The Law Handbook 2024

854 Section 8: Disability, mental illness and the law The GA Act 1986 allowed for plenary guardianship and administration orders. Under the GA Act, orders must be tailored so that people with disability are not impermissibly constrained. Urgent orders VCAT may make an urgent guardianship and/or administration order if it is satisfied on reasonable grounds that there is an immediate risk of harm to the health, welfare or property of the person if the order is not made (s 36 GA Act). The risk of harm may be caused by abuse, exploitation, neglect or self- neglect. The order remains in force for 21 days; the order can be renewed for a further 21 days. VCAT may waive certain requirements in the GA Act relating to matters that are to be included in the application, who is entitled to be notified of the application, the contents of this notification, and the participation of the proposed represented person. Guardians and administrators Who can be appointed as a guardian or administrator? Any person over 18 years of age is eligible to be appointed a guardian or administrator, if they consent to act, but VCAT must be satisfied: • that they will act in accordance with their statutory duties; • that there is no actual or potential conflict of interest ; and • that they are suitable to be appointed (s 32 GA Act). A person proposed as an administrator must have sufficient expertise to administer the estate (s 32(2) d) GA Act). In the GA Act, the duties of a guardian are set out in Part 3 Division 4; whereas, the duties of an administrator are set out in Part 3 Division 7. Conflict of interest The parent or nearest relative of a proposed represented person is not automatically regarded as having a conflict of interest by virtue of that relationship. They are also not assumed to be unsuitable because they disagree with another relative (s 32(5) GA Act). Suitability VCAT must take into account several matters in deciding if the proposed guardian or administrator is suitable: • the will and preferences of the person; • the desirability of preserving existing relationships that are important to the person; • the desirability of appointing a person who is a relative or who is known rather than a person who is not a relative or who is unknown; • the person’s availability to meet and communicate with the person; • whether they will act cooperatively with any current guardian or administrator (s 32(3) GA Act). VCAT must consider a statement of wishes lodged with VCAT by a previous guardian or administrator (e.g. a parent of a child with a longstanding disability). Public Advocate If there is no person available who satisfies all the above criteria in relation to guardianship, VCAT may appoint the Public Advocate (s 33 GA Act) to be a person’s guardian. For the Public Advocate’s contact details, see ‘Contacts’ at the end of this chapter. For more information, see ‘The Public Advocate’ in Chapter 8.2: Disability: Asserting your rights. Joint guardians Where it considers it to be appropriate, VCAT can appoint more than one person to be joint guardians, or to be guardians with the Public Advocate (s 33 GA Act). Joint administrators Where there is no family member or friend who meets the criteria to be the administrator, VCAT can appoint a professional organisation to do this (e.g. State Trustees, or a lawyer or accountant). VCAT does appoint joint administrators, although there is no mention of this power in any legislation. Section 177 of the GA Act sets out a resolution process for disagreements between appointees, including where there are disputes between administrators.