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Applications for Guardianship Orders (Vic)

On 1 March 2020, the Guardianship and Administration Act 2019 came into effect. This act allows a person to apply to the Victorian Civil and Administrative Tribunal (VCAT) for a Guardianship Order appointing a guardian for a person who is over 18 years (represented person) with a disability that renders them unable to make their own decisions. This article outlines the process for obtaining a Guardianship Order in Victoria and what such an order can entail.

Who can be the subject of a guardianship order?

The new act includes a presumption that an individual will have the capacity to make decisions for themselves unless sufficient evidence is proven otherwise. Therefore, a represented person for whom a Guardianship Order is being sought must be suffering from a disability that will affect their decision-making capacity in the following ways:

  1. The represented person is unable to understand and remember information that is relevant to making a decision;
  2. The represented person cannot communicate information to make a decision; and
  3. The represented cannot express their views or needs.

It is not sufficient that a represented person is making decisions that the applicant for the Guardianship Order believes may be wrong, or not in the best interests of the represented person. The applicant will need to provide sufficient medical evidence that the represented person cannot make decisions due to being under a disability. This evidence may be of:

  1. Neurological impairment;
  2. Mental Illness/disorder;
  3. Brain injury;
  4. A physical disability; or
  5. Dementia/alzheimer’s;

amongst many other conditions.

VCAT supports people making decisions for themselves, rather than having someone appointed to make their decisions for them, and they will consider what the represented person’s wishes are in an application for a Guardianship Order.

Supportive Guardianship Orders

Under the changes which came into effect from 1 March 2020, VCAT also now has the option of making a Supportive Guardianship Order. A Supportive Guardianship Order will appoint an individual to support the represented person in making decisions about their living arrangements, work arrangements and medical treatment, but does not allow them to make the decisions for the represented person. In this situation, rather than making the decisions for the represented person, the guardian supports the represented person to develop their own capacity to make decisions, to express what is important to them and to be able to make decisions about matters that impact them.

Duties of guardians

Being appointed a represented person’s guardian is a significant responsibility, and appointed guardians have a number of duties they need to uphold. This is an important consideration to make when taking on this role. If you require further advice in respect of the role of a guardian, please contact Armstrong Legal.

Orders in respect of a Power of Attorney

An Enduring Power of Attorney is a legal document in which a person can appoint someone other than themselves, to make decisions on their behalf in respect of their personal and/or financial affairs. An Enduring Power of Attorney continues to remain in place, even if someone loses the capacity to make decisions.

Part 8 of the Powers of Attorney Act 2014 gives VCAT the power to make an order about a number of matters in relation to an existing Power of Attorney document.

This includes the following:

  1. Suspending the appointment of an Enduring Power of Attorney or Supportive Power of Attorney;
  2. Cancelling the appointment of an Enduring Power of Attorney or Supportive Power of Attorney;
  3. Varying the appointment of an Enduring Power of Attorney or Supportive Power of Attorney. This could mean amending the scope of the Enduring Power of Attorney, or amending who is named as Attorney;
  4. Making a determination on whether an Enduring Power of Attorney is valid;
  5. Making a determination on whether a transaction by an attorney is valid;
  6. Resolving disputes between attorneys where attorneys are to act jointly;
  7. Making an order for the lodgement with them for accounts relating to the exercise of the Enduring Power of Attorney;
  8. Authorising or validating a conflict transaction;
  9. Authorising the resignation of an Attorney; and
  10. Ordering compensation for loss caused, if an Enduring Power of Attorney has breached their roles and duties under the Powers of Attorney Act 2014;

amongst many others.

Only certain persons can apply to the tribunal for one of the orders above. These persons include the principal of the Enduring Power of Attorney, any Attorney named in the Enduring Power of Attorney, the Supportive Attorney in a Supportive Attorney Appointment, the Public Advocate, the nearest relative of the principal or any other person whom VCAT is satisfied has a special interest in the affairs of the principal. This could include any other relatives of the principal who are concerned about their wellbeing.

A person may also apply to VCAT for an advisory opinion regarding an existing Enduring Power of Attorney, under Section 121 of the Powers of Attorney Act 2014. This allows an Attorney to seek the tribunal’s opinion, rather than have the tribunal making an order as a result of an application.

When applying to VCAT, you will need to provide a recent medical report for the principal, as this helps VCAT determine whether the principal has the ability to make decisions or not.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal. 

Madeleine Purcell - Associate - Melbourne

This article was written by Madeleine Purcell - Associate - Melbourne

Madeleine Purcell graduated from Deakin University in 2017 with a Bachelor of Laws (Honours) and a Bachelor of Arts majoring in psychology. She completed her Graduate Diploma of Legal Practice at the College of Law and was admitted to practice at the Supreme Court of Victoria in April 2018. Madeleine has primarily worked in the areas of wills & estates...

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