Guardianship law is a complex area of practice that deals with the appointment of individuals or organisations to make decisions on behalf of a person who is unable to make decisions for themselves due to a mental disability.

In this blog post, I discuss the coaching of subjects of applications, as well as evidence being given in camera by subjects in guardianship matters, drawing on the decision in K [2018] WASAT 96.

Assessing the Genuine Wishes and Views of Subjects in Guardianship Matters

The case of K [2018] WASAT 96 underscores the significance of accurately evaluating the genuine wishes and views of subjects in guardianship matters. In this instance, K provided in camera evidence to the Tribunal on two separate occasions, during which her expressed views were notably contradictory.

This discrepancy in K's testimony illustrates the challenge of ensuring that the views expressed by a subject are authentically their own and not unduly influenced by other parties.

The Tribunal in K [2018] WASAT 96 ultimately determined that K's views conveyed at Hearing 2 were more likely to have been 'coached' by her father or articulated by K as a consequence of being exposed solely to her father's perspectives and influence (paragraphs 88-90).

The Role of In Camera Evidence

Giving evidence in camera allows the subject of an application to provide evidence to the Tribunal without the presence of other parties.

In the case of K [2018] WASAT 96, this process was used at both Hearing 1 and Hearing 2. Allowing subjects to give evidence in camera can help to ensure that their testimony is not influenced by external factors or other parties, ensuring that the Tribunal can accurately assess their true wishes and views.

Legislation in Guardianship Matters

The Guardianship and Administration Act 1990 (WA) provides the framework for guardianship and administration orders in Western Australia. In the case of K [2018] WASAT 96, the Tribunal accepted and found that K continues to be a person for whom guardianship and administration orders can and should be made due to her diagnoses, which constitute mental disability (paragraph 22).

Section 51(2) of the Act requires the Tribunal to consider various factors in making decisions regarding guardianship and administration orders, including the wishes and views of the person, their best interests, and their relationships with others involved in their care.

Key Take-Aways

The case of K [2018] WASAT 96 serves as a reminder of the importance of properly assessing the wishes and views of subjects in guardianship matters, as well as the potential for coaching to occur.
It also highlights the role of in camera evidence in ensuring that a subject's testimony is not influenced by external factors or other parties.