NDIA Accountability Project

Submissions to the Parliamentary Inquiry into the Guardianship and Administration System in Western Australia

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Ruah Legal Services and Mental Health Law Centre

Submissions to the Parliamentary Inquiry into the Guardianship and Administration System in Western Australia.

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Introduction

  1. Ruah Legal Services t/as the Mental Health Law Centre (‘MHLC’) welcomes the opportunity to provide submissions to the inquiry into the guardianship and administration (‘GAA’) system in Western Australia. MHLC offers legal advice and representation in the following practice areas^1: a. Mental Health Act 2014 (WA); b. Criminal law; c. Criminal Law (Mental Impairment) Act 2023 (WA); d. Guardianship and Administration; e. Care and Protection; f. Family and Domestic Violence; and g. Criminal Injuries Compensation.
  2. As the only Community Legal Centre (‘CLC’) in WA dedicated to providing legal assistance to people diagnosed with acute mental illness, we have extensive experience in assisting clients who are subject to GAA orders appointing the Office of the Public Advocate (‘OPA’) and the Office of the Public Trustee (‘OPT’).
  3. Please see our submissions on the issues raised in the terms of reference below. These submissions are informed by our experience representing persons in the GAA system, as well our experience representing clients in our other practice areas which interact with the GAA system. The submissions draw together our practical experience and observations, as well as those of our clients subject to GAA orders appointing OPA and the OPT.

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

Lack of Contact

  1. Our office, like many organisations who assist vulnerable people presenting with acute mental impairment, often liaise with the OPA and OPT as part of the assistance we provide our clients. Due to the nature of our practice areas, we are not often instructed directly by either agency, other than in our Care and Protection stream. However, we often require consent to be obtained for various other aspects of legal assistance and liaise with both agencies as part of the representation we undertake in the State Administrative Tribunal (‘SAT’).
  2. It is our experience that both the OPA and OPT do not consistently respond to requests for communication in a timely manner. This lack of prompt response or action can have

^1 To be eligible for our services in these matters, persons must have a diagnosed mental impairment and experience some degree of financial disadvantage and/or vulnerability.

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serious consequences for represented persons. We have been involved in countless matters where a lack of OPA consent has caused significant delays in applications for NDIS funding or housing, for example, leading to longer than clinically necessary hospital admissions and delayed discharge.

  1. For our criminal law matters, we are sometimes reliant on the OPA to make accommodation decisions in support of applications for bail. Due to the nature of this practice area, this will occasionally require urgent consideration.

Example:

a. We acted for an Aboriginal client in criminal law matters. b. Our client was subject to a limited guardianship order, which included decision-making about where and with whom the client would live. c. We were informed one morning that our client had been arrested and was due before the Court that day for consideration of bail. d. We were informed by service providers that the client could not return to his previous residence. e. We had spoken with the client’s family members regarding an alternative bail address. f. However, despite many attempts, we were unable to contact the client’s OPA guardian to obtain consent to the accommodation options for bail. g. This placed both lawyer and client in a precarious situation, for which the client’s liberty was at stake.

  1. We suspect that the predominant reason for communication difficulties is related to resourcing challenges. As an example, we note data from the Auditor-General’s 2021 Audit of the OPT found that in 2020-21, the ‘most junior’ trust managers had, on average, 198 clients.^2

  2. We have not been able to locate any information regarding caseloads over the years since, however, there has been a significant increase in appointments under the Act in recent years. According to the most recent annual report, the OPT has seen a 19.3% increase in orders made by the SAT.^3 In addition, there has been a 9.3% increase in trusts created by the Criminal Injuries Compensation commissioner and the District Court.^4 The OPA reports similar increases in workload, with OPA being appointed as guardian for 4,055 adults; an increase of 13% in the last financial year and a 46% increase across four years.^5

  3. In our view, the caseload’s described above present significant challenges for both the OPA and OPT in properly fulfilling their functions. If the increase in appointments is not being met with a commensurate increase in staffing, this will diminish the ability of both

^2 Office of the Auditor General, Report 3: 2022-23, 10 August 2022, Public Trustee’s Administration of Trusts and Deceased Estates, pg8, para 3. ^3 Office of the Public Trustee, Annual Report 2024/2025, Trustee Services, pg 13. ^4 Ibid. ^5 Office of the Public Advocate, Annual Report 2024/25, pg 5, para 5.

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the OPA and OPT to properly represent their clients in accordance with their obligations under the Act. High caseloads invariably limit the amount of time that can be invested per file and inevitably result in there being availability to respond to correspondence, to engage in due diligence, or be available for phone calls.

  1. We have experienced a similar lack of contact from both the OPA and OPT in our Criminal Law (Mental Impairment) Act (‘CLMI’) matters, most of which have been on foot for several years, with no meaningful engagement by either agency with the client, or other key stakeholders on the matter. This has led to significant delays in these matters progressing through the Court, due to various matters relevant to the client’s circumstances, not having been explored and/or actioned by the client’s OPA guardian and/or OPT administrator.

  2. Whilst the detriment to the represented person in these circumstances may not be readily apparent, the detriment experienced by delay in progressing an individual’s legal matter should not be understated. In our experience, delay in connection with the inaction of the OPT/OPA has led our clients to experience increased stress, heightened risk of deterioration of their mental state, further offending connected with their mental state and the fracturing of relationships between the client and key stakeholders. It also leads to increased confusion in relation to the legal matter, as well as confusion in relation to the responsibilities of those appointed under orders to protect and advocate for them.

Inconsistent Understanding of Functions

  1. In our experience, delegated Guardian’s at the OPA demonstrate inconsistent understanding of their authorities and functions of their office. This can lead to conflict between service providers, confusion about role clarity, difficulties in informing the client and ensuring our clients understand the practical implications of these orders. It also interferes with our processes when acting for these clients. Further, this inconsistency perpetuates the existing misunderstandings of the broader community, including the justice system, on the practical operation and obligations of those appointed under a guardianship and/or administration order.

  1. The above concerns commonly arise when OPA guardian’s attempt to intervene in legal proceedings for which they do not have delegated authorities. Unless there is a plenary guardianship order, or a limited order has express provisions relating to legal proceedings, a represented person retains the right to make their own decisions and instruct their lawyer.

  2. We have experienced OPA guardian’s attempt to instruct our lawyers in the following circumstances:

a. As guardian ad litem in circumstances where the client is an applicant in the proceedings (which is the function of a guardian next friend);

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b. Engage a criminal lawyer using a generic “services” function; c. Provide substantive instructions to a criminal lawyer about the entering of pleas and other key decisions as to the conduct of a matter. Guardians cannot instruct in a criminal matter, and the wording of the standard function relating to criminal proceedings makes this clear.^6

  1. Conversely, we have also dealt with issues regarding a guardian not providing timely instructions to progress a legal matter. This has recently arisen in matters under the CLMI Act 2023. Unlike with the criminal proceedings, under this legislation, applications for extended custody orders are civil in nature and, where a client does not have capacity to instruct, will require instructions from an appointed guardian. Delay in providing instructions can significantly hinder attempts to progress these matters, prolonging legal matters that are already lengthy and produce a great deal of anxiety and stress for vulnerable clients.

Medical functions:

  1. In our experience, OPA’s misunderstanding in relation to its functions is not limited to legal decision making. There are frequent misconceptions relating to medical decision-making functions.

  2. As was commented on in the MHA Review^7, guardians have provided consent for voluntary inpatients to be detained on locked wards at authorised hospitals and prevented from leaving. Involuntary detention does not meet the definition of treatment and is akin to a ‘restrictive practices’ type function, however this misconception persists. The misconception in this context, serves as a further infringement on the rights of persons with mental impairment and/or disability. The misconception undermines the protection intended to be afforded to persons subject to these orders, with the guardian failing to preserve and uphold the persons fundamental rights as a voluntary patient.

Accommodation functions:

  1. One of the most prevailing inconsistencies in relation to OPA’s functions relates to the accommodation functions. A large portion of the initial applications for GAA orders we assist with, arise in circumstances where a hospital has made an application for GAA orders for the purpose of discharge planning, and most commonly, for the purpose of finding a suitable discharge accommodation.

  2. The inconsistency appears to relate to the interpretation of the wording of the standard orders and the practical obligations it imposes on the guardian. For example, there are some guardians who will describe their functions as being limited to providing, or withholding consent to proposed arrangements, such as accommodation, when these

^6 See State Administrative Tribunal, Standard & Regularly Used Orders, ‘Criminal Matters’, GA736 pg 50: ‘To seek legal advice and representation on behalf of the represented person, and to advocate in relation to any police investigation, criminal charges or related proceedings’. ^7 Ruah Legal Services and Mental Health Law Centre, Submissions on Statutory Review of the Mental Health Act 2014 (WA), Issue 1.5, paras 18-27.

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proposals are provided to them. There are other Guardians that will take a more proactive approach to their role, by actively sourcing and advocating for accommodation options on behalf of the represented person.^8

  1. This lack of consistency not only impacts on the represented persons understanding of the support they are entitled to receive by virtue of being subject to guardianship, it also further perpetuates the misunderstanding and confusion of the broader community, including the SAT, of the OPA guardians’ obligations under this function.

Example:

a. We acted for a client who was subject to limited Guardianship orders appointing OPA with accommodation and services functions. b. The client learned that they were to be evicted from their accommodation on a certain date. c. The client made multiple efforts to seek the assistance of their appointed guardian in finding a suitable accommodation prior to being evicted. d. The client was directed by OPA, to source the accommodation options themselves and once they had done so, to provide the options for the guardian for consent. e. The client was placed in a position where they had little choice, but to liaise with various services themselves, including with the Department of Housing, without any support. f. The experience was incredibly stressful for the client, due to the imminency of the eviction and a real risk the client was going to be homeless. Further, the experience was confusing for the client, who had understood that the role of the appointed OPA guardian was to assist in these exact circumstances, to protect the client from the harm and exploitation often associated with the experience of homelessness.

  1. Section 70(2)(a)-(e) of the Act provides guidance for the OPT on what actions constitute acts in the ‘best interests’ of the represented person; this includes as far as possible obtaining the wishes of the represented person in relation a decision to be made.

  2. In our experience, it is rare for our clients to receive contact from the OPT seeking to ascertain their views in relation to a particular financial decision.

  3. We acted for a client subject to a plenary administration order who was in the course of being re-located to alternative accommodation. As part of the re-location, the client informed us that the OPT had purchased several ‘brand new’ items for the client’s residence from the client’s estate. Based on the information provided by the client, it did not appear that the OPT had sought to ascertain the client’s views about these purchases prior to making them.

^8 Ruah Legal Services and Mental Health Law Centre, Submissions for Statutory Review of the Guardianship and Administration Act 1990 (WA), paras 129-137.

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  1. The client was extremely distressed about the expenditure of funds on brand new items, which the client expressed could have obtained from a second-hand store for significantly less cost. The client further noted that some of the items were an outright unnecessary cost; one of them being a large screen television, in circumstances where the client did not watch television and thus, had no need for this item.

Initial Applications

  1. Section 97 of the Act sets out the functions of the Public Advocate, which includes attendance at SAT hearings to advance the best interests of the represented person^9 and to seek assistance for any represented person, or person in respect of whom an application has been made, including to arrange legal representation for the person.^10
  2. In our experience, the SAT rely heavily on the recommendations of the OPA investigators in initial applications and will often cite their ‘impartiality’. It is unclear the level of information and guidance OPA provides a represented person prior to an initial application hearing. In our experience our clients are often confused as to the identity and role of the person who has contacted them (often believing them to be someone from the SAT). It is further confusing for our client when there is a conflict between the views and wishes of the client and the recommendations the OPA investigator at the SAT hearing.
  3. Given the functions as expressed in section 97, it is unclear why the Public Advocate seemingly does not actively seek to obtain legal representation for persons subject to initial applications. This would limit the confusion experienced by our clients, serve to preserve advocacy that is aligned with the client’s views and wishes, as well as reduce apparent conflicts of interest and uphold the impartiality of OPA investigators.
  4. A further concern in relation to OPA at initial applications, is that they often appear to misapply the criteria under the Act when making their recommendations; the most frequent misapplication being in relation capacity and the question of whether the represented person is a person for whom orders can be made.
  5. Our centre acted on a matter in the SAT where the oral medical evidence was ‘clear, cogent and unequivocal’ in relation to the presumption of capacity, the evidence was “X has capacity across all decision-making domains”. Based on this evidence and the provisions in the Act, the legal representative made submissions that the client was not a person for whom orders could be made, as the presumption had not been rebutted. However, after hearing this evidence, the SAT inquired of the OPA investigator, who proceeded to recommended orders be made, essentially in case the client needed additional support. The SAT proceeded to make orders.

^9 Guardianship and Administration Act 1990 (WA), s 97 (1)(b)(i). ^10 Ibid, s 97(1)(d).

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  1. Further, OPA will often make recommendations for orders, or that orders be maintained/varied (generally with additional functions), in circumstances where the OPA report acknowledges the lack recent medical evidence, or any medical evidence on the question of capacity. We have also come across OPA reports that reference the fact a person is in receipt of NDIS supports as having relevance to a finding on capability.
  2. In our experience, there appears to be an inconsistent understanding of the criteria under the Act for making order, and a lack of appreciation for the fundamental rights of a person being significantly diminished by virtue of a declaration of incapacity. This appears to be contradictory to the role of the public advocate in advancing and protecting the interests of vulnerable persons with mental disability.

Lack of proactive applications to revoke or amend orders

  1. Both Guardians and Administrators have a duty to act in the best interests of their represented person. Under the Act, this includes acting: a. As an advocate for the represented person; b. In such a way as to encourage and assist the represented person to become capable of caring for themselves and making reasonable judgements; c. In a manner that is least restrictive of their rights.^11
  2. Under s 86 of the Act, both guardian’s and administrators can apply to the SAT at any time for a review of an order. However, in our experience, it is rare that the OPA or OPT will make such an application, despite having knowledge that the represented person’s capacity has improved to the extent the orders are no longer required.
  3. On numerous occasions, where we have met with clients and initiated applications on their behalf, we have found that their delegated guardian and/or administrator has been of the view that the orders are no longer necessary. Whilst represented persons can make application on their own volition, many represented persons are not well informed of their rights to request reviews prior to their periodic review date and there are very few services offering legal advice in this area. This means that some represented persons are spending much longer subject to orders than is necessary.
  4. In our view, in keeping with the principle of less restriction and consistent with the definition of “best interests” in the Act, these applications ought to be made by the OPA and OPT where they have identified they would be appropriate. Taking a more proactive approach in these instances, would likely contribute to the building of trust and confidence in these agencies by those subject to orders and the broader community. It would also allow for better management of OPA/OPT caseloads and resourcing.

^11 Guardianship and Administration Act 1990 (WA), ss 51(2)(a)-(h), 70(2)(a)-(h) and 97(2).

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

Misalignment of Expectations

  1. The role of a guardian and administrator is to act as a substitute decision-maker on behalf of a represented person. The Act outlines various decisions that a guardian or administrator may make on behalf of another person. However, other than outlining general principles to be abided by the Act is silent on the practical extent to which a guardian or administrator ought to be pro-active in fulfilling their role.
  2. The OPA generally takes the approach that their role is to only make decisions and not involve themselves in the identification or co-ordination of services. An example of this can be found in the most recent annual report:

Delegated guardians may experience pressure to go outside their decision-maker role to locate services, seek funding and coordinate the provision of services for represented persons.^12

  1. We do not make any comment about the correctness of this approach. However, our greater concern is that this limited role of decision-maker is not sufficiently conveyed during SAT hearings. In our experience, there also appears to be a misalignment between the expectations of the SAT in relation to the practical operation of orders, and transparency/involvement of the person subject to orders, in the decision-making process.
  2. During SAT hearings, we often observe the role of guardian being presented as a person who will meet certain needs of the proposed represented person’s life and will ‘stand alongside’ the represented person. Comments about securing accommodation and services are made without properly clarifying whose role that will be and to what extent a guardian would actively be involved in this process. In our view, the misalignment of expectations is in part attributable to the evidence given in SAT hearings by OPA investigators, as to the practical operation of functions under guardianship.
  3. The representations made during a SAT hearing create an often-unrealistic expectation on the part of a represented person as to what actions the OPA will take to resolve their needs. We have spoken with client’s who, after a SAT hearing, have believed that the OPA would find and secure accommodation. Some clients have conceded applications on this erroneous understanding developed during the course of the hearing and often prompted by OPA or the SAT. This creates potential for conflict, disappointment and mistrust between the represented person and their delegated guardian.

^12 Office of the Public Advocate, Annual Report 2024/25, pg42, para 1.

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  1. To add to the complexity of the above, we have also dealt with some OPA guardians that do take more active roles in identifying appropriate services, housing and advocating during the discharge planning process. The lack of consistency means, in effect, that represented persons are receiving different and varying levels of support from the OPA, despite being subject to the same orders. This appears to be wholly dependent on who is the allocated guardian to their matter.
  2. The inconsistency not only impacts of the represented persons understanding of the support they are entitled and can expect to receive by virtue of being subject to guardianship, it also undermines the approach, understanding and role of the SAT in these proceedings. The experience of our clients in these circumstances is that of feeling ‘let down again’ and leads to an overall sense of disillusionment, frustration and mistrust in the GAA system.
  3. We have also had clients subject to guardianship orders, who have come to learn some time after the orders being made that OPA had allocated a ‘duty guardian’ to their matter, but had neglected to inform the clients of the same.
  4. We acted for a client in a criminal matter who was subject to a 5-year limited guardianship order. The functions under the limited guardianship order (accommodation, services, medical and travel) were relevant to the circumstances of the criminal matter and potentially the overall outcome of the matter. It became apparent in the course of acting for the client that OPA had not undertaken to resolve the client’s ‘needs’ as illustrated by the appointed functions. As the functions of the guardianship order were relevant to the criminal matter, the client’s lawyer sought to ascertain who the OPA guardian was, to learn that the client had only been allocated a ‘duty guardian’. Due to the relevance of the client’s circumstances in the criminal matter and inaction by the OPA, the client’s family had stepped in as informal support. The family essentially undertook to assist the client in the manner contemplated when the guardianship order was made. This was a significant burden on the client’s family.
  5. We are not aware of the internal process at the OPA for the allocation of guardians to a represented persons matter, or what is considered by the OPA when allocating a ‘duty guardian’ to a matter; it appears to be inconsistent. Nevertheless, the allocation of a duty guardian, who we understand can only make ad-hoc decisions, should be communicated and explained to the represented person, in accordance with the functions of the Public Advocate in Act. We note that the failure to do so impacts on any responsibility and accountability measures the represented person, their supports, or their legal representative may wish to pursue in relation to the functions of the order.

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

  1. It is our view that the current mechanisms in place to resolve complaints regarding the OPA and OPT are woefully inadequate and not particularly accessible for represented persons to access.
  2. The principal issue, in our view, is a lack of a specialised independent regulator to deal with and resolve complaints regarding the OPA and OPT. Complaints regarding either body are first made, and dealt with, internally. Should the represented person not receive a satisfactory outcome, they may then complain to the Ombudsman.
  3. There are several issues with this process. Firstly, it must be emphasised that both the OPA and OPT hold substantial power and influence over the lives of represented persons. This inherent power imbalance can act as a deterrent for represented persons to make complaints. This is compounded by the fact that complaints must be made to the responsible agency directly.
  4. Secondly, as is expanded upon in the relevant section below, there are limited accountability mechanisms within the relevant legislation. Based upon publicly available information, complaints regarding the OPA and OPT are handled consistent with the general complaints’ procedure under the Department of Justice. Considering the particular and sensitive nature of the role of the OPT and OPA in a person’s life, in our view a specialised process is warranted.
  5. There is very little information available that details the precise steps undertaken when a complaint is made and what type of response may result. This may be appropriate for other agencies within the Department of Justice. However, given the nature of the role played by the OPA and OPT and the personal outcomes of their decision making, there ought to be more formalised processes for resolving issues.
  6. Thirdly, information available to represented persons about complaint resolution is lacking. The general Department of Justice Customer Feedback System is poorly designed and may be difficult to navigate for some represented persons.
  7. To its credit, the OPA has published an easy-to-read factsheet regarding feedback and complaints. However, accessing this resource requires the represented person to navigate to the correct section of the relevant website. It is unclear if this information is typically provided, and explained, to the represented person otherwise. There are no such resources published by the OPT.
  8. As is expanded upon in the final section of these submissions, in our experience the SAT takes a passive role regarding complaints relating to the performance of the OPA and OPT’s functions. As the OPA and OPT are typically only appointed as a last resort, even in

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circumstances where it is evident that there has been a failure to adequately perform their functions, there are often no alternatives for appointment.

  1. At present, the Act does not provide any mandate whereby on review of orders, the SAT is also to consider the eligibility, suitability and effectiveness of a person’s guardian and/or administrator at the time their review hearing. The question of whether a guardian or administrator is meeting the obligations relevant to their appointment, is directly relevant to considerations as to whether the orders should continue existing terms or be varied to ensure they operate as intended.

Change of Guardian or Administrator

  1. There does not appear to be any avenue provided by either the OPA or OPT for a represented person to request that a new guardian, or administrator be allocated to their matter. In circumstances where a represented person has no trust, confidence or rapport with the person appointed to make important decisions about their life, the inability to make such a request often leaves represented persons feeling stuck and powerless. Our clients in this position often experience increased and unnecessary distress and frustration in relation to the GAA process, a sense of hopelessness and a reluctance to engage with the OPA/OPT. These circumstances can be particularly detrimental to represented persons who may have the ability to build capacities while orders are in place but are reluctant to engage due to their personal experience with their allocated guardian and/or administrator.

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

Handover from OPT

  1. A consistent complaint we hear from client’s is the quality of handover from the OPT once an administration order has been revoked. Clients have informed that they have, at times, had to wait for weeks to receive information from the OPT about their financial circumstances. This includes correspondence with financial institutions to inform of the revocation of the order, information relating to insurance and payment of bills etc.
  2. It is important to emphasise that the administration order ends at the moment the SAT makes the decision. It is of course accepted that, as a matter of practicality, there will be a transitionary period to return full decision-making responsibility to the person. However, undue delay can have significant ramifications for the person. This can include late payment of bills that the person may not be aware of and lack of access to much needed funds for daily needs.

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  1. Once an order has been revoked, a person is entitled to take immediate resumption of their estate. Any delay in this process must be for the shortest period practicable to effect the handover. In our view, this process should not take a matter of weeks to be completed. To do so is to further impinge on the person’s fundamental rights.

  2. We acted for a client in an application for early review of guardianship and administration orders, which resulted in both orders being revoked (the client had been subject to orders for close to 20 years). During the course of the matter the client reported that the accommodation they were residing in had informed them that there were monies owed and provided the client with an invoice depicting this overdue payment. The client became very stressed about this and preserving stable accommodation. The client sought to liaise with the OPT, requesting records be provided. The OPT actioned some of the client’s requests, however provided no explanation in relation to the financial records the client was sighting for the first time. Whilst the records were provided the lack of explanation and attempts by the client to understand the manner in which their estate had been managed for some time, caused significant stress and concern for the client. At the hearing of application for early review, the client also learned of medical expenses that had not been paid by the OPT and concerns were raised in relation to the liabilities the client may be left to deal with from the administration of the client’s estate by the OPT.

  3. The above experience for the client could have been avoided, or at least mitigated to some extent, if the OPT had clear, accessible and consistent handover processes. Further, had the OPT engaged in ongoing disclosure, it would have afforded the client the opportunity to seek to understand the manner in which their estate had been managed by the OPT, and clarify any misunderstandings during the time the orders were in place.

Lack of Ongoing Disclosure from the OPT

  1. A significant concern that we consistently see with client’s represented by the OPT is a lack of ongoing consultation with the represented person about their finances. In the majority of matters where we are assisting with a review of an administration order involving the OPT, the clients are unaware of important details relating to their estate. They learn much of this information from documents filed by the OPT for the upcoming hearing.

  2. Below are some examples of information clients instructed us they had not been made aware of prior to their hearing:

a. We acted for a client who owned a car that they could not use, as they were currently unlicensed. The car was being stored at a place other than the client’s home. It was the client’s long-term intention to re-gain their driver’s license in order to drive that specific car. The client learned in the hearing that the car had been sold, without any consultation. This was a distressing experience for the client and impacted upon their involvement with the rest of their hearing;

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b. On multiple occasions, we have represented clients who have ongoing court matters where legal representatives are instructed by the OPT. These clients have often not known or been updated on the progress of their matters, some of which have involved relatively large sums of compensation;

c. In general, clients are often not made aware of basic information including the amount held in their trust account, regular income/expenses and the OPT’s fortnightly budget. In general, this raises concerns regarding how a client will be able to demonstrate or improve their capacity when they are left unaware of their financial circumstances. It is often left to our lawyers to request amendments to administration orders requiring the OPT to provide regular disclosure of this information.

  1. Similarly, another issue is how late reports authored by a trust manager are filed with the SAT. It is not uncommon for our lawyers to receive these reports either the day before, or the day of a hearing. Given the lack of ongoing disclosure outlined in the paragraphs above, the trust manager’s report is a crucial document in proceedings and an opportunity for a represented person to understand the current status of their estate, with the support and assistance of a legal representative. Late disclosure minimises the opportunity for a represented person to inform themselves of their financial circumstances, seek guidance and properly respond to any concerns raised by a trust manager. This lack of timeliness and transparency is fundamentally detrimental to the represented person and does not encourage independence, nor the building of financial capability.

Schedule of Fees

  1. In our view, charging a represented person fees for management of their estate, in circumstances where such management has been undertaken against the person’s will, is inherently unjust. We appreciate that the funding of the OPT is a complex issue and constrained by legislation and decisions of Parliament. However, we wish to take this opportunity to urge Parliament to amend the OPT’s funding structure to ensure that represented persons are not paying significant fees for a service they ultimately do not want, or consent to.

  2. Compounding the concerns about the charging of fees is the lack of clear information provided around the fee structure in general. It is not clear from publicly available information whether represented persons are advised of the fees they are charged for management of their estate. There does not appear to be any legislative requirement that a represented person be provided this information. Even if a represented person is able to independently find the fee schedule online, the schedule itself is difficult to navigate and understand.

  3. In other circumstances where a person is acting as agent or on behalf of another, full disclosure of the fees owed would usually be required (see, for example, costs

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disclosures when engaging a lawyer). In our view, it is unfair if a represented person is not afforded the same transparency and notice regarding the expenditure of money that is not for their direct benefit.

  1. Learning after the fact about the OPT’s fees, particularly for clients with larger estates where the fees are greater, can be very distressing for represented persons. Some clients have told us that they feel their money has been stolen, which is already a concern. This is another factor that damages trust between represented persons and the OPT, which in turn inhibits these orders form working in the persons best interests.

Lack of Contact with Represented Persons

  1. It is a common complaint made by our clients that delegated guardian’s and administrators have very little contact with their represented persons. There are frequent complaints that both the OPA and OPT do not respond to requests for contact in a reasonable timeframe and sometimes there is no response at all. Many clients report that they have never met their delegated guardian or administrator personally.

  2. This is a significant concern. As we have repeatedly emphasised in these submissions, a substitute decision-maker wields a significant level of influence and control over a represented person. These decisions go to the heart of a person’s autonomy and affect their day-to-day lives.

  3. Both guardian’s and administrators are tasked with making decisions in a person’s best interests. The Act contains an inclusive definition regarding “best interests” which includes consulting with the represented person and taking into account their wishes.13 ‘Best interests’ decision making should also encourage independence and in a manner least restrictive of a person’s rights.14

  4. In our view, these principles cannot be properly adhered to without meaningful and consistent communication with the represented person themselves. It is not sufficient to rely upon brief conversations with the represented person, or accounts given by third partis to ascertain a person’s views and wishes. In our view, this does not provide sufficient insight regarding those views and how they can be incorporated into decision making. Lack of consultation in decision-making is antithetical to capability building and assisting a person to regain capacity to make decisions for themselves.15

  5. It must also be borne in mind that the OPA is the guardian of last resort and only appointed when there are no other suitable alternatives for appointment.16 Therefore, persons who have the OPA appointed are less likely to have alternative supports able to advocate in

13 Guardianship and Administration Act 1990 (WA), ss 51(2)(e), 70(2)(e). 14 Ibid, ss 51(2)(f),70(2)(f). 15 Ibid, ss 51(2)(c), 70(2)(c). 16 Ibid s 44(2)(5).

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relation to these issues. This compounds the detriment when there is not sufficient consultation.

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

  1. We take this opportunity to state that it is not our view that represented persons only receive negative outcomes under orders appointing the OPA and OPT. We have worked with guardians and trust managers that have positively contributed to our clients lives and assisted them to live happier and healthier lives.

  2. However, it is important to highlight examples of circumstances where the OPA and OPT have either not had any impact or have been detrimental to the represented person or their families. The premise behind making orders that restrict a person’s fundamental rights is that it is in their best interests. This premise is not met where the substitute decision maker fails to have a positive impact.

  3. We have already documented multiple examples in previous sections of these submissions detailing negative outcomes for represented persons whilst subject to these orders. In addition to those examples, we note the below outcomes for clients in custody.

Outcomes for Client’s in Custody

  1. Prisoners with a mental impairment are particularly vulnerable within the custodial setting. There is minimal access to mental health treatment, and this client group is likely to suffer a deterioration in their mental health as a result. It is imperative that, wherever possible, these clients be diverted away from custodial settings. However, it is often difficult to successfully apply for bail for these clients charged with serious offences in the absence of accommodation and appropriate supports.

  2. We have dealt with many matters where a decision from the OPA, or a lack of decision-making, has resulted in client’s spending long periods in custody that, in our view, were avoidable. We have experienced guardians attempting to convince lawyers not to make applications for bail when there is merit to do so. We have spoken to guardians who have made the decision that clients are “better off” being subject to custody orders under the CLMI Act and therefore had not explored alterative support arrangements. In some cases, even where guardians are supportive of taking steps to support a client’s release, unexplained delays in providing consent have meant that lawyers are unable to progress matters in a timely fashion.

Example

  1. We acted for a young client with a moderate cognitive impairment and mental illness. The OPA was appointed as the client’s plenary guardian. The client had been charged with serious offences and refused bail whilst his matter progressed through the Courts. Our

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lawyer was in contact with the OPA throughout the matter and was also coordinating with other support services.

  1. The client’s matters were ultimately dealt with in the District Court of Western Australia. The client had been in custody for almost 12 months. There was 2 months’ notice regarding the sentencing hearing, and it was made clear by the lawyer that a submission would be made to the Court that the client ought to be released on the day of sentencing. The client was homeless due to their prolonged remand in custody and so safe accommodation was required.

  2. The OPA took no active role in sourcing accommodation options. This meant that, by the time of the sentencing hearing, it was left to the lawyer to attempt to source emergency crisis accommodation pending release. There were several options that were raised with the OPA that were not consented to.

  3. This resulted in the lawyer being the only person to greet a very vulnerable client upon their release from custody. His OPA guardian had returned to their office at the conclusion of the sentencing hearing. The lawyer had to take responsibility for taking the client to sign his paperwork, monitoring him for a number of hours around the Court precinct and buying his food.

  4. The lack of planning regarding a safe release from custody lead to an all too predictable result. The client reoffended within a short period of time, resulting in another long period in custody on remand.

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

  1. In our view the current oversight mechanisms to ensure accountability related to the decisions of guardians and administrators in the Act is inadequate, particularly given the degree of authority they assume and the direct role they have in core decisions relating to some of the most vulnerable persons in our community.

  2. There is very little recourse in the Act for a represented person or their supports, in circumstances where there are concerns as to a guardian or administrator’s decision and the impact of a decision on a represented person. There is no mechanism for which a represented person or their supports could apply for directions or review of the decision of a substitute decision maker, to ensure the decision is made in accordance with the duties and obligations17 of their role.

  3. This is especially so for decisions made by the OPT and the difference between expectations for private administrators and the OPT is stark one. The Act contains provisions where there is personal liability for a private administrator who has caused loss to the represented persons estate.18 It is the OPT’s role to make this determination when

17 Guardianship and Administration Act 1990 (WA), ss 51, 70. 18 Ibid s 80(4).

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examining accounts. However, this provision expressly does not apply to the OPT19 and there is no equivalent provision that imposes a similar liability or level of oversight.

  1. In our experience, the only way in which any accountability could occur for loss is if a different party, such as the OPA, is appointed as limited administrator for the purpose of investigating claims against the OPT.20 This, though, requires the OPT to self-monitor its own compliance. This is not a satisfactory system for ensuring accountability for vulnerable people.

The role and conduct of the State Administrative Tribunal

  1. In our experience, the SAT plays a very limited role in overseeing the decision-making of the OPA and OPT. As previously mentioned in these submissions, this is likely a consequence of the lack of accountability measures in the Act that would allow for any SAT intervention.

  2. Ultimately, in circumstances where a guardian or administrator is not acting in an appropriate manner and fulfilling their duties, the only mechanism through which the SAT could intervene is by reviewing the orders to determine whether an alternative person ought to be appointed to the role.21 However, as the OPA and OPT are most often appointed, OPA as a last resort22, it is unlikely that there is an alternative option for appointment.

Practicalities of Order Not Considered

  1. There are inherent limitations in regard to enforcement of a substitute decision-maker’s decisions, particular personal decisions. For example, a guardian may decide that a person is to reside at a particular address consistent with the guardian’s functions. However, if the person decides to not return to their residential address and reside elsewhere, there is little the guardian can do to enforce that decision.

  2. The same may be said of certain decisions made under a services function. A guardian may decide that the represented person will engage with certain therapeutic services. However, if the person chooses to not engage, then there may be little to be gained from that service. This ultimately raises a question of whether a substitute decision-maker ought to be appointed for these functions if the interventions are not workable.

  3. It is the position of the SAT that the workability or practicability of the order is not part of the criteria for the appointment of a substitute decision-maker and therefore the question of need is not determined by reference to these considerations.23 In practice, what this can lead to is the appointment of guardians and/or administrators that are not serving any practical purpose yet continue to limit the persons autonomy and right to make decisions for themselves. This compounds many of the disadvantages we have already mentioned in these submissions with no recourse for the represented person to change this outcome.

19 Guardianship and Administration Act 1990 (WA), s 80(7). 20 See, for example, RJK [2019] WASAT 109. 21 Guardianship and Administration Act 1990 (WA), s 85(c). 22 Ibid s 44(2)(5); no similar ‘last resort’ provision exists for the OPT. 23 See JL [2023] WASAT 20 at [139] – [140].

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Conclusion

  1. Guardians and administrators undertake a complex and difficult role. They are called upon to finely balance considerations of personal autonomy and risk whilst determining what decision is in a person’s best interests. Substitute decision-makers are responsible for ensuring, to the best of their ability, that members of our community who experience mental disability, are safeguarded during periods when they may not be capable of making decisions for themselves. The OPA and OPT represent persons for whom this vulnerability is magnified further, evidenced by the lack of a viable alternative to take on this role.

  2. The OPA and OPT provide a necessary service and we do not doubt that all stakeholders are seeking to provide the best possible support for represented persons. We recognise that inadequate resourcing in the face of increasing caseloads will likely account for many of the concerns we have raised. Other concerns are primarily caused by legislative provisions that are long overdue for serious reform. However, we also see a need for reflection on the manner in which decision-making is undertaken and how both the OPA and OPT see and currently execute their roles.

  3. Represented persons deserve consistency in services provided by their decision-makers. They deserve to be properly informed about the orders they are being made subject to. They deserve to be involved, as much as is possible, in decisions that concern them. They deserve to have an appropriate and accessible forum through which their grievances can be raised and properly resolved.

  4. Most of all, represented persons deserve the opportunity to live a fulfilled life with the same basic human rights the rest of society enjoys. We hope that, with significant reform across this area of law and the services involved with administering it, that this can one day be a reality.

RUAH Legal Services t/a Mental Health Law Centre

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Luke Cassidy | Debra Zanella Principal Lawyer | CEO, Ruah Community Services

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