Guardianship (WA)
Adult guardianship exists when a person is appointed to make decisions on behalf of another person because the other person is not capable of making sensible decisions for themselves. In Western Australia, adult guardians are appointed through the State Administrative Tribunal (SAT). This deals with adult guardianship in WA.
Legislation
The roles and powers of guardians and administrators, and the procedures for guardianship in WA, are contained in the Guardianship and Administration Act 1990.
Guardians and administrators
In WA, an adult who has a decision-making disability may have another person appointed as their guardian, as the administrator of their estate, or as both guardian and administrator.
A guardian makes decisions about the person’s everyday life including matters such as medical interventions, accommodation and diet. An administrator makes decisions about legal and financial matters such as the sale of assets, investments and the payment of debts.
The SAT may make a limited guardianship order or a plenary guardianship order. A limited order gives a person the power to act as a guardian for another person in respect of specific areas of life such as in medical matters only. A plenary guardianship order appoints a guardian in respect of all areas of the person’s life.
Making a guardianship or administration order
Under section 43 of that act, the SAT may make a guardianship order if a person:
- is over 18
- is incapable of looking after their health and safety; or
- is unable to make reasonable judgments in matters relating to their person; or
- is in need of oversight, care and control in the interest of their health and safety or for the protection of others; and
- is in need of a guardian.
Under section 64 of the act, the SAT may make an administration order if a person:
- is unable, because of a mental disability, to make reasonable judgments in respect of matters relating to their estate; and
- is in need of an administrator of their estate.
Who can be a guardian or administrator?
The person appointed as a guardian must be over 18. They 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 not to be a person suitable to act as guardian, then SAT may make an order that the Public Advocate act as guardian.
When appointing a person as an administrator, SAT must be satisfied that the person 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 a family member will cause division amongst the family.
Functions of a guardian
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 they shall live
- whether the represented person can work, and what kind of work they may do
- what medical and health treatments the represented person receives (with the exception of sterilisation)
- whether the represented person may engage in training and/or education; and
- who the represented person may 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 of the functions plenary guardians have, or any other specific function.
If a guardian is in doubt as to their powers, they may apply to SAT for directions as to what they may do.
Functions of an administrator during guardianship
Under section 70 of the Guardianship and Administration Act 1990, an administrator is to act in the represented person’s best interests. This includes 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 their estate (wealth, or assets)
- assisting and encouraging the represented person to make sound judgments; and
- maintaining the represented person’s familiarity with their linguistic, cultural or religious environment.
Administrators may apply to SAT for any order that specifically authorises them to perform certain functions on the represented person’s behalf.
Applying for guardianship and administration
SAT hears applications for guardianship and administration in a relatively informal way. Hearings are generally closed to the public due to their sensitivity.
SAT is bound by the principles set out at section 4 of the Act. These include that a person is presumed to be capable of looking after their own health and safety and managing their own affairs and that an order must not be made if less restrictive means could meet the person’s needs.
Medical evidence of mental capacity will be required to demonstrate that a person is in need of a guardianship or administration order.
SAT also has the power to hear applications by interested parties that are concerned about the conduct of a guardian or administrator. If 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 order that the guardian or administrator be removed and replaced.
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