Treatment Decisions Under the Guardianship and Administration Act in Western Australia

As a guardianship lawyer in Western Australia, I frequently come across questions related to treatment decisions for patients who are unable to make reasonable judgments in respect of their treatment.

In this blog post, I discuss the circumstances in which a “person responsible” may make treatment decisions under the Guardianship and Administration Act 1990 (WA) (GA Act). We will focus on sections 110ZD, 110ZE, 110ZJ, 110ZI, 110ZIA, and the definition of "nearest relative" as per section 3 of the GA Act.

1. Circumstances in which a person responsible may make treatment decisions (Section 110ZD)

According to Section 110ZD of the GA Act, if a patient is unable to make reasonable judgments regarding a proposed treatment, the person responsible for the patient under subsection (2) may make a treatment decision in respect of the treatment.

The person responsible for the patient is the first in order of the persons listed in subsection (3) who:

(a) is of full legal capacity;

(b) is reasonably available; and

(c) is willing to make a treatment decision in respect of the treatment.

The persons listed in subsection (3) include:

(a) the patient’s spouse or de facto partner, subject to specific age and living arrangements;

(b) the patient’s nearest relative who maintains a close personal relationship with the patient;

(c) the primary provider of care and support (including emotional support) to the patient, who is not remunerated for providing that care and support; and

(d) any other person who maintains a close personal relationship with the patient, subject to certain age requirements.

Section 110ZD also provides guidance on determining the patient's nearest relative and what constitutes a close personal relationship.

2. Section 110ZD: Determining the Patient's Nearest Relative and Close Personal Relationship

Section 110ZD of the GA Act provides detailed guidance on determining the patient's nearest relative and the criteria for establishing a close personal relationship. This information is crucial for identifying the appropriate person responsible for making treatment decisions on behalf of the patient.

A. Nearest Relative

Subsection (4) of Section 110ZD outlines the order of priority for the patient's nearest relative:

1. The spouse or de facto partner;

2. A child;

3. A parent;

4. A sibling.

For the purpose of this determination, Section 3 of the GA Act provides an extended definition of "nearest relative," which includes additional relatives such as stepchildren, foster parents, grandparents, uncles, aunts, nephews, and nieces. Furthermore, the definition considers brothers and sisters of half-blood and adopted siblings as equal to full-blood siblings.

Under the GA Act, being the eldest child carries specific importance when determining the patient's nearest relative for making treatment decisions. According to the definition of "nearest relative" in Section 3 of the GA Act, if there are two or more relatives of the same degree of relationship (e.g., siblings), the elder or eldest of those relatives shall be preferred regardless of their sex.

B. Close Personal Relationship

Section 110ZD(5) defines a close personal relationship by the following criteria:

1. The person has frequent contact of a personal (as opposed to a business or professional) nature with the patient; and

2. The person takes a genuine interest in the patient's welfare.

By meeting these criteria, a person can be considered to maintain a close personal relationship with the patient, which is a requirement for certain categories of persons listed in subsection (3) (b) and (d)(ii) of Section 110ZD.

3. Priority of treatment decision of the person responsible (Section 110ZE)

The priority to be given to a treatment decision of a person responsible for a patient under Section 110ZD is determined in accordance with Section 110ZJ.

4. Order of priority of persons who may make treatment decisions in relation to a patient (Section 110ZJ)

Section 110ZJ outlines the order of priority for persons who may make treatment decisions in relation to a patient. The priority order is as follows:

(a) a treatment decision made by the patient through an advance health directive;

(b) a treatment decision made by an enduring guardian authorized to make the decision;

(c) a treatment decision made by a guardian authorized to make the decision;

(d) a treatment decision made by the person responsible for the patient under Section 110ZD.

5. Urgent treatment provisions (Sections 110ZI and 110ZIA)

In cases where a patient requires urgent treatment and is unable to make reasonable judgments, Sections 110ZI and 110ZIA provide guidance on when a health professional may provide treatment in the absence of a treatment decision or despite a treatment decision that is inconsistent with providing the treatment.

Urgent Treatment Under the GA Act After Attempted Suicide in Western Australia

As a guardianship lawyer in Western Australia, I frequently deal with cases involving urgent treatment decisions for patients who are unable to make reasonable judgments about their healthcare.

One such situation that requires particular attention is urgent treatment after an attempted suicide.

In this blog post, I discuss the provisions in the Guardianship and Administration Act 1990 (the GA Act) that apply to these circumstances, specifically sections 110ZIA and 110ZD.

Urgent Treatment After Attempted Suicide: Section 110ZIA

Section 110ZIA of the GA Act specifically addresses the situation where a patient requires urgent treatment following an attempted suicide. Under subsection (1), this section applies if:

(a) a patient needs urgent treatment;

(b) the patient is unable to make reasonable judgments in respect of the treatment; and

(c) the health professional who proposes to provide the treatment reasonably suspects that the patient has attempted to commit suicide and needs the treatment as a consequence.

If these conditions are met, subsection (2) allows the health professional to provide the necessary treatment to the patient, despite any:

• advance health directive or

• treatment decision (even if such directive or decision is inconsistent with providing the treatment) made by the patient's:

  • guardian,

  • enduring guardian, or

  • person responsible for the patient under section 110ZD (who such a person is, is explained below).

Circumstances in Which a Person Responsible May Make Treatment Decisions: Section 110ZD

Section 110ZD of the GA Act outlines the circumstances in which a person responsible for a patient may make treatment decisions on their behalf if the patient is unable to make reasonable judgments concerning the proposed treatment.

Subsection (2) sets forth the order of priority for determining the person responsible for the patient, with the first person in the order being the patient's spouse or de facto partner (who has reached 18 years of age and is living with the patient), followed by the patient's nearest relative who maintains a close personal relationship with the patient, the primary provider of care and support to the patient (who is not remunerated for providing such care and support), and any other person who maintains a close personal relationship with the patient.

When making a treatment decision for the patient, the person responsible must act according to their opinion of the best interests of the patient (subsection (8)). A treatment decision made by the person responsible for the patient has the same effect as if the patient had made the decision and were of full legal capacity (subsection (9)).

Key Take-Aways

• In urgent treatment situations following an attempted suicide, the provisions under sections 110ZIA and 110ZD of the GA Act are crucial to ensuring that the patient receives the necessary care while respecting the patient's autonomy to the extent possible.

• Health professionals and those responsible for the patient should be aware of these provisions and their implications in order to make informed decisions about the patient's treatment and care.

Revoking an Enduring Power of Attorney in Western Australia: Mental Capacity

Enduring Powers of Attorney (EPA) serve as an essential legal document that enable a person (the donor) to appoint one or more individuals (the attorney(s)) to manage their financial affairs in the event of incapacity.

However, there are situations where the donor might want to revoke the EPA, either due to a change in circumstances or for other reasons.

In this blog post, I discuss the mental capacity required to revoke an EPA in Western Australia, using the KRL [2010] WASAT 187 decision as a reference.

Mental Capacity and the Revocation of an EPA

To revoke an EPA, the donor must possess the mental capacity to understand the nature and consequences of their decision. According to the High Court of Australia in Gibbons v Wright (1954) 91 CLR 423, the capacity to understand the nature of a transaction is determined by whether the person can comprehend the transaction when it is explained to them. In the context of revoking an EPA, the donor must understand the authority given to their attorney(s) and the consequences of taking away that authority.

In KRL [2010] WASAT 187, an elderly woman with cognitive impairment revoked her EPA, which had been operating to meet her need for financial management. However, the question of whether she was competent to make the revocation was raised by the appointed administrator. The tribunal examined whether the woman understood the nature and consequences of her decision, taking into consideration the evidence provided by her friend who had assisted her with the revocation process.

Presumption of Capacity and Guardianship and Administration Act

Under the Guardianship and Administration Act 1990 (WA) (GA Act), there is a presumption of capacity for individuals, meaning that a person is presumed capable of making reasonable decisions about their person and their estate until proven otherwise. This presumption mirrors the common law principle that a person is presumed to be capable of executing a document.

In KRL [2010] WASAT 187, the tribunal applied the principles of the GA Act and the general law to determine the woman's capacity to revoke her EPA. Although there were doubts about her understanding of the nature and consequences of her decision, the tribunal did not have the power to declare the validity or invalidity of the revocation under the GA Act.

The Role of the State Administrative Tribunal

The State Administrative Tribunal (SAT) in Western Australia has powers under the GA Act and the State Administrative Tribunal Act 2004 (WA) to deal with guardianship and administration matters. However, the GA Act does not grant the SAT declaratory powers in respect of the validity or invalidity of an EPA or the revocation of one. In cases where the validity of an EPA or its revocation is in question, the matter may be brought before the Supreme Court.

Key Take-Aways

• Revoking an EPA in Western Australia requires the donor to possess the mental capacity to understand the nature and consequences of their decision.

• While the GA Act provides a presumption of capacity, the question of whether a person is competent to revoke an EPA may still be raised in some situations.

• The SAT does not have the power to declare the validity or invalidity of an EPA or its revocation; such matters may be addressed by the Supreme Court.

• When seeking to revoke an EPA, it is wise to consult with a qualified guardianship lawyer to ensure that the legal requirements are met and the donor's intentions are carried out as intended.

Understanding the Extent to which a Guardian or Administrator is Entitled to See the Represented Person's Will in Guardianship Matters under the GA Act

In the world of guardianship and administration law, one important question often arises: to what extent is a guardian or administrator under the Guardianship and Administration Act (GA Act) entitled to see the represented person's will?

This blog post provides an overview of this subject, relying on the decision in MT [2018] WASAT 80 as a reference point.

The MT Case and Relevant Legislation

In MT [2018] WASAT 80, the question of whether a guardian or administrator should have access to the represented person's will was discussed. The Tribunal, in this case, held that it was not necessary to view the will of the represented person (MT) to determine the application for the appointment of an administrator of MT's estate in her lifetime (para 49). This was because the Tribunal's role was to determine whether MT needed an administrator for her estate, and the terms of her will were not relevant to this question (para 50).

However, the Tribunal acknowledged that the terms of a will may be relevant to the question of who may be appointed as an administrator (para 51). For example, the appointment of an executor in an unrevoked will may provide guidance to the Tribunal as to the wishes of a proposed represented person for the appointment of an administrator.

Access to the Represented Person's Will

Under the GA Act, the Public Advocate has functions to advance the best interests of the represented person at hearings, to present any relevant information to the Tribunal, and to report on any investigation referred (GA Act s 97(1)(b)(i)(ii)(iii)).

In MT, the Tribunal accepted the evidence of the Public Advocate's investigator, who gathered MT's views and wishes without requiring access to her will (para 48).

In some circumstances, access to the represented person's will may assist the administrator in clarifying the extent of the estate or determining whether further orders might be sought by the administrator for preserving the tenure or devolution of the represented person's property (para 65).

In MT, the Tribunal ordered that a copy of the will should be provided to the Public Trustee if it was in the possession of AT, one of the parties in the case (para 3).

The Importance of Best Interests

In deciding on the appointment of an administrator, the Tribunal's primary obligation is to act in the best interests of the represented person (para 63).

While the Tribunal must ascertain the wishes of the represented person, it must weigh these wishes against factors such as the complexity of the circumstances, the conflict between family members, and the expertise and neutrality of the proposed administrator.

Key Take-Aways

• In summary, under the GA Act, a guardian or administrator is not automatically entitled to see the represented person's will.

• The terms of the will may be relevant to determining who should be appointed as an administrator, but the focus should be on the best interests of the represented person.

• Access to the will may be granted in some cases to assist the administrator in fulfilling their duties, but this will depend on the specific circumstances of each case.

The Tribunal's Role in Preserving Testamentary Intentions in Guardianship Matters

In guardianship matters, the issue of preserving a represented person's testamentary intentions as reflected in their Will can be quite complex.

A decision by the State Administrative Tribunal of Western Australia, JEB [2016] WASAT 65, sheds light on the role of the Tribunal in such cases, particularly when it comes to making directions regarding the way funds are held by administrators.

In this blog post, I delve into the key aspects of the JEB case and examine the Tribunal's approach in balancing the best interests of the represented person while preserving their testamentary wishes.

Case Summary: JEB [2016] WASAT 65

In JEB [2016] WASAT 65, the Public Trustee sought the removal of the existing family member joint administrators and also certain directions as to the way in which funds from the sale of certain assets of the estate should be held. Assets specifically gifted by the represented person in her Will had been sold by the administrators who were unaware of the existence of the Will. The Public Trustee was the executor of the Will.

The Tribunal appointed the Public Trustee as plenary administrator and made the directions sought by the Public Trustee regarding the separation of the proceeds of sale from the balance of the estate and their quarantining from use in inter vivos expenditure until the balance of the represented person's funds were depleted.

The Tribunal found that affordable actions taken to maximize the chances that a represented person's testamentary wishes as reflected in a Will are able to be carried out constitutes acting in their best interests, even if it represents a financial cost to their estate inter vivos, and that it is a matter of balance for the administrator to determine depending upon the circumstances of the person and their estate.

Relevant Case Law

The Public Trustee relied on the case of Re Hartigan; ex parte The Public Trustee in the State of Western Australia (unreported, Supreme Court of Western Australia, 9 December 1997, Library No. 970736) (Re Hartigan) to support the proposition that if real estate is sold by an administrator and the testator is not capable of changing his or her will, then the gift of real estate is not automatically adeemed. The devisee is instead entitled, at face value, to the proceeds of sale. Re Hartigan followed a case of Re Viertel [1997] 1 Qd R 110 (Re Viertel).

However, there was some disagreement in the case law as to whether the principles in Re Hartigan still apply and, if so, how. The Tribunal referred to Simpson v Cunning [2011] VSC 466 (Simpson) and RL v NSW Trustee and Guardian [2012] NSWCA 39 (RL) as cases expressing doubts about the state of the law and calling for legislative intervention.

Legislative Provisions

The Guardianship and Administration Act 1986 (Vic) contained provisions addressing ademption of property when there was an administrator appointed under that Act. However, there was no similar provision covering when there was an enduring power of attorney.

The Guardianship and Administration Act 2000 (Qld) allowed the Supreme Court of Queensland to award compensation for loss of benefits in an adult's estate due to a sale or other dealing with the adult's property by an administrator, but there was no such provision in the GA Act.

Tribunal's Findings

The Tribunal in JEB [2016] WASAT 65 was satisfied that the represented person was a person for whom orders could and should be made. The Tribunal appointed the Public Trustee as the administrator of last resort and made the directions sought by the Public Trustee regarding the handling of the proceeds from the sale of the specifically gifted assets.

In making its decision, the Tribunal acknowledged the complexities and uncertainties in the current state of the law regarding ademption of specifically gifted assets when they are sold by an administrator. Despite the doubts expressed in cases like Simpson and RL, the Tribunal found that the principles in Re Hartigan and Re Viertel were applicable in the present case. Thus, the devisee was entitled to the proceeds of sale for the gifted assets.

The Tribunal emphasized that while the best interests of the represented person should be the primary concern of an administrator, preserving the person's testamentary intentions was also an important consideration. The Tribunal recognized that ensuring the represented person's wishes were upheld may sometimes come at a cost to their estate during their lifetime. However, the Tribunal held that it was a matter of balance and that affordable actions taken to maximize the chances of fulfilling the person's testamentary wishes were in their best interests.

Key Take-Aways

• The JEB [2016] WASAT 65 case highlights the Tribunal's role in guardianship matters, where preserving testamentary intentions is a key concern.

• The decision provides valuable insight into how the Tribunal may approach such cases, balancing the best interests of the represented person and their testamentary wishes, even when the law is unclear.

• The case also serves as a reminder of the importance of legislative intervention to provide clearer guidance for administrators and the courts when dealing with ademption of specifically gifted assets. In the absence of clear legislative provisions, the Tribunal's approach in JEB [2016] WASAT 65 provides a valuable example of how the courts may navigate the complexities and uncertainties in the current state of the law.

Section 85 Applications under the Guardianship and Administration Act - A Closer Look

Guardianship lawyers in Western Australia are often faced with complex cases involving the welfare and best interests of vulnerable individuals.

One aspect of guardianship law that may arise is an application made pursuant to section 85 of the Guardianship and Administration Act 1990 (WA) (GA Act).

This blog post provides an overview of section 85 applications, focusing on the grounds for review, the relevant legislative provisions, and some key considerations based on a recent decision by the State Administrative Tribunal (SAT) in NE [2023] WASAT 30.

Section 85: Circumstances for Review of Guardianship or Administration Orders

Section 85 of the GA Act outlines the circumstances in which the SAT is required to review a guardianship or administration order.

A review may be initiated by any person and must be carried out as soon as practicable after the application for review is made (s 85(2), (3)).

The SAT is required to review an order if a guardian or administrator:

a) dies;

b) wishes to be discharged;

c) has been guilty of neglect, misconduct, or default that renders them unfit to continue in their role;

d) appears to be incapable due to mental or physical incapacity;

e) is a bankrupt or under insolvency laws; or

f) being a corporate trustee, has ceased business, begun winding up, or is under official management or receivership.

In NE [2023] WASAT 30, the applicants sought a review of the administration order under s 85(1)(c), claiming that the Public Trustee had engaged in neglect or misconduct that rendered them unfit to continue as administrator.

Key Issues Raised in the Section 85 Application

Three key issues were raised in the application for review in NE:

1. The alleged failure of the Public Trustee to comply with obligations under s 47 of the Public Trustee Act 1941 (PT Act) regarding providing information and documents to the applicants (referred to as the "agency issue");

2. The issue of a letter of demand to the former partner of NE; and

3. The alleged failure of the Public Trustee to comply with obligations under s 70 of the GA Act, which requires acting in the best interests of NE, including consulting with her or members of her family before agreeing to consent orders in the Family Court.

The SAT's Approach to Section 85 Reviews

The SAT's approach to section 85 reviews was discussed in RK [2022] WASAT 112, where the Full Tribunal noted that the SAT is not responsible for reviewing the merits of individual decisions made by a guardian or administrator, as reasonable minds may differ on their merits.

The guardian or administrator's obligation is to act in the best interests of the represented person.

Consequently, a review under section 85(1)(c) is confined to cases of serious neglect, misconduct, or default that render the guardian or administrator unfit to continue in their role.

Outcome in NE [2023] WASAT 30

In NE, the State Administrative Tribunal (SAT) carefully examined the allegations made by the applicants under section 85(1)(c) of the GA Act, which centred on the Public Trustee's exercise of decision-making authority and judgment in their role as administrator.

Regarding the first issue (the agency issue), the applicants argued that the Public Trustee failed to provide necessary information and documents relevant to Family Court proceedings, as required under section 47 of the Public Trustee Act 1941 (PT Act).

The SAT considered the evidence presented, including the fact that the Tribunal had authorized disclosure by the Public Trustee to the applicants in October 2021. Despite this, the applicants claimed that they had not been informed of the progress of the divorce application or any financial settlement made for NE. The SAT, however, found that there was no clear evidence of neglect or misconduct by the Public Trustee in relation to this issue.

In relation to the second issue, the issuance of a letter of demand to NE's former partner, the applicants did not provide sufficient evidence or arguments to demonstrate that the Public Trustee's actions amounted to neglect, misconduct, or default that would render them unfit to continue as an administrator.

Concerning the third issue, the applicants alleged that the Public Trustee failed to act in NE's best interests by not consulting her or her family members before agreeing to consent orders in the Family Court, as required under section 70 of the GA Act. The SAT considered the conflicting evidence on this point, including communication with family members within the limitations of various restrictions operating in the case. The Tribunal ultimately determined that the matters raised by the applicants did not support a finding of neglect, misconduct, or default on the part of the Public Trustee.

Given the careful analysis of the issues raised by the applicants and the evidence presented, the SAT concluded that the applicants failed to demonstrate that the Public Trustee had engaged in serious neglect, misconduct, or default as required under section 85(1)(c) of the GA Act.

As a result, the Tribunal dismissed the application for review, allowing the Public Trustee to continue in their role as administrator.

This outcome in NE [2023] WASAT 30 highlights the importance of presenting compelling evidence and well-reasoned arguments in support of a section 85 application.

When Does an Enduring Power of Guardianship Become Valid in Western Australia?

In this blog post, I explain the process and requirements surrounding the validity of an enduring power of guardianship (EPG) in Western Australia, using the recent case BJT [2022] WASAT 73 as a reference.

Background of the Case

The BJT case involves a 70-year-old man with dementia whose family members had differing opinions on how best to support him.

The case led to applications under the GA Act by BJT's wife, PMT, to the Tribunal in late January 2022.

PMT sought a declaration of incapacity that would bring into force an EPG by which BJT had appointed her as his enduring guardian in November 2021, with his son from his first marriage, DRT, as a substitute.

Relevant Legislation

Sections 110B and 110E of the GA Act outline the basis on which a person may execute an EPG:

- Section 110B states that a person who has reached 18 years of age and has full legal capacity may make an EPG appointing a person as the enduring guardian or two or more persons as joint enduring guardians.

- Section 110E sets out the formal requirements for an EPG, including the need for the document to be signed by the appointor, witnessed by two persons, and signed by the appointees (both the enduring guardian and any substitute enduring guardian) to indicate their acceptance of the appointment.

The BJT Case and Validity of the EPG

In the BJT case, the November 2021 EPG was executed by BJT after a recommendation by a specialist geriatrician.

BJT appointed PMT as his enduring guardian and DRT as the substitute. However, DRT's refusal to sign for acceptance of his role as substitute guardian raised the question of whether this rendered the entire EPG invalid.

The Tribunal’s Analysis

The Tribunal examined the statutory interpretation of s 110E(1)(e) of the GA Act, which stipulates that an EPG is not valid unless signed by each person being appointed as an enduring guardian or substitute enduring guardian, indicating their acceptance of the appointment.

In light of the case, the Tribunal delved into the text, context, and purpose of the provisions to better understand the legislation's intent.

To facilitate interpretation, the Tribunal referred to s 18 of the Interpretation Act 1984 (WA), which emphasizes promoting the purpose or object underlying the written law.

The long title of the GA Act and s 4 of the Act demonstrate a focus on providing decision-making assistance to those in need, offering various means to achieve this, and preserving freedom of decision and action wherever possible. This approach aligns with the least restrictive principle in s 4(4) and s 4(6) of the GA Act.

In assessing the meaning of a provision, the Tribunal also considered extrinsic material, such as the second reading speech for the GA Act. The speech highlights the Act's aims to allow individuals with competence to function independently and protect civil liberties through the right of appeal when guardianship or administration orders are made. This further demonstrates the emphasis on freedom of decision and action within the GA Act.

The Tribunal concluded that a rigid literalist interpretation of s 110E(1)(e) would be inconsistent with the GA Act's overall purpose, which focuses on preserving an individual's freedom of decision and action.

A strict interpretation could potentially undermine the Act's objectives by giving a substitute guardian the power to invalidate the entire EPG by simply refusing to sign their acceptance.

Instead, the Tribunal favored a construction that aligns with the context and purpose of the GA Act. They determined that s 110E(1)(e) requires a person to sign their acceptance to bring their own appointment into force, but the absence of a signature from a substitute guardian does not invalidate other parts of the EPG, such as the appointment of the enduring guardian. The substitute guardian's decision not to sign only affects their own appointment, which only comes into effect under specified circumstances.

Based on this analysis, the Tribunal found the November 2021 EPG to be valid, as the refusal of the substitute guardian to sign did not render the entire document invalid.

The appointment of the enduring guardian, PMT, was not affected, and it remained possible for the substitute guardian to sign the document and accept their appointment until the EPG is revoked.

The Tribunal's Decision

The Tribunal determined that the preferable construction of s 110E(1)(e) is one that recognizes the donor's competent appointment of the enduring guardian, even if the proposed substitute guardian does not sign to accept their appointment.

In the BJT case, this meant that PMT's appointment as the enduring guardian was considered valid, despite DRT's refusal to sign for acceptance of his role as substitute guardian.

Key Take-Aways

• In summary, the BJT case provides an insightful example of the considerations involved in determining the validity of an EPG under the GA Act.

• Based on this decision, a substitute guardian does not have the power to invalidate the entire EPG by simply refusing to sign their acceptance.

Coaching of Subjects and In Camera Evidence in Guardianship Matters: A Look at K [2018] WASAT 96

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.

The Role of Statutory Interpretation in Guardianship and Administration Proceedings in Western Australia

In guardianship and administration proceedings, the State Administrative Tribunal (SAT) is responsible for interpreting and applying the provisions of the Guardianship and Administration Act (GA Act) to ensure the best interests of vulnerable individuals are upheld.

This blog post explores how the Tribunal engages in statutory interpretation in relation to the provisions of the GA Act, using insights from the decision in GG [2021] WASAT 133.

Protective Nature of the GA Act

The GA Act is a form of protective legislation designed to provide safeguards for individuals with impaired cognition, who may be at risk of making decisions contrary to their best interests or vulnerable to the decision-making of others (SM[2015] WASAT 132 at [7]).

It allows for the appointment of guardians for personal decision-making and administrators for financial decision-making under specific circumstances.

Principles Governing the GA Act

The starting point for any proceedings under the GA Act is the observance of the principles set out in section 4.

The primary concern of the Tribunal is the best interests of the person in respect of whom orders have been made or proposed (referred to as the represented person) (GG [2021] WASAT 133 at [27]).

Other principles include the presumption of capacity, the need for orders to be necessary and least restrictive, and the consideration of the represented person's views and wishes (GG [2021] WASAT 133 at [27]).

Key Provisions Relevant to Guardianship and Administration Orders

The process involved in making guardianship and administration orders can be summarised in the following steps, as outlined in SM (GG [2021] WASAT 133 at [28]):

1. Determine the represented person's capacity.

2. If incapacity is established, assess whether the represented person is in need of guardianship and administration orders.

3. If orders are needed, decide the authority granted to the guardian and administrator, who should be appointed, and the review date.

Statutory Interpretation of the GA Act

To resolve matters in contention and apply the GA Act, the Tribunal must engage in statutory interpretation, ensuring that each provision is interpreted consistently with the language and purpose of the entire statute (GG [2021] WASAT 133 at [30]). Key considerations and approaches that promote this objective include:

a) Anchoring the construction of legislation in the text itself, but considering its context and purpose (GG [2021] WASAT 133 at [30]).

b) Considering statutory context from the beginning of the interpretation process (GG [2021] WASAT 133 at [30]).

c) Favouring constructions that promote congruity or coherence between intersecting provisions (GG [2021] WASAT 133 at [30]).

d) Ensuring each provision in a legislative instrument has 'work to do' (GG [2021] WASAT 133 at [30]).

e) Taking into account the existing state of the law, the history of the legislative scheme, and the mischief the statute is directed at (GG [2021] WASAT 133 at [30]).

f) Identifying legislative purpose through objective statutory construction, rather than searching for legislators' intentions or superimposing a 'desirable' policy objective (GG [2021] WASAT 133 at [30]).

Key Take-aways

• The process of statutory interpretation plays a critical role in the application of the GA Act in guardianship and administration proceedings.

• By adhering to the principles and key provisions of the GA Act, and engaging in a thoughtful process of statutory interpretation, the Tribunal ensures that the best interests of vulnerable individuals are protected and upheld.

Understanding Section 43 of the Guardianship and Administration Act in Western Australia

As a guardianship lawyer in Western Australia, I regularly consider section 43 of the Guardianship and Administration Act when assessing how to best advocate for my clients.

This section is crucial when it comes to making guardianship orders for adults who need assistance in their personal affairs.

In this blog post, we will explore section 43 and how it is applied in light of the recent decision GG [2021] WASAT 133.

Section 43 - Making of Guardianship Order

According to section 43(1) of the Guardianship and Administration Act, the State Administrative Tribunal can make a guardianship order if it is satisfied that a person:

a) has attained the age of 18 years;

b) meets at least one of the following criteria:

i) is incapable of looking after their own health and safety;

ii) is unable to make reasonable judgments in respect of matters relating to their person; or

iii) is in need of oversight, care or control in the interests of their own health and safety or for the protection of others.

Section 43(1) must be read together with section 4 of the Act, which contains various presumptions about a person's capacity. In particular, section 4(3)(c) presumes that a person is capable of managing their own affairs.

The Nature and Operation of Section 43(1)(b)

In the case of GG [2021] WASAT 133, the Tribunal analysed the nature and operation of section 43(1)(b).

It was noted that this section deals with the question of capacity in a global sense, rather than focusing on the ability to make specific decisions.

Each of the three criteria in section 43(1)(b) has a distinct meaning and application, and they must be read together.

The first criterion (i) is concerned with a person's functional incapacity, specifically their inability to look after their own health and safety.

The second criterion (ii) focuses on an inability to make reasonable judgments, pertaining to any or all matters relating to the person.

The third criterion (iii) refers to a need for oversight, care or control.

Assessing a Person's Capacity

In GG [2021] WASAT 133, the Tribunal provided guidance on assessing a person's capacity to make reasonable judgments about matters relating to their person.

This assessment should be:

a) conducted on both an objective and subjective basis;

b) based on the particular personal needs and decisions that the person may be called upon to make; and

c) evaluated in light of whether the person has the ability to understand, retain, and weigh up relevant information, appreciate the consequences of their decisions, and implement those decisions.

Meaning and Application of the Third Criterion in Section 43(1)(b)(iii)

The meaning and application of the third criterion in section 43(1)(b)(iii) of the Guardianship and Administration Act has been the subject of differing interpretations in previous Tribunal decisions.

In particular, two cases - G [2017] WASAT 108 and KRM [2017] WASAT 135 - presented contrasting views on whether the criterion could stand on its own or if it required overcoming the presumption of capability first.

The GG [2021] WASAT 133 decision offered clarity on the interpretation of this specific criterion.

In the GG [2021] WASAT 133 decision, the Tribunal clarified the interpretation of the third criterion in section 43(1)(b)(iii). The decision emphasised that each of the three criteria should not be construed in isolation, and the context of the Act should be taken into consideration. The Tribunal determined that the term "need" in the third criterion should be understood as reflective of the incapacity of a person to manage their own affairs, and therefore, it should not be viewed as a self-standing ground for intervention.

The GG [2021] WASAT 133 decision further expounded on the third criterion, stating that the need for oversight, care, or control is directed towards a person's functional incapacity. This means that the focus should be on a person's inability to be self-directed, exercise control, and make decisions about their own care or avoid putting others at risk. The decision also highlighted that the language of the provision is widely cast, addressing the consequences of a person's functional incapacity without specifically targeting the cause.

The GG [2021] WASAT 133 decision successfully reconciled the differing views from the Ms G and KRM cases, offering a balanced interpretation of the third criterion in section 43(1)(b)(iii). By focusing on functional incapacity and placing the criterion within the broader context of the Act, the decision provided a more comprehensive understanding of the meaning and application of this criterion in guardianship cases.

Key take-aways

• Section 43 of the Guardianship and Administration Act plays a critical role in determining whether a guardianship order should be made for a person who needs assistance in their personal affairs.

• Understanding the construction and application of this section is essential for guardianship lawyers and individuals involved in guardianship matters.

• By examining the GG [2021] WASAT 133 decision, we gain valuable insight into the interpretation and application of section 43(1)(b) and the criteria that must be satisfied before a guardians