Office of the Public Advocate- Details
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This guide has been developed for clinicians by a Department of Health and Human Services (DHHS) working group, led by Palliative Care Consultant and Clinical Lead of Advance Care Planning at Northern Health, Dr Barbara Hayes.
The information in this guide relates to Victoria. It includes reference to relevant legislation, but is not intended to be a comprehensive description of it.
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- Intro text: Guardianship is not necessarily required simply because a person has a disability.
- Accordion:
Accordion Title Accordion body Medical 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.
Identifying the medical treatment decision maker
The medical treatment decision maker is the first person in the list below who is reasonably available, and willing and able to make the decision:
- a medical treatment decision maker appointed by the patient
- a guardian appointed by VCAT to make decisions about medical treatment
- the first person in the list below who is in a close and continuing relationship with the patient:
- the patient's spouse or domestic partner
- the patient's primary carer (not a paid service provider)
- an adult child of the patient
- a parent of the patient
- an adult sibling.
If there are two or more relatives who are first on this list, it is the eldest person.
Note: Before the Medical Treatment Planning and Decisions Act commenced in 2018, the patient may have appointed someone to make medical treatment decisions in a medical enduring power of attorney, an enduring power of attorney, or enduring power of guardianship. These appointments are still valid.
Valid appointments made in other Australian states and territories are also recognised.
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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.
Get advice
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.
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- Intro text: OPA promotes the human rights of people with disability through its participation on external committees and advisory groups.
OPA is represented on the following external committees and advisory groups:
- Australian Council on Guardianship and Administration
- Balit Narrum
- COVID-19 Disability Taskforce
- DHHS Disability Stakeholder Advisory Group Supporting Justice Advisory Committee
- Disability Act Review Advisory Group
- Eastern Community Legal Centre, Elder Abuse Strategic Advisory Group
- Elder Abuse and Safeguarding Advisory Group
- Elder Abuse Roundtable
- Ethnic Communities Council of Victoria Elder Abuse Advisory Group
- Justice Connect Safeguarding Now, Preventing Future Abuse Project Steering Committee
- Justice For All Steering Committee
- Law Institute of Victoria, Disability, Elder and Health Law Section Executive Committee
- Law Institute of Victoria, Elder Law Committee
- Our Watch
- Project Steering Committee for the Integrated Model of Care for Responding to Suspected Elder Abuse
- Review of The Retirement Villages Act Stakeholder Reference Group
- Royal Children's Hospital, Community Advisory Committee
- Seniors Rights Victoria, Advisory Committee
- Supreme Court Funds in Court Human Rights Advisory Committee
- Victoria Police, Disability Portfolio Reference Group
- Victoria Police, Mental Health Portfolio Reference Group
- Victoria Police, Disability Portfolio Reference Group
- Victoria Police, Seniors Portfolio Reference Group
- Victorian Electoral Access Advisory Group
- Victorian Electoral Commission, Disability Action Plan Advisory Committee
- Victorian Public Service, Diversity and Inclusion Community of Practice
- VPS Enablers Network
- Women with Disabilities Victoria, Prevention of Violence against Women with Disabilities Advisory Group
- Women with Disabilities Victoria, Spotlight on Invisible Women Project Advisory Group
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- Intro text: A litigation guardian can be appointed by a court or tribunal when a person does not have the capacity to instruct their lawyer. Please note, OPA is not funded to provide a litigation guardian service
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Contents
Litigation guardian appointed by a court or tribunal
Guardian or administrator appointed by VCAT with power to bring and defend legal proceedings
Functions of the Public Advocate in legal proceedings
Litigation guardian appointed by a court or tribunal
A litigation guardian can be appointed by a court or tribunal, pursuant to the rules of the court or tribunal, when a person does not have the capacity to instruct their lawyer due to cognitive impairment or being under 18 years of age.
The fact a person has a disability does not, in and of itself, mean that they cannot provide instructions to a lawyer.
A litigation guardian effectively stands in the shoes of the litigant and provides instructions to a lawyer. The purpose of the role is to protect court process and the rights of litigants who would otherwise be disadvantaged.
Please note, OPA is not funded to provide a litigation guardian service
Guardian or administrator appointed by VCAT with power to bring and defend legal proceedings
VCAT cannot appoint a litigation guardian. However, VCAT can appoint a guardian or administrator with power to undertake legal proceedings in the name of, and on behalf of the represented person, in relation to personal or financial matters named in the order. In this situation, the guardian or administrator does not need to be appointed litigation guardian in accordance with the rules of the relevant court or tribunal.
Guardians and administrators must have regard to general principles and decision-making principles set out in the Guardianship and Administration Act 2019.
Functions of the Public Advocate in legal proceedings
Firstly, the Public Advocate may be appointed guardian with powers to bring and defend legal proceedings in relation to a personal matter, as described above.
Secondly, the Public Advocate may with the leave of a court or VCAT join as a party to proceedings or assist a court or VCAT as amicus curiae in proceedings that involve the rights and interests of a person with a disability.
Thirdly, the Public Advocate may advocate for the human rights and interests of a person with a disability by making representations or acting their behalf. It is on this basis that the Public Advocate may consider accepting appointment as litigation guardian under the rules of a court or tribunal.
In general, the Public Advocate is only prepared to be litigation guardian in matters which relate to a person’s contact with their children. If the litigation relates to financial matters, then it may be possible for VCAT to appoint an administrator with powers to bring and defend legal proceedings.
Please note, OPA is not funded to provide a litigation guardian service.
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- Intro text: Resources, including information sheets, for health practitioners and people with disability promoting the right of all people to make decisions about their own medical treatment.
- Downloadable documents:
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This 13-minute HealthCARE Conversations video is for people working in the health sector or studying in a health-related field.
It includes:
- practical tips for effective communication and engagement with people with disability
- the voices of people with lived experience of disability
- tips from Dr Jane Tracy from the Centre for Developmental Disability Health Victoria at Monash Health.
It was produced as part of OPA's Healthy Discussions Project, aimed at improving communication between health practitioners and people with disability.
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- Intro text: Presented annually to an organisation that has provided an outstanding contribution to improving the lives and outcomes for people with disability.
The Public Advocate Award is presented annually to an organisation that has provided an outstanding contribution to improving the lives and outcomes for people with disability.
Recipients
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Year |
Organisation |
|---|---|
| 2023 | Villamanta Disability Rights Legal Service |
| 2022 | Funds in Court |
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2021 |
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2019 |
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2018 |
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2017 |
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2016 |
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2015 |
VALiD |
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2014 |
Carers Victoria |
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2013 |
Summer Foundation |
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2012 |
Wintringham |
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2011 |
MadCap Café |
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2010 |
Leader Newspapers (for illuminating the plight of vulnerable Victorians in its ground-breaking multimedia story ‘Man Unknown’ published in the Diamond Valley Leader Newspaper and online 30 June 2010) |
(No award was presented in 2020 due to the COVID-19 pandemic)
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