Guardianship – Background Facts

What can be put in place prior to a person losing their decision-making capacity?

Enduring powers of attorney can be made by a person while they have full decision-making capacity. It allows another person to make decisions on your behalf when you can no longer make your own decisions. Powers of attorney are covered by the project and were recently reviewed by the Victorian Parliamentary Law Reform Committee.

Who appoints a guardian or administrator once a person’s decision-making is impaired?

An application is made to the Victorian Civil and Administrative Tribunal (VCAT). The tribunal must be satisfied that the person requiring representation:

  • has a disability
  • cannot make reasonable personal and lifestyle decisions because of that disability
  • needs to make a decision and there is no less restrictive way of making the decision other than to appoint a guardian or administrator
  • needs someone to act in their best interests.

What kinds of people are appointed as a guardian or administrator?

VCAT prefers to appoint a guardian who is familiar with the represented person’s values and beliefs. VCAT must be assured that the guardian will act in the represented person’s best interests.

Where there is no suitable family member or friend who can act as guardian, VCAT can appoint the Public Advocate as an independent statutory guardian.

When there is no family member, friend or legal professional who is suitable to act as administrator, VCAT can appoint State Trustees as an independent administrator.

What kinds of decisions are made by a guardian?

A guardian is appointed to make personal and lifestyle decisions for an adult who cannot make their own decisions. These can include decisions about accommodation, health care or access to services.

What kinds of decisions are made by an administrator?

An administrator is appointed to make financial and legal decisions for an adult who cannot make their own decisions. They advise whether the represented person can afford their proposed personal and lifestyle choices.

What kinds of people require others to make decisions on their behalf?

The disability profile of those under a guardianship order includes people with dementia, acquired brain injury, psychiatric disability, intellectual disability and those with a physical disability.

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