Victorian Civil and Administrative Tribunal
The Victorian Civil and Administrative Tribunal (“VCAT”) is the usual forum for hearing matters relating to guardianship and administration issues and the Tribunal has the power to make a variety of orders.
Making an application for guardians and administrators
When looking to make an application to VCAT pursuant to the Guardianship and Administration Act 2019 (Vic) (“the Act”), there are numerous factors which may require your careful consideration and these will depend, of course, on whether you are seeking a guardianship order or an administration order.
Importantly, a distinction must be drawn between the two, especially in relation to the role of a guardian compared to that of an administrator.
Difference between guardians and administrators
The Act provides that a person appointed as ‘guardian’ under a guardianship order has the power to make decisions about ‘personal matters in relation to the represented person that are specified in the order’. For instance, this might relate to living arrangements, healthcare, and/or access to services. Essentially, the powers of a guardian are limited to making lifestyle decisions on behalf of a person whose decision-making capacity is affected by a disability.
Conversely, the Act stipulates that a person appointed as ‘administrator’ under an administration order has the power to make decisions about ‘financial matters in relation to the represented person specified in the order’. The powers of an administrator also extend to, amongst other matters, dealing with financial issues in accordance with section 49 of the Act. So, unlike a guardian, an administrator has the power to make both financial and property decisions on behalf of a person whose decision-making is impaired by a disability. However, it is important to note that an administrator is unable to make decisions regarding personal or lifestyle matters, unless they are also the person’s guardian.
When can a prospective guardian or administrator make an application?
The Act governs the application process for guardianship orders and administration orders.
A person may apply to VCAT for a guardianship order or administration order that appoints a guardian or administrator for a person with a disability who is:
(a) 18 years of age plus; or
(b) under 18 years of age but where the order takes effect on that person attaining 18 years of age.
Nonetheless, a person must also be deemed eligible by VCAT to assume the role of a guardian or administrator. There is no automatic right of appointment. The eligibility criteria is detailed comprehensively within the Act. It includes, among other matters, the absence of any conflict of interests and the suitability of a person to act as a guardian or administrator.
In the case of a potential administrator, VCAT also needs to be satisfied that the person possesses ‘sufficient expertise to make decisions about any financial matter specified in the administration order’
What does VCAT consider when making an order?
The Act prescribes a list of considerations that VCAT ought to take into account when determining whether to issue a guardianship or administration order.
Under the Act, VCAT may only make a guardianship order or an administration order if satisfied that because of the proposed represented person's disability, the person does not have decision-making capacity in relation to:
(i) in the case of a guardianship order, the personal matter in relation to which the order is sought; or
(ii) in the case of an administration order, the financial matter in relation to which the order is sought.
Additionally, VCAT needs to be satisfied that the proposed represented person is in fact in need of a guardian or administrator and that the guardianship or administration order will promote the ‘personal and social wellbeing’ of the proposed represented person.
Further, in determining whether a person is in need of a guardian or administrator, the Act requires VCAT to consider:
(a) the preferences of the proposed represented person (so far as they can be ascertained);
(b) whether decisions in relation to the personal or financial matter for which the order is sought:
(i) may more suitably be made by informal means; or
(ii) may reasonably be made through negotiation, mediation or similar means;
(c) the wishes of any primary carer or relative of the proposed represented person or other person with a direct interest in the application; and
(d) the desirability of preserving existing relationships that are important to the proposed represented person.
Finally, it is also worth acknowledging that in the majority of cases, the person who is the subject of the guardianship or administration application must be present at the VCAT hearing. However, there are exceptions to this requirement, including but not limited to circumstances where it is impractical for the person to attend.
In summary
At every stage of making (or defending) a guardianship or administration order, it is important to have sound, experienced legal advice. We have the skills to negotiate on your behalf to avoid costly court fees, but if it comes down to court, we also have the skills to fight on your behalf. To find out more or to arrange a consultation with an experienced estate lawyer, give us a call on 9450 9400 or email us at info@andcro.com.au.