Upcoming changes to Guardianship and Administrative Laws
- Published: April 25, 2019
- Author: Alex Stapleton
In 2018 the Victorian government introduced the Guardianship and Administrative Bill 2018 (the Bill) to replace the Guardianship and Administrative Act 1986 (the Act). The Bill is expected to be passed in its current form in due course and come into effect on 1 March 2020.
The introduction of the Bill has proposed the biggest changes to the Victorian guardianship and administrative laws in over 30 years. These changes reflect a more realistic view and understanding of decision-making capacity and fall into line with current human expectations and rights. In particular, an individual will be defined and acknowledged as having capacity if they can make decisions with support or unless evidence is provided otherwise.
The Bill has introduced the following key changes:
- The presumption that an individual has the capacity to make their own decisions unless evidence is provided otherwise;
- A requirement to ensure that a represented person’s interests and preferences are followed where available and appropriate; and
- An individual will be defined and acknowledged as having capacity if they can make decisions with support, known as ‘supported decision-making’.
The Victorian Civil and Administrative Tribunal (VCAT) will play a significant and supervisory role in implementing these changes. In particular, VCAT has been given the ability to define limits on guardianship and administration appointments, so that guardianship orders are made to fit individual needs, interests and circumstances.
VCAT will have the ability to appoint a supportive guardian, with the consent of a represented person and where such appointment will promote the personal and social wellbeing of a represented person. The role of a supportive guardian will not be to make decisions on behalf of a represented person but rather assist a represented person to make their own personal and financial decisions. It is important to note that a supportive guardian will not be entitled to receive any remuneration for acting in such a role.
The Bill has also introduced new offence provisions in response to the Victorian Law Reform Commission’s recent concerns around the abuse of vulnerable individuals and the misuse of decision-making powers. These new offence provisions will apply to guardians, administrators and/or supportive guardians who dishonestly use their appointment to cause loss to, or obtain financial gain from, a represented person. These provisions comprise a maximum penalty of five years imprisonment.
The Bill has implemented key recommendations from the Victorian Law Reform Commission and successfully complements the recent reforms in the Powers of Attorney Act 2014 and the Medical Treatment Planning and Decisions Act 2016.
While these changes are not expected to come into effect until 1 March 2020, there are current options available by way of an enduring power of attorney or appointment of guardianship which allow appointed persons to make personal and financial decisions on behalf of a represented person.
If you would like to discuss the current options together with these upcoming changes, please do not hesitate to contact Greg Thomas or Alex Loechel of our office.
The information contained herein is of a general nature only and is not intended to be relied upon nor is it a substitute for appropriate professional advice. Whilst all care has been taken in the preparation of the material, it is not guaranteed to be accurate. Individual circumstances are different and as such, require specific examination. Asparq cannot accept liability for any loss or damage of any kind arising out of the use of or reliance upon all or any part of this material. Additional information may be made available upon request.