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.

All adults have the right to make their own decisions. People with disability should be encouraged and supported to make decisions
for themselves.

See Appointing a person to support you in making decisions.

However, if a a person with disability is not able to make a decision that needs to be made or there are concerns about the decisions they are making, or others are making for them, the Victorian Civil and Administrative Tribunal (VCAT) can appoint:

• an administrator with power to make decisions for the person about specified financial matter(s)
• a guardian with power to make decisions for the person about specified personal matter(s).

When VCAT will make a guardianship or administration order

From 1 March 2020, VCAT may only make an order if it is satisfied that:

• because of the person’s disability, they do not have decision-making capacity in relation to the personal or financial matter(s)*
• the order will promote the person’s personal and social wellbeing

To determine if the person is in need of a guardian, VCAT will consider:

• the will and preferences of the person (if VCAT can find out what these are)
• whether the decisions for which the order is sought may be made informally or through negotiation or mediation
• the wishes of any primary carer, relative of the person, or someone with a direct interest in the application
• important relationships that the person has and the benefits in maintaining them.

The Guardianship and Administration Act says that VCAT should exercise its power in a way that is the least restrictive of the ability of a person with disability to decide and act as is possible in the circumstances.

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.

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.