Guardianship and Administration

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The law

The Guardianship and Administration Act 1986 (Vic) (the Guardianship Act) allows for and regulates the appointment of guardians and administrators generally (Guardianship Act, s 1). The Guardianship Act also creates the role of the Public Advocate, who has various delegable functions relating to the appointment of guardians and administrators.

Other relevant instruments regarding the appointment of guardians and administrators include:

  • the Guardianship and Administration (Fees) Regulations 2008 (Vic);
  • the Victorian Civil and Administrative Act 1998 (Vic) (the VCAT Act);
  • the Medical Treatment Act 1988 (Vic) (the Medical Treatment Act);
  • the Powers of Attorney Act 2014 (Vic); and
  • the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).

The VCAT Act legislates for the constitution and procedure of VCAT, which hears guardianship and administration proceedings in its Guardianship List.

The Medical Treatment Act is relevant to issues of consent to medical treatment on behalf of clients by guardians and VCAT.

The Powers of Attorney Act allows for a new kind of appointment of a person to be known as a supportive attorney to support a person with impaired decision making ability to make and give effect to his or her own decisions, recognising that some people with impaired decision making ability do not need a guardian or administrator but are able to make their own decisions with support.

The Charter, which regulates human rights in Victoria, may also impact upon the interpretation of the Guardianship Act and the Medical Treatment Act, in so far as section 32(1) expressly requires that:

[S]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.