Published: 31 August 2020
Author: Rosalba Martino

New law gives people with disability a say in guardian decisions

The Guardian and Administration Act 2019 is now in effect which will strengthen the rights of people with disabilities, recognising that they have the capacity to act independently despite their disability.

The Act sets a more modern framework for the appointment of a guardian or administrator, recognising the need to support persons with a disability to make, participate in and implement decisions that affect their lives.

Under the new Act, a guardian and administrator will be required to consult with the represented person, whose input will be encouraged. It also bolstered the powers of VCAT to review and intervene if required.

The new Act replaces the previous Guardian and Administration Act 1986.

VCAT to review guardianship orders regularly

If a Guardianship or Administration Order is made, VCAT has the authority to set safeguards and appropriate limitations on the powers of guardians and administrators when making orders.

Under the new scheme, VCAT is required to review orders made regularly and provide guidance to guardians and administrators when making decisions for a represented person.

The Act also gives statutory recognition for supportive decision making via the appointment of a supporting guardian or administrator. Their role is to support the person in making and giving effect to decisions in relation to personal matters and or financial matters. From a practical perspective the supportive appointee would be expected to assist the person in the execution of any decision made.

VCAT will only appoint a supportive guardian or administrator if it is satisfied that the represented person consents to VCAT making the order, where the represented person is given practicable and appropriate support and the order will promote the person’s personal and social well-being.

Old orders remain intact

Despite the repeal of the old Act, all orders for Guardians and Administrators made under that Act will remain in force for the duration of the period specified in the order, unless a court or VCAT revokes or sets them aside.

VCAT can issue a new and urgent order where it is satisfied that there is an immediate risk of harm to the health, welfare or property of a represented. That risk may be one of abuse, exploitation or neglect.

COVID-19 update

Due to COVID-19, all face-to-face hearings have been paused and are now conducted by either telephone conference or video conference, unless not appropriate. Despite this, VCAT continues to accept applications in the Guardianship List.