What is Guardianship and Administration?
Guardianship or someone being appointed as an administrator applies in situations where an individual with a disability has limitations on their ability to make decisions for themselves, whether that be for their personal life, financial affairs, or their housing. They may need someone to make all those decisions, or perhaps just for one area, such as their housing.
Per s3 of the Guardianship and Administration Act 2019 (Vic), an administrator is someone who cares for the individuals’ financial needs, whereas a guardian can make personal lifestyle decisions as needed. These two kinds of positions enable the appointed guardian or administrator to have legal decision-making power for the affairs of the individual.
These orders are dependent on capacity – as in, does the person need a guardian or administrator to make decisions for them, or do they have capacity to make those decisions themselves? Generally, there is a presumption that every individual over the age of 18 is autonomous and has the capacity to make decisions for themselves. Capacity is defined as a person’s ability to determine the following:
- Understand the information before them that is relevant to the decision and the effect of that information;
- Retain the information to make that decision;
- Use or consider that information as part of the decision-making process; and
- Communicate their decision, views, and needs to another person – can be through speech, gestures or other means.
Sometimes, individuals cannot make decisions for themselves if they suffer from:
- A disability that impacts upon their decision-making skills, such as intellectual or developmental disabilities;
- An acquired brain injury;
- Mental illness; or
- Other illnesses, such as dementia or Alzheimer’s.
However, capacity is not a stagnant issue or something that affects a person’s decision to make decisions about all factors of their life. Sometimes, it is dependent on the domain of the decision, such as finances or healthcare, or it can be time-specific, meaning that a person might have more capacity at the start of the day than at night. It can also be decision-specific, meaning that a person may be able to consent to a blood test, but not to significant surgery or operations.
Sometimes, informal guardians or administrators can be appointed to look after certain needs of the individual, which can be performed by trusted family members or friends. Other times, there is a need for a formal arrangement in place. This can be done by the person formally appointing another as a guardian or administrator, such as through an enduring power of attorney.
Any person who is concerned about an individual’s capacity to make decisions for themselves can make an application to the Guardianship list of VCAT. However, the application must include a report from the individuals’ social worker or doctor that validates their disability and lack of capacity to make certain decisions. VCAT will then hold a hearing to determine whether a guardian or administrator is appropriate and if so, who should be appointed.
VCAT can appoint a guardian or administrator if there is no enduring power of attorney in place or in circumstances where the enduring power of attorney is deficient or inappropriate. If no suitable person can be determined, or if a family member does not want to take on that responsibility, then VCAT can appoint the Office of the Public Advocate to act as the person’s guardian or administrator.
What must a Guardian or Administrator do?
A guardian or administrator must act in the person’s best interests, otherwise they will be in breach of their duty to the person. A guardian is also required, where possible, to consult the person whom they have guardianship over, to ensure that their best interests are maintained. This also allows the individual to be heard and be able to make or contribute to the decisions that affect them.
If you are require assistance to make a VCAT application, or to make guardianship or administrator orders under an enduring power of attorney, it is crucial that you seek legal advice to determine the best course of action for your matter. Please contact us on (03) 9557 2915 or [email protected] for more information.