Guardianship and Administration Orders (WA)
The State Administrative Tribunal (SAT) in Western Australia deals with a broad range of matters, including applications for Guardianship and Administration Orders. Parts 4, 5 and 6 of the Guardianship and Administration Act 1990 govern guardianship and administration orders in the Tribunal. A guardianship order is made when an adult is not capable of making their own decisions and requires someone else to make decisions in their best interests. An administration order is made when a person is unable to make decisions about their estate and requires an administrator.
When an application for a guardianship or administration order is made, the primary concern of SAT is what is in the best interests of the individual (the represented person). Making a guardianship or administration order is SAT’s last resort because it removes a person’s fundamental decision-making rights. If possible, the SAT will also choose less restrictive measures to manage the person’s best interests.
Under section 4(3) of the Act, all persons are presumed to be capable of managing their own affairs, making reasonable judgments and looking after their own health and safety unless the contrary is proven to the tribunal. This ensures that an individual does not have their right to make their own decisions taken away unless absolutely necessary.
To make an Administration Order under section 64 of the Act, SAT needs to be satisfied that an individual is unable by reason of a mental disability to make reasonable judgments relating to their estate, and in the circumstances requires an administrator. Mental disability is defined for the purposes of the Act as an intellectual disability, a psychiatric condition, acquired brain injury or dementia. In the case of GC and PC  WASAT 10 , it was held that “clear and cogent evidence is required to rebut the statutory presumption of capacity”, meaning that sufficient evidence needs to be provided to the tribunal to establish that the person does not have capacity and requires an administrator to be appointed to manage their affairs.
The tribunal can order a single person to be the administrator of a person’s estate, or several persons to be joint administrators depending on what the case requires. Any administrator must be over the age of 18 and must act in the best interests of the represented person. They can also appoint a corporate trustee (ie. the Public Trustee of Western Australia) if this is required.
Orders can be made subject to any restrictions and conditions that the tribunal considers necessary and can be made for an administrator to only perform certain tasks. Alternatively, the tribunal may make a plenary order. This means that an administrator can make all decisions and perform all the functions that the represented person would perform themself if capable. Exactly what an administrator is authorised to do is addressed further below.
The most important thing to be considered in any appointment is always the wishes of the represented person, and what is in the represented person’s best interests.
What are an appointed administrator’s duties?
A person who is appointed as an administrator with a plenary authority is responsible for all legal and financial decisions on behalf of the represented person. This would include:
- All expenditure, asset management and debt servicing. This means selling assets such as property, attending the bank of a represented person in order to pay daily bills and purchase essential items, pay debts and invest money.
- Keeping detailed accounts for all purchases and investments they make.
- Advocate for the represented person and encourage/assist them to be involved in making decisions and managing their estate.
- Protecting the represented person from neglect, abuse and exploitation.
A plenary administrator cannot do the following:
- Make, amend or revoke a will or testamentary document for the represented person;
- Act as an executor of a will in place of the represented person if they were appointed, unless this is approved by the Supreme Court of Western Australia; or
- Delegate their authority to another person.
- Make gifts from the estate of the represented person (ie gifts of birthday money) without authority from the tribunal.
- Repay any informal loans.
- Pay travel expenses of family and friends who visit the represented person.
- Claim the cost of their time and labour for acting as administrator.
Some of these decisions can be made if you apply to the tribunal for written authorization to proceed with them, pursuant to making an application for directions from the tribunal pursuant to Section 74 of the Act.
For a Guardianship Order to be made, the represented person must have attained the age of 18 and be incapable of looking after their own health and safety or making reasonable judgments and be in need of a guardian to make personal and medical decisions for them (Section 43 of the Act).
Similar to an Administration Order, a Guardianship Order can be made to appoint a guardian in specific areas only (ie medical) or it could be a plenary order which applies to all areas of a person’s life. Where there is a plenary order, a guardian can sign documents on behalf of the represented person and do all things necessary for the performance of their role as guardian (Section 48 of the Act).
A guardian who is appointed must be over the age of 18 years, act in the best interest of the represented person and is not a person whose interests could conflict with the represented person. The State Administrative Tribunal may want a proposed guardian to address any potential conflict of interest at a hearing to appoint a guardian.
Some things a plenary guardian cannot do include:
- Vote on behalf of the represented person
- Consent to the marriage of a represented person or the represented person’s minor child.
Do you have someone in your life who needs an Administrator or Guardian?
If you believe someone in your life needs to have an administrator and/or guardian appointed to look after their interests, and you would like assistance in making an application to the State Administrative Tribunal, or if you need legal advice in relation to any other matter please do not hesitate to contact Armstrong Legal.