VCAT:  Guardianship and Administration

If your loved (cared) one is unable to make decisions for themselves due to disability, mental illness, injury, or age-related conditions, you may apply for a guardian and/or administrator to ensure that they receive proper care and that their financial and personal affairs are handled appropriately to protect their rights and well-being. Shan Lawyers can help you with the legal procedures involved in appointing a guardian and/or administrator.

A guardian can be appointed to make personal and lifestyle decisions on behalf of someone unable to do so themselves. This includes decisions about living arrangements, healthcare, and access to services. Guardians have a responsibility to make decisions that promote the personal well-being of individuals, including where they live, what medical treatments they receive, and other day-to-day lifestyle choices.

An administrator can be appointed to manage the financial and legal affairs of a person who lacks the capacity to do so. This can involve managing bank accounts, paying bills, handling investments, and making other financial decisions. Administrators have a responsibility to manage the person’s financial affairs prudently, ensuring that their funds are used appropriately for their care and benefit. This includes keeping detailed records and submitting periodic reports.

1. When is it Required to Appoint a Guardian or Administrator?

If your loved one lacks the capacity to make decisions in their own best interest and they do not have a valid power of attorney.

2. How can you apply for Guardianship or Administration? Who will make that decision?

To apply for guardianship or administration, you need to complete and submit an application form to the Victorian Civil and Administrative Tribunal (VCAT). The form requires detailed information about your cared one’s circumstances, including medical reports and evidence of their incapacity. If you need assistance with completing the form, contact us. Our team is here to offer you assistance.

Once you lodge your application with VCAT, they will then schedule a hearing to consider the application, during which interested parties can present their views.

3. Who Can Be Appointed as a Guardian or Administrator?

A family member, friend, or a professional guardian or administrator from the Office of the Public Advocate or State Trustees. The appointed person must be willing and able to act in the best interests of the individual.

4. Duties of an Administrator

As an administrator, you are required to adhere to key principles in your decision-making process. First, you must ascertain the individual’s Will and preferences, understanding what is most important to them. Decisions should be guided by these priorities wherever practical.

Additionally, you should offer support to the person, within reasonable limits, to enable them to make and participate in decisions affecting them, express their values and preferences, and develop their decision-making capacity. It is also crucial to act in a way that imposes the least restriction on their ability to make and act on their own decisions, given the situation.

The duties of an administrator are outlined in section 55 of the Guardianship and Administration Act 2019

As an administrator you must also:

• act honestly, diligently and in good faith
• use reasonable skill and care
• not use the position for profit
• avoid taking action if there is, or may be, a conflict of interest
• not share confidential information gained as an administrator, unless allowed by the administration order or by law.

5. Duties of a Guardian

You must first determine the individual’s will and preferences, understanding what is most important to them. Decisions should be guided by these priorities whenever practical. Additionally, you should act in a way that imposes the least restriction on their ability to make and act on their own decisions, given the situation. When necessary, support the person to the extent feasible by helping them make and participate in decisions, express what is important to them, and develop their capacity for decision-making.

The duties of a guardian are outlined in section 41 of the Guardianship and Administration Act 2019

As a guardian, you must always:

• act honestly, diligently and in good faith
• use reasonable skill and care
• not use the position for profit
• avoid taking action if there is, or may be, a conflict of interest, and
• not share confidential information gained as a guardian, unless allowed by the guardianship order or by law.

If you have power to make medical treatment decisions for the person, you must comply with the Medical Treatment Planning and Decisions Act 2016 when making those decisions, for more information, see Medical Treatment Decision Maker(s).

NOTE: If you become aware that the person has passed away, it is a legal requirement that you must report this in writing to VCAT as soon as practicable.

6. Can a Guardianship or Administration Order be Changed or Revoked?

Yes, a guardianship or administration order can be reviewed, changed, or revoked when the circumstances change. For example, if the person regains capacity or if the appointed guardian or administrator is not acting in the best interests of the person.

Seek the right legal advice contact Shan Lawyers and we will make it as easy as possible for you with our expert guidance and support. Email [email protected] or call 03 8589 2762.

See Estate Planning and Contesting a Will to learn how we can support you through the complexities of the estate matters for more information.