In Western Australia, guardianship matters are governed by the Guardianship and Administration Act 1990 (WA) (GA Act).
A recent decision, JL [2023] WASAT 20, provides an opportunity to examine how the Tribunal assesses the need for a guardian pursuant to s 43(1)(c) of the GA Act.
This article provide an overview of the relevant legislation and delve into the Tribunal's approach in determining whether a guardian is required.
Background
JL is a 34-year-old indigenous man who suffered a traumatic brain injury in a motor vehicle accident in 2006.
As a result, he developed a drug misuse problem, and he has been a patient of Mental Health Services since 2009.
JL's mother, BL, has been his primary carer for 16 years.
An application was made to appoint a guardian for JL, but the Public Advocate investigator did not support the appointment, arguing that JL's needs were met less restrictively through family support and existing services.
Section 43(1)(c) of the GA Act
According to s 43(1)(c) of the GA Act, the need for a guardian cannot be assessed against the ability of any guardian to give effect to the decisions made.
This principle was upheld in NCK [2004] WAGAB 6 at [64], where the workability or practicality of an order was deemed irrelevant to the statutory criteria for making a guardianship order.
Instead, the Tribunal must focus on whether there is a need for a guardian to intervene in a person's affairs.
In JL's case, the investigator submitted that there was no one more suited as a guardian than BL, as she had done more for her son than any independent guardian could hope to replicate.
The investigator argued that it was not in JL's best interests to appoint a guardian, as the least restrictive alternative was already in place through family support and existing services.
Best Interests of the Proposed or Represented Person
The primary consideration of the Tribunal must be the best interests of the proposed or represented person. In JL's case, the Tribunal considered the factors set out in s 51 of the GA Act, which include encouraging the person to live in the general community, taking their wishes into account, acting in a manner least restrictive of their rights, maintaining supportive relationships, and maintaining their familiar cultural, linguistic, and religious environment.
In weighing these factors, the Tribunal accepted the investigator's submissions that it was not in JL's best interests to appoint a guardian. The Tribunal noted that this was not a case where there was a lack of family involvement or support that would justify appointing the Public Advocate as JL's guardian against his expressed wishes and against the wishes of his family.
Key Take-Aways
The JL [2023] WASAT 20 case demonstrates that the need for a guardian under s 43(1)(c) of the GA Act is assessed based on whether there is a need for a guardian to intervene in a person's affairs, rather than the guardian's ability to give effect to decisions made.
In determining whether a guardian is required, the Tribunal must consider the best interests of the proposed or represented person, taking into account the factors listed in s 51 of the GA Act.
In some cases, as in JL's, the least restrictive alternative may be found in the support and services already in place, negating the need for a guardian.