The Law Handbook 2024

856 Section 8: Disability, mental illness and the law In the case of XIY ([2023] VCAT 809), the administrator sought advice on whether paying the represented person $400 per week, which was his will and preference, could be overridden on the basis that this would deplete his estate and so be serious harm. On the facts of this case, VCAT advised it would not. The case also considers the obligations of an administrator to preserve the represented person’s estate. Supportive guardians & administrators VCAT may appoint a supportive guardian or a supportive administrator in response to an application for guardianship or administration. VCAT may only appoint a supportive person if the proposed represented person consents. VCAT must be satisfied that the proposed represented person has the decision-making capacity (if they are given the right support) to make decisions about personal matters (supportive guardianship) or financial matters (supportive administration). The appointment must also promote the person’s personal and social wellbeing. The GA Act 2019 sets out: • who is eligible to be a supportive guardian or administrator (s 88); • that the order appointing a supportive guardian or administrator must specify the personal or financial matter involved (s 89); • the types of powers given to the supportive guardian or administrator (ss 90–93); • the duties and obligations of the supportive guardian or administrator (s 94); • that the supportive guardian or administrator has no entitlement to renumeration (s 95); • when a supportive guardian or administrator order ceases to have effect (s 96); • the represented person’s ability to obtain advice from VCAT (s 97); • the supportive guardian’s or administrator’s obligation to report the represented person’s death to VCAT (s 98). A supportive guardian or administrator order must be reassessed within 12 months, unless VCAT orders otherwise. All supportive guardian or administrator orders must be reassessed within three years (s 159 GA Act 2019). Disagreements between guardians and administrators The GA Act 2019 sets out the process for resolving disagreements between guardians and administrators. The parties should first seek to resolve the dispute informally or by mediation. If the disagreement continues, they should seek VCAT’s advice. The GA Act 2019 does set out that a guardian’s decision prevails over an administrator’s decision to the extent of any inconsistency. However, if following the guardian’s decision would seriously deplete the person’s estate, the administrator is not required to comply with the guardian’s decision and must seek advice from VCAT about how to resolve the disagreement (s 177 GA Act). Medical treatment Background The MTPD Act came into operation on 12 March 2018 and creates opportunities to: • write advance care directives; • appoint a support person; • appoint a medical treatment decision-maker. The MTPD Act reforms how medical decision- making is performed so that it is no longer a determination of a patient’s best interest, but what accords with their values and preferences. ‘Medical treatment’ is defined in the MTPD Act (s 3). Medical treatment is not limited to the treatment provided by doctors and dentists, but includes the treatment provided by all health practitioners, including ambulance staff and non-emergency patient transport staff (see Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic)). Special medical procedures are regulated by the GA Act (pt 6). Special medical procedures are performed on people who are unable to make medical treatment decisions for themselves; the procedures are pregnancy termination, sterilisation, and tissue donation. Only VCAT is authorised to consent to these procedures. Advanced care directives An advance care directive ( ACD ) is an autonomous statement of what a person wants, the person’s