Intro text: Guardianship is not necessarily required simply because a person has a disability.
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Medical 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.

Identifying the medical treatment decision maker

The medical treatment decision maker is the first person in the list below who is reasonably available, and willing and able to make the decision:

  1. a medical treatment decision maker appointed by the patient
  2. a guardian appointed by VCAT to make decisions about medical treatment
  3. the first person in the list below who is in a close and continuing relationship with the patient:
    1. the patient's spouse or domestic partner
    2. the patient's primary carer (not a paid service provider)
    3. an adult child of the patient
    4. a parent of the patient
    5. an adult sibling.

If there are two or more relatives who are first on this list, it is the eldest person.

Note: Before the Medical Treatment Planning and Decisions Act commenced in 2018, the patient may have appointed someone to make medical treatment decisions in a medical enduring power of attorney, an enduring power of attorney, or enduring power of guardianship. These appointments are still valid.

Valid appointments made in other Australian states and territories are also recognised. 

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Guardianship is not necessarily required simply because a person has a disability.

All adults, including those with disability, have the right to make their own decisions if they have the capacity to do so, and to receive the support they need to make a decision.

 The Victorian Civil and Administrative Tribunal (VCAT) will only make a guardianship or administration order if they are concerned that:

  • a person with disability is not able to make a decision that needs to be made
  • there is no other less restrictive way the decision can be made.

Guardianship and administration are a last resort, if there is no less restrictive alternative to protect and promote the human rights of an adult with disability.

Note: A guardian cannot be appointed in anticipation that a decision may need to be made in the future.

Less restrictive alternatives

Privacy laws mean organisations cannot give information about a person to someone else without their permission. This applies even if you are trying to help your adult child with disability.

If your adult child has the decision-making capacity to do so, they can appoint someone to help them make decisions. For example, as a supportive attorney (for financial matters) or medical support person (for medical treatment matters) or both.

That person will then have the capacity to access relevant information to help the person to make and give effect to a decision. They do not, however, have the right to make the decision for the person.

Supportive guardians and supportive administrators

These appointments are very similar to supportive attorney appointments. The main difference is that VCAT makes the appointment.

Get advice

Sometimes guardianship and administration may be required - but often it is not. There is no 'one size fits all' answer for everyone.

OPA's Advice Service can help you identify and explore options.

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This guide has been developed for clinicians by a Department of Health and Human Services (DHHS) working group, led by Palliative Care Consultant and Clinical Lead of Advance Care Planning at Northern Health, Dr Barbara Hayes.

The information in this guide relates to Victoria. It includes reference to relevant legislation, but is not intended to be a comprehensive description of it.

Intro text: As part of Law Week 2020, Victoria Law Foundation Executor Director Lynne Haultain spoke to OPA Legal Officer Claire McNamara about the work of the Office of the Public Advocate.
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Lynne 00:05
Welcome to the Law and You interview series for Law Week 2020. Great to have you with us and wherever you are watching or listening to this, may I take this opportunity to pay my respects to the traditional custodians of land on wherever you might be watching and certainly for the land on which we are talking to you this morning or today. So, let me introduce you to today's guest because we want to talk about disability and guardianship which are two issues that that may not be front and centre during the time of lockdowns and pandemics, but certainly when it comes to people's understanding of how they plan for their futures, this can be often a, you know, important trigger for people to make decisions about mapping their aspirations for what happens to them and their belongings should the worst occur. So let me introduce you to Claire McNamara, who is the legal officer with the Office of the Public Advocate in Victoria. Good morning, Claire, thank you so much for your time.

Claire McNamara 01:10
Thank you, Lynne, thank you for the opportunity to spread the OPA message.

Lynne 01:15
Well tell us just a little bit about what OPA does.

Claire McNamara 01:18
Yes just so people are clear OPA is the Office of the Public Advocate, but we call ourselves OPA. We do a variety of things essentially about individual and systemic advocacy for people with disability. Ordinarily, people with cognitive disability and probably we're best known for the work we do as guardians. They can appoint the Public Advocate to be guardian if there's nobody else suitable to take on that role. And we have another role at VCAT which is where, if there's applications before the tribunal they might ask us to investigate and provide further information. So VCAT's the Victorian Civil and Administrative Tribunal, but we call it VCAT. So we do lots of other things, some of the topics that I've had a particular interest in over the year are around elder abuse and trying to prevent misuse of financial powers of attorney and trying to prevent needless, unlawful restraint against people with disability, particularly elderly people in aged care facilities. So we do we do lots of things. And if you're interested in the organisation, there's always opportunities for volunteering. We have about 700 volunteers who visit facilities to keep an eye on people who live in residential facilities such as mental health units and disability support accommodation.

Lynne 02:34
Well that's a fantastic opportunity, I think for people to get more involved because as you say, it's really critical and really diverse and interesting work as well. But there are a couple of things you mentioned there, Claire around disability and also about elder abuse and mismanagement of people's financial condition with a view as opposed to personal gain at the end and all these sorts of issues around, you know, thinking about wills. I know, for example, that wills as a search term on Google went through the roof when the pandemic first sort of became, you know, high profile. So we are thinking about those sorts of issues and you're dealing with the, I suppose, the worst of that behaviour. But what what can people do in order to make sure that they are in the best possible position to respond, if, for example, their partner or their family member or they themselves want to make plans for their future?

Claire McNamara 03:36
Okay, well just firstly, I should emphasise that our office doesn't give any advice about wills. We know that people of course are concerned about wills and they put it in the same package as other matters that our office deals with, which is really more about future planning, and making powers of attorney or appointing someone to make medical treatment decisions for you. If you didn't have the capacity to do that for yourselves or Advance Care directives. So that's really more the area that our office has expertise in. So there's always a delicate balance between on the one hand, we certainly, OPA have always encouraged people to do future planning. It's good for any of us, of any age, at any stage of our life in any circumstances, social lockdown, or otherwise, to be thinking about what would happen if I wasn't in a position to make decisions for myself in the future. And so, we certainly want to promote that. But on the other hand, we also want to protect people. And there certainly is plenty of research, which indicates that powers of attorney can become instruments of elder abuse. What OPA wants to do is to try to ensure the safeguards in place so that people use those planning documents to promote their autonomy, not that they're used by other people for financial abuse and certainly Like the most common type of abuse against older people, is financial abuse.

Lynne 05:04
So Claire, how do you ensure that because, you know, it is you say important to empower the individual to make that decision for themselves. But how do you ensure that down the track that isn't open to some kind of pressure or abuse?

Claire McNamara 05:21
I think the approach of our office has changed recently, we've put out a publication called Take Control since 1993. I'm not sure it might be up to about it's fifteenth edition or so. The most recent edition we've taken a different approach, we don't have the forms in Take Control. Now in the past, people have said they want the forms in that document. And by the forms, I mean, the powers of attorney, the documents you'd fill out, and we changed that. We thought to change this approach for some time and we have done so recently, because we felt it was a little bit about putting the cart before the horse. What we want to do is encourage people to think and to plan. After the thinking and the planning, then there can be the doing. So people want to make powers of attorney, that's an option. It's also an option not to do it. So for instance, whilst I'm a person who knows a lot about the legislation, and I've done many training sessions about advanced care planning, I personally haven't made an advanced care directive. Should I? It's a personal choice. The choice somebody else will like is a different one. Do I need to do it at this point in my life, in my circumstances? Maybe not. Or maybe I've just not got around to it, but they're my points of responsibility for myself. So I think what we're trying to do with our publications approach is to slow things down. Because what we really want people to do is to be informed. I think maybe people have a sense of if I've completed the document and it looks official, I've done something, but maybe you've done nothing that's really good to help you in the future. And maybe you've done Something that will be unhelpful in the future. So the first thing is to make sure you're well informed about your options. You read some information, you talk to your friends, you find out what worked for people, what didn't work for people, and you reflect upon what's important for you. And that, I have to say is easier said than done. Have a conversation with your family over dinner, through a Zoom dinner, just ask people, what would you want to happen if... imagine a scenario if you were diagnosed with Alzheimer's, if you were in a catastrophic car accident, if you needed to be on a ventilator. Have these hypothetical conversations when they're safe to have because in fact, you've not just been diagnosed with Alzheimer's, you've not just been in a catastrophic car accident. Now is a safe time to have those conversations. So if something did happen, people would know what you want. If I was to appoint, for instance, my sister to be my medical treatment decision maker and she says, "Thanks, Claire, I always knew you favoured me over everybody else in the family. What an honour." Maybe she feels the honour. But how helpful is it to me if she gets a call at two in the morning to come into hospital and make some difficult decisions. She's going to look around at my siblings. And say "We never spoke about this." So it's not the completion of the document that's important. It's a conversation.

Lynne 08:24
Claire, I think you've given us such a vital summary of that dual role, you have to both promote these issues and to plant them in people's minds so that we can think through, you know, what it is we want and what it is we value and, you know, for many people, that's a difficult conversation. It's not your normal kind of dinner time chat. But it is critical, and I think it is in people's minds, particularly at the moment, but also, as you've said, you know, the really vital role that OPA plays in protecting, you know, the most vulnerable through whatever mechanism, whether it's the Guardianship and Administration Act or other roles that you play and through your volunteers, but it's, I think, really timely for us to consider what future planning looks like and what kinds of issues we might need to discuss. And we thank you very much indeed for your time today.

Claire McNamara 09:25 Thank you.

As part of Law Week 2020, Victoria Law Foundation Executor Director Lynne Haultain spoke to OPA Legal Officer Claire McNamara about the work of the Office of the Public Advocate.

Intro text: This online webinar introduces the key concepts and changes in the Act.
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The Guardianship and Administration Act 2019 came into effect on March 1, 2020.

Presented by OPA's Legal Officer and the Principal Advocate Guardian, this online webinar for health and social services professionals introduces the key concepts and changes in the Act.

Intro text: This presentation for health practitioners explains advance care planning under the new Act and the medical consent process for a patient who does not have decision-making capacity.
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This presentation for health practitioners explains:

  • advance care planning under the Medical Treatment Planning and Decisions Act 2016
  • the medical consent process under the new Act for a patient who does not have decision-making capacity to make the medical treatment decision.
Downloadable documents:
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Adults have the right to make their own decisions about their life.

But sometimes adults can’t make decisions because of disability, illness or injury. For example, severe dementia.

Adults may choose a person to make decisions for them if, in the future, they can’t make their own decisions.

They do this by filling out a special form called an ‘enduring power of attorney’.

If they don’t do this and can’t make decisions because of a disability, illness or injury, there is a tribunal that can help. It is called the ‘Victorian Civil and Administrative Tribunal (VCAT)’.

VCAT can choose someone to make decisions about the person’s money and property (called an ‘administrator’).

VCAT can choose someone to make a decision about the person’s lifestyle (called a ‘guardian’).

For example, this could be a decision about where the person lives or about what services they need, such as help at home.

Medical treatment decisions

The law says who can make decisions about medical treatment for another person (if that person can’t make their own decisions). For example, this could be the person’s husband or wife, or adult child.

If you have any questions

You can call the Office of the Public Advocate for advice on 1300 309 337.

You can ask for a telephone interpreter.