The Law Handbook 2024

Chapter 8.5: Guardianship and medical treatment 853 professionals; these assessments and reports should be given to VCAT with the application. A ‘medical report template’ is available on VCAT’s website (www.vcat.vic.gov.au) . Decision-making capacity Whether a person has decision-making capacity is usually determinedusing evidence fromprofessionals, from the person and from others about the person’s past and current decision-making. Decision-making capacity is defined in section 5 of the GA Act, which sets out a functional test of mental capacity. A person has decision-making capacity for a specific personal and/or financial matter if they can: • understand the information; • retain the information; • use or weigh-up the information in the process of making a decision; and • communicate the decision. The case of IFZ (Guardianship) [2020] VCAT 582 explores decision-making capacity in relation to financial matters and draws on the use of this four- fold test under other laws. Need The GA Act (s 31) looks at need through the lens of the person’s will and preferences, and whether it would be more suitable to make decisions through informal means or through negotiation or mediation. Examples of less formal means for dealing with the need for an appointment include: • the person may have already appointed their own medical treatment decision-maker or attorney for financial or personal matters (for information on enduring powers of attorney, see Chapter 8.6: Understanding powers of attorney); or • medical decisions might be made by the medical treatment decision-maker (defined by the Medical Treatment Planning and Decisions Act 2016 (Vic)). In determining whether there is a need, VCAT must consider the wishes of any primary carer or relative who has a direct interest in the application for guardianship/administration. VCAT must also consider the desirability of preserving existing relationships that are important to the person. Promote the person’s personal and social wellbeing Section 4 of the GA Act defines what it means to promote a person’s personal and social wellbeing. This concept captures the themes of dignity, autonomy and individuality. It also calls for the recognition of the importance of any companion animals the person may have. Section 4 requires that respect be shown for the confidentiality of the information about the person. General principles When making an order, VCATmust apply the general principles set out in section 8 of the GA Act. First principle The first principle picks up a theme in Article 12 of the UNCRPD that a person may need support to exercise decision-making capacity. The person should be provided with practicable and appropriate support to make and participate in decisions, to express their will and preferences, and to develop decision-making capacity. If VCAT considers that the person would have decision-making capacity if they had such support, it may appoint a supportive guardian and supportive administrator instead. The role of these appointees is set out in Part 4 of the GA Act. Second principle The second principle requires that the person’s will and preferences should direct, as far as practicable, decisions for that person. Thus, it is important for VCAT to know the person’s views about the proposed appointments and appointees. Third principle The third principle requires VCAT to consider what is least restrictive of the ability of the person to decide and act as is possible in the circumstances. VCAT’s safeguarding role The primary object of the GA Act (s 7) is to protect and promote the human rights and dignity of people with disability. One way this is achieved is through enabling VCAT to set safeguards and appropriate limitations on the powers of guardians and administrators.