Understanding Guardianship and Administration Matters: When does the Need for Oversight Enable the Appointment of a Guardian in Western Australia?

Perth Guardianship Lawyer Richard Graham

Guardianship and administration matters in Western Australia are governed by the Guardianship and Administration Act 1990 (the Act).

The Act provides for the appointment of guardians and administrators for persons who lack the capacity to make decisions in their personal and financial affairs.

In this blog post, I discuss the role of oversight in guardianship and administration matters and explore the circumstances under which the State Administrative Tribunal of Western Australia (the Tribunal) can appoint a guardian based on the need for oversight.

I examine the recent decision of IZ [2022] WASAT 85 to illustrate how the Tribunal interprets and applies the relevant provisions of the Act in this context.

Legislative Framework

The Act sets out the criteria for appointing a guardian for a person who lacks the capacity to make decisions in relation to their personal affairs.

Section 43(1)(b) of the Act states that the Tribunal may make a guardianship order if it is satisfied that the person:

(i) is incapable of looking after their own health and safety;

(ii) is unable to make reasonable judgments in respect of matters relating to their person; and

(iii) is in need of oversight, care, or control in the interests of their health and safety.

The Act also establishes a presumption of capacity, as set out in section 4(3)(c), which states that a person is presumed to be capable of managing their own affairs unless the contrary is established.

The Need for Oversight

In the IZ [2022] WASAT 85 decision, the Tribunal considered the role of oversight in guardianship matters and the extent to which the need for oversight, care, or control could justify the appointment of a guardian.

The Tribunal emphasised that the presumption of capacity must be upheld unless clear and cogent evidence to the contrary is presented.

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 Tribunal, however, did not find sufficient evidence to rebut the presumption of capacity.

It concluded that while there was a reasonable concern for IZ's health and safety, there was no clear 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 observed that individuals with the capacity to make decisions regarding their personal and financial affairs are entitled to make decisions that others may regard as unreasonable or unwise, as long as they do not pose a risk to themselves or others (referencing MH at [120]; PG [2021] WASAT 81 at [92]).

The Tribunal also noted that the need for oversight, care, or control should be read in conjunction with the other limbs of section 43(1)(b) and considered as a global assessment of the person's capacity (referencing GG [2021] WASAT 33 at [60(a)-(c)]).

The Tribunal held that the need for oversight, care, or control is directed towards a person's functional incapacity, rather than the cause of the person's need for assistance (referencing GG at [60(i)]).