Guardianship and Administration

Cancel Loading...

When is a guardian or an administrator appointed?

To make a guardianship order under section 22(1) of the Guardianship Act, or administration order under section 46(1) of the Guardianship Act, VCAT must be satisfied that the client is:

  • a person with a disability; and
  • unable by reason of the disability to make reasonable judgments in respect of:
    • (for guardianship) all or any of the matters relating to their person or circumstances; or
    • (for administration) all or any part of their estate; and
  • is in need of a guardian and/or an administrator of their estate; and
  • (for administration only if the client does not reside in Victoria) is  not a person for whom State Trustees have been authorised under section 12 of the State Trustee (State Owned Company) Act 1994 (Vic) to collect, manage, sell or otherwise dispose of or administer any property in Victoria that forms part of the estate of the client.

Each of the criteria above must be assessed individually.On this point see XYZ v State Trustees Ltd & Anor [2006] VSC 444 at [43]-[46] (XYZ).

What is 'a disability'?

Disability is defined in the Guardianship Act to mean intellectual impairment, mental disorder, brain injury, physical disability or dementia. VCAT typically requires a current medical report or reports supporting the view that the client has a disability.  The form required for a report is available on VCAT's website.

When is a person 'unable to make reasonable judgments'?

Whether the client is unable to make reasonable judgments is assessed by VCAT with the assistance of professional assessments and testimony of friends and family of the client.  It should not be presumed that simply because a person has a disability, they are unable to make reasonable judgments.  The client's inability to make reasonable judgments:

  • must be related to the disability (see ss 22(1)(b) and 46(1)(a)(ii) of the Guardianship Act.);
  • does not require complete 'incapacity', but must be 'lacking or severely impaired' (at para [72] and
  • is assessed for all aspects of the potential order (health care, financial matters, accommodation, employment, etc).

The leading authority on the meaning of, and test for, 'inability to make reasonable judgments' is the decision of Cavanough J in XYZ v State Trustees Ltd (XYZ).  In that case the plaintiff had suffered a serious stroke, but after some time successfully appealed to the Supreme Court challenging an administration order on the basis that VCAT did not properly consider the matters in section 46(1) of the Guardianship Act, particularly the degree of inability to make reasonable judgments anticipated by the Guardianship Act.  The administration order was sent back to VCAT to be reheard.

While it is a matter of fact for VCAT to address specifically on the evidence (see para [54]), most VCAT decisions follow and apply the 'lacking or severely impaired' capacity test preferred by Cavanough J in XYZ. For example, see JD (Guardianship) [2007] VCAT 2176 (JD). The JD case involved a reassessment of a guardianship and administration order where, inter alia, the phrase 'unable to make reasonable judgments' was considered.  The plaintiff struggled to live independently due largely to alcohol abuse and its consequences resulting in multiple admissions to hospital for self-neglect, malnutrition, dehydration, incontinence and alcohol related medical conditions.

When is there a 'need' for a guardian or administrator?

The question of need will generally be answered primarily by reference to the availability of alternative arrangements outside guardianship (such as family support) to compensate for or deal with the client's 'inability' (See XYZ at [44]).

In determining whether or not a client needs a guardian or an administrator (or both), VCAT must consider the following matters:

  • whether the needs of the client could be met by means less restrictive of their freedom of decision and action (ss 22(2)(a) and 46(2)(a));
  • the wishes of the client, so far as they can be ascertained (ss 22(2)(ab) and 46(2)(b));
  • (guardianship only) the wishes of family members of the client (s 22(2)(b)) ; and
  • (guardianship only) the desirability of preserving existing family relationships that may be affected by the making (or not making) of a guardianship order (s 22(2)(c)).

Existence of arrangements such as an enduring power of attorney (medical treatment) or informal arrangements between family members and service providers are factors that should be considered in determining whether there exists a need for a guardian or administrator. For more discussion of this point see Public Advocate v RCS (Guardianship) [2004] VCAT 1880 at [9] per Morris J.