The Law Handbook 2024

Chapter 8.5: Guardianship and medical treatment 855 Powers and duties of guardians and administrators Guardians Under the GA Act, a guardian’s powers relate to the personal matters (these are defined in section 3) set out in the order of appointment. Personal matters are defined to mean ‘any matter related to the person’s personal or lifestyle affairs’. Examples of what this could mean are included: accommodation, employment, education and training, diet and dress, and medical treatment. In practice, orders are also made about the person’s access to services and access to other people. Personal matters also include ‘any legal matter that relates to the person’s personal or lifestyle affairs’. Legal matters are dealt with in two places. In the definition of ‘legal matter’, the legal matters are limited to the use of legal services and bringing or defending a legal proceeding. However, the GA Act (s 38(1)(c)) requires specific mention of the power to undertake legal proceedings in the order of appointment. The legal matter must correspond to a personal matter in the order. The GA Act (s 39) also sets out powers that cannot be given to a guardian, including dissolution of marriage, and making decisions about the care of children. In the case of HYY [2022] (VCAT 97), VCAT determined that the use of restrictive practices, in this case physical restraint, is not a ‘personal matter’ for which a guardian can be appointed. The guardian’s duties (s 41 GA Act) require them to apply decision-making and general principles when making decisions (ss 8, 9 GA Act). A guardian must also: • act as an advocate for the person; • encourage the person to develop decision-making capacity; • protect the person from abuse, neglect and exploitation; • act honestly, diligently and in good faith; • exercise reasonable skill and care; • not use the position for profit; • avoid conflicts of interest; and • not disclose confidential information unless required to fulfil their role or otherwise authorised by law. Guardians for health care are usually empowered to make medical treatment decisions in accordance with the Medical Treatment Planning and Decisions Act 2016 (Vic) (‘ MTPD Act ’). Guardians may also be the authorised representatives for the purposes of the Health Records Act 2001 (Vic) and the Privacy and Data Protection Act 2014 (Vic). Guardians may be empowered to apply for a family violence intervention order under the Family Violence Protection Act 2008 (Vic) or an intervention order under the Personal Safety Intervention Orders Act 2010 (Vic). NOTE: ADVICE FOR GUARDIANS An appointed guardian can apply to VCAT for advice about any matter relating to the scope of the order or the exercise of its powers (s 44 GA Act). Guardians may seek help from the OPA (www.publicadvocate.vic.gov.au) . Administrators Under the GA Act 2019, an administrator has six basic powers: • to make decisions about the financial matters specified in the order; • to make gifts (s 47); • to invest (s 48); • to open the person’s will (s 49); • to sign and do anything necessary to give effect to the administrator’s powers (s 50); and • to do all matters necessary or incidental to the performance of the administrator’s powers (s 46). VCAT may also give the administrator powers under section 51 (undertaking legal proceedings) and section 52 (sets out an extensive list of supplementary powers) of the GA Act. Section 53 sets out powers that cannot be given to an administrator, such as to revoke or make a will for the person or to manage the person’s estate after their death. An administrator’s duties echo those of a guardian (s 55 GA Act). There are specific provisions about conflict transactions, including when these are permitted (ss 57–58 GA Act). There are duties to keep records, and to keep the person’s and administrator’s property separate (except for jointly owned property) (s 60 GA Act). Administrators can seek advice from VCAT and from professional advisers (ss 64–65 GA Act).