Guardianship and administration in Western Australia 

This article states the law of Western Australia. The Guardianship and Administration Act 1990 (WA) puts its principles in a single section, and that section does four separate jobs — it sets the governing concern, states a presumption, constrains the order that may be made, and directs how the person's own views are to be found¹. The prior question is whether the s 4(3) presumption has been displaced, because the Act starts from capability.

Best interests as the primary concern

Section 4(2) provides that "the primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made".

Two words deserve attention. The standard is best interests, not will and preferences, substituted judgment or welfare and interests. And it is the primary concern rather than the paramount consideration, a slightly different formulation from the New South Wales "paramount consideration". Both are protective standards, but a student should quote the section rather than paraphrase from another State.

The presumption of capability

Section 4(3) presumes every person capable of four things until the contrary is proved to the Tribunal's satisfaction: looking after their own health and safety; making reasonable judgments in respect of matters relating to their person; managing their own affairs; and making reasonable judgments in respect of matters relating to their estate.

The four-way split matters. The presumption is not a single global presumption of capacity but four domain-specific ones, two directed at the person and two at the estate — which maps onto the division between guardianship and administration. Displacing the presumption for one domain does not displace it for another.

The standard is that the contrary be proved to the satisfaction of the Tribunal, so the burden rests on the applicant.

Three graduated constraints on the order

Subsections (4) to (6) restrict what may be ordered, and they operate in sequence rather than as a single least-restrictive slogan.

Section 4(4) is the strongest: an order shall not be made at all if the person's needs could, in the Tribunal's opinion, be met by other means less restrictive of their freedom of decision and action. This is a threshold question about whether any order should be made.

Section 4(5) then addresses the kind of order: a plenary guardian shall not be appointed if a limited guardian would be sufficient to meet the person's needs.

Section 4(6) addresses the terms: an order appointing a limited guardian or an administrator must be in terms imposing the least restrictions possible in the circumstances on the person's freedom of decision and action.

An answer should work these in order — no order, then a limited rather than plenary order, then the narrowest terms — rather than collapsing them into one proposition.

Ascertaining views and wishes

Section 4(7) requires the Tribunal, as far as possible, to "seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions".

Three features are notable in a 1990 statute. Views may be expressed in whatever manner, so non-verbal communication counts. They may be ascertained from the person's previous actions, so conduct before the loss of capacity is evidence of present wishes. And the obligation is to seek to ascertain, an active duty rather than a passive receipt of whatever is offered.

This provision does real work alongside s 4(2). Best interests is the primary concern, but the Tribunal must actively look for the person's own views and wishes in forming it.

The elements of a guardianship order

Section 43(1) empowers the Tribunal, subject to s 4, to declare a person in need of a guardian where satisfied that the person has attained 18 years; is either incapable of looking after their own health and safety, unable to make reasonable judgments about matters relating to their person, or in need of 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 third limb of paragraph (b) is protective and broader than incapacity: a person may be in need of oversight, care or control for the protection of others. That is a distinct route into the jurisdiction and should be identified as such rather than folded into incapacity.

Section 43(2) requires the Tribunal, having declared a person in need of a guardian, also to declare which of the paragraph (b) matters it is satisfied of — so the basis is recorded, not merely the conclusion. Section 43(2a) allows an order for a person aged 17 but not yet 18 who will meet the criteria on turning 18.

Five jurisdictions, five standards

The guardianship comparison is now complete across five States:

• Western Australia — best interests as the primary concern, with an active duty to seek the person's views and wishes.
• New South Wales — welfare and interests paramount, views taken into consideration.
• South Australia — paramount is what the person's wishes would be if not mentally incapacitated.
• Victoria — will and preferences direct decisions, wellbeing a third resort.
• Queensland — a four-step structured approach ending in imputed views, wishes and preferences.

Two protective, three autonomy-led, and no two identically worded. This is the clearest demonstration in the series that a standard belongs to a statute rather than to Australian law.

Applying this in a problem question

1. Identify which of the four s 4(3) domains is in issue and ask whether the presumption has been displaced for that domain.
2. Apply s 4(4) first: could the needs be met by less restrictive means, so that no order should be made?
3. Only then consider plenary versus limited under s 4(5), and the terms under s 4(6).
4. For s 43(1)(b), identify which limb is relied on, and name the oversight-and-protection limb where it applies.
5. Address s 43(2): the Tribunal must declare which matters it is satisfied of.
6. Under s 4(7), look for views expressed in any manner and for evidence from previous actions.

Self-check

• Have I applied the presumption domain by domain rather than globally?
• Have I asked whether any order is needed before asking which order?
• Have I identified which limb of s 43(1)(b) is engaged?
• Have I quoted the Western Australian standard rather than another State's?