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/administrator for a person with a disability who is at least 18 years old, or to take effect when the person turns 18 (ss 19, 43 GA Act).

All applications should be made on the form provided by VCAT.

The applicant must send a copy to the person about whom they are applying (the proposed represented person), and to the person’s primary carer, their nearest relative, and the existing (or proposed) guardian or administrator.

VCAT 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 advise VCAT.

The people 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Once lodged, applications can only be withdrawn with VCAT’s consent. If the applicant wishes to cancel the application, they must set out reasons in writing, explaining why orders are no longer needed.

The hearings are held at VCAT’s William Cooper Justice Centre (seeContacts”). However, the applicant can request that the hearing be held at a location near where the subject of the application lives.

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

Investigation

VCAT’s Guardianship List 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 (usually the Office of the Public Advocate (OPA)) for investigation (for OPA’s contact details, seeContacts”).

A report of this investigation is provided to, and can be obtained from, VCAT. VCAT usually releases the report to parties unless there are serious issues of confidentiality or the risk of harm to others.

The OPA and the State Trustees have a duty officer at the William Cooper Justice Centre to assist the parties.

The VCAT hearing

The purpose of the hearing is for VCAT to consider and determine three main issues, which must all 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) GA Act). 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 the person’s past and current decision-making, and by examining the connection between the disability and the decision-making.

Need

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

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

the person may have already appointed their own medical treatment decision-maker 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 medical treatment decision-maker (as defined by the GA Act) (seeMedical 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 (s 4(2)(a) GA Act).

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)).

VCAT cannot make an order appointing a plenary guardian (a plenary guardian can make decisions for a person like a parent would for a child) unless it is satisfied that a limited guardianship order would be insufficient to meet the person’s needs (s 22(4)).

Best interests

VCAT cannot make an order unless it is satisfied that the order is in the person’s best interests in respect of who the application is made (ss 22(3), 46(3), 4(2)(b) GA Act).

Person’s wishes

Another general principle that applies to all functions under the GA Act 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 GA Act), 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.

Practice note: VCAT’s Guardianship List

VCAT has a practice note for its Guardianship List (which was revised on 1 March 2018). As well as providing useful information about VCAT’s proc-esses and hearings, it contains links to applications and other forms.