What is an administrator?

An administrator is someone appointed by VCAT to make financial and legal decisions for an adult who cannot make their own decisions. Administration is an important way to protect the finances and assets of people who cannot make reasonable decisions for themselves. When there is no family member, friend or legal professional, who is suitable to act as administrator, VCAT can appoint State Trustees as an independent administrator.

What is a guardian?

A guardian is someone appointed by VCAT to make personal and lifestyle decisions for an adult who cannot make their own decisions. Guardianship is a vital way to protect and promote the rights and interests of people who cannot make their own decisions. Where there is no suitable family member or friend who can act as guardian, VCAT can appoint the Public Advocate as an independent statutory guardian. In some cases the Public Advocate delegates the role to a community guardian.

What decisions can a guardian make?

A guardian’s powers are determined by the VCAT order. A limited order specifies the types of lifestyle decisions the guardian can make. For example, the guardian may only have the power to make accommodation decisions. A plenary order allows the guardian to make all lifestyle decisions. A guardian cannot make financial decisions. That is the role of an administrator.

Temporary administration and guardianship orders

In emergency situations, VCAT can make a temporary administration or guardianship order for up to 21 days. The temporary order can be made at very short notice. If necessary it can be extended for a further 21 days. Temporary orders allow VCAT to act swiftly to protect individuals who are at risk. VCAT can only make a temporary order when the person in question is at immediate risk and there are no less restrictive options for addressing the situation. Before the end of the temporary order VCAT must hold a hearing to decide whether an administration or guardianship order is needed.

How are guardians and administrators appointed?

Guardians and administrators are appointed by VCAT.

Mediation - an alternative way to resolve issues

In some cases a person with a disability is at the centre of conflict between family members or other persons.  Examples include –

• disagreement between brothers and sisters about a parent’s accommodation
• conflict between estranged parents about an adult child’s care
• disagreement about access and visiting the person, or
• disputes about a person’s financial and legal affairs, including use of an enduring power of attorney 

Occasionally, separate or unrelated disputes between family, friends and carers can prevent them coming together to solve problems for the person with a disability.

If an application is made to VCAT, the Guardianship List may in suitable cases direct that there be mediation by a Tribunal Member. 

However, there may sometimes be no need to apply to VCAT if disputes can be resolved informally.  And even if VCAT has appointed a guardian or administrator, or made some other order to protect the person with a disability, there may be ongoing conflict that VCAT does not have power to deal with.

In these situations, the Dispute Settlement Centre of Victoria (DSCV) may be able to assist the parties to resolve their disputes.  The process is confidential and free of charge. 

DSCV may decline to take on the case if the person with a disability is unable to participate in mediation or has inadequate support.  However, the Public Advocate (who generally protects and promotes the best interests of persons with a disability) may be able to support the person.  DSCV may decide to refer the person to the Office of the Public Advocate or, with the consent of the parties, may notify the Office of the Public Advocate and request that the Public Advocate become involved in the process.

For more information, visit the Dispute Settlement of Victoria website (www.justice.vic.gov.au/disputes) and the Victorian Civil and Administrative Tribunal website (www.vcat.vic.gov.au).

Providing guardianship for Jenny – a case example

Jenny, a woman with a mild intellectual disability and an acquired brain injury, lived with her family in rural Victoria. She had few interests or enjoyable activities in her life. The Office of the Public Advocate’s Advice Service was contacted by her doctor who was concerned about Jenny. He said that she was very thin, complained that she was not getting enough to eat and said she was required to spend evenings in her room alone rather than being allowed into the living room with the rest of the family.

Her family was clearly under stress. In cooperation with the Department of Human Services, they agreed to accept respite care for Jenny. At the end of the respite period she refused to go home. Her family insisted that she return and so a guardian was appointed to make a decision about Jenny’s accommodation. The guardian decided that Jenny should remain in supported accommodation; this was clearly her wish. Living in her new home Jenny put on weight, enjoyed her day placement and developed a busy social life. Initially, contact with her family dropped off in time this was re-established.

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