The Guardianship List at 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, Victoria Legal Aid and the State Trustees each have a Duty Officer present every day at VCAT in Melbourne to assist the parties.

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.

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 of the information it requires. This can be obtained from VCAT or OPA or their respective websites (VCAT at www.vcat.vic.gov.au and OPA at www.publicadvocate.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) and 46(2)).

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

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:

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) and 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 which 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 recent decision on the place of the person's wishes is XYZ v State Trustees Ltd [2006] VSC 444.

In cases of emergency, applications can be made for a temporary guardianship or administration order which 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.