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Adult Guardianship (WA)

Written by Lisa Riley

Lisa Riley holds a Bachelor of Laws and a Graduate Diploma in Legal Practice. She also holds a Graduate Diploma in Counselling. She was admitted in the Supreme Court of Western Australia in 2018. During law school, Lisa wrote a parliamentary submission on Domestic Violence and received a personal response from the Premier, commending her on her willingness to advocate for vulnerable people. Lisa has experience in Personal Injury law, Workers Compensation, Will, Estates and Trusts and also has a keen interest in Mediation, Arbitration and Dispute Resolution.

The Guardianship and Administration Act 1990 (WA) sets out the rules and procedures surrounding adult guardianship in Western Australia.  Adult guardianship is necessary when a person is unable to make their own decisions about their lifestyle, medical treatment and legal affairs and requires another person to make decisions on their behalf.

Legislation

Section 43 of the Guardianship and Administration Act sets out that an individual may require adult guardianship where he or she:

(a) Is over the age of eighteen; and

(b) Is incapable of looking after their own health and safety; or

(c) Is unable to make reasonable judgments in respect of matters relating to their person; or

(d) Is in need of oversight, care or control in the interests of their own health and safety or for the protection of others; and

(e) Is in need of a guardian

What is a guardian?

The Act does not provide a comprehensive definition as to what a guardian is. However, it sets out the circumstances surrounding when a guardian may need to be appointed and what the requirements are for a natural person to become a guardian, for an individual who is deemed to require a guardian. The Act also sets out where a person’s decision-making abilities as a guardian may be limited (limited Order) or where they may apply to an extensive range of decisions (Plenary Order).

When does a person need a guardian?

Often a person will need to be placed under adult guardianship where his or her ability to make fully informed decisions is impaired.  Examples of situations where a person may be deemed to require adult guardianship include where an individual:

  • has acquired a catastrophic brain injury due to illness or accident;
  • suffers from some form of degenerative brain disease (such as Dementia or Alzheimers);
  • has an intellectual disability which directly impacts on their capacity to make fully informed decisions;
  • because of their incapacity, is deemed likely to be at risk of neglect, abuse or exploitation by others and there is no other form of Private Legal Agreement (such as an Enduring Power of Guardianship Agreement) in place to protect that person’s best interests.

Who can be a guardian?

Section 44 of the Act sets out the scope for who may be appointed an adult guardian.  Under the act, a guardian must be an individual aged 18 or older who has consented to act and who in the opinion of the State Administrative Tribunal:

  •  Will act in the best interests of the person in respect of whom the application is made;
  • Is not in a position where their interests conflict or may conflict with the interests of that person; and
  • Is otherwise suitable to act as the guardian of that person.

A guardian will be a person who has full legal capacity and is entrusted to make decisions on behalf of another person.

The role of a guardian is always to make decisions with the protected person’s best interests in the forefront of their mind. Often a guardian will be a family member or a close relative of the protected person. However, in the absence of someone who is willing and able to perform the role of guardian the State Administrative Tribunal may appoint a guardian from the Office of the Public Advocate who will work with, and represent the best interests of, the person who requires a guardian.

A guardian will only be appointed by the State Administrative Tribunal where there is no Private Enduring Power of Guardianship Agreement in place and where it can be proven that less restrictive measures have been taken and have failed to protect the person’s best interests. The over-riding principle and reasoning behind this is that if the State Administrative Tribunal makes a Guardianship Order under section 40 of the Act this strips the fundamental right for the protected person to make their own decisions relating to matters such as living arrangements, treatment options, healthcare and the like.

What decisions can a guardian make?

The powers of a guardian under an adult Guardianship Order are limited to decisions surrounding the health and welfare of a person. They do not extend to decisions regarding a person’s financial affairs or the distribution of the person’s assets. In order to deal with those issues a person would need to have an Enduring Power of Attorney in place. An Enduring Power of Attorney is a legal agreement which entrusts a person who has full legal capacity and is over the age of 18 to make specific financial decisions on behalf of another individual who is deemed not to have capacity to make those types of decisions for themself.

Summary

The act sets out when an adult guardian may be required and who can be a guardian. Under the Act a guardian will be required where an individual becomes devoid of the capacity to make informed decisions on their own behalf, relating to lifestyle, personal and health matters.

In order that a person can be appointed as a guardian that person must be over the age of 18 and must be capable of making decisions with the best interest of the protected person at the forefront of their mind. This person must not be seen to have interests which conflict with that of the protected person.

Where a person does not have capacity and does not have a Legal Agreement (Enduring Power of Guardianship) in place to protect their best interests the State Administrative Tribunal may appoint another person such as a family member or a close family friend to become their guardian. In the absence of a suitable person to take over this role, a guardian will be appointed by the State Administrative Tribunal from the Office of the Public Advocate.

If you require legal advice or representation in an adult guardianship matter or in any other legal matter, please contact Go To Court Lawyers.

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