The Guardianship and Administration Act 2019 (Vic) (the Act) came into operation on 1 March 2020.
At the time the Act was passed, the Attorney-General Jill Hennessy described the Act as “the biggest changes to Victoria’s guardianship and administration laws in more than 30 years”.
The primary object of the Act is to protect and promote the human rights and dignity of persons with a disability.
It makes clear that the overriding principles under the Act are to:
- provide support to a person with a disability to make and participate in decisions affecting them
- express their will and preference
- develop their decision-making capacity, and
- carry out powers, functions and duties under the Act in a way which is least restrictive of the ability of a person with a disability to decide and act.
The Victorian Civil and Administrative Tribunal (VCAT) has retained the jurisdiction to make orders with respect to guardianship and administration and the Act sets out comprehensively:
- the procedure with respect to an application for a guardian or administrator
- eligibility to act as guardian or administrator
- the scope of orders that can be made
- compensation for acts of guardian or administrators who are in breach of the Act, and
- offence provisions.
Importantly, the Act sets out the definition of decision-making capacity which is the same as the definition in the Powers of Attorney Act 2014 (Vic), providing a consistent approach to this sensitive topic.
A person has capacity to make a decision in relation to a matter (decision-making capacity) if the person is able to:
- understand the information relevant to the decision and the effect of the decision; and
- retain that information to the extend necessary to make the decision; and
- use or weigh that information as part of the process of making the decision; and
- communicate the decision and the person’s views and needs as to the decision in some way, including by speech, gesture or other means.
A person is presumed to have decision-making capacity unless there is evidence to the contrary.
The Act also recognises that a person has decision-making capacity in relation to a matter if it is possible for the person to make the decision with practicable and appropriate support. Some examples set out in the Act include:
- using information or formats tailored to the particular needs of a person
- communicating or assisting a person to communicate the person’s decision
- giving a person additional time and discussing the matter with the person, or
- using technology that alleviates the effects of a person’s disability.
If you, a family member or friend find yourself in a position where you need to navigate your way through circumstances involving guardianship and administration, our Wills and Estates team would be pleased to help.