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When guardian or administrator can be appointed

Decisions about the appointment of a guardian or an administrator are made under the Guardianship List at VCAT. When making decisions VCAT must decide within the framework of the object and general principles of the Act.

See Object and principles.

For orders made after 29 February 2020, VCAT may only make an order if satisfied that:

  • because of the person's disability, they do not have decision-making capacity in relation to a personal or financial matter
  • the order will promote the person's personal and social wellbeing
  • the person needs an order taking into consideration:
    • the will and preferences of the person (VCAT has to try to find out what these are)
    • if the decisions can be made informally through negotiation or mediation
    • the wishes of any primary carer, relative or someone with a direct interest in the application
    • important relationships that the person has and benefits from maintaining.

See ss. 30, 31—Guardian and Administration Act 2019 (Vic)(opens in a new window).

How is disability defined?

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 of 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).

Role of the proposed represented person

The Act clarifies that the proposed represented person is a party to the proceedings, and as such, is expected to participate in the hearing if this is possible. They are entitled to be notified of the proceeding and can attend by phone or by video rather than appearing in person.

The proposed represented person must attend unless VCAT is satisfied that:

  • the person does not want to attend
  • their attendance is impractical or unreasonable.

See s. 25, 26, 29—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Supportive guardian or adminstrator is preferred

VCAT must not appoint a guardian or administrator if they reasonably believe that the proposed represented person can make the decision with help from a supportive guardian or supportive administrator. So, even if someone applies to VCAT for a guardianship or administration order, VCAT may decide that a supportive order will be enough. This allows the person with the decision-making disability to make their own decisions with support.

See Support guardians and administrators

Child under 18 without capacity

Where a child who is under 18 has a disability that means that they cannot make decisions for themselves the child's parents or carers retain guardianship responsibility unless there is intervention from:

  • Department of Health and Community Service
  • Children's Court, or
  • Supreme Court.

VCAT does not have jurisdiction to appoint an administrator or guardian for a child. However, parents can plan ahead to prepare for a time when they may no longer be able to care for or to make decisions about the child in future. VCAT may hear an application but the appointment will not start until the child is 18.

See Office of the Public Advocate—Securing their future(opens in a new window).

Who can be appointed?

A guardian or administer cannot be appointed unless they:

  • are an adult (over 18)
  • will act according to the duties
  • their interests do not, or are unlikely to conflict with the interests of the proposed represented person
  • are suitable to act for the person
  • consent to the appointment.

Additional requirements for an administrator

In addition to the requirements above, VCAT cannot appoint a person (or body corporate) to act as an administrator unless they have sufficient expertise.

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

How suitability is assessed

When VCAT is deciding if a person is suitable to be a guardian or administrator they must consider:

  • the will and preferences of the proposed represented person as far as this can be discovered
  • the desirability of preserving existing relationships that are important to the proposed represented person, and of appointing someone known to that person, rather than a stranger
  • if the person will be available to meet and communicate with the proposed represented person
  • if they will work co-operatively with any current guardians or administrators
  • if the proposed administrator is or was a member of VCAT.

A relative who is a proposed guardian or administrator is not to be found unsuitable just because:

  • their interests may conflict with those of the proposed represented person, because they are related, or
  • they disagree with another relative of the proposed represented person.

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

Statement of wishes to be considered

A guardian, administrator (including supportive roles), primary carer or relative may lodge a statement of wishes for the future appointment of a guardian or administrator for a represented person. If such a statement is lodged, VCAT must take it into account when assessing eligibility.

See ss. 32(6), 35—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Joint appointments

VCAT may appoint joint guardians for a proposed represented person if they decide that person is eligible and VCAT believes it is appropriate.

One of these joint appointments may be the Office of the Public Advocate.

See s. 33—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

More information

Legislation

Guardian and Administration Act 2019 (Vic)

  • s. 4—meaning of promote the personal and social wellbeing of a person
  • s. 5—meaning of decision-making capacity
  • s. 30— VCAT may make a guardianship or administration order
  • s. 31—factors considered in deciding if a guardian or administrator is needed
  • s. 32—persons eligible as guardians or administrators
  • s. 33—other matters pertaining to appointments
  • s. 35—statement of wishes for future appointments

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

Office of Public Advocate

This publication aims to assist parents, relatives or significant others of a child who has a decision-making disability. The publication explains how to appoint a power of attorney to appoint someone to make decisions if the person can no longer make decisions about their child themselves; make a Will so that assets are passed on in a way that allows for the provision of that child.

See Office of the Public Advocate—Securing their future(opens in a new window).

Updated