Guardianship and Administration
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?
2. How can you apply for guardianship or administration? Who will make that decision?
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.
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.
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.
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.
Frequently Asked Questions:
In Victoria, the VCAT assesses decision-making capacity in relation to the specific decision that needs to be made.
A person will generally have capacity if they can:
- Understand the relevant information
- Remember the information long enough to make the decision
- Use or weigh that information when deciding
- Communicate their decision in some way
Capacity is both decision-specific and time-specific. A person may be able to make some decisions but not others, and capacity may change over time. VCAT considers medical reports and other evidence, but applies a legal test rather than relying solely on a medical diagnosis.
Yes. VCAT must make orders that are as limited and least restrictive as possible in the circumstances.
For example:
- A guardian may be appointed only for personal, lifestyle, accommodation or medical decisions
- An administrator may be appointed only for financial, property or legal matters
- Specific powers may be granted while others remain with the person
VCAT will only give a guardian or administrator the powers that are necessary.
Family disagreement is common in guardianship and administration matters. VCAT will decide who should be appointed by considering:
- The person’s will and preferences
- The person’s personal and social wellbeing
- Whether the proposed appointee is suitable
- Any conflict of interest
- The ability of the proposed appointee to carry out the role properly
Where no family member is suitable, or where conflict is significant, VCAT may appoint an independent administrator, such as State Trustees Limited, or another appropriate person.
Victorian law requires guardians and administrators to give proper weight to the person’s will and preferences.
A decision-maker should follow the person’s wishes wherever possible. However, if those wishes cannot be identified, or following them would create a serious risk of harm, the decision-maker may need to act in a way that promotes the person’s personal and social wellbeing while using the least restrictive option available.
This approach reflects the modern Victorian framework, which focuses on supported decision-making and personal autonomy.
Yes. VCAT maintains oversight of guardianship and administration orders.
Administrators may be required to:
- Prepare an inventory of assets and liabilities
- Keep proper financial records
- Lodge accounts or annual reports
- Explain financial decisions if requested
- Comply with VCAT directions
VCAT can review the appointment, request further information, or make additional orders if concerns arise.
Yes. Guardianship and administration orders can be reviewed, varied, suspended or revoked.
A review may be appropriate where:
- The person’s capacity has changed
- The person’s support needs have changed
- The appointed decision-maker is no longer suitable
- There are concerns about financial management
- Family circumstances have changed
- A less restrictive arrangement is now available
Administration orders usually include a review period, and VCAT can also conduct reviews where necessary.
An Enduring Power of Attorney is made by a person while they still have decision-making capacity. It allows them to choose who will make certain decisions if they later lose capacity.
By contrast, guardianship and administration orders are made by VCAT after a person’s decision-making capacity is impaired and there is no adequate existing arrangement.
In many cases, careful estate planning, including powers of attorney and medical treatment decision-making documents, can reduce the need for VCAT involvement.
Concerns about a guardian or administrator can be raised with VCAT.
VCAT may:
- List the matter for review
- Require accounts, records or explanations
- Give directions to the decision-maker
- Limit the decision-maker’s powers
- Suspend or revoke the appointment
- Appoint another suitable person
Where there are allegations of financial misuse or misconduct, further legal steps may also be available.
Legal guidance is useful where:
- There are concerns about a person’s decision-making capacity
- A VCAT application is being prepared
- Family members disagree about who should be appointed
- There are concerns about financial management
- An existing guardian or administrator is unsure of their duties
- Estate planning documents are missing, outdated or disputed
An experienced guardianship and administration lawyer in Melbourne can assist with VCAT applications, capacity issues, powers of attorney, administrator duties and disputes involving vulnerable persons.