INQUIRY INTO GUARDIANSHIP AND ADMINISTRATION SYSTEM IN WESTERN AUSTRALIA

The Law Society.

OF WESTERN AUSTRALIA

The voice of the legal profession in Western Australia

28 May 2026

Mr Peter Rundle MLA
Chair
Community Development and Justice Standing Committee
Parliament House
4 Harvest Terrace
WEST PERTH WA _ 6000

By submission portal and email: cdjscsubmissions@parliament.wa.gov.au

Dear Mr Rundle

Thank you for your letter dated 8 April 2026 inviting the Law Society of Western Australia to make a submission to the Community Development and Justice Standing Committee (the Committee) Inquiry into the guardianship and administration system in Western Australia. The Inquiry’s terms of reference were considered by the Law Society’s Elder Law and Succession Committee.

The Law Society acknowledges the essential roles carried out by the Office of the Public Trustee (PT) and the Office of the Public Advocate (OPA) including:

appointment as administrators and guardians of last resort in Western Australia;
auditors of accounts submitted by administrators appointed by the State Administrative Tribunal (SAT);
as providers of education and resources to the general public on issues concerning the guardianship and administration system.

We also note, at the outset, that the Committee is not directly considering the current levels of resourcing available to the PT and the OPA. Vulnerable Western Australians for whom no family member or other person is suitable to act as substitute decision-makers must be provided with the support and protection of these offices. The Law Society submits it is crucial that these agencies are adequately funded and resourced to carry out their functions for the benefit of the Western Australian community.

In responding to this inquiry, we draw the Committee’s attention to the Law Society’s recommendations to the Law Reform Commission of Western Australia’s 2025 review of the Guardianship and Administration Act 1990 (WA) (the Act). Our submissions on Discussion Paper Volume 1 and Volume 2 are available on the website.

With respect to the matters under consideration by the Committee, the Law Society comments as follows:

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The organisational capability of the Public Trustee’s office and the Office of the Public Advocate to represent and protect the human rights of vulnerable people.

The increase in guardianship and administration matters before the State Administrative Tribunal has a direct flow on effect to work of the OPA and PT. Guardianship and administration matters commonly involve persons with complex mental health and mental capacity issues, fractured family relationships and in person applicants and respondents of varying cultural, socio-economic and family dynamics. The OPA and PT are regularly joined to Tribunal proceedings to perform investigative functions and to potentially be appointed as guardian or administrator for represented persons.

The Law Society has received feedback from members that clients and families accessing OPA and PT services commonly experience delays in responses to requests for assistance. People unfamiliar with the legislation, the guardianship and administration system generally, or their particular obligations under orders made by the Tribunal require support to understand, process and apply the advice and information given by the PT and OPA.

In the experience of Law Society members, the difficulties in navigating the system are not confined to vulnerable persons or proposed represented persons. These issues affect family members, carers and other interested parties any of whom may be the ‘client’ of the legal practitioner. Legal practitioners provided the following comments:

The OPA and PT involvement in matters often comes at a time of crisis when clients and their families are in a highly emotional state. The law is complex to navigate for people unfamiliar with the guardianship and administration system. It may take several attempts to explain the process before a lay person understands what is being asked of them.
Clients have reported that it is common for the relevant (PT/OPA) staff member to work part-time with little or no transfer of information in their absence. Requests for information or to discuss a case result in a generic response that the person will respond to requests on their workdays and requires multiple follow ups to receive a meaningful response.
Where a client is asked for information or to provide documents, depending on the staff member who responds, the advice provided can be unclear or conflicting. It is common for clients to struggle to work out what exactly is required when trying to comply with requests, giving rise to multiple calls to the PT or OPA offices, only to receive conflicting advice.
- Example: a client was asked by the OPA to ‘prepare a report’ about the needs of the proposed represented person with no additional instruction. The client prepared a document themselves but were later told that a report from a professionally qualified person was required. The client had no idea who such a person could be and was not provided with any information about appropriate experts to approach for a report.
- Example: A father (sole parent, retired) handling his only adult daughter’s personal and financial affairs under enduring powers of attorney and guardianship. Despite requests for guidance on his role, he felt unsupported for over 3 years. In this matter, the daughter was generally capable of making decisions. She was wheelchair bound due to physical ailments (and on NDIS). She struggled to manage her finances and insisted on extravagant and unnecessary expenses beyond her budget. The father tried to stop her credit card use and personally

spent thousands of dollars on her care and her mortgage and other debts. The PT and PA both gave initial advice that as the daughter was mentally capable, nothing could be done. Ultimately, the father withdrew as attorney and guardian and PT/PA are in the process of applying for relevant orders at the SAT.

A common frustration reported by family members and carers where the PT or OPA have been appointed is the effort required to receive approvals for items or activities associated with the represented person’s care.
- Example: where the PT held funds in trust for a represented person, those caring for the person reported it was ‘an uphill battle’ to convince the PT that an expense was reasonable and genuine.
- Example: a frequent complaint is that the staff member (OPA or PT) who is the ultimate decision-maker does not personally meet with the vulnerable person (in their accommodation for example) to gain an understanding of the situation justifying the expense or giving rise to a need. It is common for such requests to be refused. Meaningful communication by phone can be difficult for vulnerable people experiencing homelessness.

The Law Society recommends the organisational capability of both the OPA and PT be reviewed to with a view to improving communication between the offices, represented persons and members of the public.

The organisational culture of the Public Trustee’s office and the Office of the Public Advocate and how this is impacting delivery of services to vulnerable people.

The Law Society understands that staff at the OPA and PT have the carriage of large caseloads which are commonly complex matters. From anecdotal evidence provided to legal practitioners, there is a perception in the community that OPA and PT staff ‘pre-judge’ or dismiss issues (such as requests for approval of expenses) leaving represented persons, their carers and families feeling unheard.

Law Society members provided the following examples:

Clients with limited English reported that they feel unsettled by what they sense as assumptions about the care, needs and expenses of the vulnerable person without regard to cultural implications. Clients acknowledge that often the staff members struggle to understand their needs however genuine in attempting to address their concerns/needs.
In some cultures, it is not usual to buy extra food items to store in a freezer. For this represented person, use of transport for regular trips to the supermarket or Asian food stores to purchase fresh food was discouraged or regarded as an unnecessary expense (especially when a paid guardian is required to accompany the person).

In our submission to the Law Reform Commission, the Law Society advocated for additional cultural and mental health training for delegated guardians to assist in liaising with vulnerable people and their families/carers in a culturally appropriate way.

The adequacy of mechanisms currently in place to resolve complaints, disputes and allegations.

Greater visibility into the complaint/dispute resolution processes of PT/OPA would be beneficial. The public should be able to access the written complaint/dispute resolution procedure easily on the website of the PT/OPA, or in hard copy on request.

There is a perception that the review process is biased in favour of the initial decision-maker. This perception could potentially be mitigated by a complaint/dispute resolution procedure that:

is easily accessible;
mandates clear response times;
builds in the principles of natural justice; and
provides the public with a central point of contact to investigate the complaint.

Accessibility of information, including whether the Public Trustee’s office and the Office of the Public Advocate provide information to relevant individuals and organisations in a timely, fair and transparent manner.

The Law Society submits that some of these difficulties may be addressed by additional education and resources provided to the general community, particularly in relation to explanations of why certain decisions are made and the criteria that is taken into account to support the decision. Clients often have little or adequate information and understanding of how the PT/OPA operates and how decisions are made. It would be impractical for all decisions to have been explained in detail, however additional resourcing which explains common decision-making criteria may assist the public’s understanding of internal decision-making processes.

Law Society members provided the following comments:

A common complaint made to Law Society members is a perception by clients that the OPA or PT will favour one family member over others. In practice, this is a difficult issue to resolve unless the decision-maker is completely transparent in disclosing reasons for decision. Where conflicts about the care of a vulnerable person cannot be resolved, the result is generally an application to the Tribunal. A mechanism for mediating or reconciling these complaints may assist to avoid delays which ultimately prejudice the vulnerable (represented) person.
The websites of the OPA and PT contain a lot of information which can be overwhelming and difficult to understand in its current format. In addition to the fact sheets and guidance, other forms of delivery, such as videos, may assist to break down complex information. In addition, common examples of issues that arise could be explained through frequently asked questions. Such information can be accessed by a carers and family members to advance the specific interests of the vulnerable person and reduce the time and other pressures both on the carers and the PT/OPA staff.
Some clients have difficulty understanding what is meant by ‘best interests’. Family members may be entrenched in their views that the vulnerable person or his/her family member carer is best placed to decide this. It is difficult to convince a person that an external objective independent person (PT/PA) or the SAT should be the source of that decision.

Clients who have attended public presentations by the PT are grateful for the information provided in that format.

The Law Society supports the OPA and PT’s efforts to provide education and support to the public about guardianship and administration issues. In our submission to the Law Reform Commission, the Law Society advocated for additional resourcing for the OPA and PT to provide regular education and support services for guardians, administrators and attorneys. The Law Society also recommends that appropriate resources be developed to provide cultural and mental health training and to empower delegated guardians with the ability to liaise in a meaningful way with the people for whom the Public Advocate is appointed guardian.

Outcomes experienced by represented persons and their families because of decisions made by the Public Trustee and Public Advocate.

The Society acknowledges the experience of people impacted by guardianship and administration orders who have been aggrieved by a perceived lack of consultation and failure to understand cultural issues of importance when decisions have been made for them by the Public Trustee or Public Advocate as administrators or guardians of last resort. The Society submits that this issue is best addressed by increasing resources and education for guardians and administrators to assist them to fulfill their obligations to act in the person’s best interests.

The feedback provided to legal practitioners is that the main concern expressed by clients is the time, effort and extent of contact required (with accompanying stress) to achieve outcomes or to raise issues during the course of guardianship and/or administration orders.

Whether current oversight mechanisms are adequate to ensure guardians and administrators are held accountable for their decisions.

There are two aspects to this question – the oversight of non-PT/OPA appointed guardians and administrators and the oversight of PT and OPA appointments.

In our submission to the Law Reform Commission, the Law Society:

recommended the OPA be empowered by the Act to investigate whether a person requires a guardian and to apply for a warrant to investigate allegations of abuse. Feedback provided to legal practitioners is that it is common for allegations of abuse, particularly financial abuse, to arise and family members and carers are unsure of their rights or ability to bring these allegations to the attention of authorities.
cautioned against mandatory audits of guardians, which may deter family members and support persons from applying or accepting an appointment.
proposed that the Act be amended to enable the State Administrative Tribunal to order an investigation into a guardian’s decisions. The guardian should be required to answer to the Tribunal, but not to other parties or family members.
supported the OPA being empowered to carry out investigations of guardians.
recommended that guardians be provided with information and guidance about keeping appropriate records of their decisions at the time of appointment by the Tribunal and/or when accepting an appointment as enduring guardian in an EPG.

In many instances, family members and carers are in the best position to understand the needs of the vulnerable person and should be supported to meet these needs in accordance

with their obligations as appointed substitute decision-makers. Additional education should include what non-appointed family members or interested parties can (and should) do if they have genuine concerns about the manner in which a vulnerable person’s affairs are being managed.

With respect to the oversight of PT and OPA delegates appointed as guardians and administrators, the Law Society submits there should be rigorous internal oversight within the PT and OPA to ensure that decisions made by delegated guardians and administrators are reasonable, consistent with any applicable orders and that the best interests of represented persons remain the paramount consideration.

The Law Society notes the issues experienced by vulnerable represented people under the care of the PT in the disciplinary matter of Legal Services and Complaints Committee and Chiat [2025] VR 58. In this case, the legal practitioner admitted several allegations of unprofessional conduct relating to missed court deadlines, failure to commence proceedings and misleading other staff at the PT about the status of legal matters. It is of concern that such conduct remained unchecked by internal oversight mechanisms.

The Chiat decision highlights the potentially drastic consequences for vulnerable people where there is insufficient internal supervision of staff in these roles.

There is a balance to be struck between encouraging people to raise genuine allegations of abuse or misuse of guardianship and administration powers and exposing guardians and administrators to frivolous and vexatious complaints about their management of a vulnerable person’s affairs.

The Law Society supports the oversight of the OPA and PT as well as guardians and administrators generally by SAT and the Supreme Court of Western Australia. The Law Society does not consider additional (external) oversight mechanisms are necessary. We support a greater emphasis on the provision of education and information for guardians and administrators to ensure they understand their responsibilities.

The role and conduct of the State Administrative Tribunal as far as it relates to the above.

The Tribunal performs an important function as an independent statutory body with oversight of the guardianship and administration system. According to the Tribunal’s 2024/25 annual report, guardianship and administration matters constituted 99% of the Human Rights stream of applications to the Tribunal. Over 7,000 applications were filed in 2024-25, representing an increase of 16% on the previous financial year.

In our submission to the Law Reform Commission, the Law Society made several recommendations for amendments to the Act to simplify the process of accessing relevant documents, to provide for clearer notice provisions and streamlining procedures for reviews and appeals (Recommendations 17 and 18). The Law Society emphasised the importance of maintaining appropriate levels of confidentiality and consistency across applications (Recommendation 19).

The Law Society commends the appointment of a Senior Aboriginal Advisory Officer at the Tribunal to liaise with First Nations people navigating the guardianship and administration system.

The Tribunal also provides a crucial educative function for the community, in metropolitan and regional areas and must be adequately funded to continue these services.

Conclusion

The Law Society notes the Law Reform Commission’s final report into the review of the Act was tabled in Parliament on 26 February 2026. The report includes recommendations relating to the OPA and PT which are relevant to the terms of reference for this inquiry. Those recommendations are currently being considered by the Society’s Elder Law and Succession Committee.

If you have any queries, please contact Susie Moir, Director Advocacy and Professional Development on redacted: s22 or telephone redacted: s22.

Yours sincerely

redacted: s47F - personal privacy

Kate Wellington Chief Executive Officer