Victorian laws about guardianship and administration were updated in March 2020. They aim to ensure that people with disabilities are best supported when making life decisions.
The Guardianship and Administration Act 2019 (the Act) provides:
- a more modern framework for the appointment of a guardian or administrator and
- statutory recognition for supported decision making.
Understanding guardianship and administration
A guardian and/or administrator may be appointed for a person with a disability that reduces their capacity to make their own decisions. The appointment is made by the Victorian Civil and Administrative Tribunal (VCAT) .
Disabilities covered in the Act include:
- neurological impairment
- intellectual impairment
- mental disorder
- brain injury
- physical disability
A guardian can make personal and lifestyle decisions for a person with a disability. Examples include services they may need, where they live and/or who can have access to them. An administrator can make financial and legal decisions. Examples include paying expenses, or making a real estate transaction.
VCAT is required to consider certain factors in appointing a guardian, administrator or supportive guardian or supportive administrator including the will and preferences of a person.
When a person loses decision making capacity
Many people nominate a person to make decisions for them if they lose the capacity to make decisions. This is a legal arrangement called an enduring power of attorney.
VCAT can appoint a guardian and/or administrator for a person who loses their capacity to make decisions if:
- there is no enduring power of attorney in place, or
- an enduring power of attorney is in place, but it is deficient or inappropriate.
If no suitable person is available to act as a guardian or administrator, the Office of the Public Advocate (OPA) can be appointed.
Improved support for people with a disability to make decisions
The Act aims to support people with disability to make and participate in decisions that affect their lives.
Decision making capacity
The Act sets out what is meant by decision-making capacity. This includes the ability to make decisions with support. For example, support may include providing tailored information for the person or technology that reduces the effects of their disability.
It means that each person must be presumed to be capable of making decisions unless there is evidence that they cannot. It also recognises that a person may be able to make decisions about some matters but not others. The Act aims to protect a person’s right to make their own decisions whenever possible.
Supported decision making
The Act allows the appointment of a supporter, known as supportive guardian or a supportive administrator, instead of a guardian or administrator. This enables them to support a person with a disability to make their own decisions.
Often support in decision making comes from family members and trusted carers, and the ability to appoint a supportive guardian or supportive administrator acknowledges these relationships of support, whilst ensuring that the person with disability retains their right to make decisions.
This formal framework for supported decision making will:
- provide greater clarity for third parties about the nature and extent of a supported decision making arrangement, allowing them to deal with a supportive guardian or supportive administrator more confidently than if the relationship were informal
- provide guidance to a supportive administrator or supportive guardian about their role and obligations
- allow for greater monitoring and safeguards than informal arrangements.
Updating how VCAT and the OPA work with people with disabilities
The Act updates VCAT’s procedures so that it:
- makes appointments of guardians and administrators tailored to the person’s circumstances
- hears guardianship and administration applications in the presence of the person with a disability, unless the person does not want to attend, or there is another good reason for their absence
- can review guardian and administrator appointments regularly
- improves the way it deals with guardianship and administration applications
- increases participation of people with disabilities
- includes people in important relationships with people with disabilities
- can enforce decisions of guardians and administrators against third parties.
The Act also covers improvements to how the OPA operates, including:
- clarifying confidentiality requirements of OPA staff when performing statutory functions
- allowing the Public Advocate to delegate powers and duties as a guardian, or as an enduring attorney, to a member of staff at OPA
- requiring the Public Advocate to prepare an annual report of OPA’s functions. The report will be tabled in Parliament by the Attorney‐General.
Protection for people with disabilities if guardians or administrators do not act properly
- allows VCAT and the Supreme Court to order compensation for a loss caused by a guardian or administrator contravening the legislation
- includes offences to penalise guardians, administrators and supportive guardians or supportive administrators who dishonestly use their appointments to gain a financial advantage or to cause loss to a person they represent.
Guidance for guardians and administrators
The Act sets out principles and powers for substitute decision making by guardians and administrations that reflect a more contemporary understanding of decision making capacity and disability. This provides guidance for guardians and administrators when making decisions for a person they represent. This will help them ensure that the person’s will and preferences direct the decision making as far as possible.