Guardianship and medical treatment

Who can apply to VCAT for a guardianship or administration order?

Any person may apply to VCAT for an order appointing a guardian or administrator for a person with disability who is at least 18 years old, or to take effect when the person turns 18 (ss 22, 23 Guardianship and Administration Act 2019 (Vic) (‘GA Act 2019’)). 

How to apply to VCAT for a guardian or administrator order

All applications should be made online through VCAT’s website.

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 represented person. 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).

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 statutory body (usually the Office of the Public Advocate (OPA)) for investigation (sch 1 cl 35 Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’)). 

The GA Act 2019 permits the OPA to engage a registered company auditor, but there will be a question about how this is to be paid for and whether it is funded from the proposed represented person’s estate.

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 confidentiality or the risk of harm to others.

The GA Act 2019 (s 28) requires there to be a VCAT hearing 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 mediation. 

Location of VCAT hearings

Hearings are generally held at one of VCAT’s buildings in Melbourne. 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 party may be represented at a VCAT hearing by a ‘professional advocate’ with VCAT’s 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)). 

VCAT can only make a guardianship and/or administration order where it finds that:

1. The person has a disability;
2. Because of the disability, the person does not have decision-making capacity 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;
3. The person is in need of a guardian and/or administrator;
4. 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 supported 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

‘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. VCAT provides a ‘medical report template’.

Decision-making capacity

Whether a person has decision-making capacity is usually determined using evidence 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) [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 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 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 8.7: 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.

General principles

When making an order, VCAT must apply the general principles set out in section 8 of the GA Act 2019.

First principle

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.

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 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.

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 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 waive 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.