Guardian & Administration Act 1990 (WA)

Contributed by Felicity Child and current to 1 September 2005

WHO DOES THE ACT ASSIST?

The Guardianship and Administration Act enables a Guardian to be appointed for adults (persons over 18), who are not capable of making reasoned decisions for themselves in relation to their person due to intellectual disability, dementia, acquired brain injury (for example, as a result of stroke), or psychiatric disability.

The Act also enables an Administrator to be appointed to act on behalf of someone in relation to their financial and legal matters, such as paying debts, investing the person’s money or selling his or her house.

Applications for appointment of both Guardians and Administrators, as well as for related orders, are dealt with under the Act by the State Administrative Tribunal (“the Tribunal”).

THE STATE ADMINISTRATIVE TRIBUNAL

The Tribunal is an independent statutory body, which has incorporated the previous jurisdiction of the Guardianship Board. It is made up of a President (who is a Supreme Court Judge), Deputy Presidents, Senior Members and Ordinary Members. At each hearing of applications under the Guardianship and Administration Act the Tribunal is made up of either one or three members.

The Tribunal’s staff can be contacted for advice about the procedures associated with bringing an application to the Tribunal under the Guardianship and Administration Act.

A website provides downloadable information and application forms of all the jurisdictions amalgamated in the Tribunal’s jurisdiction (see contact details at the end of this chapter).

For more information about the role of the Tribunal generally, see CHALLENGING GOVERNMENT DECISIONS .

WHAT IS A GUARDIAN?

A Guardian is appointed to act for an individual in matters relating to his or her person, for example to make decisions about the represented person’s living or working situation or to consent to medical treatment. The guardian is a person who has lawful authority to act for the represented person and is not a carer – although the one person may take on the two roles.

WHO CAN BECOME A GUARDIAN?

A guardian must be over 18 years and must consent to being appointed. The guardian must not be in a position where his or her interests conflict with those of the represented person and must always act in the best interests of the represented person. The wishes of the represented person must be taken into account in the selection of a guardian.

The guardian may be a family member of the represented person or someone who has been involved in the life of the represented person. Alternatively, the Public Advocate may be appointed as the guardian of last resort where there is no other person who is suitable or willing to perform the function in the interests of the represented person. The appointment of the Public Advocate may occur where there is conflict in the family or where it is considered that the interests of the represented person would be best served by the appointment of an independent guardian.

Two or more persons may be appointed to act jointly, and where appointed they must act unanimously (s.53). If they cannot act unanimously they may apply to the Tribunal for directions.

WHAT IS AN ADMINISTRATOR?

An Administrator is appointed to act in the best interests of the represented person in relation to their financial and legal matters, for example, paying debts, investing the person’s money or selling his or her house.

WHO CAN BECOME AN ADMINISTRATOR?

An administrator can be an individual, such as a family member or friend. In some cases an accountant of the represented person or a trustee company may be appointed. The wishes of the represented person should be taken into account in the selection of an administrator.

A trustee company should not be appointed as an administrator unless there is no individual who would be suitable and willing to act as administrator. An appointed administrator should be able to work compatibly with any appointed guardian.

One person may be appointed as both guardian and administrator. Jointly appointed administrators must act unanimously. If they are unable to do so they should apply to the Tribunal for directions.

APPLICATIONS

Principles observed by Tribunal

Section 4 of the Guardianship & Administration Act sets out principles which the Tribunal must observe when making decisions on applications. The key principles are as follows:

PRESUMPTION OF CAPACITY

Persons with a disability do not automatically come under the Act. There is a presumption that every person is capable of making reasonable judgements in respect of matters relating to their person, and their financial affairs, until the contrary is proved to the satisfaction of the Tribunal.

If it is believed that a person’s capacity is impaired and the person needs a guardian and/ or an administrator to act for them regarding personal, financial or legal matters, an application may be made to the Tribunal which will determine at a hearing if the proposed represented person is (1) incapable of making reasoned decisions in his or her own best interests; and (2) if the person needs a guardian or administrator.

LESS RESTRICTIVE ALTERNATIVE

Not every person with a decision-making disability needs a guardian or administrator.

The effect of having such a decision-maker appointed is that the person loses control over decision-making in that area of life which is the subject of the order. For example, if a guardian is appointed to decide where a person is to live, the guardian will decide if the person is to move into a hostel or nursing home.

The Act requires that the guardian consider the wishes of the represented person when making such a decision, but the best interests of the person are paramount and may not always coincide with the wishes of the person.

If there is a less restrictive way of meeting the needs of the proposed represented person, a guardian will not be appointed.

Process

The majority of applications made to the Tribunal under the Act are for the appointment of a guardian and/or administrator for a person.
However, applications may also be made for:

• directions (ss.47,74);
• review of existing orders (ss. 84,85, 86,87);
• declarations of incapacity of the donee of an Enduring Power of Attorney (s.l06) (see further below);
• applications for the Tribunal to intervene where there is an existing Enduring Power of Attorney (s.l09); and
• applications for consent to sterilisation of a represented person (s.59).

Application forms are available from the Tribunal’s office at 12 St George’s Tce Perth, by calling 9219 3000 or by accessing the website: www.sat.justice.wa.gov.au.

Before an application is made, applicants should make contact with the Tribunal Human Rights Stream Registry staff for assistance with and advice about the application and hearing process. This will ensure that the correct application form is used for the particular circumstances.

Applications can be made in writing on the approved form, or orally, or partly in writing and partly orally (s.40(1)).

Refusal to hear application

The Tribunal may refuse to hear applications it considers frivolous, vexatious, misconceived or lacking in substance, are being used for an improper purpose or are an abuse of process s.47 of the State Administrative Tribunal Act 2004 (WA) (“the SAT Act”).

Withdrawal of application

Once made, applications can only be withdrawn with the approval of the Tribunal.

Urgent applications

Once the application has been lodged at the Tribunal there will be an assessment of the application by the Registry staff as to its urgency. An application will be considered urgent and given priority for listing for a hearing if the represented person or his or her estate is at immediate risk. A person at risk of abuse or neglect, or needing to consent to medical treatment, or the person’s estate being subject to financial abuse, would be considered urgent issues. If the application is urgent contact should be made with the Registry staff.

Notice

Following lodgement of an application the Tribunal must give 14 clear days’ notice of a hearing to:

• the applicant;
• the proposed represented person;
• the person’s nearest relative;
• the Public Advocate;
• any other person who, in the opinion of the executive officer, has a proper interest in the proceedings; and
• any proposed or appointed administrator or guardian (for example, in the case where there is an existing administration order, and an application has been made for guardianship).

The Tribunal can shorten the time for the giving of notice or it may dispense with the notice to all but the proposed represented person and the Public Advocate in exceptional circumstances.

The proposed represented person must be served personally with a notice of the hearing (s.115).

INSPECTION OF DOCUMENTS

Access to documents is generally at the discretion of the Tribunal.

Proposed represented persons (persons for whom an application has been made for guardianship or administration), a represented person or that person’s solicitor may have access to any document or material lodged with the Tribunal for the purposes of a proceeding unless the Tribunal orders otherwise. Other parties to a hearing may have access to documents (other than medical reports) at the discretion of the Tribunal.

There are penalties attached to the unauthorized disclosure of any information obtained in the course of an application and hearing.

Parties to a hearing may apply to inspect documents prior to a hearing. Applications for inspection of documents by appointment prior to the hearing can be made to the Executive Officer.

HEARINGS

Hearings of the Tribunal are usually conducted at the Tribunal’s premises but they may also be held in country centres, nursing homes, hostels or hospitals. These venues are arranged to enable the proposed or represented person to attend. The attendance of the proposed represented person is considered an essential safeguard of the rights of the person, but attendance may be excused by the Tribunal due to the frailty or ill-health of the proposed represented person.

The hearings are not as formal as a court hearing and generally people are not legally represented. Evidence may be taken from doctors or other witnesses by conference telephone.

Any person may be legally represented. There are some limitations of representation by lawyers at the Tribunal (see the SAT Act s.39), but advocates can assist people appearing before the Tribunal if the Tribunal agrees (s.39(e)). Hearings are open to the public and are tape recorded.

Hearings may be adjourned if further information is required.

Mediation is available within the Tribunal and it may be that a matter will be referred to mediation, although mediation in this area has not been a common practice in the past.

COSTS

Each party to a hearing bears his or her own legal costs (s.l6(1) SAT Act). There are rare exceptions where costs orders may be made against the estate of the represented person. The Tribunal has the power to make costs orders under s.87(3) of the SAT Act to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding.

REASONS

The Tribunal must give reasons for a final decision.

REVIEW OF DECISIONS

Review of decisions made by the Tribunal constituted by one member is to a Full Tribunal – a Tribunal consisting of either the President or Deputy President and two other members.

An application for review in this case must be lodged within 28 days of the original decision.

Appeals from the Full Tribunal (constituted by three members including the President) are to the Full Court of the Supreme Court; from three member Tribunals not including the President appeals are to a single Judge of the Supreme Court. The process for appeals is set out in Division 3 of the SAT Act. Applications for leave to appeal to the Supreme Court must be made within 28 days of the decision of the Tribunal.

The Court may extend the time if there was a good reason that it was made outside that time.

REVIEW OF ORDERS

The Tribunal is required to review orders for administration or guardianship at least every 5 years. The time for review of the order will be set out in the order. Orders may be reviewed before the time set out in the original order on an application from an interested party.

RESPONSIBILITIES AND AUTHORITY OF THE APPOINTED GUARDIAN OR ADMINISTRATOR

The extent of the authority of an appointed guardian or administrator is set out in the Tribunal’s order. The authority may be plenary (extending to all aspects of the person’s life or their estate) or limited to specific functions. The appointed person is expected to exercise the authority in such a way as to respect the dignity of the represented person and to act in that person’s best interests.

Guardians

The type of functions which may be included in a guardianship order include: to decide where the represented person is to live and with whom, to decide if and where the person should work and the nature and type of that work. A guardian may also give consent to medical treatment of the represented person, if authorised to do so, but not to sterilization of the represented person, unless the Tribunal also consents (see further below). A guardian also may not vote or make a will for the represented person.

Administrators

An administrator’s authority may include the expenditure of money, collection of income and dealing with legal matters on behalf of the represented person.. The range of functions, which is not exhaustive, is set out in Schedule 2 of the Guardianship and Administration Act.

An administrator may not, without the express authority of the Tribunal, make a gift on behalf of the represented person. An administrator cannot make advances from the person’s will or repay informal ‘loans’ to friends.

An administrator may employ an agent, such as a solicitor, accountant, or real estate agent as long as the appointed person is carefully chosen by the administrator and the employment of that agent is reasonable in all the circumstances, including the size and value of the represented person’s estate.

Under section 82 of the Guardianship and Administration Act an administrator may apply to the Tribunal for a transaction to be set aside if it was entered into within 2 months of the order being made. Legal advice regarding this should be obtained.

Unless exempt by the Public Trustee, administrators are required to submit annual accounts to the Public Trustee in respect of that part of the person’s estate which is the subject of the order. The accounts are scrutinised by the Public Trustee and allowed or disallowed.

An administrator is liable for a loss suffered by the represented person’s estate except to the extent that the Public Trustee relieves the administrator of liability. Such a liability might arise from poor accounting or financial management on the part of the administrator.

The loss will be certified by the Public Trustee and the amount can then be recovered from the administrator.

CONSENT TO MEDICAL TREATMENT

If authorised under the order which appoints him or her, a guardian can give consent to medical treatment. Many people with disabilities can give consent to medical treatment and so do not need a guardian to play this role. Others will need a guardian if medical treatment is required.

Under section 119 of the Guardianship and Administration Act a medical practitioner (this includes doctors and dentists) can provide urgent treatment to a person who is incapable of consenting to it, if consent is obtained from a person named in a hierarchy in s.119(3) of the Act. This comprises:

• a guardian of the person needing the treatment;
• the spouse or de facto partner of the person needing the treatment;
• a person who, on a regular basis, provides or arranges for domestic services and support to the person needing the treatment but does not receive remuneration for doing so;
• a person who is the nearest relative (other than the spouse or de facto partner) of the person needing the treatment and who maintains a close personal relationship with the person needing the treatment; or
• any other person who maintains a close personal relationship with the person needing treatment.

Urgent treatment may be provided by the practitioner without the consent of any of the above, if it is not practical to obtain that consent.

Urgent treatment is defined in the Act as treatment necessary to:
(a) save the life of the person;
(b) prevent serious damage to the health of the person needing the treatment; or
(c) prevent the person needing the treatment from suffering or continuing to suffer significant pain or distress.

If the treatment is not urgent treatment, treatment may be provided if consent is obtained from a person in the hierarchy listed above.

STERILISATION APPLICATIONS

A guardian cannot consent to sterilisation. Instead, an application must be made by the appointed guardian to the Tribunal for its consent for a procedure for the sterilisation of a person. Hearings of applications for consent to sterilisation (s.59) must be heard by a Full Tribunal (the President or the Deputy President and two other members). See further in DISABILITY AND THE LAW.

VOTING

When the Tribunal makes an order for guardianship or administration it must consider if the person is capable of understanding the need to vote under the compulsory voting provisions of the Electoral Act 1907 (WA). A declaration of incapacity to vote allows the person’s name to be removed from the state electoral roll and the person is no longer required to vote.

“FOREIGN” ADMINISTRATION ORDERS

There is provision in the Guardianship and Administration Act for recognition of Administration orders made in other states and territories. For more information contact the Tribunal.