In 2018 the Victorian government first introduced the Guardianship and Administrative Bill 2018 to replace the initial Guardianship and Administrative Act 1986. The Public Advocate has now welcomed the biggest changes to the Victorian guardianship laws through the Guardianship and Administrative Law Act 2019 which comes into effect on 1 March 2020.
Why new legislation?
The Bill being introduced allows us to bring guardianship and administration matters up to date with changing legislation and more contemporary views on disability.
What changes are to be made?
The new Act allows a presumption that a person has the capacity to make their own decisions unless evidence is provided otherwise and recognises that a person also has decision-making capacity if they can make their decisions with support.
The Act also includes a new definition of decision-making capacity consistent with the Powers of Attorney Act 2014 and Medical Treatment Planning and Decisions Act 2016, where capacity is presumed unless there is evidence to the contrary.
The primary impact of the Act is to promote the human rights and dignity of persons with a cognitive disability to act independently, by having them to have the right to make, participate in and implement their own decisions that affect their lives and to allow them to be provided with the support they need to implement their own decisions. This also allows for the protection of persons with a disability from abuse, neglect and exploitation by giving them the right to act independently and managing and coordinating programs that promote the human rights of persons with a disability.
While the Victorian Civil and Administrative Tribunal (VCAT) has retained their power in relation to making guardianship and administration orders, there have been significant change to reflect a modern understanding of decision-making, capacity and disability. The new Act also enables VCAT to play a significant and supervisory role by appointing a supportive guardian, for personal matters, or supportive administrator, for financial matters, with the consent of a represented person for those who can no longer act independently. However, VCAT must ensure that a represented person’s preferences are still respected unless doing so would otherwise cause harm to the person.
Criminal offences introduced
The new Act has also introduced a new criminal offence provision in response to recent concerns regarding the abuse of vulnerable individuals and misuse of decision-making power. This provision will only apply to guardians and administrators who dishonestly misuse their power to cause loss to or obtain from financial gain from, a represented person, which carries a maximum penalty of five years imprisonment.
