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

Applying to VCAT

Any person may apply to VCAT for an order appointing a guardian or administrator for a person with disability who is at least 18 years old, or to take effect when the person turns 18 (ss 19, 43 GA Act 1986). All applications should be made on the form provided by VCAT. The GA Act 2019 (s 24) sets out information to be included in the application.

The applicant must send a copy to the person about whom they are applying (i.e. the proposed represented person) and to the person’s primary carer, their nearest relative, and to the existing (or proposed) guardian or administrator. The list of people in the GA Act 2019 (s 26) differs a little to that in the GA Act 1986. Section 27 (GA Act 2019) outlines what information must be contained in the notice.

Once lodged, applications can only be withdrawn with VCAT’s consent.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 GA Act 2019 (s 28) requires there to be a hearing within 30 days unless VCAT requires the parties to attend a compulsory conference or mediation. Hearings are generally 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.

VCAT requires the applicant to attend the hearing, and to make arrangements for the proposed represented person to attend. If the person is unable or unwilling to attend the hearing, the applicant must advise VCAT (see s 29 GA Act 2019). The proposed guardians or administrators should attend the hearing, and should provide a plan identifying the decisions that need to be made, and outline the way they propose to make those decisions. Under the GA Act 2019, any plan needs to reflect the engagement of the principles set out in sections 8 and 9.

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”). The GA Act 2019 permits the OPA to engage a registered company auditor.

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 VCAT to assist the parties.

The VCAT hearing

Overview

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?

These three issues essentially continue in the GA Act 2019 (s 30).

VCAT must also apply the principles set out in section 8 of the GA Act 2019, which include:

Can the proposed represented person be supported to make decisions, rather than their guardian or administrator make decisions for them?

What are the proposed represented person’s will and preferences?

What option is the least restrictive of the person’s ability to make decisions and to act?

Disability

“Disability” is defined as intellectual impairment, mental disorder, brain injury, physical disability or dementia (s 3(1) GA Act 1986). In the GA Act 2019, neurological impairments are included within the definition of disability. 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 (www.vcat.vic.gov.au).

Reasonable judgment

Whether a person has reasonable judgment is usually determined using evidence from involved professionals, from the person and from others about the person’s past and current decision-making, and by examining the connection between the disability and decision-making. The GA Act 2019 continues to require a connection between the proposed represented person’s disability and decision-making, but this criterion is cast in terms of the person’s decision-making capacity. This is defined in section 5 as the person being able to (in relation to a specific matter):

understand the information;

retain the information;

use or weigh-up the information in the process of making a decision; and

communicate the decision.

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 1986).

The GA Act 2019 (s 31) looks at need through the lens of the person’s will and preferences, and whether it would be more suitable to make decisions through informal means or through negotiation or mediation.

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 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 1986) (seeMedical treatment”).

Less restrictive means

This concept is not limited to the consideration of the need for an administrator or guardian, but significantly appears as a stated object of the legislation as a whole (s 4(2)(a) GA Act 1986).

Where VCAT appoints an administrator or guardian, the order must be 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 not meet the person’s needs (s 22(4)).

This sentiment remains in the GA Act 2019 (s 8(1)(c)), with minor wording changes. VCAT can make a supportive guardianship or administration order instead of a guardianship and administration order (s 87).

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 1986).

This concept is gone from the GA Act 2019. Nonetheless, VCAT must act in a manner that promotes the person’s “personal and social wellbeing” (s 30(c)) – this is defined in section 4.

Person’s wishes

Another general principle that applies to all functions under the GA Act 1986 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 in place of the person’s wishes is XYZ v State Trustees Ltd [2006] VSC 444. The GA Act 2019 does not use the term “wishes”; rather, it refers to a person’s “will and preferences”. “Will and preferences” comes from Article 12 of the CRPD. The exploration of a person’s will and preferences is required by the principles in section 8 (GA Act 2019).

Emergency orders

In an emergency, an application 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 1986). 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 making the temporary order, and no later than the expiry of the second 21-day period, to determine whether ongoing orders should be made.

The GA Act 2019 (s 36) is more specific about how an emergency order is justified.

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.