The New Guardianship and Administration Act 2019

On 1 March 2020 the new Guardianship and Administration Act ("the Act"[1]) commenced operation. The Act represents the first major change to this area of legislation since 1986.  The Act governs all matters concerning applications to the Victorian Civil and Administrative Tribunal (VCAT) to appoint a Public Guardian or Administrator to manage the personal affairs (including where a person lives and who may visit the person) or financial affairs of a person with a disability.  The emphasis of the new legislation has changed due to the United Nations Convention on the Rights of Persons with Disabilities ("the Convention"[1]) which was ratified by Australia on 17 July 2008.  The Act now seeks to fully recognise "the dignity, equality and autonomy of people with a disability"[1] whose fundamental rights have been enshrined in the Convention.[1]

It sets out principles which promote the personal and social well-being of a person which include:

 
• Recognising the inherent dignity of the person;
 
• Respecting the person's individuality;
 
• Having regard to the person's existing relationships, religion, values and cultural and linguistic environment; and
 
• Recognising the importance and benefits to the person of any companion animal the person has - the Act makes no fewer than ten (10) references to service, companion or animals as pets.

The Act also provides that the person with a disability will:

 
1. be supported to make, participate and implement their own decisions;
 
2. have their will and preferences direct, as far as practicable, decisions made for that person;
 
3. have the powers, functions and duties under the Act exercised and performed in a way that is as least restrictive of the ability of the person to decide and act as is possible in the circumstances (Section 8).

Finally, there is a presumption that a person has the capacity to manage his or her own financial and personal affairs (unless it is proved by medical evidence to the contrary) and the Act provides that a person has capacity if they have the ability to:

 
1. understand the information relevant to the decision and the effect of a decision;
 
2. retain that information to the extent necessary to make the decision; and
 
3. use or weigh that information as part of the process of making the decision; and
 
4. communicate the decision" in some way, including by speech, gesture or other means.

Finally, the Act now requires the Proposed Represented Person to be present at any application to appoint a Guardian or Administrator and if they are not present evidence must be presented to VCAT as to the reason for their non-attendance.  If you require any further information on the operation of the new Act or in relation to Guardianship and Administration generally, please contact our Eldercare Legal Team on 9870 9870.  

‍[1] Second Reading Speech made in State Parliament on 19 December 2018