Guardianship and administration matters in the State Administrative Tribunal of Western Australia (SAT) often involve complex family dynamics and legal considerations.
One question that often arises is when joint guardians and administrators should be appointed.
In this blog post, I discuss the factors that the SAT takes into account when making such decisions, with reference to the Guardianship and Administration Act 1990 (WA) (GA Act) and the recent case of LM [2023] WASAT 15.
Criteria for Appointment of Guardians and Administrators
The GA Act sets out the criteria for appointing guardians and administrators.
Section 44 deals with the appointment of guardians, while section 68 focuses on the appointment of administrators.
In the case of LM [2023] WASAT 15, various family members expressed their willingness to be appointed, either individually or jointly, as LM's guardian and administrator.
The Tribunal, however, had to consider the best interests of the represented person and the suitability of the proposed appointees before making a decision.
Joint Appointments: Pros and Cons
Joint appointments may seem like a fair solution in some situations, especially when multiple family members are willing to take on the responsibility. However, the SAT is cautious when considering joint appointments for both guardians and administrators.
For administrators, joint appointments can pose practical difficulties, particularly regarding banking arrangements and the management of online accounts.
As for joint guardianship, the SAT may consider it only when there is a reasonable expectation that the guardians will be able to work together and reach unanimous decisions for the represented person.
Family Dynamics and Suitability
In LM [2023] WASAT 15, the Tribunal paid close attention to the family dynamics and the ability of the proposed appointees to work together (para. 65). The decision highlighted that joint decision-making may not be successful in situations where family relationships are strained or conflicted.
The Tribunal emphasized the importance of weighing the potential risks and benefits of joint appointments against the backdrop of complex family situations.
Moreover, the Tribunal took into account the potential conflicts of interest that could arise from the appointment of certain family members. In LM [2023] WASAT 15, it was determined that one of the proposed appointees, SC, had a conflict of interest due to his personal interest in his daughters' financial well-being and his duty as an administrator to act in LM's best interests (para. 66). This conflict of interest contributed to the Tribunal's finding that SC was unsuitable for appointment.
In addition to conflicts of interest, the Tribunal also considered the experience and expertise of the proposed appointees. In LM's case (para. 70), the Tribunal noted that her estate involved some complexity, and it was in her best interests for the appointed administrator to have the necessary knowledge and ability to manage her estate effectively.
Ultimately, the Tribunal's analysis of the family dynamics and the suitability of the proposed appointees led to the conclusion that none of the family members who volunteered as guardians or administrators were appropriate for appointment (para. 69).
This unsuitability precluded their sole or joint appointment, prompting the Tribunal to consider alternative options such as the appointment of the Public Advocate and Public Trustee (para. 71).
Public Advocate and Public Trustee Appointments
In cases where no suitable and willing person is available for appointment, the GA Act (section 44(5)) provides that the Public Advocate should be appointed as the guardian.
Similarly, when it is in the best interests of the represented person, the Public Trustee may be appointed as the plenary administrator.
In LM [2023] WASAT 15, the Tribunal concluded that the Public Advocate should be appointed as LM's limited guardian and the Public Trustee as LM's plenary administrator.
These appointments ensured that the guardian and administrator possessed the necessary expertise and ability to make decisions for LM in the foreseeable future.
Key Take-Aways
Joint appointments of guardians and administrators may seem like a practical solution in some cases.
However, the SAT carefully considers the best interests of the represented person, the family dynamics, and the suitability of the proposed appointees when making such decisions.
The case of LM [2023] WASAT 15 serves as a valuable reference for understanding when joint appointments may or may not be appropriate in guardianship and administration matters in Western Australia.