1 Applying to VCAT
Who can apply to VCAT for a guardianship or administration order?
Any person may apply to VCAT for an order appointing a Someone who is legally responsible for taking care of another person or their property. or (1) (wills) Someone who takes legal responsibility for the possessions of a person who has died without making a will, or who is still alive but cannot manage their own possessions. For example, an administrator may be appointed to manage the money, house or other possessions of a person who has a severe mental disability. (2) (companies) A manager appointed by the directors of a company that is in financial difficulty. This may give creditors a better chance of getting their money back because the company can keep trading under supervised management instead of being wound up. for a person with disability who is at least 18 years old, or to take effect when the person turns 18 (ss 22, 23 GA Act 2019).
How to apply to VCAT for a guardian or administrator order
All applications should be made online through VCAT’s website (www.vcat.vic.gov.au/case-types/guardians-and-administrators). The GA Act 2019 (s 24) sets out the information to be included in the application. The applicant must send a copy of the application to the proposed A person whose financial affairs are controlled by an administrator because they are not capable of managing their own affairs due to disability, mental illness, injury or other incapacitating circumstances. State Trustees Limited is the administrator . Where relevant, copies should also be sent to the person’s spouse or domestic partner, their primary carer, any existing (or proposed) guardian or administrator, any person named in the application 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 2019).
Plan to be provided to VCAT
A potential guardian or administrator should give VCAT a plan identifying the decisions that need to be made, and outline the way they propose to make those decisions. Under the GA Act 2019, any plan needs to reflect the engagement of the principles set out in sections 8 and 9.
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 Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. body (usually the Office of the Public Advocate (OPA)) for investigation (sch 1 cl 35 VCAT A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation.).
The GA Act 2019 permits the OPA to engage a registered company auditor, but there A document that sets out what a person wants to happen to their money and other property after they die. be a question about how this is to be paid for and whether it is funded from the proposed represented person’s All the property a person has, including real property and personal property. It is often used to describe property belonging to someone who has died, or the property of a bankrupt..
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 The principle that private information told to a person must not be revealed to others. Some professionals must keep information confidential, for example doctor–patient and lawyer–client relationships. or the risk of harm to others.
3 VCAT hearing
The GA Act 2019 (s 28) requires there to be a VCAT The time and place at which a court or tribunal hears the parties argue their case and makes a decision. 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 A form of alternative dispute resolution where an independent person (a mediator) is appointed to help the parties come to agreement. Mediators do not decide the outcome of the dispute. They help the parties consider the issues and best possible outcome. Parties may choose to use mediation instead of going to court, or the court may order the parties to go to mediation as a way of avoiding a court hearing. See also arbitration; conciliation; negotiation..
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 2019). The proposed guardians or administrators should attend the hearing.
A A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. may be represented at a VCAT hearing by a ‘professional advocate’ with VCAT’s To agree to something being done, to approve an action or arrangement. See also informed 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 VCAT 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:
- The person has a disability;
- Because of the disability, the person does not have decision-making The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. 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;
- The person is in need of a guardian and/or administrator;
- The making of the order will promote the person’s personal and social wellbeing (s 30 GA Act 2019).
These four elements are discussed further below.
VCAT must also apply the general principles set out in section 8 of the GA Act 2019, 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’ is defined as a neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability, or dementia (s 3 GA Act 2019). 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 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).
Whether a person has decision-making capacity is usually determined using Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. from profess-ionals, 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 2019, 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)  VCAT 582 explores decision-making capacity in relation to financial matters and draws on the use of this four-fold test under other laws.
The GA Act 2019 (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 An approach to dispute resolution where both parties discuss the matter in dispute between them, with the aim of reaching a settlement through a consensus, compromise or agreement. See ADR (alternative dispute resolution); arbitration; conciliation; mediation. 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 8.7: 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 2019 defines what it means to promote a person’s personal and social wellbeing. This concept captures the themes of dignity, automony and individuality. It also calls for the recognition of the importance of any companion animals the person may have. Section 4 also demands that respect be shown for the confidentiality of the information about the person.
When making an order, VCAT must apply the general principles set out in section 8 of the GA Act 2019.
The first principle picks up a theme in Article 12 of the CRPD 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 2019.
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.
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 2019 (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.
The GA Act 1986 allowed for plenary guardianship and administration orders. Under the GA Act 2019, orders must be tailored so that people with disability are not impermissibly constrained.
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 2019). 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 To give up a legal right or claim. certain requirements in the GA Act 2019 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.