The Presumption of Capacity in Guardianship and Administration Matters: Does Objectively Unwise Decision-Making Rebut the Presumption in Western Australia?

Perth Lawyer Richard Graham

The Guardianship and Administration Act 1990 (the Act) governs the appointment of guardians and administrators for individuals who lack the capacity to make decisions regarding their personal and financial affairs in Western Australia.

One of the key principles in guardianship and administration matters is the presumption of capacity, which assumes that an individual is capable of managing their own affairs until proven otherwise.

In this blog post, I discuss the extent to which objectively unwise or less preferable decision-making can rebut the presumption of capacity in a guardianship and administration matter before the State Administrative Tribunal of Western Australia (the Tribunal).

I refer to the decision of IZ [2022] WASAT 85 to illustrate how the Tribunal approaches this issue and applies the relevant provisions of the Act.

Legislative Framework

The Act sets out the criteria for appointing a guardian or an administrator for a person who lacks the capacity to make decisions in relation to their personal or financial affairs. Section 4(3)(c) of the Act establishes the presumption of capacity, stating that a person is presumed to be capable of managing their own affairs unless the contrary is established.

The Presumption of Capacity and Objectively Unwise Decision-Making

In the IZ [2022] WASAT 85 decision, the Tribunal examined the relationship between the presumption of capacity and objectively unwise decision-making by the subject of a guardianship application.

The Tribunal emphasized that people with capacity are entitled to make decisions that others may regard as unreasonable or unwise (referencing MH at [120]; PG [2021] WASAT 81 at [92]).

The Tribunal's Approach in IZ [2022] WASAT 85

In IZ, the Department sought a guardianship order for IZ on the grounds that she was unable to make reasonable judgments in relation to her person and was in need of oversight, care, or control in the interests of her health and safety.

The Department argued that IZ's lack of insight into the reason for her admission and her desire to return to live with her parents were evidence of her incapacity to make reasonable judgments.

However, the Tribunal held that, although there was a reasonable concern for IZ's health and safety, there was no clear and cogent evidence that she was incapable of looking after her own health and safety or of making reasonable decisions in respect of matters relating to her person.

The Tribunal found that IZ was actively managing her own affairs and dismissed the guardianship application.

The Tribunal in IZ cited the observation made in MH, stating that the judgment on whether a person is incapable of looking after their health and safety or unable to make reasonable judgments in respect of matters relating to their person does not depend on whether the Tribunal agrees or disagrees with the person's decisions (referencing MH at [120]).

Key Take-Aways

  • The decision in IZ [2022] WASAT 85 demonstrates that objectively unwise or less preferable decision-making by the subject of a guardianship application does not automatically rebut the presumption of capacity in Western Australia.

  • The Tribunal emphasizes the importance of upholding the presumption of capacity unless clear and cogent evidence to the contrary is presented.

  • This approach reflects the respect for individual autonomy and the right to make one's own decisions, even if those decisions may be considered unwise or less preferable by others.