If a person is not capable of taking care of his or her own affairs due to illness or incapacity, and he or she does not have in place an enduring power of attorney or an enduring power of guardianship, then it may be appropriate to appoint a guardian or administrator. With respect to guardianship in WA, guardians are given the power to make decisions regarding a person’s health, lifestyle and well being. Administrators are given the power to deal with a person’s financial affairs.
The roles and powers of guardians and administrators, and the procedures for guardianship in WA, are contained in the Guardianship and Administration Act 1990. Applications for the appointment of a guardian and/or administrator are made to the State Administrative Tribunal of Western Australia.
A guardian can be appointed by the State Administrative Tribunal (SAT) if a person is aged over 18, is not capable of looking after his or her own safety and health, cannot make reasonable decisions regarding personal matters and is in need of oversight. In some cases, a guardian can be appointed when a person is over 17 but not yet 18 and it appears necessary that a guardian should be appointed when the person turns 18. The person appointed guardian must be aged over 18, and must be someone who can act in the represented person’s best interests without fear of a conflict of interest. When an application for guardianship is made, SAT is obliged to consider the compatibility of the represented person and the proposed guardian and the need to preserve family relationships. If there appears to not be a suitable person to act as guardian, then SAT may make an order that the Public Advocate act as guardian.
An administrator can be appointed by SAT if it appears that a person is, by reason of mental incapacity, unable to take care of his or her own financial matters and therefore is in need of an administrator. Again, it must appear to SAT that the person who wishes to be appointed will act in the represented person’s best interests. The Public Trustee may be appointed if there is no one suitable to act, or if it appears that appointing someone who is suitable will cause division amongst the family.
A guardianship order can give the guardian plenary functions or specific and limited functions. Section 45 of the Guardianship and Administration Act 1990 sets out the functions of a plenary guardian, which include making decisions as to:
- where the represented person will live, and with whom he or she shall live
- whether the represented person can work, and what kind of work he or she is capable of doing
- medical and health treatments (with the exception of sterilisation)
- whether the represented person can engage in training and/or education; and
- who the represented person will associate with.
A plenary guardian may also act on behalf of the represented person as “next friend” in any litigation to which the represented person is a party. A limited guardianship order may include any one of the functions plenary guardians have, or any other specific function. If in doubt as to his or her powers, a guardian may bring an application to SAT for directions as to what they can do.
Under section 70 of the Guardianship and Administration Act 1990, an administrator is to act in the represented person’s best interests, having regard to matters such as:
- ensuring that the represented person is protected from financial abuse, neglect and exploitation
- advocating for the represented person in matters relating to his or her estate (wealth, or assets)
- assisting and encouraging the represented person to make sound judgments; and
- maintaining the represented person’s familiarity with his or her linguistic, cultural or religious environment.
Administrators may apply to SAT for any order which specifically authorises him or her to perform certain functions on the represented person’s behalf.
SAT will hear applications for guardianship and administration in a relatively informal environment, which is generally closed to the public due to the sensitivity of matters being discussed. SAT is bound by the principles set out at section 4 of the Act, which include that a person is presumed to be capable of looking after themselves (including making reasonable judgments regarding finances, safety and health) until the contrary is proved. Medical evidence of mental capacity will be required to demonstrate to SAT that the person is in need of a guardianship or administration order.
SAT may also hear applications from interested parties who are concerned about the conduct of a guardian or administrator. If it is demonstrable that a guardian or administrator has not acted in the represented person’s best interests, or has acted outside his or her authority under the order, SAT may determine that the guardian or administrator be removed and replaced.