Making an application to VCAT
Any adult can make an application to the VCAT Guardianship List for 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 and
- an order is needed.
Someone may make an application because they are concerned about the decisions a person is making, or others are making for them.
For help to decide if an application to VCAT is necessary, contact OPA’s Advice Service on 1300 309 337.
VCAT may ask the OPA to investigate matters in the application.
While OPA staff collect and provide information, it is VCAT that decides whether a guardian or administrator is needed and, if so, who should be appointed.
In most cases, the person who is the subject of the application must be at the hearing, so they have the chance to have their say. However, they do not have to attend if they do not want to or it is impracticable or unreasonable.
VCAT should be informed of any adjustments that it can make to enable the person to attend. For example, any interpreter or accessibility requirements, a preferred venue, or access to hearing loop technology.
VCAT will usually list a hearing within 30 business days from receiving the application.
An urgent order may be needed if there is an immediate risk of harm to the health, welfare or property of the person. This may mean that VCAT is not able to hear from all parties. For more information about urgent orders contact OPA’s Advice Service on 1300 309 337.
What will VCAT consider?
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
- the person is in need of a guardian.
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.
Who can be appointed as a guardian or administrator?
For a guardianship order, VCAT will usually appoint a relative or friend of the represented person*. They must be an adult and agree to take on the role.
* The person the order relates to is known as the represented person.
In some circumstances, VCAT may appoint the Public Advocate as guardian. The Public Advocate can then delegate the powers and duties in the order to an Advocate Guardian from her office or a volunteer Community Guardian trained and supported by OPA.
For an administration order, VCAT may appoint a friend, relative, solicitor, accountant or organisation. If there is no suitable person or organisation, State Trustees Limited or a private trustee company may be appointed.
VCAT must be satisfied that whoever they appoint will take on the duties of the role, will not have a conflict of interest, and will be suitable. For an administrator, VCAT must also be satisfied that the person has enough expertise to make decisions about the financial matter(s) in the order.