Public trustees and public guardians in Western Australia

What are public trustees and public guardians?

Public trustees and public guardians are independent statutory authorities who provide services that help people – particularly vulnerable people – to manage their personal affairs. Every state and territory in Australia has a public guardian and a public trustee, although they may have different titles. They are appointed under state government legislation, and the offices they run are state government agencies.

• What is a public trustee? It’s an organisation that protects people’s financial interests by providing services like assisting them with making wills and powers of attorney. It can be appointed to look after financial decision-making for someone who has lost their capacity to make those decisions themselves.

• What is a public guardian? This term often refers to both the agency and the official, who oversees a team of people in the agency who act as guardians. In Western Australia, the function of public guardian is filled by the Office of the Public Advocate. When the Public Advocate is appointed as someone’s guardian, their staff members can manage the person’s personal, lifestyle and medical treatment decisions. They may also be able to investigate and advocate for the welfare of older people who have lost decision-making capacity.

In Western Australia, the Public Trustee and the Office of the Public Advocate are two separate organisations. In other states and territories, they may be combined into one office or have different names.

Different kinds of guardianship appointments

There are two types of guardianship appointments that can assist older people:

• One you make yourself. You can appoint your own choice of future decision-maker(s) under formal documents like an Enduring Power of Attorney, Enduring Power of Guardianship or Advanced Health Directive. This can only be done while you still have decision-making capacity.

• One made for you. If you lose capacity and have not formally appointed your own future decision-makers, someone can be appointed for you by an authorised and specialist organisation, such as an administrative tribunal.

This article talks about guardians who are appointed for you if you need one but haven’t appointed one yourself.

To find out more about appointing your own substitute decision-makers while you still have capacity, see our Powers of Attorney section.

What is a guardian?

A guardian is a substitute decision-maker: someone authorised to make decisions for another person who is unable to decide for themselves. Guardians are authorised by law to make some or all decisions on the person’s behalf, and they should always act in the person’s best interests.

Often, someone who knows the person well becomes their guardian – a family member, for example – but sometimes a public agency, like the Office of the Public Advocate, is appointed.

More about guardians

• Guardianships can cover different types of decisions and have different names.

• In Western Australia, a ‘guardian’ is a decision-maker appointed for personal, lifestyle and medical treatment matters. A decision-maker appointed for financial matters is called an ‘administrator’.

• In this article, ‘guardian’ is sometimes used to refer to any kind of appointed decision-maker.

• A guardianship order in Western Australia can be limited to particular kinds of decisions, such as medical treatment or accommodation. This is known as a ‘limited order’. If it applies to all decisions, it’s known as a ‘plenary order’.

• You can read more about guardianships in our Introduction to guardianships in Australia section.

How are guardians appointed?

If you start to have difficulty making decisions, there may be someone – like a close family member or friend – who can step in and help you manage things. When they make decisions for you without any kind of formal appointment, it’s called ‘informal decision-making’. As long as this arrangement is working well, there may be no need for a formal guardianship.

If there is no informal decision-maker and you don’t have an Enduring Power of Guardianship or Enduring Power of Attorney, someone involved in your life can ask to have a guardian formally appointed for you. They do this by applying to the State Administrative Tribunal.

Both formal and informal decision-makers should try to help you make any decisions that you can. This is called ‘supported decision-making’.

What does ‘supported decision-making’ mean?

Supported decision-making means your helper empowers you to make your own decisions whenever you can by providing you with whatever you need to do so. For example, your decision-making supporter could:

• explain information, so you are able to make the decision

• get you a translator, so you can understand information thoroughly

• go with you to the doctor to write down what they say, so you can remember it later and decide what to do.

You can find out more about this in our article, Supported decision-making

The role of the State Administrative Tribunal (SAT)

An administrative tribunal is like a court that decides minor disputes and administrative matters. It operates under state legislation, and the decisions it makes are called ‘orders’. The State Administrative Tribunal (sometimes called ‘SAT’) operates under the State Administrative Tribunal Act 2004 (WA) and other legislation. One of the administrative matters it can decide is guardianships.

The role of the State Administrative Tribunal in guardianships is to consider applications to have a guardian appointed for you if you need one. Someone who is concerned about you can apply to the tribunal, either to be formally appointed as your guardian themselves or to have someone else appointed. There is no cost for making an application.

The tribunal will hold a hearing to determine whether there is a genuine need for a guardian to be appointed, consider who could be appointed, and decide how the guardianship would work best. They will keep your best interests in mind when deciding on the application.

• Applications to the State Administrative Tribunal for guardian and administrator appointments are made through the eCourts Portal. You can access the portal from the tribunal’s website.

• The person making the application will need to register with the portal to get a login. You can find help with using the portal on SAT’s eCourts Portal Help webpage.

• For a simple explanation of how hearings work, you can read the tribunal’s What to expect at a hearing fact sheet (PDF, 3.5 MB).

Usually, the State Administrative Tribunal will first try to find an individual person who knows you well and would be an appropriate guardian, such as a family member, friend or carer. This is sometimes called a ‘private guardian’. The person must have legal capacity and be aged 18 or over to be appointed.

Sometimes, it’s not possible for SAT to appoint an individual as your guardian or administrator. They may be unable to find an available, suitable and willing person, or there may be a dispute between your family, friends or carers over who your guardian should be.

In cases like these, the tribunal may appoint a public office such as the Office of the Public Advocate as your guardian (for personal, lifestyle and medical treatment decisions) and the Public Trustee as your administrator (for decisions about your finances).

SAT can also receive and consider applications for reviews of guardianship orders in Western Australia. They provide some information to private guardians, including the Private Guardians’ Guide (PDF, 1.5 MB).

The role of the Office of the Public Advocate (OPA)

The Office of the Public Advocate (sometimes called the ‘OPA’) provides advocacy and guardianship services on behalf of people with impaired decision-making ability. In a guardianship matter, they may be appointed by SAT as your guardian. The OPA does not charge fees for its guardianship services.

The role of the OPA is to help ensure that any decisions are made in your best interests. They will try to consider your wishes and preferences, as far as they can determine what those are.

As far as possible, they will work with you in making your decisions. If it’s appropriate, they will also talk to your family, friends and carers to get their views on how your decisions should be made.

The Public Advocate doesn’t hear applications for reviews of guardianship orders. Those are handled by the State Administrative Tribunal. For more information about the role of the Public Advocate in guardianships, you can download Information Sheet 2 (PDF, 217 KB) from the website.

The role of the Public Trustee

The Public Trustee helps Western Australian people with the management of their financial affairs. They can be appointed by SAT as your administrator, and fees apply for their service. The fees are recalculated each year and published in the Government Gazette (for 2023 to 2024, see issue 77, 16 June 2023, Schedule 6, page 1833).

The role of the Public Trustee in financial administration is to ensure that any decisions made for you promote your best interests, protect your financial wellbeing, and respect your wishes and preferences as much as possible.

As far as possible, they will work with you in making your decisions. If it’s appropriate, they will also talk to your family, friends and carers to get their views on how your decisions should be made.

The Public Trustee also has information, including training sessions, to help private administrators with their role. You can find out more on the Private administrator support webpage.

The Public Trustee doesn’t hear applications for reviews of administration orders. Those are handled by the State Administrative Tribunal. For more information about the administration functions of the Public Trustee, download the Administration information sheet (5) (PDF, 224 KB) from the Office of the Public Advocate.

What matters can a guardian decide?

Western Australia guardianships are covered by the Guardian and Administration Act 1990 (WA), which sets out the matters that guardians may manage for you.

In Western Australian guardianships, financial affairs are considered separately from personal, lifestyle and medical treatment decisions. An administrator will look after your financial decisions, and a guardian will look after the others. (It’s possible that the same person or people may be appointed to both roles.)

If the Public Trustee or Public Advocate is appointed to help you, they will need to get some information about you and what’s happening in your life, what decisions need to be made, and what your options are. They will talk to you and to your family and carers to gather the information and find out what everyone thinks would be best for you. The information will be kept private.

If you (or someone else) are unhappy with the service the Public Trustee or Public Advocate provides, you can make a complaint by speaking and writing to the staff member who provided the service. If your issue isn’t resolved, you can then take the complaint to their manager and even to the Public Advocate or Public Trustee themselves.

You can take the complaint higher, to the Department of Justice, if you don’t feel you have reached a resolution. Information about this process is available on the state government’s website.

Financial decisions

Examples of financial decisions the Public Trustee, as your administrator, can make include:

• paying your bills and debts

• managing any income you receive

• managing your assets and property, including buying and selling.

Personal and lifestyle decisions

Examples of personal and lifestyle decisions the Office of the Public Advocate, as your guardian, can make include:

• where you live, and with whom

• what support services you receive

• who has contact with you.

Medical treatment decisions

Examples of medical treatment decisions the Office of the Public Advocate, as your guardian, can make include:

• whether to refuse or consent to medical or surgical treatments

• what dental treatment you receive

• when to advocate for your care, services and treatment.

What are a guardian’s responsibilities?

Western Australian law requires your guardian to act in ways that are in your best interest and to consider and respect your wishes and preferences. The Public Trustee and Office of the Public Advocate will both do everything possible to act according to this requirement. To be able to do this, they will need to gather information about you, your preferences and options, and the decisions that need to be made. The information they gather will be kept private.

The Public Trustee and Office of the Public Advocate will both keep records of the transactions and decisions they make for you. A private guardian should do the same.

Most importantly, guardians can only decide matters they are authorised to decide. Administrators can’t make decisions about your personal or medical options, and guardians can’t make financial decisions. The Public Advocate can’t make financial decisions for you, and the Public Trustee can’t make personal or lifestyle decisions for you.

Information for guardians

Guardians can find out more about their role and responsibilities on our Being a guardian webpage.

Ending or changing a guardianship appointment

A guardianship appointment made by the State Administrative Tribunal can last up to 5 years. The tribunal will set a date to automatically review the appointment during that time.

You or your guardian can apply for a review to happen earlier. This may happen if your circumstances change or your guardian wishes to resign, becomes unable to do the job, dies, or has been found guilty of misconduct in managing your affairs. The tribunal will hold another hearing and can decide to extend or change the order.

If someone else is concerned that your appointed guardian isn’t acting in your best interests, they may be able to apply for a review, but they will need to seek permission from SAT to do so.

You can get more information about this on the tribunal’s Review of guardianship or administration order webpage.

Your guardian’s appointment ends naturally when you die.

More information

State Administrative Tribunal

Decides applications for guardianship and administration orders and reviews existing orders.

Tel: (08) 9219 3111 or 1300 306 017 (8.30 am to 4.30 pm Monday to Friday, except public holidays)

Email: use the online Contact form on this page

Website: Click here

Office of the Public Advocate

Provides advocacy and guardianship services for people with impaired decision-making ability.

Tel: (08) 9278 7300 or 1800 858 455 – Advisory Services (9 am to 4:30 pm Monday to Friday, except public holidays)

Email: opa@justice.wa.gov.au

Website: Click here

Public Trustee

Provides trustee and asset management services to people living in Western Australia.

Tel: 1300 746 212 (8.45 am to 4.30 pm Monday to Friday, except public holidays)

Email: public.trustee@justice.wa.gov.au

Website: Click here

Other useful resources

Guardianship and administration (webpage)

This Legal Aid Western Australia webpage contains helpful videos, fact sheets and information.

Elder Rights WA (service)

Legal Aid Western Australia’s specialist legal advice and assistance service can provide you with free, confidential help in relation to many issues, including guardianship matters.

Disclaimer: The information provided on this website is not a substitute for individual legal advice.