The Law Handbook 2024

851 NOTE The law in this chapter is current as at 1 September 2023. Introduction Who are guardians and administrators? Guardians and administrators are appointed when people are unable, because of their disability, to make decisions for themselves. These appointments are made by the Victorian Civil and Administrative Tribunal ( VCAT ). A guardian is appointed for personal matters, such as those relating to health, accommodation or access to services. An administrator is appointed for financial matters. Alternatively, VCAT can appoint a supportive guardian or a supportive administrator , who support the person to make decisions, but do not make decisions for them. The person for whom a guardian or administrator is appointed is known as the represented person . The represented person must have a disability for a guardian or administrator to be appointed. The represented person must lack decision-making capacity because of their disability. There must be a need driving the reason for the appointment. VCAT’s Guardianship List The Guardianship List of VCAT has the authority to appoint guardians and administrators, and to reassess and remove them. The procedure of the Guardianship List is governed by the provisions of the Guardianship and Administration Act 2019 (Vic) (‘ GA Act ’) and the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘ VCAT Act ’). Guardianship Act 2019 On 1 March 2020, the GA Act 2019 came into effect and replaced the Guardianship and Administration Act 1986 (Vic). The GA Act 2019 draws inspiration from the United Nations Convention on the Rights of Persons with Disabilities (2006) ( UNCRPD ) (see www.un.org) . That is, it emphasises the empowerment of people with disabilities to make decisions for themselves and to make decisions with support. Decisions are no longer tobemade in a person’s ‘best interests’.When a decision is made for a represented person, the decision-maker must consider – and as far as practicable be directed by – the person’s will and preferences. Appointing a guardian or administrator 1 Applying to VCAT Who can apply to VCAT for a guardianship or administration order? Any person may apply to VCAT for an order appointing a guardian or administrator for a person with disability who is at least 18 years old, or to take effect when the person turns 18 (ss 22, 23 GA Act). How to apply to VCAT for a guardian or administrator order All applications should be made online through VCAT’s website (www.vcat.vic.gov.au ). The GA Act (s 24) sets out the information to be included in the application. The applicant must send a copy of the application to the proposed represented person. Where relevant, copies should also be sent to the person’s spouse or domestic partner, their primary carer, any existing (or proposed) guardian or administrator, any person named in the application 8.5 Guardianship and medical treatment Contributor: Philip Grano, Principal Legal Officer (Retired), Office of the Public Advocate