Applications to VCAT’s Guardianship List usually follow a change that a family cannot manage informally: a stroke, an acquired brain injury, advancing dementia, or a serious mental illness affecting a person’s ability to make particular decisions, in circumstances where no enduring appointment was ever made. The Tribunal’s task is narrow and protective. It does not take over a person’s life; it appoints someone to make defined decisions the person cannot presently make, for as long as that is necessary.
Decision-making capacity is decision-specific
Under the 2019 Act, a person has decision-making capacity for a matter if they can understand the information relevant to the decision and its effect, retain that information to the extent necessary to make the decision, use or weigh that information, and communicate the decision and their views and needs in some way. Capacity is assessed decision by decision, and it may fluctuate: a person may have capacity for personal decisions and not for complex financial ones, or capacity in the morning and not in the evening.
The Act requires capacity to be assessed on the basis that a person is presumed to have it, that capacity is specific to the matter, that a person is not to be assessed as lacking capacity merely because of a decision they made, and that practicable and appropriate support must be given before concluding capacity is absent (section 5).
When VCAT may appoint
VCAT may appoint a guardian or an administrator only where it is satisfied that the person does not have decision-making capacity for the personal or financial matters in question, that they are in need of a guardian or administrator, and that the order will promote their personal and social wellbeing (section 30). The Tribunal must also be satisfied that the person’s needs could not be met by other less restrictive means, including through informal support arrangements or a supportive appointment.
A diagnosis is evidence, not an answer. Medical and allied health material — a report from a treating general practitioner, geriatrician, neuropsychologist or social worker — helps the Tribunal understand the person’s functioning, but the finding on capacity is the Tribunal’s to make on all the evidence, including what the person says.
Guardianship and administration are different
A guardianship order covers specified personal matters — where the person lives, the services they receive, and with whom they have contact. An administration order covers specified financial or property matters — banking, income and benefits, paying accounts, dealing with a property, and managing investments. Some matters call for one order only.
Certain decisions are outside these powers altogether. A guardian or administrator cannot make or revoke a will for the person, cannot consent to a marriage, and cannot vote on the person’s behalf (section 39).
Supportive appointments
The Act also allows VCAT to make a supportive guardianship or supportive administration order. A supportive appointee does not make decisions. The role is to support the person to make and give effect to their own decisions — obtaining and explaining information, communicating the person’s decisions, and doing what is reasonably necessary to carry them out. Where support is enough, it is preferred, because it leaves decision-making authority with the person.
The principles that govern decisions
The 2019 Act replaced the older “best interests” approach. Anyone exercising powers under the Act must act in a way that promotes the personal and social wellbeing of the person, and must give all practicable and appropriate effect to the person’s will and preferences (section 8). Where those cannot be ascertained, the appointee acts in a way that promotes the person’s probable will and preferences, and where that too is not possible, in the way least restrictive of the person’s ability to decide and act.
The Act also requires that the person be supported to participate in decisions affecting them, be given the information they need to do so, and have their views taken into account. In practice this reframes the question from “what would be best for them” to “what do they want, and how much of it can safely be given effect”.
Who is appointed
A proposed guardian or administrator must be suitable. VCAT considers whether the person will act compatibly with the represented person’s will and preferences, whether they are willing and able to perform the role, and whether there is a conflict of interest or other reason they should not be appointed. Family members are frequently appointed. Where family are in conflict, where the financial affairs are complex, or where a conflict of interest cannot be managed, VCAT may appoint an independent administrator such as State Trustees or a private professional, or the Public Advocate as guardian.
Scope, duration and reassessment
Orders are made for defined matters and for a defined period, and they are reassessed. The Act requires VCAT to reassess an order within the period specified in the order, and in any event within the timeframes the Act sets, and a reassessment may also be sought earlier. On reassessment VCAT may continue, vary or revoke the order.
An administrator must lodge accounts as directed and keep proper records; an appointee is accountable to the Tribunal, not only to the family. Where the represented person regains capacity for the relevant matters, revocation is the appropriate course.
Concerns about an appointee
Where an appointee is not acting consistently with the person’s will and preferences, is not accounting properly, or is acting in a conflict, an application may be made to VCAT to reassess, vary or revoke the appointment and to appoint someone else. VCAT also has power to order an appointee to compensate the represented person for loss caused by a failure to comply with the Act. Concerns should be raised early, with records, rather than left until the estate has been depleted.
How this differs from an enduring power of attorney
An enduring power of attorney is made by a person with capacity, choosing their own attorney in advance. A guardianship or administration order is made by VCAT after capacity for the relevant matters has been lost, and the Tribunal chooses the appointee. Where a valid enduring appointment exists and the attorney is acting properly, an order is usually unnecessary — which is the strongest argument for making enduring documents while capacity is intact.
Medical treatment decisions are dealt with under separate legislation again. A guardian has authority for medical treatment decisions only where the order gives them that authority, and an appointed medical treatment decision maker takes priority under the statutory order of decision-makers.
Practical points
- Ask first whether an order is needed at all: informal support, a supportive appointment, or an existing enduring power may be enough.
- Seek the narrowest order that meets the need, for the specific matters in issue.
- Obtain current, decision-specific evidence of functioning rather than relying on a diagnosis.
- Record the person’s own views; the Act requires them to be given effect where possible.
- Where family are in conflict, expect the Tribunal to consider an independent appointee.
How we can help
Holt & Macdonald acts in VCAT guardianship and administration matters for clients in Ringwood and Melbourne’s eastern suburbs — preparing and responding to applications, advising family members considering an appointment, appearing at hearings and reassessments, and acting where there are concerns about how an existing appointment is being exercised. We also prepare enduring appointments so that an application to VCAT can often be avoided.
