Guardianship is a last resort, if there is no less restrictive alternative to safeguard the interests of an adult with disability.
All adults have the right to make their own decisions. People with disability should be encouraged and supported to make decisions
However, if a person is unable to make reasonable judgements because of their disability and there are concerns about the decisions they are making, or others are making for them, the Victorian Civil and Administrative Tribunal (VCAT) can appoint a guardian to make decisions for them. Guardianship may also be needed if there are different views which cannot be resolved about what is in the person’s best interests, and a decision needs to be made.
Medical treatment decisions
If a person does not have decision-making capacity to make a medical treatment decision, the Medical Treatment Planning and Decisions Act 2016 specifies who has authority in Victoria to make such decisions. If there is no one, Victoria’s Public Advocate can make significant treatment decisions without the need for a guardianship order.
Role and responsibilities of guardians
The decisions that a guardian can make depends on the order made by VCAT.
A limited order specifies the type of personal and lifestyle decisions a guardian can make, such as:
- accommodation, including the type of housing required, where it is located and who the person lives with
- access to services
- access to people, including restricting or prohibiting particular people from having contact with the represented person.
A plenary order allows the guardian to make personal and lifestyle decisions and may include medical decisions.
A guardian cannot make decisions about the finances of the person with a decision-making disability.
An enduring guardian is different from a guardian appointed by VCAT. An enduring guardian is a person appointed by an individual before 1 September 2015 under an enduring power of guardianship document. The individual who appointed the enduring guardian must have had capacity at the time of making the appointment in order for the document to be valid.
- act as an advocate for the represented person
- act in the represented person’s best interests
- make decisions that are least restrictive of the represented person’s freedom of decision and action
- take into account the represented person’s wishes and give effect to those wishes wherever possible when making those decisions
- encourage the person to participate in the life of the community
- encourage the represented person, as far as possible, to make decisions and act for themselves
- protect the person from neglect, abuse or exploitation.
Guardians are accountable to VCAT for the decisions they make.
Further safeguards to ensure that guardians act in the best interests of the represented person include:
- the provision of support and advice from both VCAT and OPA at any time
- the ability for VCAT to reassess an order if there is concern that a guardian is not acting in the best interests of a represented person.