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Guardianship frequently asked questions

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?

Guardian

Enduring Guardian

Appointed by the Tribunal to make decisions for a person who has already lost the capacity to make their own decisions.

Chosen by the person (appointor) to make decisions on their behalf in the future (in the event that they lose capacity).

Decision-making authority is determined by the Tribunal when the appointment is made.

Decision-making authority is determined by the appointor when making their EPG.

Operates under a guardianship order, made by the Tribunal.

Operates under an EPG, made by the appointor.

Who can be appointed a guardian?

A legally appointed guardian must:

  • be at least 18 years of age
  • consent to act as guardian to the person about whom the application is being made
  • be prepared to act in the person's best interests at all times and encourage the person's independence, personal 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.

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.

What does a guardian do?

Guardians make personal, lifestyle and treatment-related decisions in the best interests of a person with a decision-making disability. Guardianship orders specify the areas in which the guardian can make decisions.

What powers can a guardian exercise?

The powers of a guardian are set out in section 45 of the Act and can include making all personal, lifestyle and treatment decisions on behalf of the represented person.

A guardianship order can include some (limited order) or all (plenary order) of the following powers in regard to the represented person:

  • 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, on their behalf 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.

Are there decisions a guardian cannot make?

There are areas in which a guardian is not authorised to make decisions. The Act states that guardians 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 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.

How long does a guardianship order last?

The State Administrative Tribunal determines the length of a guardianship order, 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, such as a family member or service provider, applies to the Tribunal for a review of the order, or if the guardian:

  • dies
  • applies to be discharged from their responsibilities
  • is no longer able to fulfil their responsibilities to the person with the decision-making disability because of their own physical or mental incapacity
  • 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.

Last updated: 1-Sep-2016

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