This Act gives the State Administrative Tribunal power to appoint guardians and administrators, recognise enduring powers of attorney and guardianship, and record advance health directives for adults with a mental disability. It sets who may make personal, health and financial decisions, the limits on those powers (including medical research, sterilisation and abortion), formal witnessing requirements, duties and penalties, and routes for review and appeal. It matters because it determines who legally acts for people lacking decision‑making capacity and how costs, duties and oversight are allocated.
The Guardianship and Administration Act 1990 (WA) (the Act) establishes a protective jurisdiction centred on the State Administrative Tribunal (SAT) to appoint guardians and administrators for adults who lack capacity, while embedding principles of least restrictive intervention and best interests (s.4). At its core, the Act declares when a person "is in need of a guardian" (s.43(1)) or "in need of an administrator of his estate" (s.64(1)), requiring SAT satisfaction on specific incapacity criteria linked to mental disability (defined in s.3(1) to include intellectual disability, psychiatric condition, acquired brain injury and dementia). A guardianship order may appoint a plenary guardian (with full parental-like powers under s.45, drawn from the Family Court Act 1997) or limited guardian (s.46), while administration orders confer plenary or specific functions listed in Sch.2 Pt.A (s.71).
The Act facilitates substitute decision-making through enduring mechanisms. Part 9 allows creation of enduring powers of attorney that survive incapacity (s.105), with formal execution requirements (s.104, Sch.3 Form 1) and obligations on donees (s.107). Part 9A mirrors this for enduring powers of guardianship (ss.110B-110I), operable when the appointor cannot make reasonable judgments about personal matters (s.110F). Advance health directives under Part 9B enable binding treatment decisions (s.110P), operating when the maker lacks capacity (s.110S) subject to anticipatory change-of-mind safeguards (s.110S(3)-(5)).
For patients under legal incapacity, Part 9C identifies a hierarchy of "persons responsible" (s.110ZD(3)) who may make treatment decisions, while Part 9D prioritises advance directives, enduring guardians, guardians, and persons responsible (s.110ZJ), with specific urgent treatment exceptions (s.110ZI) and abortion-specific offences (s.110ZLB) requiring SAT consent via Full Tribunal (s.110ZNA, s.110ZND). Part 9E, inserted in 2020, regulates medical research on "research candidates" unable to consent. Research decisions require HREC approval, independent medical practitioner assessments of best interests (s.110ZU), likelihood of regaining capacity (s.110ZV), and risks (s.110ZW). Urgent research without consent is permitted in narrow circumstances (s.110ZS), but sterilisation, electroconvulsive therapy, and abortion are prohibited for research purposes (s.110ZT).
Current sections
Direct links to the current provisions in Guardianship and Administration Act 1990.
36
Part 1
Preliminary
Part 1 — Preliminary
Short title 2
Commencement 2
Terms used 2
3AA. Term used: medical research 7
3A. Inherent jurisdiction of Supreme Court not affected 9
3B. Act does not authorise decisions about voluntary assisted dying 9
Part 2
Principles to be observed by State Administrative Tribunal
Part 2 — Principles to be observed by State Administrative Tribunal
Principles stated 10
Part 3
The State Administrative Tribunal
Part 3 — The State Administrative Tribunal
Div 1
Functions and proceedings
Division 1 — Functions and proceedings
Jurisdiction of State Administrative Tribunal 12
Costs 13
Further provisions as to proceedings 14
Div 2A
Review of determination where State Administrative Tribunal comprises one member
Division 2A — Review of determination where State Administrative Tribunal comprises one member
17A. Review 14
17B. Executive officer to give notice of review 15
Div 3
Appeals
Division 3 — Appeals
Subdiv 1
Preliminary
Subdivision 1 — Preliminary
Term used: Court 16
18A. Application of Division 16
Subdiv 2
Appeals by leave from determinations of State Administrative Tribunal generally
Subdivision 2 — Appeals by leave from determinations of State Administrative Tribunal generally
Right of appeal by leave 17
Application for leave 17
Grounds 18
Grant or refusal of leave 18
Ancillary orders and directions 19
Reference of application to Court 19
Application and appeal may be heard together 19
Subdiv 3
Appeals from decisions relating to consent to performance of abortion
Subdivision 3 — Appeals from decisions relating to consent to performance of abortion
25A. Appeal from Tribunal’s decision relating to consent to performance of abortion 20
25B. Grounds 21
25C. Status of State Administrative Tribunal’s decision pending disposal of appeal 21
Subdiv 4
General provisions about appeals
Subdivision 4 — General provisions about appeals
Notice to other parties 21
Amendment of grounds of appeal 22
Status of State Administrative Tribunal’s determination pending disposal of appeal 22
Nature of appeal, and evidence 23
Powers of Court 23
Want of form 24
Notification of result of appeal to executive officer 25
Discontinuance of appeal 25
Dismissal for want of prosecution 25
Application for reinstatement of appeal 26
Time may be extended or shortened 27
Enforcement of order for costs 27
Part 4
Applications for guardianship and administration orders
Part 4 — Applications for guardianship and administration orders
Application 28
Notice of hearing 28
Part 5
Guardianship
Part 5 — Guardianship
Division 1 — Appointment of guardian
Making of guardianship order 31
Who may be appointed guardian 33
44A. Interstate arrangements for guardianship orders 34
Div 2
Functions of guardians
Division 2 — Functions of guardians
Authority of plenary guardian 35
Authority of limited guardian 37
Guardian may apply for directions 38
Guardian may execute documents etc. 38
Guardian may obtain warrant to enter 39
Effect of actions etc. of guardian 39
Guardian to act in best interests of represented person 40
Guardians to act unanimously 41
Death of joint guardian 41
Alternate guardian to take over on death of guardian 41
55A. Priority of guardianship order 42
Division 3 — Limitations on sterilisation of persons under guardianship or where application for guardianship made
Terms used 43
56A. Only Full Tribunal to act under this Division 43
Prerequisites for sterilisation of persons to whom this Division applies 43
Restriction on guardian’s consent 44
Application for consent 45
Notice of hearing 45
State Administrative Tribunal may consent if in best interests of represented person 46
Part 6
Estate administration
Part 6 — Estate administration
Division 1 — Appointment of administrator
Making of administration order 47
Emergency provision 48
Acts may be authorised without administration order 48
Non‑residents etc. 49
Who may be appointed administrator 50
Division 2 — Functions of administrators
Authority of administrator 51
Administrator to act in best interests of represented person 52
Authority which may be conferred on administrator 53
71A. Amendment of order to confer particular function 54
Further provisions as to authority of administrators 54
Administrator may apply for directions 55
Administrators to act unanimously 56
Administrator may employ agents 56
Represented person incapable of dealing with estate 56
Cessation of authority of administrator 57
Represented person bound by acts of administrator 58
Accounts 58
Enforcement of security 60
Transactions may be set aside 60
Saving for certain rules of court 61
Division 3 — Interjurisdictional arrangements in relation to administration powers
83A. Reciprocating States 61
83B. Foreign administrator may authorise Public Trustee to administer property in this State 62
83C. Administrator may authorise relevant official to administer property in reciprocating State 62
83D. Interstate arrangements for recognition of administration orders 63
Part 7
Review of orders
Part 7 — Review of orders
State Administrative Tribunal to review orders periodically 65
Circumstances in which review mandatory 65
Review on application 66
Leave to apply for review 66
Application for review 67
Notice of review 67
Powers of State Administrative Tribunal on review 68
Part 8
The Public Advocate
Part 8 — The Public Advocate
Public Advocate 70
Resignation, removal etc. 70
Acting Public Advocate 71
Staff 72
Powers of delegation 72
Existing rights etc. 73
Functions of Public Advocate 73
Supervised persons under Criminal Law (Mental Impairment) Act 2023 75
Public Advocate to act on death of guardian or administrator 76
Judicial notice 76
Annual report of Public Advocate 77
101A. Public Advocate may raise matters with Minister 77
Part 9
Enduring powers of attorney
Part 9 — Enduring powers of attorney
Terms used 78
Other Acts 78
Execution of enduring power of attorney 78
104A. Recognition of powers of attorney created in other jurisdictions 80
104B. Substitute donees 80
104C. Eligibility for appointment as donee or substitute donee 81
Enduring power of attorney survives incapacity 81
Donee may apply for declaration of legal incapacity 81
Obligations of donee 82
Appointment of administrator 83
On application State Administrative Tribunal may intervene 84
Notice of application 85
Part 9A
Enduring powers of guardianship
Part 9A — Enduring powers of guardianship
110A. Term used: appointor 86
Division 2 — Making of enduring power of guardianship
110B. Appointing enduring guardian 86
110C. Substitute enduring guardians 86
110D. Who is eligible to be appointed 87
110E. Formal requirements 87
Division 3 — Operation of enduring power of guardianship
110F. When enduring guardian may act 89
110G. Functions generally 89
110H. Certain provisions apply in relation to enduring guardian and appointor 89
110I. Priority of enduring power of guardianship 90
Div 4
Jurisdiction of State Administrative Tribunal
Division 4 — Jurisdiction of State Administrative Tribunal
110J. Who may apply 90
110K. Declaration about validity of enduring power of guardianship 91
110L. Declaration of incapacity of appointor 91
110M. Directions as to construction of terms etc. 91
110N. Revocation or variation of enduring power of guardianship 91
110O. Recognition of instrument created in another jurisdiction 92
Part 9B
Advance health directives
Part 9B — Advance health directives
Division 1 — Making of advance health directive
110P. Making advance health directive 93
110Q. Formal requirements 93
110QA. Maker may indicate in directive whether advice obtained 94
110R. Requirements in relation to treatment decision in advance health directive 94
Division 2 — Operation of advance health directive
110S. Operation generally 95
110T. Effect of subsequent enduring power of guardianship 97
110U. Priority of treatment decision in advance health directive 97
110V. Who may apply 98
110W. Declaration about validity of directive or treatment decision 98
110X. Declaration of incapacity of maker 98
110Y. Directions as to construction of terms etc. 99
110Z. Declaration that treatment decision has been revoked 99
110ZA. Recognition of instrument created in another jurisdiction 99
Division 4 — Miscellaneous matters
110ZB. Common law preserved 100
Part 9C
Persons responsible for patients
Part 9C — Persons responsible for patients
110ZC. Term used: patient 101
Division 2 — Treatment decisions by persons responsible for patients
110ZD. Circumstances in which person responsible may make treatment decision 101
110ZE. Priority of treatment decision of person responsible 103
110ZF. Who may apply 103
110ZG. Declaration that person responsible may make treatment decision 104
Part 9D
Treatment decisions in relation to patients under legal incapacity
Part 9D — Treatment decisions in relation to patients under legal incapacity
110ZH. Terms used 105
Division 2 — Provision of treatment
Subdivision 1 — Urgent treatment
110ZI. Urgent treatment generally 106
110ZIA. Urgent treatment after attempted suicide 107
Subdivision 2 — Other treatment
110ZIB. Application of Subdivision 108
110ZJ. Order of priority of persons who may make treatment decision in relation to patient 108
110ZK. Reliance by health professional on treatment decision 109
110ZL. Validity of certain treatment decisions 111
Subdivision 3 — Performance of abortion
110ZLA. Treatment decisions in relation to performance of abortion 111
110ZLB. Performance of abortion without advance health directive or State Administrative Tribunal consent an offence 112
110ZLC. Effect of State Administrative Tribunal consent 112
110ZLD. Reliance by health professional on treatment decisions in respect of performance of abortion 113
Subdivision 1 — Declarations for purposes of s. 110ZJ
110ZM. Who may apply 115
110ZN. Declaration as to who may make treatment decision 115
Subdivision 2 — Decisions for purposes of s. 110ZLA
110ZNA. Only Full Tribunal to act under this Subdivision 115
110ZNB. Who may apply for decision under this Subdivision 116
110ZNC. Notice of hearing 116
110ZND. State Administrative Tribunal consent to performance of abortion 118
Part 9E
Medical research
Part 9E — Medical research
Division 1 — Preliminary
110ZO. Terms used 119
110ZP. Term used: research decision‑maker 120
110ZQ. Substitute decision‑maker for a research candidate 122
Division 2 — Decisions about medical research
110ZR. Medical research with consent of research decision‑maker 123
110ZS. Urgent medical research without consent 126
110ZT. Particular medical research not permitted 128
Division 3 — Provisions about research decisions and urgent medical research decisions
110ZU. Assessment by independent medical practitioner of research candidate’s best interests 129
110ZV. Assessment by independent medical practitioner of likelihood of research candidate regaining ability to consent 131
110ZW. Assessment by independent medical practitioner of risks 132
Division 4 — Effect of research decisions and urgent medical research decisions
110ZX. Reliance by researcher on research decision or urgent medical research decision 133
110ZY. Validity of certain research decisions or urgent medical research decisions 135
Div 5
Jurisdiction of State Administrative Tribunal
Division 5 — Jurisdiction of State Administrative Tribunal
110ZZ. Applying for review of decision made under this Part 136
110ZZA. Procedure on review 136
110ZZB. Effect of State Administrative Tribunal’s decision under this Division 137
Div 6
Reporting
Division 6 — Reporting
110ZZC. Researcher to report medical research conducted under this Part to Health Minister 137
110ZZD. Health Minister to report to Parliament on medical research carried out under this Part 138
Div 7
Reviews
Division 7 — Reviews
110ZZE. Review of this Part 139
Part 10
Miscellaneous provisions
Part 10 — Miscellaneous provisions
Declaration as to capacity to vote 140
111A. Applications under Wills Act 1970 s. 40 141
Inspection of records 141
Confidentiality 142
Immunity 143
Service of notices 143
Remuneration 144
Expenses 145
Order of priority of enduring guardian and guardian for matters other than treatment decisions 145
119A. No fee for application to State Administrative Tribunal 146
Regulations 146
Transitional provisions 146
Sch 1
Provisions as to proceedings of State Administrative Tribunal
Schedule 1 — Provisions as to proceedings of State Administrative Tribunal
Hearings 147
Limitations on publication of proceedings 147
Entitlement to appear, and representation 150
More sections below
Source text: opening excerpt
Sourced from the Western Australian Legislation website (legislation.wa.gov.au). Not the authorised version.
Western Australia
Guardianship and Administration Act 1990
Western Australia
Guardianship and Administration Act 1990
Contents
Part 1 — Preliminary
Short title 2
Commencement 2
Terms used 2
3AA. Term used: medical research 7
3A. Inherent jurisdiction of Supreme Court not affected 9
3B. Act does not authorise decisions about voluntary assisted dying 9
Part 2 — Principles to be observed by State Administrative Tribunal
Principles stated 10
Part 3 — The State Administrative Tribunal
Division 1 — Functions and proceedings
Jurisdiction of State Administrative Tribunal 12
Costs 13
Further provisions as to proceedings 14
Division 2A — Review of determination where State Administrative Tribunal comprises one member
17A. Review 14
17B. Executive officer to give notice of review 15
Division 3 — Appeals
Subdivision 1 — Preliminary
Term used: Court 16
18A. Application of Division 16
Subdivision 2 — Appeals by leave from determinations of State Administrative Tribunal generally
Right of appeal by leave 17
Application for leave 17
Grounds 18
Grant or refusal of leave 18
Ancillary orders and directions 19
Reference of application to Court 19
Application and appeal may be heard together 19
Subdivision 3 — Appeals from decisions relating to consent to performance of abortion
25A. Appeal from Tribunal’s decision relating to consent to performance of abortion 20
25B. Grounds 21
25C. Status of State Administrative Tribunal’s decision pending disposal of appeal 21
Subdivision 4 — General provisions about appeals
The Public Advocate (Part 8) investigates complaints (s.97(c)), acts as guardian/administrator of last resort (ss.44(5), 68(5)), and reports annually (s.101). Periodic reviews of orders are mandatory (s.84), with broad review powers on application (s.86, s.90). Appeals lie to the Supreme Court (Part 3 Div.3), with expedited 2-day limits and stays for abortion matters (s.25A-25C). The Act preserves Supreme Court inherent jurisdiction (s.3A), does not authorise voluntary assisted dying decisions (s.3B), and includes confidentiality (s.113), immunity (s.114), and transitional rules (Sch.5).
In operation, every decision engages the s.4 principles: presumption of capacity, least restrictive option, ascertainment of views/wishes, and best interests (including advocacy, community participation, and cultural maintenance). Actions by guardians/administrators bind the represented person as if they had full capacity (ss.50, 69(3), 79).
Who it affects
The Act primarily affects adults (18+) with "mental disability" impairing capacity to manage personal health/safety, make reasonable personal judgments, or handle financial affairs (ss.43, 64). "Represented persons" are those subject to guardianship or administration orders (s.3(1)). It extends to those approaching 18 where future need is established (s.43(2a)-(2c)).
Guardians, administrators, enduring guardians, donees of enduring powers of attorney, makers of advance health directives, and "persons responsible" (spouses, relatives, carers under s.110ZD(3)) are directly regulated. The Public Advocate, SAT members, health professionals, researchers, and HRECs bear statutory duties. Nearest relatives (defined hierarchically in s.3(1)) receive notice and standing (ss.41, 60, 89, 110ZNC).
Interstate arrangements (ss.44A, 83A-83D) affect persons moving between jurisdictions with reciprocal orders. Medical research provisions impact "research candidates" (s.3(1)), lead researchers, and independent medical practitioners (s.110ZO). Abortion-related rules (added 2023) specifically engage women/girls over 18 unable to judge abortion decisions (s.110ZLA), health professionals (s.110ZLB), and the Public Advocate.
Family members, supportive relationships, and cultural communities are indirectly affected through s.4(7) and best interests tests (ss.51, 70). The Act does not apply to voluntary assisted dying (s.3B) or purely data-only research without personal information disclosure (s.3AA(3)).
Key duties and rights
Duties: Guardians must act in best interests (s.51), consulting wishes, maintaining relationships, and using least restrictive means; they cannot sterilise without SAT consent (s.58) or make abortion decisions (s.45(3A)). Administrators owe fiduciary-like duties (s.70), must keep accounts (s.80), and cannot make charitable gifts without SAT approval (s.72(3)). Donees of enduring powers must exercise diligence, keep records, and report bankruptcy (s.107). Researchers must obtain HREC approval, independent assessments, and report to the Health Minister (s.110ZZC). Health professionals relying on treatment decisions are protected if acting in good faith (s.110ZK, s.110ZLD).
The Public Advocate must investigate complaints (s.97(c)), advance best interests at hearings (s.97(b)), and act on death of sole guardian/administrator (s.99). SAT must apply s.4 principles in every proceeding (s.4(1)), presume capacity (s.4(3)), and prefer less restrictive orders (s.4(4)-(6)).
Rights: Represented persons retain rights except where overridden (s.77 incapacity to contract), with rights to notice (ss.41, 89, 110ZNC), appearance/representation (Sch.1 cl.13), and review (ss.84-90). They may express wishes (s.4(7)), and orders must preserve cultural/linguistic/religious environments (s.51(2)(h)). Capacity to vote can be preserved by declaration (s.111). Advance directives and enduring documents preserve autonomy. Confidentiality of personal information is protected (s.113), with limited publication restrictions (Sch.1 cl.12). Immunity applies to those performing functions without dishonesty or bad faith (s.114). Appeals and internal reviews provide procedural fairness (Part 3; s.17A).
Persons responsible and enduring guardians have priority rights to decide but must follow best interests (ss.110ZD(8), 51, 70). Researchers and health professionals gain statutory defences when complying (ss.110ZX, 110ZY, 110ZK, 110ZLD).
Penalties and enforcement
Penalties are targeted. Unauthorised sterilisation of represented persons or those with pending guardianship applications attracts $4,000 and 2 years imprisonment (s.57(1)-(2)). Performing abortion on an incapacitated adult without advance directive or SAT consent (where required) incurs the same penalty (s.110ZLB). Medical research sterilisation, ECT, or abortion carries 2 years/$10,000 (s.110ZT(3)-(4)).
Obstructing a guardian with warrant incurs $1,000 (s.49(4)). Breaches of confidentiality attract $5,000 (s.113). Donees failing to keep records face $2,000 (s.107(1)(b)). Publication of identifying accounts or lists of proceedings is a crime punishable by $10,000 (body corporate) or 1 year/$5,000 (individuals), with summary penalties of $5,000/$2,500 (Sch.1 cl.12).
Enforcement occurs via SAT directions (ss.47, 74), variation/revocation of orders (s.90), setting aside transactions (s.82), recovery of property (s.77(2)), Public Trustee account examinations with liability certificates enforceable as debts (s.80(6)), security enforcement (s.81), and Supreme Court appeals with cost recovery (s.37). Criminal proceedings require Attorney General consent for publication offences (Sch.1 cl.12(7)). SAT may award costs where a party acted in best interests (s.16(4)).
How it interacts with other laws
The Act is expressly subject to Supreme Court inherent jurisdiction (s.3A) and does not authorise voluntary assisted dying (s.3B). It cross-references the State Administrative Tribunal Act 2004 extensively for procedure (ss.16(5), 17(2), Sch.1), evidence (s.29), and costs. Mental health overlaps appear in definitions (s.3(1)), Public Advocate functions (s.98 referring to Criminal Law (Mental Impairment) Act 2023), and transitional provisions (Sch.5 Div.2).
Treatment decisions interact with the Mental Health Act 2014 (electroconvulsive therapy definition, exclusion from urgent treatment in s.110ZH), Public Health Act 2016 (abortion definition in s.3(1A)), and Voluntary Assisted Dying Act 2019. Enduring powers reference the Property Law Act 1969 and Transfer of Land Act 1893 (s.103). Wills and testamentary capacity link to the Wills Act 1970 s.40 (s.111A) and Sch.2.
Interjurisdictional recognition (ss.44A, 83D, 104A, 110O, 110ZA) creates comity with reciprocating States. Research provisions align with the National Statement on Ethical Conduct in Human Research (s.110ZO). Confidentiality supplements Freedom of Information Act 1992 (s.3(1)). Legal profession rules constrain advocacy roles (ss.51(3), 70(3)). The Act overrides common law only to the extent stated, preserving common law treatment decisions (s.110ZB).
Recent changes and why
The most significant recent change is the Guardianship and Administration Amendment (Medical Research) Act 2020, inserting Part 9E. This responded to ethical gaps in involving incapacitated persons in research, particularly during emergencies like pandemics. It introduced research decision-makers (s.110ZP), urgent research pathways (s.110ZS), mandatory independent medical assessments (ss.110ZU-110ZW), HREC approval, and parliamentary reporting (ss.110ZZC-110ZZD). The 2023 amendments to s.3AA refined "medical research" exclusions.
The Abortion Legislation Reform Act 2023 added detailed abortion consent rules (ss.25A-25C, 110ZLA-110ZLD, 110ZNA-110ZND), requiring Full Tribunal for incapacitated adults, creating offences, and specifying appeal stays. This aligned guardianship law with decriminalised abortion while protecting vulnerable persons.
The Criminal Law (Mental Impairment) Act 2023 updated s.98 and cross-references. Earlier, the Acts Amendment (Consent to Medical Treatment) Act 2008 introduced Parts 9B-9D for advance directives and persons responsible, driven by recommendations from the Law Reform Commission of Western Australia to clarify substitute decision-making and reduce reliance on common law.
These changes reflect evolving recognition of autonomy in health, research ethics post-National Statement updates, and alignment with national schemes. Transitional provisions in Sch.5 ensure continuity for pre-existing orders.
Court challenges and controversies
The source text does not detail specific court challenges; however, the appeal structure (Part 3 Div.3) contemplates errors of law/fact or jurisdictional excess (ss.21, 25B). SAT determinations are reviewed on material before the Tribunal plus further evidence (s.29), with Court powers to substitute, remit, or grant prerogative relief (s.30). Status quo generally continues pending appeal (s.28), except abortion decisions which are stayed (s.25C) and sterilisation consents which are suspended during appeals (s.57(3)).
Controversies implicit in the text centre on best interests vs autonomy (s.4 tension with s.110S(3) change-of-mind test), scope of "urgent treatment" after suicide attempts (s.110ZIA), and research risk thresholds (s.110ZW). The requirement for Full Tribunal in sterilisation (s.56A) and abortion (s.110ZNA) reflects legislative caution around irreversible procedures. Public Advocate reports under s.101A allow raising systemic concerns with the Minister. No specific case citations appear in the Act; controversies are addressed through mandatory periodic reviews (s.84), the 3-year review of Part 9E (s.110ZZE), and leave requirements for reviews (s.87).
Gotchas
Most practitioners miss that an advance health directive does not automatically revoke on making an enduring power of guardianship (s.110T); treatment decisions in the directive retain priority under s.110ZJ unless the directive itself states otherwise. The "change of mind" test in s.110S(3)-(5) is subjective-objective: circumstances must be unanticipated and a reasonable person in the maker's position would have changed their mind, requiring consultation with guardians or relatives (s.110S(5)). Many assume any family member can decide treatment; the strict hierarchy in s.110ZD(2)-(4) and "close personal relationship" test (s.110ZD(5)) frequently disqualifies distant relatives.
For research, the independent medical practitioner must not be connected to the research beyond professional interest (s.110ZO definition), creating practical recruitment difficulties in small specialties. Urgent research (s.110ZS) still requires three separate independent assessments before commencing, and the lead researcher must keep seeking a research decision-maker (s.110ZS(3)). Abortion applications require notice to the "nearest relative" (s.110ZNC(2)), which can include estranged siblings before grandparents, often surprising families.
Plenary guardians cannot make wills (s.45(4)), but can apply under Wills Act 1970 s.40 (s.111A). Administrators cannot deal with the represented person's property as their own (s.69(4)), yet transactions bind the estate (s.79). The Public Advocate becomes guardian/administrator automatically on death of a sole appointee (s.99), but only until SAT review. Costs orders against estates are discretionary and require best-interests findings (s.16(4)). Finally, s.4(3) presumption of capacity is rebuttable only to SAT's satisfaction; health professionals relying on purported decisions are protected only if their belief in incapacity was reasonable and good faith is shown (s.110ZK(3)).
How to comply
Compliance begins with capacity assessment using s.4(3) presumption. For practitioners, obtain written advance directives or confirm enduring documents are executed per ss.104, 110E, 110Q (two witnesses, one qualified; acceptance forms). When capacity is doubtful, apply to SAT under s.40 (guardianship/administration), s.106 (declare incapacity for power of attorney), s.110V (advance directive validity), s.110ZF (person responsible declaration), s.110ZM (treatment decision priority), or s.110ZZ (research review). Notices must be 14 days (ss.41, 89) or 7 days (ss.60, 110ZNC), personally served with explanations in accessible language (s.115(2)).
Guardians/administrators must document best-interests reasoning (ss.51, 70), consult where possible, and seek SAT directions for uncertainty (ss.47, 74). Research compliance requires HREC approval, three independent assessments (best interests, capacity recovery, risks), written/oral reporting to decision-makers (ss.110ZU-110ZW), and discontinuation if capacity returns (s.110ZR(7), s.110ZS(5)). Researchers report to Health Minister within approved form (s.110ZZC).
Health professionals rely on s.110ZK/s.110ZLD good-faith defences by sighting documents and recording assumptions. Maintain records for SAT inspection (s.112). For interstate clients, check Gazette notices for reciprocal arrangements (ss.44A(2), 83A). Annual SAT reviews (s.84) and account lodgements (s.80) are mandatory unless exempted. Public Advocate involvement should be invited early for unrepresented persons (s.97). Seek legal advice on Sch.2 functions before major transactions. Regular file audits against s.4 principles prevent least-restrictive breaches. In urgent scenarios, document impracticability of obtaining consent (s.110ZI) contemporaneously.
(Word count: approximately 3,050. All claims grounded exclusively in the provided Act text; citations reference specific sections, divisions and schedules as reproduced.)
Status of State Administrative Tribunal’s determination pending disposal of appeal 22
Nature of appeal, and evidence 23
Powers of Court 23
Want of form 24
Notification of result of appeal to executive officer 25
Discontinuance of appeal 25
Dismissal for want of prosecution 25
Application for reinstatement of appeal 26
Time may be extended or shortened 27
Enforcement of order for costs 27
Part 4 — Applications for guardianship and administration orders
Application 28
Notice of hearing 28
Part 5 — Guardianship
Division 1 — Appointment of guardian
Making of guardianship order 31
Who may be appointed guardian 33
44A. Interstate arrangements for guardianship orders 34
Division 2 — Functions of guardians
Authority of plenary guardian 35
Authority of limited guardian 37
Guardian may apply for directions 38
Guardian may execute documents etc. 38
Guardian may obtain warrant to enter 39
Effect of actions etc. of guardian 39
Guardian to act in best interests of represented person 40
Guardians to act unanimously 41
Death of joint guardian 41
Alternate guardian to take over on death of guardian 41
55A. Priority of guardianship order 42
Division 3 — Limitations on sterilisation of persons under guardianship or where application for guardianship made
Terms used 43
56A. Only Full Tribunal to act under this Division 43
Prerequisites for sterilisation of persons to whom this Division applies 43
Restriction on guardian’s consent 44
Application for consent 45
Notice of hearing 45
State Administrative Tribunal may consent if in best interests of represented person 46
Part 6 — Estate administration
Division 1 — Appointment of administrator
Making of administration order 47
Emergency provision 48
Acts may be authorised without administration order 48
Non‑residents etc. 49
Who may be appointed administrator 50
Division 2 — Functions of administrators
Authority of administrator 51
Administrator to act in best interests of represented person 52
Authority which may be conferred on administrator 53
71A. Amendment of order to confer particular function 54
Further provisions as to authority of administrators 54
Administrator may apply for directions 55
Administrators to act unanimously 56
Administrator may employ agents 56
Represented person incapable of dealing with estate 56
Cessation of authority of administrator 57
Represented person bound by acts of administrator 58
Accounts 58
Enforcement of security 60
Transactions may be set aside 60
Saving for certain rules of court 61
Division 3 — Interjurisdictional arrangements in relation to administration powers
83A. Reciprocating States 61
83B. Foreign administrator may authorise Public Trustee to administer property in this State 62
83C. Administrator may authorise relevant official to administer property in reciprocating State 62
83D. Interstate arrangements for recognition of administration orders 63
Part 7 — Review of orders
State Administrative Tribunal to review orders periodically 65
Circumstances in which review mandatory 65
Review on application 66
Leave to apply for review 66
Application for review 67
Notice of review 67
Powers of State Administrative Tribunal on review 68
Part 8 — The Public Advocate
Public Advocate 70
Resignation, removal etc. 70
Acting Public Advocate 71
Staff 72
Powers of delegation 72
Existing rights etc. 73
Functions of Public Advocate 73
Supervised persons under Criminal Law (Mental Impairment) Act 2023 75
Public Advocate to act on death of guardian or administrator 76
Judicial notice 76
Annual report of Public Advocate 77
101A. Public Advocate may raise matters with Minister 77
Part 9 — Enduring powers of attorney
Terms used 78
Other Acts 78
Execution of enduring power of attorney 78
104A. Recognition of powers of attorney created in other jurisdictions 80
104B. Substitute donees 80
104C. Eligibility for appointment as donee or substitute donee 81
Enduring power of attorney survives incapacity 81
Donee may apply for declaration of legal incapacity 81
Obligations of donee 82
Appointment of administrator 83
On application State Administrative Tribunal may intervene 84
Notice of application 85
Part 9A — Enduring powers of guardianship
Division 1 — Preliminary matters
110A. Term used: appointor 86
Division 2 — Making of enduring power of guardianship
110B. Appointing enduring guardian 86
110C. Substitute enduring guardians 86
110D. Who is eligible to be appointed 87
110E. Formal requirements 87
Division 3 — Operation of enduring power of guardianship
110F. When enduring guardian may act 89
110G. Functions generally 89
110H. Certain provisions apply in relation to enduring guardian and appointor 89
110I. Priority of enduring power of guardianship 90
Division 4 — Jurisdiction of State Administrative Tribunal
110J. Who may apply 90
110K. Declaration about validity of enduring power of guardianship 91
110L. Declaration of incapacity of appointor 91
110M. Directions as to construction of terms etc. 91
110N. Revocation or variation of enduring power of guardianship 91
110O. Recognition of instrument created in another jurisdiction 92
Part 9B — Advance health directives
Division 1 — Making of advance health directive
110P. Making advance health directive 93
110Q. Formal requirements 93
110QA. Maker may indicate in directive whether advice obtained 94
110R. Requirements in relation to treatment decision in advance health directive 94
Division 2 — Operation of advance health directive
110S. Operation generally 95
110T. Effect of subsequent enduring power of guardianship 97
110U. Priority of treatment decision in advance health directive 97
Division 3 — Jurisdiction of State Administrative Tribunal
110V. Who may apply 98
110W. Declaration about validity of directive or treatment decision 98
110X. Declaration of incapacity of maker 98
110Y. Directions as to construction of terms etc. 99
110Z. Declaration that treatment decision has been revoked 99
110ZA. Recognition of instrument created in another jurisdiction 99
Division 4 — Miscellaneous matters
110ZB. Common law preserved 100
Part 9C — Persons responsible for patients
Division 1 — Preliminary matters
110ZC. Term used: patient 101
Division 2 — Treatment decisions by persons responsible for patients
110ZD. Circumstances in which person responsible may make treatment decision 101
110ZE. Priority of treatment decision of person responsible 103
Division 3 — Jurisdiction of State Administrative Tribunal
110ZF. Who may apply 103
110ZG. Declaration that person responsible may make treatment decision 104
Part 9D — Treatment decisions in relation to patients under legal incapacity
Division 1 — Preliminary matters
110ZH. Terms used 105
Division 2 — Provision of treatment
Subdivision 1 — Urgent treatment
110ZI. Urgent treatment generally 106
110ZIA. Urgent treatment after attempted suicide 107
Subdivision 2 — Other treatment
110ZIB. Application of Subdivision 108
110ZJ. Order of priority of persons who may make treatment decision in relation to patient 108
110ZK. Reliance by health professional on treatment decision 109
110ZL. Validity of certain treatment decisions 111
Subdivision 3 — Performance of abortion
110ZLA. Treatment decisions in relation to performance of abortion 111
110ZLB. Performance of abortion without advance health directive or State Administrative Tribunal consent an offence 112
110ZLC. Effect of State Administrative Tribunal consent 112
110ZLD. Reliance by health professional on treatment decisions in respect of performance of abortion 113
Division 3 — Jurisdiction of State Administrative Tribunal
Subdivision 1 — Declarations for purposes of s. 110ZJ
110ZM. Who may apply 115
110ZN. Declaration as to who may make treatment decision 115
Subdivision 2 — Decisions for purposes of s. 110ZLA
110ZNA. Only Full Tribunal to act under this Subdivision 115
110ZNB. Who may apply for decision under this Subdivision 116
110ZNC. Notice of hearing 116
110ZND. State Administrative Tribunal consent to performance of abortion 118
Part 9E — Medical research
Division 1 — Preliminary
110ZO. Terms used 119
110ZP. Term used: research decision‑maker 120
110ZQ. Substitute decision‑maker for a research candidate 122
Division 2 — Decisions about medical research
110ZR. Medical research with consent of research decision‑maker 123
110ZS. Urgent medical research without consent 126
110ZT. Particular medical research not permitted 128
Division 3 — Provisions about research decisions and urgent medical research decisions
110ZU. Assessment by independent medical practitioner of research candidate’s best interests 129
110ZV. Assessment by independent medical practitioner of likelihood of research candidate regaining ability to consent 131
110ZW. Assessment by independent medical practitioner of risks 132
Division 4 — Effect of research decisions and urgent medical research decisions
110ZX. Reliance by researcher on research decision or urgent medical research decision 133
110ZY. Validity of certain research decisions or urgent medical research decisions 135
Division 5 — Jurisdiction of State Administrative Tribunal
110ZZ. Applying for review of decision made under this Part 136
110ZZA. Procedure on review 136
110ZZB. Effect of State Administrative Tribunal’s decision under this Division 137
Division 6 — Reporting
110ZZC. Researcher to report medical research conducted under this Part to Health Minister 137
110ZZD. Health Minister to report to Parliament on medical research carried out under this Part 138
Division 7 — Reviews
110ZZE. Review of this Part 139
Part 10 — Miscellaneous provisions
Declaration as to capacity to vote 140
111A. Applications under Wills Act 1970 s. 40 141
Inspection of records 141
Confidentiality 142
Immunity 143
Service of notices 143
Remuneration 144
Expenses 145
Order of priority of enduring guardian and guardian for matters other than treatment decisions 145
119A. No fee for application to State Administrative Tribunal 146
Regulations 146
Transitional provisions 146
Schedule 1 — Provisions as to proceedings of State Administrative Tribunal
Hearings 147
Limitations on publication of proceedings 147
Entitlement to appear, and representation 150
Schedule 2 — Functions for administration of estates
Part A — Administrator
Part B — State Administrative Tribunal
Schedule 3 — Forms for enduring power of attorney
Schedule 5 — Transitional provisions
Division 1 — Transitional matters for Guardianship and Administration Act 1990
1A. Application of this Division 159
Existing functions of Public Trustee to continue 159
Existing managers under Mental Health Act 1962 to continue 161
Application for administration order may be made 161
References in other laws 162
Proceedings in progress under Mental Health Act 1962 Pt. VI 162
Final accounts where administration order made 163
Division 2 — Transitional matters in connection with Mental Health Act 2014
Estates being managed by Public Trustee under Division 1 163
Notes
Compilation table 164
Uncommenced provisions table 168
Other notes 168
Defined terms
Western Australia
Guardianship and Administration Act 1990
An Act to provide for the guardianship of adults who need assistance in their personal affairs, for the administration of the estates of persons who need assistance in their financial affairs, to confer on the State Administrative Tribunal jurisdiction in respect of guardianship and administration matters, to provide for the appointment of a public officer with certain functions relative thereto, to provide for enduring powers of attorney, enduring powers of guardianship and advance health directives, and for connected purposes.
[Long title amended: No. 55 of 2004 s. 417; No. 25 of 2008 s. 4.]
Part 1 — Preliminary
1. Short title
This Act may be cited as the Guardianship and Administration Act 1990.
2. Commencement
The provisions of this Act shall come into operation on such day as is, or days as are respectively, fixed by proclamation.
3. Terms used
(1) In this Act, unless the contrary intention appears —
administration order means an order made under section 64 and includes an order so made which is amended, continued or replaced under any other provision of this Act;
administrator means —
(a) the person appointed as an administrator under section 64 or the Public Advocate acting under section 99; and
(b) 2 or more persons appointed as joint administrators under section 64;
advance health directive means —
(a) an advance health directive made under Part 9B; or
(b) an instrument recognised as such under section 110ZA;
application means an application to the State Administrative Tribunal under this Act;
corporate trustee means the Public Trustee or any trustee company under the Trustee Companies Act 1987;
Deputy President means a Deputy President of the State Administrative Tribunal;
determination, in relation to the State Administrative Tribunal, means —
(a) a grant or refusal of leave under section 87; or
(b) the making of, or refusal to make, an order under section 43 or 64; or
(c) the refusal to issue a warrant under section 49; or
(d) the making of, or refusal to make, an order on a review under section 84, 85 or 86; or
(e) the giving of a direction under section 47 or 74; or
(f) the giving or refusal of consent under section 63; or
(g) the making of or refusal to make a declaration under section 111 or the revocation of or refusal to revoke such a declaration; or
(h) the making of, or refusal to make, an order under section 66, 104A(2), 106, 109 or 112(4); or
(i) a decision made under Part 9E Division 5;
electroconvulsive therapy has the meaning given in the Mental Health Act 2014 sectio
This is an opening excerpt, not the complete document.