, and again on 17 April 2024, he appointed MB as his enduring guardian. MB has been AS' primary support person since about 2014.6 9 In 2006, the siblings' mother, Mrs TS, appointed MB as the executor of her will. Mrs TS passed away in January 2016, and probate was granted to MB in February 2016. Under the will, AS was granted a life interest in the family home, and upon AS' death, the property was to pass to MB and KS as tenants in common in equal shares. Under the will, another property in Perth, was given to the sisters as tenants in common in equal shares. And lastly, any remaining real or personal property was to be shared between the three siblings as tenants in common in equal shares 10 Since the grant of probate, KS has alleged that MB has not acted with propriety and has deprived KS of her entitlements under the will. 11 After his mother's passing in 2016, AS resided at the family home by himself for some 8 years. Due to his increasingly high care needs, following a hospital admission in 2024, he was discharged to permanent residential care at HC Aged Care. 12 In early 2024, during which time AS' general practitioner was of the view he retained capacity to make decisions, MB facilitated AS' move to aged care, sold AS' home in her capacity as his enduring attorney in order to pay a refundable accommodation deposit, and banked the balance of the sale proceeds in a term deposit in MB's name, on trust for AS.7 13 In 2024 and 2025, the sisters engaged in correspondence directly and through their solicitors, with KS accusing MB of depriving her of entitlements under their late mother's will and of making financial decisions for AS from which, MB would ultimately profit. They disagreed as to whether AS should return to live at the family home, 6 ACAT support plan comprehensive assessment, 16 February 2024. 7 Selling agency agreement between MB as power of attorney for KS and RE Agent dated 12 March 2024, filed with November 2024 application GAA 6257/2024. -- 4 of 34 -- [2026] WASAT 93 Page 5 whether it should be repaired and rented, or whether it should be sold in its current condition.8 9 14 In her evidence, MB maintains that she outlined for AS three options to deal with the family home, and that AS made a decision to sell it and distribute the proceeds of sale to both KS and MB.10 15 On or about 1 July 2025 MB and her legal representative, Mr TN, obtained capacity evidence from AS' doctor and formed the view that AS had capacity to renounce his life interest. AS thereafter orally renounced his life interest to Mr TN, and MB sold the family home on 22 July 2025.11 Settlement occurred on 21 September 202512 and the net proceeds of sale were distributed in equal shares to MB and KS, in accordance with a distribution statement prepared by Mr TN dated 3 October 2025.13 16 In her application to the Tribunal, KS alleges that MB has failed to care for AS's physical health and welfare and she alleges, that as AS's enduring attorney, MB should not have sold the family home and taken the proceeds of that sale. 17 MB in response, maintains she has always acted in AS' best interests, that she has been diligent in caring for AS, and has made well informed decisions about his health, welfare and accommodation needs for many years. 18 MB also maintains that she acted appropriately, and in accordance with her brother's instructions dealing with the family home. She submits that, in selling the property, she was acting solely in her capacity as the executor and trustee of her late mother's estate, rather than in her capacity AS' enduring attorney. Proceedings before the Tribunal 19 On 17 September 2025, KS initially applied, under s 40 of the Guardianship and Administration Act 1990 (WA) (GA Act), to have a guardian and administrator appointed for AS. On the first day of hearing on 18 December 2025, KS applied to widen the scope of her application, 8 Letters submitted by KS on the November 2024 application, GAA 6257/2024. 9 Letters attached to 17 September 2025 application: 17 September 2025 from KS, 21 June 2025 from KS, 12 July 2026 [sic] from KS and 21 June 2025 from MB. 10 MB information in relation to sale of (family home), pursuant to Tribunal order, filed 15 December 2025. 11 REIWA Contract signed by MB as seller, 22 July 2025. 12 Foreshore on Oxford Settlement Statement, 21 September 2025. 13 RHL Distribution Statement, 3 October 2025 - sale price of family home, deductions made and balance for distribution to MB and KS. -- 5 of 34 -- [2026] WASAT 93 Page 6 to revoke the EPA and the EPG that AS has in place, pursuant to s 109(1)(c) and s 110N of the GA Act respectively (the September 2025 application). 20 The September 2025 application was the third application KS had lodged since February 2024. She had previously made two earlier applications in 2024, each of which she withdrew shortly after filing. Although withdrawn, those applications were similar in substance to the September 2025 application. A brief description of each application follows. 21 On 26 February 2024, KS lodged an application to have herself appointed as AS' guardian and administrator, citing concerns about his health and welfare, stating he needed residential care and she wanted to be involved in making decisions for him.14 In a detailed letter attached to her application, KS set out background information and concerns she had about MB's actions in selling AS' home and her concerns about the condition and sale of the family home. 22 KS withdrew that application the day after it was lodged, stating she needed to seek legal advice 'one more time' before proceeding. 23 On 27 November 2024 KS lodged a similar application,15 citing concerns about AS' health and welfare, claiming that MB was making financial decisions about AS' assets and property to benefit herself. Several documents are attached to that application that speak to KS' concern about AS' living arrangements and her belief that MB was depriving KS, or intending to deprive KS, of property or money she believed she was entitled to under their mother's will. 24 Within a week of making the November application, KS sought to withdraw it, stating she was unable to give to the Tribunal any contact details to proceed with the matter. She stated after 30 years of keeping her details from her sister, she did not want to compromise this and would not allow her details to be provided to Mr TN, her sister's legal representative. Accordingly, leave was granted for the withdrawal and the application was withdrawn. 25 In the September 2025 application, AS was not represented, KS was represented by Mr CP of BP&C, and MB was represented by Mr TN of RHL. 14 GAA 973/2024. 15 GAA 6257/2024. -- 6 of 34 -- [2026] WASAT 93 Page 7 26 On the first day of hearing, the Public Advocate's Investigator was present, AS was in attendance, MB attended without Mr TN16 and KS was in attendance with Mr CP. 27 A preliminary issue at the commencement of the hearing concerned submissions filed by the applicant late on the evening before the first day of hearing, which sought to widen the scope of the application. 28 As the applicant sought to widen the scope of the application, I offered MB an adjournment to enable her to consult with Mr TN regarding the proposal. MB declined that opportunity and elected to proceed with the hearing of all three matters, without consulting with Mr TN. 29 AS himself stated he wanted the hearing to proceed, stating that he did not want KS to be appointed as joint attorney or guardian with MB. 30 The Public Advocate's Investigator had no objection to all three matters proceeding to be heard together. The additional matters were initiated, and I heard all three matters together thereafter. 31 The hearing continued to a second day, on 16 March 2026, on which occasion, AS was in attendance, MB attended and was represented by Mr TN, KS attended and was represented by Mr CP and the Public Advocate Investigator was also in attendance. On both hearing days oral evidence was given by AS, MB and KS. I reserved my decision at the conclusion of the proceedings on 16 March 2026. Each of the legal representatives spoke to their written submissions on the days they were in attendance. 32 Despite having concluded the hearing and reserving my decision on 16 March 2026, Mr TN wrote to the Tribunal on 18 March 2026 with further submissions, attaching nine lengthy and detailed letters from KS dated between November 2017 to August 2025. 33 Upon receipt of the correspondence, I made orders on 19 March 2026, for the parties to attend a directions hearing to hear from Mr TN as to the relevance of the submissions, and as to whether either party would make an application to reopen the hearing for further submissions and response by the applicant. 16 In his letter of 16 December 2025, Mr TN had advised the Tribunal that his attendance on 18 December 2026 was unnecessary, as he had only been retained to assist MB to prepare statements (relating to her role as EPA and EPG) ordered by the Tribunal prior to the hearing. -- 7 of 34 -- [2026] WASAT 93 Page 8 34 Due to the parties' unavailability that directions hearing was not heard until 20 May 2026, at which time Mr TN advised he did not wish to rely upon any material he submitted on 18 March 2026 and neither party sought to reopen the hearing. 35 Accordingly, I have not taken into account the material submitted by Mr TN on 18 March 2026. 36 I have however, taken into account the oral evidence of all parties given on 18 December 2025 and 16 March 2026 and I have also considered all of the documentary evidence on the Tribunal's file from the 2024 and 2025 applications, relevant parts of which I have referred to throughout my decision. 37 On 29 May 2026, Mr CP notified the Tribunal that BP&C ceased to act for KS in the proceedings. 38 On 11 June 2026, KS filed with the Tribunal a handwritten letter with several attachments. A number of those attachments, including the REIWA contract of sale for the family home, the property settlement statement, distribution statement prepared by RHL, and letter from RHL to KS dated 24 January 2018, are already on the Tribunal's file. In her letter, KS states that before a decision is made in these proceedings, she wishes to advise that she is prepared to give the money back that she received from the sale of the family home, to put into an investment account to generate an income for AS. 39 The Tribunal provided KS' letter to Mr TN, and MB was invited to respond if they wished, by close of business 29 July 2026. Further, on 22 July 2026, Mr CP lodged a notice advising, once again, that they represent KS in the proceedings. 40 On 29 July 2026, Mr TN filed a response - maintaining MB's position that she undertook the sale of the family home as executor of her late mother's estate; that KS' offer to return her half share of the proceeds of sale did not indicate MB has acted improperly, and, that it had always been MB's position that if KS changed her mind and returned her half of the money, MB would do likewise. 41 Further, MB submits that her ongoing appointment as AS' enduring guardian and attorney accords with the principles in the GA Act and both -- 8 of 34 -- [2026] WASAT 93 Page 9 the EPA and EPG can stand as less restrictive alternatives to the making of orders.17 42 For the reasons that follow, I have decided to dismiss the application to revoke the EPG and dismiss the application to appoint a guardian. I am satisfied that it is in AS' best interests to have MB continue to make decisions about his health and welfare and that the EPG can operate as a less restrictive alternative to the appointment of a guardian. 43 For the reasons that follow, I have decided to revoke the enduring power of attorney and appoint the Public Trustee as AS' plenary administrator for a period of 2 years. Principles to be observed 44 In making a decision about whether AS needs to have a guardian or administrator appointed, I must have regard to the principles set out in s 4 of the GA Act which provide that: (a) My primary concern must be AS' best interests. (b) I must presume that AS is capable of making judgments about his personal and financial affairs unless I am satisfied on the evidence that he is not capable. (c) I must not make a guardianship or administration order if AS' needs could be met by other means less restrictive on his freedom of decision and action. I must examine whether the EPG and EPA that AS most recently executed in 2024 are operating in his best interests, in order to determine whether they can stand as less restrictive alternatives. (d) If I find they cannot stand as less restrictive alternatives, and I do need to make a guardianship or administration order - they must be in terms that impose the least restrictions on AS' freedom of decision and action. (e) And I must seek to ascertain AS' views and wishes. I am not required to follow or enact AS' wishes, but I must seek to ascertain what they are. 45 When I sit as the Tribunal, I am empowered to take all facts and circumstances into account when determining AS' best interests. I may 17 Letter from Mr TN to the Tribunal, 29 July 2026. -- 9 of 34 -- [2026] WASAT 93 Page 10 inform myself on any matter as I see fit, and I am not bound by rules of evidence.18 This ensures, as far as possible, that I can consider all relevant information in order to make the correct decision in AS' best interests. The issues 46 The issues I must determine are: Issue 1: Is AS capable of making reasonable judgments in respect of his person and his estate? Issue 2: If the answer to Issue 1 is no, does AS need a guardian or is there a less restrictive alternative to the appointment of a guardian? Specifically does the EPG exist as a less restrictive alternative to the making of a guardianship order? And if not, should the EPG be revoked or varied under s 110N? Issue 3: If AS needs a guardian who should be appointed? Issue 4: If the answer to Issue 1 is no, does AS need an administrator or is there a less restrictive alternative to the appointment of an administrator? Specifically does the EPA exist as a less restrictive alternative to the making of an administration order? If not, should the EPA be revoked or varied under s 109(1)(c)? Issue 5: If AS needs an administrator who should be appointed? Issue 6: If guardianship and administration orders are made, how long should the orders run before they must be reviewed by the Tribunal? AS' views and wishes 47 AS is of the view that he needs someone to make personal decisions for him and to manage his financial affairs. He said he wants MB to do that for him.19 He stated he could not be happier with the job MB is doing, that she pays all of his bills and as she is doing a good job, he wants her to continue to do that.20 18 State Administrative Tribunal Act 2004 (WA), s 32. 19 ts 20, 18 December 2025. 20 ts 50, 16 March 2026. -- 10 of 34 -- [2026] WASAT 93 Page 11 48 When I enquired if he wanted KS to be informed about his health and medical conditions, he said no - he didn't. He did not tell me why - he just knew that he didn't want her to know.21 Issue 1: Is AS capable of making reasonable judgments in respect of his person and his estate? 49 Before appointing a guardian, I must be satisfied that AS has attained the age of 18 years22 and is: (a) incapable of looking after his own health and safety; or (b) unable to make reasonable judgments in respect of matters relating to her person; or (c) in need of oversight, care or control in the interests of her own health and safety or for the protection of others.23 50 Before appointing an administrator, I must be satisfied that AS 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.24 51 There is capacity evidence at earlier points (for example when AS executed an EPG in 2013, and Dr P's opinion in July 2025, in relation to AS' capacity to renounce his life interest) and I will deal with that evidence later in my decision. However - I set out capacity evidence from the most recent medical and service provider reports as follows. General Practitioner Dr P 52 In his report of 24 September 2025, Dr P notes he has known AS for 10 years and had seen him twelve times in the 12 months prior to writing the report. The last consult he had with AS, prior to writing his report, was on 26 August 2025. 53 In his report he says that AS has a mental disability, due to a traumatic brain injury at 7 years of age, and states the disability is progressive in nature. He states MB usually accompanies AS to appointments and provides support, assists in communication for AS, provides information to Dr P on AS' behalf and acts as a substitute decision-maker, giving informed consent to proposed treatments. 21 ts 21, 18 December 2025. 22 GA Act, s 43(1)(a). 23 GA Act, s 43(1)(b). 24 GA Act, s 64(1)(a). -- 11 of 34 -- [2026] WASAT 93 Page 12 54 Dr P is of the view that due to AS' mental disability, he does not have the cognitive capacity to make reasonable decisions in relation to simple and complex financial matters, and legal matters. Dr P notes that AS defers to his sister MB to make complex financial decisions. 55 Dr P is of the view that AS does not have the capability to make reasonable decisions in relation medical treatment or services and is partially aware of making decisions about accommodation appropriate to his care and support needs. 56 As of the date of the report - Dr P was of the view that AS had the cognitive capacity to execute both an EPA and an EPG, though he was incapable of executing an AHD and incapable of voting. Rregistered Nurse/Clinical Care Plan Co-ordinator at HC Aged Care 57 In her report dated 1 October 2025, Ms Y, the Registered Nurse, Clinical Care Coordinator at HC Aged Care, states that AS first had a short period of respite at HC Aged Care in October 2020, and following a further period of respite in March 2024, was admitted as a permanent resident. 58 She states AS is visited by both of his sisters, though MB is his EPA and EPG and his primary contact. The facility is aware the sisters are not on good terms and notes AS has issued a directive to prohibit release of ACAT information to KS. 59 The report notes that AS lives with several significant chronic medical conditions including childhood traumatic injury (1957) type 2 diabetes mellitus, cataracts (with an operation on one eye in July 2025), depression and anxiety, cognitive impairment, Achilles tendinopathy - being hospitalised for this in June 2025, peripheral neuropathy, and has had some surgical procedures, including surgical repair in 2018 for right sided inguinal and umbilical hernias and right sided hydrocele, and toe amputations. 60 As to whether AS has the cognitive capacity to make financial decisions, Ms Y notes that MB is his appointed EPA. She states AS has a medical history of cognitive impairment, and that a cognitive assessment by an Occupational Therapist on 4 September 2025 indicated he has a mild cognitive impairment and reduced short-term memory. She notes a cognitive assessment conducted on 6 November 2025 was indicative of a moderate cognitive impairment. -- 12 of 34 -- [2026] WASAT 93 Page 13 61 Ms Y is of the view that given his diagnosis of cognitive impairment, AS is at risk of financial exploitation by others. 62 As to AS' ability to make decisions about his own health and welfare, Ms Y once again cites the cognitive assessment results. She states that AS receives daily assistance with meals, medication administration and clinical health needs. She states he requires staff assistance with activities of daily living and frequently refuses care, such that he requires staff to encourage, explain, reassure, redirect and reorientate him in order to receive services. 63 As to his level of insight, Ms Y states that AS is disoriented to time and place, and that he was unable to state the year, month or date. He acknowledges being in a nursing home but was unable to identify its location. She states AS thought he had been admitted to the facility just a few weeks ago which is clearly not the case. 64 In a hospital discharge summary after an inpatient episode from 10 to 24 September 2025 for the amputation of the 4th digit on his left foot, it is recorded that AS has a past medical history of type 2 diabetes mellitus, cataracts, diabetic retinopathy, progressive supranuclear palsy, thalassemia and cognitive impairment. 65 An ACAT assessment performed on 13 February 2024 while AS was an inpatient at a hospital gives his health history, sets out his current care needs, and formal and informal supports. The report states AS was admitted to Hospital in early 2024 after several months of progressive decline at home, and that he had sustained multiple falls in previous months. Coupled with increased left side spasticity and right-side intermittent tremor, increasing incontinence, difficult glycaemic control and impaired insight it was determined that AS' care needs were too great for him to be cared for at home any longer. Conclusions on capacity - does AS have capacity to make his own decisions about personal and financial matters? 66 The recent medical and nursing evidence is consistent. 67 I am satisfied and find on the evidence of Dr P and Ms Y that AS has a mental disability, related to his history of traumatic brain injury, and it is affecting his decision-making capabilities in all domains. 68 I am satisfied and find that the presumption that AS has capacity to make reasonable decisions about his own health and lifestyle can be set -- 13 of 34 -- [2026] WASAT 93 Page 14 aside. AS has significant medical conditions that without monitoring and timely treatment, pose risks to his health and safety. He has diminishing insight into his service needs and is at risk of refusing care. 69 I find that that AS is a person for whom I can appoint a guardian as the presumption of capacity is rebutted, and he is over the age of 18, now being 75 years of age. 70 Further, I am satisfied, and I find that by reason of his mental disability AS is unable to make reasonable judgments about matters relating to all of his estate. I find that AS is a person for whom I can appoint an Administrator as the presumption of capacity is rebutted. Issue 2: Does AS need a guardian or is there a less restrictive alternative to the appointment of a guardian? Specifically, does the EPG exist as a less restrictive alternative to the making of a guardianship order? And if not, should the EPG be revoked or varied under s 110N? 71 Before appointing a guardian, I must be satisfied that AS is in need of a guardian. 72 The key question is whether the EPG is a less restrictive alternative to the appointment of a guardian. The EPG 73 AS has executed at least two EPGs, appointing MB as his enduring guardian on each occasion. 74 On 6 March 2013, Dr L, AS' general practitioner of some 18 years at the time, stated that 'AS had the mental capacity to grant his sister MB a power of attorney in 2004' and, as of 6 March 2013, '(he) … was still of the view that AS had the mental capacity to grant her an EPG'.25 On 13 April 2013 AS appointed MB as his enduring guardian.26 75 In 2024, AS executed another EPG and EPA. Mr TN, in his letter to the Tribunal dated 25 September 2025, states that he had advised both AS and MB, in the context of accusations made by KS, that it may be appropriate for AS to execute a new EPA and EPG in 2024 with contemporaneous evidence of his legal capacity and a lack of duress and undue influence being brought to bear in the process. 25 Letter Dr SC addressed To Whom It May Concern, 6 March 2013. 26 Letter from Mr TN, RHL to the Tribunal, 25 September 2025. -- 14 of 34 -- [2026] WASAT 93 Page 15 Capacity to execute EPA and EPG 76 In this section I will deal with AS' capacity in so far as it relates to both the EPA and the EPG, those two documents having been executed on the same day. 77 In his letter of 25 September 2025 to the Tribunal, Mr TN states that he personally attended on AS at HC Aged Care to ensure AS had legal capacity to understand the EPA and the EPG and be satisfied that the documents properly reflected AS' true wishes, without any duress or undue influence. Mr TN states he also sought confirmation from AS' treating GP, Dr P, that AS had 'testamentary capacity' as, in Mr TN's view, the test for testamentary capacity is more demanding than the test for capacity to execute an EPA and EPG. 78 Mr TN's letter of instruction to Dr P dated 13 March 2024, is not before the Tribunal. A claim of privilege has been made, with MB stating it was sent on AS' instructions to 'canvas' testamentary capacity.27 79 Dr P, in his letter of response, states that he has known AS since 2015 and as at 15 April 2024, he is of the opinion that AS has testamentary capacity to decide on the disposal of his assets, with the proviso being - that AS can understand in simple terms what is required and that he can easily be confused if terms are overly complex. In his letter Dr P states 'I believe that it is in his best interest that he now executes a new will that is made out in as simple a fashion as is practical'. 80 In his letter, Dr P does not specifically mention AS' capacity to execute an EPG. However, I note Dr P's opinion in his report to the Tribunal dated 24 September 2025, that AS has capacity to execute an EPA and an EPG. 81 In contrast to the 2024 EPA, which was in effect upon execution, the 2024 EPG is stated to be in effect 'only at such times when the medical professionals state I am unwell and do not have capacity myself to make those decisions'. 82 On the basis of the evidence, I am satisfied, and I find that AS had capacity to execute both the EPA and EPG on 17 April 2024. 27 MB information in relation to sale of (family home), pursuant to Tribunal order, filed 15 December 2025. -- 15 of 34 -- [2026] WASAT 93 Page 16 Conclusions about the validity of the EPG 83 I am satisfied and find that the 2024 EPG meets the formalities of form and witnessing in s 110E of the GA Act. KS' allegations 84 KS maintains that AS is unhappy at HC Aged Care. She alleges that although AS has resided in aged care since March 2024, he has continued to express to her a desire to return home.28 85 KS also expressed her concern about AS' physical condition, stating he appeared to spend a great deal of time sleeping, or not wanting to get out of bed, and she is concerned about the amount of medication he is on.29 86 She alleges that MB is not proactive in promoting AS' physical or mental health. And, she is frustrated by the fact that she is not provided with information about AS' condition from health care providers or his residential facility.30 The legal framework 87 Section 51 of the GA Act sets out that a guardian must act in the best interests of the represented person and it includes acting as an advocate for them, in such a way as to encourage them to live in the community and participate as much as possible in the life of the community, in such a way as to encourage and assist them to become capable of caring for themselves and of making reasonable judgments about their person. The guardian must protect the represented person from neglect, abuse or exploitation. They need to consult with the represented person, taking into account as far as possible their wishes in a way that is least restrictive of their rights but still consistent with their proper protection. Further the guardian has to act in such a way as to maintain any supportive relationships that the represented person has and to maintain their familiar cultural, linguistic and religious environment where those things are relevant. 88 These obligations apply to enduring guardians.31 28 Letter from KS to MB, 12 July 2026. 29 ts, 30 and 32, 18 December 2025. 30 ts, 37 and 38, 18 December 2025. 31 GA Act, s 110H(a). -- 16 of 34 -- [2026] WASAT 93 Page 17 Evidence regarding MB's actions as enduring guardian 89 I am satisfied and find on MB's evidence at hearing, the Public Advocate's Investigator's report and the ACAT assessment from 2024 that MB is aware of AS' conditions and care needs. She regularly visits AS, she is present and participates in medical appointments with his GP, various specialists, and hospital staff. She communicates regularly with HC Aged Care staff and is confident to raise issues and direct them where necessary in performing tasks for AS.32 90 I am satisfied and find on the evidence in the ACAT assessment from February 202433 and Ms Y's report dated 1 October 2025 that due to AS' medical conditions and his high care needs, it was appropriate and in his best interests to enter residential aged care when he did in March 2024. The ACAT assessment states the decision to enter residential aged care was taken by both AS and MB at the time. 91 I note that when the Public Advocate Investigator met with AS at HC Aged Care on 25 November 2025, AS reported to the Investigator he could no longer live at the family home due to his health issues, that he supported the decision to move to aged care though he wished he could get out.34 92 MB, in her letter to the Tribunal dated 15 December 2025, stated that up until she was informed on 12 December 2025, of Dr P's views in his report of 24 September 2025 of AS' incapacity, she was still operating on the basis that AS could make decisions for himself. 93 She explained that it was her usual practice to assist AS in making decisions, she would explain information and various options to him and then, after he made a decision, she would support and assist him to implement the decision. That she would often act as his spokesperson as people would have difficulty understanding him.35 94 In her evidence at hearing MB advised that when AS had been in hospital in recent times she was contacted to provide consent to procedures and had given that both orally and in writing.36 She stated that AS is usually involved in health care decisions, and when staff 32 ts 32, 33 and 34, 18 December 2025. 33 ACAT assessment 13 February 2024. 34 Public Advocate Investigator's Report, 12 December 2025, page 4. 35 MB information in relation to assets and liabilities and income and expenditure, 10 December 2025. 36 ts 24 and 25, 18 December 2025. -- 17 of 34 -- [2026] WASAT 93 Page 18 explain things to him, she assists him 'almost as a translator'. She advised that she simplifies things so that he may understand them in his terms. 95 MB stated that AS has been under the care of the same general physician for the last 10 years, and he is also seen by a number of other specialists. 96 As to the sharing of AS' personal information with KS, I note AS has in the past, refused to share his ACAT information with KS, and at the hearing on 18 December 2025, AS told me that he did not want information shared with KS, although he did not articulate a reason for that at the time.37 97 I note from MB's evidence that KS has been included in episodes of care at times and has had access to AS' personal information as she has, in the past, spoken to AS' doctors when he has been in hospital, and also, she has been allowed to stay in AS' room at HC Aged Care when he has been attended upon by his GP and she has been allowed to ask questions of the GP.38 98 It is MB's evidence that she has never intended to withhold AS' personal information from KS, rather, this issue has arisen due to KS' unavailability.39 99 Although the issue of restricting KS' access to AS at HC Aged Care arose before the hearing and was raised in KS' submissions of 17 December 2025, it transpired on the first day of the hearing that the matter had been resolved.40 Although MB had considered a request from HC Aged Care staff to restrict KS' access to AS for a period of time, she ultimately refused to restrict KS, as AS himself wished KS to continue to visit him. 100 Despite having a strained relationship with KS herself, I accept MB's evidence that she does not seek to restrict KS' access to, or information about AS. My conclusions as to whether the EPG is a less restrictive alternative to appointing a guardian 101 I am satisfied and find that MB has acted in AS' best interests when making personal decisions for him over many years. She is personally 37 ts 21, 18 December 2025. 38 ts 12, 18 December 2025. 39 ts 12, 18 December 2025. 40 ts 36 and 37, 18 December 2025. -- 18 of 34 -- [2026] WASAT 93 Page 19 involved in providing care and supervision and makes appropriate and informed health care, service and accommodation decisions with, and for AS. 102 MB has been AS' primary support for many years. AS has appointed her as his enduring guardian since 2013 and it is his wish that she continues in that role. 103 For these reasons I find that the EPG is a less restrictive alternative to the appointment of a guardian. 104 In their report of 12 December 2025, the Public Advocate's Investigator also expressed the view that the EPG is a less restrictive alternative to the appointment of a guardian. 105 In my view the application for the appointment of guardian should be dismissed, and the application to revoke the EPG should also be dismissed. 106 Issue 3: Does not arise as I have decided AS is not in need of a guardian. Issue 4: Does AS need an administrator or is there a less restrictive alternative to the appointment of an administrator? Specifically does the EPA exist as a less restrictive alternative to the making of an administration order? If not, should the EPA be revoked or varied under s 109(1)(c)? 107 To appoint an administrator for AS I must be satisfied that he is currently 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 must also be satisfied that he has a need for an administrator. 108 As set out above, I am satisfied and find that AS has a mental disability as a result of a traumatic brain injury. And I am satisfied on the basis of Dr P's report of 24 September 2025 that AS does not have capacity to make simple or complex financial decisions or legal decisions. 109 To decide whether AS is 'unable' to make reasonable judgments about his estate, I must consider AS' estate and circumstances and then compare that against the extent to which he is able to engage in the cognitive process required to make a 'reasonable judgment'. -- 19 of 34 -- [2026] WASAT 93 Page 20 110 A person's 'estate' is the aggregate of their property, their assets and liabilities, and in practice encompasses the entirety of their real and personal property, and all their financial affairs.41 111 AS has resided in residential care since March 2024. He has fees to pay associated with accommodation, health care and other necessities. He receives an aged pension and must liaise with Centrelink in relation to that payment. He has paid a refundable accommodation deposit of $450,000 to HC Aged Care and MB has a term deposit in her name held on trust for him. As of 17 July 2024, there was $315,000 in that account.42 112 In 2025, AS orally relinquished his life interest in the family home,43 MB sold the property and distributed the net proceeds of sale to both herself and KS, in equal shares, each receiving $678,121.15.44 At the hearing on 16 March 2026, Mr TN advised that MB had not spent her inheritance from the sale of the family home, as she was aware that if AS has needs, she will be the one that has to 'front up and pay for those needs'.45 113 Further, Mr TN advised that if it was the applicant's submission that MB had done the wrong thing by distributing the proceeds of sale, MB was 'quite willing to reimburse that' and hold it on trust for AS, and, MB would request that the applicant does the same.46 114 In her written submission of 11 June 2026, filed during a period when she was not legally represented, KS advised the Tribunal that she is prepared to repay money she has received from the sale of the family home, to be held on trust for AS.47 115 On the basis of AS' assets and liabilities and the current proposals from MB and KS that they will repay money and hold this on trust for him, I am satisfied and find that AS has a complex estate, that he does not have the cognitive capability to manage, or make reasonable decisions about his estate and he is someone for whom I can appoint an Administrator. 41 SAL and JGL [2016] WASAT 63 at [22]. 42 Commonwealth Bank Term Deposit information as at 17 July 2024. 43 Public Advocate Investigator Report, 12 December 2025, page 3 of 8. 44 MB information in relation to sale of (family home), pursuant to Tribunal order, filed 15 December 2025; Distribution Statement prepared by Robertson Hayles Lawyers 3 October 2025. 45 ts, 58, 16 March 2026. 46 ts 58, 16 March 2026. 47 Letter from KS to the Tribunal filed 11 June 2026. -- 20 of 34 -- [2026] WASAT 93 Page 21 Does the EPA provide a less restrictive alternative? KS' allegations 116 Both the applicant and MB agree that clause 3 of the late Mrs TS' will provides for a life interest in the family home, as follows: I give and devise unto my Trustee [MB] my property situate at [Perth suburb] … on trust to permit my Son [AS] to have the use, occupation and enjoyment thereof during his lifetime he being responsible for all outgoings including but not limited to all rates, taxes, structural and other repair costs and for keeping the [family home] insured comprehensively on such terms as my Trustee shall require but my Trustee shall not be responsible for ensuring my Son [AS] carries out these obligations AND I DIRECT that on the death of my said Son then UPON TRUST for my daughter [MB] and daughter [KS] as shall survive me and if more than one as tenants in common in equal shares[.] 117 Clause 4 of the will gives to MB and KS a property at (Perth suburb) as tenants in common in equal shares and clause 5 gives to each of AS, MB and KS, the remainder of any real or personal property as tenants in common in equal shares. 118 The applicant submits that AS had a valuable life interest in the family home, and that MB was in a fiduciary relationship with him, as both executor and trustee under the will and, in her capacity as his attorney, when she facilitated the relinquishment of his life interest, effected the sale of the family home and distributed the proceeds of sale to herself and KS.48 119 The applicant submits that steps taken to ensure AS was adequately informed of options available to him in relation to the property were insufficient. She further submits that the letter of instruction to Dr P for the purpose of obtaining and assessment of AS' capacity was deficient. And, she submits that having regard to the requirements of s 34 of the Property Law Act 1969 (WA), that a disposition of an interest in land be in writing,49 it is doubtful whether AS could validly surrender his life interest orally. 120 In effecting the transaction and distributing funds to herself, the applicant submits that MB breached her fiduciary duties to AS, and 48 Applicant's submissions dated 11 March 2026. 49 Property Law Act 1969 (WA), s 34. -- 21 of 34 -- [2026] WASAT 93 Page 22 the Tribunal should order her removal as his attorney and order her liable for loss occasioned by the failure.50 121 The applicant submits that if the Tribunal does not think she is a suitable appointment as Administrator, then the Public Trustee should be appointed. MB's conduct 122 MB submits, firstly, that up until 12 December 2025, when it was brought to her attention that Dr P had provided his opinion to the Tribunal in a report dated 24 September 2025 that AS no longer possessed the ability to make decisions for himself, she was still operating on the basis that he could make decisions for himself. 123 Having learnt that AS now lacks capacity, MB stated she will now make decisions for AS as his attorney and enduring guardian. She stated that up until this change in circumstances, it had been her usual practice to support AS to make decisions himself by discussing options with AS, clarifying issues, asking for his opinion and assisting him to implement decisions that he has made. 124 In relation to the decision to sell the family home, MB submits that the property had fallen into disrepair and that due AS' medical conditions and care needs, AS was unable to return to live there after a period of hospitalisation in 2024. 125 Both MB and KS were of the view that the property was in a state of disrepair and that it required significant repair and maintenance,51 though they disagreed as to whether the property should be repaired and rented out, and whether AS could return to live there, or whether it should be sold. 126 The evidence is that these issues were being ventilated in 2024 and 2025 by way of exchange of letters with KS, with KS delivering letters to AS, or leaving letters for MB with AS as an intermediary. 127 The evidence is that discussion about these issues was bitter, prolonged and caused distress. In his letter of 16 December 2025, Mr TN states his client, MB, had faced persistent harassing conduct from KS. 128 At the hearing the following was given in evidence: 50 Applicant's submissions dated 11 March 2026. 51 Letters filed by KS with both 2024 applications and the September 2025 application. -- 22 of 34 -- [2026] WASAT 93 Page 23 (a) In response to being asked directly why he wanted to sell the property AS told me, firstly that he had no idea it was being sold, and secondly that 'we got sick of it'.52 (b) Mr TN advised that in distributing the funds when they had, they thought KS wanted the funds and that by the distribution, AS would not be subjected to requests from KS for funds.53 (c) MB stated KS was always asking AS for money, that she was always asking him for her share of the money. AS agreed with this.54 (d) MB stated, '[s]o and this is to the point of at times harassment. So, to give [KS] her share of the money, and [AS] was safe with the amount of money that he had, I can manage him. So, give her the sale, half of the house, [the family home] to get her off our backs, to stop asking for money'.55 129 In the context of AS residing in full time care since March 2024 and being unable to return home to live, MB states she discussed three options with AS to deal with the family home, as follows: (a) That he would have to spend money to renovate it in order to rent it out and derive rental income, noting he would still be responsible for ongoing payment of outgoings and maintenance in that scenario. He disagreed with renting it out. (b) That the house could be sold with MB holding the proceeds on trust for AS and paid as income over his lifetime. MB states she advised AS that this option could adversely impact his disability support pension which would also result in loss of other financial benefits in relation to support services and pharmacy costs.56 (c) That AS could renounce his right to the enjoyment of the property so that upon sale, the net proceeds would be immediately distributed to both MB and KS as remainder beneficiaries under the will.57 52 ts 33, 16 March 2026. 53 ts 43, 16 March 2026. 54 ts 44, 16 March 2026. 55 ts 44, 16 March 2026. 56 ts 50, 18 December 2025. 57 MB information in relation to sale of the (family home) pursuant to Tribunal order, filed 15 December 2025. -- 23 of 34 -- [2026] WASAT 93 Page 24 130 MB's evidence is that AS chose to renounce his life interest and arrangements were then made by MB and her lawyer, Mr TN, for AS to attend Dr P to obtain capacity evidence. 131 On 1 July 2025, Mr TN emailed Dr P, copied to MB, stating that he acts for MB, the sister, power of attorney and guardian for Dr P's patient AS. In his letter, Mr TN provides background information and a number of assumptions about AS' legal and financial position in relation to the family home. 132 He states AS is unable to return home to the family home due to his health, that the house is not in good condition. And further, provides as follows: … [the family home] is part of the estate of AS' late mother. In her will, she gave him a life interest to reside there on the condition that he pays for outgoings and maintenance on the house. His late mother's will does not provide that the life interest eases when [AS] is no longer able to reside there. In fact, it provides for a life interest for the duration of his life. Since he is no longer able to reside there, it makes no financial sense for him to continue paying its outgoings and maintenance. We wish to advice [sic] [AS] that renouncing his life interest is something he ought to properly consider since the life interest is no longer of any use to him, and he will continue to be obligated to pay for outgoings and maintenance, until he renounces it. We would be very grateful if you can comment on whether in your medical opinion, [AS] possesses the requisite cognitive ability to renounce his life interest. There won't be any financial loss to him as a result of renouncing his life interest since he can no longer reside there. In fact, there will be savings in terms of not having to pay outgoings and maintenance. The life interest is for him to reside, and the will is silent whether he can rent it out for income. In any event, the condition of the house is such that it cannot currently be rented out, not unless [AS] spends significant sums in renovations and repairs[.] 133 Dr P provided a response on 2 July 2025 as follows: … I can confirm that I am of the opinion that [AS] has the cognitive ability to renounce life interest in his former residence I sat with him today and he plainly stated that he does not want anything further to do with the property. In his words he stated 'I want to burn the house down'. With regards to his testamentary capacity in 2019 and 2021 I do not have evidence of cognitive status assessment. I have been aware that he has always had a degree of mental retardation since an accident at age 7. -- 24 of 34 -- [2026] WASAT 93 Page 25 Nevertheless he has been capable about making decisions in general regarding his welfare. Fine details of execution could probably cause some confusion on his part. 134 Following receipt of that opinion, Mr TN apparently met with AS, during which meeting, AS is said to have orally renounced his life interest.58 135 MB submits she appointed a real estate agent to sell the property and appointed a settlement agent. MB directed the settlement agent to pay KS' half share of the net proceeds of sale to Mr TN's firm, RHL, to be paid to KS' lawyer's trust account. 136 Mr TN advised the Tribunal that attempts to pay KS the money directly were unsuccessful. He therefore left a cheque payable to KS with AS, requesting that he pass it on to her. KS subsequently collected and banked the cheque.59 137 MB submits that she acted reasonably in facilitating the transaction, believing AS to have capacity to decide to relinquish his interest, and further, that the sale of the property and distribution of proceeds were effected in her capacity as executor and trustee of her late mother's estate, and not as her brother's attorney. 138 MB submits the Tribunal has no jurisdiction to review her actions as executor or trustee of her mother's estate, and review of her actions in the sale of the family home will be ultra vires. The legal framework 139 Enduring powers of attorney are created by Pt 9 of the GA Act. The Tribunal has the power to supervise the conduct of donees of the power to ensure that they fulfill their obligations to act diligently and protect the donor's interests.60 140 This jurisdiction is available to the Tribunal whether the donor of the power is living or not, and whether they have capacity or not.61 58 Public Advocate Investigator's Report, 12 December 2025, page 3. 59 Letter from Mr TN to the Tribunal, 25 September 2025. 60 Or [2024] WASAT 2 at [12]; KS [2008] WASAT 29 at [26] and [47]; EW, Re (2010) 72 SR (WA) 49 at [17]; SMM [2020] WASAT 85; GA Act, s 107. 61 KS [2008] WASAT 29 at [31] - [37] and [47] - [59]; EW, Re (2010) 72 SR (WA) 49 at [18]. -- 25 of 34 -- [2026] WASAT 93 Page 26 141 The relationship between donor and donee is an agency relationship which is fiduciary in nature.62 142 A fiduciary is defined as:63 A person who is under an obligation to act in another's best interests to the exclusion of the fiduciary's own interest. A fiduciary cannot use his or her position, knowledge or opportunity to the fiduciary's own advantage, or have a personal interest in, or inconsistent engagement with, a third party, unless fully informed and free consent is given[.] 143 Section 107(1) of the GA Act prescribes the obligations of donees as follows: (1) The donee of an enduring power of attorney - (a) shall exercise his powers as attorney with reasonable diligence to protect the interests of the donor and, if he fails to do so, he is liable to the donor for any loss occasioned by the failure; (b) shall keep and preserve accurate records and accounts of all dealings and transactions made under the power; (c) subject to section 109(2), may not renounce a power during any period of legal incapacity of the donor; and (d) shall, if the donee becomes bankrupt, report that bankruptcy to the State Administrative Tribunal[.] 144 Thus, the donee must diligently act to protect the donor's interests. The donee cannot act in their own interests and must avoid conflict with the donor's interests. This is known as the 'conflict rule'. 145 The donee must not use their position to advance their own interests or profit from a transaction, although a donee can profit from a transaction only if the donor has provided their fully informed consent.64 This is known as the 'profit rule'. The duty to avoid conflict and not profit are hallmarks of the fiduciary relationship. 146 An attorney appointed under an EPA owes fiduciary duties when acting under the authority conferred by the EPA, the duties arise from 62 Dal Pont, Powers of Attorney (3rd edition, 2020), Chapter 1. 63 Butterworths Australian Legal Dictionary (1997) at 471, cited in DW and JM [2006] WASAT 366 at [29]. 64 DW and JM [2006] WASAT 366 at [5] and [40]; Re KS [2008] WASAT 29 at [52]; AI and OF [2008] WASAT 87 at [125]. -- 26 of 34 -- [2026] WASAT 93 Page 27 the nature of the office and the relationship,65 not from the donor's incapacity. 147 A donor's subsequent loss of capacity does not create the attorney's fiduciary obligations. Those obligations arise from the office and the fiduciary nature of the relationship. However, once the donor loses capacity, those obligations assume heightened practical significance because the donor is no longer able to supervise the attorney, give effective instructions, protect their own interests or revoke the appointment. Fully informed consent 148 In Soia v Bennett, [2014] WASCA 27; (2014) 46 WAR 301, the WA Court of Appeal considered whether a fiduciary relationship existed between business partners in circumstances where one of the partners was a solicitor. In the event a relationship did exist, the Court had to consider whether it included a duty on the solicitor partner to recommend independent legal advice. 149 The Court of Appeal held there was no fiduciary relationship between the parties, and in any event, stated that it was incorrect to speak of a fiduciary 'duty' to recommend or require a beneficiary to obtain independent legal advice. The Court held that the existence of independent legal advice will be relevant if there is a fiduciary relationship, if there is a conflict of duty and interest, and if the fiduciary defends a claim against him on the basis that the beneficiary being fully informed, consented to the transaction. In some cases (but not all) the beneficiary will not be fully informed unless he has obtained independent legal advice.66 150 The Court of Appeal cited CJ Brennan and Justices Gaudron, McHugh and Gummow in Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449, where they stated at 466:67 … if the appellants were to escape the stigma of an adverse finding of breach of fiduciary duty with consequent remedies, it was for them to show, by way of defence, informed consent by the respondents to the appellants' acting, in relation to the Mortgage, with a divided loyalty; The High Court majority went on to say (at 466 - 467): 65 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41. 66 Soia v Bennett (2014) 46 WAR 301 at 55. 67 Ibid. -- 27 of 34 -- [2026] WASAT 93 Page 28 … What is required for a fully informed consent is a question of fact in all the circumstances of each case and there is no precise formula which will determine in all cases if fully informed consent has been given. The circumstances of the case may include … the importance of obtaining independent and skilled advice from a third party. The majority then added at (467): …it should be noted that, contrary to what was being suggested by the respondents in argument, there was no duty as such on the appellants to obtain an informed consent from the respondents. Rather, the existence of an informed consent would have gone to negate what otherwise was a breach of duty[.] The Tribunal's jurisdiction 151 MB submits that she acted solely as her late mother's executor and trustee, and not as AS' attorney in the transaction. She submits that a review by the Tribunal of her actions as executor and trustee in the sale of the family home will be ultra vires. 152 I find MB's submission misconceived. Whether MB executed the transaction as executor is not determinative of the Tribunal's jurisdiction. Throughout the relevant period she remained AS' attorney and continued to owe him statutory and fiduciary obligations arising from that office. The Tribunal's inquiry is whether those obligations were discharged consistently with the requirements of the GA Act. 153 I am satisfied and find that MB's appointment as executor and trustee did not displace or suspend the statutory and fiduciary obligations she owed to AS arising from her appointment as his attorney. 154 I am satisfied and find it is within the Tribunal's jurisdiction to make findings about MB's conduct as AS' attorney.68 These findings are relevant to my assessment of whether the EPA can operate as a less restrictive alternative to the appointment of an administrator for AS' estate. Does MB owe fiduciary duties to KS 155 I am satisfied and find that MB has been AS' attorney since 2006, and in any event, since the execution of AS' most recent EPA on 17 April 2024. 68 Re Or [2024] WASAT 2 at [12]; Re KS [2008] WASAT 29 at [26] and [47]; Re EW (2010) 72 SR (WA) 49 at [17]; Re SMM [2020] WASAT 85; GA Act, s 107. -- 28 of 34 -- [2026] WASAT 93 Page 29 156 I am satisfied and find that AS has for many years relied solely on MB for the provision of information. He relies on MB to explain and translate information about his health, legal, and financial matters. He relies on her to advocate for him and transact on his behalf when he is otherwise indisposed or unwell. 157 In Dr P's report of 24 September 2025, he notes he last saw AS on 26 August 2025. In his report he states AS is incapable of making simple and complex financial decisions - noting in complex financial matters he defers to his sister MB. 158 Dr P's opinion, in the context of his long-standing relationship with AS, and their last consult on 26 August 2025, is given some eight weeks after MB signed the sale contract, some four days after settlement occurred, and some two weeks prior to the distribution of the proceeds. 159 Dr P's opinion demonstrates the extent of AS' vulnerability and his reliance on MB during the period the transaction was effected. 160 I am satisfied and find on Dr P's letter of 15 April 2024 and his letter of 2 July 2025 that AS can be easily confused if terms are overly complex and that fine details of execution could cause confusion. I am satisfied and find that what Dr P calls AS' 'mental retardation' creates a vulnerability in AS and a risk of exploitation. 161 I am satisfied and find that MB owed both statutory and fiduciary duties to AS. At the time of the transaction, AS was a vulnerable person who was reliant on MB. Those circumstances heightened the importance of MB's obligations to act with undivided loyalty and in AS' best interests. Was there a breach of duty 162 I turn now to consider whether MB acted diligently to protect AS' interests as his attorney and whether AS gave fully informed consent to the transaction. 163 Firstly, there is no evidence to suggest that MB considered obtaining a valuation of AS' life interest. I am satisfied and find that she failed to act diligently to protect AS' interests in failing to obtain independent information to calculate the value of AS' life interest. In my view, this was important information that should have been obtained and shared with AS. -- 29 of 34 -- [2026] WASAT 93 Page 30 164 I am satisfied and find that for the purposes of effecting the sale of the family home, MB was aware of the need to have her brother assessed for capacity and made the appointment with Dr P. 165 Secondly, I am satisfied and find that MB had a pre-existing professional relationship with Mr TN, relating to MB's administration of Mrs TS' estate. MB failed to act diligently in instructing Mr TN to write to Dr P in the terms that he did in his letter of 1 July 2025, or at all, to obtain capacity evidence, for reasons including that the information provided to Dr P was based on MB and Mr TN's opinions and unverified assumptions, rather than independent, or expert advice. 166 MB was copied into and was aware of the contents of the letter of instruction to Dr P dated 1 July 2025. 167 I am satisfied and find that the information put to Dr P contained unverified assumptions that had the potential to mislead Dr P's understanding of AS' situation and the conversation that he went on to have with AS when he met with him on 2 July 2025. 168 The instructions provided to Dr P and the response from Dr P, do not provide a reliable basis for his opinion that AS had capacity to relinquish his life interest, and I am of the view that further capacity evidence to determine whether AS understood the proposed transaction, should have been obtained. 169 In a letter dated 1 May 2024 from Mr TN to KS' legal representative at the time, it is apparent that KS understood that Mrs TS had given AS a life interest in the family home.69 In the letter, Mr TN set out that KS' requests for money from the sale of AS' own home were causing him distress, and that funds from the sale would be used to pay for a refundable accommodation deposit, and other necessities, and not given to KS. 170 Mr TN notes that MB - as a result of KS demanding funds from AS - had assumed KS needed money and had broached the subject of selling the family home with KS, though it was on the proviso that AS was willing to renounce his life interest. Mr TN notes that KS was in support of the sale however, as AS desired to return to the family home, he was unwilling to renounce his interest, unwilling to rent it out and unwilling to see it sold at that time. 69 Filed in the November 2024 application, GAA 6257/2024. -- 30 of 34 -- [2026] WASAT 93 Page 31 171 With regard to the evidence that is before me, I accept that MB wanted to bring finality to her relationship with KS, and the sisters had tried to reach an agreement such that KS may be given money from the sale of the family home. 172 On the evidence I am satisfied and find that one of MB's motivations for selling the family home was to bring finality to her relationship with KS, including by ending KS' ongoing requests for money. 173 I am satisfied and find that MB's personal objectives gave rise to a potential conflict between MB's own interests and her fiduciary duty to AS. In those circumstances MB was required to ensure that her decisions were guided exclusively by AS' best interests and not her own objectives. Was there a need for independent advice in the circumstances? 174 In her submissions, MB states she put three options of dealing with the family home to AS, and he chose to renounce his interest, so that once the house was sold, the proceeds would immediately be distributed to MB and KS.70 175 At the hearing, MB stated AS had never had independent legal advice, that she had always sought Mr TN's advice before she acted on anything financially or legally for AS, that AS had not seen anyone independent of MB or her legal representative, Mr TN. 176 MB was clearly in a position of conflict with AS. As his attorney she owed him undivided loyalty and as remainder beneficiary she stood to gain personally if AS relinquished his estate. 177 I am satisfied and find in all the circumstances of this matter; it was necessary for AS to obtain independent legal advice in order for AS to give fully informed consent to relinquish his life interest and agree to have the proceeds of sale immediately distributed to MB and KS. 178 I make no finding about the effect of the oral relinquishment of the life interest, though I am of the view that, in the circumstances, deciding not to record a transaction of such significance is a failure to act diligently. 70 MB's information in relation to sale of (the family home) pursuant to Tribunal order, filed 15 December 2025. -- 31 of 34 -- [2026] WASAT 93 Page 32 Conclusion 179 Given my findings I am satisfied that the EPA cannot stand as a less restrictive alternative to the appointment of an Administrator and I will revoke the EPA. 180 Although Dr P indicated in his report of 24 September 2025 that AS has capacity to execute an EPA, I am satisfied and find that he is not capable of executing an EPA. 181 Dr P notes that AS does not have the capacity to make complex financial decisions and defers to MB in doing so. And, he is of the view that AS does not have the capacity to make legal decisions. I am satisfied and find that AS does not understand the extent of his estate, or the risks and benefits of another person managing that for him. 182 I consider it is in AS' best interests to have an Administrator appointed. 183 I am of the view that the Administrator should obtain a valuation of AS' life interest and if it is considered to be in his best interests, the Administrator is to pursue any remedy or action open to AS in the circumstances, to recover monies paid to MB and KS. Issue 5: If AS needs an administrator who should be appointed? 184 Due to the difficulties posed by KS' refusal to provide her contact details to anyone, allegations that KS has requested money from AS, and AS' wishes, I am unable to find KS suitable to appoint as Administrator. 185 I am also unable to find MB suitable for appointment. As both MB and KS have advised they are prepared to return monies to AS, in the context of ongoing dispute with KS about the administration of their late mother's estate and aspects of AS' welfare and financial affairs, I am of the view it is not possible for MB to undertake the role of administrator. 186 I am satisfied that the Public Trustee is the only suitable person to be appointed, and the least restrictive order is a plenary administration order. A plenary order will enable the administrator to undertake investigations and take such action as it considers necessary and in AS' best interests, including, if appropriate, steps to recover monies on his behalf. 187 I acknowledge this conclusion is inconsistent with AS' views and wishes and the Principal Investigator's recommendation that MB -- 32 of 34 -- [2026] WASAT 93 Page 33 continue in the role as AS' attorney. However, having found that MB breached her fiduciary duties to AS, and having regard to the legal and financial issues arising from potential recovery of funds from MB and KS, I am satisfied MB cannot continue as AS' attorney. 188 Lastly - although there is no evidence of AS' gifting practices before me, I am satisfied a modest provision ought to be made to enable him to make gifts to his family and friends or neighbours if he should wish to do so. Issue 6: If an Administration order is made, how long should the order run before it must be reviewed by the Tribunal 189 Finally - I will make this order for 2 years. Although AS' mental disability is progressive, and I am satisfied that he will have an ongoing need for an administrator, it may be possible to find MB suitable for appointment once the legal and financial issues arising from potential recovery of funds have resolved. On all of the evidence, particularly AS' expressed wishes, I find a shorter order is in his best interests. Orders GAA 7169/2025 On an application by [KS] pursuant to s 110N of the Guardianship and Administration Act 1990 (WA) concerning an enduring power of guardianship dated 17 April 2024 by which [AS] appointed [MB] as his enduring guardian: The Tribunal orders: 1. The application is dismissed. GAA 7166/2025 On an application by [KS] pursuant to s 109(1)(c) of the Guardianship and Administration Act 1990 (WA) concerning an enduring power of attorney dated 17 April 2024 by which [AS] appointed [MB] as his enduring attorney. The Tribunal orders: 1. The enduring power of attorney is revoked. -- 33 of 34 -- [2026] WASAT 93 Page 34 GAA 5291/2025 The Tribunal makes the following orders: 1. The Tribunal declares that the represented person, [AS] is: (a) unable by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and (b) in need of an administrator of his estate. Administration 2. 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). 3. The administrator is authorised to expend up to a total amount of $500 per annum on gifts on behalf of the represented person. 4. The enduring power of attorney dated 17 April 2024 by which the represented person appointed [MB] to be their attorney, is revoked. 5. The administration order is to be reviewed before 7 August 2028. Guardianship The Tribunal orders: 6. The guardianship application is dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MS M Hipworth, MEMBER 7 AUGUST 2026 -- 34 of 34 --