Applying to VCAT

How will VCAT decide if the order is needed?

To decide whether the person is in need of a guardian or administrator, 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
  • may reasonably be made 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 how to keep them.

At the hearing

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, it is impracticable or unreasonable.

Who can be appointed?

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.

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.

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.

What will VCAT consider?

VCAT must be satisfied that whoever they appoint will take on the duties of the role, will not have a conflict of interest, and is 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.

Supportive guardians and supportive administrators

If you are asking VCAT to appoint a supportive guardian or supportive administrator, you must suggest someone for VCAT to appoint and that person needs to agree. The person the application is being made about also needs to agree.

The Public Advocate will never be appointed as a supportive guardian or supportive administrator.

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.