Introduction to guardianship and medical treatment
Who are guardians and administrators?
Guardians and administrators are appointed when people are unable, because of their disability, to make decisions for themselves. These appointments are made by the Victorian Civil and Administrative Tribunal (VCAT).
A guardian is appointed for personal matters, such as those relating to health, accommodation or access to services. An administrator is appointed for financial matters. Or, VCAT can appoint a supportive guardian or a supportive administrator, who support the person to make decisions, but do not make decisions for them. The person for whom a guardian or administrator is appointed is known as the represented person.
The represented person must have a disability for a guardian or administrator to be appointed. A disability is a neurological impairment, intellectual impairment, brain injury, mental disorder, physical disability or dementia. The represented person must lack decision-making capacity because of their disability. There must be a need driving the reason for the appointment.
VCAT’s Guardianship List
The Guardianship List of VCAT has the authority to appoint guardians and administrators, and to reassess and remove them. The procedure of the Guardianship List is governed by the provisions of the Guardianship and Administration Act 2019 (Vic) (‘GA Act 2019’) and the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).
Guardianship and Administration Act 2019 (Vic)
On 1 March 2020, the GA Act 2019 came into effect and replaced the Guardianship and Administration Act 1986 (Vic) (‘GA Act 1986’).
The GA Act 2019 draws inspiration from the United Nations Convention on the Rights of Persons with Disabilities (2006) (CRPD) (see www.un.org). That is, it emphasises the empowerment of people with disabilities to make decisions for themselves and to make decisions with support. Decisions are no longer to be made in a person’s ‘best interests’. When a decision is made for a represented person, the decision-maker must consider – and as far as practicable be directed by – the person’s will and preferences.
The GA Act 1986 still applies to guardians and administrators appointed before 1 March 2020.