Guardianship and Administration

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Overview

The Guardianship and Administration Act 1986 (Vic) (the Guardianship Act) allows for guardians and administrators to be appointed to make decisions for people with a disability (clients) in relation to:

  • for guardians - health care, accommodation, employment and access to services and people; and
  • for administrators - legal and financial matters such as access to money, managing investments, selling property or paying bills.

Guardianship and administration matters are heard by the Victorian Civil and Administrative Tribunal (VCAT).

The criteria that VCAT must consider (and that must be satisfied) before a guardian or administrator can be appointed are whether the client is:

  • a person with a disability, which, in accordance with section 3 of the Guardianship Act, includes any intellectual impairment, mental disorder, brain injury, physical disability or dementia;
  • unable by reason of the disability to make reasonable judgments in respect of matters relating to their person, circumstances or estate; and
  • in need of a guardian or administrator.

The Guardianship List, which is part of the Human Rights Division of VCAT, conducts all hearings to determine whether a person (aged 18 years or over) with a disability should have a guardian and/or administrator appointed.

The Guardianship Act:

  • prescribes that its provisions must be interpreted in a manner that gives effect to the wishes of the client wherever possible;
  • emphasises the importance of VCAT not imposing administration orders if it would be unduly restrictive or otherwise inappropriate; and
  • should be interpreted so that the approach that is least restrictive of a person's freedom of decision and action that is possible in the circumstances is adopted.

Hearings held before VCAT in the Guardianship List are informal. You should be aware that the jurisdiction is not adversarial, there is no need to stand up in hearings and the VCAT Member will control the proceedings and may at times choose to speak directly to the client, rather than through their advocate.

Before a VCAT hearing, as an advocate you:

  • should notify VCAT in writing if you are representing a client and provide written authority to act on the client's behalf;
  • must act on instructions and not in what you perceive to be the client's best interests;
  • should remember that the lead-up to the hearing can be quite emotional for the client and you should educate them about the process and, if required, assure them that they are not at VCAT because they have done something wrong;
  • should explore less restrictive options available for the client;
  • should obtain all necessary paperwork from VCAT;
  • should, if the client's disability is in dispute, obtain an independent medical report;
  • should, if the client agrees, contact the applicant, family members, carers and other interested parties to assist in your preparation for the hearing; and
  • should check the date, time and location of the hearing and inform the client of these details in writing.

During the VCAT hearing, you should:

  • seek leave to appear;
  • remember that the hearing is not adversarial;
  • be aware that the VCAT Member will probably want to speak with the client directly (remember that their role is to facilitate the hearing and that direct communication between the VCAT Member and the client is encouraged because it often increases the client's feeling of autonomy);
  • raise with VCAT the client's activities and interests and make sure that these are taken into account in any order made; and
  • at the end of the hearing, explain the outcome to the client and make sure the client understands what has taken place.

After a VCAT hearing, you should:

  • arrange a time for the client to meet with the guardian or administrator if one has been appointed;
  • seek instructions to obtain a statement of reasons;
  • speak to the client about their appeal rights;
  • if an administrator is appointed, find out any fees or charges for the service and inform the client; and
  • if a guardian or administrator is appointed, contact the client within two to three months after the order has been made to see if their circumstances have changed.