Understanding the intricacies of Guardianship and Administration Orders in Victoria can be vital in safeguarding the interests of individuals with reduced decision-making capacity.
For some individuals, making decisions about personal, financial and medical matters may be especially difficult. Decision-making capacity can sometimes be diminished by neurological, intellectual and physical disabilities, mental illness, acquired brain injury or dementia.
This is not always the case however, and all individuals are presumed to have decision-making capacity unless the Victoria Civil and Administrative Tribunal (“VCAT”) finds that a person lacks capacity, based on evidence.
Guardianship orders allow a person to make decisions about certain personal matters for the person named in the orders, alternatively administration orders allow for a person to make decision about the person’s finances or legal matters.
Guardianship and administration orders are governed by the Guardianship and Administration Act 2019. Usually, guardians are a friend or family member of the person with reduced capacity, but if no one is available to fulfil this role, a Public Advocate can be appointed by VCAT as guardian.
Guardianship Orders and Supportive Guardianship Orders
Where a person is able to make decisions but requires support to do so, VCAT will make an order for supportive guardianship instead.
Supportive guardianship allows a person to help a person with reduced capacity to make decisions and can help to give effect to those decisions. A supportive guardian cannot make decisions on behalf of the person with reduced capacity, but instead supports a person with decisions about living arrangements, work arrangements, medical treatment and access to services.
A supportive guardian must discuss decisions with the individual requiring support in a way that they can understand, help them to make decisions and protect them from abuse and exploitation.
Guardianship orders on the other hand allow the person named to make decisions on behalf of the person with reduced decision-making capacity.
Guardians, like supportive guardians must still give effect to the individual’s preferences and must consult with the person whom they are making the decisions for.
Both guardians and supportive guardians have a duty to act honestly, diligently and in good faith, use care and skill, not use the position for profit, avoid acting if there is a conflict of interest. They are also not to share confidential information provided by the person that they are a guardian for, unless authorised by law or by the order.
Administration Orders and Supportive Administration Orders
Where a person is able to make decisions about their finances, but needs support to do so, VCAT may make supportive administration orders.
Supportive administrators help a person to make decisions about their financial affairs including selling and purchasing property, banking, investing, paying bills, and managing debts.
Administrators, however, can make decisions relating to a person’s finances on their behalf.
An administrator can manage a person’s property, pay their bills and buy things they want or need. Additionally, VCAT may give an administrator additional power such as the power to invest a person’s money, collect their income, run their business and sign contracts for them.
An administrator is usually a friend or family member of the person with the reduced decision-making capacity, or they may be their solicitor or accountant.
Administrators must also submit accounts to VCAT every year.
Applying for Guardianship or Administration Orders
A person wanting to become a guardian or administrator for a person with reduced decision-making capacity will need to fill out an application form about the individual requiring support and list their reasons for making the application.
The applicant will also be required to obtain a report from a doctor or other similar professional, detailing what kind of disability the individual has, how the disability impacts their ability to make decisions, and why they need a guardian or administrator.
The person with reduced decision-making capacity must be given a copy of the application.
VCAT will list a hearing to determine the outcome of the application.
Before approving an application VCAT will need to be satisfied that the individual requiring the support:
- Does not have decision-making capacity due to their disability;
- Is in need of a guardian or administrator; and
- Would have their personal and social well-beingpromoted by such an order.
Decision-Making Capacity
A person will be determined by VCAT to have decision-making capacity if they:
- Understand the information related to the decision;
- Understand the effect of their decisions;
- Retain that information long enough to make the decision;
- Weigh up that information and apply it to the decision; and
- Communicate the decision in some way.
Other Relevant Matters Considered by VCAT
When deciding whether guardianship or administration orders should be made, VCAT will also consider:
- What the individual’s living arrangements are and where would they like to live;
- Who do they have to support them;
- Do they have any major debts or assets;
- Do they have any health issues and what treatment would they need;
- What does their income look like; and
- Anything else that could be important such as religion, culture and hobbies.
The Role of a Lawyer
Whilst you do not need a lawyer to make a guardianship application, seeking legal advice is recommended as at the hearing certain evidence will need to be presented to support your case.
Navigating the complexities of Guardianship and Administration Orders in Victoria can be challenging. Should you require assistance with obtaining Guardianship orders, please contact Matthies Lawyers.
Contact us today for expert legal advice and support or call +61 3 8692 2517.
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Kate Scolyer – Solicitor– Matthies Lawyers
Disclaimer: This article contains general information only and is not intended to be a substitute for obtaining legal advice.