NDIA Accountability Project

Submission to the WA Legislative Assembly, Community Development and Justice Standing Committee’s 'Inquiry into the guardianship and administration system in Western Australia'

‹ PrevPage 1 of 20 · Source p. 1Next ›

Submission to the WA Legislative Assembly, Community Development and Justice Standing Committee’s ‘Inquiry into the guardianship and administration system in Western Australia’

29 May 2026

Mr Peter Rundle MLA
Chair, Community Development and Justice Standing Committee
Parliament House
4 Harvest Terrace
WEST PERTH WA 6005
Via email: lacdjsc@parliament.wa.gov.au

Dear Mr Rundle

RE: SUBMISSION OF THE OFFICE OF THE PUBLIC ADVOCATE
TO THE COMMUNITY DEVELOPMENT AND JUSTICE STANDING COMMITTEE’S
INQUIRY INTO THE GUARDIANSHIP AND ADMINISTRATION SYSTEM IN WESTERN
AUSTRALIA

The Office of the Public Advocate (OPA) welcomes the opportunity to provide this submission in response to the Legislative Assembly’s Community Development and Justice Standing Committee’s Inquiry.

1. The Public Advocate’s statutory functions

OPA is established under the Guardianship and Administration Act 1990 (GA Act). Section 97 of the GA Act sets out the primary functions of the Public Advocate. Accordingly, OPA’s three key statutory services are:

  • Providing advocacy and conducting investigations on referral from the State Administrative Tribunal (the Tribunal), Courts and concerned members of the public, into whether or not there is a need for the appointment of a guardian and/or administrator.
  • Promoting awareness and understanding of the guardianship and administration system through community education activities including website content, publications, information sessions and an advisory service.
  • Acting as guardian of last resort when appointed by the Tribunal, if an adult with a decision-making disability is in need of a guardian but doesn’t have anyone in their life who is suitable, willing and able to take on the role.

2. Budget and staffing

In 2025/26, OPA has an operating budget of $17.968 million which includes an allocation of $1.379 million for a project to develop and implement a new case management system for OPA. In 2026/27, OPA’s operating budget will be $18.571 million, with $737,000 of that allocated to the case management system project. OPA’s funding will enable it to operate with 119.6 full-time equivalent (FTE) positions in 2026/27.

OPA’s core frontline services are delivered through two distinct branches, one being advocacy and investigation, the other being guardianship. Staff members in these streams are accountable to the Public Advocate through their managers and are supported by legal, administrative, policy and community education staff.

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 2 of 20

3. Leadership structure and delegations framework

OPA’s management group currently consists of the Public Advocate; a Principal Legal Officer; a Manager Advocacy Investigation and Legal; two Managers Guardianship; a Director Corporate Support; and a Business Manager.

In a written ‘Instrument of Delegation’ under section 95 of the GA Act, the Public Advocate delegates her powers to each person occupying or acting in the positions of Guardian; Senior Guardian; Manager Guardianship; Senior Investigator Advocate; Principal Investigator Advocate; and Manager Advocacy Investigation and Legal. The instrument of delegation limits the authority that may be exercised by delegates and specifies which tier of staff is required for different tiers of decisions.

A delegated guardian has the authority to make all routine day-to-day decisions on behalf of a represented person which are consistent with the functions contained within a limited or plenary guardianship order made by the Tribunal.

Due to the complex and often highly sensitive nature of guardianship decision-making, there are particular decisions that require the endorsement of a Senior Guardian, Manager Guardianship or Manager Advocacy Investigation and Legal. Other decisions require the endorsement of the Public Advocate. These are set out for staff in OPA’s Practice Standard ‘Delegated Authority for Delegated Guardians and Administrators’.

Where the Public Advocate is appointed as administrator of last resort, under section 68 or 99 of the GA Act, a Principal Investigator Advocate or Senior Investigator Advocate is the delegated administrator.

A delegated administrator has the authority to make all routine day-to-day decisions on behalf of a represented person which are consistent with the functions contained within a limited or plenary administration order made by the Tribunal. Certain matters require the endorsement of the Public Advocate. These are set out for staff in OPA’s Practice Standard ‘Delegated Authority for Delegated Guardians and Administrators’.

4. Role of guardians and administrators as substitute decision-makers

The right to make decisions and manage our own affairs is a fundamental human right, yet sometimes people lose the capacity to exercise this right due to an intellectual disability, dementia, a mental illness or an acquired brain injury.

The GA Act recognises that adults who are not capable of making reasoned decisions for themselves may need additional support and assistance not only to ensure their quality of life is maintained, but also to protect them from the risk of neglect, exploitation and abuse.

The GA Act enables adults with capacity to plan ahead and appoint enduring guardians and attorneys for themselves, in the event that they lose capacity. The GA Act also provides a mechanism for the Tribunal to appoint guardians and administrators to make decisions in the best interests of an adult with a decision-making disability, when it determines that there is a need for such an appointment.

In an ideal world, if an adult lacks capacity to make decisions for themselves, and they did not make an enduring power of guardianship and/or an enduring power of attorney while they had capacity, their family members or close friends would support them in decision-making in an informal way, promoting their wellbeing and best interests. Where supporting the person to make their own decisions wasn’t possible, family members or friends would be willing, suitable and able to be appointed as substitute decision-makers.

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 3 of 20

When OPA becomes involved in investigating a matter before the Tribunal, investigator advocates look for the least restrictive alternative that would be in the person’s best interests, whether that is family informally supporting the person, or, if there is a need for orders, promoting the appointment of a family member if possible. At times, this can involve investigator advocates working with family members to find common ground in order to work together in the best interests of the person. These important messages are conveyed in OPA’s community education activities, including education sessions and OPA’s vital advisory service.

5. Public Advocate as the guardian of last resort

Some people don’t have family or close friends who are able to provide this support. In other cases, there are family or friends involved in the person’s life, but they are either demonstrating that they are not able to make decisions in the best interests of the person, or there are multiple parties involved in the person’s life, significant conflict exists between the parties and they are not willing or able to find common ground to work together or agree on what is in the person’s best interests. In these cases, where a person is in need of a guardian and there is no adult in their life who is suitable, willing and available, the Tribunal’s last resort is to appoint the Public Advocate as guardian.

Delegated guardians often face situations where family members are opposed to the appointment of the Public Advocate. Represented persons can also be opposed to the appointment of the Public Advocate and may lack insight into their diminished capacity. At times, represented persons may present well, and lead other parties to question whether they do in fact lack capacity. This can generate conflict between these parties and OPA, where these parties are in opposition to the Public Advocate’s appointment as they believe the person should be making their own decisions.

Delegated guardians also face situations where represented persons ‘vote with their feet’, so to speak. So, while the delegated guardian makes decisions in the represented person’s best interests, the represented person does not comply with the decisions. The Public Advocate does not have the power to compel a represented person to comply with guardianship decisions. In some cases, regardless of the person lacking capacity and there being a need for a substitute decision-maker, the Public Advocate may go back to the Tribunal to seek to have the guardianship order revoked, if the Public Advocate is unable to give effect to the guardianship order.

The complexity of the work undertaken by OPA should not be underestimated. Staff work with clients in a variety of challenging situations. They may have more than one diagnosed condition, combined with a drug or alcohol dependency and behaviours of concern that can often be challenging. The family members of a represented person may also have behaviours of concern, mental health issues and drug or alcohol dependency. Represented persons can be involved in the justice system; may experience homelessness; and can require treatment for a range of medical conditions, chronic illnesses or be terminally ill.

Making decisions about whether an older represented person remains in their own home or is placed into residential aged care, when concerns exist around their self-care, is often a source of conflict between delegated guardians and represented persons and/or their relatives. Delegated guardians must balance the rights of a represented person to remain at home with their need for increased support and their safety and wellbeing.

In relation to the National Disability Insurance Scheme (NDIS), where the Public Advocate is appointed with authority to make decisions about services, delegated guardians may make applications for access to the NDIS or liaise with other parties who may make such applications. Delegated guardians participate in the NDIS planning process, including releasing information, attending teleconferences or meetings, advocating on behalf of the represented person about what should be determined by the NDIS as reasonable and necessary supports, seeking reviews of plans and making services decisions to engage or continue the engagement of NDIS service providers.

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 4 of 20

In cases where the represented person has experienced abuse, exploitation or neglect, contact between the person and their family may need to be supervised. The delegated guardian may need to arrange supervised access to represented persons where there is risk of abuse.

The Public Advocate can be appointed to undertake the legal functions of ‘next friend’ and ‘guardian ad litem’ in relation to civil legal proceedings. This often involves a delegated guardian providing instructions to a lawyer during protection proceedings commenced by the Department of Communities on behalf of the children of a represented person. This function is undertaken by the Public Advocate where the State Administrative Tribunal determines that the parent/s is/are unable to conduct their own legal affairs due to a lack of decision-making capacity.

These are just a sample of the complex situations OPA staff work through in order to promote the best interests of vulnerable adults with a decision-making disability in WA.

The responses provided in this submission go some way to outline OPA’s positive organisational capability and culture, despite significant challenges faced by persistent increases in demand for services, in addition to the difficulties which are inherent to appointments of last resort for vulnerable adults who lack capacity, in complex situations.

The responses also seek to outline OPA’s view that the mechanisms in place to resolve disputes; oversee the Public Advocate as guardian and administrator; provide timely information to represented persons where possible and appropriate; and achieve positive outcomes for represented persons, are sufficient.

I am proud of and grateful for the hard-working, compassionate professionals who work in a variety of roles at OPA and seek to achieve positive outcomes for proposed/represented persons.

I am agreeable to this submission being published by the Committee if it wishes to do so.

Pauline Bagdonavicius PSM
PUBLIC ADVOCATE

29 May 2026

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 5 of 20

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

The Office of the Public Advocate (OPA) delivers an essential service to vulnerable adults who lack decision-making capacity, and to adults for whom there is a concern they may lack capacity and potentially require a guardian and/or administrator.

OPA’s dedicated team of investigator advocates; guardians; administration, project, policy and community education officers; and managers work diligently to protect vulnerable adults with impaired capacity in Western Australia.

The nature of OPA’s work is challenging. Often, the intrusion of investigator advocates in people’s lives is unwelcome, by the person and their family members. Similarly, delegated guardians can face significant resistance from the represented person and/or their family members, who are strongly opposed to the Public Advocate’s appointment. Compounding this, OPA’s work can often be set against a backdrop of issues including entrenched family conflict; mental illness; drug misuse; homelessness; involvement with the justice system; and family and domestic violence.

Despite the complex nature of the work, staff consistently demonstrate empathy, adaptability and professionalism, effectively navigating their way through challenging circumstances to promote the best interests of represented persons and proposed represented persons.

Frontline staff, being guardians and investigator advocates, are arranged into teams to ensure that shared information and resources are available to staff when undertaking their role. This supports consistent practice across the office. Staff are encouraged to identify if they require further information about specific issues and regular team meetings encourage discussions about ways of working and managing particular situations.

Managers invite feedback from teams regarding office processes to ensure they reflect the needs of the office, work for the team and contribute to service improvement measures.

Staff are supported by a suite of practice standards which have been developed in line with OPA’s statutory roles under the GA Act, and over time as OPA’s role has grown and evolved.

Organisational capability in respect of protective function

OPA has a small policy team committed to promoting and protecting the rights of people with a decision-making disability and safeguarding these vulnerable adults through contribution to national policy initiatives and strategic internal policy development. An example of both elements of this work is the development of OPA service agreements which address relevant adult safeguarding issues in the context on the National Disability Insurance Scheme (NDIS).

The NDIS Review and the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) highlighted how the NDIS system could be rorted and leave participants subject to exploitation and abuse. This was particularly evident in respect to contractual arrangements between NDIS service providers and NDIS participants, with the most vulnerable people not being well positioned to negotiate fair terms for themselves.

In response, OPA developed its own suite of OPA service agreements. The introduction of OPA service agreements is an essential service improvement to OPA practices and procedures to support the safety of persons represented by the Public Advocate who are also NDIS participants.

OPA service agreements inform best practice through the establishment of contracts between the represented person and the service provider that are lawful, fair and reasonable while holding parties accountable (including relevantly for service delivery and financially responsible budget management).

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 6 of 20

OPA’s service agreement project was an innovative policy approach that enabled some of the most vulnerable Western Australians who lack decision-making capacity, to drive the contractual terms of NDIS service agreements in their own best interests. At the same time OPA service agreements have enabled OPA to divert available human resource allocation more proportionately across the range of guardianship services required by represented persons. To explain this resource impact, for every person who has the Public Advocate appointed as guardian and who is an NDIS participant, there are three to five (sometimes more) service agreements required.

The project has delivered a best practice model as it enables delegated guardians to better safeguard represented persons who are NDIS participants, by controlling the funding allocated within NDIS plans in their best interests (without undue influence from the NDIS marketplace). More information about OPA’s service agreements is available on OPA’s webpage, [Service Agreements - National Disability Insurance Scheme for service providers](Service Agreements - National Disability Insurance Scheme for service providers).

Challenges due to persistent growth in demand

Demand for OPA’s statutory services of advocacy and investigation and guardian of last resort has been steadily increasing since OPA began operating in October 1992. Demand for these services has been exacerbated in the last decade by WA’s transition to the Commonwealth NDIS since 2017/18. Other significant factors contributing to the increasing demand for OPA’s services are WA’s ageing population and the growing prevalence of dementia, mental illness and intellectual disability within the population.

A little over two decades ago, at 30 June 2005, the Public Advocate was guardian of last resort for 232 adults. Demand for guardianship services increased over the following decade, between 10 to 32 per cent each year. By 30 June 2015, the Public Advocate was guardian for 1,383 adults. In the ten years from 2015 to 2025, appointments of the Public Advocate as guardian of last resort continued to increase by between seven to 15 per cent each year. At 30 June 2025, the Public Advocate was guardian for 4,055 adults. This trend continues, with the Public Advocate appointed as guardian for 4,325 adults at 31 March 2026.

Delegated guardians from OPA take on the day-to-day decision-making role for this vulnerable cohort and make crucial decisions about matters including medical treatment; accommodation; access to services (including services provided through the NDIS and the aged care system); consent to restrictive practices in aged care and disability services; make contact decisions for families in conflict or vulnerable to violence; and can be involved where legal matters are on foot.

Demand for OPA’s advocacy and investigation services increased from 679 new matters referred by the Tribunal for investigation in 2004/05 to 1,069 in 2014/15. The number of new matters referred by the Tribunal for investigation has persistently increased over the last decade, between three and 18 per cent each year, with the number of new matters referred increasing from 1,069 in 2014/15 to 2,833 in 2024/25. Between 1 July 2025 and 31 March 2026, the Tribunal has referred 2,193 new matters for investigation to OPA. These involve careful consideration of people’s situations to make recommendations about the potential need for appointing a guardian and/or administrator.

The persistent increasing demand for services has placed considerable workload pressures on OPA, particularly on frontline staff. In order for frontline staff to deliver a quality service, they need to have sustainable workloads and be appropriately trained, managed and supported.

While the Office’s frontline staff numbers have grown over time, in response to persistent increases in demand for advocacy and investigation and guardianship services, caseloads for frontline staff remain high. OPA previously provided caseload statistics to the Committee which showed OPA’s average guardianship caseload at 31 March 2025 was 71.7 represented persons. At 31 March 2026, the average guardianship caseload was 70.8 represented persons.

Additionally, the Office’s management structure has remained largely unchanged over the past decade. OPA realises its under-resourced management structure cannot continue to provide adequate support and quality assurance to a growing frontline. The management structure is also challenged in its ability to strategically respond to an increasing agenda of reform, including likely imminent changes to the GA Act.

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 7 of 20

In March 2024, OPA engaged a consultant to review its management structure and identify how to improve OPA’s strategic capability. The review recommended a significant restructure of OPA’s management structure and supporting positions. The key findings of the review were:

  • OPA’s management structure had not kept pace with current demand and was under-resourced, increasing overall risk to represented persons.
  • Without proper resources at the management level, the Public Advocate role was operating at reduced effectiveness and was a key risk.
  • Reduced management resources were negatively affecting frontline staff, mitigating the effectiveness of any full-time equivalent (FTE) increase to meet demands.
  • OPA did not have the essential legal, policy and Aboriginal cultural capabilities required for OPA’s environment.
  • The management team’s administrative load was not an effective use of the government’s investment in these roles.

The proposed new management structure included the introduction of a Deputy Public Advocate; a legal team (comprising two legal officers, a paralegal and a legal assistant); two level eight management positions for corporate support and policy; a level seven principal Aboriginal liaison officer; and six level seven team leader positions to support OPA’s service delivery managers.

Based on these recommendations, OPA worked within the Budget process, which resulted in an exploration of budget opportunities to begin a staged implementation of the proposed new management structure within the existing budget allocation.

Opportunities to ensure full budget utilisation were identified and between 2024/25 and 2025/26, OPA created and implemented additional positions as part of the new management structure and vital continued growth to frontline and supporting positions.

Through the cost and demand model, the increase to OPA’s Budget in 2026/27 has enabled five positions which form part of the new management restructure, as well as five frontline positions, and four administration support positions to be converted to permanent positions. Going forward, OPA will continue to utilise its Budget in the same way, to create and implement the remainder of the new management and supporting positions as outlined in the recommended structure, and to address the ongoing growth needs related to frontline positions. This will enable OPA to operate with 119.6 full-time equivalent (FTE) positions in 2026/27.

An additional challenge faced by OPA currently however, is that OPA’s accommodation is at capacity. OPA needs to secure additional, fit-for-purpose accommodation, in order to create and fill the remainder of the positions within the new management structure, as well as the ongoing creation and filling of frontline positions as enabled by future Budget allocations.

Once fully implemented, the new management structure will better position OPA to be strategically responsive, which will be vitally important during such a significant period of reform expected as a result of the recommendations of the Disability Royal Commission and the WA Law Reform Commission’s recommendations regarding the GA Act. The restructure will also provide improved quality assurance and oversight of frontline staff, ultimately producing better outcomes for proposed/represented persons.

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 8 of 20

2. The organisational culture of the Office of the Public Advocate and how this is impacting delivery of services to vulnerable people.

As outlined in response to question 1, the nature of OPA’s work is challenging. Over its 33 years of operation, OPA has cultivated a positive and supportive organisational culture which has developed and evolved, alongside a changing disability landscape and changing social issues.

OPA employs hard-working, professional and competent staff, who bring a range of skills and professional backgrounds which bring depth to OPA’s skills and knowledge base.

All new frontline staff undertake a comprehensive induction program which is coordinated by the relevant team manager, in addition to mandatory Department of Justice training. The induction includes presentations relevant to staff roles, regarding OPA practice standards, which are a suite of documents setting out the practice expectations for staff. These sessions use practical examples so that inductees can discuss and work through the appropriate practice, approach, legislative requirements and supporting resources.

During their induction, staff are exposed to all aspects of their role, while working alongside a colleague, including attendance at Tribunal hearings; meetings with proposed/represented persons and other interested parties; listening in on Telephone Advisory Service and/or Duty Guardianship calls and case conference meetings. Navigation of and reading time for OPA’s website is included in the induction, which exposes staff to the suite of publications produced by OPA for community members and professionals.

Inductees have dedicated sessions with members of the management team and senior representatives from across the different functions of the office, who explain their role, the practices they follow and how the inductee’s role intersects.

Inductees then begin a process of shadowing experienced staff members while they perform their work. Increasingly so, teams within OPA are formalising mentoring arrangements for new staff members as they begin to undertake the duties of their role. This enhances the ongoing supervision and line management provided to staff members.

As outlined in response to question 1, workload pressures and the under-resourced management structure present challenges to the quality of service delivered by OPA. These workload pressures also have an impact on OPA’s culture. It is vital that OPA continues to secure adequate funding (and accommodation) to enable continued adequate growth to OPA’s frontline, management and support roles, in order for staff to have manageable workloads and therefore be able to effect positive results in people’s lives. This will positively impact job satisfaction, reduce any potential staff burnout, increase staff retention and improve the overall quality of service provided to OPA’s vulnerable clients.

Another issue which presents a challenge to maintaining OPA’s positive organisational culture is the fact that there is often a gap between people’s expectation of OPA’s role, and the reality of what the role entails. This lack of understanding about OPA’s role and the limitations particularly on what delegated guardians are able to do, is often perpetuated in media coverage.

For example, media articles regarding adult guardianship often refer to people under guardianship orders appointing the Public Advocate as being “in State care” or “under the care of the Government”.

It is important to dispel the idea that where the Public Advocate is appointed as guardian, represented persons are under the care of the Public Advocate in the same way a child is cared for by their guardian. Guardianship of children involves an adult being responsible for the day-to-day care and welfare of a child, in addition to making decisions about the child’s wellbeing. Guardianship of adults involves being legally appointed to make decisions for that adult in relation to specific areas of their lifestyle and treatment.

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 9 of 20

While the Public Advocate is bound to the same principles as private and enduring guardians under the Guardianship and Administration Act 1990, the Public Advocate has a more restricted role in the person’s life than a family member or friend would as guardian. Private and enduring guardians will know the person well and are likely to be involved in some aspects of the person’s care. They may see them on a regular basis, take them on outings and to appointments and be involved in their life for things other than just making decisions. However, these things aren’t being done as part of their role as guardian/enduring guardian, they are being done in their capacity as a family member or friend.

The gap between people’s expectations of what a guardian’s role is, and the reality of what the role encompasses can cause friction between delegated guardians and represented persons and different stakeholders involved in their life.

This can result in complaints, ministerial correspondence, negative media coverage, Ombudsman investigations and applications to the State Administrative Tribunal. These are all legitimate avenues for interested parties to pursue when they have concerns. However, at times these complaints and concerns can be driven by a lack of understanding of the role of a guardian.

These avenues can also be used where a party’s concerns are more about their loss of control of a situation, rather than a concern about the proposed/represented person, or for other motivations unrelated to the best interests of the represented person. These parties may use multiple channels to raise their concerns and complaints, repeatedly escalate their concerns and complaints, and can become aggressive and inappropriate in their communication with OPA. Frontline staff are regularly dealing with derogatory, and at times threatening, communication in emails, telephone calls, online and in-person.

When these parties raise their matters with media outlets, the privacy provisions in place to protect vulnerable proposed/represented persons mean parties can tell their story if it is done in a de-identified way. However, the Public Advocate is bound to the confidentiality provisions within the legislation and therefore it is often not appropriate for OPA to provide any kind of rebuttal to claims made about the conduct of OPA in the media. Unbalanced stories may be published which are detrimental to OPA’s reputation and to staff morale.

This is not to say that OPA staff are infallible. Nor are OPA’s underpinning policies and practices. However, OPA employs a reflective practice and where a mistake is identified, staff work to rectify the issue and make policy changes to address problems where necessary.

An example of this can be seen in the Ombudsman WA’s 2021 investigation into the Office of the Public Advocate’s role in notifying the families of the deaths of three represented persons. As a result of this investigation, the Ombudsman WA formed a number of opinions regarding OPA’s role in notifying family members about the death of a represented person, and from these opinions he made seven recommendations. OPA accepted all seven recommendations and a year later, the Ombudsman WA sought to report on the level to which OPA had given effect to these recommendations.

On 18 October 2022, the Ombudsman WA Mr Chris Field said, “Having very carefully considered the information provided by OPA regarding their implementation of the seven recommendations, I am pleased to report that I am of the view that OPA has taken steps to give effect to each of the seven recommendations. In no instance have I found that no steps have been taken to give effect to a recommendation. This is an important and pleasing outcome. I am also pleased to report that the Public Advocate and her staff have been highly cooperative, open and timely during the undertaking of the Investigation and this report. A preparedness to accept oversight and accountability and take positive steps to improve the provision of their essential services to some of Western Australia’s most vulnerable citizens reflects very well on OPA.”

OPA has good news stories. Investigator advocates and guardians often achieve positive outcomes for people, but these aren’t the stories that are told in the media. However, some of these stories are showcased in case studies prepared each year for [OPA’s Annual Report](OPA’s Annual Report).

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 10 of 20

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

OPA’s view is that the mechanisms in place for complaints, disputes and allegations regarding the conduct and decisions of OPA staff are adequate.

As outlined to the Committee in response to an earlier request for information, OPA’s complaint process provides for complaints to first be addressed by the manager of the staff member to whom the proposed/represented person is allocated.

In some cases, a complaint may highlight an error in OPA’s practice or an issue which needs to be rectified. Where this is the case, OPA works to rectify the situation, apologise where appropriate and communicate with the complainant about the corrective action being taken.

If a complainant is not satisfied with the response, they can escalate their complaint through the relevant manager/s within OPA, until the complaint has been considered by the Public Advocate.

Once a complaint has been considered by the Public Advocate and a response provided, the next pathway for escalation would be for the complainant to take the matter to the Ombudsman WA.

In some cases, the issue that the complainant is raising cannot be resolved. Where this is the case, OPA works to explain the reasoning for OPA’s actions/decisions.

Unfortunately, OPA deals with unreasonable complainant conduct at times. The WA Ombudsman has recognised this issue faced across WA Government agencies, and has published a Practice Manual – [‘Managing unreasonable complainant conduct’](‘Managing unreasonable complainant conduct’).

It is difficult when a stakeholder’s complaint is managed appropriately through the process, but because the stakeholder is unhappy with the outcome, they continue to escalate the matter and at each step of the process, including investigation by the Ombudsman, they do not get the outcome they want and therefore remain dissatisfied.

These dissatisfied complainants often seek alternative avenues to air their grievances, such as contacting media outlets. Despite the confidentiality provisions within the legislation, the stories of proposed/represented persons have been told in the media by de-identifying parties. The issue for OPA however, is that the Public Advocate is bound by the confidentiality provisions of the GA Act and therefore only one side of the story is being told. The result is often an unbalanced story, and at times an inaccurate version of events.

There are a range of other layers of oversight of the Public Advocate in place –

  1. The Governor may remove the Public Advocate from office for neglect of duty, misbehaviour, incompetence, or mental or physical incapacity under section 91(1) of the Guardianship and Administration Act 1990. In investigating a complaint and making a determination, the Governor (informed by the Cabinet) could rely on findings of a Public Sector Commission or Corruption and Crime Commission investigation, Parliamentary Committee inquiry, recommendations of the Ombudsman, or findings of the Office of the Auditor General. These are five different options for independent investigation of complaints regarding the Public Advocate depending on the nature of the complaint.

  2. Any person may apply to the SAT for a mandatory review of guardianship orders under section 85(1)(c) of the GA Act if misconduct, default or neglect of the guardian has been established. In a recent application to the Tribunal, about which the Tribunal published reasons for decisions (K [2026] WASAT 16), the Tribunal Member confirmed that this applies where the Public Advocate is appointed as guardian of last resort. The Tribunal has inquisitorial powers allowing it to investigate such an allegation, and the Tribunal may request information from any person to determine whether there has been misconduct, default or neglect by the Public Advocate or a delegate.

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 11 of 20

  1. The following legislative oversight mechanisms are already in place:

(a) The Public Sector Management Act 1994 deals with performance, disciplinary matters and termination of employees. The Director General of the Department can exercise all powers of the Governor in relation to the Public Advocate except termination (this must be the Governor on recommendation of the Attorney General). All other staff of OPA are subject to the processes of the Public Sector Management Act 1994.

(b) Corruption, Crime and Misconduct Act 2003 deals with complaints about minor or serious misconduct. They may be referred to either the Public Sector Commission or the Corruption and Crime Commission depending on the severity.

(c) The Ombudsman may investigate complaints, publish findings and make recommendations.

(d) The Office of the Auditor General may audit financial matters as well as general performance of an agency and make findings and recommendations.

(e) Parliamentary Committees: a select committee may investigate a particular matter, or a standing committee may carry out a more wide-ranging inquiry as in the present case.

(f) The State Administrative Tribunal may make a finding that the Public Advocate or her delegate has committed misconduct or default under section 85(1)(c) of the GA Act.

(g) The Office of the Information Commissioner may make findings and issue sanctions if the Public Advocate uses information unlawfully under the new Privacy and Responsible Information Sharing Act 2024 or does not properly comply with the Freedom of Information regime.

(h) The Coroner may investigate the death of represented person, publish findings and make recommendations.

  1. The Department of Justice’s People, Culture and Standards division could also become involved at any stage if there was a concern raised about a staff member’s actions or conduct.

  2. The Public Advocate can be asked to appear as a witness and make written submissions to Royal Commissions, as was the case for the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) in 2022.

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 12 of 20

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

OPA is of the view that it provides information to relevant individuals and organisations in a timely, fair and transparent manner, to the extent possible in fulfilling its obligations under the GA Act while respecting the privacy of the personal information of proposed/represented persons and third parties.

Community education

OPA has a statutory role to educate community members and relevant service providers about the guardianship and administration system, including how to navigate the system; when making applications to the Tribunal may be appropriate; how parties could potentially find less restrictive alternatives to the appointment of guardians and administrators; and the options available to adults with capacity to plan for their future decision-making.

OPA’s website is comprehensive and informative. Topics covered include guardianship; advocacy and investigation; administration; planning for the future; the role of OPA; elder abuse; the NDIS; and decision making. Over years of interactions with represented persons, their family members and people navigating the guardianship and administration system, OPA has built a repository of frequently asked questions which are included on relevant webpages, to answer common queries.

OPA has developed in excess of 150 publications, which are available on its website, including 16 Easy Read Factsheets aimed at assisting people to understand the complex concepts of guardianship and administration and better understand the role of OPA; plain English publications; audio translations into several Aboriginal languages; and written translations into other languages. Due to the breadth of publications that OPA has produced and maintains, OPA has developed a [publications guide](publications guide).

OPA delivers approximately 25 education sessions each year to community members and relevant service providers in metropolitan and regional areas, via a mixture of face-to-face and online sessions.

OPA has committed to two key deliverables as part of the Department of Justice’s Reconciliation Action Plan, in order to better reach Aboriginal clients who make up almost one fifth of the Public Advocate’s guardianship appointments and approximately 12 per cent of new investigation matters annually. One deliverable is to progressively engage with key Aboriginal Medical Services (AMS) across WA as regional visits are undertaken by staff, to establish positive working relationships and increase AMS’ understanding of OPA’s role and the services provided by OPA which could be of benefit to AMS clients, and vice versa. The other deliverable is to establish and fill a full-time equivalent (FTE) senior Aboriginal officer position within OPA to better inform OPA’s policies and practices to improve the cultural safety of OPA’s services, within the confines of the legislation.

OPA also operates a telephone advisory service which aims to assist people with queries regarding the guardianship and administration system. This is a vital service in educating people on the proper making and operation of enduring powers of attorney and enduring powers of guardianship, and providing advice if there are concerns that these documents are not operating in people’s best interests. OPA also provides advice about what can happen to protect vulnerable adults if they have lost capacity and not made planning documents.

Advisory officers work to assist people in working through the issues to find ways to manage things in an informal way where possible. This is important work which can often stop people from needing to make applications to the Tribunal for guardianship and administration orders, when there are other less restrictive options. Where the situation warrants an application to the Tribunal, advisory officers assist callers in how to make applications. OPA’s Telephone Advisory Service operates Monday to Friday from 9.00am to 4.30pm, by phoning 1300 858 455 or emailing opa@justice.wa.gov.au.

In 2024/25 the advisory service received a total of 4,924 contacts via telephone, in-person and in writing. The advisory service addressed 6,230 enquiries about different subject matters by telephone in 2024/25 (in some instances, enquirers sought advice on multiple subjects).

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 13 of 20

Confidential information which OPA does not own

OPA often receives confidential information regarding proposed/represented persons from third parties, subject to strict access and use restrictions.

For example, OPA receives copies of applications made to the Tribunal, with related medical and service provider reports. This information is provided to OPA in order for investigator advocates to undertake their role, and then if the Public Advocate is appointed as guardian, this information provides background information to the delegated guardian. However, OPA does not own this information and therefore generally cannot share these confidential documents with other parties. At times, this can cause frustration when people want copies of this information, and OPA redirects them to the Tribunal to seek access.

Similarly, OPA receives information from other parties such as service providers, treating health professionals, and other stakeholders involved in the proposed/represented person’s life including government and non-government agencies, family members and friends.

Protecting proposed represented person’s right to privacy

Guardians, whether delegated or private, are required to ‘stand in the shoes’ of the person they represent, in order to make decisions in their best interests, taking into account their views and wishes to the extent possible.

For example, when the Public Advocate is appointed guardian with authority ‘to make treatment decisions’, by virtue of the guardianship order appointing them as substitute decision-maker for treatment, the delegated guardian is authorised to access treatment information regarding that person, and it is up to their discretion as to what, if any, of that information they share with others.

The best way to understand this is that the delegated guardian is standing in the person’s shoes. Just as the person themselves would have access to their own treatment information, decide whether or not they share their personal medical information with other parties, and consent/refuse treatment as required, the delegated guardian does this on their behalf in order to protect and promote their best interests.

The loss of decision-making capacity does not equate to the loss of privacy. Just because a person has lost capacity to make their own treatment decisions, does not mean family members are able to access all aspects of their private medical information.

OPA takes represented person’s privacy extremely seriously, particularly given the highly sensitive nature of information OPA holds. Therefore, delegated guardians will need to be satisfied that disclosure of a represented person’s personal information to third parties such as family members is necessary in order to carry out the guardian’s functions, acting in the person’s best interests.

The appointment of the Public Advocate does not replace the role of family in people’s lives. Continuing with the example of treatment decisions, delegated guardians will seek to consult with family about significant treatment decisions when these arise. Often, delegated guardians facilitate the provision of updates by service providers and medical practitioners involved in the person’s life, direct to family members, regarding the represented person’s general wellbeing and any significant medical events. Often family members are regularly ‘on-site’ with represented persons, either in their home or facility and communicate directly with service providers and medical practitioners involved in the person’s life, which is supported by the delegated guardian.

However, there are situations where the dynamics of particular families mean it is not in the represented person’s best interests for this communication and flow of information to be completely unrestricted. Unfortunately, at times, in order to promote the privacy and best interests of a represented person, the delegated guardian may need to impose some restrictions on a party’s access to information regarding the represented person.

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 14 of 20

OPA’s provision of a 24-hour service for urgent guardianship decisions

The Office’s business hours are 8.30am to 4.30pm, Monday to Friday, with the Office’s switchboard available during these times. Outside of these times, callers to OPA receive a recorded message directing them to OPA’s after-hours on-call service for urgent guardianship matters. These calls are predominantly regarding urgent treatment decisions.

Callers to the after-hours on-call service advise the operator the reason for the call. The service then sends an alert to the dedicated on-call mobile phone, with the details of the call. The on-call guardian is required to acknowledge receipt of the message and take action as required.

The after-hours on-call system operates on a roster which rotates guardians and senior guardians on shifts from 4.30pm to 8.30am, Monday to Friday, and 24 hours a day on weekends and Public Holidays.

Due to the complex nature of urgent guardianship decisions required after hours, there are particular decisions that require the endorsement of the on-call Manager which may be either the Manager Advocacy Investigation and Legal, or a Manager Guardianship. Therefore, in addition to the on-call guardian roster, the Manager Advocacy Investigation and Legal, and the two Managers Guardianship share a roster as the on-call Manager from 4.30pm to 10pm on weekdays and 8.30am to 10pm on weekends and Public Holidays.

The Public Advocate takes over from the on-call Manager from 10pm until 8.30am every day. At any time that a decision is required for which the Public Advocate does not delegate her authority, the on-call Manager or on-call guardian contacts the Public Advocate.

This 24-hour service is vital for the provision of information to relevant parties, in urgent after-hours situations.

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 15 of 20

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

Investigator advocates from OPA try to gather the views and wishes of a proposed represented person, as well as the views and wishes of family members and other key stakeholders, to the extent possible. Investigator advocates then have to balance these views with what they consider is in the best interests of the proposed represented person.

Similarly, when the Public Advocate is appointed as guardian, delegated guardians gather the views and wishes of the represented person and their family members and other key stakeholders to the extent possible, when making decisions. Delegated guardians then have to balance these views and wishes with what they consider is in the best interests of the represented person.

Sometimes this advocacy and these decisions align with the views and wishes of the person or their family members. At other times, they do not.

Section 4 of the GA Act sets out the principles which apply to the State Administrative Tribunal in dealing with proceedings under the Act. These principles underpin the work of OPA, and can be summarised as –

  • best interests
  • the presumption of capacity
  • least restrictive alternative
  • limited rather than plenary orders where possible
  • views and wishes of the proposed/represented person.

OPA also seeks to incorporate the principle of dignity of risk into its advocacy and investigation, and its guardianship services.

OPA delegated guardians also comply with section 51 of the GA Act, in that they act in accordance with their opinion of the best interests of the represented person, by acting as far as possible –

  • (a) as an advocate for the represented person;
  • (b) in such a way as to encourage the represented person to live in the general community and participate as much as possible in the life of the community;
  • (c) in such a way as to encourage and assist the represented person to become capable of caring for themself and of making reasonable judgments in respect of matters relating to their person;
  • (d) in such a way as to protect the represented person from neglect, abuse or exploitation;
  • (e) in consultation with the represented person, taking into account, as far as possible, the wishes of that person as expressed, in whatever manner, or as gathered from the person’s previous actions;
  • (f) in the manner that is least restrictive of the rights, while consistent with the proper protection, of the represented person;
  • (g) in such a way as to maintain any supportive relationships the represented person has; and
  • (h) in such a way as to maintain the represented person’s familiar cultural, linguistic and religious environment.

It is important to understand that delegated guardians are not appointed to gather the person’s views and wishes and then ‘rubber stamp’ the person’s own decision. Instead, delegated guardians need to give weight to the person’s views and wishes, while balancing other needs and relevant factors which make up the entire picture of what is in the person’s best interests.

Some proposed/represented people and/or their family would view a decision which is made by the Public Advocate, that is contrary to the proposed/represented person’s views and wishes and/or the family members’ views and wishes, as a negative outcome. However, the decision has been made by the investigator advocate/delegated guardian, by balancing these views and wishes with the best interests of the proposed/represented person.

While the decisions made by the Public Advocate are not always in line with the views and wishes of the proposed/represented person (and/or their family), OPA is of the view that these decisions are made in good faith that OPA is always striving to achieve positive outcomes in the person’s best interests.

Advocacy outcomes in respect of complex service systems

In some circumstances OPA provides advocacy on behalf of a represented person with respect to navigating complex service systems on their behalf. For example, in respect to NDIS matters, OPA has established escalation channels with the National Disability Insurance Agency (NDIA) to address complex priority issues. Members of OPA’s management team have regular scheduled meetings with the NDIA to address specific issues relevant to OPA/NDIA shared clients and to work in a collaborative way to support adult safeguarding.

Where NDIS supports cannot be agreed directly with NDIA, OPA can provide representation and advocacy at the Administrative Review Tribunal (ART) in relation to NDIS matters under an external merits review. OPA regularly negotiates settlement of ART matters in terms which are favourable to the represented person and on occasion (under the ‘next friend’ function in the guardianship order) provide representation and advocacy at a full hearing of the ART.

OPA has observed a steady increase in the number of people coming under the guardianship of the Public Advocate, with active/pending ART matters who require assistance to resolve these proceedings in their best interests. Generally, represented persons and their families are satisfied with OPA’s advocacy and actions before the ART. This is likely attributable to OPA’s understanding of government systems in the NDIS context, and the capability of OPA staff to use this knowledge to negotiate and advocate on a represented person’s behalf to achieve the best possible outcome.

Litigation before the ART can be both complex and time consuming and OPA’s expertise in this area is integral to positive outcomes where NDIS supports are in dispute. Represented persons and their families can gain a better understanding of the complexities of navigating the NDIS and the NDIA, with OPA’s support.

Guardianship standards

The Australian Guardianship and Administration Council (AGAC) is a not-for-profit organisation which brings together Public Advocates/Guardians, Public Trustees and Guardianship Tribunals across Australia to share information, collaborate and achieve consistent approaches with regard to guardianship and administration issues.

OPA’s guardianship practices align with AGAC’s ‘National Public Guardianship Guidelines’, which provide the minimum expectations of staff across Public Advocate/Guardian offices in Australia, when acting as guardian of last resort.

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 17 of 20

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

Oversight of private guardians (and enduring guardians)

In terms of private guardians (appointed by the State Administrative Tribunal) and enduring guardians (appointed by the person when they had capacity) – interested parties who are concerned about the decisions of a guardian/enduring guardian, can apply to the State Administrative Tribunal to seek a review of the guardianship order. At times, the Tribunal may refer the matter to the Public Advocate to investigate and report back to the Tribunal to assist in its deliberations about the matter.

Whereas private administrators are overseen by the Public Trustee’s private administrator support team, private guardians are not overseen by a support team and do not have any reporting requirements. OPA has produced a publication, [‘Private Guardians Guide’](‘Private Guardians Guide’) to assist private guardians in the role. In the same way, OPA has produced a [‘Guide to Enduring Power of Guardianship’](‘Guide to Enduring Power of Guardianship’) to provide information for people considering making an enduring power of guardianship, and information for people considering taking on the role of enduring guardian.

Since 2005, OPA has delivered a community guardianship program which matches adults for whom the Public Advocate is appointed as guardian, with volunteers from the community who are willing and able to take over the guardianship role.

The role of a community guardian is unique in terms of the long-term commitment and responsibility a volunteer community guardian takes on. OPA provides training for community volunteers before matching them with a suitable client. When a relationship has been established and shown to be successful for 6 to 12 months, the Public Advocate makes an application to the State Administrative Tribunal for the volunteer to be appointed as the person’s guardian, and for the Public Advocate’s appointment to be revoked.

Private guardians appointed through OPA’s community guardianship program have the additional benefit of ongoing training and support from OPA.

At 30 June 2025 there were 12 volunteers engaged in the community guardianship program. Of these, nine had been appointed as guardian by the Tribunal. One volunteer was in the process of being matched with a represented person.

Oversight of the Public Advocate (and her delegates) as guardian and administrator of last resort

OPA is of the view that current oversight mechanisms for the Public Advocate as guardian and administrator of last resort are adequate.

At 31 March 2026, the Public Advocate was appointed as limited administrator of last resort for a total of two represented persons. This situation may occur where the State Administrative Tribunal determines that a person is in need of an administrator, but they don’t have a family member or friend who is suitable to be appointed, and a conflict of interest exists in appointing the Public Trustee as administrator for particular functions. In these instances, the GA Act enables the Public Advocate to be appointed as administrator of last resort.

Prior to a Tribunal hearing for such a matter, an OPA principal investigator advocate will routinely review the application and supporting documents and attend the State Administrative Tribunal hearing to advocate on behalf of the represented person. The principal investigator advocate will consider if there are other parties who could be appointed, consider the conflict of interest raised in the application and ultimately, if the appointment of the Public Advocate is to occur, advocate for orders which will enable the Public Advocate to conduct the role as administrator of last resort.

Once appointed as administrator of last resort, a key role for the principal investigator advocate is to conduct a file review and briefing for the Public Advocate to enable decisions to be made about progressing the specific case.

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 18 of 20

The Public Advocate is only appointed as administrator if all of the other options are exhausted and the appointment is the only option available. While this does not occur often, such appointments are usually complex.

When appointed administrator of last resort, the Public Advocate will usually have a limited function with regard to legal proceedings, with the Public Trustee often appointed with the remaining functions. The role involves extensive liaison with legal professionals and the Public Trustee in regard to progressing the proceedings.

In the same way that interested parties can apply to the Tribunal to seek a review of private guardianship orders, interested parties can apply to the Tribunal to seek a review of guardianship and administration orders appointing the Public Advocate.

In terms of the day-to-day oversight of decisions made by OPA delegated guardians and administrators, as outlined in the introductory comments of this submission, due to the complex and often highly sensitive nature of guardianship and administration decision-making, there are particular decisions that require the endorsement of a Senior Guardian, Manager Guardianship or Manager Advocacy Investigation and Legal. Other decisions require the endorsement of the Public Advocate. These are set out for staff in OPA’s Practice Standard ‘Delegated Authority for Delegated Guardians and Administrators’.

In addition, delegated guardians and administrators work within a supportive structure of line management arrangements, supervision and mentoring. OPA has developed a Guardianship Practice Manual which brings together all of the practice standards which are relevant to the role of delegated guardian, and an Investigator Advocate Practice Manual is being developed to complement the practice standards and other guidance materials relevant to the role of investigator advocate (which includes the role of administrator of last resort).

Beyond delegations and line management arrangements, as outlined in response to question 3, OPA has a complaint process in which complaints are addressed in the first instance by the manager of the staff member to whom the represented person is allocated. If a complainant is not satisfied, they can escalate their complaint through the relevant manager/s within OPA, until the complaint has been considered by the Public Advocate. If a complainant is not satisfied with the Public Advocate’s handing of their complaint, it can be escalated to the Ombudsman WA.

Additionally, as outlined in response to question 3, there are a number of legislative oversight mechanisms in place.

Oversight of private administrators

Private administrators are overseen by the Public Trustee’s private administrator support team, and therefore it would be more appropriate that the Public Trustee comment on the adequacy of oversight mechanisms in place.

Oversight of the Public Trustee as administrator

The Public Trustee is held to account by similar mechanisms as administrator, as the Public Advocate is held to account as guardian and administrator of last resort. As outlined above, OPA believes these mechanisms are adequate.

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 19 of 20

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

The majority of OPA’s work is derived from and reviewed by the State Administrative Tribunal. Investigation referrals (other than Court and community referrals); appointments as guardian and administrator of last resort; and consideration of review hearings, are all determined by the Tribunal.

Ultimately it is up to the Tribunal to determine whether or not it accepts applications from parties; who it involves in matters; the timeframes in which it hears and considers matters; whether or not the Tribunal is satisfied with the medical and other evidence presented to it to overturn the presumption of capacity; and, where it determines that orders are needed, who it appoints as guardian and/or administrator; the authority it includes in orders; and the length of orders.

The Tribunal operates within its powers under the State Administrative Tribunal Act 2004 and the Guardianship and Administration Act 1990.

Beyond this commentary, it would not be appropriate for the Public Advocate to comment on the role and conduct of the State Administrative Tribunal as there is a separation of powers between the Government and Judiciary.

OPA May 2026 Submission to the Parliamentary Inquiry into the guardianship and administration system in WA Page 20 of 20