Modern approach to guardianship and administration

Apr 12, 2020

The new Guardianship and Administration Act 2019 (the Act) passed through the Victorian parliament in May 2019 and received royal assent on 4 July 2019. It commenced on 1 March 2020.

Under the new legislation, VCAT has retained its powers in relation to making guardianship and administration orders, however, there have been significant changes to guardianship and administration laws that reflect a more modern approach to decision-making, capacity and disability.

The Act provides:

  • The presumption that a person has decision-making capacity unless evidence is provided otherwise.
  • Recognises that a person has decision-making capacity if the person can make decisions with support.
  • That consideration to be given to a wider range of matters in making an order, such as the Will and preferences of the proposed represented person and the wishes of any primary carer or relative.
  • New eligibility requirements for proposed administrators and guardians, and a dispute resolution process for administrators and guardians who are appointed for the same represented person.
  • To create new offences for guardians or administrators who dishonestly use their appointment for financial gain or cause loss to the represented person, with anyone found guilty facing up to five years in prison
  • Orders to be more tailored to the individual.

There are also provisions designed to improve VCAT’s processes, including:

  • More robust notice requirements.
  • A presumption that the represented person must attend the VCAT hearing, unless they do not wish to attend or it would be impracticable.
  • Video links and other systems to conduct proceedings.