Enduring powers of attorney and enduring powers of guardianship are designed to protect people when they can no longer make decisions for themselves. They are meant to reduce stress, avoid formal intervention, and provide clarity during already difficult times.
A recent decision of the State Administrative Tribunal of Western Australia shows what can happen when those arrangements, despite being validly made, no longer work in practice.
The situation: declining capacity and family disagreement
The case involved an elderly mother in her mid-80s who had been diagnosed with Alzheimer’s disease several years earlier. While she still had capacity, she put formal arrangements in place appointing trusted family members under an enduring power of attorney (commonly referred to as an “EPA”) and later an enduring power of guardianship (commonly referred to as an “EPG”).
Over time, her condition progressed and she became increasingly unable to manage her own affairs. As decisions about finances, care and accommodation became more pressing, disagreement emerged within the family about:
- who should be making decisions,
- how money had been managed, and
- how information was being shared between family members.
Eventually, applications were made to the Tribunal asking it to step in, revoke the existing enduring powers, and appoint decision-makers instead.
Capacity and best interests come first
The Tribunal’s role was not to decide family disputes, but to focus on what was in the mother’s best interests.
Although the mother herself did not accept that she had dementia, the medical evidence showed significant memory impairment. The Tribunal found she was no longer able to:
- manage her finances safely,
- understand or recall important decisions, or
- protect herself from potential risk.
This meant she lacked the capacity to make reasonable decisions about her personal and financial affairs.
Importantly, the Tribunal accepted that the enduring powers were valid when they were signed. A diagnosis of dementia does not automatically mean someone lacks legal capacity at a later point in time. The focus was not on whether the documents were properly made, but on whether they were still effective in meeting her needs.
When enduring powers are no longer the “less restrictive” option
Under Western Australian law, the Tribunal must only make guardianship or administration orders if there is no less restrictive way of meeting a person’s needs.
Enduring powers often satisfy that requirement. However, in this case, the Tribunal found the arrangements had broken down because:
- one appointed decision-maker no longer wished to act;
- there were unresolved concerns about financial management;
- records had not been properly maintained; and
- ongoing family disagreement was causing the mother distress.
In those circumstances, the enduring powers were no longer functioning as a protective arrangement.
Why independent decision-makers were appointed
Several family members wanted to be appointed to make decisions for the mother and expressed genuine concern for her wellbeing. However, the Tribunal considered the level of disagreement and the impact it was having on her.
The Tribunal ultimately concluded that appointing an independent administrator and guardian was necessary to:
- ensure decisions were made impartially;
- protect the mother’s interests; and
- reduce the emotional strain being caused by family conflict.
As a result, external statutory bodies were appointed to manage her financial affairs and make limited personal and medical decisions on her behalf.
What families can take from this decision
This decision is not about blame. It highlights how even carefully prepared estate planning documents can become ineffective if circumstances change.
Some key takeaways for families include:
- Enduring powers should be reviewed as health and family circumstances evolve.
- Attorneys and guardians must keep clear records and communicate appropriately.
- Family dynamics matter — decision-making roles can place enormous strain on relationships.
- If arrangements stop working, intervention by the Tribunal may become necessary.
Time to review your own arrangements?
If you have appointed family members under an enduring power of attorney or guardianship, particularly where relationships are complex or have changed over time, it may be worth reviewing those documents sooner rather than later.
Early advice can often prevent matters escalating to the point where independent decision-makers are required.
At Couldwell Legal, we regularly assist clients across Western Australia with:
- reviewing existing EPAs and EPGs;
- advising families navigating capacity concerns; and
- guiding clients through Tribunal processes where necessary.
If you’d like to discuss your situation, we offer a 15 minute obligation-free discovery call to help you understand your options in a calm and supportive way.