Guardianship and Administration Applications at VCAT in Victoria

Decision-making capacity and support (sections 5–6)

Sections 5 and 6 of the Act contain the operative provisions on decision-making capacity. Under section 5, a person has decision-making capacity for a matter if the person is able to understand the information relevant to the decision and the effect of the decision, retain that information to the extent necessary to make the decision, use or weigh that information as part of the process of making the decision, and communicate the decision and the person's views and needs in some way, including by speech, gestures or other means. Capacity is decision-specific and time-specific: a person may have capacity for some decisions and not others, and capacity may fluctuate.

Section 5 also directs that a person is presumed to have decision-making capacity unless there is evidence to the contrary, that capacity must be assessed on the basis of the person's ability to make the decision at the time the decision needs to be made (not on the basis of the person's ability to make other decisions), and that a person is not to be assessed as lacking capacity only on the basis of the person's appearance, only because the person makes a decision that another person considers unwise, or only because the person has a disability.

Section 6 requires that a person be provided with the practicable and appropriate support that will enable the person to make and participate in decisions affecting the person's life. Support may include information in an appropriate form, extra time, involvement of trusted people, assistive technology and communication aids. The statutory test in section 5 is applied only after the support required by section 6 has been provided.

General and decision-making principles (sections 8–9)

Section 8 sets out general principles that apply to the operation of the Act, including that a person's inherent dignity, individual autonomy and independence are to be respected, that a person has the right to make decisions about matters affecting the person's life (including decisions involving a degree of risk) and that a person's personal and social wellbeing is to be promoted.

Section 9 contains the decision-making principles that apply when a person is appointed to make decisions for another person under the Act. The appointee must give all practicable and appropriate effect to the represented person's will and preferences, so far as they can be ascertained. Where the represented person's current will and preferences cannot be ascertained, or where giving effect to them would be likely to result in serious harm to the person, the appointee must act in the way that would promote the personal and social wellbeing of the person, having regard to the person's known will and preferences and to the need to make the decision in the way least restrictive of the person's rights.

Guardianship, administration and supportive orders distinguished

The Act provides for three distinct kinds of order in the Guardianship List. A guardianship order appoints a guardian to make specified personal matters decisions for the represented person. An administration order appoints an administrator to make specified financial matters decisions. A supportive guardianship or supportive administration order appoints a supporter to help the person to make and give effect to the person's own decisions where the person retains decision-making capacity with support. The supportive orders are not substitute decision-making orders: authority to make the decision remains with the represented person. The Act treats personal and financial matters as separate subject areas, and an order in one area does not, by itself, confer authority in the other.

Applications, parties, notice and participation (sections 22–29)

Section 22 provides that a person may apply to VCAT for the appointment of a guardian for another person, and section 23 provides that a person may apply to VCAT for the appointment of an administrator for another person. Standing to apply is governed by the terms of sections 22 and 23; the applicant must comply with the subject- matter requirements in those sections and the application requirements in the Act and the VCAT rules. Applications are ordinarily made by family members, close friends, treating hospitals, residential aged-care providers, the Public Advocate or other people who are concerned about the proposed represented person's decision-making needs.

Sections 24 to 29 deal with the making of the application, notice to the proposed represented person and to other interested people, the role of the Public Advocate in providing information to VCAT, and the participation of the proposed represented person and other people in the hearing. VCAT can join or invite other people to participate where their participation is necessary or desirable. VCAT's directions govern the mode of the hearing (in person, by telephone or by video link) and any reasonable adjustments needed to enable the proposed represented person to participate.

Applications are made on the current VCAT form for the Guardianship List. Application and fee information, including any fee-waiver arrangements, should be checked against VCAT's published guidance for this application type at the time of filing, because those arrangements change from time to time.

Order criteria and need (sections 30–31)

Section 30 contains the criteria VCAT must be satisfied of before making a guardianship or administration order. In summary, VCAT must be satisfied that the person has a disability, that because of the disability the person does not have decision-making capacity for the personal or financial matter in question, that the person is in need of a guardian or administrator, and that the order will promote the person's personal and social wellbeing. Disability is defined in the Act to include neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability and dementia.

Section 31 identifies the matters relevant to whether the proposed represented person is in need of a guardian or administrator. Those matters include the wishes of the person, the desirability of preserving existing relationships that are important to the person, whether the person's needs could be met by other means less restrictive of the person's freedom of decision and action, and the practicability of services being provided without an order. All statutory criteria must be met on the material before VCAT; a diagnosis, a disability or the person's age is not, of itself, sufficient.

Eligibility and appointment (sections 32–33)

Section 32 sets out the eligibility requirements for appointment as both a guardian and an administrator, including that the proposed appointee will act in accordance with the Act, will not be in a position of conflict of interest that cannot be managed, and is otherwise suitable to act for the person in relation to the matters to which the order relates. State Trustees or another proposed administrator may be appointed only if the applicable requirements in section 32 are met.

Section 33 addresses other matters concerning appointment, including the statutory condition governing the appointment of the Public Advocate as guardian and the provisions for the appointment of joint guardians. The Public Advocate may be appointed as guardian only where the express statutory condition in section 33 is satisfied. In choosing between eligible appointees VCAT considers the will and preferences of the person about the appointee, the appointee's relationship with the person, any conflict of interest, and the person's personal and social wellbeing.

Order scope, content and powers (section 34, sections 38–40, sections 46–53)

Section 34 sets out the matters that a guardianship order and an administration order must specify. A guardianship order is limited to the personal matters specified in it, which may include decisions about accommodation, health care (other than medical treatment governed by the Medical Treatment Planning and Decisions Act 2016 (Vic)), access to services, access to persons and everyday personal arrangements. An administration order is limited to the financial matters specified in it. The order can be drafted narrowly where narrow authority is sufficient.

Sections 38 to 40 concern the powers of a guardian and the limits on those powers, including the requirement to act within the scope of the appointment and in accordance with the general and decision-making principles. Sections 46 to 53 concern the powers of an administrator and the limits on those powers, including powers to deal with the represented person's property, income and financial affairs to the extent authorised by the order. Personal and financial powers are conferred separately by the guardianship and administration provisions; a guardianship order does not confer financial powers and an administration order does not confer personal powers.

Duties, records and accounts (section 41, sections 55–63)

Section 41 sets out the duties of a guardian, including the requirement to act in accordance with the decision-making principles in section 9, to act honestly, diligently and in good faith, to exercise reasonable skill and care, and to avoid acting in relation to a matter where there is, or may be, a conflict of interest. Section 41 imposes a duty of avoidance on a guardian; it does not contain the administrator-specific authorisation and validation regime.

Sections 55 to 63 address the duties of an administrator, the administrator's dealings with the represented person's property, the keeping of records and the keeping and lodgement of accounts, and the treatment of transactions in which the administrator has an interest. Section 55 requires an administrator to act in accordance with the Act and the order. Sections 57 and 58 provide the specific regime for conflict transactions by an administrator, including the circumstances in which such a transaction may be authorised by VCAT and the validation of transactions in defined circumstances. Administrators separately keep clear records of income and expenditure, keep the represented person's funds separate from their own, and lodge accounts and reports with VCAT as directed.

Urgent orders (section 36) and initial hearing (section 37)

Section 36 permits VCAT to make an urgent guardianship or administration order, and to waive specified procedural requirements otherwise applicable, where VCAT is satisfied on reasonable grounds that, without the order, there is an immediate risk of harm to the health, welfare or property of the proposed represented person. An urgent order takes effect on the terms specified in the order and lasts for the period specified by VCAT, not exceeding 21 days. Section 36 permits the urgent order to be renewed once for a further period not exceeding 21 days.

Section 37 requires VCAT, as soon as practicable and within 42 days after making an urgent order, to hold a hearing to determine whether a non-urgent guardianship or administration order should be made. The urgent order procedure is directed to the immediate protection of the person while the non-urgent application is prepared and heard.

Advice, directions and compensation

Guardians and administrators can apply to VCAT for advice or directions where they are uncertain about the extent of their authority or the appropriate course. VCAT may require accounts from an administrator, remove or replace an appointee, and, where the represented person has suffered loss caused by a contravention of the Act by an appointee, order compensation on the basis identified in the Act. The availability of any remedy in a particular case depends on the statutory test and the evidence.

Reassessment (section 159) and orders on reassessment (section 167)

Section 159 provides that VCAT may, on its own initiative or on the application of any other person, conduct a reassessment of an order made under the Act. Section 159 is the source of the power to conduct the reassessment. The orders VCAT may make following a reassessment are set out in section 167, which authorises VCAT (on being satisfied of the relevant matters) to continue the order unchanged, vary the order, revoke the order or appoint a different guardian or administrator.

The reassessment considers whether the statutory criteria in section 30 remain met, whether the appointee continues to be suitable, whether the scope of the order remains appropriate, and whether the order should be varied or revoked. Where the person's decision-making capacity has returned for the matters in question, or a less restrictive alternative is now available, the order can be revoked.

Rehearing (Part 7 Division 1, sections 150–158)

Part 7 Division 1 of the Guardianship and Administration Act 2019 (Vic), comprising sections 150 to 158, contains the rehearing procedure for decisions of the VCAT Guardianship List. Those sections identify who may apply for a rehearing, the time limits, the effect of a rehearing application on the decision under challenge and the powers of VCAT on rehearing. The rehearing procedure is the procedure identified by the Act itself; the characterisation of that procedure by reference to provisions of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) should be checked against the current text of the relevant Acts.

Appeal on a question of law (section 148 VCAT Act)

Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides for an appeal to the Supreme Court of Victoria from a VCAT order on a question of law. The appeal is not a merits review; the appellate court's role is confined to the question of law identified. Section 148 imposes procedural requirements, including the time limit for lodging the appeal and the requirement for leave in the circumstances specified in the provision. Whether an appeal is available in a particular case, and whether leave is required, depends on the current text of section 148 and the surrounding provisions of the VCAT Act.

Enduring powers of attorney and medical-treatment appointments as separate regimes

Enduring powers of attorney under the Powers of Attorney Act 2014 (Vic) are made by the principal while the principal has decision-making capacity. An enduring attorney's authority is defined by the instrument and by that Act; the instrument may cover personal matters, financial matters, or both. Supportive attorney appointments under the same Act enable a person with decision-making capacity to obtain support from a nominated person in the exercise of their own decision-making.

Medical treatment decisions are governed by the Medical Treatment Planning and Decisions Act 2016 (Vic). A medical treatment decision maker may be appointed under that Act to make medical treatment decisions for a person who does not have decision-making capacity for the treatment in question. Advance care directives made under that Act may also apply. These regimes are separate from the Guardianship and Administration Act 2019 (Vic) and are not automatically displaced by an order under it. Where a valid enduring appointment covers the matter, the Act requires VCAT to consider whether an order is necessary, and VCAT has jurisdiction under the Powers of Attorney Act to review, vary or revoke enduring appointments in appropriate cases.

Part 6 special medical procedures

Part 6 of the Guardianship and Administration Act 2019 (Vic) addresses "special medical procedures" as that term is defined in the Act, and prescribes the consent process that applies to them. Whether a particular procedure is a special medical procedure, and the role VCAT has (if any) in the consent process, is determined by the terms of the Act and the circumstances of the case. Consent to medical treatment more generally is governed by the Medical Treatment Planning and Decisions Act 2016 (Vic).

Evidence and hearing process

A guardianship or administration application is decided on the material before VCAT. Applicants ordinarily file the completed application form, a description of the decisions that the proposed represented person is said to have difficulty making, details of the person's assets, income and liabilities in an administration application, the identity and consent of any proposed appointee, and any current enduring appointments. Medical or allied- health evidence directed to decision-making capacity for the specific decisions in issue is central because capacity is decision-specific and time-specific under section 5. There is no universal requirement for a specified form of report; VCAT considers the evidence available.

Guardianship List hearings are conducted in a way that allows the proposed represented person to participate to the extent practicable, by telephone, by video link or in person. Family members, supporters, the applicant and other interested people may attend and be heard. The proceedings are conducted with as little formality as the circumstances permit consistent with fairness. VCAT considers the person's will and preferences and applies the general principles in section 8 to the material before it.

Legal representation (section 62 VCAT Act)

Under section 62 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), a party may be represented by a professional advocate in the circumstances identified in the provision, including with the leave of the Tribunal. The provision contains exceptions and qualifications that apply to particular kinds of proceeding. Representation arrangements for a Guardianship List proceeding are governed by the current text of section 62 and any applicable practice notes. Legal representation may be sought through private practitioners, community legal centres and Victoria Legal Aid where eligibility criteria are met.

Confidentiality, publication and access to files

Guardianship List proceedings involve sensitive personal, medical and financial information. The Act and the Victorian Civil and Administrative Tribunal Act 1998 (Vic) contain provisions permitting VCAT to restrict publication of identifying information and to control access to the file. Parties, the represented person, family members and other participants can seek orders addressing confidentiality and publication in appropriate cases. Copies of medical and other expert evidence, applicants' materials and Tribunal orders are ordinarily provided to the parties as part of the proceeding, subject to any confidentiality orders.

Public Advocate: functions under the Act

The Public Advocate has statutory functions under the Guardianship and Administration Act 2019 (Vic) that intersect with the Guardianship List's work. Those functions include investigating a complaint or allegation that a person with a disability is being exploited or abused or is in need of a guardian, providing information and advice, and, where appropriate, making an application or appearing in a proceeding. Where VCAT is considering an application, it may seek a report from the Public Advocate on defined matters. The Public Advocate also has functions under the Powers of Attorney Act 2014 (Vic) and the Medical Treatment Planning and Decisions Act 2016 (Vic). The scope of the Public Advocate's role in any individual case is defined by the current statutory functions and the referral or appointment made in the proceeding.

Removal, replacement and resignation of appointees

A guardian or administrator may be removed by VCAT on reassessment under section 159 where the appointee is no longer suitable, for example because the appointee has contravened the Act, has become unable or unwilling to act, or a conflict of interest cannot be managed. Section 167 authorises VCAT, on reassessment, to appoint a different guardian or administrator. An appointee may also resign in accordance with the requirements of the Act. Continuity of decision-making for the represented person and the availability of a suitable replacement are matters VCAT addresses when a transition between appointees is required.

Duration of orders and reassessment

Under section 159(2) of the Guardianship and Administration Act 2019 (Vic), VCAT must reassess an applicable order within 12 months after making the order unless VCAT orders otherwise, and in any case must reassess the order at least once within each three-year period after making the order unless VCAT orders otherwise. Section 159(3) provides that VCAT may, on its own initiative or on the application of any other person, reassess an order at any time.

Section 167 sets out the orders VCAT may make after a reassessment. VCAT may amend, vary, continue or replace the relevant order (subject to any conditions or requirements) or may revoke it. The order made after reassessment depends on the statutory criteria and the evidence about the person's circumstances at the time of the reassessment.

Costs

The starting position in VCAT proceedings is that each party bears their own costs. VCAT may award costs in the circumstances identified in section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), including where a party has conducted the proceeding in a way that unnecessarily disadvantages another party. The exercise of that discretion is a matter for the Tribunal on the facts.

Interaction with wills, estate planning and other schemes

An order under the Guardianship and Administration Act 2019 (Vic) does not, by itself, revoke a valid Will. An administrator ordinarily has no authority to make or alter the represented person's Will; statutory wills are a separate jurisdiction under the Wills Act 1997 (Vic). Where the represented person is a participant in the National Disability Insurance Scheme, the plan- management and nominee arrangements under the NDIS Act 2013 (Cth) may intersect with a Victorian guardianship or administration order; whether a nominee is needed in addition to a Victorian order depends on the decisions in issue and the interaction of the two frameworks. See our companion article on how to make a Will in Victoria for the estate-planning framework, and on powers of attorney in Victoria for the enduring-appointment framework.

Related Parke Lawyers services

Our powers of attorney and elder law practice can assist with VCAT guardianship and administration applications, contested hearings, reassessments and interaction with enduring appointments.

Frequently asked questions