Compatibility, availability, conflicts of interest, the desire to preserve existing family relationships and the wishes of the proposed represented person, are among the issues taken into account by VCAT when deciding the appointment of a guardian or administrator.
Any person over 18 years of age is eligible to be appointed a guardian or administrator, if they consent to act, but VCAT must be satisfied:
•that they will act in the best interests of the proposed represented person;
•that there is no actual or potential conflict of interest; and
•that they are suitable to be appointed (ss 23(1), 46(1) GAA).
A person proposed as administrator must have sufficient expertise to administer the estate, or there must be a special relationship or a special reason why that person should be appointed as administrator.
The parent or nearest relative of a proposed represented person is not automatically regarded as having a conflict of interest by virtue of that relationship (ss 23(3), 46(3)).
VCAT must take into account several matters in deciding if the proposed guardian or administrator is suitable: the wishes of the proposed represented person; whether they are compatible with the proposed represented person and any guardian or administrator already appointed; in the case of guardianship, the desirability of preserving existing family relationships; and whether they will be available and accessible to the proposed represented person so as to fulfil the requirements of guardianship of that person (s 23(2)); and, in the case of administration, whether they were at any time a member of VCAT (s 46(2)).
If there is no person available who satisfies all the above criteria, VCAT may appoint OPA (s 23(4)) and, where it considers it appropriate, can appoint more than one person to be joint guardians, or guardian with OPA (s 23(5)).
Where there is no family member or friend who meets the criteria to be the administrator, VCAT can appoint a professional organisation to do this, such as State Trustees. VCAT does appoint joint administrators, although there is no specific statutory authorisation of this practice.
VCAT can appoint someone as an alternative guardian to act as guardian in the event of the death, absence or incapacity of the original guardian (s 34). There is no power to appoint an alternative administrator.
If a relative or friend is not available, or if these people have a conflict of interest, VCAT may appoint the Public Advocate as a plenary guardian, limited guardian or alternative guardian. The specific power to appoint the Public Advocate as an administrator was repealed. For more information, see “The Public Advocate” in Disability: asserting your rights.
A plenary guardian has all the powers and duties as if they were a parent and the represented person their child (s 24), and a limited guardian has those powers and duties that VCAT specifies in the order appointing them (s 25).
Guardians must act in the best interests of the represented person, by doing everything possible to advocate for them; to encourage their participation in the community; to encourage their independence; and to protect them from neglect, abuse or exploitation. They must act in consultation with the represented person, and take into account, as far as possible, their wishes (s 28).
Guardians for health care may be empowered to refuse medical treatment under the Medical Treatment Act 1988 (Vic) (“MTA”). Guardians may also be the authorised representatives for the purposes of the Health Records Act 2001 (Vic) and the Privacy and Data Protection Act 2014 (Vic). Guardians may be empowered to apply for a family violence intervention order under the Family Violence Protection Act 2008 (Vic) or an intervention order under the Stalking Intervention Orders Act 2008 (Vic).
An appointed guardian can apply to VCAT for advice upon any matter relating to the scope of the order or the exercise of its powers (s 30 GAA). Guardians may also seek help from the OPA.
Subject to any limitations or conditions included in an order, administrators have very broad powers. They are responsible for the general care and management of the estate of the represented person (s 58B(1)(a)), and can generally do everything in relation to the estate that the represented person could have done if they were competent (s 58B(1)(b), (c)).
An administrator does not have the power to execute a will in the name of a represented person (s 50(2)), but does have the power to open and read their will before or after their death, if it is deposited with the administrator (s 58G).
An administrator must act in the best interests of the represented person, by doing everything possible to encourage and assist them to become capable of administering their estate. They must act in consultation with the represented person and, as far as possible, take into account their wishes (s 49(2)(a)).
VCAT requires an administrator to lodge a Form of Accounts with either State Trustees or another examiner for each financial year. This usually has to be lodged by the following 30 September. The Form of Accounts can be obtained from the VCAT website (at www.vcat.vic.gov.au).