What does “legal capacity” mean?
Legal capacity is defined as a person’s capacity to make reasonable judgements. “Legal capacity” in WA is defined in the Guardianship and Administration Act (WA) 1990 section 4(3) as:
Every person shall be presumed to be capable of —
(i) looking after his own health and safety;
(ii) making reasonable judgments in respect of matters relating to his person;
(iii)managing his own affairs; and
(iv) making reasonable judgments in respect of matters relating to his estate, until the contrary is proved to the satisfaction of the State Administrative Tribunal.
Appointment of Guardians by the State Administrative Tribunal (WA)
The Guardianship and Administration Act (WA) 1990 gives the State Administration Tribunal (SAT) legal powers to appoint guardians to safeguard the best interests of adults with decision making disabilities. Such disabilities may be as a result of:
• Intellectual disability
• Mental illness
• Acquired brain injury
A person with a decision making disability may need a guardian when personal, lifestyle and treatment decisions need to be made in their best interests. The WA legislation seeks to balance the rights of individuals to make decisions for themselves, with the need to legally protect people from abuse and exploitation and to ensure that informed decisions are made in their best interests.
Guardianship orders are time-limited, reviewable on request and all are reviewable at the end of the order. The maximum time for statutorily mandated reviews ranges between one and five years. All States and Territories in Australia have in place guardianship and administration laws. Guardianship and administration powers are exercised by Guardianship Boards and Tribunals (such as the SAT in WA) and administered by public guardians, public advocates, public trustees and protective commissioners.
Guardianship legislation exists to ensure that persons with disabilities are able to have the equal access to justice and can exercise their legal rights on an equal basis with others. Australia has ratified the United Nations Convention on the Rights of Persons with Disabilities on 17 July 2008 which states the right of people with disability to enjoy equal recognition before the law (Article 12).
The appointment of a guardian is not necessary when informal arrangements can ensure the best interests of the person with a decision-making disability are being met. For example, appointment of a substitute decision-maker is not needed when:
• a person with a decision-making disability is able to manage and maintain a reasonable quality of life for themselves
• an enduring guardian has been appointed, who is acting in the best interests of the person
• the person is being adequately supported and cared for by others
• there are no personal or family conflicts about the person’s care and support needs
• there are no major problems or issues that are posing an immediate or imminent threat to the person’s quality of life.
If you are concerned about the legal capacity or rights of a family member with a disability, contact out family law team for more information.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.