CAP-02 Incapable Persons
Version 4 – 03/08/2020
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)
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.
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 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 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.2
2 Paragraph inserted 03/08/2020
4.1 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 )
(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 )
(Full Name, Address and Occupation)
5 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.
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.
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.
5.3 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.
5.4 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)).
6 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.