The Law Handbook 2024

852 Section 8: Disability, mental illness and the law as having a direct interest in the application and – in the case of an application for guardianship where no person is proposed as guardian – the Public Advocate (ss 24, 25 GA Act). 2 Investigation The processes of VCAT’s Guardianship List are inquisitorial rather than adversarial. Upon receiving an application for guardianship or administration and supportive appointments, VCAT can refer the matter to a statutory body (usually the Office of the Public Advocate ( OPA )) for investigation (sch 1 cl 35 VCAT Act). The GA Act permits the OPA to engage a registered company auditor, but there will be a question about how this is to be paid for and whether it is funded from the proposed represented person’s estate. A report of this investigation is provided to, and can be obtained from, VCAT. VCAT usually releases the report to parties unless there are serious issues of confidentiality or the risk of harm to others. 3 VCAT hearing The GA Act (s 28) requires there to be a VCAT hearing within 30 days of VCAT receiving an application for guardianship or administration. The exception is when VCAT requires the parties to attend a compulsory conference or mediation. Location of VCAT hearings Hearings are generally held at one of VCAT’s buildings in Melbourne (see ‘Contacts’ at the end of this chapter). However, an applicant can request that the hearing be held at a location near to where they live. Who attends the VCAT hearing? VCAT requires the applicant to attend the hearing. If the person is unable or unwilling to attend the hearing, the applicant must advise VCAT and explain why (see s 29 GA Act). The proposed guardians or administrators should attend the hearing. A party may be represented at a VCAT hearing by a ‘professional advocate’ with VCAT’s consent. A professional advocate is an Australian lawyer, or an articled clerk or law clerk, or a person who holds a qualification in law, or someone who, in VCAT’s opinion, has had substantial experience as an advocate in similar proceedings (s 62 VCAT Act). Also, the OPA and the State Trustees have a duty officer at VCAT to assist the parties. Purpose of the VCAT hearing The purpose of the hearing is for VCAT to consider and determine whether to appoint a guardian and/ or administrator (s 30 GA Act) and, if so, to set safeguards and appropriate limitations on their powers (s 7(1)(b)). 4 Elements of VCAT’s decision VCAT can only make a guardianship and/or administration order where it finds that: 1 The person has a disability ; 2 Because of the disability, the person does not have decision-making capacity in relation to (for guardianship) the personal matter about which the order is sought or (for administration) the financial matter about which the order is sought; 3 The person is in need of a guardian and/or administrator; 4 The making of the order will promote the person’s personal and social wellbeing (s 30 GA Act). These four elements are discussed further below. VCAT must also apply the general principles set out in section 8 of the GA Act, which include: • Can the proposed represented person be sup- ported to make decisions, rather than their guardian or administrator making decisions for them? • What are the will and preferences of the proposed represented person? • What option is the least restrictive of the person’s ability to make decisions and to act? These principles are discussed further in ‘General principles’, below. Disability ‘Disability’ is defined as a neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability, or dementia (s 3 GA Act). Whether or not a person has a disability is usually determined on the basis of current medical assessments and reports prepared by treating doctors and other