Law Reform Commission to examine guardianship system in WA

• Review of the Guardianship and Administration Act 1990 (WA) has been referred to the Law Reform Commission of WA – Project 114
• Scope of reform has been expanded following recommendations of the Disability Royal Commission and other law reform developments
• Final report to be provided to Government by 1 April 2025

A comprehensive review of Western Australia's guardianship and administration laws will be undertaken by the Law Reform Commission of Western Australia (the Commission).

The existing scheme, administered under the Guardianship and Administration Act 1990 (WA) (the Act), enables substitute decision makers to be appointed to make personal, health and financial decisions on behalf of adults who do not have capacity to make these decisions.

These decision makers can be appointed by the State Administrative Tribunal or under an enduring power of attorney or guardianship, or advance health directive made by the person prior to losing capacity.

Attorney General John Quigley has referred the matter to the Commission to fast-track consideration of the recommendations relating to guardianship and administration laws in the Final Report of the Royal Commission into the Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission), and facilitate consultation on their application in Western Australia.

The Government had already committed to amending the Act, following a 2015 statutory review, however the Royal Commission recommendations were handed down while that work was underway.

The Commission has now been tasked with reviewing, providing advice and making recommendations on the need for reform of the Act and how best to implement that reform in the Western Australian context, taking into account the recommendations of the national Disability Royal Commission, the work of the Standing Council of Attorneys General Enduring Powers of Attorney Working Group, and other recent reports and legislative reforms.

While the Government is not bound by the Commission's recommendations, they will inform development of an expanded range of reforms to modernise WA's guardianship and administration laws and bring them into line with contemporary standards in the disability and aged care sectors.

The term of reference can be found at https://www.wa.gov.au/government/announcements/project-114-guardianship-and-administration

The Commission will provide a final report to Government by 1 April 2025.

Comments attributed to Attorney General John Quigley:

"The Cook Government remains committed to implementing the recommendations from the 2015 review of the Guardianship and Administration Act, relating to enduring powers of attorney and guardianship.

"Drafting was well underway on legislation to achieve this, however following the release of the Disability Royal Commission report, and in light of other developments, it has become clear that the scope of our reform needs to be expanded.

"It is important for us to consider the recommendations of the Disability Royal Commission - which was conducted on a national basis - in the context of the WA landscape and our legislative framework to determine how they might be implemented. Further consultation with WA stakeholders is also necessary.

"I have asked the Law Reform Commission to undertake this work to ensure that it is fast-tracked.

"The recommendations of the Law Reform Commission will provide a blueprint for comprehensive reform of WA's guardianship and administration laws, and ensure the updated Act reflects contemporary community expectations and best practices, as appropriate to WA.

"We must take the time to ensure the legal framework we develop not only provides greater protection for vulnerable people in our community, such as the elderly and those with a disability impacting their decision-making ability, but also promotes their rights and ensures they are treated with dignity and respect."