CAP-02 Incapable Persons

1. Before 7 September 1990

Before the introduction of the GA Act (WA), the Supreme Court could declare a person incapable of managing his or her own affairs. The power to do so was contained in Part VI of the Mental Health Act 1962. The Court could appoint a person, the Public Trustee or a Trustee Company as manager of the estate of the incapable person (s.64). The Court could, by Order, authorise or direct the manager to exercise all or any of powers set out in s.68. Notwithstanding the introduction of the new legislation, actions commenced under the previous legislation and not then completed still continue under the previous legislation.

2. After 7 September 1990

For actions commencing from 7 September 1990 the Guardianship and Administration Board (the Board) may declare a person incapable of managing his or her own affairs. The Board may appoint a person or a Trustee Company as administrator of the estate of the incapable person (s.64). The Board may, by Order, either grant plenary powers or authorise or direct the administrator to exercise all or any of powers set out in Schedule 2 Part A of the Act.

Note: On 4 May 2005, the State Administrative Tribunal (SAT) came into being and took over the judicial and adjudicative functions of the Board.

3. Orders (SAT)

Where an incapable person does not have a valid Enduring Power of Attorney in place, the State Administrative Tribunal (SAT) upon application, may appoint a Plenay Administrator.⁴

Orders issued by the State Administrative Tribunal (SAT) may grant all or limited powers under the Act to a person. The Order may also include provisions to revoke a previously appointed person under and Enduring Power of Attorney (EPA). Where such Orders are presented/deposited with the Registrar the EPA will be revoked and a Registrar’s Caveat pursuant to section 188 of the TLA may be noted on the title of the incapable person.

As of 2017, Orders issued by SAT are issued electronically.

SAT Orders are not capable of Registration, unlike an Enduring Power of Attorney. The SAT Order is presented at the time of the land transaction with a statutory declaration and on each subsequent land transaction. ⁴

Where an attorney/donor has only one original Enduring Power of Attorney from another jurisdiction. Obtaining Plenary Administration Orders may be an alternate option to lodging the only original Enduring Power of Attorney, which will not be returned upon lodgement. Attorney’s should liaise with SAT on this matter and if obtaining a SAT Order is appropriate for them.⁴

⁴Paragraphs added 03/07/2024

4. Dealings by a Manager or Administrator

A document must be drawn in the name of the incapable person and supported by the original copy from the office where it was issued or a Landgate Sighted copy or Australia Post certified copy of the Order under which the manager or plenary administrator proposes to act and statutory declaration. Care should be taken that the powers given by the Order are not exceeded and that the terms of the Order are strictly observed.

In each instance where a document is deposited, the document must be supported by a statutory declaration by the manager or plenary administrator. The statutory declaration should state the following minimum facts/statements:

• the relationship between the parties and reference to the Order
• the land being dealt on
• that the incapacity still existed
• the incapable person was still alive
• that the appointment had not been revoked or varied
• at the time of signing the instrument the incapacity still exists.

The statutory declaration should be made within seven (7) days¹ of declaring and lodgement of the instrument at Landgate.

1[amended from "two (2) days" to "seven (7) days" on 04/09/2019]

If lodging an electronic document via an Electronic Lodgment Network Operator (ELNO), a copy of the declaration and Order must be uploaded and attached to the document prior to lodgement. The original evidence must be retained by the Subscriber in accordance with the retention of evidence requirements in the Western Australian Participation Rules for electronic conveyancing.²

² Paragraph inserted 03/08/2020

4.1. Electronic lodgement requirements

If lodging an electronic document via an Electronic Lodgement Network Operator (ELNO), a copy of the declaration and Order must be uploaded and attached to the document prior to lodgement. The original evidence must be retained by the Subscriber in accordance with the retention of evidence requirements in the Western Australian Participation Rules for electronic conveyancing.³

³Paragraph added 02/10/2023

4.2 Execution samples

A suitable form of attestation for instruments dealing with the estate of incapable person is:

Signed by (name of manager) )

the Manager of (name of incapable ) (signature of Manager)

person) pursuant to an Order of the )

Supreme Court of Western Australia )

(Order number) made the (date of order) in the )

presence of )

Witness

(Full Name, Address and Occupation)

 

Signed by (name of Administrator) )

as the Plenary Administrator of (name of )

incapable person) pursuant to an order ) (signature of Administrator)

of the State Administrative Tribunal )

(order number) made the (date of order) )

in the presence of )

Witness

(Full Name, Address and Occupation)

5. Reciprocal Arrangements made with other States under WA Legislation⁵

Under Section 83D of the WA Guardianship and Administration Act 1990 (GAA Act), if the Minister (the Attorney General) is satisfied that the laws of another State or Territory relating to the administration of the estates of incapable adults correspond sufficiently with GAA Act, the Minister may enter into an arrangement with the relevant Minister in that State or Territory for the recognition of the relevant orders (by whatever name known) made under the laws of that State or Territory in respect of persons who:

(a) enter this State from that State or Territory; or

(b) enter that State or Territory from this State.

The Minister (the Attorney General) is to cause any such arrangement to be published in the WA Government Gazette.

If an interstate arrangement ceases to operate, the Minister is to cause notice of that cessation to be published in the WA Government Gazette, but the arrangement is to be deemed to continue in effect until that notice is so published. Onus is on the respective party/person to ensure the agreement has not been ceased.

Outlined below are the current reciprocal arrangement that the WA Attorney General has made with other States and Territories:

Australian Capital Territory

The Guardianship and Management of Property Act 1991 (ACT) relating to the estates of incapable adults corresponds sufficiently with the GAA Act (WA). It is agreed that financial management orders made under the Guardianship and Management of Property Act 1991 (ACT) in respect of adult persons who enter WA be recognised in WA (This arrangement was made on the 6 May 1998 - See WA Government Gazette 21 July 1998 at page 3828).

New South Wales

The Protected Estates Act 1983 (NSW) relating to the estates of incapable adults corresponds sufficiently with the GAA Act (WA). It is agreed that financial management orders made under the Protected Estates Act 1983 (NSW) in respect of adult persons who enter WA be recognised in WA (This arrangement was made on the 2 June 1998 - See WA Government Gazette 21 July 1998 at page 3829). 

Queensland   

The Guardianship and Administration Act 2000 (Qld) relating to the administration of an estate of adults corresponds sufficiently with the GAA Act (WA). It is agreed that administration orders made under the Guardianship and Administration Act 2000 (Qld) in respect of adult persons who enter WA be recognised in WA (This arrangement was made on the 6 February 2008 - See WA Government Gazette 19 February 2008 at Page 607).

South Australia

The Guardianship and Administration Act 1993 (SA) relating to the guardianship of adults corresponds sufficiently with the GAA Act (WA). It is agreed that administration orders made under the Guardianship and Administration Act 1993 (SA) in respect of adult persons who enter WA be recognised in WA (This arrangement was made on the 27 February 1998 - See WA Government Gazette 21 April 1998 at page 2116). 

Tasmania

The Guardianship and Administration Act 1995 (TAS) relating to the estates of incapable adults corresponds sufficiently with the GAA Act (WA). It is agreed that administration orders made under the Guardianship and Administration Act 1995 (TAS) in respect of adult persons who enter WA be recognised in WA (This arrangement was made on the 7 May 1998 - See WA Government Gazette 29 May 1998 at page 2984).

Victoria

Orders made under Section 30(1)(ii) of the Guardianship and Administration Act 2019 (VIC) relating to the estates of incapable adults corresponds sufficiently with the GAA Act (WA). It is agreed that administration orders made under the Guardianship and Administration Act 2019 (VIC) in respect of adult persons who enter WA be recognised in WA (This arrangement was made on the 21 September 2020 - See WA Government Gazette 11 December 2020 at page 4519).

Landgate will recognise the authority of an administrator appointed in another State or Territory if the above-mentioned reciprocal arrangement is in place. There is no requirement for the administration order or financial management order made in another State to go through the formality of being placed before the WA State Administrative Tribunal for approval before it can be effective in Western Australia.

To sign land transaction documents on behalf of an incapable person (if authorised to do so in the order), a certified or sealed copy of the interstate administration order or financial management order must be formally annexed to a statutory declaration stating that:

• the relationship between the parties and reference to the Order
• the land being dealt on
• at the time of the signing of the document the incapacity still existed;
• the incapable person was still alive;
• the appointment had not been revoked or varied; and
• make specific reference to the date and page number of the relevant WA Government Gazette that formalised the reciprocal arrangements with WA.

The statutory declaration should be made within seven (7) days of lodgement of the instrument at Landgate.

Note: Like a WA SAT Order, a reciprocal order issued by another jurisdiction may be limited to duties and functions. Where the order is limited and does not extend to dealing with land it may not be accepted to deal on WA land.

Note: Please note that If an administrator or manager executes documents on behalf of a incapable person, and the incapable person remains on the certificate of title as a registered proprietor, the Registrar of Titles may lodge a Registrar’s Caveat to protect that persons interest in the land.

⁵Section added 03/07/2024

6. Dealings by the Protective Commissioner of New South Wales

The Protective Commissioner of New South Wales is an independent public official whose office is constituted under the Protected Estates Act 1983 (NSW) (the Act). This public official has responsibilities similar to that of the Guardianship and Administration Board in Western Australia.

Under the Act, the Protective Commissioner is appointed to protect and administer the financial affairs and property of people unable to make financial decisions for themselves and where there is no other person suitable or able to assist.

The office was established in 1985, forms part of the Human Rights Program of the New South Wales Attorney General’s Department, and provides a wide range of legal, technical, financial, specialist, disability and other services. It is required, by law, to make decisions that are in the best interests of the person whose affairs are under management, and decisions are guided by the principles set out under the Guardianship Act 1987 (NSW).

The Office of the Protective Commissioner and the Office of the Public Guardian work in tandem, the Office of the Protective Commissioner deals with management of the financial and property interests of its clients, and the Office of the Public Guardian deals with personal and lifestyle issues.

Although each agency is independent of the other, with separate staff and different legislation, the one person holds both positions of Protective Commissioner and Public Guardian.

6.1. Appointment

The Protective Commissioner may be appointed following an application for a financial management order. A financial management order is a legal decision to appoint the Protective Commissioner, or a private individual under the supervision of the Protective Commissioner, to manage someone’s affairs and is made by either the New South Wales Guardianship Tribunal, the Supreme Court Equity Division, or, in certain circumstances, a magistrate or the Mental Health Review Tribunal.

Where the court appoints a private individual, the Protective Commissioner provides direction, supervision and support for the person so appointed.

6.2. Legislation

The Protective Commissioner may delegate all functions, other than the power of delegation, to any member of staff (s.5A and 5). Powers that the Protective Commissioner’s office can exercise over estates of protected persons is set out in s.24 of the Act.

Section 24(3) limits the Protective Commissioner, with respect to the granting of leases, and no lease exceeding five years can be entered into without the direction of the Court. Section 26 of the Act gives the Commissioner the power to execute documents on behalf of the protected person.

The management of an estate is terminated by a revocation order of the Court, where the person under guardianship has ceased to be a person under guardianship, or upon the death of the protected person.

6.3. Reciprocating States under NSW Legislation

Section 65 of the Act allows for reciprocating States to be recognized by notification in the Government Gazette. Western Australia has been declared a reciprocating State by NSW Government Gazette No. 99 of 10 June 1988 at page 3083.

Under s.67 of the Act, where a protected person, under the New South Wales legislation, has property in a reciprocating State, the Protective Commissioner may authorize an officer charged by the laws of the reciprocating State with the care, recovery, collection, preservation and administration of the property of the incapable person to collect, recover, manage, sell or otherwise dispose of and administer that property in accordance with the law in force in the reciprocating State as if the protected person was resident in the reciprocating State.

The Guardianship and Administration Act 1990 (WA) (GA Act) has similar provisions for reciprocal arrangements. No. 7 of 1996 provides that the Minister may, by notice published in gazette, declare any State to be a reciprocating State.

The Guardianship and Administration Board has advised that Western Australia has recognized New South Wales under this reciprocal arrangement in Government Gazette, WA, 21 July 1998.

As a result, an order, made in New South Wales by a New South Wales Court of competent jurisdiction, appointing the Protective Commissioner will be effective in Western Australia, as if the order were made by a Court of competent jurisdiction within Western Australia.

There is no requirement for the Court order made in New South Wales to go through the formality of being placed before the Guardianship and Administration Board for approval before it can be effective in Western Australia.

6.4. Landgate’s Requirements

The Protected Estates Act 1983 (NSW) allows for the appointment of both estate managers within the office of the Protective Commissioner as well as private individuals who are supervised in the management of estates, by the Protective Commissioner’s office. Therefore, Landgate needs to ensure that the person signing any transfer, or other document, on behalf of a protected person in New South Wales, has the proper authority.

Landgate will, in principle, recognize the authority of the Protective Commissioner or his delegate to execute transfer documents and other dealings relating to real estate within Western Australia on behalf of person’s subject to a financial management order from the competent New South Wales jurisdiction which appoints the Protective Commissioner or his delegate to manage their affairs.

Should the Protective Commissioner or his delegate, wish to lodge transfer documents, or other dealings, with Landgate under such an order, Landgate will require that he, or his delegate lodge, with the transfer document, or other dealing:

• the instrument which must be drawn in the name of the incapable person
• a certified or sealed copy of the order under which the Protective Commissioner or his delegate was appointed
• a certified copy of the power of delegation for the person signing on behalf of the incapable person
• a copy of New South Wales Government Gazette No. 99 of 10 June 1988, page 3083, and a copy of the Government Gazette WA of 21 July 1998, page 3829, each of which formalize the reciprocal arrangement between the two States and
• a statutory declaration in support, made by the Protective Commissioner or his delegate, setting out the background of the matter and stating that the incapacity still exists, the incapable person is still alive, that the appointment had not been revoked at the time of the signing of the instrument, and annexing the above documentation.

The Protective Commissioner is incorporated as a corporation sole (s.5B (1)). The seal of the corporation sole is to be affixed to a document only in the presence of the Commissioner, Deputy Commissioner, or member of staff who holds a delegation with attestation by the signature of that person affixing the seal (s.5B (1)(2)).

7. Power of the Public Trustee Where an Incapable Person is Domiciled in Other Jurisdictions

The provisions of s.31 of the Public Trustees Act 1941 (PTA) empowers the Public Trustee to execute documents on behalf of an incapable person domiciled outside Western Australia, provided that the WA Public Trustee has been given the necessary certificate (instrument in writing under seal) by the relevant authority in a State, or a Territory of the Commonwealth (including New Zealand) having jurisdiction over the incapable person.

The certificate must authorise the WA Public Trustee to collect, manage, sell or otherwise dispose of or administer any property in Western Australia which the person named in the instrument is possessed of or is entitled to have an interest.

The Public Trustee shall then have with respect to the property of the incapable person plenary functions within the meaning of s.71 of the GA Act as though such functions had been vested in him under s.69 of that Act.

This certificate must be produced with any document lodged that is executed by the Public Trustee pursuant to s.31 of the PTA.

The above mentioned provisions of the PTA were meant by parliament to operate in conjunction with the provisions of Division 3 of Part 6 of the GA Act which is broader in its application. Division 3 provides that inter-jurisdictional arrangements may be made between Western Australia and any other country and States and Territories of Australia in respect of administration orders.

Administration orders that have been made in other jurisdictions may authorise the Public Trustee or a relevant official to administer Western Australian properties on behalf of the foreign administrator.

It should be noted however that Division 3 of Part 6 of the GA Act has not yet come into operation, as the Minister, under the GA Act, has not yet published the required notices in the Government Gazette. If the provisions of Division 3 of Part 6 of the GA Act do come into effect, it will not abrogate the provisions of s.31 of the PTA. The provisions with regard to incapable persons under both these Acts can co-exist.

8. Also see

• POA-01 Powers of Attorney
•   SIG-16 Signing by a Plenary Administrator under SAT Order  
• TFR-03 Transfers by or to an Executor/Administrator