Appointing Research Decision-Makers for Represented Persons

Introduction

A research decision-maker may be appointed by the State Administrative Tribunal (Tribunal) under the Guardianship and Administration Act 1990 (WA) (GA Act) to make decisions about a represented person's participation in medical research. This appointment power was introduced by the Guardianship and Administration Amendment (Medical Research) Act 2020 (WA), which inserted Part 9E into the GA Act to regulate decision-making about medical research participation.

The Tribunal has jurisdiction to appoint a research decision-maker where it is satisfied that the represented person lacks capacity to make their own decisions about participation in medical research and that there is a need to appoint a substitute decision-maker to make such decisions in the represented person's best interests (see DAH [2023] WASAT 102 at [13], [43], [138]-[139]).

This blog examines the statutory framework governing the appointment of research decision-makers and the principles derived from the leading Tribunal decision on research decision-maker appointments, DAH [2023] WASAT 102.

Statutory Framework

Part 9E of the GA Act establishes a regime for substitute decision-making regarding medical research participation. Key aspects of the legislative scheme are:

• The Tribunal may appoint a research decision-maker with the function of making 'research decisions' on behalf of a represented person who lacks capacity to make their own decisions about participation in medical research (see GA Act ss 43, 45(2)(i), 46(2)(i); DAH at [28]-[35]).

• A 'research decision' means a decision to consent or refuse consent to a person's participation in 'medical research' (see GA Act s 3).

• 'Medical research' is defined broadly, with limited exceptions, as research conducted with or about individuals in the field of medicine or health (see GA Act s 3AA; DAH at [38]-[41]).

• Certain criteria must be satisfied before a research decision-maker can consent to a represented person's participation in medical research (see GA Act ss 110ZR, 110ZU, 110ZW; DAH at [42]-[57]). These include:

• The research must be approved by a Human Research Ethics Committee (GA Act s 110ZR(1)(a));

• The represented person must be unable to make reasonable judgments about research participation (GA Act s 110ZR(1)(b));

• The research decision-maker must obtain a medical opinion that the represented person is unlikely to regain capacity within the research timeframe (GA Act s 110ZR(1)(c));

• An independent medical practitioner must determine that participation will be in the represented person's best interests or not adverse to their interests (GA Act ss 110ZR(2)(b), 110ZU); and

• The research decision-maker must be satisfied about the nature and risks of the research (GA Act s 110ZR(2)(c)).

Principles from DAH

The leading Tribunal decision on the appointment of research decision-makers is DAH [2023] WASAT 102. Some key principles derived from DAH regarding the appointment of research decision-makers are:

Jurisdiction

• The Tribunal has jurisdiction to appoint a research decision-maker where the represented person proposes to participate in medical research concerning a condition from which they do not suffer. While some provisions in Part 9E assume the research concerns a condition affecting the represented person, those provisions can be applied even if that is not the case (DAH at [58]-[75]).

• The definitions of 'research decision' and 'medical research' in the GA Act are broad and not limited to particular types of medical research. The absence of words limiting research to the represented person's own medical conditions indicates Parliament did not intend to impose such a limit (DAH at [63]-[65]).

• Construing Part 9E to apply even where the represented person does not have the relevant medical condition facilitates the protective purpose of guardianship laws (DAH at [75]).

Capacity

• The represented person must be unable to make reasonable judgments in their own best interests regarding participation in medical research in order for the Tribunal to appoint a research decision-maker (DAH at [125]-[127]).

• Informed consent requires the ability to understand complex information, ask appropriate questions, weigh alternatives and appreciate risks and benefits (DAH at [126]). Intellectual disability, comprehension and communication deficits may impede capacity for informed consent (DAH at [128]-[137]).

• The presumption of capacity in GA Act s 4 can be displaced by evidence of intellectual disability affecting functions like language, memory and concentration that are critical for research participation decisions (DAH at [128]-[137]).

Need

• The appointment of a research decision-maker must be needed to make decisions in the represented person's best interests about research participation. Need may arise where the represented person actively wishes to participate in research, has an intellectual disability, and is financially vulnerable such that participation may exploit that vulnerability (DAH at [140]-[144]).

• Appointment of a research decision-maker has a protective purpose by legally preventing participation where the represented person lacks capacity, even if they express willingness to participate (DAH at [143]).

Who may be appointed

• Consistent with guardianship laws, the Public Advocate may only be appointed as research decision-maker if there is no one else suitable and willing (DAH at [145]-[147]).

Best interests

• The independent medical practitioner advising on best interests is limited to considering medical interests, not financial interests (DAH at [78]-[84]).

• The research decision-maker should also give limited or no weight to financial benefits when deciding if participation is in the represented person's best interests (DAH at [80]-[84]).

Facts of the case

The applicant in this case was the support coordinator for DAH, a represented person under the Guardianship and Administration Act 1990 (WA) (GA Act). DAH, who was 23 years old at the time, had been subject to guardianship orders since she was 18 appointing the Public Advocate as her limited guardian to make decisions about the services she accesses.

The application concerned DAH's proposal to participate in medical research in return for payment. DAH had applied to take part in a trial conducted by a medical research company. The trial would involve 11 days of confinement in a clinic with medical testing and examinations. DAH was interested in participating to earn the payment offered, which was a substantial sum.

However, it emerged that DAH did not suffer from the medical condition that was the subject of the research. The applicant was concerned that DAH lacked capacity to make a decision in her own best interests regarding involvement in the trial. The applicant sought review of DAH's guardianship orders, requesting the Tribunal appoint the Public Advocate as DAH's research decision-maker with the function of making decisions about her participation in medical research.

The application required the Tribunal to consider whether DAH had capacity to decide on research participation herself and, if not, whether there was a need to appoint a substitute research decision-maker to make such decisions for DAH. The Tribunal had to interpret the scope of the provisions in Part 9E of the GA Act, which govern the appointment of research decision-makers, given DAH's situation.

Conclusion

The appointment of research decision-makers for represented persons who lack capacity is now an important aspect of guardianship law in Western Australia. DAH [2023] WASAT 102 provides authoritative guidance on the interpretation of Part 9E of the GA Act and how the Tribunal should approach the appointment of research decision-makers. Key considerations include whether the represented person has capacity for informed consent, whether there is a need for substitute decision-making, who is the appropriate decision-maker, and what factors determine the represented person's best medical interests.

To Name or Not to Name? An Analysis of Confidentiality Exceptions for Identifying Parties in Guardianship Proceedings

Introduction

The decision in Australian Broadcasting Corporation v Public Trustee [2022] WASC 85 concerned an application by the ABC under cl 12(8)(d) of sch 1 of the Guardianship and Administration Act 1990 (WA) (the Act) for a direction permitting it to publish reports about guardianship proceedings which identified the parties involved.

The facts concerned an application brought by one of AC's children resulting in orders appointing the daughter as AC's guardian and the Public Trustee as administrator of AC's financial affairs. AC died 15 months later.

The ABC sought to include AC's case in a Four Corners report on the Public Trustee system and public guardian nationally. The children of AC consented to being identified.

The key issue was the construction of cl 12(8)(d) and whether the court had a general discretion or whether exceptional circumstances had to be shown.

Facts

The facts are set out at [6]-[12].

In summary, the ABC was investigating the Public Trustee and public guardian systems nationally and sought to include AC's case as one of four case studies in a Four Corners report ([6]-[9]).

Orders were made in June 2015 appointing AC's daughter as guardian and the Public Trustee as administrator.

AC died 15 months later in September 2016 ([10]). AC's children consented to the application and being identified ([11]-[12]).

Law

The general position under the Act is confidentiality of proceedings, evidenced by ss 112-113 and sch 1 ([15]-[16]). The exceptions are set out in sch 1 cl 12(8), including cl 12(8)(d) which permits publication pursuant to a direction of the Tribunal or court ([16]).

The requirement for confidentiality is consistent with the protection afforded to vulnerable members of the community ([26]). However, statutes affecting open justice should be construed to minimise intrusion on that principle where possible: Hogan v Hinch [2011] HCA 4 at [27] ([28]).

In construing cl 12(8)(d), the ordinary meaning of "notice" and "report" should be adopted in the absence of any contrary intention ([29]-[30]). The clause confers a general discretion on the court, subject only to limits implied from the Act's scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [15] ([33]).

Guidance can be obtained from Family Court decisions on the identically worded Family Law Act provision: AH v SS (2005) 194 FLR 111 at [10]-[11] ([31]-[32]). However, there are no express constraints on the discretion and the court should not impose any not implied from the Act's scope and purpose ([37]).

All logically relevant factors should be considered including privacy, freedom of communication and the represented person's position ([37]).

Analysis

French CJ's statement in Hogan v Hinch supports a broad construction of cl 12(8)(d) to minimise intrusion on open justice ([28]).

The ordinary meaning of "notice" and "report" encompasses the proposed Four Corners program ([29]-[30]).

The clause confers an unconstrained discretion subject only to limits implied from the Act's scope and purpose ([33]).

While guidance can be obtained from Family Court decisions ([31]-[32]), no constraints on the discretion should be imposed other than those implied from the Act ([37]).

Logically relevant factors include privacy, freedom of communication and the represented person's position ([37]).

Here, AC was deceased and the children consented ([39]).

There was public interest in the Public Trustee's operations and the Act's operation ([40]).

The rights of AC and others would not be unduly infringed by the direction. In all the circumstances, the discretion should be exercised to permit identification ([41]).

Assessing Capacity: Independence of Decision-Making Under the GA Act

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.

Awards of Costs in Guardianship Proceedings: Exceptions to the General Rule

Introduction

In CK [2023] WASAT 84, the State Administrative Tribunal considered whether to make a costs order in a guardianship and administration matter.

CK, an elderly man with dementia, was the subject of applications by his children P and V relating to the validity of enduring powers and the appointment of an administrator and guardian.

P sought an order that V or CK pay some or all of his legal costs.

The Tribunal held that the circumstances were not sufficiently exceptional to justify a departure from the starting position that parties bear their own costs.

Legal principles

The Tribunal's primary concern in guardianship and administration proceedings is the best interests of the person concerned (CK [2023] WASAT 84 at [15], citing Guardianship and Administration Act 1990 (WA) s 4(2)).

Under s 16(4) of the Guardianship and Administration Act 1990 (WA), the Tribunal has discretion to order costs be paid to a party by the represented person if satisfied the party acted in the represented person's best interests.

However, such awards are uncommon, generally only when the applicant's actions benefit the represented person (CK [2023] WASAT 84 at [16]-[17], citing Y and CO [2020] WASAT 166 at [32] and Re WA and IA Ex parte AA and JA [2011] WASAT 33 at [59]-[60]).

The starting point is that parties bear their own costs (CK [2023] WASAT 84 at [18]-[19], citing RK [2020] WASAT 53 (S) at [22] and State Administrative Tribunal Act 2004 (WA) s 87(1)).

Under s 87(3) of the State Administrative Tribunal Act 2004 (WA), the Tribunal may order a party to compensate another party's expenses resulting from the proceeding, although not to punish (CK [2023] WASAT 84 at [20], citing Blaskiewicz and The Owners of 7 Henderson Street Fremantle (Strata Scheme 74918) [2021] WASAT 56 at [61]).

The Tribunal has discretion to award costs in any proceeding, to be exercised based on the circumstances and whether it is fair and reasonable (CK [2023] WASAT 84 at [21], citing GD [2022] WASAT 33 at [59]).

Relevant considerations include whether a party unnecessarily prolonged the hearing, acted unreasonably, or caused increased costs through unreasonable conduct (CK [2023] WASAT 84 at [21], citing GD [2022] WASAT 33 at [59]).

Analysis

In CK's case, the Tribunal held the circumstances were not sufficiently exceptional to justify departing from the starting point that parties bear their own costs.

P argued legal representation was required due to the complexity and his fraught relationship with V. He was not precluded from applying without legal advice as he was an admitted but non-practicing lawyer.

The conflict and allegations were not unusually complex for guardianship proceedings (CK [2023] WASAT 84 at [27]-[33]).

Prior cases awarding costs involved greater incapacity uncertainty, property transactions by the represented person, or applicants unreasonably pursuing applications (CK [2023] WASAT 84 at [31]-[32], citing Re IO; Ex parte VK [2008] WASAT 8 and LC and JS [2007] WASAT 127).

Regarding V paying P's costs, the Tribunal held V's irrelevant evidence about P did not warrant compensation. P incurred further expense obtaining translations unnecessarily after investigations commenced (CK [2023] WASAT 84 at [37]-[40]). The flaws in V's submissions did not cause delay or obstruction (CK [2023] WASAT 84 at [41]-[42]).

Prior cases awarding costs involved more sustained unreasonableness or inappropriate conduct (CK [2023] WASAT 84 at [43]-[45], citing Re WA and IA Ex parte AA and JA [2011] WASAT 33, PJC and RJC [2008] WASAT 224 and WD [2022] WASAT 12 (S)).

Conclusion

The circumstances did not justify departing from the starting position that parties bear their own costs. Awards of costs in guardianship and administration proceedings remain exceptional.

Assessing Capacity: Weighing the Evidence in Guardianship and Administration Proceedings

A key issue in guardianship and administration proceedings is assessing whether the person has capacity to make reasonable judgments about personal, medical and financial matters. The State Administrative Tribunal must be satisfied the person lacks capacity in the relevant domain before making guardianship or administration orders (Guardianship and Administration Act 1990 (WA), ss 43, 64).

The Tribunal's primary consideration is the best interests of the person (s 4(2)). Every person is presumed capable until proven otherwise (s 4(3)). Orders should not be made if less restrictive alternatives are available (s 4(4)). The person's views and wishes must be ascertained and considered (s 4(7)).

In the decision of NB [2023] WASAT 88, the State Administrative Tribunal considered an application to appoint an administrator for NB due to concerns about her vulnerability to financial scams.

NB and her husband LB had inherited around $700,000. However, over a short period NB spent or committed to spend all but $75,000 - $80,000 of her share through involvement in an online romance scam. Despite strong evidence she was being defrauded, NB persisted in sending money for a car she believed was gifted by a famous musician she was in contact with online.

NB relied on financial help from family for living expenses while providing money to scammers. Medical evidence indicated NB had mild cognitive impairment affecting financial judgement.

The Tribunal weighed all evidence in concluding NB lacked capacity for financial matters and required an administrator to protect her estate.

A finding of incapacity must be based on evidence, not assumptions. As stated in XYZ (Guardianship) [2007] VCAT 1196 at [69], cognitive tests like the Mini Mental State Examination can place too much weight on language, education and cultural factors. Direct observation of functioning may be more insightful (XYZ at [66]).

The definition of 'mental disability' is inclusive, not exhaustive, and does not require a medical diagnosis (FY [2019] WASAT 118 at [32]). The cause may be unclear but the disability evident. The key issue is whether the person can make reasonable judgments in the relevant domain.

Medical evidence will often be important. In NB [2023] WASAT 88, greater weight was placed on evidence of a consultant physician over a GP. MRI and PET scans showed mild cerebral abnormalities but no neurodegenerative dementia. However, the doctor considered the represented person still had some vulnerability to financial scams and uncertainty judging complex finances (NB at [25]-[27]).

Non-medical evidence provided further proof of incapacity. The represented person's persistent vulnerability to scams, inability to critically evaluate fraud warnings, dismissiveness of family advice, anger at their interventions, and continuing belief she was in contact with a famous musician she admired showed lack of insight and judgement (NB at [29]-[40]).

Assessing capacity requires analysing and weighing all evidence. Medical evidence alone may not indicate incapacity, especially if the person functions highly in other respects. But corroborating non-medical evidence of impaired functioning in daily life can prove incapacity.

Tribunals must evaluate the person's ability to make reasonable judgements in the relevant domain - personal/lifestyle, medical, financial and legal affairs. Financial capacity requires balancing income against necessary living expenses and financial goals, devising a budget, assessing contracts and expenditure, meeting debts, and resolving problems (FY at [53]).

In NB, despite intelligence and past financial responsibility, the represented person lacked reasonable financial judgement. She relied on family for living expenses while sending money to scammers, wanted to spend most of a sizeable inheritance on a luxury car, and would likely deplete remaining funds rapidly without prudent management (NB at [42]-[46]). This demonstrated inability to budget, prioritise essentials, understand contracts and expenditure implications, and meet debts.

The Intersection of Ademption and Guardianship: A Detailed Exploration

In guardianship law in Western Australia, the intersection of the principle of ademption and the provisions of guardianship and administration sometimes give rise to complex legal issues.

Ademption: An Overview

Ademption is a legal principle that, in essence, stipulates that a specific gift in a will ceases to exist, or is 'adeemed', if the asset or property is disposed of prior to the death of the testator.

This results in the intended beneficiary neither receiving the specific item nor any substitution. However, exceptions to this principle exist in instances of fraud or if the disposal lacked appropriate legal authority.

The Case "ISH [2021] WASAT 169" in Context

ISH [2021] WASAT 169 is a case wherein the principle of ademption was central to the Tribunal's deliberation.

The issue involved potential sale of a house that had been bequeathed in a will purportedly executed in 2007. The crux of the matter was the appropriate treatment of the sale proceeds: should these be merged with the general estate or held separately to uphold the intended bequest?

Interplay with Guardianship and Administration Act 1990 (WA)

The Guardianship and Administration Act 1990 (WA) (the GA Act) proved instrumental in this case.

Section 72 and certain parts of Schedule 2 of the GA Act provide the Tribunal with wide-ranging discretionary powers to maintain the nature or quality of any property within an estate.

This includes directing that the sale proceeds of an asset be placed in a separate bank account.

The Implication in "ISH [2021] WASAT 169"

In ISH [2021] WASAT 169, these provisions were invoked to safeguard the proceeds from the sale of the represented person's house from being amalgamated with the general estate.

This potential amalgamation may have impaired the applicant's claim to these proceeds, thereby potentially contravening the testator's intent.

The Tribunal's handling of the law of ademption in an earlier case, JEB [2016] WASAT 65, underscored a degree of uncertainty in the law's status in Western Australia.

However, in ISH [2021] WASAT 169, the Tribunal circumvented this uncertainty by utilising the extensive powers granted under the GA Act to issue the directions sought by the applicant.

The Best Interest Principle

The Tribunal also reiterated its obligation to act in the best interests of the represented person, which encompasses the consideration of the person's expressed or inferred wishes.

Enshrined under section 4(7) of the GA Act, this principle underscores the importance of acknowledging the autonomy and preferences of the represented person.

Key Take-Aways

• The Tribunal's handling of ademption involves the intricate balance of rigid legal principles and the discretionary powers under the GA Act.

• This approach illustrates a pragmatic response to the complexities that arise in guardianship and administration matters.

Addressing Conflicts of Interest in Guardianship and Administration Appointments: IC [2023] WASAT 33

Guardianship and administration matters often involve complex legal issues and require careful consideration of the best interests of the represented person.

One such issue that frequently arises is the potential for conflicts of interest when deciding whether someone should be appointed as an administrator.

In this blog post, I discuss conflicts of interest in guardianship and administration cases and explore how the law addresses this issue when a proposed appointee is otherwise suitable for the role.

Conflicts of Interest in Guardianship and Administration

Conflicts of interest can arise when a proposed administrator has personal or financial interests that may not align with the best interests of the represented person.

This can become a significant concern in cases where the administrator is responsible for making important decisions about the represented person's estate, including potential legal claims or the management of assets.

An example of such a conflict can be found in IC [2023] WASAT 33, a recent Western Australia State Administrative Tribunal (WASAT) case, where the proposed administrator was the sister of the represented person and also a beneficiary of their mother's estate.

The Tribunal had to consider whether the sister's dual roles as administrator and beneficiary would create a conflict of interest that could compromise her ability to act in her brother's best interests.

The sister (VC) was the primary beneficiary of their mother's estate, which included the family home.

This created a conflict of interest because her brother (IC), for whom she was proposed to act as an administrator due to his mental disability, was apparently left out of their mother's will.

In other words, he was not set to inherit anything from the mother's estate.

VC stated that she intended to ensure that IC could continue to live in the family home for the rest of his life, which was also their mother's wish.

However, this intention was not legally secured as part of the mother's will.

The inherent conflict of interest lay in the fact that VC, as the beneficiary of the estate, could not act against her own interests and bring a claim on IC's behalf against the mother's estate, as it would potentially reduce the value of the estate she was set to receive.

While VC had the best intentions of providing for IC and ensuring his well-being, the law, unfortunately, has seen many instances where promises made cannot be kept in the future, regardless of the initial good intentions.

This highlighted a clear need for legal intervention to ensure IC's rights and interests were properly protected.

The conflict of interest was particularly significant because it could potentially affect IC's right to housing, given that the family home was part of the mother's estate.

It underscored the importance of considering potential conflicts of interest when appointing an administrator, particularly when the proposed administrator stands to benefit from the estate of the person they are set to represent.

Dealing with Conflicts of Interest

The Guardianship and Administration Act 1990 (WA) (GA Act) provides guidelines for determining the suitability of a proposed administrator, taking into account factors such as the compatibility of the proposed appointee with the represented person and the wishes of the represented person (s 68(3) GA Act).

In cases where a conflict of interest is identified, the Tribunal has several options to address the issue.

One option is to appoint a different individual or organization, such as the Public Trustee, to act as the administrator. This can help ensure that the represented person's best interests are protected by an independent party.

In IC [2023] WASAT 33, the Tribunal took this approach, appointing the Public Trustee as a limited administrator with specific responsibilities related to potential legal claims against the mother's estate. The sister was appointed as plenary administrator, save for this limited function given to the Public Trustee. This approach mitigates the conflict, by separating the roles and responsibilities that could potentially clash.

Lessons Learned

Cases like the one underscore the complexity of guardianship and administration matters, and the importance of identifying and properly addressing potential conflicts of interest.

They also highlight the need for legal professionals to be vigilant in spotting these issues and advising their clients accordingly.

The legal framework, including the GA Act and the Family Provision Act 1972 (WA), provide mechanisms to safeguard the best interests of the represented person, but they require careful navigation.

In cases where potential conflicts of interest arise, it's essential to consider all possible solutions - be it appointing a different administrator, creating a limited administration, or separating roles and responsibilities between multiple parties.

Key Take-Aways

• While conflicts of interest in guardianship and administration matters can be complex, they are not insurmountable.

• With careful planning, legal guidance, and the flexibility provided by our legal system, it is possible to ensure that the best interests of represented persons are protected, even in situations where conflicts of interest exist.

• It's a reminder of the importance of specialist legal advice in navigating these challenging situations.

Understanding Guardianship and Administration Matters: When does the Need for Oversight Enable the Appointment of a Guardian in Western Australia?

Guardianship and administration matters in Western Australia are governed by the Guardianship and Administration Act 1990 (the Act).

The Act provides for the appointment of guardians and administrators for persons who lack the capacity to make decisions in their personal and financial affairs.

In this blog post, I discuss the role of oversight in guardianship and administration matters and explore the circumstances under which the State Administrative Tribunal of Western Australia (the Tribunal) can appoint a guardian based on the need for oversight.

I examine the recent decision of IZ [2022] WASAT 85 to illustrate how the Tribunal interprets and applies the relevant provisions of the Act in this context.

Legislative Framework

The Act sets out the criteria for appointing a guardian for a person who lacks the capacity to make decisions in relation to their personal affairs.

Section 43(1)(b) of the Act states that the Tribunal may make a guardianship order if it is satisfied that the person:

(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; and

(iii) is in need of oversight, care, or control in the interests of their health and safety.

The Act also establishes a presumption of capacity, as set out in section 4(3)(c), which states that a person is presumed to be capable of managing their own affairs unless the contrary is established.

The Need for Oversight

In the IZ [2022] WASAT 85 decision, the Tribunal considered the role of oversight in guardianship matters and the extent to which the need for oversight, care, or control could justify the appointment of a guardian.

The Tribunal emphasised that the presumption of capacity must be upheld unless clear and cogent evidence to the contrary is presented.

The Tribunal's Approach in IZ [2022] WASAT 85

In IZ, the Department sought a guardianship order for IZ on the grounds that she was unable to make reasonable judgments in relation to her person and was in need of oversight, care, or control in the interests of her health and safety.

The Tribunal, however, did not find sufficient evidence to rebut the presumption of capacity.

It concluded that while there was a reasonable concern for IZ's health and safety, there was no clear evidence that she was incapable of looking after her own health and safety or of making reasonable decisions in respect of matters relating to her person.

The Tribunal observed that individuals with the capacity to make decisions regarding their personal and financial affairs are entitled to make decisions that others may regard as unreasonable or unwise, as long as they do not pose a risk to themselves or others (referencing MH at [120]; PG [2021] WASAT 81 at [92]).

The Tribunal also noted that the need for oversight, care, or control should be read in conjunction with the other limbs of section 43(1)(b) and considered as a global assessment of the person's capacity (referencing GG [2021] WASAT 33 at [60(a)-(c)]).

The Tribunal held that the need for oversight, care, or control is directed towards a person's functional incapacity, rather than the cause of the person's need for assistance (referencing GG at [60(i)]).

The Presumption of Capacity in Guardianship and Administration Matters: Does Objectively Unwise Decision-Making Rebut the Presumption in Western Australia?

The Guardianship and Administration Act 1990 (the Act) governs the appointment of guardians and administrators for individuals who lack the capacity to make decisions regarding their personal and financial affairs in Western Australia.

One of the key principles in guardianship and administration matters is the presumption of capacity, which assumes that an individual is capable of managing their own affairs until proven otherwise.

In this blog post, I discuss the extent to which objectively unwise or less preferable decision-making can rebut the presumption of capacity in a guardianship and administration matter before the State Administrative Tribunal of Western Australia (the Tribunal).

I refer to the decision of IZ [2022] WASAT 85 to illustrate how the Tribunal approaches this issue and applies the relevant provisions of the Act.

Legislative Framework

The Act sets out the criteria for appointing a guardian or an administrator for a person who lacks the capacity to make decisions in relation to their personal or financial affairs. Section 4(3)(c) of the Act establishes the presumption of capacity, stating that a person is presumed to be capable of managing their own affairs unless the contrary is established.

The Presumption of Capacity and Objectively Unwise Decision-Making

In the IZ [2022] WASAT 85 decision, the Tribunal examined the relationship between the presumption of capacity and objectively unwise decision-making by the subject of a guardianship application.

The Tribunal emphasized that people with capacity are entitled to make decisions that others may regard as unreasonable or unwise (referencing MH at [120]; PG [2021] WASAT 81 at [92]).

The Tribunal's Approach in IZ [2022] WASAT 85

In IZ, the Department sought a guardianship order for IZ on the grounds that she was unable to make reasonable judgments in relation to her person and was in need of oversight, care, or control in the interests of her health and safety.

The Department argued that IZ's lack of insight into the reason for her admission and her desire to return to live with her parents were evidence of her incapacity to make reasonable judgments.

However, the Tribunal held that, although there was a reasonable concern for IZ's health and safety, there was no clear and cogent evidence that she was incapable of looking after her own health and safety or of making reasonable decisions in respect of matters relating to her person.

The Tribunal found that IZ was actively managing her own affairs and dismissed the guardianship application.

The Tribunal in IZ cited the observation made in MH, stating that the judgment on whether a person is incapable of looking after their health and safety or unable to make reasonable judgments in respect of matters relating to their person does not depend on whether the Tribunal agrees or disagrees with the person's decisions (referencing MH at [120]).

Key Take-Aways

• The decision in IZ [2022] WASAT 85 demonstrates that objectively unwise or less preferable decision-making by the subject of a guardianship application does not automatically rebut the presumption of capacity in Western Australia.

• The Tribunal emphasizes the importance of upholding the presumption of capacity unless clear and cogent evidence to the contrary is presented.

• This approach reflects the respect for individual autonomy and the right to make one's own decisions, even if those decisions may be considered unwise or less preferable by others.

Understanding Joint Guardianship and Administration Appointments in Western Australia: A Case Study

Guardianship and administration matters in the State Administrative Tribunal of Western Australia (SAT) often involve complex family dynamics and legal considerations.

One question that often arises is when joint guardians and administrators should be appointed.

In this blog post, I discuss the factors that the SAT takes into account when making such decisions, with reference to the Guardianship and Administration Act 1990 (WA) (GA Act) and the recent case of LM [2023] WASAT 15.

Criteria for Appointment of Guardians and Administrators

The GA Act sets out the criteria for appointing guardians and administrators.

Section 44 deals with the appointment of guardians, while section 68 focuses on the appointment of administrators.

In the case of LM [2023] WASAT 15, various family members expressed their willingness to be appointed, either individually or jointly, as LM's guardian and administrator.

The Tribunal, however, had to consider the best interests of the represented person and the suitability of the proposed appointees before making a decision.

Joint Appointments: Pros and Cons

Joint appointments may seem like a fair solution in some situations, especially when multiple family members are willing to take on the responsibility. However, the SAT is cautious when considering joint appointments for both guardians and administrators.

For administrators, joint appointments can pose practical difficulties, particularly regarding banking arrangements and the management of online accounts.

As for joint guardianship, the SAT may consider it only when there is a reasonable expectation that the guardians will be able to work together and reach unanimous decisions for the represented person.

Family Dynamics and Suitability

In LM [2023] WASAT 15, the Tribunal paid close attention to the family dynamics and the ability of the proposed appointees to work together (para. 65). The decision highlighted that joint decision-making may not be successful in situations where family relationships are strained or conflicted.

The Tribunal emphasized the importance of weighing the potential risks and benefits of joint appointments against the backdrop of complex family situations.

Moreover, the Tribunal took into account the potential conflicts of interest that could arise from the appointment of certain family members. In LM [2023] WASAT 15, it was determined that one of the proposed appointees, SC, had a conflict of interest due to his personal interest in his daughters' financial well-being and his duty as an administrator to act in LM's best interests (para. 66). This conflict of interest contributed to the Tribunal's finding that SC was unsuitable for appointment.

In addition to conflicts of interest, the Tribunal also considered the experience and expertise of the proposed appointees. In LM's case (para. 70), the Tribunal noted that her estate involved some complexity, and it was in her best interests for the appointed administrator to have the necessary knowledge and ability to manage her estate effectively.

Ultimately, the Tribunal's analysis of the family dynamics and the suitability of the proposed appointees led to the conclusion that none of the family members who volunteered as guardians or administrators were appropriate for appointment (para. 69).

This unsuitability precluded their sole or joint appointment, prompting the Tribunal to consider alternative options such as the appointment of the Public Advocate and Public Trustee (para. 71).

Public Advocate and Public Trustee Appointments

In cases where no suitable and willing person is available for appointment, the GA Act (section 44(5)) provides that the Public Advocate should be appointed as the guardian.

Similarly, when it is in the best interests of the represented person, the Public Trustee may be appointed as the plenary administrator.

In LM [2023] WASAT 15, the Tribunal concluded that the Public Advocate should be appointed as LM's limited guardian and the Public Trustee as LM's plenary administrator.

These appointments ensured that the guardian and administrator possessed the necessary expertise and ability to make decisions for LM in the foreseeable future.

Key Take-Aways

• Joint appointments of guardians and administrators may seem like a practical solution in some cases.

• However, the SAT carefully considers the best interests of the represented person, the family dynamics, and the suitability of the proposed appointees when making such decisions.

• The case of LM [2023] WASAT 15 serves as a valuable reference for understanding when joint appointments may or may not be appropriate in guardianship and administration matters in Western Australia.