When guardianship is needed
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.
When VCAT will appoint a guardian
To appoint a guardian, VCAT must be satisfied that the person:
- has a disability
- cannot make reasonable personal and lifestyle decisions because of that disability
- needs a decision made for them or about them, and there are no alternative, less restrictive methods of making the decision other than to appoint a guardian
- needs someone to act in their best interests.
Note: a guardian cannot be appointed in anticipation that a decision may need to be made in the future.
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.
Duration of guardianship
Guardianship orders are usually of limited duration. They are reassessed annually (unless VCAT orders otherwise).
Once major decisions are made and implemented and guardianship is no longer needed, the order is usually revoked.
Enduring guardians (appointed before 1 September 2015)
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.