Guardianship and administration orders have a significant impact on the autonomy of a represented person.
This blog provides an overview of when leave should be granted under section 87 of the Guardianship and Administration Act 1990 (WA) (the GA Act) for a review of guardianship or administration orders, drawing on the principles discussed in RK [2022] WASAT 112.
Legislative Context
Under the GA Act, there are four ways in which a guardianship or administration order may be reviewed:
The Tribunal must review the order within a specified period not exceeding five years, in line with the principles of section 4 of the GA Act.
An aggrieved party may request a review by a Full Tribunal within 28 days, or with an extension granted by the Full Tribunal.
The Tribunal is required to review the order if the appointed guardian or administrator is unable to carry out their role for various reasons, including death, incapacity, or neglect.
The GA Act allows a represented person, a guardian, an administrator, the Public Advocate, or the Public Trustee to request a review at any time.
Section 87 of the GA Act also permits other persons to apply for a review at any time, but they must obtain the leave of the Tribunal to do so. The Tribunal may grant leave if it is satisfied that a review should be held due to a change of circumstances or for any other reason.
Reasons for the Requirement of Leave
As discussed in RK [2022] WASAT 112, there are three reasons for requiring leave for a review:
Guardianship and administration orders should not be displaced without good reason, as they may cause anxiety and disruption in the life of a represented person.
The Tribunal is required to fix a period for the review of any guardianship or administration order, and the order should not be reviewed in advance of the specified period unless there is a good reason to do so.
The Tribunal engages in an inquisitorial process when making orders and expects all relevant information to be provided at the hearing of the challenged decision.
Criteria for Granting Leave
To be granted leave under section 87 of the GA Act, applicants must fulfil the following conditions:
In cases where the applicant is relying on a change in circumstances, they are required to present new evidence that:
a. Has not been previously brought to the attention of the Tribunal;
b. Holds relevance to the appointment of a guardian or administrator; and
c. Was either unknown or could not have been reasonably discovered by the applicant prior to the hearing of the challenged decision.
If the applicant is not relying on a change in circumstances or was not a party during the hearing of the challenged decision, they must provide an "other reason" justifying the review. For instance, the applicant could show that they were not notified of the hearing or that the challenged decision is no longer, or was never, in the best interests of the represented person.
Ultimately, the primary focus of the Tribunal when deciding whether to grant leave is the best interests of the person being represented.
Key take-aways
Leave for a review of guardianship or administration orders under section 87 of the GA Act is only granted when the Tribunal is satisfied that there has been a change of circumstances or an "other reason" warranting the review.
Understanding the legislative framework and the principles laid out in RK [2022] WASAT 112 is essential for navigating the process of seeking leave for review of these orders in Western Australia.