Guardianship and Administration on incapacity

The State Administrative Tribunal (“SAT”) has jurisdiction to hear matters in respect of a person’s incapacity or the appointment of representatives to handle their affairs[1]. The Supreme Court of Western Australia also has jurisdiction.[2]

A person is presumed to have capacity to manage their legal and financial affairs until the contrary can be show to the satisfaction of the relevant court or tribunal.[3]  The revocation of an existing EPOA will not happen automatically on the making of an administration order[4]

It is common practice for the SAT member to invite an oral application at the hearing if that application was not filed with the originating process)[5] or to make the order on his/her own motion or revoke or vary the power of the EPOA (notwithstanding they will only do this if they are put on notice about the existence of an EPOA).[6]

To avoid any procedural argument, or to avoid forgetting the issue leaving an unrevoked EPOA in effect, an application to revoke or cancel should be sought concurrently with the originating application.

The Public Trustee is an interested party to proposed causes of action on behalf of proposed represented persons in the SAT[7] and in the Supreme Court[8].

Leave to appear by solicitor

The office of the Public Trustee is not required to be represented by a solicitor in the SAT or Supreme Court of Western Australia.[9] If you intend on instructing a lawyer to appear on your behalf, they will need to file a notice of acting in the tribunal[10]. Leave of the SAT is generally not required for a lawyer to be permitted to appear[11]. It is important to note that The SAT is typically a no cost Jurisdiction.[12]  It is possible to seek an order for costs but usually these orders are reserved for extreme circumstances such as noncompliance.[13]

 

[1] s13 of the Guardianship and Administration Act 1990 (WA)(“GAA”)

[2] s3A GAA and the Parens Patriae jurisdiction of the Supreme Court of Western Australia and Order 70 of the Rules of the Supreme Court 1971 (WA)(“RSC”).

[3] S4(3) GAA.

[4] S108(1) GAA

[5] Ibid

[6] S108(1a) GAA

[7] S109(1) GAA

[8] Ibid at [2]

[9] Ss49(j) and 65 Public Trustee Act 1941 (WA)(“PTA”)

[10] R34(6) Guardianship and Administration Rules 2004 (WA)(“GAR”).

[11]S39 State Administrative Tribunal Act 2004 (WA)(“SATA”).

[12] 119A GAA and s9 SATA.

[13] 16(2)(b) GAA.

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