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.
Who can be appointed?
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) GA Act 1986).
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 GA Act 2019 (s 32, pt 3, divs 3, 7) adds that the proposed guardian or administrator must be prepared to act in accordance with the duties set out in the Act.
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) GA Act 1986; s 32(5) GA Act 2019).
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) GA Act 1986); and, in the case of administration, whether they were at any time a member of VCAT (s 46(2) GA Act 1986; s 32(3) GA Act 2019).
If there is no person available who satisfies all the above criteria, VCAT may appoint the Public Advocate (s 23(4) GA Act 1986) to be a person’s guardian. Where it considers it appropriate, VCAT can appoint more than one person to be joint guardians, or to be guardians with the Public Advocate (s 23(5) GA Act 1986; s 33 GA Act 2019).
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 GA Act 1986). There is no power to appoint an alternative administrator. There is no equivalent role in the GA Act 2019.
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 the Public Advocate’s contact details, see “Contacts”. 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 GA Act 1986). The GA Act 2019 removes the power to appoint a plenary guardian. A limited guardian has the powers and duties that VCAT specifies in the order appointing them (s 25 GA Act 1986).
Under the GA Act 2019, a guardian’s powers relate to nominated personal matters (these are defined in section 3). These matters can include legal matters that are related to the nominated personal matters.
A guardian must act in the best interests of the represented person by doing everything possible to advocate for the represented person. A guardian must encourage the person’s participation in the community, encourage their independence and protect them from neglect, abuse or exploitation. A guardian must act in consultation with the represented person, and take into account, as far as possible, their wishes (s 28 GA Act 1986).
The GA Act 2019 (ss 8, 9) requires guardians to apply decision-making and general principles when making decisions. Guardians must also adhere to the duties set out in section 41 of the GA Act 2019; many of these duties are in the GA Act 1986.
Guardians for health care are usually empowered to make medical treatment decisions in accordance with the Medical Treatment Planning and Decisions Act 2016 (Vic) (“MTPD Act”). 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 Personal Safety Intervention Orders Act 2010 (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 GA Act 1986). 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) GA Act 1986), 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) GA Act 1986).
An administrator does not have the power to execute a will in the name of a represented person (s 50(2) GA Act 1986), 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 GA Act 1986; s 49 GA Act 2019).
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) GA Act 1986).
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. See “Account by Administrator (ABA)” on VCAT’s website (www.vcat.vic.gov.au).
The GA Act 2019 sets out the administrator’s powers in part 3, division 6. Administrators are bound by the general and decision-making principles in sections 8 and 9. Section 46 sets out the powers necessarily conferred on an administrator. Sections 51 and 52 set out the powers VCAT may specify in an order. Section 53 sets out what powers cannot be given to an administrator.
VCAT may appoint a supportive guardian or an administrator in response to an application for such an appointment. VCAT may appoint a supportive person if the proposed represented person consents. VCAT must be satisfied that the proposed represented person has the decision-making capacity (if they are given the right support) to give their consent. The appointment must also promote the person’s personal and social wellbeing.
The GA Act 2019 sets out:
• who is eligible to be a supportive guardian or administrator (s 88);
• that the order appointing a supportive guardian or administrator must specify the personal or financial matter involved (s 89);
• the types of powers given to the supportive guardian or administrator (ss 90–93);
• the duties and obligations of the supportive guardian or administrator (s 94);
• that the supportive guardian or administrator has no entitlement to renumeration (s 95);
• when a supportive guardian or administrator order ceases to have effect (s 96);
• the represented person’s ability to obtain advice from VCAT (s 97);
• the supportive guardian’s or administrator’s obligation to report the represented person’s death to VCAT (s 98).
A supportive guardian or administrator order must be reassessed within 12 months, unless VCAT orders otherwise. All supportive guardian or administrator orders must be reassessed within three years (s 159).