Guardianship

All adults over the age of 18 years, regardless of disability, are entitled to make their own decisions. This is the case unless, when they were competent, they appointed a person to be their guardian under the enduring power of guardianship and have now lost capacity to make the types of decisions they appointed the enduring guardian to make for them.

Alternatively, a guardianship order can be obtained by making an application for guardianship to the Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT).

VCAT then 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, such as where they live and who can have access to them, according to the terms of the order.
The guardian’s decisions have the same legal force as if the person had made them themselves.

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 guardianship orders

In emergency situations, VCAT can make temporary 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 if a guardianship order is needed.

Best interests and mediation

A guardian must always take into account the best wishes of the represented person (the person they are acting on behalf of).

In some cases, a person with a disability may be involved in conflict with people around them, including family members. In these cases, mediation may be used as an alternate way to resolve these issues, in an effort to avoid appointing an administrator unnecessarily.

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 VCAT member.

However, if disputes can be resolved informally, there may be no need to apply to VCAT.

Alternately, there are some instances where there continues to be ongoing conflict even after VCAT appoints an administrator, or makes any other particular order to protect the person with a disability. VCAT does not always have the power to resolve these conflicts.

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 (OPA) or, with the consent of the parties, may notify OPA 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 – an 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.

What is an Enduring Power of Guardianship?

Another type of guardianship is an enduring power of guardianship. Anyone can appoint an enduring power of guardianship for themselves by filling in a legal document to appoint someone to make personal and lifestyle decisions for them. An enduring power of guardianship continues (endures) when you are unable to make these types of decisions for yourself.