Guardians and administrators
Who can be appointed as a guardian or administrator?
Any person over 18 years of age is eligible to be appointed a guardian or administrator, if they consent to act, but VCAT must be satisfied:
that they will act in accordance with their statutory duties;
that there is no actual or potential conflict of interest; and
that they are suitable to be appointed (GA Act s 32).
A person proposed as an administrator must have sufficient expertise to administer the estate (GA Act s 32(2)(d)).
In the GA Act, the duties of a guardian are set out in Part 3 division 4; whereas, the duties of an administrator are set out in Part 3 division 7.
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The parent or nearest relative of a proposed represented person is not automatically regarded as having a conflict of interest by virtue of that relationship. They are also not assumed to be unsuitable because they disagree with another relative (GA Act s 32(5)).
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VCAT must take into account several matters in deciding if the proposed guardian or administrator is suitable:
the will and preferences of the person;
the desirability of preserving existing relationships that are important to the person;
the desirability of appointing a person who is a relative or who is known rather than a person who is not a relative or who is unknown;
the person’s availability to meet and communicate with the person; and
whether they will act cooperatively with any current guardian or administrator (GA Act s 32(3)).
VCAT must consider a statement of wishes lodged with VCAT by a previous guardian or administrator (e.g. a parent of a child with a longstanding disability).
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If there is no person available who satisfies all the above criteria in relation to guardianship, VCAT may appoint the Public Advocate (GA Act s 33) to be a person’s guardian. For the Public Advocate’s contact details, see ‘Contacts’ at the end of this chapter. For more information, see ‘The Public Advocate’ in Chapter 8.1: Understanding disability and the law.
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Where it considers it to be appropriate, VCAT can appoint more than one person to be joint guardians, or to be guardians with the Public Advocate (GA Act s 33).
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Where there is no family member or friend who meets the criteria to be the administrator, VCAT can appoint a professional organisation to do this (e.g. State Trustees, or a lawyer or accountant). VCAT does appoint joint administrators, although there is no mention of this power in any legislation. Section 177 of the GA Act sets out a resolution process for disagreements between appointees, including where there are disputes between administrators.
Powers and duties of guardians and administrators
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Under the GA Act, a guardian’s powers relate to the personal matters (these are defined in section 3) set out in the order of appointment. Personal matters are defined to mean ‘any matter related to the person’s personal or lifestyle affairs’. Examples of what this could mean include: accommodation, employment, education and training, diet and dress, and medical treatment. In practice, orders are also made about the person’s access to services and access to other people.
Personal matters also include ‘any legal matter that relates to the person’s personal or lifestyle affairs’. Legal matters are dealt with in two places. In the definition of ‘legal matter’, the legal matters are limited to the use of legal services and bringing or defending a legal proceeding. However, the GA Act (s 38(1)(c)) requires specific mention of the power to undertake legal proceedings in the order of appointment. The legal matter must correspond to a personal matter in the order.
The GA Act (s 39) also sets out powers that cannot be given to a guardian, including dissolution of marriage, and making decisions about the care of children. In the case of HYY [2022] VCAT 97, VCAT determined that the use of restrictive practices, in this case physical restraint, is not a ‘personal matter’ for which a guardian can be appointed.
The guardian’s duties (GA Act s 41) require them to apply decision-making and general principles when making decisions (GA Act ss 8, 9).
A guardian must also:
act as an advocate for the person;
encourage the person to develop decision-making capacity;
protect the person from abuse, neglect and exploitation;
act honestly, diligently and in good faith;
exercise reasonable skill and care;
not use the position for profit;
avoid conflicts of interest; and
not disclose confidential information unless required to fulfil their role or otherwise authorised by law.
Guardians for health care are usually empowered to make medical treatment decisions in accordance with the MTPD Act. Guardians may also be the authorised representatives for the purposes of the Health Records Act 2001 (Vic) and the Privacy and Data Protection Act 2014 (Vic). Guardians may be empowered to apply for a family violence intervention order under the Family Violence Protection Act 2008 (Vic) or an intervention order under the Personal Safety Intervention Orders Act 2010 (Vic).
An appointed guardian can apply to VCAT for advice about any matter relating to the scope of the order or the exercises of its powers (GA Act s 44). Guardians may seek help from OPA (www.publicadvocate.vic.gov.au).
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Under the GA Act 2019, an administrator has six basic powers:
to make decisions about the financial matters specified in the order;
to make gifts (s 47);
to invest (s 48);
to open the person’s will (s 49);
to sign and do anything necessary to give effect to the administrator’s powers (s 50); and
to do all matters necessary or incidental to the performance of the administrator’s powers (s 46).
VCAT may also give the administrator powers under section 51 (undertaking legal proceedings) and section 52 (sets out an extensive list of supplementary powers) of the GA Act. Section 53 sets out powers that cannot be given to an administrator, such as to revoke or make a will for the person or to manage the person’s estate after their death.
An administrator’s duties echo those of a guardian (GA Act s 55). There are specific provisions about conflict transactions, including when these are permitted (GA Act ss 57–58). There are duties to keep records, and to keep the person’s and administrator’s property separate (except for jointly owned property) (GA Act s 60). Administrators can seek advice from VCAT and from professional advisers (GA Act ss 64–65).
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VCAT may appoint a supportive guardian or a supportive administrator in response to an application for guardianship or administration. VCAT may only appoint a supportive person if the proposed represented person consents.
VCAT must be satisfied that the proposed represented person has the decision-making capacity (if they are given the right support) to make decisions about personal matters (supportive guardianship) or financial matters (supportive administration). The appointment must also promote the person’s personal and social wellbeing.
The GA Act sets out:
who is eligible to be a supportive guardian or administrator (s 88);
that the order appointing a supportive guardian or administrator must specify the personal or financial matter involved (s 89);
the types of powers given to the supportive guardian or administrator (ss 90–93);
the duties and obligations of the supportive guardian or administrator (s 94);
that the supportive guardian or administrator has no entitlement to renumeration (s 95);
when a supportive guardian or administrator order ceases to have effect (s 96);
the represented person’s ability to obtain advice from VCAT (s 97); and
the supportive guardian’s or administrator’s obligation to report the represented person’s death to VCAT (s 98).
A supportive guardian or administrator order must be reassessed within 12 months, unless VCAT orders otherwise. All supportive guardian or administrator orders must be reassessed within three years (GA Act s 159).
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The GA Act sets out the process for resolving disagreements between guardians and administrators. The parties should first seek to resolve the dispute informally or by mediation. If the disagreement continues, they should seek VCAT’s advice.
The GA Act does set out that a guardian’s decision prevails over an administrator’s decision to the extent of any inconsistency. However, if the guardian’s decision would seriously deplete the person’s estate, the administrator is not required to comply with the guardian’s decision and must seek advice from VCAT about how to resolve the disagreement (GA Act s 177).
Guardians and administrators
Chapter: 8.5: Guardianship and medical treatment
Contributor: Philip Grano, Former Principal Lawyer, Office of the Public Advocate
Current as of: 1 September 2024
Law Handbook Page: 767
Next Section: Medical treatment
