Appointing a guardian or administrator

 

Anyone aged 18 or older can apply to be a guardian and/or administrator to VCAT. A “professional advocate” includes a legal practitioner, articled clerk or law clerk. VCAT must take into account whether a person’s needs could be met by other means less restrictive of the person’s freedom. In an emergency, orders can be made for temporary guardianship.

Applying to VCAT

Any person may apply to VCAT for an order appointing a guardian and/or an administrator, in respect of a person with a disability who has attained the age of 18 years, or to take effect when the person turns 18 (ss 19, 43 GAA).

All applications should be made on the form provided by VCAT. The application can be completed online; downloaded, completed and lodged by email; or downloaded, completed and lodged by mail or fax. The applicant must send a copy to the person about whom they are applying (the proposed represented person), as well as to the person’s primary carer, their nearest relative and the existing (or proposed) guardian or administrator. VCAT also requires the applicant to attend the hearing, and to make the necessary arrangements for the proposed represented person to attend. If the person is unable or unwilling to attend the hearing, the applicant must so advise VCAT.

The persons proposed as guardians or administrators should attend the hearing, and should provide a plan identifying the decisions that need to be made, and outlining the way they propose to make those decisions.

Once lodged, applications can only be withdrawn with the consent of VCAT. If the applicant wishes to cancel the application, they must set out reasons in writing stating whether they have informed other interested persons of their intentions and what their views are. There is a form available on the VCAT website (called “request by applicant for leave to withdraw application”).

The hearings are held at The William Cooper Centre, 223 William Street in Melbourne, or at other metropolitan and country locations. The applicant can request that the hearing be held at a location near where the subject of the application resides.

A party may be represented by a “professional advocate” at a hearing with the consent of VCAT. A “professional advocate” includes a legal practitioner, articled clerk or law clerk, or someone who in the opinion of VCAT has had substantial experience as an advocate in proceedings of a similar nature.

Investigation

The Guardianship List of VCAT has a duty to ensure that its decisions are in the best interests of the proposed represented person. Its processes are inquisitorial rather than adversarial.

Upon receiving an application for guardianship or administration VCAT can refer the matter to a statutory body for an investigation, usually the Office of the Public Advocate (OPA). A report of this investigation is provided to, and can be obtained from, VCAT. VCAT will usually release the report to parties unless there are serious issues of confidentiality or the risk of harm to others involved.

OPA and the State Trustees have a Duty Officer present every day at the William Cooper Centre in Melbourne to assist the parties. Victoria Legal Aid has its duty officer at the VCAT office at 55 King Street, Melbourne.

The hearing

The purpose of the hearing is for VCAT to consider and determine three main issues, all of which must be satisfied before it can appoint a guardian or administrator:

1 Does the person have a disability?

2 Does the disability prevent them from making reasonable judgments?

3 Are there current decisions that need to be made?

Disability

This is defined as intellectual impairment, mental disorder, brain injury, physical disability or dementia (s 3(1) GAA). This issue is usually determined on the basis of current medical assessments and reports prepared by treating doctors and other professionals; these assessments and reports should, wherever possible, be forwarded with the application. VCAT provides a pro forma document (Medical Report) of the information it requires. This can be obtained from VCAT or its website (at www.vcat.vic.gov.au).

Reasonable judgment

This is usually determined on the basis of evidence from involved professionals, the person and others concerning past and current decision-making by the person, and by examining the connection between the disability and the decision-making.

Need

This issue is usually determined by examining the current situation of the person; VCAT must take into account whether their needs could be met by other means less restrictive of the person’s freedom of decision and action (ss 22(2), 46(2)).

Examples of less restrictive means for dealing with the need for an appointment include:

the person may have already appointed their own medical agent or attorney for financial or personal matters (for more information on enduring powers of attorney, see Understanding powers of attorney); or

medical decisions might be made by the “person responsible” (seeConsent to medical treatment”).

Less restrictive means

This concept is not limited to consideration of the issue of need for an administrator or a guardian, but significantly appears as a stated object of the legislation as a whole. Section 4(2)(a)) states:

It is the intention of parliament that the provisions of this Act be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that:

a the means which is the least restrictive of a person’s freedom of decision and action as is possible in the circumstances is adopted.

VCAT cannot make an order unless it is satisfied that the order would be in the best interests of the person in respect of whom the application is made (ss 22(3), 46(3)). It cannot make an order appointing a plenary guardian unless it is satisfied that a limited guardianship order would be insufficient to meet the person’s needs (s 22(4). Where VCAT appoints an administrator, the order made must be the one that is the least restrictive of that person’s freedom of decision and action as is possible in the circumstances (s 46(4)).

Person’s wishes

Another general principle that applies to all functions under the GAA is that the person’s wishes be given effect to wherever possible. “Wherever possible” is understood to make this principle subservient to what is in the person’s best interests. A decision on the place of the person’s wishes is XYZ v State Trustees Ltd [2006] VSC 444.

Emergency orders

In cases of emergency, applications can be made for a temporary guardianship or administration order that remains in effect for a specified period not exceeding 21 days (ss 32, 33, 60), although the order may be renewed once for a further period not exceeding 21 days.

Similar issues have to be determined as in the case of ordinary applications, and the same eligibility criteria for the proposed guardian or administrator must be met. VCAT must hold a further hearing as soon as practicable after the making of the temporary order, and no later than the expiry of the second 21-day period, to determine whether ongoing orders should be made.