Relevant legislation:
- Guardianship and Administration Act 1986 (Vic.)
- Victorian Civil and Administrative Tribunal Act 1998 (Vic.)
VCAT’s role
The appointment of a guardian or administrator or their reassessment or removal is the jurisdiction of the Victorian Civil and Administrative Tribunal (VCAT). These appointments can be made when a person is unable, due to a disability such as dementia, to make decisions for themselves.
A guardian is given responsibilities for decisions affecting lifestyle, while an administrator has power to make decisions about financial and legal matters. These responsibilities may be limited by the tribunal as required. For example, a guardian may be restricted to dealing with accommodation only and an administrator’s powers may exclude selling property.
Applying to VCAT for Guardianship or Administration orders
The role of the Guardianship list is to protect persons aged 18 years or over who, as a result of a disability, are unable to make reasonable decisions about their person or circumstances or their financial and legal affairs.
Applications for orders to the VCAT Guardianship List may include:
- appointing a guardian to make lifestyle decisions and/or health care decisions;
- appointing an administrator to manage financial and legal affairs;
- revoking an attorney’s appointment, or varying, suspending or making another order in relation to a financial Enduring Power of Attorney (for example, to rectify a breach, limit an attorney’s authority or request that an attorney produce accounts for an independent audit);
- declaring that an Enduring Power of Attorney is invalid.
You should accompany an application with relevant reports such as expert medical and/or psychological reports, and reports from other service providers such as social workers or case managers. In order for an application to be successful VCAT must determine that there is a disability that prevents a person making reasonable decisions.
See the VCAT website for forms and guides to their completion, for example:
- Application to appoint an administrator or guardian or to make orders regarding enduring powers of attorney/guardianship
- Application to revoke or reassess a Guardianship or Administration order
In special circumstances, urgent hearings can be scheduled and temporary orders can be made. Video link hearings can be arranged for your client if they are unable to attend at VCAT.
Who to appoint?
A suitable person can be nominated or VCAT can be requested to make a determination.
VCAT may appoint a relative, friend, solicitor, accountant, private trustee company or State Trustees Limited as administrator. VCAT’s emphasis is to take the least restrictive path and so they are likely to appoint a family member before a friend or a professional. They will, however, discount a family member where there is a dispute between family members or because no family member is considered suitable.
Note that in some cases a social worker or other health professional may apply for appointment as guardian or administrator where they believe an older person is at risk of abuse. Your client and/or their family may want to challenge this application.
Families in conflict
Often families can be in conflict and not agree over issues such as where and how a parent should live and financial management matters. It might be best to refer a client to mediation services, the Family Mediation Centre, Relationships Australia, Dispute Settlement Centre or a private mediation service. (OPA can provide advocacy support to the older person in such circumstances.) Note that the preservation of family relationships may in fact be your client’s first priority and that mediation may be appropriate where the parties have a desire to preserve relationships.