Thinking | 5 March 2020
Victoria’s new guardianship laws: key provisions to consider
Following the introduction of the new Guardianship and Administration Act on 1 March, there are a number of key provisions that need to be considered. A number of these new provisions also apply to administrators and guardians appointed under the earlier GAA.
Partner William Moore digs deeper into some of the new provisions that have been introduced:
Focus on the rights and dignity of the represented person
When decisions are being made, the decision maker (be it the administrator or the guardian) is required to:
- provide practical and appropriate support to allow the represented person to make and participate in decisions where possible;
- follow the will and directions of the represented person; and
- act in a way that is least restrictive on the represented person’s ability to decide and act.
Appointments of guardians and administrators
When VCAT is deciding who to appoint, there is to be more focus on appointing people that have an existing relationship with the represented person. This may see a shift away from appointments of unrelated persons or professional bodies where there is an existing relationship.
The introduction of supportive guardianship and administration orders allow people to be appointed assist the represented person in making decisions. These include the information power, the communication power and the power to give effect to decisions made by the represented person (subject to some carve outs regarding certain decisions).
These provisions apply for breaches of the GAA committed by a guardian or administrator which cause loss to the represented person. The key point here is that in most cases the application must be brought within either six months of the death of the represented person, or six months of the death of the administrator or guardian that allegedly caused the loss.
Criminal offences have also been introduced for guardians, administrators and supportive equivalents where they dishonestly use a guardianship or administration order to financially advantage themselves or related parties or to cause loss to the represented person or related parties.
These penalties can be five to five years imprisonment, and 600 penalty units for an individual (currently $99,132).
Both the compensation provisions and criminal offence provisions also apply to administrator and guardian appointments made under the earlier GAA, where the act or offence took place after 1 March 2020.
All in all, there are a number of significant changes. Importantly, a number of these changes can be used to protect a represented person where an administrator or guardian breaches their duties under the GAA, which especially important given the increased incidences of Elder Abuse.
It is, however, worth remembering that putting in place Enduring Powers of Attorney and Appointments of Medical Treatment Decision Makers can avoid issues that sometimes come up with the VCAT application process, and also provides certainty by ensuring that the people intended to act in these roles do act.
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