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Bill homepage (legislation.vic.gov.au)The purposes of this Act are—
to re-enact with amendments the law relating to guardianship and administration; and
to repeal the Guardianship and Administration Act 1986; and
to make consequential amendments to various other Acts.
Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
If a provision of this Act does not come into operation before 1 March 2020, it comes into operation on that day.
In this Act—
administration (missing person) order means an order made under section 105 that appoints a person as an administrator;
administration order means an order made under section 30 that appoints a person as an administrator;
administrator means the person appointed as an administrator in relation to one or more specified financial matters—
in an administration order; or
in an administration (missing person) order;
close friend of a person means another person who has a close personal relationship with the first person and a personal interest in the first person's welfare;
determination, in relation to VCAT, includes an order, direction, consent, advice and approval;
disability, in relation to a person, means neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability or dementia;
domestic partner of a person means—
a person who is in a registered relationship with the person; or
an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—
for fee or reward; or
on behalf of another person or an organisation (including a government, a government agency, a body corporate or a charitable or benevolent organisation);
financial matter, in relation to a person, means any matter relating to the person's financial or property affairs and includes any legal matter that relates to the financial or property affairs of the person;
Examples
The following are examples of financial matters—
making money available to the person for the person's personal expenditure;
(b) paying expenses for the person and any dependants of the person relating to the maintenance and accommodation of the person and any dependants, including purchasing an interest in, or making a contribution to, a property to accommodate the person or any dependants of the person or otherwise making payments in relation to such property;
paying any debts of the person, including any fees and expenses to which an administrator is legally entitled;
receiving and recovering money payable to the person;
carrying on any trade or business of the person;
performing any contracts entered into by the person;
discharging any mortgage over the person's property;
paying rates, taxes and insurance premiums or other outgoings for the person's property;
insuring the person or the person's property;
otherwise preserving or improving the person's property;
making investments for the person;
continuing investments of the person, including taking up rights to issues of new shares or options for new shares to which the person becomes entitled by the person's existing shareholding;
undertaking any real estate transaction for the person;
dealing with land for the person;
undertaking a beneficial transaction for the person involving the use of the person's property as security for an obligation, including taking out a loan on behalf of the person or giving a guarantee on behalf of the person;
withdrawing money from or depositing money into an account of the person with a financial institution.
guardian (except in section 50(2)(a)) means a person appointed in a guardianship order as a guardian in relation to one or more specified personal matters;
guardianship order means an order made under section 30 that appoints a person as a guardian;
income includes rents and profits;
legal matter in relation to a person means—
the use of legal services for the person's benefit; or
bringing or defending a legal proceeding or hearing in a court, tribunal or other body on behalf of the person, including settling a claim before or after a legal proceeding or hearing starts;
Examples
The following are examples of legal matters—
the use of legal services to obtain information about the person's legal rights;
the use of legal services to make a transaction.
medical treatment decision has the same meaning as in the Medical Treatment Planning and Decisions Act 2016;
missing person means a person determined to be a missing person under section 105(3);
nearest relative means the relative first listed in the definition of relative who is of or over 18 years of age, the elder or eldest of 2 or more relatives described in any paragraph being preferred to any other so described;
personal matter, in relation to a person, means any matter relating to the person's personal or lifestyle affairs, and includes any legal matter that relates to the person's personal or lifestyle affairs;
Examples
The following are examples of personal matters—
where and with whom the person lives;
other persons with whom the person associates;
whether the person works and, if so, the kind and place of work and employer;
whether the person undertakes education or training and if so, the kind of education or training and the place where it takes place;
daily living issues such as diet and dress;
medical treatment decisions, excluding decisions about matters provided for in Part 6.
police officer has the same meaning as in the Victoria Police Act 2013;
primary carer has the same meaning as in the Medical Treatment Planning and Decisions Act 2016;
principal registrar means the principal registrar of VCAT;
proposed represented person means a person in relation to whom an application is made under section 22 or 23;
proposed supported person means a person in relation to whom VCAT considers making a supportive guardianship order or supportive administration order under section 87;
Public Advocate means the person appointed as the Public Advocate, being the office continued in existence by section 10;
Public Advocate employee means a person referred to in section 18 and employed to enable the Public Advocate to exercise the Public Advocate's powers, carry out the Public Advocate's functions or perform the Public Advocate's duties;
regulations means regulations made under this Act;
relative means any of the following—
a spouse or domestic partner;
a child;
a parent;
a step-parent;
a sibling;
a step-sibling;
a grandparent;
a grandchild;
an uncle or aunt;
a nephew or niece;
represented person means—
a person in relation to whom a guardianship order has effect; or
a person in relation to whom an administration order has effect;
spouse of a person means a person to whom the person is married;
State Trustees has the same meaning as in the State Trustees (State Owned Company) Act 1994;
supported decision means—
in the case of a supportive guardianship order, a decision about a personal matter that is specified in the order; and
in the case of a supportive administration order, a decision about a financial matter that is specified in the order;
supported person means a person in relation to whom a supportive guardianship order or a supportive administration order has effect;
supportive administration order means an order made under section 87 that appoints a person as supportive administrator;
supportive administrator means a person appointed in a supportive administration order as supportive administrator in relation to one or more specified financial matters;
supportive guardian means a person appointed in a supportive guardianship order as supportive guardian in relation to one or more specified personal matters;
supportive guardianship order means an order made under section 87 that appoints a person as supportive guardian;
VCAT Act means the Victorian Civil and Administrative Tribunal Act 1998.
For the purposes of the definition of domestic partner in subsection (1)—
registered relationship has the same meaning as in the Relationships Act 2008; and
in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and
a person is not a domestic partner of another person only because they are co-tenants.
A reference in the definition of relative in subsection (1) to a person's sibling includes a reference to a person who was adopted by one or both of the person's parents.
For the purposes of this Act, and without limiting the ways in which this may occur, the personal and social wellbeing of a person is promoted by—
recognising the inherent dignity of the person; and
respecting the person's individuality; and
having regard to the person's existing supportive relationships, religion, values and cultural and linguistic environment; and
respecting the confidentiality of confidential information relating to the person; and
recognising the importance to the person of any companion animal the person has and having regard to the benefits that may be obtained from the person having any companion animal.
For the purposes of this Act, a person has capacity to make a decision in relation to a matter (decision-making capacity) if the person is able—
to understand the information relevant to the decision and the effect of the decision; and
to retain that information to the extent necessary to make the decision; and
to use or weigh that information as part of the process of making the decision; and
to communicate the decision and the person's views and needs as to the decision in some way, including by speech, gesture or other means.
For the purposes of subsection (1), a person is presumed to have decision-making capacity unless there is evidence to the contrary.
For the purposes of subsection (1)(a), a person is taken to understand the information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person's circumstances, whether by using modified language, visual aids or any other means.
In determining whether a person has decision‑making capacity, regard must be had to the following—
a person may have decision-making capacity in relation to some matters and not others;
if a person does not have decision-making capacity in relation to a matter, it may be temporary;
it should not be assumed that a person does not have decision-making capacity in relation to a matter on the basis of the person's appearance;
it should not be assumed that a person does not have decision-making capacity in relation to a matter merely because the person makes a decision that, in the opinion of others, is unwise;
a person has decision-making capacity in relation to a matter if it is possible for the person to make the decision with practicable and appropriate support.
Examples
The following are examples of practicable and appropriate support—
using information or formats tailored to the particular needs of a person;
communicating or assisting a person to communicate the person's decision;
giving a person additional time and discussing the matter with the person;
using technology that alleviates the effects of a person's disability.
For the purposes of this Act, a person who is assessing whether a person has decision-making capacity in relation to a matter must take reasonable steps to conduct the assessment at a time at which, and in an environment in which, the person's decision-making capacity can be assessed most accurately.
The primary object of this Act is to protect and promote the human rights and dignity of persons with a disability by—
having regard to the Convention on the Rights of Persons with Disabilities, recognising the need to support persons with a disability to make, participate in and implement decisions that affect their lives; and
if a guardianship order or administration order is made for such persons—
enabling VCAT to set safeguards and appropriate limitations on the powers of guardians and administrators when making such orders; and
requiring VCAT to review regularly such orders; and
providing guidance for guardians and administrators when making decisions for represented persons, as the case requires.
In this section, the Convention on the Rights of Persons with Disabilities means the United Nations Convention on the Rights of Persons with Disabilities, done at New York on 13 December 2006, as in force for Australia.
A person exercising a power, carrying out a function or performing a duty under this Act must have regard to the following principles—
a person with a disability who requires support to make decisions should be provided with practicable and appropriate support to enable the person, as far as practicable in the circumstances—
to make and participate in decisions affecting the person; and
to express the person's will and preferences; and
to develop the person's decision-making capacity;
the will and preferences of a person with a disability should direct, as far as practicable, decisions made for that person;
powers, functions and duties under this Act should be exercised, carried out and performed in a way which is the least restrictive of the ability of a person with a disability to decide and act as is possible in the circumstances.
In subsection (1), the reference to a person exercising a power, carrying out a function or performing a duty under this Act includes VCAT.
A person making a decision for a represented person must have regard to the following principles—
the person should give all practicable and appropriate effect to the represented person's will and preferences, if known;
if the person is not able to determine the represented person's will and preferences, the person should give effect as far as practicable in the circumstances to what the person believes the represented person's will and preferences are likely to be, based on all the information available, including information obtained by consulting the represented person's relatives, close friends and carers;
if the person is not able to determine the represented person's likely will and preferences, the person should act in a manner which promotes the represented person's personal and social wellbeing;
if the represented person has a companion animal, the person should act in a manner that recognises the importance of the companion animal to the represented person and any benefits the represented person obtains from the companion animal;
the represented person's will and preferences should only be overridden if it is necessary to do so to prevent serious harm to the represented person.
In this section, represented person—
has the meaning given in section 3(1); and
includes a missing person for whom an administration (missing person) order has effect.
Part 2—The Public Advocate
The office of Public Advocate established under section 14 of the Guardianship and Administration Act 1986 as in force immediately before the commencement of this Act continues in existence.
The Governor in Council, on the recommendation of the Minister, may appoint a person as Public Advocate.
The Public Advocate—
holds office for 7 years; and
is eligible for reappointment.
The Public Advocate is entitled to be paid the remuneration and allowances as are fixed by the Governor in Council from time to time.
The Public Advocate is not, in relation to the office of Public Advocate, subject to the Public Administration Act 2004 (other than Part 5 of that Act).
The Public Advocate ceases to hold office if the Public Advocate—
resigns by writing delivered to the Governor in Council; or
becomes insolvent under administration; or
is convicted of an indictable offence or of an offence which, if committed in Victoria, would be an indictable offence; or
nominates for election for, or is elected to—
the Parliament of Victoria; or
the Parliament of the Commonwealth or of another State or a Territory of the Commonwealth; or
S. 12(1)(d)(iii) amended by No. 9/2020 s. 390(Sch. 1 item 46).
a Council, within the meaning of the Local Government Act 2020; or
is removed from office under subsection (4).
The Governor in Council, on the recommendation of the Minister, may suspend the Public Advocate from office on any of the following grounds—
the Public Advocate has engaged in paid employment outside the duties of the office without the approval of the Governor in Council;
the Public Advocate is unable to perform, or has neglected, the duties of the office of Public Advocate;
the Public Advocate has engaged in misconduct;
the Public Advocate has failed to disclose a material conflict of interest.
The Minister must cause to be laid before each House of the Parliament a full statement of the grounds of suspension of the Public Advocate within 7 sitting days after the suspension.
The Governor in Council must remove the Public Advocate from office if each House of the Parliament, within 7 sitting days after the day when the statement of the grounds of suspension is laid before it, declares by resolution that the Public Advocate ought to be removed from office.
If both Houses of the Parliament do not within the period referred to in subsection (4) declare by resolution that the Public Advocate ought to be removed from office, the Governor in Council must remove the suspension and restore the Public Advocate to office.
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