Guardianship FAQs

What is the difference between guardianship and administration orders?

Guardianship is the appointment of a guardian to make lifestyle decisions for an adult with a decision-making disability when there is a need for a decision to be made and they are unable to make these decisions them selves.

Administration is the appointment of an administrator to make financial and legal decisions for an adult with a decision-making disability when there is a need and they are unable to make these decisions themselves.

Who decides whether a guardian or administrator is needed and who to appoint?

The Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT).

Who can be appointed as guardian or administrator?

The Victorian Civil and Administrative Tribunal (VCAT) can appoint an individual(s) usually a relative or friend - as guardian. It can appoint an individual(s) (e.g. a relative, friend, solicitor or accountant) or an organisation such as a private trustee company - as administrator.

VCAT seeks to appoint a guardian and/or administrator who is familiar with the values and beliefs, likes and dislikes of the person with a disability (represented person).
VCAT must be assured that the guardian and/or administrator will act in the represented person’s best interests and is competent to do so.

VCAT will consider the wishes of the represented person and family members in deciding who 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 VCAT can appoint the Public Advocate as independent guardian and an independent administrator such as State Trustees Limited.

What can be done if a guardian or administrator is not making the best decisions?

If a guardian or administrator is not acting in the best interests of a represented person an application can be made to VCAT for a reassessment of the order. If the guardian is a delegate of the Public Advocate, concerns can be raised with the manger of the Advocacy/Guardianship Program.

Where do you get a Victorian Civil and Administrative Tribunal application form from?

A form can be downloaded from www.publicadvocate.vic.gov.au or www.vcat.vic.gov.au. Alternately, call the OPA Advice Service on 1300 309 337.

Can a guardian appointed by the Victorian Civil and Administrative Tribunal make all lifestyle decisions?

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, medical treatment, or access to services.

A plenary order allows the guardian to make all lifestyle decisions. It should be noted that in the area of medical treatment it is the ‘person responsible’ who is asked to provide consent to medical treatment. If the guardian is the first listed person they will be the ‘person responsible’. However, if there is an agent under an enduring power of attorney (medical treatment) or another person appointed by VCAT to make the medical decisions they would take precedence over a guardian. For further clarification please see fact sheet titled Medical/dental treatment for patients who cannot consent.

This can be downloaded from www.publicadvocate.vic.gov.au, call the OPA Advice Service on 1300 309 337 to have one sent to you.

A guardian cannot make decisions about the person they are representing finances.

Is there any difference between an enduring guardian and a guardian appointed by the Victorian Civil and Administrative Tribunal?

An enduring guardian is a person appointed by another person (the donor) through an Enduring Power of Guardianship document. The donor can specify what sorts of decisions their enduring guardian can make on their behalf or give them full authority to make lifestyle related decisions. An enduring guardian’s authority begins when the donor loses the capacity to make lifestyle decisions for themselves and ceases upon the death of the donor. The authority will also cease if:

• the donor cancels it
• VCAT rules that the enduring guardian is not acting in the best interests of the donor or is no longer able to perform the role.

A guardian appointed by VCAT is a person who VCAT has appointed on behalf of a person with a decision-making disability when there is a decision that needs to be made, and cannot be made by anyone else. This may arise because there is unresolved conflict between the person with the decision-making disability and a service provider, family and friends or in cases of self-neglect. A guardian appointed by the VCAT is appointed to make personal and lifestyle decisions. VCAT can make a limited order which specifies the type of personal and lifestyle decisions the guardian can make, for example to decide upon accommodation, healthcare, or access to services. A VCAT 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 the VCAT within three years and can be cancelled if no longer needed. If the person with a decision-making disability dies, the order ends.

A guardian cannot make decisions about the finances of the person with a decision-making disability.

How many people can be appointed as enduring guardian?

Only one person can be appointed as enduring guardian, as long as they agree to take on the role. They should be someone that is trusted by the donor to respect and carry out their wishes. A second person can also be appointed as an alternative guardian. The alternative guardian can only make decisions when the guardian is unable to because they have lost capacity, died or are absent for a period of time.

When does the power begin?

The appointment begins only when the donor is no longer competent to make personal and lifestyle decisions, like accommodation and medical treatment decisions. The donor could lose the capacity to make decisions permanently, such as through dementia or an acquired brain injury from a car accident, or temporarily, by becoming unconscious as a result of an illness.

Who can witness the Enduring Power of Guardianship?

Two witnesses are required and one must be someone authorised to witness statutory declarations. (See www.publicadvocate.vic.gov.au or Take Control- a kit for making powers of attorney for a detailed list.)

A relative of either the donor or the enduring guardian cannot be a witness.

What should be done with the Enduring Power of Guardianship form when it is completed?

Enduring powers of attorney are not registered in Victoria. The donor should keep the original in a safe place along with other important personal documents and tell family or close friends where these are kept. The donor should give a certified copy to the enduring guardian and to anyone else who may need to be involved, such as their doctor. The donor could also carry a card in their purse or wallet that has the details of the enduring guardian.

Can an Enduring Power of Guardianship be changed?

There are different reasons why the donor might want to change or cancel a power of attorney. These may include:

• the donor’s relationship with the person the enduring guardian has changed.
• the donor now knows someone who would be more suitable for the role.
• the donor or the enduring guardian may have moved.
• the donor’s health circumstances have changed so much that they feel the enduring guardian is no longer suited to make decisions on their behalf.
• If the donor chooses to change their enduring power of guardianship, they must have the capacity to understand the nature and effect of their actions.

The donor can revoke their enduring power of guardianship by:

• telling the enduring guardian that their power is withdrawn
• destroying the document and any copies
• putting it in writing or filling in a revocation form.

Can an enduring guardian delegate their power to anyone else?

No, only an enduring guardian/s appointed by the donor are able to exercise their authority. If an enduring guardian is no longer able to carry out the role only an alternative guardian already appointed by the donor is able to step in.

What sort of decisions can an enduring guardian make?

An enduring guardian may be given any lifestyle decision-making powers the donor likes. For example, where the donor will live, how the donor’s health care should be maintained or who can visit them.

The form has examples of the types of powers the donor might want to choose.

The donor can delete the powers they don't want their guardian to have, or give them unrestricted powers. The donor can also indicate any limitations on how they use those powers, or any wishes you want the guardian to take into account when making a decision on their behalf. The donor should discuss their wishes with their guardian before making the appointment.

An Enduring Power of Guardianship cannot be used to make financial and legal decisions.