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.
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.