Guardianship laws to be reviewed

The laws and practices that protect Victorians with impaired decision-making capacity will be reviewed by the Victorian Law Reform Commission to ensure they reflect modern standards and a changing population.

Chair of the commission, Professor Neil Rees, welcomed the reference from the Attorney-General and said it was the first time a comprehensive review of Victoria’s guardianship and administration laws had been undertaken in over twenty years.

“There are a number of Victorians in a variety of circumstances who need important decisions made on their behalf, or assistance with those decisions. This group is expected to grow with an ageing population,” Professor Rees said.

“It is important to recognise the diversity of those people covered by this review for there are many reasons why a person may not be able to make important decisions. The commission will be consulting widely to ensure the different needs of these people are met.”

Professor Rees said the commission is required under the terms of reference to be guided by principles of respect for dignity and individual autonomy and to advance, promote and protect the rights of people with impaired decision making capacity.

“It is essential that this part of the community has adequate protection in line with contemporary views on guardianship and administration when a decision concerning personal and financial matters is made on their behalf,” he said.

“Both the current law and any changes proposed by the commission must be consistent with Australia’s human rights obligations and the Victorian Charter of Human Rights.”

In particular the commission is to have regard to:

  • the role of guardians and administrators
  • the need to balance the protection of a person with impaired capacity by a guardian or administrator with the person’s exercise and enjoyment of their human rights
  • the alignment of guardianship and administration law with other relevant laws
  • the role of informal decision-making for an adult with impaired capacity
  • the functions, powers and duties of the Public Advocate
  • the role and powers of the Victorian Civil and Administrative Tribunal and the appointment of guardians and administrators
  • consideration of existing laws that deal with medical research, non-medical research, medical and other treatment of a represented person.

19 Jun 2009

The terms of reference specifically state that issues associated with end of life decisions beyond those currently dealt with by the Medical Treatment Act 1988 are not within the scope of this review.

Professor Rees said the commission would begin initial extensive consultations ahead of publishing a Consultation Paper next year. A Final Report is due to the Attorney-General by June 30 2011.

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