Guardianship applications can be an essential legal tool for protecting the welfare of vulnerable individuals. However, they also carry significant consequences and should not be taken lightly. This blog post is about the threshold for making such applications in Western Australia, as well as the potential costs consequences for pursuing an application that does not meet this standard.
In this blog post, I make reference to WD [2022] WASAT 12, and refer to the relevant legislation, the Guardianship and Administration Act (GA Act).
Threshold for Making a Guardianship Application
The recent decision in WD [2022] WASAT 12 observed that guardianship and administration applications are "very intrusive and lead to the exploration of sensitive issues in a person's life."
As such, an applicant must have a reasonable belief, objectively grounded, of the grounds for making the application [53].
This means that the applicant should have strong evidence to support the need for the application and the belief that it is in the best interest of the person involved.
Costs Consequences
If an applicant is made aware that their application is unlikely to succeed, the Tribunal expects them to withdraw the application, unless they can provide contrary, probative medical evidence.
In cases where the applicant unreasonably pursues an untenable application, unnecessarily prolongs the application, or pursues it for an improper purpose, the Tribunal may consider awarding costs to the proposed represented person [54].
In WD [2022] WASAT 12, the Tribunal found that the applicant's conduct in pursuing the application warranted a costs order [91].
The applicant pressed contentions that were not supported by evidence, previously made in other fora without any findings in support, and not squarely addressed to the issues to be determined in the proceedings [91(a)].
The applicant also conducted the proceedings in a manner that resulted in significant legal costs for the proposed represented person [91(b)].
The Tribunal determined that it was appropriate for the applicant to pay the costs incurred by the proposed represented person in connection with the proceedings after a certain date [95].
Key take-aways
Guardianship applications are an important legal tool, but they must be pursued responsibly and with a reasonable, objectively grounded belief. Applicants must be aware of the potential costs consequences if they do not meet this standard, as demonstrated in WD [2022] WASAT 12.
To avoid unnecessary legal costs and potential harm to the proposed represented person, it is advisable to consult with an experienced guardianship lawyer before proceeding with an application. Please feel welcome to contact me.