New laws introduced into Parliament today will clarify and simplify the rules relating to guardianship and administration.
“The new legislation will make it easier for individuals and their families to provide for their current and future decision making needs through guardianship and administration arrangements, building on the reforms already before the Parliament in the Powers of Attorney Bill 2014,” Attorney-General Robert Clark said.
A number of the reforms in the Bill arise from recommendations made by the Victorian Law Reform Commission in its Final Report on Guardianship.
Currently the law is unclear about when a person has capacity to make their own decisions. The Bill provides a definition of decision making capacity, and clarifies that a person is presumed to have capacity unless there is evidence to the contrary.
Current laws also provide only a limited range of guardianship orders – plenary (unlimited) guardianship orders, limited guardianship orders and administration orders. The Bill provides for a wider range of guardianship orders to give VCAT greater flexibility to make an order that suits the particular circumstances of the individual.
For example, the Bill allows VCAT to appoint a single guardian in relation to personal and financial matters, rather than a guardian for personal matters and an administrator for financial matters.
“This removes the need to resolve whether a particular matter is about personal care or financial issues, and whether it is to be attended to by a guardian or an administrator,” Mr Clark said.
The changes will also allow VCAT to appoint a supportive guardian to assist a person to make their own decisions.
“The introduction of a supportive guardian role will allow greater autonomy for many people with disabilities by enabling them to take care of their own needs once they have practicable and appropriate support,” Mr Clark said.
The Bill also introduces a new simplified process for parents of people with impaired decision-making capacity to be appointed as their child’s guardian. Under the process, parents who have been the main carers of a child with a serious and ongoing decision-making incapacity will be able to apply to VCAT to be appointed as a guardian ‘on the papers’, without the need for a formal hearing after their child turns 18 years of age.
On the basis of the application and submissions from any interested parties, VCAT will grant the application unless there is a significant risk that the order would be harmful to the personal or social wellbeing of the person or VCAT considers the proposed represented person has views on the appointment that should be considered at a hearing.
“Parents are finding it increasingly difficult to rely on informal guardianship arrangements to assist their child, yet the formal process for becoming a guardian is often not suited to their or their child’s needs,” Mr Clark said.
“The streamlined application process will assist parents of people with serious and ongoing decision making impairments to continue to care for their child after they turn 18 with the benefit of formal guardianship rights and duties.”