Guardianship and Administration

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VCAT hearings

The Guardianship List, which is part of the Human Rights Division of VCAT, conducts hearings to determine whether a person (aged 18 years or over) with a disability should have a guardian and/or administrator appointed. Under the Guardianship Act, the Guardianship List also has the power to review, suspend, amend and revoke existing orders. Hearings are governed primarily by the VCAT Act.

Hearings before the Guardianship List

Guardianship List hearings are held at the VCAT hearing rooms at 55 King Street, Melbourne on a daily basis, and at certain suburban and regional locations when required.  VCAT will normally schedule the hearing as close as possible to the place where the client lives. It is also possible for a client to apply to be heard by telephone or video link up if they are unable to travel to a hearing or for the hearing to occur at a nursing home or a location closer to the proposed client if necessary. A "Notice of application for video-link" form is available here.  This notice must be submitted no later than 10 days before the date scheduled for hearing; the consent of the other party must be obtained; and there will be a fee for the video link.

Hearing locations and times are posted on VCAT's website the afternoon before the hearing (contact details for VCAT are listed in section 7 below). Normally, VCAT will send out a notice of hearing by mail prior to hearing.

Note that there is no automatic right to legal representation at a VCAT hearing. If the other party is legally represented or if all parties agree, a person may be legally represented. Otherwise, you will need to seek leave from VCAT.

VCAT hearings will generally be heard before one VCAT Member and are less formal than court hearings.  VCAT Members are drawn from a variety of professions including law, medicine, social work and psychology.  Attendees are encouraged to express their views directly to the VCAT Member at the hearing,and the Member may ask questions of anyone who attends or may telephone a person who is unable to attend.

It is often the case that the VCAT Member will speak directly to the client and your role as the advocate may simply be to clarify issues when asked to do so.  VCAT is not bound by legal rules of evidence and does not use formal legal processes.  However, hearings must comply with the principles of natural justice in that they must be conducted fairly and without bias.

The general approach of the Guardianship List

Giving effect to the client's wishes

The Guardianship Act prescribes that its provisions must be interpreted in a manner that gives effect to the wishes of the client wherever possible.  This requires that VCAT be informed of the views and wishes of the client and the role of the advocate is therefore to ensure that these views are presented properly and fairly.  If the client is legally incapacitated at the time of the application, then regard will be had to the client's wishes as recorded or demonstrated before their incapacity (for example, in letters, conversations and power of attorney, if any).

In terms of advocacy, it is important to remember that you, as the legal advocate, are not supposed to act in what you perceive to be the best interests of the client but, rather, your dealings must be directed toward fulfilling the instructions given by the client. Your role is to provide the client with thorough information and advice as to the possible legal ramifications of their chosen course of action, and to act on the lawful instructions they give in light of this information.

You should seek instructions from the client regarding their ability to manage their own affairs, the impact of a guardianship or administration order on their lives, the appropriateness of an order and viable alternatives to the order.  You should then present this information in your written and oral submissions to VCAT.

The least restrictive option

As noted above, the Guardianship Act requires that, if a guardianship or administration order is imposed, then it must be the least restrictive option possible in the circumstances. The Guardianship Act emphasises the importance of not imposing guardianship or administration orders if they will be unduly restrictive or otherwise inappropriate and notes that its provisions should be interpreted so that VCAT adopts the approach that is least restrictive of a person's freedom of decision and action that is possible in the circumstances (s 4(2)(a)).

From an advocate's perspective, it is worth noting that VCAT members are not always aware of the services available to people who appear before them.  It may be important to inform the member of these services when presenting feasible options that are potentially less restrictive than a guardianship or administration order.  Examples of such services might include meal delivery, financial planning assistance, case workers and counselling, all of which can provide the client with necessary support while retaining their independence and possibly avoiding the need for a more restrictive order.