Inquiry into Guardianship and Administration in Western Australia

3rd June 2026

Legal Aid WA Submission 1

Legal Aid WA Submission

Acknowledgement of Country

We acknowledge the traditional custodians and owners of the lands, waterways and seas on which Australians live and work.

We also pay our respects to all members of First Nations communities and their cultures, and to their Elders past, present and emerging.

Legal Aid WA Submission 2

Legal Aid WA Submission

Terminology

Disability

The use of the term disability in this submission follows the definition in the UN Convention on the Rights of Persons with Disabilities.

Person-first language (people with disability) and identity-first language (disabled people) are both used in Australia.

We acknowledge people’s personal preferences and the individual’s right to choose how their identity and experiences are described. The use of person-first language in this submission is not intended to diminish this.

First Nations

In this submission, the terms First Nations people and Aboriginal and Torres Strait Islander peoples are used interchangeably.

We recognise that these terms do not always reflect the diversity of an individual’s cultures, identities, or preferred naming conventions. The use of First Nations people and Aboriginal and Torres Strait Islander peoples in this submission is not intended to take away from this.

Legal Aid WA Submission 3

Legal Aid WA Submission

Introduction

The Legal Aid Commission of Western Australia (Legal Aid WA) welcomes the opportunity to make a submission to the Community Development and Justice Standing Committee’s (Committee) Inquiry into Guardianship and Administration in Western Australia (Inquiry)¹.

Legal Aid WA is uniquely positioned to comment on this Inquiry given our extensive experience in assisting vulnerable clients affected by Guardianship and Administration (GAA) issues and our regular engagement with the Office of the Public Advocate (OPA) and Public Trustee (PT).

We acknowledge that the Law Reform Commission of Western Australia recently completed a review of the Guardianship & Administration Act 1990 (WA)² and it is anticipated that legislative changes will be made in the near future. Legal Aid WA made a submission to that review (copy attached).

Legal Aid WA ackowledges that some of the recommendations in this submission may require changes to legislation and/or additional resources to implement.

We hope that this submission will assist the Committee with their Inquiry and provide valuable insight into the experiences of both our staff and clients coming into contact with the OPA and PT.

Legal Aid WA Submission 4

Legal Aid WA Submission

Executive Summary

i. As at 27 May 2026: a) 42% of Legal Aid WA’s clients identified as a person with disability; and b) 48% of Legal Aid WA’s services were for clients with disability.

ii. Legal Aid WA’s Civil Law Division (including our Elder Rights WA service) advises and represents clients in Guardianship & Administration (GAA) proceedings when these are anticipated or currently before the SAT, in addition to providing advice to clients seeking to review GAA orders.

iii. NDIS Early Advice Team (Early Intervention Services Division) is a small specialist team with a narrow referral criterion focused on highly complex and vulnerable clients with urgent NDIS support needs with NDIS access requests, plan reassessments, and with NDIS internal reviews. The team also represents and supports young people in the Inroads Court at the Children’s Court and GAA issues arise in this context particularly for young people with disability aging out of the care of the Department of Communities. Referrals for this service are received from courts, Corrective Services, Community Corrections, Justice Liaison Officers, and internally within Legal Aid WA.

iv. Under the Guardianship & Administration Act (WA) 1990, the OPA and the PT have various functions aimed at assisting and supporting some of the most vulnerable Western Australians within our community.

v. Legal Aid WA has identified that there is a significant and increasing demand for legal services for clients with disability including with respect to GAA matters.

vi. There is an increasing number of GAA applications and orders made in the SAT which has the flow on effect of significant and increasing demand on OPA and PT and legal services providing assistance to clients.

Legal Aid WA Submission 5

Legal Aid WA Submission

vii. Many of Legal Aid WA’s client’s face barriers accessing justice solutions, including those under GAA orders. Of particular concern are issues arising with the following identifiable client groups: a) Clients accessing the National Disability Insurance Scheme (NDIS), which is difficult to navigate for both clients and the OPA; b) Clients in aged care, where, as a consequnce of the introduction of the Aged Care Act 2024 (Cth) (Aged Care Act) which imposes new provider obligations there is an increased number of GAA applications; c) Clients with criminal offending behaviour, and the OPA’s limited response to the need for planning to address the link between a client’s offending behaviour arising from their disability-related impairments; d) Clients transitioning from the care of the Department of Communities, where GAA orders are being made for young people with disability as part of their transition from care, in circumstances where the young person may have legal capacity to make decisions with supported decision-making principles in place; e) Clients in custody with GAA orders in place, being released from prison experiencing financial hardship and social issues because required supports are not in place.

viii. The OPA and PT are dealing with increased demand for their services, whilst also facing resource and other challenges. Adequately resourcing the OPA and the PT is vitally important, as is the resourcing of the other agencies providing legal and social support to clients in their interactions with OPA and PT.

ix. A significant proportion of OPA and PT clients are First Nations peoples. The Western Australian government is committed to achieving targets under the National Agreement on Closing the Gap. There is a need to ensure the greater cultural awareness of staff who interact with First Nations people and the recruitment and retention of First Nations staff. This is necessary to inform decision-making and to provide cultural safety in relation to processes and communications for both the OPA and PT.

Legal Aid WA Submission 6

Legal Aid WA Submission

x. Increased and ongoing training for OPA staff about NDIS processes would be of great benefit. This training could include: a) The NDIA supported decision-making operational guidelines that outline how participants should be assisted to understand NDIS matters and make decisions about their NDIS supports. b) The importance of obtaining clinical evidence from a strengths based approach, not simply relying on NDIS reports. c) The link between a client’s offending behaviour arising from their disability-related impairments, and the role of NDIS supports in addressing the risk of reoffending. d) The impact of OPA Guardians transitioning NDIS participants into aged care support packages and residential facilities at age 65 or older, which permanently ends their NDIS access.

xi. We would strongly encourage consideration of the following: a) The external and internal pressures on the OPA and PT; and b) Whether the drivers of the increased pressure on the OPA and PT can be addressed more effectively by, or in collaboration with other organisations and stakeholders.

xii. There would be a benefit in the allocation of resources to regular interagency training involving the OPA and other agencies providing legal and social support to clients to facilitate their collaboration and improved understanding of the roles and responsibilities of each other in the GAA context.

Legal Aid WA Submission 7

Legal Aid WA Submission

Legal Aid WA

Legal Aid WA is an independent statutory authority created under the Legal Aid Commission Act 1976 (WA).
We are committed to achieving equitable access to justice to support a fair and safe community for all Western Australians.
Legal Aid WA delivers legal assistance services in criminal, family, and civil law through one Perth office, seven regional offices, three satellite offices, 21 Virtual Offices, and 104 outreach locations.
Our in-house practices in criminal, family, civil law, and early intervention, assist clients by representing them under grants of aid; as duty lawyers in the Criminal, Family, and Children’s Courts including Protection and Care matters, and Family Violence Restraining Orders; through legal advice and discrete assistance; and targeted Community Legal Education.
Additionally, Legal Aid WA has more than 470 private lawyers across Western Australia on our panels who assist with this work.
We support our clients holistically and understand that many legal problems arise from underlying socio-economic issues, and our legal services are complemented by in-house social support services that provide targeted wraparound assistance to improve justice outcomes for our clients.

Legal Aid WA Clients

Many of Legal Aid WA’s clients face barriers accessing justice solutions, and may need extensive and intensive assistance to address their legal issues, which often intersect with non-legal, socio-economic needs.

Legal Aid WA Submission 8

Legal Aid WA Submission

People with disability, including psychosocial disability, are a priority client group for Legal Aid WA³, as they may need additional support accessing justice and navigating legal systems.
According to the Assessment on the Current Legal Needs in Western Australia: Final Report prepared for Western Australia’s Department of Justice, people with disability accounted for 13% of all legal assistance provided in Western Australia, with Legal Aid WA delivering about 65% of these services⁴.
As at 27 May 2026: a) 42% of Legal Aid WA’s clients identified as a person with disability; and b) 48% of our services were for clients with disability.
According to the Australian Bureau of Statistics, only 21.4% of Australians identify as a person with disability, with 7.9% of Australians with disability having a “profound or severe limitation”⁵, representing 36.91% of all people with disability in Australia.
This suggests that at least 36.91% of clients with disability engaging with Legal Aid WA are people with “a profound or severe limitation”, or 15.5% of our total number of clients, being people with significant support requirements and complex needs, who are likely to require additional resources and time to resolve their legal problems and intersecting socio-economic needs.
We observe that the clients with disability that Legal Aid WA assists regularly intersect with other priority client groups, for example as at 27 May 2026:

Legal Aid WA Submission 9

Legal Aid WA Submission

a) **47.89%** of Legal Aid WA’s clients with disability are also experiencing, or at risk of experiencing, family violence.
b) **26.61%** of our clients with disability are also First Nations people.
c) **15.26%** of our clients with disability are also under the age of 25.
d) **7.30%** of our clients with disability are also elderly people.

14. Legal Aid WA understands there is likely to be some limitations in relation to the data collected about our clients with disability, including but not limited to: a) Limitations and changes to our data collection processes. b) Clients with disability not disclosing this information when engaging with us or not having a formal diagnosis at that time⁶.

In this context it is likely that there is a higher percentage of clients with disability engaging with our services than has be identified.

Legal Aid WA Services for GAA Matters

GAA issues frequently arise across our Criminal, Civil, Early Intervention Services, and Family Law Divisions, with Legal Aid WA regularly providing legal services to clients who are or have been subject to GAA applications and orders. This includes but is not limited to: a) Clients seeking advice or representation with respect to the NDIS. b) Clients transitioning out of the care of the Department of Communities (Child Protection) (Communities).

Legal Aid WA Submission 10

Legal Aid WA Submission

c) Clients involved in the criminal justice system, including under the *Criminal Law (Mental Impairment) Act 2023* (WA) (CLMI Act).
d) Clients in custody.
e) Clients in aged care.

Civil Law Services

The Civil Law Division (including our Elder Rights WA service) advises and represents clients in GAA proceedings when these are anticipated or currently before the State Administrative Tribunal (SAT), in addition to providing advice to clients seeking to review GAA orders. Legal advice and assistance is also provided in relation to Enduring Powers of Attorney and Enduring Powers of Guardianship.
The assistance provided to clients includes advising them on the nature of GAA applications and review proceedings, in addition to requesting and reviewing the evidence before SAT on behalf of clients. In some cases, clients will be represented before the SAT under a grant of aid.
We also provide assistance and/or information to interested third parties (such as family members) about GAA matters in limited circumstances.
For the financial year ended 30 June 2025, our Civil Law Division provided 371 legal services relating to GAA matters. To date, for the financial year ended 30 June 2026, this dedicated small team has delivered 447 services, being an increase of 20.48% for this year to date.
The demand for this type of assistance remains high and is likely to increase alongside the growing number of applications made to SAT for GAA orders.

CASE STUDY 1

Client A was a man in his twenties with a mild intellectual disability and in reciept of the Disability Support Pension. He worked at a charity shop two days per week.

Legal Aid WA Submission 11

Legal Aid WA Submission

Client A lived with his parents and required some assistance managing his finances and other aspects of his life. There were orders in place for a PT Trustee Manager.

Client A sought advice from Legal Aid WA about reviewing the GAA orders.

Client A accepted that he benefited from assistance with his NDIS plan and some other aspects of daily life.

However, Client A did not agree with the PT managing his income and it being unavailable for him to spend on hobbies such attending Australian Football League matches and gaming. Client A instructed us that he was thinking about quitting his job as a result.

Legal Aid WA represented Client A at his SAT review hearing and successfully advocated for orders that the Trustee Manager trial a period of releasing Client A’s charity shop earnings directly to him.

Client A retained his employment and was able to participate in activities that he enjoyed.

Legal Aid WA’s NDIS services

Legal Aid WA has two specialist services that provide legal services in relation to NDIS access, reviews, and appeals, being our: a) NDIS Early Advice Service (NDIS EAS); and b) NDIS Appeals Service.
NDIS EAS is a small specialist team with a narrow referral criterion focused on highly complex and vulnerable clients with urgent NDIS support needs with NDIS access requests, plan reassessments, and with NDIS internal reviews. Asistance provided includes representation and social support for clients appearing in the Inroads Court. Since services were commenced in 2024 the team has assisted 51 clients with disability and provided 257 legal advice services to young people appearing in that court. Referrals for this service are

Legal Aid WA Submission 12

Legal Aid WA Submission

received from courts, Corrective Services, Community Corrections, Justice Liaison Officers, and internally within Legal Aid WA.

There are no other legal services in Western Australia providing the same type of dedicated assistance for NDIS access in the justice context and the demand for early assistance from NDIS EAS significantly exceeds capacity.
Our NDIS Appeals Service provides legal advice and assistance to clients who have received unsatisfactory outcomes from their NDIS internal review decision and wish to appeal the decision to the Administrative Review Tribunal, including but not limited to where the National Disability Insurance Agency (NDIA) has determined: (i) That a person does not meet the NDIS access criteria; or (ii) They will not fund certain supports being included in a person’s already established NDIS plan.
The level of demand for assistance from our NDIS Appeals Service significantly outstrips capacity.

NDIS Challenges

Legal Aid WA acknowledges that the NDIS legislation and associated processes have recently undergone change and further significant change is anticipated in the future. This makes the navigating the NDIS system difficult and time-consuming for clients and the OPA.
The accessibility difficulties relating to the NDIS are compounded and heightened for people with disability, particularly for people with a cognitive, intellectual or psychosocial disability, and for First Nations people or people experiencing social and economic disadvantage.
It is important that the inaccessibility and complexity of the NDIS processes is not conflated with a person with disability lacking decision-making capacity, and therefore requiring GAA orders.

Legal Aid WA Submission 13

Legal Aid WA Submission

In our experience, this issue seems to most commonly occur with clients who may have legal capacity but limited literacy skills, are difficult to contact, are homeless or transient, or who may be perceived to not be making decisions in their best interests.
Unfortunately, it appears that many medical providers and other stakeholders providing support, including NDIS Support Coordinators and NDIS employees, have limited understanding of when GAA orders are appropriate for NDIS participants (or people who are applying to become NDIS participants) and the availability of less restrictive alternatives.
We observe that the NDIA has supported decision-making operational guidelines that outline how participants should be assisted to understand NDIS matters and make decisions about their NDIS supports. We suggest that these guidelines should be utilised when determining GAA applications, and, if OPA Guardians are appointed, when making NDIS related decisions on an ongoing basis.
From experience it is apparent to Legal Aid WA staff that during the course of SAT proceedings, the clinical medical evidence relied upon in relation to GAA generally consists of reports that have been obtained for NDIS purposes. These reports are prepared for a distinctly different purpose and address NDIS legislative and policy provisions. They are generally prepared from a deficits-based perspective, intended to advocate for the client obtaining an optimal level of NDIS support. Legal Aid WA suggests that clinical evidence prepared from a strengths based perspective should be prioritised with careful consideration given to the weight to be given to NDIS Reports.

Criminal offending behaviour

People with disability are disproportionately represented in the criminal justice system at all stages⁷.

Legal Aid WA Submission 14

Legal Aid WA Submission

The final report from the Royal Commission into Violence, Abuse, Neglect and Exploitation explored the issues associated with the interface between the NDIS and the criminal justice system in some detail, including the need to clarify the distinction between ‘criminogenic-related supports’ and ‘disability-related supports’⁸.
Based on our observations and experiences, this also appears to be an issue within the OPA and PT. Some OPA Guardians and PT Trustee Managers appear to have limited understanding about the link between a client’s offending behaviour arising from their disability-related impairments, and the role of NDIS supports in addressing the risk of reoffending.
In these cases, despite Legal Aid WA advocating for optimising NDIS access and plan reassessments for clients to obtain appropriate supports to reduce disability-related offending behaviour, this advocacy is often unsuccessful . It is unclear why this has been the outcome.
As a result, clients with ongoing unmet disability support needs may: a) Spend longer periods in custody; b) Have higher reoffending rates; and/ or c) Be at risk of receiving continued detention or supervision orders.

CASE STUDY 2

Client C was a First Nations person with a diagnosed major neurocognitive impairment.

There was clinical medical evidence which confirmed his offending behaviour arose from his disability-related impairments. However, Client C did not have adequate NDIS supports in place to address these concerns.

Legal Aid WA Submission 15

Legal Aid WA Submission

Legal Aid WA’s NDIS EAS sought consent from Client C’s OPA Guardian to request the additional NDIS supports required to address his offending behaviour related to his disability.

The Guardian declined to consider this approach on the basis of Client Cs offending history and their view that it was unlikely that any support would help.

Aged Care

On 1 November 2025, the Aged Care Act 2024 (Cth) (Aged Care Act) came into effect which is designed to ensure the rights, safety and wellbeing of older people. However, as a consequence new provider obligations have led to an increased number of GAA applications and orders being made for elderly people. This has placed further pressure on the OPA and PT.
It is important that OPA guardians have a high level of awareness of the legislation and rules regarding NDIS and Aged Care.
In some cases, OPA Guardians have transitioned NDIS participants into aged care support packages and residential facilities at age 65 or older, which permanently ends their NDIS access⁹. Clients are then unable to access the disability supports and level of care they require for the rest of their lives, to their significant detriment.

CASE STUDY 3

Client D was a 66 year old First Nations man with diagnosed neurological and cognitive disability and an NDIS participant, who had an OPA Guardian.

Client D and his family had poor relationships with the Guardian, with very little trust.

The Guardian decided to relocate Client D to an aged care facility because they were concerned D’s family were not providing an adequate level of support.

Legal Aid WA Submission 16

Legal Aid WA Submission

This decision meant that to his significant detriment, Client D automatically ceased to be an NDIS participant, could not make a fresh NDIS access application, and can now only access services under My Aged Care.

Client D and his family sought advice from Legal Aid WA after being referred by a Disability Advocate, as they did not understand what had happened and if it could be fixed. Unfortunately, we were unable to assist Client D as there was no recourse available. It was also unclear whether the possibility of increasing Client D’s NDIS supports to address the concerns about his family situation had been explored.

Clients transitioning from the care of Communities

We provide legal advice and assistance to clients involved in care and protection matters involving Communities, including on grants of aid where appropriate.
Our Independent Children’s Lawyers also represent the best interests of children in these types of proceedings.
During the financial year ended 30 June 2025, SAT determined 44 GAA applications made by Communities about children transitioning out of care. Ultimately, GAA orders were made with respect to every application and of these, 21 related to Aboriginal and Torres Strait Islander children, ( 47.72%)¹⁰.
This is consistent with our experience of our work with these clients. It seems that as young people with disability (many of whom are NDIS participants) under the care of Communities approach the age of 18, Communities generally applies for and successfully obtains GAA orders as part of their transition from care process.
We are concerned that this practice may often be occurring in circumstances where the young person might have legal capacity to make decisions if

Legal Aid WA Submission 17

Legal Aid WA Submission

appropriate disability supports were in place in accordance with the principles of supported decision-making.

Legal Aid WA acknowledges and appreciates that OPA works collaboratively with Communities to assist with transition planning for these young people, including but not limited to¹¹: a) When invited, attending leaving care planning meetings to assist with determining if a GAA application to SAT is necessary; and b) Providing advocacy at SAT hearings where GAA applications concern a young person aged 17 or over.
It would be benefical for Communities and OPA working together at an earlier stage in the leaving care process to give consideration as to whether there is a need for a GAA in the circumstances of the particular young person or whether supported decision making arrangements would be sufficient.
It is necessary for the advocacy provided by OPA for young people in these circumstances to be sufficiently transparent and independent to enable them to feel confident about engaging with their appointed guardian. It is important that these individuals have access to independent legal representation and we suggest that due to the particular vulnerabilities of these clients, this should be prioritised.

Clients in custody

The OPA and PT regularly have to make decisions on behalf of clients who are detained in custody under prison sentences, including custodial orders under the CLMI Act.
However, based on both feedback from staff involved in this process and client reports, the OPA and PT do not appear to prioritise these clients, although high caseloads may contribute to this.

Legal Aid WA Submission 18

Legal Aid WA Submission

Prior to sentencing in Criminal Court proceedings, reports are usually prepared which recommend which programs and supports clients should access or receive, including if they are ultimately incarcerated.
After a client is sentenced and recieves a term of imprisonment, and Legal Aid WA subsequently closes their file, we have observed that often the recommended programs and supports under the report do not eventuate, unless there is a particularly proactive guardian engaging with the other agencies on behalf of the client. This may lead to increased risk of reoffending.
We have also found that many clients being released from custody experience unnecessary financial hardship and social issues due to the OPA and/or PT failing or delaying taking appropriate steps in preparation, for example clients not being assisted with: a) Applying for the disability support pension; b) Reinstating their Centrelink payments; c) Applying for a crisis payment; and/or; d) Setting up a bank account or obtaining a new bank card.
We suggest that for some of these individuals, this inadequate access to funds may put them at risk of reoffending and subsequently engaging in property offences.
Additionally, Legal Aid WA staff report that often these clients are also released from custody without steps being taken to facilitate or secure appropriate accommodation, commonly resulting in homelessness and other social issues.
Whilst Legal Aid WA understands that the OPA and PT are decision-makers, not case managers or social workers, it is important that they be proactive in making timely and appropriately supported referrals for clients in these circumstances.

Legal Aid WA Submission 19

Legal Aid WA Submission

CASE STUDY 4

Client E was a 31 year old woman with schizophrenia and had both an OPA Guardian and PT Trustee Manager.

Client E was sentenced in relation to criminal offences and received a term of imprisonment.

Client E’s bank account was closed and both the OPA and PT were informed.

This issue was not resolved by the Trustee Manager prior to Client E’s release from custody into the community.

As a result, Client E did not have access to any funds for several weeks.

Client E subsequently committed several property-related offences, including burglary charges, which were more serious that her previous charges.

Legal Aid WA Submission 20

Legal Aid WA Submission

Organisational capability and culture

Legal Aid WA recognises that demand on the OPA and PT is significant, and only likely to increase as: a) Western Australia’s population continues to grow and age; b) The prevalence of psychosocial disability in the community grows; and c) The number of NDIS participants continues to expand.
The available data for both the OPA and PT suggests a system under increasing pressure, exacerbated by insufficient funding and resources.
This aligns with the reported experiences of both our staff and clients when engaging with these organisations.
The number of people with an OPA Guardian increased by 46% between June 2021 to June 2025¹².
Within the same timeframe, the number of PT plenary appointments increased by 32%.
It is vital that the OPA and PT are sufficiently resourced because of increased demand and the significant vulnerability of individuals subject to GAA applications and orders.
From our experience the OPA and PT staff that Legal Aid WA engages with generally endeavour to support adults with a decision-making disability to reduce their risk of abuse, exploitation and neglect.
In particular, our staff find the reports prepared by OPA investigators are extremely thorough and helpful for both clients, SAT, and if appointed, any OPA Guardian with respect to decision-making and capacity issues. However, these reports are not commissioned for every client. It may be appropriate to

Legal Aid WA Submission 21

Legal Aid WA Submission

review the applicable criteria for the preparation of these reports. More of these reports would be helpful evidence for the SAT and organisations seeking to support clients subject to applications for GAA orders.

OPA and PT staff appear to have extremely high caseloads, that may not take into account the client complexity and associated time required to manage their affairs, impacting on their ability to be proactive and responsive to client needs.
In our experience, some OPA Guardians and PT Trustee Managers are very proactive about liaising with other agencies and stakeholders on behalf of their clients, for example with Legal Aid WA, NDIS, Aged Care, Department of Justice, Communities etc. However, other Guardians and Trustee Managers only seem to have capacity to act when requested to do so, and sometimes it is very difficult to obtain a response. This has an adverse impact on the decision making within the OPA and PT and the experience of clients and agencies like Legal Aid WA, that are supporting them.
It is our view that there is a need for resources to be available to facilitate regular interagency training involving the agencies providing support and advocacy for clients with OPA and PT staff to enhance the understanding of the roles and responsibilities of each other to develop a more integrated response to the needs and systems challenges of clients with disability.
It is suggested that this training could include: a) OPA and PT processes and expectations, to ensure consistency and best practice approaches are being followed; b) Legal processes such as the NDIS (including the intersection with Aged Care) and the CLMI Act; and c) Subjects like reasonable accomodations for clients (particularly in respect of communication strategies and supported decision-making), family violence, and cultural awareness.

Legal Aid WA Submission 22

Legal Aid WA Submission

A significant proportion of OPA and PT clients are First Nations peoples. The Western Australia government is committed to achieving targets under the National Agreement on Closing the Gap, there is a need to ensure the greater cultural awareness of staff and the recruitment and retention of First Nations staff. This is necessary to inform decision-making and to provide cultural safety in relation to processes and communications for both the OPA and PT.
The development and implementation of the use of communication tools such as the Blurred Borders Decision making story cards in the guardianship and administration context would be beneficial for First Nations clients and both OPA and PT staff. From experience the use of Blurred Borders tools has also been of benefit to non First Nations clients.
There is a need for staff to focus on developing effective communication with clients, to enhance their understanding of OPA and PT processes and associated decisions including, for example: a) Identifying communication barriers for both the OPA and/or PT staff member and the client¹³ using the client’s preferred communication method, including any alternative communication aids (such as Legal Aid WA’s Blurred Borders Decision Making Story Cards¹⁴); and b) Seeking the support of a Disability Advocate or other appropriate third party to assist in reducing barriers to communication with the client.
In relation to the latter, we are aware that a Communication Partner Program was established under CLMI to support individuals where capacity concerns have been raised to communicate with the Criminal Courts and engage in the legal process. We suggest that a similar model could be explored to help clients engaging with SAT and the OPA and PT to help indentify

Legal Aid WA Submission 23

Legal Aid WA Submission

communication barriers and best practice approaches for individuals, with this information to be provided to any appointed decision-makers.

Legal Aid WA also suggests that more ongoing training opportunities for staff at organisations or agencies who are, or are likely to make applications for GAA orders may be beneficial, as this may result in a reduction in the number of applications being made due to an improved understanding of the role of the OPA and PT. This training could occur in partnership or alongside Disability Representative Organisations and Aboriginal Controlled Corporations.

Legal Aid WA Submission 24

Legal Aid WA Submission

Complaints and disputes

The complaints process in relation to the OPA and PT is convoluted and difficult for clients to navigate.
It is our view that the complaints process should be reviewed and streamlined, with a focus on accessibility and clear communication about the process.
In particular, Legal Aid WA has found that the requirement that the staff member(s) involved in the original decision subject to complaint also conduct an initial review of any complaint(s) can undermine the trust clients have in this process and can deter them from making a complaint.
It appears that the OPA has taken some steps to address accessability issues. For example, they recently created an Easy Read factsheet called ‘How to give feedback or make a complaint’. However, we observe that this document is not easily located on their website and is only available in English. Further, it does not address the ongoing accessibility issues regarding the complaints process.
Legal Aid WA supports consideration of alternative dispute resolution processes where a dispute arises about a decision the OPA or PT proposes to make or has made, and cannot be resolved between the client, OPA and/or the PT, and potentially interested third parties (such as family members). This mechanism may also assist with ensuring that client’s wishes and preferences are being appropriately heard via an independent and transparent process.
We support clients being referred to a legal service for legal advice and assistance.

Legal Aid WA Submission 25

Accessibility

81 The OPA and PT continue to make accessibility improvements to their services and information about them, including offering multiple options for clients to engage with them and upgrading their websites.

82 However, for some clients with disability and/or literacy barriers, the OPA and PT remains inaccessible without additional tailored supports for them, for example from a legal representative or Disability Advocate.

83 Legal Aid WA has a protocol with the SAT enabling it to refer clients to Legal Aid WA for legal advice and assistance. We strongly support the use of this protocol. We suggest that the OPA and PT explore the use of a similar protocol.

84 After the formal appointment of a Guardian or Trustee Manager, our clients and some staff have consistently reported difficulties contacting the OPA and PT when they need to speak to someone over the phone, including accessing information or documents, or when time sensitive decisions need to be made.

85 Legal Aid WA staff have also experienced varying levels of responsiveness to official communications to the OPA and/or PT.

86 We acknowledge that some OPA Guardians and PT Trustee Managers, particularly at a senior level, are very proactive in contacting their client’s lawyer to seek assistance for them and replying to requests from the lawyer. However, at times, it seems that workload issues can impact on the timeliness of responses.

87 In some cases, this has impacted on our ability to assist clients in circumstances including but not limited to:

a) Being unable to make bail applications in Criminal Court proceedings to seek the release of a client on remand as the Guardian has not provided consent about where it is proposed that the client live, or failed to provide

an address, meaning vulnerable clients remain in custody for extended periods; and

b) Missing statutory limitation periods.

CASE STUDY 5

Client B had a diagnosed acquired brain injury and an OPA Guardian.

Client B was in Australia under a visa, which was cancelled.

Due to Client B’s disability, they could not complete and submit the required documentation to appeal this decision themselves, and this was the responsibility of the Guardian.

Client B presented to our Federal Court Self-Representation Service seeking assistance after it came to light that the Guardian had not applied for a merits review of a decision to cancel their visa within the required legislative timeframe.

Unfortunately, due to the statutory limitation the deadline could not be extended and Client B missed the opportunity to have their matter reviewed by the then Administrative Appeals Tribunal.

Conclusion

88 The OPA and the PT perform vital functions assisting the most disadvantaged and vulnerable in the Western Australian community. It is crucial that these organisations are sufficiently resourced and supported to perform these functions to an optimal level.

89 The focus should be on collaboration between agencies and improved understanding of all agencies that interact with the guardianship and administration systems of the roles and responsibilities of each other to develop a more integrated response to the needs and systems challenges of clients with disability.

Legal Aid WA Submission

Legal Aid WA Submission 29

Guardianship and Administration Act 1990 (WA)

Legal Aid Commission of WA Submission

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Acknowledgement to Country

We acknowledge the traditional custodians and owners of the lands, waterways and seas on which Australians live and work.

We also pay our respects to all members of First Nations communities and their cultures, and to their Elders past and present.

Terminology

1 Disability

The use of the term disability in these submissions follows the definition in the UN Convention on the Rights of Persons with Disabilities (CRPD).

Person-first language (people with disability) and identity-first language (disabled people) are both used in Australia.

These submissions use person-first language when referring to people with disability.

We acknowledge people’s personal preferences and the individual’s right to choose how their identity and experiences are described. The use of person-first language in these submissions is not intended to diminish this.

2 First Nations

In this report, the terms First Nations people and Aboriginal and Torres Strait Islander peoples are used interchangeably.

Introduction

The Legal Aid Commission of Western Australia (Legal Aid WA) is an independent statutory entity set up under the Legal Aid Commission Act 1976 (WA).

We are committed to achieving equitable access to justice to support a fair and safe community for all Western Australians.

Many of Legal Aid WA’s clients face barriers accessing justice solutions, and may need extensive and intensive assistance to address their legal issues, which regularly intersecy with non-legal, socio-economic needs.

People with disability are a priority client group, as they may require additional support accessing justice and navigating legal systems, and as at 5 June 2025:

39% of our clients identified as a person with disability; and
47% of our services were for clients with disability.

In recognition of this, in December 2022, Legal Aid WA made its Disability Access and Inclusion Plan 2022 – 2027 (DAIP) outlining our disability related objectives and key strategies, including making law reform submissions to promote the rights and interests of people with disability.

These submissions relate to the review of the Guardianship and Administration Act 1990 (WA) (the Act) and respond to the Law Reform Commission of Western Australia’s (LRCWA) Discussion Papers Volumes 1 and 21.

Legal Aid WA provides legal services to many clients who are or have been subject to guardianship and administration proceedings in the State Administrative Tribunal (SAT), and our Civil Division advises and represents clients in guardianship and administration proceedings in the SAT.

In the financial year ending 30 June 2024, our Civil Division provided 405 legal services relating to guardianship and administration matters. To date, for the financial year ending 30 June 2025, they have delivered 378 services.

It is important that these clients have, or continue to have, access to legal advice and where appropriate, representation.

1 No submissions have been made in response to Chapters 4 to 9, and 12 of the Law Reform Commission of Western Australia’s Discussion Paper Volume 2.

Discussion Paper Volume 1

Language in the Discussion Paper

What definition of disability, if any, should we adopt in future publications?

The CRPD definition of ‘disability’ should be used, which focuses on disability as an interaction between individuals and societal barriers. Article 1 of the CRPD defines disability as:

‘… long-term physical, mental, intellectual, or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’

What language should we use in future publications to refer to people with disability?

The language should be person-first language, for example, ‘person with disability’.

Chapter 3

Should we use the social or human rights models of disability in the LRCWA review? If so, which model and why?

Human dignity should be at the centre of any model the LRCWA uses during its review.

The social model of disability is more broadly accepted and understood. However, many intersectional groups may experience other barriers unique to their communities, for example First Nations people with disability, that may not fit into the social model of disability.

The human rights model positively goes beyond the social model of disability and should be used by the LRCWA because it focuses on removing all barriers and promoting inclusion, autonomy, and equality.

Are there different contemporary challenges, relating to the Act’s current operation (in relation to particular persons or groups) or generally, than those discussed in Chapter 3 that should be considered as part of the LRCWA review?

The challenges identified in Discussion Paper Volume 1, Chapter 3 align with the barriers our clients experience, particularly for Aboriginal and Torres Strait Islander people and older people.

The LRCWA’s review should consider the diverse needs of these individuals and those from other communities, including people from culturally and linguistically diverse (CALD) backgrounds and the LGBTQIA+ community, and ensure access and engagement with services that intersect with the Act, particularly in the context of the National Disability Insurance Scheme (NDIS) and aged care.

Legal Aid WA suggests that the LRCWA should also look at the increased use of the Act in medical settings, particularly hospitals and aged care. Many of our clients become subject to SAT applications by social workers, often under the direction of medical professionals, to remove clients from hospital beds or action treatments. This usually occurs when clients are at their most vulnerable and has significant long-term impact on these individuals and their families.

Chapter 4

Do you have any views on the proposed guiding principles for the LRCWA review that you would like to share?

Legal Aid WA supports the guiding principles identified in Discussion Paper Volume 1, Chapter 4 of dignity, autonomy, equality, lived experience, central concepts, and safeguards.

The LRCWA review should adopt the additional principles of respecting human rights, cultural competence and respect for diversity, which are particularly important given the impact of this Act on First Nations and CALD communities.

Chapter 5

Are the key themes we have identified in Chapter 5 the themes we should consider when we review the language used in the Act? Are there any other considerations that are relevant to the language used in the Act? If so, what are they?

The key themes identified in Discussion Paper Volume 1, Chapter 5 are appropriate to consider when reviewing the language used in the Act.

Legal processes and legislative documents are often difficult to access and understand by lay-people. We agree that modernising the language of the Act to make it more accessible to the people affected by the Act.

Given the barriers that people with disability often experience, key consideration should be given to plain English, clarity, respect, and inclusivity, with a focus on using language that empowers individuals and reflects their agency.

In particular, the LRCWA should review the terminology used in the ACT, including the name of people appointed to make decisions for others and the name of the Act.

We recognise the advantage of retaining the existing terms in the Act that are long-standing and well-established for lawyers and people working in the justice system, providing familiarity and continuity.

However, these terms are not accessible or easily understood by the broader Western Australian community, particularly those that the Act most affects.

Many of our clients appear to view the term ‘guardian’ as paternalistic, and some find it offensive. For example, commenting that, ‘I don’t need a guardian, I’m an adult’. Clients also often appear confused by the term, particularly when SAT guardianship orders are limited to certain functions, and do not understand what a guardian can and cannot do.

Legal Aid WA supports the view of the Australian Law Reform Commission and the Disability Royal Commission that the term ‘representative’ should be considered, as this suggests their role is to support and represent the will, preferences, and rights of a person who needs decision-making support.

In the alternative to term ‘representative’, we suggest several alternatives that could be used that are neutral and unoffensive such as:

Decision maker
Substitute decision maker
SAT appointed decision maker
Financial decision maker
Lifestyle decision maker
Personal decision maker

Should the Act retain the terms guardianship order and administration order? If not, how should the Act describe orders made by SAT to appoint a decision-maker for a represented person?

If the terms ‘guardian’ and ‘administrator’ are changed, the names of guardianship and administration orders should change too. Similarly, these terms are not accessible nor easily understood by those that these orders most affects.

The terms ‘guardianship order’ and ‘administration order’ could be changed to one of the following for greater clarity, accessibility, and inclusion:

Representation order
Decision-making order
Substitute decision making order
Financial decision making order
Lifestyle decision making order
Personal decision making order

Should the title of the Act be changed? If so, why? If so, what should be the title of the Act?

The name of the Act should be changed if the terms guardian and administrator and the orders made by the SAT change. Some options are:

The Representation Act
The Decision-Making Support Act
The Decision-Making Act
Substituted Decision-Making Act
State Administrative Tribunal (Representation) Act
State Administrative Tribunal (Substituted Decision Making) Act

Should the Act retain the term mental disability? If not, what alternative term should be used? If the term mental disability or a different term is used in the Act, how should it be defined?

As identified in Discussion Paper Volume 1, Chapter 5, the term ‘mental disability’ is problematic.

We suggest that the new Act replace this term with ‘a condition that significantly impairs decision-making ability.’

However, whatever term is used should be consistently applied throughout the Act and should remain broad and not prescribed.

Should the term advocate be defined in the Act? If so, how should it be defined?

The new Act should clearly define the term ‘advocate’.

The word ‘advocate’ is difficult to define because it can be used as a noun or a verb, which have different meanings. There are also multiple people who work alongside or with people affected by the Act who are described as advocates, for example legal advocates and disability advocates.

The new Act should define a ‘legal advocate’ (noun) as a person or organisation that works to support the legal rights and interests of someone they represent. There should be a separate definition for non-legal advocates like disability advocates.

Should the term family be defined in the Act? If so, how should it be defined?

The use of the term ‘family’ in the Act is problematic because it:

Does not consider different cultural perspectives of what and who constitutes a family;
Assumes that all family relationships are cohesive and harmonious; and
Risks the privacy of persons subject to SAT proceedings by informing family members from whom they may be estranged.

We suggest that the term ‘family’ should not be defined in the new Act, because this may lead to prioritising the involvement of nuclear family members and does not allow flexibility and cultural sensitivity.

Instead, the new Act should give SAT the flexibility to include individuals in proceedings or orders who are important in the redacted life. References to ‘family’ should be replaced with references to individuals with close relationships who provide regular support or have a genuine interest in the welfare and interests of an individual.

Should the term sufficient interest replace the term proper interest in the Act? If so, should the Act define the term sufficient interest, and how should it be defined?

The new Act should replace ‘proper interest’ with references to individuals with close relationships who provide regular support or have a genuine interest in the welfare and interests of an individual.

Are there any other issues related to the language in the Act that you would like to share?

The language used in the new Act should always respect the personhood of individuals, avoid stigmatising language, and support individual empowerment.

Chapter 6

Should the Act retain the presumption of capacity in its current form? Why or why not?

We agree with the recommendations of the Disability Royal Commission that the new Act should retain the presumption of capacity, as it aligns with human rights principles, making sure individuals are treated as capable unless proven otherwise.

Should the Act retain the ‘best interests’ principle? Why or why not?

In our view the best interests of a person and their rights, will and preferences are not mutually exclusive.

We suggest that the new Act should retain the ‘best interests’ principle, but amend it to focus on redacted

The Act applies when an individual has a deficit in their decision-making ability. The wills and preferences of an individual may have to be balanced against their best interests, which may have to take precedence over their wills and preferences if there is a significant risk of harm to the individual.

The new Act could also include a list of additional considerations for SAT to assist them in determining redacted wills and preferences cannot be followed, which could include consideration of their wishes.

For example:

When determining whether it is necessary for SAT to make orders, the primary considerations are -

a) The redacted references; and
b) The risk of significant harm to the individual or others2; and
c) The redacted

In applying these, SAT is to give greater weight to the second and third primary considerations.
If SAT determines that there is a risk of significant harm or the wishes of the individual are impractical, SAT must have regard to the redacted when making any orders.
Additional considerations when determining what is in a person’s best interests are -

a) The redacted
b) Preservation of rights and dignity;
c) Provision of appropriate care and support;
d) Promotion of personal and social wellbeing;
e) Consistency with known values and beliefs;
f) Least restrictive alternative;

2 redacted, which would need to include physical, psychological, or financial harm.

g) Supporting ongoing positive relationships with family and trusted others;
h) Medical, psychological, or allied health recommendations; and
i) The consequences of inaction or delay.

We suggest that a similar consideration could apply to people who are appointed to make decisions for an individual, with further legislative guidance about communicating with and understanding what their wills and preferences are. We have expanded on this further in response to Discussion Paper Volume 1, Question 31.

Should the Act retain the least restrictive principle in its current form? Why or why not?

The least restrictive principle should remain to ensure that interventions are proportionate and respect personal autonomy.

The least restrictive principle ensures that guardianship and administration orders are used only as a last resort.

Should the Act retain the views and wishes principle in its current form? Why or why not?

Many of our clients express that they do not consider that their views and wishes have been sought or heard.

It is important that the views and wishes principle remains, with a clearer framework to determine and prioritise the individual’s expressed wishes, as addressed above for question 16.

There should be some mechanism for clients to obtain legal assistance or other support to ensure this principle is complied with, including a process for holding the decision-maker accountable, and there has been genuine attempts to determine redacted, including using alternative communication means.

Should there be a single statement of principles which applies to all decision-makers under the Act?

Yes, a single set of principles should apply, ensuring consistency across all decision-makers and promoting autonomy, dignity, and human rights.

Should other principles be included in the Act? If so, what principles should the Act include?

Principles around accountability, cultural respect, and support for redacted decision-making could be included.

Should the Act include an objects provision? If so, how should it be framed?

We suggest that the Act should include an objects provision focusing on promoting autonomy, safeguarding rights, and empowering individuals while supporting people who may experience barriers exercising their independent decision-making.

redacted

administration law and should be adopted for the new Act.

The current Act uses a ra redacted

The use of different and inconsistent phrases in the current Act is confusing, and unhelpful. For example, section 43(b)(iii) of the Act which provides SAT may declare a person needs a guardian if they are satisfied that, amongst other things, they are:

‘in need of oversight, care or control in the interests of his own health and safety or for the protection of others.’

This section of the Act has been the subject of varying judicial interpretation and causes confusion.

Should the Act define the term it uses to refer to decisional capacity? If so, how should the term be defined?

Decision-making ability should adopt the definition proposed by the Disability Royal Commission:

‘The ability of a person to make a particular decision with the provision of relevant and appropriate support at a time when a decision needs to be made.’

Should the Act retain the requirement of a ‘mental disability’ to make an administration order? If the requirement of a ‘mental disability’ is retained, should it also apply to a guardianship order?

The new Act should remove the requirement for a person to have a ‘mental disability’ and instead assess an redacted decision-making ability when determining if an administration order needs to be made.

Should the Act prescribe factors that are relevant or irrelevant to assessing decisional capacity? If so, what factors should be included or excluded?

The new Act should include factors relevant to assessing decision-making ability. The considerations used in the Victorian Act3 redacted These are:

a) To understand the information relevant to the decision and the effect of the decision; and
b) To retain that information to the extent necessary to make the decision; and
c) To use or weigh that information as part of the process of making the decision; and
d) redacted as to the decision in some way, including by speech, gesture or other means.

Are there other laws in Western Australia which interact with the Act and which we should consider in the LRCWA review? If so, what are they and why?

The new Act should consider the following laws, as these intersect with guardianship and decision-making:

Aged Care Act 1997 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI)
Family Court Rules 2021 (WA)4
Mental Health Act 2014 (WA)

3 Guardianship and Administration Act 2019 (Vic). 4 Division 3 covers the appointment of a Case Guardian.

The relevant sections in CLMI are:

Supervised persons under Criminal Law (Mental Impairment) Act 2023

On receipt of notice under the Criminal Law (Mental Impairment) Act 2023 section 190, the Public Advocate must investigate whether the person the subject of the notice is in need of a guardian or an administrator and take any other action as the Public Advocate considers appropriate.

[Section 98 inserted: No. 10 of 2023 s. 346.]

Tribunal to notify Public Advocate of orders

(1) Within 2 working days after the Tribunal is notified, under section 48 or 204(4), of the making of a custody order, a community supervision order or an interim disposition, the Tribunal must notify the Public Advocate of that, and give them -

(a) the prescribed information; and
(b) any other information that the Tribunal and the Public Advocate agree, from time to time, is to be given under this section.

(2) As soon as practicable after exercising a power under section 61(1), 78(3) or 85 in respect of a supervised person, the Tribunal must give the Public Advocate any information within its possession that it considers the Public Advocate may need in order to carry out their functions under the Guardianship and Administration Act 1990 section 97(1)(a) to (e) or 98.

Are there any other issues associated with the concept of decisional capacity which we should consider in the LRCWA review?

The new Act should consider fluctuating capacity and how decisions can be supported or made when capacity changes over time.

Please refer to our submissions in relation to Discussion Paper Volume 1, Questions 16 and 18.

Chapter 8

Should the Act retain the ‘best interests’ standard for guardians and administrators? Why or why not?

Please refer to our submissions in relation to Discussion Paper Volume 1, Questions 16 and 18.

Should the wills and preferences standard be enacted? If so, what words or phrase should the Act use to express it?

Please refer to our submissions in relation to Discussion Paper Volume 1, Questions 16 and 18.

If the will and preferences standard is enacted, should the Act provide guidance on the meaning of the words used in the standard? If so, what guidance should the Act give?

The Act should provide guidance about the meaning of these words in standard, plain English.

If the will and preferences standard is enacted, should the Act provide guidance on how a represented person’s will and preferences can be ascertained? If so, what guidance should the Act give?

There should be a positive duty placed on the decision maker to determine wills and preference via communication and engagement with the represented person.

The new Act should provide guidance to decision-makers about communicating with and redacted, for example:

Identifying communication barriers for both the decision-maker and the represented person5, for example, language and cultural barriers;
Using redacted, including any alternative communication aids;
Utilising supported-decision making models and supported decision-making tools;
Seeking the support of a disability advocate to assist in reducing barriers to communication for the represented person; and
Engaging with third parties who know the represented person well (although this should not be the only approach used or as a substitute for engaging with the individual).

5 The Double Empathy Theory provides a model for understanding and approaching communication between people with different experiences of the world.

To ensure decision-makers are supported with this, further resourcing for training and other educational resources may be required.

Under CLMI, a Communication Partner Program was established to support individuals where capacity concerns have been raised to communicate with the Court and engage in the legal process. A similar model could be used to help SAT communicate with people the subject of applications and identify communication barriers and best practice approaches for individuals, with this information to also be provided to any appointed decision-makers and/ or potentially any informal supporters assisting the individual.

If the will and preferences standard is enacted but a represented person’s will and preferences cannot be ascertained, what standard of decision-making should a guardian or administrator use?

If the wishes of the represented person cannot be determined, the decision-maker should aim to make decisions that redacted overall well-being and are what the person would likely want, considering any previously known wishes.

If the will and preferences standard is enacted, should a guardian or administrator be able to depart from that standard? If so, what are the circumstances that would justify them doing so?

The will and preferences of the individual should be the starting point, but subject to:

Avoiding significant risk of harm to the person or others; and
When the individual wishes are impractical, for example, where they are not feasible due to external constraints like financial limitations or lack of available services.

Should a decision-making standard other than the best interests standard or the will and preferences standard be enacted? If so, why and how would that standard be expressed?

Please also refer to our submissions in relation to Discussion Paper Volume 1, Questions 16 and 18.

Please also refer to our submissions in relation to Discussion Paper Volume 1, Questions 16, 18 and 33.

Chapter 9

Should the Act formally recognise supported decision-making? Why or why not?

Legal Aid WA acknowledges that supported decision-making allows individuals to retain control over their decisions with appropriate support, fostering empowerment and self-determination.

However, there are different perspectives on whether supported decision-making should be formally recognised, which is reflected in the diverse views of the Legal Aid WA staff involved in consultation about these submissions.

One view is that the new Act should formally recognise supported decision-making, to empower individuals to exercise their decision-making with the help of supporters, for example, to assist the individual communicate with third parties (like financial institutions or agencies or organisations relating to aged care, medical care and the NDIS) to obtain information and express themselves. This third person, the supporter, redacted

When the Office of the Public Advocate (OPA) undertakes an investigation into whether orders are required and informal arrangements are not adequate, they could consider recommending formal supported decision-making orders where this would allow a person to continue exercising their own choices, making substituted decision-making orders unnecessary.

Please also refer to our submissions in response to Discussion Paper Volume 1, Question 31 about the CLMI Communication Partner Program and how this could be utilised within a formal supported decision-making model.

The alternate view is that if guardianship and administration orders are not needed, why should any other orders be made? This could be considered incompatible with the least restrictive principle.

For many of our clients, formal orders for supported decision-making unnecessarily restricts their choices and subjects their lives to judicial oversight. It could increase the range of people subject to SAT orders, where there may already be or could be an informal agreement within the community to support the needs of the person in question.

Further, orders for supported decision-making may restrict the freedom of the represented person to approach different individuals for different supports. For example, a person may want different individuals to assist them with different roles, like paying household bills, taking the person shopping, and socialising.

The person under a supported decision-making order may feel they cannot approach another person to help, or the order could lead the supported decision maker to unduly influence or isolate the represented person. It could also cause conflict within a families or support networks because they may not understand what this kind of SAT order means.

If a formal supported decision-making model is enacted, what should the model look like?

Ontario has a supported decision-making model that is worth considering.

Chapter 10

Should the Act prescribe factors for SAT to consider in determining the need for a guardian or administrator? If so, what factors should be included?

Yes, factors for SAT to consider should include the ability of the person:

To understand the information relevant to the decision and the effect of the decision; and
To retain that information to the extent necessary to make the decision; and
To use or weigh that information as part of the process of making the decision; and
redacted to the decision in some way, including by speech, gesture or other means.

The following considerations may also be relevant:

The presence of support networks and whether supported decision-making is feasible;
redactedwell-being if a decision-maker is not appointed; and
Previous decisions and patterns of decision-making behaviour.

Please also refer to our submissions in relation to Discussion Paper Volume 1, Questions 16, 18 and 33.

Should the criteria for appointing guardians and administrators be uniform?

It is important that the criteria for appointing guardians and administrators is uniform, with clear guidelines to ensure fairness and consistency, to avoid confusion. The ability of the person to make decisions redacted independently.

Please also refer to our submissions in relation to Discussion Paper Volume 1, Questions 16, 18, 33 and 37.

Are there any other issues associated with who may be appointed as a guardian or an administrator that we should consider in the LRCWA review?

There are no other issues we wish to raise.

Should the Act retain the Public Advocate as both guardian and administrator of last resort? Why or why not?

OPA should be guardian and administrator of last resort, subject to the wishes of the individual in question.

OPA provide an independent, impartial safeguard for individuals experiencing significant barriers exercising independent decision-making, ensuring there is a last-resort decision-maker available when no appropriate other support exists.

If not, should the Act state that the Public Advocate is the guardian of last resort, and the Public Trustee is the administrator of last resort?

Please refer to our submission in relation to Discussion Paper Volume 1, Question 40.

If not, who should the Act state is or are the guardian and administrator of last resort?

Please refer to our submission in relation to Discussion Paper Volume 1, Question 40.

Should the Act allow SAT to make emergency guardianship orders, as well as emergency administration orders?

SAT should be empowered to make emergency guardianship and administration orders in urgent situations, subject to significant safeguarding measures being in place.

If provision for emergency guardianship orders is enacted, what should be the criteria for making emergency orders?

Criteria for making emergency orders should include:

Immediate and significant redacted;
Immediate and significant risk of abuse, exploitation or neglect;
Inability to make urgent and significant decisions or lack of decision-making support; and
Absence of appropriate community supports or other advocates able to step in immediately.

Should the Act impose a time limit on emergency administration orders, or if they are permitted, emergency guardianship orders? If so, what should the time limit be?

An emergency order should have a shorter review date than other orders and be framed in the least restrictive terms possible, for example, if orders are only necessary for medical treatment.

Emergency orders should last no more than 6 months.

Should the Act retain plenary guardianship orders, and if so, in what circumstances should they be made? If not, why?

Yes, plenary guardianship orders should be retained but used only in extreme cases where the person is unable to make any decisions for themselves.

If the Act retains plenary guardianship orders, how should the Act describe a plenary guardian’s authority?

The plenary guardian’s authority should be redacted in the Act.

Should the inclusive list of a plenary guardian’s functions in s 45(2) of the Act be changed? If so, how?

The list and exclusions should remain.

What functions, if any, should be excluded from the scope of a plenary guardian’s authority?

The current functions and limitations should remain.

What, if any, issues related to limited guardians should we consider in the LRCWA review?

Legal Aid WA considers it important for the LRCWA to also consider the process for dispute resolution in relation to guardianship and administration orders, and greater use of processes like mediation or the obtaining directions from SAT in case of a dispute.

Should the Act provide that a guardian’s authority (like an administrator’s) automatically ceases on the death of a represented person?

The guardian and administrator should have authority to settle the affairs of the represented person such as funeral arrangements, unless the individual had an existing Will and Last Testament that outlined their wishes in this regard.

Should the Act explicitly provide that an administrator is entitled to access a represented person’s medical records and information?

Administrators should have the right to access medical records and information relevant to the financial decisions they are making for the represented person.

Should the Act explicitly provide that an administrator is entitled to access a represented person’s will?

Yes, an administrator should be entitled to access the Will and Last Testament of the represented person, especially if the administration involves managing their financial or property affairs.

What, if any, issues related to limited administrators should we consider in the LRCWA review?

There are no issues we wish to raise.

Should guardians be required to keep records and undergo audits? Why or why not? If so, what sort of records should the Act require a guardian to keep, who should conduct an audit, and when should an audit be conducted?

We do not consider this necessary. The administrative burden and cost of this are not justified. OPA already have a substantial workload and it is best to keep the requirements on private guardians simple, and this could lead to private guardians declining to be appointed on behalf of an individual or asking to be removed.

As long as the Public Advocate has investigatory powers to address any allegations of wrongdoing by a guardian the audit requirement is unnecessary.

Should additional oversight mechanisms be enacted? If so, what mechanisms should the Act include?

Please refer to our submission in relation to Discussion Paper Volume 1, Question 50.

Chapter 11

Are there issues in relation to the Public Advocate’s function to make applications for guardianship and administration orders and attend SAT hearings that we should consider in the LRCWA review? If so, what are they?

No.

Should the Public Guardianship Standards be enacted? If so, how should the Act do this?

There should be factors guiding the exercise of decision-making authority.

Should the power for the Public Advocate to investigate matters on their own motion be enacted? Why or why not?

OPA should have the power to investigate matters on their own motion.

OPA also needs to be able to receive notifications from the community and investigate whether a person needs a guardian or administrator. There needs to be a specific legislative power concerning this, which

would ensure independence and safeguards against neglect or abuse. This should also allow OPA to proactively identify issues without waiting for complaints or formal applications.

The criteria for community referral should be that there is evidence that an individual cannot exercise their decision-making independently.

Should the scope of matters the Public Advocate can investigate be amended in any way? If so, how?

The scope of matters OPA can investigate should be expanded to include:

Abuse, neglect, or exploitation of represented persons;
Breach of guardianship and administration duties;
Issues related to the effectiveness of supported decision-making.

Should additional powers be conferred on the Public Advocate to facilitate their investigatory function? If so, what powers should the Act confer?

Yes, additional powers should be conferred on OPA, including:

Right to access relevant documents and medical records of represented persons;
The ability to interview parties involved in guardianship and administration matters, including family members and care providers; and
Powers to initiate investigations based on evidence of potential misconduct, neglect, or exploitation, without needing prior complaints.

Should s 98(2) of the Act be amended to provide that the Public Advocate can investigate whether a person is in need of a guardian in addition to an administrator?

Yes. The Act should expand the functions of OPA to take referrals from organisations, as well as Courts and Tribunals, for investigation into the need for both guardianship and administration orders.

Should s 97(1)(d) of the Act be amended to require the Public Advocate to arrange legal representation for all people who are the subject of an application under the Act?

Legal Aid WA considers this should be a priority for the OPA. Arranging legal representation for people the subject of an application under the Act helps ensure they have an independent voice in the decision-making process and that their rights are protected, as well as making sure they receive advice and understand what the legal process is.

This cohort of clients are often very vulnerable, and the results of SAT proceedings can have serious and life changing consequences for them. Failure to provide legal advice and representation for these individuals may risk unfair treatment and rights infringements.

We observe that additional funding is needed in this space to ensure this can occur.

Should the function of the Public Advocate to provide information and advice be changed? If so, how?

The function of OPA to provide information and advice should be expanded to include:

Education on rights and processes for people with disabilities and their support networks.
Providing resources about supported decision-making.
Advising on alternatives to guardianship and encouraging less restrictive options.
Education for private guardians about their responsibilities and obligations, potentially before and after their appointment.

Should the Public Advocate’s function to promote public awareness and understanding through education be changed? If so, how?

Yes, redacted role in promoting public awareness and understanding should be strengthened. This could include:

Running educational campaigns on disability rights and guardianship processes, potentially in partnership or alongside Disability Representative Organisations and Aboriginal Controlled Corporations.

Offering training for service providers, families, and community groups to understand the rights of represented persons and the supported decision-making model.
Providing resources to promote inclusive practices in communities and workplaces, which are accessible and available in Easy Read formats.

Should the Act confer any additional functions on the Public Advocate? If so, what should those functions be?

Yes, the Act should confer additional functions on OPA, such as:

Investigating systemic issues in the guardianship and administration process.
Supporting the development of supported decision-making models and ensuring their integration into the system.
Acting as an advocate for legislative reforms related to the rights of people with disabilities and their decision-making processes.

Discussion Paper Volume 2

Chapter 2

Should EPAs and EPGs be consolidated into one instrument?

Western Australia should follow the lead of Victoria, Queensland, the Australian Capital Territory and Northern Territory to form one instrument that enables a person to appoint both substitute personal and financial decision-makers. This simplifies matters and reflects the diverse needs of someone experiencing barriers exercising independent decision-making. Ideally, a single enduring document should be adopted and recognised nationwide.

However, we do have some concerns that because a single document like this may contain a high level of personal information, including sensitive medical instructions, that may be unnecessarily disclosed to third parties such as banks that would not otherwise have access to this information.

redacted and dignity should be considered when considering this issue.

Should enduring instruments in Western Australia be provided for in a statute that is separate to guardianship and administration legislation?

No. There are advantages in having enduring instruments contained in one legal framework under SAT supervision, including individuals and community members only having to consult one piece of legislation.

Should the Act retain the terms EPA, EPG, enduring attorney, and enduring guardian?

We recognise the advantage of retaining the existing terms as they are long-standing and well-established for lawyers and people working in the justice system, providing familiarity and continuity. However, these terms are not accessible or easily understood by the public.

Simplifying the language would make these instruments more understandable and accessible to the public. Using the term ‘decision maker’ redacted should be considered.

To distinguish different types of decision-makers, the terms ‘financial decision-maker’, and ‘personal and health decision-maker’ could be used.

If the Act is amended to consolidate EPAs and EPGs into one instrument, what should this instrument be called?

We support redacted and support the New South Wales Law Reform C redacted submission to redacted enduring representative redacted decision-making power have mutually agreed to this.

(a) How should the person(s) appointed under the instrument be described?

The person redacted enduring decision maker.

Should the terms ‘full legal capacity’, legal capacity and similar terms be replaced with a single term?

Yes, the term ‘capacity’ is not well understood and should be replaced.

(a) If yes, what term should be used?

We suggest the terminology reflect a redacted bility redacted the term ‘decision-making ability’

Should the Act be amended to make the formal requirements and the content of EPAs and EPGs as consistent as possible?

Yes. There are many inconsistencies in the current Act, and this causes confusion. The requirements should be consistent.

Should the prescribed forms for enduring instruments be in the Act, the regulations or gazette?

The prescribed forms should be in the regulations as they are easier to amend and locate.

Should an EPA be executed as a deed?

Yes.

(a) If not, should the Act provide that an EPA is taken to be executed as a deed?

Please refer to our submission in relation to Discussion Paper Volume 2, Question 8.

Should the prescribed forms for an EPA and EPG include educational or guiding information for parties to the instrument?

Yes. We recommend an accessible booklet be provided which has educational and guiding information, as it is easier to amend. This will need to be made available in various languages and in an Easy Read form. The cultural accessibility of this booklet should also be considered, particularly for First Nations people.

(a) Alternatively, should a prescribed information booklet accompany the prescribed forms?

Please refer to our submission in relation to Discussion Paper Volume 2, Question 9.

Should the prescribed forms for making an EPA or EPG be changed in any way and if so, how?

It is important to consider the accessibility of these forms, including making sure that they are in plain English.

Should the Act enable another person to sign an EPA on an appointor’s behalf, at their direction?

Yes, subject to safeguards such as a written direction, the person signing not being the decision-maker and independent witnesses that the direction was freely given and understood.

(a) Should any qualifications be placed on who is eligible to sign an EPA or EPG on an appointor’s behalf?

Yes. It should not be the appointed decision-maker.

Should a person’s eligibility to be a witness to an EPA or EPG be limited to certain qualifications?

To provide further safeguards, one witness should be an authorised witness (a lawyer, doctor, Justice of the Peace, or Registrar) and the second witness must be at least 18 and not a party to the EPA or EPG.

This strikes the right balance between safeguarding the appointor and keeping the process accessible and affordable.

(a) If yes, what qualifications?

Please refer to our submission in relation to Discussion Paper Volume 2, Question 12.

(b) Should any qualification requirements apply to one or both witnesses to an EPA or EPG?

Please refer to our submission in relation to Discussion Paper Volume 2, Question 12.

Should any classes of people (e.g., a close relative of a party to the enduring instrument) be precluded from acting as a witness?

The witness should not be a party to the instrument.

Should a witness be required to take on a greater role when witnessing an appointor’s signature, such as certifying that the appointor had decisional capacity or had the meaning of the enduring instrument explained to them?

The authorised witness as proposed in our submission relating to Discussion Paper Volume 2, Question 12 should.

(a) If yes, what should the witness be required to assess and certify?

The authorised witness should be required to assess and certify that they explained the document to the appointor, and that they believe the appointor understands the powers granted under the document, when they take effect, and that the decision-maker must act in their best interests. Further, that the authorised witness believes that the appointor has decision-making capacity, and they are satisfied that there is no coercion or undue influence.

Should the Act require that both witnesses to an appointor’s signature be independent witnesses?

Please refer to our answer at Volume 2, Question 12.

Should the requirements for witnessing an appointor’s signature under the Act be changed in any other way?

Please refer to our submissions in relation to Discussion Paper Volume 2, Questions 12 and 13.

(a) If yes, how?

Please refer to our submissions in relation to Discussion Paper Volume 2, Questions 12 and 13.

Should an enduring attorney or an enduring guardian be informed of their functions and duties before they accept their appointment?

Yes.

(a) If so, how?

We refer to our submission in relation to Discussion Paper Volume 2, Question 9 and suggest a booklet is appropriate.

Should an enduring attorney or an enduring guardian be required to acknowledge that they have been informed of, and understand their functions and duties before they accept their appointment?

Yes, that they have read the booklet.

(a) If so, how?

Please refer to our submission in relation to Discussion Paper Volume 2, Question 17(a).

Should the Act be amended in any other way to promote the understanding of an enduring attorney’s duties before acceptance?

We suggest that the Act include a reference to a requirement that the booklet be given to the enduring attorney and an acknowledgement that they have read it.

Should the form for acceptance of appointment as an enduring guardian or enduring attorney be separate from the EPA or EPG form, or form part of the prescribed form?

It should part of the form, as this is simpler and clearer.

Should the Act require that an enduring attorney’s signature or an enduring guardian’s signature on the statement of acceptance be witnessed?

Yes, as this promotes accountability and a mechanism to confirm that the enduring attorney is aware of their functions and duties.

Should the witnessing requirements for an enduring attorney or enduring guardian’s acceptance be changed in any way?

Please refer to our submissions in relation to Discussion Paper Volume 2, Questions 12 and 13.

Should the matters which an enduring attorney is required to acknowledge when accepting their appointment be changed or expanded?

Please refer to our submissions in relation to Discussion Paper Volume 2, Questions 17 and 18.

(a) If yes, how?

Please refer to our submissions in relation to Discussion Paper Volume 2, Questions 17, 18 and 21.

Should the Act be amended to provide that an enduring attorney/enduring guardian’s acceptance of their appointment is only necessary for their appointment to be effective (rather than for the enduring instrument to be effective)?

Yes.

Should the process for an enduring guardian or enduring attorney to accept their appointment be changed in any other way?

Please refer to our submissions in relation to Discussion Paper Volume 2, Questions 17, 18, 19 and 21.

Should the number of people who can be appointed as enduring attorneys or enduring guardians under an EPA or EPG be changed?

There should be provision for an alternative decision-maker in the event of unavailability, incapacity, or death of the first decision-maker.

Should there be the same modes of decision-making (e.g., jointly or severally) available for two or more enduring guardians or two or more enduring attorneys?

If provision is made for more than one decision-maker, the appointor could specify the type of decisions each decision-maker can make and if more than one person is appointed to the same function, then the appointor can specify if decisions need to be made jointly or severally.

What should be the modes of decision-making for two or more enduring guardians or two or more enduring attorneys?

If jointly, all decision-makers must agree and act together.

If severally, each decision-maker can act independently of the others.

Should there be the same number of potential substitute appointees for EPAs and EPGs?

Yes.

What should be the number of potential substitute enduring attorneys and enduring guardians?

Two.

Should the Act state the circumstances in which a substitute appointed under an enduring instrument will be permitted to act?

Yes.

(a) If so, what should be the circumstances?

In circumstances of unavailability, incapacity, or death

Should the Act expressly provide that the Public Trustee or a private corporate trustee can be appointed as a person’s enduring attorney under an EPA?

Yes.

Should the Act allow for the appointment of the Public Advocate or a corporation as a person’s enduring guardian under an EPG?

Yes.

Should the Act impose qualifications and disqualifications on who may be appointed as an enduring attorney or enduring guardian under an enduring instrument?

Yes.

(a) If yes, what should those qualifications and disqualifications be?

The person should be over 18 and have legal capacity.

When someone signs to undertake the role of being an enduring guardian they should undertake that they have the capacity, understanding, and ability to performs the duties and functions of the role.

Should the Act’s provisions in relation to the commencement of an enduring attorney or an enduring guardian’s authority be amended in any way?

Yes.

(a) If so, how?

Either immediately or conditional upon losing capacity (as certified by a doctor).

Should an application to SAT be required before an enduring attorney can commence acting under a springing EPA?

No. The trigger should be the medical certification of incapacity.

Should the Act provide a default position if an appointor fails to specify when the powers under an EPA are to commence?

Please refer to our submission in relation to Discussion Paper Volume 2, Question 36.

(a) If yes, what should the default position be?

Please refer to our submission in relation to Discussion Paper Volume 2, Question 36.

Should the Act be amended to require an enduring guardian or an enduring attorney to notify any particular person or body before beginning to act under the enduring instrument?

Yes, or within 7 days if the enduring attorney has been required to act in urgent circumstances, for example, a medical emergency.

(a) If yes, who should they be required to notify, and in what circumstances?

OPA and the Public Trustee.

Should the Act empower appointees to nominate in an enduring instrument a person whom the appointee must notify when they commence to act?

Yes, but the requirement to inform OPA and the Public Trustee should be mandatory.

Should the Act be amended in any other way in relation to the commencement of an enduring attorney or enduring guardian’s authority under an enduring instrument?

No.

Chapter 3

Should the Act be amended to set out the functions of an enduring attorney under an EPA?

Yes.

(a) If yes, how should an enduring attorney’s functions be set out in the Act, and which functions should be included?

Financial, including gifts;
Healthcare;
Personal – living arrangements and personal care; and
Duty to act in best interests.

Should the Act continue to describe the functions of an enduring guardian by reference to a plenary guardian’s functions?

No.

(a) If no, how should the Act describe an enduring guardian’s functions, and which functions should be included?

It should depend on what powers are specified.

43 Should the Act be amended to include a list of prohibited functions that cannot be performed by an enduring attorney?

Yes.

44 Should the Act continue to describe the prohibitions on an enduring guardian by reference to a plenary guardian’s prohibited functions?

No.

(a) If no, what functions should the Act prohibit an enduring guardian from performing?

Changing will;
Voting;
Consenting to marriage or divorce;
Making decisions about children;
Overriding advance health directives; and
Delegating.

45 Should the Act be amended to state whether an enduring guardian or administrator can delegate their powers under an enduring instrument?

No.

(a) If yes, what should the provision allow?

Please see our submission in relation to Discussion Paper Volume 1, Question 45.

46 Should the Act provide a comprehensive list of the duties of an enduring attorney. Should the Act be amended to more clearly describe an enduring attorney’s duties and obligations?

Yes.

(a) If yes, what should they be?

Act in best interests;
Avoid conflicts of interest and not profit from the role;

Keep records;
Keep property separate;
Preserve the estate;
Respect the will and preferences of the individual;
Maintain confidentiality;
Act diligently and without delay; and
Cooperate with authorities.

47 Should the Act impose the same or similar duties on enduring attorneys and administrators?

Yes.

48 Should the Act be amended to impose the same decision-making standard on enduring attorneys and administrators?

Yes.

49 Should the offence in s 107 of the Act (failing to keep accurate records and accounts) be extended to all duties imposed under that section?

Yes, we consider this appropriate. However, instead of criminal offences there should be a civil remedy for breach of duties, such as applying to SAT to change or restrain the decision-maker.

Risk of criminal prosecution would discourage people from undertaking the decision-making role, when resources for public authorities are constrained.

Further, it is difficult for a decision-maker to be prosecuted because the standard for breach of duty is nebulous, making it difficult for police to decide when to prosecute and for courts to adjudicate.

However, the ordinary criminal law would still apply if a decision-maker acted dishonestly or fraudulently.

50 Should the fine payable for a breach of s 107 of the Act be increased?

No. The offence provision should be replaced with a civil remedy.

(a) If yes, what should be the maximum fine?

Please see our submissions in relation to Discussion Paper Volume 2, Questions 49 and 50.

51 Should the Act expressly set out an enduring attorney’s obligations with respect to conflict transactions?

Yes.

(a) If yes, how should the Act deal with conflict transactions?

Conflict transactions should not be done unless set out in an instrument or approved by SAT.

52 Should the Act be amended to provide that an enduring attorney is prohibited from making gifts?

Yes.

(a) If yes, should the Act specify exceptions to the prohibition?

Yes, unless reasonable gifts for customary occasions or the instrument authorises gifts or donations.

53 Should the Act be amended to incorporate any of the other specific provisions dealing with an enduring attorney’s duties that are in place in other jurisdictions?

As set out above.

54 Are there any other issues that the Commission should consider with respect to the duties of an enduring attorney?

No.

55 Should the Act be amended to change the duties of an enduring guardian?

As set out above for enduring attorney.

(a) If yes, what changes should be made to the duties of an enduring guardian?

56 Should there be statutory principles that enduring attorneys and enduring guardians are required to apply when making decisions?

Yes.

(a) If yes, what should be the statutory principles?

Best interests;
Respect for appointor’s autonomy;
Least restrictive appropriate alternative;
Promotion of well being and quality of life;
Transparency and accountability; and
Consultation.

57 Should the Act be amended to state whether or not an enduring guardian or enduring attorney is able to be remunerated for their work or reimbursed their expenses?

Yes.

(a) If so, what should the provision allow?

Reasonable reimbursement of expenses.

58 Should the Act be amended to -

(a) Entitle enduring guardians and enduring administrators to information to enable them to perform their duties?

Yes.

(b) Entitle an enduring guardian and/or administrator and/or SAT with the power to compel production of a will of a principal, to open the will and if the will is provided to SAT to provide the will in full or in part to an enduring guardian or enduring administrator?

Yes.

59 Should the Act be amended to provide enduring guardians and enduring administrators with protection for the exercise of their powers?

Yes.

(a) If yes, what are the conditions that should exist for the protection to arise?

Where the enduring guardians and administrators have acted in good faith and within their authority, with reasonable diligence and compliance with legal requirements.

(b) If yes, what protections should they and the relevant transactions receive?

Subject to the comments made in relation to Discussion Paper Volume 2, Question 59(a), transactions made by enduring guardians and administrators should be protected from being overturned and the decision-maker protected from civil action.

60 Should a person who deals with an enduring attorney or an enduring guardian, without knowing that the relevant enduring instrument is invalid, be protected from civil or criminal responsibility for their acts?

Yes, subject to the circumstances of this occurring.

(a) If yes, how?

If the enduring attorney or guardian has acted in good faith and without knowledge of invalidity, without reckless negligence, then they should not be liable in civil or criminal proceedings.

61 Should the Act expressly provide for how disagreements between enduring attorneys and enduring guardians should be dealt with?

Yes.

(a) If so, how?

Mediation or application to SAT.

62 Should the Act provide SAT with the power to suspend the operation of an EPA when an administration order is made or at any other time?

Yes

63 Should the Act be amended to empower SAT to revoke, vary or suspend an EPG when making a guardianship order?

Yes.

64 Should the Act be amended to adopt mutual recognition of enduring instruments made in other jurisdictions?

Yes.

(a) If mutual recognition provisions were enacted, what should be the criteria for mutual recognition?

The criteria should be that the document has been validly executed, the appointor had capacity and in force, which was documented, and the document is of equivalent legal effect.

SAT should oversight of this issue.

65 Should the Act be amended to introduce a register of enduring instruments?

Yes.

66 If a register is introduced, should registration of enduring instruments be mandatory or voluntary?

The new Act should require mandatory registration. Landgate could provide this function. Individuals should also be able to upload an EGP to redacted: s22, which could be accessed by medical providers if there is a dispute about who should be making medical decisions on behalf of a person with an EPG in place.

67 If a register of enduring instruments is introduced, who should be permitted to access the register and what other matters ought to be included in the register’s design?

The donor and the done should have access to the register, and OPA as part of their investigatory powers, or other interested party with a significant interest in the welfare of the donor, as ordered by SAT.

They should also be able to obtain a verified copy from Landgate upon request, the process and form of this needs to be digitally accessible.

68 Should the Act provide that an enduring instrument is automatically revoked in certain circumstances?

Yes.

(a) If so, what should those circumstances be?

Divorce or separation from decision-maker, death of appointor, loss of capacity of decision-maker (unless a substitute decision-maker can undertake their role under the instrument), or by SAT or court order.

69 Should the Act state whether multiple enduring instruments can co-exist?

Yes.

(a) If yes, how should they be prioritised?

The latest one should revoke the previous one, unless specified by the appointor and the instruments are not in conflict.

70 Should the Act enable an enduring guardian or attorney to resign whilst the appointor has capacity?

Yes.

(a) If yes, what process must an enduring guardian/enduring attorney follow to resign from their role?

The enduring guardian or attorney should resign in writing, with a notice period, and this should be registered if a system of registration is introduced.

71 Should the Act clarify whether an enduring guardian can resign from their role during a period of legal incapacity of the appointor?

If this occurs, the Act should provide for written notice to SAT, with a notice period, which is to be copied to OPA.

SAT would then need to accept the resignation.

72 Should the Act impose duties on an enduring attorney or enduring guardian at the end of their appointment?

Yes.

(a) If yes, what should those duties be?

The enduring attorney or guardian should notify third parties, including any mandatorily required parties, and any other parties specified in the document itself.

They should also be required to transfer documents to the new representative, for example, executor of redacted: s47F estate.

73 Should the Act be amended to exclude the application of the ademption rule to the disposal of property by enduring attorneys or administrators?

No submission is made on this matter.

(a) If yes, how?

Please see our submission in relation to Discussion Paper Volume 1, Question 73.

Chapter 10

150 Should the Act be amended to ensure that a person who is the subject of an application has unconditional access to documents filed in relation to the application?

The Act should be amended to ensure a person subject to an application has unconditional access to documents filed in relation to them.

Medical specialists or other people providing care (for example, social workers) should have the ability to request that a person subject to an application be given restricted access to documents, subject to specified criteria, with SAT to decide what access should be given and determine any disputes relating to this issue.

For example, a medical provider could inform SAT that they seek that documentation they are providing to SAT is given restricted access. Following this, SAT would inform the person subject to an application about the request for access to a document to be restricted. SAT could determine whether this request should be granted, and if so, the conditions for access to a document, if any.

(a) If no, should the circumstances in which SAT may restrict such a person’s access to documents be specified in the Act?

Please see our submission in relation to Discussion Paper Volume 2, Question 150.

151 Should the Act prevent parties other than the person who is the subject of proceedings from accessing information about a represented person, or a person for whom an application under the Act is made?

Yes, because there may be third parties who do not have a proper interest or bona fide reasons for accessing confidential information. For example, third parties may potentially seek access to documents to use them for other purposes, such as Family Court proceedings.

(a) If yes, how?

Third parties should need an order from SAT for the information to be released.

152 How, if at all, should s 112 of the Act be amended to clarify the subsection under which an application to SAT for access to documents is made?

In s112(2) of the Act (or equivalent in the new Act), other parties should be required to obtain a SAT order to obtain the documents and information.

153 Is there a better alternative test for determining access to documents other than a person’s best interests?

The test should be that the basis for access to a document is credible, relevant, significant to an issue in the proceedings, and in the best interests of the person the subject of the application.

154 If the Act is amended to include formalised supported decision-making, what access should a support person be given to documents held by SAT about a person who is the subject of an application?

Please refer to our submission in relation to Discussion Paper Volume 2, Question 153.

155 Should a represented person be permitted to speak publicly about their personal experiences of guardianship and administration law without authorisation from SAT?

Yes. It is disempowering not being able to speak about experiences of guardianship and administration.

156 Should the default position in the Act be to prohibit the disclosure of personal information about a person who is the subject of proceedings under the Act?

Yes.

(a) If not, what circumstances justify the disclosure of such material?

Please see our submission in relation to Discussion Paper Volume 2, Question 156.

157 Should the default position in the Act be for proceedings to be conducted in private?

Yes. There are sensitive matters that need to be discussed during proceedings under the Act that should not be the subject of public scrutiny. SAT is a protective jurisdiction.

158 Are there other values or principles we should consider in addition to privacy and transparency when we review the confidentiality requirements in the Act?

No.

159 Should the default position in the Act be to prohibit the publication of material that identifies parties?

Yes.

(a) If no, what circumstances would justify a non-publication order?

Please see our submission in relation to Discussion Paper Volume 2, Question 159.

160 Do the confidentiality provisions in the Act provide an appropriate balance between the privacy of a represented person and the promotion of the principle of transparency?

Yes.

Chapter 11

161 What, if any, factors should the Act require SAT to consider in determining the duration of a guardianship or administration order?

When considering the duration of an order, SAT should be required to consider if the decision-making capacity of the person who will be subject to the order is likely to change.

Legal Aid WA has observed a tendency of SAT to make longer orders (5 years) to prevent any disruption to the represented person or to cause them stress. This requires the represented person to obtain legal advice to establish their right of review.

The Tasmanian legislation, the Guardianship and Administration Act 1995 (WA), provides useful criteria for determining the length of the order, namely, likelihood of improvement, prospect of changes of circumstances would mitigate the need for a guardian, and what is least restrictive of the

The duration of the order should be determined after reviewing the statutory criteria.

Please see our submission in relation to Discussion Paper Volume 2, Question 161.

163 Should the Act provide that guardianship and administration orders expire after a set period of time?

No, SAT should be required to revoke the order because this means that SAT have turned their mind to the appropriateness of the continuation of the order.

(a) Why or why not? If yes, what should be the period of time?

See above.

164 What, if any, factors should the Act require SAT to consider in a periodic review of an order under s 84 of the Act?

Please see our comments about the Tasmanian legislation in response to Discussion Paper Volume 2, Question 161.

165 Should the Act enable SAT to conduct a review of a guardianship or administration order on its own initiative?

Yes.

(a) Why or why not?

SAT is a protective jurisdiction, and the represented person may not be in a position to bring an application for review where there are circumstances of neglect or other reason.

166 How, if at all, should s 85(1)(c) of the Act, which sets out the circumstances in which a review of a guardianship or administration order is mandatory, be amended?

No submission is made on this matter.

167 Should the Act maintain the requirement for leave to be obtained before any person can apply for a requested review of orders?

No submission is made on this matter.

(a) If yes, should the criteria for granting leave be amended?

No submission is made on this matter.

168 How, if at all, should the definition of ‘determination’ as it applies to a review under s 17A of the Act be amended?

No submission is made on this matter.

169 Should s 17A of the Act be amended to allow for a s 17A review to be heard by SAT constituted other than by a Full Tribunal?

No submission is made on this matter.

170 Should s 17A(2) of the Act be amended to reflect the 2015 Statutory Review’s recommendation that a single judicial member of SAT, instead of the Full Tribunal, should determine whether there is good reason for making a request for a review out of time?

No submission is made on this matter.

171 Should the Act be amended to clarify the difference between the different types of review hearings?

No submission is made on this matter.

172 How, if at all, should the rights of appeal under the Act be amended?

Where there is a review or an appeal, all the parties to an application should not automatically get the documents that were used in the application, including confidential medical reports.

This information could potentially be provided to third parties who do not have a relevant and genuine interest in the wellbeing of the person in question and could be inappropriately used in other proceedings such as Family Court proceedings.

173 Should the Act be amended to state that the appeal provisions in the Act oust the appeal provisions in the SAT Act?

No submission is made on this matter.

LEGAL AID

Esa ER N | AIU SO RIA LITA

Letter from the Committee to Legal Aid WA dated 8 April 2026. ↩
Legal Aid WA provided a submission with respect to this review, which we can provide to the Committee upon request. ↩
See the Council of Attorneys-General (2019) National Strategic Framework for Legal Assistance, page 6 and the Government of Western Australia, Department of Justice, Legal Assistance Branch, Legal Assistance Services Strategy and Implementation Plan 2024 – 2030. ↩
ACIL Allen (November 2022) Assessment of the Current Legal Needs in Western Australia: Final Report, page 122. ↩
Australian Bureau of Statistics, Disability, Ageing and Carers, Australia: Summary of Findings (2022). ↩
See for example: Slavny-Cross et. al (2023) Are autistic people disadvantaged by the criminal justice system? A case comparison, Autism (27(5) 1438 – 1448; Crane et. al (2017) Legal professionals’ knowledge and experience of autistic adults in the family justice system; Journal of Social Welfare and Family Law 40(1) 78 – 97; Crane et. al (2016) Experiences of autism spectrum disorder and policing in England and Wales: Surveying police and the autism community, Journal of Autism and Developmental Disorders 46(6), 2028 – 2041; Senate Select Committee on Autism, Services, support and life outcomes for autistic Australians Report (2022) page 346. ↩
Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability, Criminal justice and people with disability (2023), page 3. ↩
Ibid, pages 207 to 226. ↩
As per section 29 of the National Disability Insurance Scheme Act 2013 (Cth). ↩
Office of the Public Advocate Annual Report 2024/25, page 32. ↩
Office of the Public Advocate Annual Report 2024/25, page 32. ↩
Ibid. ↩
The Double Empathy Theory provides a model for understanding and approaching communication between people with difference experiences of the world. ↩
Additional information about Legal Aid WA’s Blurred Borders Decision Making Story Cards can be accessed via our website here. ↩

Inquiry into Guardianship and Administration in Western Australia

Inquiry into Guardianship and Administration in Western Australia

Acknowledgement of Country

Terminology

Disability

First Nations

Introduction

Executive Summary

Legal Aid WA

Legal Aid WA Clients

Legal Aid WA Services for GAA Matters

Civil Law Services

CASE STUDY 1

Legal Aid WA’s NDIS services

NDIS Challenges

Criminal offending behaviour

CASE STUDY 2

Aged Care

CASE STUDY 3

Clients transitioning from the care of Communities

Clients in custody

CASE STUDY 4

Organisational capability and culture

Complaints and disputes

Accessibility

CASE STUDY 5

Conclusion

Acknowledgement to Country

Terminology

1 Disability

2 First Nations

Introduction

Discussion Paper Volume 1

Language in the Discussion Paper

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Chapter 8

Chapter 9

Chapter 10

Chapter 11

Discussion Paper Volume 2

Chapter 2

Chapter 3

Chapter 10

Chapter 11

Footnotes