A guardian can be appointed when someone’s decision-making ability is impaired. Possible causes of the impairment include intellectual disability, mental illness, acquired brain injury or dementia. In Western Australia, guardianship is governed by the Guardianship and Administration Act 1990.
A person can apply to the State Administrative Tribunal for a guardianship order for a person in writing or orally or partly both. At least 14 days’ notice of the hearing of the application must be given to the applicant, the person about whom the application is made, the person’s nearest relative, any administrator of the person’s estate, the proposed guardian, the Public Advocate, and anyone else with a proper interest in the matter.
The SAT is required by the Act to presume every person can (unless proven otherwise):
- look after their own health and safety;
- make reasonable judgments about themselves;
- manage their own affairs;
- make reasonable judgments about their estate.
To make a guardianship order, the SAT must be satisfied that the person:
- is aged at least 18;
- is incapable of looking after their own health and safety;
- is unable to make reasonable judgments about themselves;
- needs oversight, care or control in relation to their own health and safety or to protect others.
It can make a guardianship order for someone who is aged 17 if it is satisfied the person will need a guardian when they turn 18.
The guardian must be aged over 18 and is expected to act in the best interests of the person and not have a conflict of interest.
In making a decision, the SAT is required to consider:
- how to preserve relationships in the person’s family;
- the compatibility of the proposed guardian with any administrator of the person’s estate;
- the person’s wishes;
- whether the proposed guardian will be able to perform the functions of the role.
The tribunal must seek to ascertain the views and wishes of the person, as far as possible, in whatever manner, at the time, or gather these from the person’s previous actions.
It must not make a guardianship order if the person’s needs could be met in a way that is less restrictive of the person’s freedom.
Acting in the person’s best interests
The Act states that a guardian acts in the best interests of a person if the guardian:
- advocates for them;
- encourages them to take part in community life as much as possible;
- encourages and helps them care for themselves and make decisions for themselves;
- protects them from abuse, neglect or exploitation;
- considers their wishes as far as possible;
- acts in a way that restricts their rights as little as possible;
- helps them maintain supportive relationships;
- helps them maintain their familiar cultural, linguistic or religious environment.
Types of guardianship
The SAT can appoint a plenary guardian, a limited guardian, joint plenary guardians, joint limited guardians, and if expedient, an alternate guardian.
A plenary guardian has all of the functions vested in a person by a parenting order made under the Family Court Act 1997. They can make decisions about:
- where a person is to live, temporarily or permanently;
- with whom the person is to live;
- whether the person should work, the nature of the work and for whom the person should work;
- medical treatment for the person;
- with whom the person can associate;
- beginning, conducting, settling or defending legal proceedings on behalf of the person.
A plenary guardian cannot perform functions such as:
- vote in an election for the person;
- consent to the adoption of that person;
- consent to a surrogacy parentage order;
- make a will for the person.
A limited guardian can have any of the functions of a plenary guardian which the SAT vests in them. A plenary guardian must not be appointed for a person if the appointment of a limited guardian would be sufficient to meet the needs of the person. An order appointing a limited guardian for a person must impose the fewest restrictions possible on that person’s freedom.
When making a guardianship order, the SAT can name an alternate guardian who automatically becomes a plenary guardian or limited guardian if either of those guardians dies. The alternate guardian has the same functions as the original guardian had.
If a guardian is being refused entry to a premises, the guardian can apply to the SAT for a warrant to enter a premises where the represented person is, to perform any guardian function. The warrant can authorise the guardian to enter using force if necessary, and call on the help of police.
A person under a guardianship order cannot be sterilised unless both the guardian and the SAT have consented in writing and all avenues of appeal have lapsed or been exhausted.
For advice or representation in any legal matter, please contact Armstrong Legal.