Guardianship: OPA information

Guardianship may be considered when there is:

• A need for somebody with legal authority to make decisions in the best interests of a person with a decision-making disability.
• Unresolved conflict between family members and/or primary care providers about the person's best interests.
• Concern that the person may be at risk of neglect, exploitation or abuse.

The legislation seeks to balance the rights of individuals to make decisions for themselves with the need to legally protect people from abuse and exploitation and to ensure informed decisions are made in their best interests.  The appointment of a guardian is a legal way of giving a responsible person authority to make decisions on behalf of the person they represent.

A guardian may be a close friend or family member of the represented person. In the absence of these, the Public Advocate may be appointed by the Tribunal. A guardian from the Office of the Public Advocate will then work with the represented person.

The State Administrative Tribunal (SAT) is an independent statutory body responsible for appointing a guardian or administrator in the best interests of a person with a decision-making disability. 

An application to the Tribunal to appoint a guardian or administrator may be necessary when problems affecting the life of the person with a decision-making disability cannot be resolved in a less formal way. 

The Tribunal:

• Considers applications for the appointment of a guardian and/or administrator.
• Makes orders for the appointment of guardians and administrators.
• Reviews orders which have been made previously.
• Considers applications for intervention into Enduring Powers of Attorney, Enduring Powers of Guardianship and Advance Health Directives
• Considers applications to determine who should make a treatment decision.

The Tribunal works to safeguard the best interests of the person by:

• Assuming in the first instance that each person for whom an application is made is competent and capable of making their own decisions unless conclusively proved otherwise.
• Appointing a guardian or administrator only when there is no other appropriate way of meeting the person's needs which would be less restrictive of their freedom of decision and action.
• Limiting the authority of an appointed substitute decision-maker to those areas in which the person is experiencing problems and requires decision-making support.
• Where possible, respecting the wishes of the person with a decision-making disability and taking their wishes into account when making decisions on their behalf.

The eCourts portal can be found on the State Administrative Tribunal’s website, along with eCourts Portal Help.

If an application for the appointment of a guardian (and/or administrator) is made, the Tribunal conducts a hearing, where people with an interest in the person for whom an application has been made are given the opportunity to put forward their views about what they believe is in the person's best interests.

Wherever possible, the person whose decision-making ability is being considered has an opportunity to state their views and preferences.

The State Administrative Tribunal also considers other reports and submitted information about the circumstances and needs of the person concerned, before making a determination about:

• Whether the person has a decision-making disability.
• The impact of the disability on how the person manages their own life and affairs.
• Whether a least restrictive alternative such as an Enduring Power of Attorney or an Enduring Power of Guardianship is operating effectively and is in the person’s best interests.
• Whether the appointment of a guardian and/or administrator is in the best interests of the person with a decision-making disability
• Whether a guardian or administrator should make decisions relating to specific areas (a limited order) or in all matters (plenary order).
• Who is most suitable to take on the role of guardian or administrator.
• How long the order remains in force before being reviewed.
• Whether the person is capable of voting in parliamentary elections.

The Tribunal is legally required to review each order within five years, but a review may be conducted sooner.  It can also review an order at any time on the application of the person concerned, their guardian or administrator, the Public Advocate or any person to whom the Tribunal grants leave to apply for review.

The appointment of a guardian is not necessary when informal arrangements can ensure the best interests of the person with a decision-making disability are being met.

For example, appointment of a substitute decision-maker is not needed when:

• A person with a decision-making disability can manage and maintain a reasonable quality of life for themselves.
• An enduring guardian has been appointed, who is acting in the best interests of the person.
• The person is being adequately supported and cared for by others.
• There are no personal or family conflicts about the person's care and support needs.
• There are no major problems or issues that are posing an immediate or imminent threat to the person's quality of life.

If you are considering nominating to be appointed as a private guardian for a family member or friend, or if you have been appointed as a private guardian, this guide works through a range of information relating to the role. Refer to the Private Guardian’s Guide PDF(1.5MB).

C is an elderly widow with progressive dementia.  C’s daughter has found it increasingly difficult to meet her mother’s care needs.

The hospital Aged Care Assessment Team advised that C is eligible for high-level care in a nursing home.  However, C refuses to move into residential care as she has no insight into the risks to which she is exposed by living alone and her daughter feels unable to act against her mother's wishes, wanting to preserve their relationship.

When all avenues to support C at home have been exhausted and her at-risk behaviours have increased, the hospital social worker applies to the State Administrative Tribunal for a guardianship order.

The Tribunal appoints the Public Advocate as C's guardian with authority to determine her accommodation and make decisions regarding her medical treatment.

After information gathering that includes consultation with C and her family, the Public Advocate determines that it would be in C's best interests to be placed in a residential aged care facility and consents to the move.

The process is improved greatly by the involvement of C's daughter who encourages and supports her mother through the transition into care.

The Public Advocate also ensures that C is linked with a new doctor and provides consent for the administration of her medications.

Six months later, as C has settled into her nursing home - benefitting from regular visits from her daughter, the Public Advocate applies to the Tribunal to seek a revocation of C’s guardianship order, because it is no longer required.

The Tribunal hears that C's daughter agrees with the Public Advocate that her mother is appropriately placed.

The Tribunal is satisfied that C no longer requires a guardianship order and revokes the Public Advocate's order. It considers that C's daughter can make medical decisions on behalf of her mother as per the 'Hierarchy of treatment decision-makers', without the need for guardianship authority.

* Note: Names and details have been changed to protect confidentiality.

What is a guardian?

A guardian is a person appointed by the State Administrative Tribunal to make lifestyle decisions for a person with a decision-making disability under the authority of the Guardianship and Administration Act 1990.

What is the difference between a guardian and an enduring guardian?

Who can be appointed a guardian?

A guardian can be a family member or close friend of someone with a decision-making disability. Alternatively, the Public Advocate can be appointed guardian if there is no-one else willing, suitable and available to be appointed.  A legally appointed guardian must:

• be at least 18 years old
• consent to act as guardian
• always be prepared to act in the person’s best interests
• encourage the person's independence, decision making and participation in community life
• not be in a position where their own interests conflict with the best interests of the represented person.

How are decisions made?

A guardian is required to make decisions in the represented person's best interests.  Guardians from the Office of the Public Advocate make decisions based on the principles contained in the legislation.

The Public Advocate advises private guardians to keep detailed records of when and how they make their decisions. Although not required by law, this will assist when an order is being reviewed or a decision queried.

What decisions can a guardian make?

A guardianship order can include some (limited order) or all (plenary order) of the following powers:

• decide where they live, whether permanently or temporarily
• decide with whom they live
• decide whether they should work, and if so, any employment-related matters
• provide or refuse consent to any medical, surgical or dental treatment or other health care (including palliative care and life-sustaining measures such as assisted ventilation and cardiopulmonary resuscitation)
• decide what education and training they receive
• decide with whom they can associate
• commence, defend, conduct or settle legal proceedings on their behalf, except proceedings which relate to their property or estate
• advocate for and make decisions about the support services to which they should have access
• seek and receive information on their behalf.

What decisions can’t a guardian make?

A guardian cannot:

• vote in an election for the represented person
• consent to adoption of a child by the represented person
• consent to the marriage of a represented person
• consent to the sterilisation of the represented person without approval from the State Administrative Tribunal
• make or change the Will of the represented person without application under the Wills Act 1970 to the Supreme Court of Western Australia and the subsequent receipt of an order from that Court to take such action.

The Public Advocate recommends seeking a review at the Tribunal if the represented person has lost capacity and states they wish to seek a divorce.

How long does a guardianship order last?

A guardianship order lasts up to a maximum of five years.  All orders are reviewed upon expiry, to decide if a new order should be made, or the order should be revoked (if the person no longer requires a guardian).

A review may be conducted sooner if:

• Someone with an interest in the represented person (eg family member or service provider) applies for a review
• The guardian dies
• The guardian applies to be discharged from their responsibilities
• The guardian cannot fulfil their responsibilities because of their own physical or mental incapacity
• The guardian is found guilty of neglect or misconduct which in the Tribunal's view, makes them no longer appropriate to act as guardian.

The powers of a guardian cease upon the death of the person they represent.

How does a private guardian get advice?

If a private guardian is uncertain about what decisions to make in the best interests of the represented person, they may make an application to the State Administrative Tribunal for direction on what action should be taken. Alternatively, they may contact the Office's Telephone Advisory Service.

For application forms visit the State Administrative Tribunal website.