Guardianship is the appointment of a person (a guardian) to make decisions for an adult with a disability (the represented person) when they are unable to do so.

How does it work?

• You submit an application for guardianship to VCAT.
• VCAT hears the matter and, if necessary, appoints a guardian to make specific types of decisions.
• The guardian makes decisions about the represented person's lifestyle according to the appointment.
• The guardian's decisions have the same legal force as if the person had made them themselves.

When is guardianship needed?

Guardianship is needed when:

• a person who has a disability is at risk because they cannot make decisions about their own personal and lifestyle affairs
• a decision needs to be made on their behalf.

A guardian may be appointed when there is unresolved conflict between a person with a disability and a service provider, family and friends, or in cases of self-neglect.

Who appoints a guardian?

VCAT appoints the guardian. It must be satisfied that the represented person:

• has a disability
• cannot make reasonable personal and lifestyle decisions because of that disability
• needs to make a decision and there is no less restrictive way of making the decision other than to appoint a guardian
• needs someone to act in their best interests.

Who can be a guardian?

VCAT can appoint an individual(s) - usually a relative or friend - as guardian. VCAT prefers to appoint a guardian who is familiar with the represented person's values and beliefs, likes and dislikes. VCAT must be assured that the guardian will act in the represented person's best interests.

VCAT will consider the wishes of the represented person and family members in deciding whom to appoint.

If there is no one available or there is a need for an independent person because of disagreement between family or friends about what is best for the represented person, the Public Advocate can be appointed.

What decisions can they make?

This depends on the order made by VCAT. A limited order specifies the type of personal and lifestyle decisions the guardian can make, for example to decide upon accommodation, healthcare, or access to services. A plenary order allows the guardian to make all lifestyle decisions, except in the area of health care where there is an enduring power of attorney (medical treatment) or an appropriate 'person responsible'.

A guardian cannot make decisions about the represented person's finances. See Administration fact sheet.

Health care

The 'person responsible' can make most health care decisions for a person with a disability. They are usually a close family member or unpaid carer. A healthcare guardian will not be appointed when there is an appropriate 'person responsible'. If appointed, a health care guardian cannot consent to certain procedures, for example where the procedure will result in sterilisation of the represented person.

See fact sheets Medical/dental treatment for patients who cannot consent - the person responsible and Medical research for patients who cannot consent - the person responsible fact sheets.

Responsibilities of a guardian

A guardian must make decisions that are in the best interests of the represented person. This means they:

• protect the person from abuse, exploitation and neglect
• consider the represented person's wishes
• advocate for the represented person
• encourage the represented person to make their own decisions where possible.

How can I apply?

A form is available from VCAT or its website. There is a link to this from OPA's website. We suggest you telephone the OPA advice service to discuss whether guardianship is necessary and about supporting material required for the application.

After receiving the form, VCAT will set a hearing date. Urgent applications will be heard as soon as possible. Most other applications will be heard within 30 days.

Tribunal hearings

VCAT is less formal than a court. It tries to help people appearing before it feel comfortable and relaxed. If a person cannot travel to a hearing, VCAT may agree to accept evidence over the telephone. VCAT usually consists of one member who may be a lawyer, another professional or someone with personal experience in disability.

VCAT is not bound by legal rules of evidence and does not have to use formal legal processes. However, hearings must comply with the principles of natural justice (be fair and unbiased).

Legal representation is not necessary, although people attending VCAT hearings may ask VCAT to allow them to use a lawyer.

Emergency orders

OPA and VCAT have a 24-hour emergency service. If VCAT considers that a matter is urgent (where there is significant risk to the person's life), a temporary guardianship order can be made for up to 21 days. The order can be extended a further 21 days. Before the end of the order VCAT must hold a hearing to determine whether guardianship is needed.

Duration of an order

An order may last for a maximum of three years, although it will usually be for a shorter period of time. All orders are reassessed by VCAT within three years and can be cancelled if no longer needed.

If the represented person dies, the order ends.

Rehearings

If someone believes VCAT has made a wrong decision, they may apply for a rehearing within 28 days.

Interstate orders

It is possible to register Victorian guardianship orders in other states, and for interstate orders to be registered in Victoria. For further information contact OPA.

Safeguards

Guardians are accountable to VCAT for the decisions they make.

The following safeguards help to ensure that guardians act in the best interests of the represented person.

• Guardians can ask VCAT for advice at any time.
• Upon appointment private guardians can contact OPA's private guardian support program.
• Any person who believes that a guardian is not acting in the best interests of a represented person can apply to VCAT for a reassessment.
• If the Public Advocate has been appointed the guardian, complaints can be made to OPA.

The Office of the Public Advocate is an independent statutory office, working to promote the interests, rights and dignity of Victorians with a disability. For more information about guardianship and administration applications, consent to medical and dental treatment, and enduring powers of attorney and guardianship, visit our website or call our advice service.

The Office of the Public Advocate manages two voluntary programs, the Community Visitors Program and the Independent Third Persons Program. The Community Visitors monitor the quality of disability services in order to safeguard the rights of vulnerable people. The Independent Third Person program provides support for people with a cognitive impairment who have contact with the police.

This fact sheet is also available in 11 other languages. For more information and publications visit the Office of the Public Advocate's website (www.publicadvocate.vic.gov.au) or call our Advice Service 1300 309 337 (for the cost fo a local call).