Proposed changes to the Guardianship and Administration Act

Wills and Estates: 23 March 2019

The government has introduced a new Bill, the Guardianship and Administration Bill 2018 into the lower house of parliament. The Bill is intended to replace the Guardianship and Administration Act 1986 with new laws that will provide a contemporary legislative framework for the appointment of guardians and administrators by the Victorian Civil and Administrative Tribunal (the Tribunal).

The Tribunal plays an important supervisory role in protecting and promoting the rights of people with impaired decision-making capacity. The Tribunal can appoint a guardian or administrator for an adult with a disability, if the adulty does not have decision-making capacity. Key features of the Bill are:

• The presumption of capacity and the recognition that a person has decision-making capacity if they can make decisions with support. 
• The requirement to ensure that a person's will and preferences are followed where possible and appropriate.
• The ability for the Tribunal to tailor orders to fit individual circumstances by setting limits on guardianship and administration appointments.
• The introduction of the roles of supportive guardians and supportive administrators, as less restrictive alternatives for proposed represented persons who can make decisions with support.
• Improvements to the Tribunal's processes when dealing with guardianship and administration applications.
• Improvements to the provisions of the Act relating to the powers and duties of administrators.
• The introduction of new offences (including potential imprisonment) for guardians or administrators who dishonestly use their appointment to cause loss to, or obtain financial gain from, a represented person.
• Clarification of the circumstances in which the Tribunal can consent to special medical procedures.

The Succession and Elder Law team have considerable experience in advising on enduring appointments and in representing clients in the Tribunal.