Introduction

This blog examines the issue of whether capacity under the Guardianship and Administration Act 1990 (WA) (GA Act) is assessed by reference to a represented person's ability to make decisions independently of others.

The analysis is based on the Western Australian State Administrative Tribunal decision in DL [2023] WASAT 66, which involved an application to review a decision to appoint a limited guardian for Mr L, a 59-year old man with an intellectual disability.

In submissions, it was argued on behalf of Mr L that he did not require a guardian as he had capacity to make simple everyday decisions, particularly with assistance from others.

Facts

In DL [2023] WASAT 66, the Tribunal reviewed a decision to appoint the Public Advocate as Mr L's limited guardian with authority over treatment decisions and service decisions.

Mr L opposed the appointment of a guardian, arguing he was capable of making simple everyday decisions with assistance and did not require a guardian [34].

Medical evidence indicated Mr L had capacity to make simple decisions but not complex ones independently [13], [15]-[16].

The Tribunal found Mr L did not have capacity to make complex personal decisions independently and appointed Mr W as his limited guardian for service decisions [17], [29]-[30].

Law

Section 43(1)(b) of the GA Act provides that a guardian can be appointed for a person who is "unable to make reasonable judgments in respect of matters relating to his person".

Under section 4(3), an adult is presumed to have capacity to make decisions about personal matters until the contrary is proved.

Analysis

The Tribunal held that in assessing capacity under section 43(1)(b), it must consider a person's ability to make decisions independently of others [17]. While Mr L could make simple everyday decisions with support, he lacked capacity to make more complex decisions without assistance [16]-[17]. As Davis J said in RE QD [2019] WASAT 112 at [43], capacity under the GA Act is assessed by reference to an ability to make decisions independently.

The Tribunal cited medical evidence indicating Mr L could follow medical advice and make simple decisions, but could not understand complex illnesses or make complicated medical choices without oversight [12]-[15]. This aligned with evidence that Mr L would struggle with complex NDIS decisions [24]. The Tribunal accepted he could make simple choices with support, but the GA Act required consideration of his independent ability to make more complex personal decisions [17].

Although Mr L opposed the appointment of a guardian, the Tribunal held the presumption of capacity in section 4(3) was displaced by the evidence demonstrating he could not independently make reasonable judgments on complex matters relating to his person, meeting the test in section 43(1)(b) [16]-[17]. As Bell J said in RE GD [2018] WASAT 33 at [29], while views of the represented person must be considered, the Tribunal is not bound to accept those views if the evidence indicates otherwise.

Conclusion

The Tribunal in DL confirmed that in assessing capacity under section 43(1)(b) of the GA Act, the relevant consideration is whether the represented person can make reasonable judgments independently in relation to personal matters, not their ability to make decisions with assistance. The Tribunal will consider the represented person's views but does not have to accept those views if satisfied the test in section 43(1)(b) is met based on the evidence.