Guardianship: Terms of Reference

1. The Victorian Law Reform Commission is to review and report on the desirability of changes to the Guardianship and Administration Act 1986 (the Act), having regard to:

a) the principle of respect for the inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons, and the other General Principles and provisions of the United Nations Convention on the Rights of Persons with Disabilities (the United Nations Conventions);

b) the introduction of the Victorian Charter of Human Rights and Responsibilities;

c) developments in policy and practice in respect of persons with impaired decision making capacity since the Act commenced;

d) the increase in Victoria’s ageing population and the changing demographic nature of the clients of the Office of the Public Advocate.

2. The purpose of the review is to ensure that guardianship and administration law in Victoria is responsive to the needs of people with an impaired decision making capacity, and advances, promotes and protects the rights of people with an impaired decision making capacity.

3. In particular, the Commission is to have regard to:

a) the role of guardians and administrators in advancing the represented person’s rights and interests and in assisting them to make decisions;

b) the need to balance the protection of the interests of an adult with impaired capacity by a guardian or an administrator with the person’s exercise and enjoyment of the human rights, such as the right to freedom of choice, association and movement, including consideration of whether the Act strikes the right balance between facilitating action in the best interests of an adult with impaired capacity and the person’s rights as expressed in the United Nations Convention;

c) the alignment of guardianship and administration law with other relevant statutory regimes, including consideration of the appropriateness and feasibility of extending guardianship and administration law to individuals who are 17 years of age and have impaired decision making capacity;

d) the validity and efficacy of informal decision-making for an adult with impaired capacity;

e) the need to ensure that the powers and duties of guardians and administrators established by the legislation are effective, appropriate and consistent with Australia’s human rights obligations and the Victorian Charter;

f) the functions, powers and duties of the Public Advocate;

g) the role and powers of the Victorian Civil and Administrative Tribunal in relation to guardians and administrator and the efficacy of its processes for the appointment of guardians and administrators in the Act and the Victorian Civil and Administrative Tribunal Act 1998 and Rules;

h) the feasibility of introducing additional mechanisms for review of decisions made by guardians and administrators under the Act, including the scope of these review powers and the meaning of ‘decision’ for this purpose and whether there should be a mechanism to address unconscionable conduct of a guardian or administrator;

i) the appropriateness of the current requirements for and criteria pertaining to, the treatment of a represented person under the Act, including a consideration of the existing provisions dealing with medical research, non-medical research, medical and other treatment, the appropriateness of the existing ‘person responsible’ model in the Part 4 of the Act and a consideration of any area of overlap between the operation of the Act and the Medical Treatment Act 1988;

j) whether the language of ‘disability’ is the appropriate conceptual language for the guardianship and administration regime and to what extent concepts such as capacity and vulnerability would be appropriate;

k) whether confidentiality requirements under the Act are sufficient to adequately balance the protection of the privacy of persons providing information or who are affected by or involved in a decision made pursuant to the Act, and the promotion of the principle of transparency.

In making its report, the Commission should consider the relationship and the appropriate boundaries between the Act and any other relevant Victorian or Commonwealth legislation, including the Instruments Act 1958, the Mental Health Act 1986, the Disability Act 2006, the Children, Youth and Families Act 2005, and the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and take into account the results of any other relevant, contemporaneous reviews or policies in these fields. Issues associated with end of life decisions, beyond those currently dealt with by the Medical Treatment Act 1988, are not within the scope of the review.

The Commission is to report by 30 June 2011.

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