Submission on guardianship and administration reform in Western Australia

Submission on the Inquiry into the Guardianship and Administration System in Western Australia

KIN Disability Advocacy

132 Main Street

Osborne Park, 6017

Phone: (08) 9388 7455

Email: admin@kinadvocacy.org.au

Website: www.kinadvocacy.org.au

May 2026

President: Angelo Cianciosi

Chief Executive Officer: Libby Cramer

Author: Siyat Abdi

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Contents

• About KIN Disability Advocacy (formerly EDAC):

• Executive Summary

• Conceptual Framework and Structural Analysis

• The “Single Vulnerability” Inference

• Structural Differentiation Across Populations

• Lifelong Cognitive Disability

• Fluctuating Capacity (Psychosocial Disability)

• Acquired Brain Injury

• Older Persons

• Communication and Complex Support Needs

• Aboriginal and Torres Strait Islander People

• Culturally and Linguistically Diverse Communities

• Social and Economic Marginalisation

• Acute and Temporary Vulnerability

• Core Structural Contradiction

• The Vulnerable Person Ecosystem

• Operational Consequences

• Analytical Shift for Reform

• Human Rights Framework and Legal Alignment

• Equal Recognition Before the Law (Article 12)

• Living Independently and Being Included in the Community (Article 19)

• Freedom of Expression and Access to Information (Article 21)

• Cross-Cutting Issue: Lack of Differentiation

• Response to the Terms of Reference

• Organisational Capability

• Organisational Culture

• Complaints, Dispute Resolution, and Allegations

• Accessibility of Information and Outcomes

• Strategic Reform Framework

• Pillar One: Supported Decision-Making as a Foundational Principle

• Pillar Two: Structural Differentiation

• Pillar Three: Communication as a System

• Pillar Four: Accountability and Oversight

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• Pillar Five: Ecosystem Integration

• Pillar Six: Cultural Alignment

• Implementation Pathways

Alignment with the Disability Royal Commission and the Aged Care Royal Commission Findings . 35

• Implementation, System Integration and Transitional Reforms

• Observation of Current System Baseline

• References

• Appendix A

• Case Study 1

• Case Study 2

• Case Study 3

• Appendix B

• Comparison: Current WA Law Vs Proposed Reform Framework

• Draft Legislative Framework: Guardianship and Administration Proposed Reform

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About KIN Disability Advocacy (formerly EDAC):

KIN Disability Advocacy formerly (EDAC) is Western Australia’s peak not-for-profit organisation advocating for the rights of people with disability, from a Culturally and Linguistically Diverse (CALD) background and their family and carers.

KIN Disability Advocacy currently receives recurrent funding from the Australian Department of Social Services (DSS) and the WA Department of Communities Disability Services (DS).

KIN Disability Advocacy delivers individual and systemic advocacy services in WA’s metropolitan, regional, and remote areas. This includes state-wide CALD advocacy services and individual generalist advocacy to WA’s North -West region (Kimberley and Pilbara).

Additional project funding is used to deliver human rights-based self-advocacy training for people with disability and their families/carers.

KIN Disability Advocacy operates a Digital Communication Project funded by the DSS, which addresses the intersection of disability and ethnicity in relation to various aspects such as services, policies, legislation, and more.

KIN Disability Advocacy generates additional income by providing cultural competency training to the disability services sector. The delivery of this training adheres to the National Disability Services Standards.

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Executive Summary

Kin Disability Advocacy welcomes the Inquiry into guardianship and administration in Western Australia and recognises the timely opportunity to strengthen alignment with contemporary human rights principles and practice. This submission is informed by extensive individual and systemic advocacy across metropolitan, regional, and remote communities.

Practice-based evidence indicates that, while the current guardianship and administration system is intended to safeguard vulnerable people, outcomes do not consistently uphold autonomy, participation, or culturally responsive decision making. It is too often experienced as disempowering, difficult to navigate, and insufficiently accountable.

These patterns arise from structural features within system design rather than isolated operational shortcomings.

A central analytical issue is identified that The Terms of Reference rely on an implicit assumption that “vulnerable persons” constitute a coherent and identifiable group.

Evidence from practice demonstrates that this assumption is not supported.

Guardianship and administration frameworks apply to multiple, structurally distinct population groups with differing decision-making profiles, temporal patterns of capacity, communication requirements, cultural contexts, and exposure to structural disadvantage. A uniform framework applied across these diverse groups results in misclassification and uneven restrictions on rights, rather than consistency (LRCWA 2025).

Misclassification has system wide consequences. Individuals with psychosocial disability may experience episodic fluctuations in capacity, yet the system frequently imposes enduring restrictions. Individuals with acquired brain injury may regain decision making ability, yet legal status does not reliably adjust. Individuals with communication disability may face barriers in expressing preference, yet these barriers are often interpreted as incapacity. Aboriginal people and individuals from culturally and linguistically diverse backgrounds may engage in collective or relational decision making, yet such practices are sometimes construed as risk or noncompliance (Kin Disability Advocacy 2025).

This submission introduces the concept of structural differentiation. Distinct cohorts require distinct responses; however, current arrangements apply standardised thresholds and processes. While standardisation may support administrative consistency, it does not support equitable outcomes. In the absence of differentiation, the system defaults to substitute decision making, risk averse thresholds, and administrative convenience. These defaults produce predictable outcomes, including overuse of guardianship, extended duration of orders, cultural misalignment, and suppression of decision-making capacity (United Nations 2006).

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Kin Disability Advocacy further proposes reframing guardianship within a broader support ecosystem. Guardianship does not operate in isolation. Each individual interacts with family, kinship networks, cultural authority structures, service systems, and advocacy supports. Decisions that exclude this broader context do not reflect lived reality and do not align with will, preference, or identity. A system that positions guardianship as the primary mechanism for managing vulnerability risks displacing informal supports and replacing relational authority with administrative control (Kin Disability Advocacy 2025).

Analysis across the Terms of Reference reveals consistent system patterns. Supported decision making is referenced in policy, yet practice does not consistently prioritise support before substitution (LRCWA 2025). Organisational capability varies in communication, cultural engagement, and application of human rights principles. Organisational culture often emphasises risk minimisation and administrative efficiency, which may limit participation and autonomy. Complaints and oversight mechanisms exist, yet individuals do not always experience them as accessible, independent, or safe.

Access to information remains a critical system issue. Current approaches emphasise document formats such as Easy Read or translation, yet provision of information alone does not ensure understanding. Communication is a system comprising explanation, interaction, confirmation of understanding, and supported participation. Where communication does not support comprehension, individuals cannot meaningfully engage in decision making processes. Reform may benefit from a system-based approach to communication, with models such as a National Translation Standard Framework offered as illustrative rather than prescriptive (Kin Disability Advocacy 2025).

Outcomes for represented persons and families reflect these structural conditions. Individuals may experience reduced autonomy in financial, personal, and social domains; limited participation in decisions affecting daily life; and disconnection from family, community, and cultural identity. Families may experience exclusion from processes, limited communication, and diminished trust in system decision making (LRCWA 2025).

The submission also identifies a core contradiction. The current system operates on an implicit premise that vulnerability justifies control. Contemporary human rights frameworks require a different premise: that vulnerability necessitates support to exercise rights. This contradiction explains why supported decision making appears in principle while substitute decision making persists in practice (United Nations 2006; Committee on the Rights of Persons with Disabilities 2014). Without structural reform, this contradiction will continue to shape outcomes.

This Inquiry presents an opportunity to address these structural issues and presents a critical opportunity to reset the system toward a rights-based, person-led model, with accountability mechanisms that are visible, accessible, and effective.

Kin Disability Advocacy asserts a clear position that there is no single “vulnerable person”. Multiple populations interact with guardianship and administration systems in different ways, and outcomes depend on whether systems recognise the differences and respond appropriately. A pragmatic system

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must acknowledge diversity and support autonomy, inclusion, and equitable outcomes (United Nations 2006).

Conceptual Framework and Structural Analysis

This section outlines the conceptual foundations that inform an examination of guardianship and administration in Western Australia. It considers the structural assumptions that underpin system design and influence decision making outcomes, with particular attention to classification practices, differentiation between cohorts, and the interaction between vulnerability, capacity, and support. The analysis draws on practice-based evidence, comparative insights, and human rights principles to guide consideration of potential reforms.

Guardianship and administration operate as legal and administrative mechanisms that intervene in a person’s decision-making processes. These mechanisms are intended to safeguard individuals who experience difficulty making decisions. However, evidence from practice indicates that current system outcomes do not consistently promote autonomy, participation, or social inclusion. These outcomes appear to reflect structural assumptions embedded within the design of the system, rather than isolated operational inconsistencies (LRCWA 2025).

Two central analytical concepts are used to frame this assessment:

The first concerns the “single vulnerability” assumption and the second concerns the “vulnerable person ecosystem”.

Together, these concepts provide a framework for understanding how existing arrangements can result in misclassification, unnecessary intervention, and uneven limitations on individual rights.

The “Single Vulnerability” Inference

The existing guardianship and administration framework rests on an implicit assumption that so called “vulnerable persons” constitute a coherent and readily identifiable group. This assumption informs legislative drafting, policy development, and administrative practice. However, evidence from the field demonstrates that this assumption is unfounded. The category of “vulnerable persons” does not represent a uniform population with consistent characteristics, circumstances, or support needs.

In practice, guardianship and administration regimes apply to several distinct populations.

These groups differ markedly in their decision-making profiles, the temporal nature of their capacity, their communication requirements, their cultural contexts, and their exposure to structural

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disadvantage. Applying a single, uniform framework across such diverse populations results in misclassification.

It is worth noting that such misclassification, in turn, produces unequal limitations on rights and inconsistent outcomes (Series 2015).

This unsupported inference does not arise merely from definitional ambiguity. Rather, it stems from the use of a singular classification to regulate multiple, heterogeneous populations. Once vulnerability is defined as a single category, the system proceeds to apply standardised assessments, thresholds, and interventions. These mechanisms fail to account for variations in context, life trajectory, or the availability of supports. The consequence is structural distortion, not neutrality.

Structural Differentiation Across Populations

Lifelong Cognitive Disability

Individuals with intellectual disabilities frequently encounter early and sustained involvement with formal systems. Guardianship arrangements are often initiated during adolescence or early adulthood and may persist throughout the individual’s life. In many instances, systems default to substitute decision-making rather than investing in the development and implementation of supported decision-making frameworks. Existing review processes do not consistently result in the restoration of personal decision-making authority.

This trajectory contributes to the normalisation of guardianship, whereby guardianship becomes a routine condition rather than an exceptional measure. Systemic practice often fails to distinguish between the need for decision-making support and the need for substituted decision-making. Maintaining this distinction is essential to meeting human rights obligations, including those articulated in the United Nations Convention on the Rights of Persons with Disabilities (United Nations 2006).

Fluctuating Capacity (Psychosocial Disability)

Individuals with psychosocial disabilities frequently experience capacity that varies over time.

Periods of crisis may significantly diminish a person’s capacity, while periods of stability may allow that capacity to return.

Current systems tend to intervene primarily during crises, often imposing restrictive measures aimed at stabilisation. However, these interventions are not consistently withdrawn or reduced once the individual’s capacity improves.

This pattern results in decisions and outcomes that do not follow an appropriate chronological sequence. Short-term vulnerability is translated into long-term restrictions, and legal status is not

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adjusted in line with a person’s dynamic and evolving capacity. Such misalignment produces disproportionate consequences and inhibits the restoration of autonomy, as highlighted by the Committee on the Rights of Persons with Disabilities (2014).

Acquired Brain Injury

Individuals with acquired brain injury may experience recovery over time. Early intervention may reflect appropriate concern for decision-making capacity. However, the system does not consistently recalibrate decision-making authority as recovery progresses. Legal status may remain static despite functional change.

This pattern produces detachment between legal classification and lived capacity. The system does not consistently incorporate longitudinal assessment. Recovery pathways do not always lead to restoration of rights. This outcome reflects structural inertia within decision-making frameworks.

Older Persons

Older persons encounter the guardianship system at the intersection of ageing, health, and financial frameworks. Guardianship decisions frequently emphasise the protection of assets, the coordination of services, and the mitigation of perceived risks. In doing so, the system embeds significant administrative oversight into later stages of life, with decision-making authority increasingly shifting toward formal institutional structures.

This approach contributes to a form of lifecycle governance in which guardianship extends beyond its protective purpose and becomes a broader mechanism for managing ageing populations. The system does not consistently differentiate between the provision of necessary support and the imposition of control. These dynamic raises important concerns regarding proportionality, individual autonomy, and the appropriate limits of state intervention in the lives of older persons.

Communication and Complex Support Needs

Some individuals face challenges in expressing their decisions, rather than in forming those decisions.

Communication barriers may arise from disability, language, or contextual factors.

Current systems frequently privilege verbal and linear modes of communication.

When a person does not communicate in the expected format, this is too often interpreted as an absence of decision-making capacity.

This dynamic results in substituted decision making based on visibility rather than actual capacity.

Communication supports are not consistently embedded within assessment or decision-making

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processes. Where such supports are absent, misinterpretation occurs. Misinterpretation, in turn, leads to unwarranted restrictions on a person’s rights.

Aboriginal and Torres Strait Islander People

Aboriginal and Torres Strait Islander communities operate within kinship-based authority structures and collective decision-making traditions that uphold relational accountability and cultural continuity.

By contrast, guardianship frameworks are grounded in individualised decision-making models derived from Western legal traditions, which in various ways do not recognise or accommodate these cultural authority systems.

This divergence creates a substantial disconnect between cultural perspectives.

Decision making processes frequently exclude or marginalise relational governance systems among these communities, leading to outcomes that may disrupt kinship networks and weaken connections to Country. Such dynamics reflect broader patterns of institutional ethnocentrism embedded within existing governance arrangements.

Culturally and Linguistically Diverse Communities

Individuals from culturally and linguistically diverse backgrounds engage with guardianship systems through both language and cultural interfaces. Current processes frequently rely on translation services that convert words but do not provide cultural interpretation. While translation facilitates linguistic exchange, it does not necessarily convey meaning, context, or relational norms.

The system implicitly assumes familiarity with Western concepts of autonomy, disclosure, and decision making.

This dynamic results in interpretive distortion where cultural difference is too often reframed as deficit.

Participation becomes procedural rather than substantive.

Consequently, decision-making processes do not consistently reflect the lived realities, cultural frameworks, or contextual factors that shape individuals’ experiences.

Social and Economic Marginalisation

Some individuals come under guardianship not because of any inherent incapacity, but as a consequence of structural disadvantage. Factors including poverty, insecure housing, limited access to essential services, and broader systemic exclusion heighten vulnerability.

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The system frequently encounters people only at the point of crisis and, in doing so, substitutes its own decision-making authority.

Regrettably, it does not consistently address the underlying structural conditions that give rise to these crises.

This dynamic results in guardianship being used as a substitute for service provision, effectively functioning as a proxy for systemic failure when the distinction between a lack of resources and a lack of capacity is not properly drawn. Such misclassification leads to unnecessary and avoidable restrictions.

Acute and Temporary Vulnerability

Individuals may at times experience short term vulnerability arising from trauma, illness, or crisis. In such circumstances, the system frequently escalates its response swiftly in order to manage perceived or actual risk.

However, the corresponding pathways for stepping down or exiting from intervention do not operate with equivalent speed or clarity. As a result, what begins as temporary vulnerability can lead to prolonged periods of oversight or control.

This dynamic creates a temporal imbalance: entry into guardianship can occur rapidly, while exit from guardianship is comparatively slow. The duration of intervention is therefore not consistently aligned with the duration of the individual’s actual need.

Core Structural Contradiction

The analysis highlights a fundamental structural contradiction within the current system. At present, the system operates on an implicit assumption that vulnerability warrants control. In contrast, established human rights frameworks adopt a different premise: vulnerability necessitates support to enable the full exercise of rights (United Nations, 2006).

This contradiction has a defining influence on system behaviour. While supported decision making is acknowledged in principle, substitute decision making continues to dominate in practice. The system does not resolve the inherent tension between protection and autonomy. Instead, it manages this tension primarily through mechanisms of control.

The Vulnerable Person Ecosystem

This section further outlines the second conceptual framework, recognising that guardianship operates within a broader ecosystem of supports, relationships, and systems. This ecosystem encompasses family and kinship networks, cultural authority, service systems, advocacy structures,

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housing, and financial arrangements. Accordingly, decision making should not be viewed as occurring in isolation.

Under current arrangements, individuals are too often separated from this natural ecosystem of support. In such circumstances, established and formal power structures can override the person’s existing reliance on informal networks and community-based assistance. Administrative systems may take precedence in ways that diminish opportunities to build meaningful relationships. This displacement affects outcomes and reduces alignment with the person’s lived experience.

An ecosystem-based approach acknowledges that vulnerability emerges through the interaction between individuals and the systems around them. Appropriate support can reduce vulnerability without removing a person’s decision-making authority. Within this broader ecosystem, guardianship should operate as one component among many. It should not serve as the organising centre.

Operational Consequences

The assumptions embedded within the design of a system or process directly shape its default operational behaviours. Under the current arrangements, standardised assessments and risk averse thresholds are routinely applied. The system tends to prioritise substitution of decision-making rather than the provision of tailored support. These structural defaults generate predictable and recurring outcomes across populations.

Such outcomes include the overuse of guardianship, unnecessarily prolonged orders, cultural misalignment, and the systematic suppression of decision-making capacity. These effects do not stem from isolated or individual decisions. They arise from the architecture of the system itself. Structural settings produce consistent patterns across contexts, and it is these drivers that warrant careful, reflective reconsideration by the inquiry.

Analytical Shift for Reform

The Inquiry may be strengthened by reframing its central line of examination. At present, the Inquiry frequently asks how the system serves vulnerable persons, a formulation that presumes a single, homogeneous category. A more effective and rigorous approach is to consider how the system affects distinct classes of persons, each with differing circumstances and needs.

Such a shift enables clearer differentiation. It exposes variations in impact. It supports reforms that are targeted and proportionate, rather than broad adjustments that risk obscuring structural inequities. Without this reframing, the evidence base is flattened and systemic issues remain concealed.

As outlined in our summative discussion, guardianship and administration frameworks currently operate across diverse populations through a uniform model. This model contributes to misclassification, inconsistent limitations on rights, and outcomes that do not reliably advance autonomy or inclusion. We reiterate that the system is shaped by structural assumptions that warrant substantive reconsideration.

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Human Rights Framework and Legal Alignment

This section of our submission considers the extent to which Western Australia’s guardianship and administration frameworks align with international human rights standards. Our primary legal and normative reference point is the Convention on the Rights of Persons with Disabilities. We also examine how the current system’s design interacts with obligations relating to legal capacity, community inclusion, and communication, linking these standards to the outcomes identified in earlier parts of our submission.

Human rights frameworks do not operate as abstract or aspirational principles. They establish binding legal obligations that shape system architecture, guide decision-making processes, and influence practical outcomes. Where system design diverges from these obligations, resulting outcomes reflect structural misalignment rather than isolated or exceptional departures. A meaningful analysis therefore requires consideration of both formal recognition and practical implementation (LRCWA 2025).

Within this context, we identify three central areas of alignment: Article 12 concerning legal capacity, Article 19 concerning community inclusion, and Article 21 concerning communication and expression. Together, these articles provide a coherent framework for assessing whether guardianship systems uphold or constrain rights in practice. The final part of this section also addresses cross-cutting issues arising from insufficient differentiation within the system and an over reliance on substitute decision-making.

Equal Recognition Before the Law (Article 12)

Legal Standard – Article 12 affirms that persons with disability hold legal capacity on an equal basis with others in all areas of life (United Nations 2006). Legal capacity encompasses both legal standing and the ability to exercise one’s rights. States are required to ensure access to appropriate supports that enable individuals to exercise legal capacity, and to implement safeguards that uphold a person’s rights, will, and preferences.

The Committee on the Rights of Persons with Disabilities has clarified that substitute decision-making frameworks are inconsistent with Article 12 where they remove or diminish a person’s legal capacity rather than support its exercise (Committee on the Rights of Persons with Disabilities 2014). The Committee identifies supported decision-making as the preferred model, emphasising that autonomy must be recognised even where an individual requires assistance.

System Interaction – Guardianship and administration frameworks in Western Australia acknowledge supported decision-making in principle (LRCWA 2025).

Proposed legislative reforms include a presumption of capacity and explicit recognition of support. However, the current system design continues to permit broad application of substitute decision-making. Decision-making authority may be transferred from an individual to a guardian or

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administrator without a clear demonstration that all reasonable support options have first been exhausted.

Uniform thresholds are applied across diverse cohorts. The system does not consistently distinguish between insufficient support, communication barriers, and actual incapacity. This lack of differentiation results in individuals losing decision-making authority despite being capable of participating with appropriate support. Consequently, a substantial gap persists between the principles of supported decision-making and their practical implementation.

Outcome Implications – The system produces several observable outcomes relevant to Article 12 compliance:

• Individuals with psychosocial disability may experience long-term restrictions arising from short-term crises.
• Individuals with acquired brain injury may not regain legal authority even after significant functional recovery.
• Individuals with communication barriers may lose decision-making authority due to difficulties in expression rather than deficits in understanding.

These outcomes demonstrate that substitution occurs in circumstances where support could enable meaningful participation. Decision-making authority is not consistently aligned with an individual’s actual capacity. As a result, the realisation of legal capacity on an equal basis is constrained, and structural features of the system exert greater influence on outcomes than the formal legal recognition of rights.

Alignment Considerations –Improved alignment with Article 12 may require stronger operationalisation of supported decision-making. Potential reforms include:

• Requiring clear evidence that all reasonable support options have been explored before any substitute decision-making is authorised.
• Introducing time-limited orders and regular review mechanisms that reflect the potential for fluctuating or improving capacity.
• Developing differentiated approaches across cohorts, recognising that trajectories of capacity vary significantly among individuals.

Such measures would strengthen the system’s capacity to uphold the rights, will, and preferences of persons with disability, and enhance compliance with the obligations set out in Article 12.

Living Independently and Being Included in the Community (Article 19)

Legal Standard – Article 19 of the Convention on the Rights of Persons with Disabilities affirms the right of persons with disability to live independently and to be fully included in the community

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(United Nations, 2006). This right encompasses the freedom to choose one’s place of residence, access to community-based supports, and participation in social and civic life. States are obliged to ensure that persons with disability are not subjected to forced placement, institutionalisation, or social isolation. They must also ensure that services are designed to promote inclusion rather than segregation.

Community inclusion extends beyond physical location. It requires meaningful connection to relationships, identity, and cultural context. Accordingly, decision-making frameworks must incorporate social, relational, and cultural dimensions of life.

System Interaction – Guardianship and administration decisions frequently determine fundamental aspects of a person’s life, including housing arrangements, access to services, financial management, and opportunities for social participation. These decisions significantly influence both daily experience and long-term outcomes.

Current practice often prioritises risk management and administrative efficiency. However, evidence indicates that such decisions do not consistently uphold the principles of community inclusion. Decisions may be driven by service availability rather than alignment with an individual’s personal, relational, or cultural context. In some cases, opportunities for independent living are restricted despite the availability of supports that could facilitate participation.

The system does not consistently measure or evaluate outcomes in terms of inclusion.

Outcome Implications – Outcomes associated with Article 19 reveal several recurring concerns. Individuals may be placed in settings that do not reflect their preferences, identity, or cultural background. Aboriginal people may experience disconnection from kinship networks and Country. Individuals from culturally and linguistically diverse communities may be placed in environments that do not reflect their cultural context.

These outcomes reflect a systemic prioritisation of administrative manageability over genuine inclusion. Relational and cultural considerations are not consistently integrated into decision-making. As a result, community inclusion becomes secondary to coordination and control, limiting alignment with Article 19.

Alignment Considerations – Achieving stronger alignment with Article 19 may require more explicit and systematic consideration of relational, cultural, and community context in decision-making processes. Reform options may include mandating documentation of family, cultural, and community factors, and developing outcome measures that assess inclusion rather than mere placement.

The integration of ecosystem-based approaches may further support decision-making that promotes independence, participation, and community connection.

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Freedom of Expression and Access to Information (Article 21)

Legal Standard – Article 21 affirms the right to freedom of expression and access to information (United Nations 2006). This right encompasses access to information in accessible formats and the ability to communicate one’s will and preferences. States are required to provide appropriate communication supports and to recognise diverse modes and means of expression. Genuine participation depends on both access to information and the capacity to express decisions.

Accessibility must extend beyond the mere provision of materials. It requires comprehension, interaction, and meaningful engagement. Communication therefore functions as a system rather than a single transactional act.

System Interaction

Current practice often emphasises the distribution of documents. Agencies may supply written information or translated materials; however, provision alone does not guarantee understanding. Communication processes frequently lack explanation, interactive dialogue, or confirmation that information has been comprehended.

The system is not consistently equipped to embed interpreting or communication supports. Individuals with complex communication needs may not receive structured assistance. Those from culturally and linguistically diverse backgrounds may receive translation without culturally informed interpretation. These gaps significantly constrain effective participation.

Outcome Implications – Consequences associated with non-alignment with Article 21 include:

• Limited participation in decision-making, where individuals receive information but do not fully understand its implications.
• Restricted opportunities to ask questions or express preferences.
• Decisions proceeding without meaningful input or prior consultation with affected stakeholders.
• Communication barriers leading to misinterpretation, including the risk that limited expression is wrongly construed as limited capacity. Such assumptions contribute to substituted decision-making.

Communication gaps therefore influence both procedural fairness and substantive outcomes.

Alignment Considerations – Strengthening alignment with Article 21 may require system-level communication frameworks. Reform efforts could prioritise comprehension and participation rather than document provision alone. Approaches such as a National Translation Standard Framework may offer guidance while avoiding prescriptive uniformity. Embedding communication supports at all stages of decision-making would enhance compliance and promote equitable participation.

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Cross-Cutting Issue: Lack of Differentiation

The preceding analysis demonstrates a consistent cross-cutting issue across Articles 12, 19, and 21: the system fails to adequately differentiate between distinct populations. Uniform thresholds are applied to diverse cohorts, resulting in systematic misclassification. Such misclassification has significant consequences for legal capacity, community inclusion, and communication. Individuals may be deprived of rights not because of actual incapacity, but because structural assumptions do not reflect their circumstances. The system does not reliably distinguish between temporary and permanent conditions, nor between communication difficulty and decision-making capacity.

This pattern indicates the continued influence of status-based approaches operating beneath a formally functional framework (Series 2015). Structural assumptions therefore shape outcomes across multiple domains.

Our analysis identifies a central contradiction within the system – that Guardianship and Administration operate on the premise that vulnerability justifies control. by contrast, human rights frameworks, establish that vulnerability necessitates support to exercise rights. Thus, these opposing premises produce divergent outcomes: control diminishes autonomy and participation, whereas inclusive support enhances them. The system does not consistently resolve this tension, and decision-making processes frequently default to control in situations of uncertainty.

This contradiction explains the persistent gap between principle and practice. Although supported decision-making is recognised in legislation and policy, substitute decision-making continues to dominate in practice. Without structural reform, this pattern will remain entrenched.

This Inquiry may wish to consider several implications for reform arising from the analysis:

• Prioritise the operationalisation of supported decision-making through clear requirements, safeguards, and enforceable standards.
• Introduce differentiated approaches across populations to reduce misclassification and ensure proportionality.
• Redesign Communication Systems to facilitate understanding, accessibility, and meaningful participation.
• Incorporate outcome-based accountability mechanisms through a well-targeted reform.
• Shift toward autonomy, inclusion, and participation rather than procedural compliance and review mechanisms that also reflect temporal changes in capacity. These approaches would align system design with human rights obligations.

So far, we have demonstrated that the current guardianship and administration do not consistently align with Articles 12, 19, and 21. Lack of differentiation and reliance on substitute decision-making contribute to this misalignment. Reform is therefore likely to be most effective when it addresses structural drivers rather than isolated practices.

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Achieving alignment with human rights requires recognising diversity, supporting decision-making, and enabling participation through system design. A system that incorporates these elements is more likely to produce equitable, rights consistent outcomes.

Response to the Terms of Reference

This section of our submission provides a structured and considered response to the Terms of Reference for the Inquiry into Guardianship and Administration in Western Australia. It builds upon the conceptual framework and human rights analysis outlined in earlier sections.

Our response examines organisational capability, organisational culture, complaints and dispute resolution processes, the accessibility and quality of information, and the outcomes experienced by represented persons and their families. Each of these dimensions is informed by practice-based evidence and situates observed issues within the broader structural features of the current system.

We do not approach each Term of Reference as an isolated matter. Instead, we identify the interdependencies between capability, culture, communication, and outcomes. These elements operate collectively within the system’s design and directly influence decision-making processes. As such, meaningful reform requires an integrated and systemic approach rather than a series of discrete or incremental adjustments (LRCWA 2025).

Organisational Capability

The Public Trustee (PT) and the Office of the Public Advocate (OPA) hold statutory responsibilities to safeguard the rights, property, and welfare of adults with decision making disabilities.

• The Public Trustee primarily manages financial and legal affairs for individuals unable to do so themselves.
• The Office of the Public Advocate provides advocacy, investigates concerns about abuse or neglect, and acts as guardian of last resort.

Together, these agencies form a critical part of the state’s protective governance framework. Therefore, their effectiveness depends on organisational capability, cultural competence, and the ability to respond to the diverse needs of vulnerable populations.

The expectation is that organisational capability within the Public Trustee and the Office of the Public Advocate influences how decision-making authority operates in practice. Capability includes knowledge of supported decision-making, communication skills, cultural engagement, and understanding of human rights principles. Evidence from advocacy practice indicates variation across these areas. This variation affects consistency of decision-making.

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Current arrangements recognise supported decision-making in policy language. However, what our Individual Advocates frequently observe is that current practice does not consistently prioritise support before substitution. Decision-making processes may transfer authority without clear demonstration that support options have been explored. This pattern reflects structural settings rather than individual performance (LRCWA 2025).

Capability gaps appear most clearly in complex contexts, and this is also shaped by practical constraints:

• High caseloads limit the ability to provide personalised advocacy.
• Resource constraints affect the timeliness of investigations and decision-making.
• Workforce pressures, including recruitment and retention challenges, reduce continuity of care.

These factors can weaken the agencies’ ability to uphold human rights consistently, especially for clients with complex social and cultural needs.

Just to reflect on examples for instance, individuals with communication disability require structured support to express preferences; individuals from culturally and linguistically diverse communities require interpretation that reflection meaning rather than literal translation; Aboriginal Torres Islanders communities require recognition of relational authority structures; and therefore, the system does not consistently embed these capabilities. Thus, reform should consider strengthening capability through system design rather than isolated training.

The best practical approaches may include integrating supported decision-making into standard practice, embedding communication supports, and aligning performance measures with participation outcomes. Such approaches would support more consistent application of human rights principles.

Organisational Culture

Organisational culture plays a central role in shaping how decision-making authority is exercised. It influences the interpretation of risk, the nature of engagement with individuals, and the prioritisation of outcomes.

Both agencies have made efforts to improve cultural awareness training and community engagement. Yet, systemic reviews highlight:

• Insufficient cultural capability
• Limited engagement with Aboriginal community-controlled organisations
• Inadequate interpreter and liaison support for CaLD clients

These gaps directly influence the quality of advocacy and decision-making.

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Aboriginal people in WA are disproportionately represented in guardianship and administration systems.

Several structural and cultural issues contribute to this:

Historical and Ongoing Distrust based on colonisation, forced removals, and state intervention have created deep mistrust of government agencies. This affects:

• Willingness to engage with PT and OPA
• Perceptions of guardianship as another form of state control
• Communication between families and agencies

Western legal frameworks fail to recognise cultural obligations and kinship structures such as:

• Extended kinship networks
• Collective decision-making practices
• Cultural obligations around care and property

This mismatch leads to decisions that unintentionally undermine cultural identity or community cohesion.

Higher rates of poverty, disability, homelessness, and health inequities increase the likelihood of state intervention. This places Aboriginal people at greater risk of:

• Financial administration orders
• Guardianship orders
• Institutionalisation

It is also worth noting the geographical barriers.

Many Aboriginal clients live in remote or regional areas where:

• Access to advocacy is limited
• Face-to-face engagement is infrequent
• Interpreter services for Aboriginal languages are scarce

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These barriers reduce the agencies’ ability to make culturally informed decisions.

The Culturally and linguistically diverse (CaLD) communities face distinct challenges under the jurisdiction of the PT and OPA.

1. Language and Communication Barriers

Limited English proficiency among this cohort group can lead to:

• Misunderstanding of legal processes
• Reduced ability to express preferences
• Over-reliance on family members who may have conflicting interests

2. Professional and accredited Interpreter availability remain inconsistent.

3. Cultural Norms Around Family and Decision Making

Many CaLD cultures emphasise:

• Collective family decision-making
• Strong filial responsibility
• Deference to elders or authority figures

These norms can clash with Western individual-rights frameworks, leading to misinterpretation of family dynamics or undue influence.

4. Risk of Social Isolation

Newly arrived migrants, refugees, or individuals without extended family networks are more vulnerable to:

• Exploitation
• Financial abuse
• Social exclusion

This increases reliance on state guardianship or administration.

5. Trauma and Migration Histories

Refugees and humanitarian entrants may carry trauma that affects:

• Cognitive functioning
• Trust in government institutions

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• Engagement with advocacy services

Without trauma-informed practice, agencies may misinterpret behaviours or needs.

From the above discussion across both Aboriginal and CaLD communities, several systemic issues limit the agencies’ ability to fully protect human rights:

• One-size-fits-all statutory processes that do not adequately account for cultural diversity
• Insufficient community partnerships, especially with Aboriginal community-controlled organisations
• Limited culturally diverse workforce representation
• Inadequate data collection on cultural background, outcomes, and systemic inequities
• Reactive rather than preventative approaches to vulnerability and abuse

These challenges suggest that while the PT and OPA have strong legislative foundations, their operational capability is constrained by structural and cultural limitations. Thus, prevailing cultural settings emphasise risk minimisation, administrative efficiency, and protection-oriented approaches. These priorities can shape decision-making in ways that constrain autonomy and limit meaningful participation.

Complaints, Dispute Resolution, and Allegations

Complaints and dispute resolution mechanisms function as essential safeguards within the system. They provide structured avenues for raising concerns and challenging decisions. However, evidence from current practice indicates that these arrangements do not consistently deliver processes that are accessible, independent, or trusted.

Individuals subject to Guardianship and Administration orders may be uncertain about how to initiate a complaint, and available information on complaints pathways is often unclear or difficult to navigate. Concerns are also frequently raised regarding the independence of complaints processes, particularly where they operate within the same institutional structures responsible for the original decisions. Fear of adverse consequences may further deter individuals from engaging with these mechanisms.

Fragmentation across agencies adds an additional layer of complexity. Individuals may be required to navigate multiple bodies including the Public Advocate, the Public Trustee, and Tribunal processes without coordinated guidance or liaising with other service providers which could render more supports. This lack of integration diminishes clarity and increases the burden on individuals and families attempting to resolve issues. Collectively, these factors limit the effectiveness of complaints

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mechanisms as safeguards. Reform efforts may therefore need to focus on strengthening independence, accessibility, and transparency. Good practice approaches could include clearer separation between decision-making and complaints functions, the integration of advocacy support, and improved information pathways. Such measures have the potential to enhance public confidence and reinforce accountability across the system.

Accessibility of Information and Outcomes

Access to information is a fundamental component of participation and procedural fairness. Individuals require clear, timely, and comprehensible information to meaningfully engage in decision-making processes. Evidence from practice demonstrates that current approaches do not consistently facilitate understanding or support effective participation.

Information is frequently presented in legalistic and complex language. Written materials often fail to reflect the communication needs of people with disability or those with limited English proficiency. Translation may occur without adequate cultural interpretation. In many instances, information is provided only after key decisions have been made, thereby limiting opportunities for engagement and consultation.

Effective communication requires explanation, interaction, confirmation of understanding, and supported participation. Current arrangements do not consistently incorporate all stages of this process. The mere provision of documents, without engaging relevant stakeholders, does not ensure comprehension.

Outcomes for represented persons and their families provide an important measure of system effectiveness. However, evidence from advocacy practice indicates that outcomes do not consistently align with principles of autonomy, participation, or inclusion. Individuals may experience diminished control over financial, personal, and social decisions, as well as limited involvement in decision-making processes.

Disconnection from family, community, and cultural identity is a recurring outcome. Decisions may fail to reflect relational or cultural contexts. Placement decisions may prioritise service availability over personal preference. These outcomes adversely affect individuals and families, particularly when they are excluded from decision-making processes or when communication between agencies and families lacks clarity or timeliness in guardianship and administration matters.

Trust in system processes may erode over time. Conflict may arise when institutional decisions diverge from family understandings of needs and preferences. These outcomes reflect structural features identified earlier. Limited differentiation, inadequate communication, and reliance on substituted decision-making contribute to these patterns. The outcomes observed therefore represent systemic behaviours rather than isolated cases.

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Accordingly, improvement in a single area will not produce consistent or sustained change. Strengthening capability without addressing organisational culture will not shift decision-making practices. Enhancing communication without reinforcing accountability will not guarantee participation. Reform therefore requires coordinated adjustments across multiple elements of the system.

To this point, this section has demonstrated that responses to the Terms of Reference require integrated analysis. Organisational capability, culture, communication, complaints mechanisms, and outcomes operate collectively within the broader system design. Structural features shape both decision-making processes and their outcomes.

Overall, the evidence indicates that current arrangements do not consistently support the autonomy, participation, or inclusion of individuals and families within the guardianship and administration systems. A coordinated approach that recognises the interconnections between system elements is more likely to produce consistent and equitable outcomes. Reform may be strengthened by addressing structural drivers and enhancing alignment with human rights principles.

Strategic Reform Framework

This section outlines a strategic reform framework for guardianship and administration in Western Australia. It draws upon the analysis presented in earlier sections to translate conceptual and legal findings into system-level reform directions. The focus is on achieving structural alignment with human rights principles, differentiating responses across population groups, and integrating support systems. It also identifies implementation pathways that may assist the Inquiry in considering practical and sustainable reform options.

Guardianship and administration frameworks currently operate through an interplay of legal authority, administrative processes, and professional judgement. These elements collectively shape system design and influence outcomes. Throughout this Inquiry submission, we have consistently emphasised that the current existing arrangements do not reliably uphold autonomy, participation, or inclusion for vulnerable individuals engaging with guardianship and administration processes. Reform therefore requires coordinated and mutually reinforcing changes across legal, operational, and cultural domains (LRCWA 2025).

Kin Advocacy does not advance a single prescriptive model. Rather, we present a structured suite of reform directions intended to strengthen alignment with human rights obligations and improve outcomes for Western Australians. These directions centre on supported decision-making, structural differentiation, communication systems, accountability mechanisms, and broader ecosystem integration.

The overarching strategic objective is to ensure coherence between system design and human rights obligations. Guardianship and administration frameworks should enable individuals to exercise their

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rights, not substitute their decision-making authority. The system must recognise diversity across populations and respond proportionately to differing needs and contexts. It must also ensure that communication practices facilitate meaningful participation and that accountability mechanisms safeguard rights consistent with the Convention on the Rights of Persons with Disabilities, including the obligations articulated in Articles 12, 19, and 21.

To support clarity and coherence, this section will outline a series of Reform Pillars through which the proposed directions will be presented.

Pillar One: Supported Decision-Making as a Foundational Principle

Supported decision-making (SDM) must constitute the central organising principle of a rights aligned Guardianship and Administration system. Embedding SDM as a core statutory requirement is essential to ensuring that individuals retain autonomy, cultural identity, and meaningful participation in decisions affecting their lives. While current arrangements acknowledge SDM in principle, they do not consistently require that support be fully explored and implemented prior to any substituted decision-making.

For Aboriginal and Torres Strait Islander peoples, and for Culturally and Linguistically Diverse (CaLD) communities, the embedding of SDM is not only a rights-based obligation but a cultural, social, and historical imperative.

The following considerations outline the rationale for legislating SDM as a primary decision pathway within Guardianship and Administration frameworks.

1. Legislating SDM as the Primary Decision Pathway

• Require that SDM be attempted, documented, and exhausted before any guardianship or administration order is considered.
• Mandate that decision-makers demonstrate how the person’s will, preferences, and cultural context were identified, respected, and upheld.
• Ensure alignment with national commitments to shared decision-making and partnership with Aboriginal and Torres Strait Islander communities.

2. Embedding Cultural Authority and Community Led Decision Structures

• Formally recognise Aboriginal Community Controlled Organisations (ACCOs) and culturally specific CaLD organisations as legitimate SDM partners.
• Enable delegated authority models successfully applied in child protection to be adapted for adult decision-making contexts.
• Empower cultural knowledge holders to guide decisions consistent with “doing things our way” and other community led approaches.

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3. Requiring Culturally Safe Assessment and Planning

• Mandate culturally informed assessments that consider kinship systems, community obligations, language, and cultural decision-making norms.
• Require the involvement of interpreters, cultural brokers, or Elders where appropriate.
• Ensure assessments do not pathologise cultural practices or disadvantage individuals with limited English proficiency.

4. Strengthening Participation Rights

• Guarantee the right of individuals to choose their own supporters, including family members, Elders, community leaders, or cultural mentors.
• Require that information be provided in culturally and linguistically appropriate formats.
• Ensure participation is continuous and iterative, rather than a single consultation.

5. Mandating Cultural Connection and Identity Safeguards

• Require guardians and administrators to maintain, protect, and strengthen cultural, community, and family connections.
• Draw on the established principles of Prevention, Partnership, Placement, Participation, and Connection, which have demonstrated effectiveness in child protection practice.

6. Building a Cohesive and Culturally Competent Workforce

• Require comprehensive training in SDM, trauma-informed practice, cultural safety, and anti-racism for tribunal members, public guardians, and administrators.
• Include training on the impacts of colonisation, migration trauma, and systemic discrimination.

7. Establishing Accountability and Oversight Mechanisms

• Require regular reporting on the use of SDM, cultural safety outcomes, and reductions in substituted decision-making.
• Establish independent cultural advisory panels to review decisions involving Aboriginal, Torres Strait Islander, and CaLD individuals.

8. Resourcing Community Led SDM Supports

• Provide dedicated funding to ACCOs and CaLD organisations to deliver SDM facilitation, advocacy, and cultural mentoring.
• Ensure that rural and remote communities have equitable access to culturally appropriate SDM supports.

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1. The Importance of SDM Alignment for Aboriginal and Torres Strait Islander

Strong SDM alignment is critical because it:

• Supports self-determination
• Reduces harm arising from systemic over representation
• Respects kinship structures and collective decision-making
• Strengthens cultural identity and connection

2. The importance of SDM alignment for CaLD Communities

SDM alignment is essential because it:

• Addresses language and communication barriers
• Respects cultural decision-making norms
• Prevents cultural misinterpretation
• Supports trust, engagement, and equitable participation

3. Shared Outcomes for Aboriginal and Torres Strait Islander and CaLD Communities

Robust SDM alignment delivers:

• Reduced reliance on unnecessary guardianship orders
• Enhanced autonomy, dignity, and self-determination
• Strengthened cultural identity and community connection
• Alignment with national commitments to Closing the Gap and shared decision-making
• Culturally safe, equitable, and rights-based decision-making for all

4. Implementation Considerations

Implementation may include statutory recognition of SDM pathways and explicit requirements that decision-makers demonstrate how support options were explored and applied before any substituted decision-making occurs. Support may encompass communication assistance, advocacy, and engagement with informal networks. These measures would strengthen compliance with Article 12 of the Convention on the Rights of Persons with Disabilities (Committee on the Rights of Persons with Disabilities, 2014).

However, legislative reform alone is insufficient. Effective SDM requires investment in the infrastructure that enables meaningful participation. This includes a trained workforce, culturally

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appropriate communication tools, and accessible information systems. Without these supports, individuals cannot fully exercise their decision-making rights. Reform should therefore consider resource allocation in tandem with legal change.

Pillar Two: Structural Differentiation

Structural differentiation within the Guardianship and Administration framework offers a principled means of addressing the persistent “single vulnerability” the erroneous assumption that an individual’s vulnerability is uniform, static, and best managed through a single, overarching substitute-decision-making order. By distinguishing between distinct domains of decision-making authority, and by calibrating powers to the specific functional capacities and contextual risks relevant to each domain, structural differentiation ensures that protective interventions are proportionate, evidence-based, and responsive to the individual’s actual circumstances rather than to broad or stereotyped assessments of incapacity.

This approach strengthens the integrity of the system by preventing the overreach that occurs when a single guardianship or administration order is used as a blunt instrument to manage multiple, unrelated vulnerabilities. It also promotes accountability by requiring decision makers to articulate the precise nature of the risk, the specific decision-making domain affected, and the least restrictive mechanism capable of addressing that risk. In doing so, structural differentiation directly counters the tendency to treat vulnerability as a monolithic condition and instead recognise that vulnerability is situational, variable, and often domain specific.

Reform in this area would introduce mechanisms that acknowledge variation in capacity, circumstances, and developmental or situational trajectories.

Differentiation may be achieved through the classification of decision-making contexts, rather than the classification of individuals themselves. For example, systems may distinguish between episodic and enduring conditions, between communication barriers and cognitive impairment, and between structural disadvantage and individual incapacity. Such distinctions enhance the accuracy of assessments and reduce the likelihood of misclassification (Series 2015). However, as alluded in our earlier discussion, structural differentiation is not the only reform pathway capable of addressing the single vulnerability assumption. An alternative approach consistent with contemporary human rights-based frameworks is the adoption of a supported-decision-making model as the primary mechanism for safeguarding autonomy. Under this model, formal guardianship or administration orders become measures of last resort, invoked only where targeted supports cannot adequately mitigate risk. This alternative reform shifts the system away from substitutive control and toward enabling individuals to exercise their legal capacity with tailored assistance, thereby reducing reliance on broad, undifferentiated orders and further minimising the risk of unnecessary or disproportionate intervention.

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Together, these reform directions structural differentiation and the expansion of supported decision making provide coherent and complementary strategies for eliminating the single vulnerability assumptions and ensuring that protective frameworks remain both rights respecting and fit for purpose.

Pillar Three: Communication as a System

The Guardianship and Administration system would benefit significantly from adopting purposeful and structured communication as a central mechanism for increasing the participation of vulnerable individuals, including Aboriginal and Torres Islander peoples and culturally and linguistically diverse (CaLD) communities.

As outlined earlier in this submission, current arrangements predominantly emphasise the provision of documents rather than ensuring that vulnerable individuals genuinely understand the purpose, processes, and implications of the Guardianship and Administration system. This approach risks excluding those whose communication needs differ from mainstream assumptions, particularly individuals whose first language is not English, and Aboriginal and Torres Islander people whose cultural communication practices may not align with standard administrative processes.

Meaningful reform requires a system-based communication approach that integrates clear explanation, interactive engagement, confirmation of understanding, and supported participation at every stage of decision-making. Such an approach should recognise that communication is not a single event but an ongoing process that must be adapted to the individual’s linguistic, cultural, and cognitive needs.

A National Translation Standard Framework provides one example of how communication systems may be structured. This framework prioritises comprehension over mere information delivery. It acknowledges linguistic diversity, cultural context, and varied communication needs, and it embeds interpreting, translation, and communication support as standard practice rather than optional assistance. These principles are particularly relevant for Aboriginal communities, where communication may be shaped by kinship structures, cultural protocols, and the use of Aboriginal or traditional languages, as well as for CaLD communities who may require culturally responsive interpreting and translation services.

Guardianship and Administration reform may consider adopting similar principles without mandating a single prescriptive model. A contemporary communication system should incorporate multiple modalities verbal, visual, written, and supported communication ensuring accessibility for individuals with limited English proficiency, low literacy, or culturally distinct communication preferences. It should also include accountability mechanisms that assess whether individuals have understood the information provided and whether they are able to participate meaningfully in decisions affecting their lives.

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Embedding these measures would strengthen alignment with Article 21 of the United Nations Convention on the Rights of Persons with Disabilities (2006), which affirms the right to accessible information and communication. It would also promote culturally safe and equitable participation for Aboriginal and Torres Islander and CaLD individuals, ensuring that the Guardianship and Administration system operates in a manner that is inclusive, transparent, and respectful of Australia’s diverse communities. Such reforms would strengthen alignment with Article 21 (United Nations 2006).

Pillar Four: Accountability and Oversight

Accountability mechanisms are essential to ensuring that all decision-making under guardianship and administration frameworks accords with legal, ethical, and human-rights standards. Existing arrangements such as complaints pathways and review processes provide some oversight; however, evidence presented in earlier discussions demonstrates that these mechanisms do not consistently operate as accessible, independent, or effective safeguards, particularly for people from Aboriginal and CaLD communities who may face additional cultural, linguistic, and systemic barriers.

Reform in this area may appropriately focus on strengthening the independence and cultural competence of oversight functions. Clear separation between decision-making bodies and complaints or review processes would enhance transparency and public confidence. Embedding culturally safe advocacy and support within complaints pathways ensuring interpreters, community liaison roles, and trauma-informed practices would improve accessibility for vulnerable groups. Collectively, these measures would reinforce the effectiveness and integrity of safeguards.

A shift toward outcome-based accountability may further improve system performance. Such an approach would prioritise measurable indicators of a person’s participation in decisions, alignment with their will and preferences, and meaningful inclusion in community life. Review processes may also give greater consideration to the duration of orders and the availability of culturally appropriate pathways for restoring autonomy. These reforms would move the system beyond procedural compliance and toward achieving lived outcomes that uphold dignity, self-determination, and cultural identity.

Pillar Five: Ecosystem Integration

This pillar recognises that guardianship and administration do not operate in isolation but form part of a broader ecosystem of social supports, cultural relationships, and service systems. Effective reform requires that decision-making processes be integrated within this ecosystem so that decisions are informed, contextual, and aligned with the individual’s cultural, familial, and community supports.

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For Aboriginal people and CaLD communities, whose decision-making traditions often emphasise collective responsibility, cultural authority, and extended kinship structures, ecosystem integration is essential to ensuring culturally safe, inclusive, and rights affirming outcomes.

Reform may acknowledge that a person’s decision-making capacity is shaped by their relationships, cultural identity, and access to community supports. Embedding this understanding within guardianship processes ensures that decisions are not made in a vacuum but reflect the individual’s lived environment, cultural obligations, and available supports.

For Aboriginal and Torres Islander people, this includes recognising:

• the authority of Elders and cultural leaders
• kinship systems and obligations
• community-based decision-making practices
• the importance of Country, cultural continuity, and community connection

For CaLD communities, this includes recognising:

• extended family structures
• cultural norms around shared decision-making
• the role of community organisations, interpreters, and bicultural workers

Therefore, there should be an ecosystem mapping to Inform decision-making implementation. This mapping may include the systematic mapping of the individual’s support ecosystem as part of all guardianship and administration processes. Decision makers may be required to document:

• family and kinship networks
• cultural authority structures
• community and cultural supports
• service providers and advocacy involvement
• communication needs, including language and interpreter requirements

This mapping would ensure that decisions are grounded in the person’s cultural and social context, reduce unnecessary reliance on substitute decision-making, and strengthen supported decision-making pathways.

Integration may also involve structured coordination across service systems that intersect with guardianship, including:

• health and mental health services

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• disability supports
• housing and homelessness services
• community and social services
• Aboriginal community-controlled organisations
• CaLD community service providers

Improved alignment across these systems would reduce fragmentation, promote consistency, and ensure that individuals particularly those from vulnerable groups are not disadvantaged by siloed or culturally insensitive processes.

These measures collectively support greater inclusion, cultural safety, and meaningful participation in decision-making. By embedding ecosystem integration into the reform structure, guardianship processes can better uphold:

• self-determination
• cultural rights
• dignity and autonomy
• equitable access to supports

For Aboriginal and CaLD communities, this approach affirms that culturally informed, community connected decision-making is not an optional consideration but a core requirement of a fair and modern guardianship system.

Pillar Six: Cultural Alignment

Cultural alignment ensures that decision-making processes appropriately reflect the diverse cultural contexts of the people subject to guardianship and administration. Current arrangements predominantly apply Western models of individual autonomy. These models do not consistently align with the collective, relational, and kinship-based approaches that characterise many Aboriginal communities and culturally and linguistically diverse groups.

Reform under this pillar may formally recognise cultural authority structures within decision-making processes. Decision-makers may be required to engage with kinship systems, extended family networks, Elders, and culturally recognised community leaders. Consideration of cultural impact may inform decisions relating to housing, service access, community participation, and social and emotional wellbeing. Such measures would help ensure that decisions are not only legally sound but culturally legitimate.

Training and governance structures may also be strengthened to support cultural alignment. Incorporating cultural expertise, Aboriginal community-controlled perspectives, and lived experience

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from CaLD communities into governance arrangements may enhance the quality and appropriateness of decision-making. These measures would reduce cultural misinterpretation, promote trust, and support equitable outcomes for vulnerable groups.

Implementation Pathways

Kin recognises that the effective implementation of reform requires coordinated and sustained action across legislative, administrative, operational, and cultural domains. A coherent and culturally responsive reform pathway is essential to ensure that changes are meaningful, durable, and capable of addressing the needs of vulnerable groups, particularly Aboriginal and CaLD communities who experience longstanding systemic disadvantage.

• Legislative, Operational, and Cultural Change

Legislative, operational, and cultural reforms must operate in concert to achieve genuine transformation:

• Legislative change should establish clear principles, duties, and statutory requirements that embed cultural alignment, supported decision making, and respect for the rights, autonomy, and cultural identity of individuals subject to guardianship or administration.
• Operational change must ensure that these legislative principles are translated into consistent day-to-day practice through strengthened procedures, culturally informed tools, and enhanced workforce capability, including training in cultural safety and trauma aware practice.
• Cultural change across organisations is essential to ensure that reforms are not merely procedural but are embedded in organisational values, behaviours, and decision-making norms. This is particularly important for Aboriginal and CaLD communities, for whom trust in institutions is shaped by historical and contemporary experiences of discrimination, exclusion, and cultural misunderstanding.

These reforms cannot be implemented instantaneously. A phased implementation approach is required to support stability, continuity, and cultural integrity.

• Phased Implementation

A staged approach may provide a structured and stable transition:

• Initial phases may prioritise supported decision making, improved communication systems, and culturally responsive practice, ensuring that individuals particularly those from Aboriginal and CaLD communities are able to participate meaningfully in decisions affecting their lives.

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• Subsequent phases may focus on differentiation of pathways, integration across the broader service ecosystem, and the development of culturally informed governance structures that reflect community expectations and uphold cultural authority.

• Ongoing evaluation should identify areas requiring refinement, ensuring that reforms remain responsive to community needs, emerging evidence, and the lived experience of those most affected.

• Stakeholder Engagement

Achieving these reforms requires sustained and genuine engagement with stakeholders. Individuals with disability, families, Aboriginal communities, CaLD communities, and service provider organisations including Advocacy organisations provide essential insight into lived experience and cultural context. Their participation ensures that reform reflects real world conditions, community expectations, and cultural obligations. Such engagement strengthens legitimacy, accountability, and the overall effectiveness of the reform process.

• Risk Considerations and Mitigation

While these reforms offer significant benefits, they also introduce potential risks that require careful management:

• Increased complexity may arise from differentiated pathways and ecosystem integration.

• Resource demands may increase, particularly in relation to communication supports, cultural capability development, and community engagement.

• Transitional uncertainty may affect organisations, decision makers, and individuals subject to guardianship or administration.

• Risk management strategies may include:

• Clear guidance and culturally informed training for decision makers and practitioners.

• Phased implementation to minimise disruption and support organisational readiness.

• Monitoring and evaluation to identify emerging issues early.

• Flexibility within the reform design to allow adaptation as community needs evolve.

These strategies support sustainable, culturally responsive change that is capable of enduring over time.

This submission section has outlined a strategic reform framework addressing the structural drivers identified earlier, including supported decision making, differentiation, communication systems, accountability, ecosystem integration, and cultural alignment. These elements operate collectively to

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uphold human rights and improve outcomes for all individuals, particularly those from Aboriginal and CaLD communities who face systemic barriers within guardianship and administration systems.

It is evident that reform does not require a single prescriptive model. Rather, it requires coordinated and culturally grounded adjustments that align system design with community expectations, cultural diversity, and individual circumstances. A system that recognises variation, supports meaningful participation, and measures outcomes with cultural sensitivity is better positioned to deliver fair and just outcomes.

Guardianship and administration frameworks have the potential to support autonomy rather than restrict it. Realising this potential depends on strong alignment between principles and practice. This submission provides a pathway for achieving that alignment and ensuring that reforms are culturally grounded, rights affirming, and responsive to the needs of vulnerable groups, particularly Aboriginal and CaLD communities.

Alignment with the Disability Royal Commission and the Aged Care Royal Commission Findings

This section of our submission outlines the manner in which the proposed Guardianship and Vulnerable Persons Reform Framework align with, and responds to, the findings of the Disability Royal Commission and the Aged Care Royal Commission. Both inquiries identified pervasive and systemic failures in decision-making, communication, oversight, and accountability. These failures do not operate external to guardianship systems; rather, they intersect directly with guardianship processes and materially shape the experiences and outcomes of people subject to intervention particularly those who are most vulnerable.

Our submission in this space therefore translates the national findings of both Royal Commissions into the Western Australian Guardianship and Supported Decision-Making context. We do not restate the conclusions of the inquiries. Instead, we identify how the structural issues highlighted at the national level manifest within Western Australia’s guardianship framework, funded service systems, and broader decision-making architecture.

This section demonstrates how the proposed reform framework addresses these systemic issues through integrated, rights-based, and safeguards focused reform, consistent with the recommendations of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023) and the Royal Commission into Aged Care Quality and Safety (2021). In doing so, it reinforces the imperative that guardianship and related systems must operate in a manner that protects autonomy, enhances accountability, and ensures the safety and dignity of people with disability, older people, and all individuals at heightened risk of harm.

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• Finding: Overuse of Substitute Decision-Making

The Disability Royal Commission identified a pervasive and systemic overreliance on substitute decision-making. The Aged Care Royal Commission reported comparable patterns, particularly in relation to financial management and care-related decisions. Both inquiries observed that existing arrangements frequently drift from providing support toward exercising control.

Our proposed submission framework responds directly to this finding by establishing a clear requirement that supportive measures must be attempted prior to any form of restriction. Decision-makers would be obliged to demonstrate that genuine, appropriate, and proportionate support has been provided and that such support has not enabled the person’s effective participation in decision-making. This obligation applies consistently across guardianship systems and funded service environments.

The framework further introduces function-specific authority. Under this approach, any order must specify the precise domain of decision-making to which it applies. This prevents unnecessarily broad substitution, confines authority to the functions that are strictly required, and ensures that interventions remain proportionate to the individual’s actual needs. The overall effect is to limit the expansion of control and to align decision-making interventions with the principle of least restriction.

• Finding: Failure to Recognise Will and Preference

Both Royal Commissions identified a persistent and systemic failure to recognise and uphold the will and preferences of individuals. Existing arrangements frequently default to “best interests” frameworks that, in practice, override or diminish the person’s own expressed views.

Kin’s proposed framework places will and preference as the primary consideration in all decision-making processes. Decision-makers are required to give precedence to the person’s stated views and to provide the necessary support to enable their expression wherever barriers exist.

Communication support is framed as a legal obligation, not a discretionary or optional practice.

This approach accords with Article 12 of the Convention on the Rights of Persons with Disabilities, which affirms that legal capacity must be realised through support rather than substitution (United Nations 2006). The framework therefore ensures that individuals exercise their rights on an equal basis with others, with decision-making grounded in respect for autonomy, dignity, and self-determination.

• Finding: Communication Barriers and Exclusion

The Disability Royal Commission identified failures in communication as a significant barrier to meaningful participation. The Aged Care Royal Commission reached similar conclusions in relation to older persons, particularly those experiencing cognitive impairment or facing linguistic challenges.

Kin’s proposed framework recognises communication as a fundamental system function that must be embedded as a priority practice. Decision-makers carry a responsibility to ensure that individuals are

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able both to comprehend relevant information and to communicate their preferences effectively. To this end, the framework promotes the use of diverse communication modalities, including supported communication, professional interpretation, and culturally responsive methods.

The adoption of a structured national communication standard such as a National Translation Standard Framework would provide a consistent, system level response. Such an approach ensures that genuine participation is grounded in understanding, rather than in the mere provision of documents.

• Finding: Institutional Culture and Risk Aversion

Both Royal Commissions identified entrenched institutional cultures characterised by risk aversion and a prioritisation of administrative efficiency. These cultural settings have historically driven the over-use of restrictive practices and have inhibited the development and uptake of supported decision-making.

We submit that the proposed framework responds to this challenge through structural reform rather than reliance on behavioural aspiration. By embedding functional regulation, the framework directly links authority to demonstrated competence and clear accountability. The introduction of providing support before restriction obligations must recalibrate decision thresholds, ensuring that restrictive measures cannot continue to be the default response.

Further, the shift to outcome-based oversight need to reorient the institutional incentives toward participation, proportionality, and rights consistent practice. Collectively, these reforms reshape institutional behaviour by altering the structural conditions under which decisions are made, instead of merely exhorting to a cosmetic cultural change.

• Finding: Weak Oversight and Accountability

Both Commission’s inquiries identified significant deficiencies in the current oversight landscape. Oversight functions are fragmented, inconsistently applied, and frequently ineffective. Individuals encounter substantial barriers when attempting to challenge decisions, and existing mechanisms tend to be activated only after harm has already occurred.

Our submission proposes a strengthened and coherent oversight framework comprising:

• an independent Registration Authority to ensure impartial governance
• clear functional accountability for every exercise of decision-making power
• accessible and responsive review and complaints pathways
• integrated and well-targeted advocacy support to assist individuals in navigating processes

Criminal offences would apply to the unauthorised or harmful exercise of decision-making authority. This establishes enforceable boundaries and ensures that accountability does not rely solely on administrative responses.

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• Finding: Barriers to Complaints and Advocacy

The Disability Royal Commission has identified significant barriers to the making of complaints and to the effective use of advocacy services. Comparable concerns were raised by the Aged Care Royal Commission, particularly in relation to older persons and their families.

Our proposed submission framework embeds advocacy throughout all stages of decision-making, review, and oversight. It affirms that individuals must have timely access to support in understanding their rights and in navigating relevant systems. It further requires that complaints mechanisms be accessible, independent, and capable of responding to concerns without undue burden on the complainant.

Such integration ensures that safeguards function proactively, rather than merely responding after harm has occurred.

• Finding: Cultural Incompetence and Systemic Bias

Both Royal Commissions have identified persistent systemic bias affecting Aboriginal peoples and culturally diverse communities. Our experiences demonstrate that existing systems frequently fail to recognise collective decision-making processes and established cultural authority structures.

Our proposed submission framework encourages and requires decision-makers in System-making stages to give proper weight to cultural and relational context. This includes the recognition of kinship systems and community-based authority as integral components of sound decision-making units.

Cultural interpretation must extend beyond linguistic translation to encompass relational dynamics and community context.

We strongly advocate that embedding these considerations reduces the risk of misinterpreting cultural difference as incapacity. It ensures that decision-making processes are aligned with the lived experiences of the communities affected and promotes more equitable, inclusive and culturally competent outcomes.

• Finding: Poor Outcomes and Loss of Autonomy

Both Federal Royal Commissions inquiries reached a consistent conclusion: current system settings are producing outcomes characterised by diminished autonomy, disconnection from community, and an erosion of personal identity. These consequences, which may contribute to further distress and mental health challenges, arise primarily from systemic design rather than from any inherent vulnerability of the individuals subject to orders.

Kin Advocacy’s proposed submission framework strengthens accountability by embedding an outcome-based approach. For instance, oversight mechanisms must explicitly assess the degree to

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which a person’s participation, autonomy, and alignment with their will and preferences are upheld. Any orders imposed must remain strictly time-limited and subject to regular, independent review.

We further propose the adoption of a Vulnerable Persons Ecosystem Model. This model recognises that decision-making occurs within a broader network of social, relational, and community supports. It shifts the focus away from isolating individuals within legal processes and instead situates them within the contexts that shape their lives and choices. Therefore, for such to be effective, the system must operate through an interactive framework that collaborates with stakeholders, including trusted supporters, rather than functioning in a manner that is adversarial or conflict driven. Such a framework should embody an active, compassionate, and solution-oriented voice, while maintaining clear lines of accountability.

We strongly advocate that a system designed in this way would better safeguard autonomy, promote meaningful participation, and ensure that protective mechanisms do not themselves become sources of harm.

• Finding: System Fragmentation

Both Royal Commissions have identified significant fragmentation across the disability, aged care, health, and justice systems. This fragmentation produces gaps in accountability, weakens service continuity, and undermines the effectiveness of public administration.

Our proposed submission framework is designed to apply consistently across all publicly funded services operating within the guardianship and administration systems.

To address these systemic shortcomings, the introduction of robust and coherent regulation must follow the locus of decision-making authority rather than merely reflect existing organisational boundaries. Such an approach ensures that consistent standards are embedded and upheld across interconnected service systems.

Strengthening systematic integration of stakeholder interests will reduce service gaps and promote alignment in decision-making practices across diverse operational environments. This, in turn, supports the deliberate shaping of foundational settings that influence the guardianship and administration portfolio.

Kin Advocacy’s proposed submission framework directly responds to the systemic failures identified by both the Disability Royal Commission and the Aged Care Royal Commission. Rather than reiterating their findings, the framework translates those findings into enforceable legal, regulatory, and operational mechanisms designed to protect and empower those most affected within the guardianship and administration system.

We maintain that integrating the Vulnerable Persons Framework outlined in this submission together with strengthened functional regulation and targeted guardianship reform ensures that:

• vulnerability is interpreted accurately and consistently
• support is prioritised ahead of restriction

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• decision-making authority is both limited and accountable
• participation and communication operate coherently across all systems and with all stakeholders

This approach positions Western Australian law to align with national evidence and to meet international human rights obligations, while establishing a more just, transparent, and protective system for vulnerable people.

Implementation, System Integration and Transitional Reforms

This section of our submission provides a structured pathway recommendation for Western Australia to transition from the current guardianship and service arrangements to a function-based, rights-aligned system. We frame reform as a comprehensive system transformation rather than a simple legislative replacement. Our approach integrates legislative modernisation, workforce capability development, communication and information systems, and strengthened oversight within a coordinated, staged program.

We recognise the practical constraints that accompany such a transition, including existing orders, workforce composition, funding structures, and cross-jurisdictional interfaces. Notwithstanding these considerations, we emphasise the importance of deliberate sequencing, proportionality, and robust risk management.

This method ensures that reform remains grounded in operational realities while safeguarding the coherence and integrity of the proposed model (LRCWA 2025).

Observation of Current System Baseline

The existing system in operation disperses decision-making responsibilities across multiple institutions and operational settings. For example, the State Administrative Tribunal is responsible for determining guardianship and administration orders. The Office of the Public Advocate and the Public Trustee undertake distinct statutory functions. In parallel, funded service providers shape access to supports and influence decisions regarding allocation and delivery across the disability, aged Care, and health sectors.

Significant decision-making also occurs outside formal legal orders. Entry pathways to services, funding determinations, and care coordination processes routinely affect an individual’s autonomy, resources, and practical choices. These functions frequently operate without consistent standards of competence, communication, or accountability. Fragmentation across agencies and program areas contributes to variability in practice and outcomes, as identified by the Royal Commission into Aged Care Quality and Safety (2021).

Accordingly, the current baseline is characterised by dispersed authority, uneven competence thresholds, inconsistent communication practices, and predominantly reactive oversight mechanisms.

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Comprehensive reform must address each of these elements in a coordinated and system-wide manner.

• Consideration of Implementation Architecture

Suggestive implementation would require four core components:

1. Legislative enactment of the integrated Act, including function-based regulation, registration, and offences.
2. Establishment of a Registration Authority with independence, assessment capability, and disciplinary powers.
3. Development of competence standards and independent assessment, including scenario-based testing of applied judgement.
4. Rollout of system-based communication, including accessible formats, interpretation, and supported communication.

These components operate as infrastructure rather than policy statements. However, each component suggested requires design, resourcing, and governance. A well-defined integration across components ensures consistency from identification of vulnerability through to enforcement.

• Phased Implementation Model

Phase 1 – Foundation (0–12 months)

• Enact legislation and commence key provisions
• Establish or designate the Registration Authority
• Define regulated functions across guardianship and funded services
• Develop interim competence standards and assessment tools
• Pilot supported decision-making and communication systems in selected regions

This first phase is anticipated to build the institutional base and tests operational models.

Phase 2 – System Integration (12–30 months)

• Extend registration requirements to high-impact functions across funded services
• Embed communication systems in Tribunal processes and service entry points
• Implement transitional registration pathways with supervision and staged competence
• Integrate compliance conditions into funding agreements

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This phase should align services, workforce, and oversight with the legislative framework.

Phase 3 – Full Enforcement (30–48 months)

• Apply full registration requirements to all regulated functions
• Activate criminal offence provisions with prosecutorial guidance
• Implement comprehensive oversight, auditing, and public reporting
• Standardise review cycles aligned to cohort-specific capacity trajectories

This phase would complete the shift to a function-regulated system.

• Workforce Transition

The existing workforce comprises practitioners with varied qualifications, roles, and levels of experience. A significant proportion currently undertakes decision-making responsibilities without independent verification of competence. Immediate exclusion of these individuals would risk substantial service disruption and reduced access for the community.

To ensure continuity while progressively strengthening standards, transitional pathways may include:

• Provisional registration contingent upon appropriate supervision
• Experience-based entry supported by independent assessment of competence
• Time limited authorisation for defined functions during the transition period
• Mandatory reassessment within specified intervals to confirm ongoing suitability

This approach preserves service availability while elevating professional standards. Independent assessment provides a consistent benchmark across all pathways and safeguards against any dilution of competence.

• Impact on Funded Systems (NDIS, Aged Care, Health and WA Programs)

Reform will necessarily affect functions central to determining access, allocation, and delivery of supports. For example, within disability and aged care systems, these functions include assessment, planning, coordination, and funding decisions. Whilst in the health sector, this may encompass consent processes and discharge planning. Within Western Australian programs, they include eligibility determination and service allocation.

Accordingly, application of the Act requires that:

• Only registered individuals may perform high-impact decision-making functions
• Support before restriction principles apply to all service decisions
• Communication systems must facilitate understanding and meaningful participation
• Records must demonstrate alignment of decisions with the individual’s will and preferences

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Funding agreements remain the primary mechanism for ensuring compliance. Embedding these requirements within contractual arrangements aligns provider incentives with statutory obligations.

• Risk Analysis and Mitigation

Workforce Resistance:

There is a risk of resistance arising from perceived administrative burden and changes to established practice. Mitigation strategies include a phased implementation schedule, clear transitional pathways, and authoritative guidance on the scope and application of regulated functions.

Cost Pressures:

Costs will be associated with establishing the Authority, conducting assessments, and implementing communication systems. These pressures can be mitigated through staged investment, leveraging existing infrastructure, and recognising potential offsets through reduced litigation and fewer inappropriate orders.

Over-Regulation Concerns:

Concerns may be raised that regulation could impede service delivery. This risk is mitigated by targeting regulatory requirements to high impact functions while preserving flexibility for low-risk activities.

Jurisdictional Interface:

As NDIS and aged care services are funded by the Commonwealth, jurisdictional complexity continues to arise. Mitigation includes embedding requirements within State legislation governing service delivery in Western Australia and reinforcing compliance through funding conditions.

• Monitoring and Evaluation

Monitoring activities should prioritise outcomes rather than the mere completion of procedural steps. Indicators appropriate for assessing progress may include:

• reductions in the number of new guardianship orders
• increased participation of individuals in decision-making processes
• shorter durations of orders
• stronger alignment of decisions with the person’s will and preferences
• fewer complaints and Tribunal appeals

Data collection and analysis must be disaggregated across relevant cohorts to ensure inequities are not obscured.

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Public reporting should be structured to promote transparency, accountability, and continuous improvement across the system.

• Transitional Justice

Transitional justice concerns individuals currently subject to restrictive legal and administrative arrangements. Reform must ensure that existing inequities are not perpetuated or reinforced.

Appropriate measures may include:

• a systematic, time bound review of all existing orders
• prioritisation of cases involving the highest levels of restriction, including plenary and long-term arrangements
• the establishment of clear restoration pathways, including supported decision-making frameworks
• strengthened access to advocacy throughout all review processes

This approach acknowledges that many current arrangements arise from historical system design rather than an accurate assessment of present capacity. Consistent with the findings of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (2023), reform must proactively rectify these inherited conditions.

• Integration with Tribunal Processes

The State Administrative Tribunal should revise its procedures to ensure full alignment with the new legislative and operational framework. Key adaptations include:

• embedding appropriate communication supports within all hearing processes
• requiring demonstrable evidence that supportive measures have been attempted before any restrictive intervention is authorised
• issuing orders that are precisely tailored to the specific functions or decisions in question
• applying review cycles that are responsive to the needs and characteristics of different cohorts, supported by targeted training, updated practice directions, and procedural redesign to promote consistent application

Such integration ensures that each legal decision point is informed by, and reflective of, the broader system model.

• Implementation Governance

A central implementation body or steering group should be established to oversee and coordinate:

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• the staged rollout of legislative reforms
• the establishment and operationalisation of the Registration Authority
• alignment of processes and responsibilities across relevant agencies
• structured and ongoing stakeholder engagement

Membership may appropriately include representatives from government, individuals with lived experience, legal practitioners, and service providers. Clear and robust governance arrangements strengthen accountability, support coherent system design, and minimise fragmentation.

We firmly contend that the implementation of the proposed recommendation framework is both feasible and practicable through a staged and coordinated program of reform. This approach is consistent with necessary legislative adjustments, supported by improvements in operational practice and strengthened through targeted workforce capability initiatives. The model directly addresses known systemic deficiencies by regulating the interpretation of vulnerability and guiding the appropriate exercise of decision-making authority.

Failure to adopt these reforms will entrench existing shortcomings, including misclassification, overreach, and insufficient accountability. By contrast, implementation of these evidence-based practices offers a clear opportunity to establish a system that upholds autonomy, participation, and proportionality for all individuals across diverse communities.

References

Committee on the Rights of Persons with Disabilities 2014, General Comment No. 1 (2014) Article 12: Equal recognition before the law, United Nations, Geneva.

Law Reform Commission of Western Australia (LRCWA) 2025, Guardianship and Administration Review, Government of Western Australia, Perth.

Royal Commission into Aged Care Quality and Safety 2021, Final Report: Care, Dignity and Respect, Commonwealth of Australia, Canberra.

Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability 2023, Final Report, Commonwealth of Australia, Canberra.

Series, L 2015, ‘Relationships, autonomy and legal capacity: Mental capacity and support paradigms’, International Journal of Law and Psychiatry, vol. 40, pp. 80–91.

United Nations 2006, Convention on the Rights of Persons with Disabilities, United Nations, New York.

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Bigby, C, Whiteside, M & Douglas, J 2017, ‘Providing support for decision making to adults with intellectual disability: Perspectives of family members and workers’, Journal of Intellectual & Developmental Disability, vol. 42, no. 4.

Carney, T 2015, ‘Supported decision-making for people with cognitive impairments: An Australian perspective?’, Laws, vol. 4, no. 1.

Davidson, G, Brophy, L, Campbell, J & Farrell, SJ 2016, ‘An international comparison of legal frameworks for supported and substitute decision-making’, International Journal of Law and Psychiatry, vol. 44.

Donnelly, M 2019, Healthcare Decision-Making and the Law: Autonomy, Capacity and the Limits of Liberalism, Cambridge University Press, Cambridge.

Kohn, NA, Blumenthal, JA & Campbell, AT 2013, ‘Supported decision-making: A viable alternative to guardianship?’, Penn State Law Review, vol. 117.

Quinn, G 2010, ‘Personhood and legal capacity: Perspectives on the paradigm shift of Article 12 CRPD’, HPOD Conference Paper, Harvard Law School.

WA Legislative and Policy Context

Guardianship and Administration Act 1990 (WA), Government of Western Australia.

State Administrative Tribunal Act 2004 (WA), Government of Western Australia.

Office of the Public Advocate (WA) 2023, Guardianship and Administration Information, Government of Western Australia.

Public Trustee Act 1941 (WA), Government of Western Australia.

Australian Law Reform Commission (ALRC) 2014, Equality, Capacity and Disability in Commonwealth Laws, Report No. 124, Commonwealth of Australia.

Productivity Commission 2011, Disability Care and Support, Commonwealth of Australia.

Appendix A

Case Studies

Case Study 1: Regional and Remote Clients

On a regular basis in the regions, Kin is approached by families who require support and advocacy to navigate the complex systems of NDIS, State Administrative Tribunal and Office of the Public Advocate as it relates to the appointment of a Guardian and Administrator. Kin remains committed to its mission statement of helping the most vulnerable members of the community to access equity.

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J is a young woman who recently turned eighteen. She lives with her mother (M), who is the primary support for her and her siblings. J receives the Disability Support Pension. M helped her manage her day-to-day expenses and helped her learn how to use an ATM to withdraw money when required. M assisted J with all daily living tasks.

Without M’s knowledge or consent, J was taken to a medical appointment by her support worker and did not arrive home at the expected time. Being concerned for J’s welfare, M contacted the support worker to check that her daughter was ok. It was at that point that M was informed of the situation and where J had been taken.

A few weeks later M received notice in the mail about a pending State Administrative Tribunal (SAT) hearing but had no awareness about Guardianship and Administration. The SAT hearing resulted in the appointment of The Office of the Public Advocate (OPA) as J’s Guardian, and Public Trustee appointed as her Administrator.

M had no experience in dealing with the Public Trustees or the OPA and found it difficult to deal with J’s Trust Manager and Guardian on her own. It was at that point that M was referred to Kin and another culturally responsive community service.

The Guardian and Trust Manger were Perth based and lacked awareness of how families live in remote areas of the Northwest. The environment, food and culture are different and day to day expenses are much higher. The Public Trustee had “overlooked” arranging a regular contribution to M for J’s living expenses and making regular payments to Housing Authority for J’s portion of the rent. This not only put M in financial hardship, but it also placed the family at risk of homelessness due to rent arrears.

Kin arranged referral to an Aboriginal Legal Service for support in applying for the SAT orders to be reviewed.

Kin liaised with the Department of Communities (Housing) to advise them of what had happened and the reason for the arrears. Doing so ensured that the family’s housing situation was stabilised.

Kin wrote to the Trust Manager to request a contribution to shared costs of living and supported M to develop weekly budgets and identify the expenses she covered for J. Kin requested a retrospective payment backdated to the date of the SAT order.

Because there was no response to the initial letter, possibly due to change over of staff at the Public Trustees and end of year holidays, the matter was escalated after the holiday season. M now receives a regular fortnightly contribution for J’s expenses from the Public Trustee and has been reimbursed for costs incurred on J’s behalf.

Case Study 2

T is from a CALD background and is the mother of three children, including two adult children G and F with intellectual disability.

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When T was referred to Kin, she and her children were experiencing family violence from the father and were still living in the same house (separated under one roof).

T was not clear on who made the application for guardianship. She attended the SAT hearing but did not properly understand what was happening at the hearing. She was told that orders had been made to appoint her the Guardian of G, and the father was appointed the guardian of F.

T was extremely distressed that F’s Guardian was the father who had been violent towards the family.

T did not know if anyone explained to the staff at the SAT that she and her children had experienced domestic violence and that it would be inappropriate to appoint her husband as a Guardian. It was clear to Kin that T required an interpreter, however none had been arranged at the SAT and T did not know she could request one.

Kin referred T to a Family and Domestic Violence service, she was then provided with safe accommodation in a family violence refuge. Kin worked collaboratively with the Family and Domestic Violence service and ensured that appropriate restraining orders and safety planning was in place before assisting T in seeking a review of the Guardianship Orders.

The Guardianship Orders were varied such that the Office of the Public Advocate was appointed for both of T’s adult children and the Public Trustees appointed as their Administrator.

Later, once safety concerns around family and domestic violence had been addressed and the family’s circumstances had stabilised, F applied to SAT to have the Guardianship arrangement reviewed.

As there were now safe supports including community services, access to disability advocacy and safe informal supports ( including T assisting them with day-to-day needs), the Member accepted that due to the fact that their circumstances had now greatly improved and they were becoming more independent adults, there was no longer a need for Guardianship Orders to remain in place.

Case Study 3

D lives in a remote community in WA’s West Kimberley region. English is not D’s first language.

As M’s primary carer, D has accessed Kin’s Regional advocacy services at various points throughout M’s life to ensure that her disability needs were met.

As Kin provides services to clients in a culturally responsive manner, M felt safe seeking advocacy from Kin staff. Kin Regional Advocates based in Broome are well respected members of the community and understand the cultural context in relation to delivering culturally safe advocacy services to clients.

During discussions with NDIS (planning for future support after transitioning from school) the topic of the need for a formally appointed Guardian arose. At the time, D did not wish to progress an application for Guardianship and Administration as in her view, things were working well informally and there was no need for Orders to be made. M was well supported and D was happy with her

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placement. M’s day-to-day living costs were covered as M received DSP and appropriate NDIS Supports were in place.

Prior to moving back to her community, D had been living in Broome with M for most of M’s life. When D made the difficult decision to return to her community, for cultural obligations she arranged appropriate safe services for M including accommodation. The decision to leave M in Broome was made by D so that M could complete her schooling and have access to more support than what was available in her community. M was about 18 years old at the time.

D engaged well with M’s accommodation provider and NDIS services. D was proactively involved in M’s care and took her role as parent/ Guardian and primary decision maker for M seriously. D always made decisions that put M’s needs first.

M lives in accommodation in Broome and has Supported Independent Living (SIL) funding in her NDIS Plan. As well as SIL funding, M’s plan includes funds for Allied Health supports, Support Coordination and Community Inclusion. M was therefore well supported and actively engaged in community. M is now in her early twenties and has an established routine in place appropriate to her needs.

Despite these arrangements working well and no concerns being raised in relation to abuse, neglect or exploitation. A service provider initiated an application through the State Administrative Tribunal for the appointment of a Guardian and Administrator for M.

Subsequently a hearing was arranged. Whilst D took the view that formal Orders were not necessary, she advised the Member that she would like to continue to be M’s Guardian and primary decision maker if there needed to be a formal arrangement in place. At the hearing concerns were raised that D needed “help to make decisions” and was too reliant on Kin Advocates or other community services to “help her make decisions”. D’s supporters (including family members and advocates) addressed those concerns. The member reserved the decision at the end of that hearing and scheduled a further hearing date for approximately 10 weeks later.

Prior to the scheduled hearing, the same service provider submitted an urgent application for the appointment of a Guardian. This hearing went ahead without D’s knowledge or participation. Although staff at the State Administrative Tribunal advised Kin staff that D was notified by mail, D did not receive the notice and therefore was unaware that an Order was made covering an interim period. Nobody from the State Administrative Tribunal contacted her by phone to let her know about the hearing, nor did anyone contact the Regional Advocates from Kin’s Broome Office.

At the final hearing, even though there were appropriate family members to take on the roles of Guardianship and Administration, Orders were made that the Office of the Public Advocate be appointed as M’s Guardian and Public Trustees were appointed as M’s Administrator.

Following the hearing D was referred to a local community legal service. D has been allocated legal support to lodge a review of the current Orders and is awaiting a Hearing.

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Appendix B Comparison: Current WA Law Vs Proposed Reform Framework

1. Foundational Legal Model

Dimension	Current WA Legislation	Proposed Reform Framework
Core concept	Substitute decision-making based on “best interests” (Western Australian Government)	Supported decision-making as primary system function
Definition of cohort	Assumes a general class of persons with decision-making disability (Western Australian Government)	Explicit recognition of multiple structurally distinct cohorts
Concept of vulnerability	Implicit and undifferentiated	Explicit rejection of “single vulnerability” classification
Legal framing	Protection-oriented	Rights-based and participation-oriented

Interpretation: Current legislation embeds a protection model, while the proposed framework shifts toward a differentiated rights model.

2. Decision-Making Standard

Dimension	Current WA Legislation	Proposed Reform Framework
Primary test	“Best interests” of the person (Western Australian Government)	Will and preference as primary determinant
Role of person	Person may express views where possible (Western Australian Government)	Participation required as a system condition
Threshold	Decision-making disability + need for protection	Demonstrated failure of supported decision-making
Substitute decision-making	Central mechanism	Last resort only

Interpretation: Current law allows substitution once incapacity is identified. Proposed model requires evidence that support failed before substitution occurs.

3. Role of the State Administrative Tribunal (SAT)

Dimension	Current WA Legislation	Proposed Reform Framework
Function	Appoints guardians and administrators (Western Australian Government)	Retains role but under stricter participation and evidence standards
Participation	Opportunity to be heard where possible (Western Australian Government)	Mandatory supported participation
Decision basis	Best interests + risk considerations	Will and preference + proportionality
Review	Periodic review available (Developmental Disability WA - DDWA)	Mandatory, time-limited, cohort-sensitive review cycles

Interpretation: SAT currently operates as a protective decision-maker. Reform positions SAT as a rights adjudicator with participation obligations.

4. Scope of Guardianship and Administration Orders

Dimension	Current WA Legislation	Proposed Reform Framework
Order type	Limited or plenary orders (Western Australian Government)	Domain-specific only (no plenary default)
Authority	Can extend to broad life domains	Restricted to clearly defined decision domains
Duration	Can persist with periodic review	Strict time limitation with justification
Adjustment	Reactive (on application)	Proactive recalibration aligned to capacity trajectory

Interpretation: Current system allows broad and enduring control. Reform enforces precision, limitation, and review aligned to capacity change.

5. Role of Guardians and Administrators

Dimension	Current WA Legislation	Proposed Reform Framework
Decision basis	Best interests of represented person (Western Australian Government)	Must align with will and preference
Participation duty	Encourage involvement where possible (Western Australian Government)	Demonstrate active support for decision-making
Cultural consideration	Recognised but not operationalised (Western Australian Government)	Mandatory incorporation of cultural and relational context

Dimension	Current WA Legislation	Proposed Reform Framework
Accountability	Annual financial reporting to Public Trustee (Western Australian Government)	Outcome-based accountability (participation, autonomy, alignment)

Interpretation: Current model frames guardians as decision-makers. Reform reframes guardians as facilitators of decision-making.

6. Communication and Participation

Dimension	Current WA Legislation	Proposed Reform Framework
Communication approach	Information provision	System-based communication (understanding + participation)
Accessibility	Not systematised	Embedded across all decision points
Cultural interpretation	Limited and inconsistent	Required as part of decision-making
Translation	Document-focused	Comprehension-focused (framework-based)

Interpretation: Current law treats communication as procedural. Reform treats communication as foundational to legal capacity.

7. Oversight and Accountability

Dimension	Current WA Legislation	Proposed Reform Framework
Oversight structure	Public Trustee, Public Advocate, SAT (Legal Aid WA)	Strengthened independence and integration
Accountability type	Financial and procedural	Outcome-based (autonomy, participation)
Complaints	Available but fragmented	Integrated, supported, and accessible
Advocacy	Not embedded as system requirement	Integrated into all review and complaints processes

Interpretation: Current oversight focuses on process and compliance. Reform shifts toward impact and rights realisation.

8. Cultural and Community Context

Dimension	Current WA Legislation	Proposed Reform Framework
Cultural recognition	General obligation to respect culture (Western Australian Government)	Structural incorporation of cultural authority
Aboriginal context	Not systemically embedded	Explicit recognition of kinship systems
CaLD communities	Translation-based response	Cultural interpretation and relational decision-making
Decision model	Individualised	Relational and contextual

Interpretation: Current law acknowledges culture but does not operationalise it. Reform embeds culture into decision-making authority itself.

9. System Logic

Dimension	Current WA Legislation	Proposed Reform Framework
System driver	Risk and protection	Rights and participation
Default response	Substitute decision-making	Supported decision-making
System assumption	Uniform vulnerability	Structural diversity
Failure response	Increase control	Increase support

Key Structural Shift (Synthesis)

Current WA legislation operates on this logic: incapacity → protection → substitution → oversight The proposed framework operates on this logic: diversity → support → participation → proportional limitation → continuous review

Critical Insight

The difference is not technical. The difference is ontological.

• Current system asks: Who needs protection?
• Proposed system asks: What support enables decision-making?

This distinction explains why:

• guardianship expands under current law
• guardianship contracts under the proposed model

Draft Legislative Framework: Guardianship and Administration Proposed Reform

Part 1 – Objects and Principles

1.1 Objects of the Act

The Act may include objects that:

• recognise legal capacity on an equal basis
• support exercise of decision-making with appropriate assistance
• promote autonomy, participation, and inclusion
• protect individuals from abuse, neglect, and exploitation
• recognise cultural, relational, and community contexts in decision-making

1.2 General Principles

Decision-makers may have regard to the following principles:

• presumption of decision-making capacity
• priority of will and preference over best interests
• use of least restrictive alternative
• recognition of cultural, family, and community relationships
• proportionality of intervention

Part 2 – Supported Decision-Making Framework

2.1 Presumption of Supported Decision-Making

The Act may provide that:

• decision-making support forms the primary mechanism for engagement
• substitute decision-making occurs only after support options have been considered

2.2 Requirement to Explore Support

Before any guardianship or administration order:

• decision-makers may consider whether:
  • communication support has been provided
  • advocacy has been offered
  • family or cultural supports have been engaged

2.3 Supported Decision-Making Arrangements

The Act may recognise:

• formal supported decision-making agreements
• informal support arrangements
• culturally based decision-making structures

Part 3 – Differentiated Decision-Making Pathways

3.1 Recognition of Distinct Contexts

The Act may include provisions that recognise:

• episodic conditions
• long-term cognitive disability
• communication-based barriers
• culturally grounded decision-making systems
• temporary crisis situations

3.2 Tailored Decision-Making Responses

Decision-makers may:

• adjust intervention based on context
• apply time-limited orders for temporary conditions
• require review where capacity may change

Part 4 – Guardianship and Administration Orders

4.1 Threshold for Orders

Orders may only be made where:

• decision-making support does not sufficiently enable participation
• intervention remains necessary and proportionate
• no less restrictive alternative exists

4.2 Scope of Orders

Orders may:

• specify limited areas of decision-making
• avoid blanket authority
• include clear duration and review requirements

4.3 Duration and Review

The Act may provide that:

• all orders include defined review periods
• shorter review cycles apply to:
  • psychosocial disability
  • acquired brain injury
  • temporary vulnerability

Part 5 – Communication and Accessibility

5.1 Right to Accessible Communication

The Act may recognise that individuals:

• receive information in accessible formats
• understand information relevant to decisions
• communicate will and preference with support

5.2 Communication Standards

The Act may encourage:

• use of plain English and Easy Read
• provision of interpreters
• use of communication supports

5.3 System-Based Communication Approach

The Act may support development of communication frameworks, such as:

• structured communication pathways
• comprehension-based standards
• culturally informed interpretation

Part 6 – Cultural Recognition and Inclusion

6.1 Recognition of Cultural Authority

Decision-makers may:

• consider kinship systems
• engage with cultural authority structures
• recognise collective decision-making practices

6.2 Cultural Impact Consideration

Before making decisions, decision-makers may consider:

• cultural identity
• community connection
• impact on family and kinship networks

Part 7 – Oversight and Accountability

7.1 Independent Oversight Mechanisms

The Act may provide for:

• independent review bodies
• separation of complaints and decision-making functions

7.2 Complaints and Dispute Resolution

Individuals may have access to:

• accessible complaints processes
• advocacy support during complaints
• transparent outcomes

7.3 Outcome-Based Accountability

The Act may encourage measurement of:

• participation in decision-making
• alignment with will and preference
• community inclusion outcomes

Part 8 – Role of Advocacy

8.1 Recognition of Advocacy

The Act may recognise advocacy as:

• a safeguard within decision-making
• a mechanism for supporting participation

8.2 Access to Advocacy

Individuals may have access to:

• independent advocacy at key decision points
• support during Tribunal processes
• assistance in complaints and reviews

Part 9 – Tribunal Functions (SAT)

9.1 Participation Requirements

The Tribunal may:

• ensure individuals participate in proceedings
• provide communication and cultural supports

9.2 Decision-Making Requirements

Decisions may:

• reflect will and preference
• demonstrate consideration of support options
• document reasoning in accessible form

Part 10 – Integration with Service Systems

10.1 Ecosystem Recognition

Decision-making may consider:

• family and informal supports
• service systems
• community networks

10.2 Coordination Requirements

The Act may encourage coordination across:

• disability services
• health systems
• housing and community services

Part 11 – Transitional and Review Provisions

11.1 Transition from Existing Orders

The Act may:

• review existing orders under new principles
• prioritise reduction of unnecessary restrictions

11.2 Periodic Legislative Review

The Act may include:

• scheduled review of effectiveness
• assessment of outcomes against human rights principles

Closing Note

This framework does not prescribe a fixed model. This framework outlines legislative directions that may support:

• alignment with human rights obligations
• improved differentiation across populations
• stronger participation and communication
• more proportionate and accountable decision-making