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Guardianship and Administration

If an adult is not able to make sensible decisions about his or her finances or lifestyle, or is doing things that are not in their best interests, it may be possible for the State Administrative Tribunal (SAT) to appoint a guardian or administrator (or both) to make decisions for them. The experienced lawyers at HFM Legal regularly advise affected people on all guardianship and administration issues and routinely appear on behalf of clients in the State Administrative Tribunal (SAT). Our experienced lawyers can assist you with:

  • powers of attorney;

  • SAT guardianship hearings;

  • SAT administration hearings;

  • capacity disputes;

  • aged care advice; and

  • elder law advice

What is a guardianship order?

A guardian makes lifestyle based decisions on behalf of the represented person. A guardianship order can give the guardian plenary functions or specific and limited functions.  A plenary guardian may make decisions as to:

  • where the represented person will live, and with whom he or she shall live;

  • whether the represented person can work, and what kind of work he or she is capable of doing;

  • what medical and health treatments (with the exception of sterilisation) the represented person receives or doesn’t receive;

  • whether the represented person can engage in training and/or education; and

  • who the represented person will associate with.
A plenary guardian may also act on behalf of the represented person as “next friend” in any litigation to which the represented person is a party. A limited guardianship order may include any one of the functions plenary guardians have, or any other specific function.  If in doubt as to his or her powers, a guardian may bring an application to SAT for directions as to what they can do.

What is an administration order?

An administrator makes decisions about a person’s finances and property. Under section 70 of the Guardianship and Administration Act 1990 (WA), an administrator is to act in the represented person’s best interests, having regard to matters such as:

  • ensuring that the represented person is protected from financial abuse, neglect and exploitation;

  • advocating for the represented person in matters relating to his or her estate (wealth, or assets);

  • assisting and encouraging the represented person to make sound judgments; and

  • maintaining the represented person’s familiarity with his or her linguistic, cultural or religious environment.
Administrators may apply to SAT for any order which specifically authorises him or her to perform certain functions on the represented person’s behalf.

When will the SAT appoint a guardian or administrator?

The SAT can appoint a guardian (or joint guardians) to make decisions in the best interests of an adult if the person:

  • is incapable of looking after their own health and safety;

  • is unable to make reasonable judgments in respect of personal matters; or

  • needs oversight, care or control in the interests of their own health and safety, or for the protection of others,
and is in need of a guardian. The SAT can appoint an administrator (or joint administrators) to make decisions in the best interests of an adult if the person:

  • is unable, because of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their estate, and

  • needs an administrator of their estate.
The term ‘mental disability’ includes an intellectual disability, a psychiatric condition, an acquired brain injury and dementia. The SAT will only appoint a guardian or administrator if one is needed. It must first consider if there are any other suitable options that would have less impact or restriction on the person and their ability to make their own decisions such as a valid enduring power of attorney or guardianship.

Who can make an application to SAT for an administration or guardianship order?

There are no restrictions on who can apply to the SAT and ask for a guardian or administrator (or both) to be appointed for someone else. Normally, the application will be made by someone who is worried that the other person is not able to look after themselves, such as a family member, friend, social worker or doctor.

The person who makes the application does not need to be the proposed guardian or proposed administrator.

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Guardianship and Administration FAQ

An application for provision out of the estate of any deceased person may be made by or on behalf of a spouse, a de facto partner (or a former spouse or de facto partner in limited circumstances), a child, a parent and, in some limited circumstances, a grandchild and step child.

In accordance with the provisions of the Family Provision Act 1972 (WA), the time limit to make a claim is 6 months from the date of the grant of probate or letters of administration.

A sibling is not an eligible person for the purpose of the Family Provision Act 1972 (WA).

A person who at the date of the death of the deceased was receiving or entitled to receive maintenance from the deceased as a former spouse or former de facto partner of the deceased whether pursuant to an order of any court, or to an agreement or otherwise may apply for provision from a deceased estate.

It can be. However, the Supreme Court of Western Australia adopts procedures to ensure that applications pursuant to the Family Provision Act 1972 (WA) are dealt with expeditiously and cost effectively and that excessive or unnecessary costs are not incurred.

Litigants and potential litigants will generally benefit by obtaining expert advice from an experienced estate lawyer as early as possible after the death of the deceased person.

If the Supreme Court of Western Australia is of the opinion that the disposition of the deceased’s estate effected by his or her will, or the law relating to intestacy, or the combination of his or her will and that law, is not such as to make adequate provision from the estate for the proper maintenance, support, education or advancement in life of an eligible person it may order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.

In forming its opinion the Supreme Court of Western Australia will have regard to the applicant’s financial position, relationship with the deceased, the size of the estate and the deceased’s relationship with other persons who are or may be eligible to make a claim against the estate and their financial circumstances as at the date of the deceased’s death.

Adequate provision is complex and difficult to define as it varies with every unique case.  It is important to obtain independent advice from an experienced estate lawyer as early as possible should a dispute arise in an estate.