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Key changes to guardianship and administration in 2020

Information to explain the changes that apply to guardianship and administration law, that commence on 1 March 2020.

From 1 March 2020, a new Act provides the legal framework for VCAT to appoint a guardian or administrator for a person with a disability who does not have decision-making capacity for a particular decision. The Act defines decision-making capacity and sets out how decision-making capacity is to be assessed. A person is presumed to have capacity unless evidence is provided to the contrary.

VCAT now has the power to appoint a supportive guardian or supportive administrator to help a person to make their own decisions. The Act retains the public advocate as an independent statutory office to promote the rights and interests of a person with a disability.

The Act recognises the need to support people with a disability to make, participate in, and implement decisions that affect their lives. It provides that a person's 'will and preferences' should direct decisions that affect them as far as possible, and should only be overridden in order to prevent serious harm. This is a significant departure from the former idea of acting in the 'best interests' of a person with a disability.

Before VCAT makes any guardianship or administration order it must consider if that person can make their own decisions with support, or whether the decisions can be made by informal means. VCAT must also consider the appointment of a relative or person known to the represented person, rather than a stranger.

The person about whom the application is made (proposed represented person) is strongly encouraged to attend the hearing. Hearings are able to be conducted in a variety of ways, including by phone or video link.

See What is decision-making capacity?

Orders made under the old Act

Unless expressly stated (or by necessary implication) in the Guardianship and Administration Act 2019 ('the New Act'), all persons, things and circumstances appointed or created under the Guardianship and Administration Act 1986 ('the Old Act') immediately before 1 March 2020, continue to have the same status, operation and effect as they would have, had the Old Act not been repealed.

Any guardianship and administration orders made under the Old Act that were in force immediately before 1 March 2020 remain in force for the period specified in the order, or until revoked or set aside by VCAT or by a court order.

Exceptions

Some provisions of the New Act will apply to guardians, administrators and their represented persons who are subject to an order made under the Old Act.

For guardians and their represented persons, these are:

  • resolution of disagreements (s. 177 of New Act applies)
  • enforcement orders (s. 178 of New Act applies)
  • compensation (ss. 181-186 of New Act applies, as if the contravention were a contravention of the Old Act that happened after 1 March 2020.
  • offence of using guardianship order dishonestly (s. 188 of New Act applies)
  • treatment of temporary orders.

For administrators and their represented persons, these exceptions are:

  • if a provision of an order made under the Old Act, gave the administrator the power to bring and defend actions and other legal proceedings in the name of the represented person, they must follow the procedure set out in s 51 of the New Act
  • resolution of disagreements (s. 177 of New Act applies)
  • enforcement orders (s. 178 of New Act applies)
  • compensation (ss. 181-186 of New Act applies, as if the contravention were a contravention of the Old Act that happened after 1 March 2020.
  • offences for dishonest use of administration order (s. 189 of New Act applies)
  • treatment of temporary orders
  • Part 3, Div 8 of the New Act applies to Administrators pursuant to an order under the old Act, including:
    • the administrator's power to seek advice from personal advisor
    • VCAT powers in relation to a Will
    • VCAT notification if person ceases to be an administrator
    • payment of outstanding money to represented person
    • VCAT power to order delivery or access to documents

See ss. 197, 198, 199—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Primary object

A new primary object appears in the 2019 Act. The primary object of the new Act is to protect and promote the human rights and dignity of persons with a disability by:

  • having regard to the Convention on the Rights of Persons with Disabilities
  • recognising the need to support persons with a disability to make, participate in and implement decisions that affect their lives
  • enabling VCAT to set safeguards and appropriate limitations on the powers of guardians and administrators when making orders
  • requiring regular review of any orders made
  • providing guidance for guardians and administrators when making decisions for represented persons as required.

See s. 7—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Significant changes

The significant changes are:

Terminology

The new Act attempts to align concepts and terminology as much as possible with other Victorian Acts that deal with substitute decision-making, namely the:

  • Mental Health Act 2014
  • Medical Treatment Planning and Decisions Act 2016
  • Powers of Attorney Act 2014.

The Old and the New Act

For the purpose of this topic, references to the 'Old Act' mean the Guardianship and Administration Act 1986. Where a reference is made to the 'New Act', it means the Guardianship and Administration Act 2019. The Old Act is repealed on 1 March 2020.

From this date references to the Old Act will be deemed a reference to the New Act unless the contrary intention appears.

See Part 10—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Disability

A disability for the purposes of the Act is defined as a neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability or dementia.

See s. 3(1)—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Decision-making capacity

A person is presumed to have decision-making capacity unless there is evidence to the contrary.

Decision-making capacity means that a person is able to:

  • understand information relevant to the decision
  • understand the effect of the decision
  • retain the information long enough to make the decision
  • use that information in the process of making the decision
  • communicate the decision and their views of the decision in some way (including by gesture, speaking, or other means).

A person has decision-making capacity if they can make decisions with support.

This definition is intended to prevent unnecessary appointments of guardians and administrators.

See s. 5—Guardianship and Administration Act 2019 (Vic)(opens in a new window) and What is decision-making capacity?

Personal and social wellbeing

There are many references in the Act to the obligation to promote the personal and social wellbeing of a person. The Act gives an inclusive definition to help decision-makers to consider and follow this requirement when making decisions about a person who has impaired decision-making capacity. Personal and social wellbeing will be promoted by:

  • recognising the inherent dignity of a person
  • respecting their individuality
  • having regard to the person's existing supportive relationships, religion, values, and cultural and linguistic environment
  • respecting the confidentiality if confidential information that relates to the person
  • recognising the importance to that person of any companion animal that the person has and the benefits that may be obtained from having that animal.

See s. 4—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Orders are tailored and specific and only made if necessary

No more plenary orders

Before 1 March 2020, there were 2 kinds of orders that could be made: a plenary guardianship or administration order, which conferred all of the powers that a guardian or administrator would have if they were a parent and the represented person was their child. A limited guardianship or administration gave power to make limited and specified decisions. The new Act has a much stronger focus on maximising opportunities to give the represented person as much power as possible to make decisions for themselves, even if they need support to help make these decisions.

VCAT is required to specify the powers it gives to a guardian when it is making an order. Guardians are now appointed in relation to one or more specified matters. This is to ensure that an order is necessary and appropriate.

See ss. 30, 31, 39—Guardianship and Administration Act 2019 (Vic)(opens in a new window) and Responsibilities of guardians and administrators

No more temporary orders

Under the new Act temporary orders have been replaced by urgent orders.

See Urgent orders.

Temporary orders made under the old Act

From 1 March 2020, despite the repeal of the Old Act, a temporary guardianship or administrative order that was made under the Old Act may be renewed once according to s. 33(2) of the Old Act.

VCAT must then hold a hearing to decide whether a guardianship order should be made under the New Act. This should be done as soon as possible after making the temporary extension, but must be made within 42 days after making that order.

See s. 198(3)—Guardianship and Administration Act 2019 (Vic)(opens in a new window)

Principles to be considered

General principles and decision-making principles have been added into the New Act. These require anyone exercising power under the Act to consider these, including VCAT. Decision-makers (such as guardians, administrators and supportive guardians/administrators are further required to follow a set of decision-making principles whenever they make a decision under the Act.

See Object and principles

Supportive guardianship and/or supportive administration orders

The largest change, to enable VCAT to appoint supportive guardians and administrators aims to ensure that as far as possible, a person with impaired decision-making capacity is able to participate as much as possible in decisions affecting them. This is a significant move from decision-making in the person's best interests of a person with a decision-making disability.

The law recognises the seriousness of appointing someone to make decisions on behalf of a person and this will be done as minimally as possible under the circumstances. So, orders will not be made unless they are necessary, and a guardian or administrator will not be appointed if VCAT considers that a supportive guardian or administrator would enable the person to retain as much autonomy as possible.

A supportive guardian or supportive administrator does not make decisions for the person, but will have the power to support the person to make and to give effect to their own decisions.

See Support guardians and administrators

Joint guardians

VCAT may appoint joint guardians if it considers this is appropriate. This could be 2 individuals or could be one individual acting jointly with the Public Advocate.

See s. 32—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Improvements to the way applications are processed by VCAT

Statement of wishes for future appointments

A guardian, administrator, supportive decision-maker, relative or primary carer may lodge a formal statement of wishes for a future guardian or administrator. This statement must set out the wishes of the person lodging the document about the future appointment of a decision-maker for the represented person, giving reasons for their wish.

See s. 35—Guardianship and Administration Act 2019 (Vic)(opens in a new window)

Compensation for loss

The Supreme Court or VCAT may order a guardian or administrator to compensate the represented person for a loss that is caused by them contravening the Act. If the represented person has died, the compensation is payable to their estate.

See Offences and compensation.

Ability to seek enforcement of decisions

Guardians and administrators may apply to VCAT for an enforcement order in relation to a decision or an act.

See Responsibilities and powers of guardians and administrators.

Ability to seek advice

A guardian or administrator may apply to VCAT seeking advice about the scope of their powers.

See Responsibilities and powers of guardians and administrators.

Offences for misuse of powers

Several offences apply for guardians or administrators who act dishonestly or who contravene an order.

See Offences and compensation.

Dispute resolution

Guardians and administrators who have been appointed for the same represented person can participate in a dispute resolution process. They are required to consult with each other where their powers and duties overlap. However, the powers of the guardian will prevail over those of an administrator unless VCAT otherwise orders.

See Responsibilities and powers of guardians and administrators.

More information

Legislation

Guardianship and Administration Act 2019 (Vic)

  • Part 1—preliminary
    • s. 5—defines capacity
    • s. 7—primary object
  • Part 2—The public advocate
  • Part 3—Guardianship orders and administration orders
  • Part 4—Supportive guardianship orders and supportive administration orders
  • Part 5—Administration of missing persons
  • Part 6—Special medical procedures
  • Part 7—Rehearings and reassessment
  • Part 10—Repeal of Guardianship and Administration Act 1986 and savings and transitional provisions

See Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Reference

Ready reckonner comparing the old and new Acts.

This table, compiled by VLA's Catherine Leslie, Senior lawyer, Mental Health and Disability team, compares the differences between the old and new Acts.

Comparative table between 2019 and 1986 Acts (pdf, 106 KB)(opens in a new window).

Updated