This articles was prepared by the commission and appeared in the August issue of the Law Institute Journal.
The VLRC has been given a new reference to review guardianship laws.
The laws and practices that protect Victorians with impaired decision-making capacity will be reviewed by the Victorian Law Reform Commission to ensure they reflect modern standards and a changing population.
Chair of the commission, Professor Neil Rees, welcomed the reference from the Attorney-General and said it was the first time a comprehensive review of Victoria’s guardianship and administration laws had been undertaken in over twenty years.
Professor Rees said there are a number of Victorians in a variety of circumstances who need important decisions made on their behalf and this group is expected to grow with an ageing population.
He said it is important to recognise the diversity of those covered by this review which includes people with a range of disabilities. The commission will be consulting widely to ensure the different needs of these people are met.”
The commission is required under the terms of reference to be guided by principles of respect for dignity and individual autonomy and to advance, promote and protect the rights of people with impaired decision making capacity.
Professor Rees said it is essential that this part of the community has adequate protection in line with contemporary views on guardianship and administration when a decision concerning personal and financial matters is made on their behalf.
Both the current law and any changes proposed by the commission must be consistent with Australia’s human rights obligations and the Victorian Charter of Human Rights.
In particular the commission is to have regard to:
- the role of guardians and administrators
- the need to balance the protection of a person with impaired capacity by a guardian or administrator with the person’s exercise and enjoyment of their human rights
- the alignment of guardianship and administration law with other relevant laws
- the role of informal decision-making for an adult with impaired capacity
- the functions, powers and duties of the Public Advocate
- the role and powers of the Victorian Civil and Administrative Tribunal and the appointment of guardians and administrators
- consideration of existing laws that deal with medical research, non-medical research, medical and other treatment of a represented person.
The terms of reference specifically state that issues associated with end of life decisions beyond those currently dealt with by the Medical Treatment Act 1988 are not within the scope of this review.
The commission will begin initial extensive consultations ahead of publishing a Consultation Paper next year. A Final Report is due to the Attorney-General by June 30 2011.
For the complete terms of reference visit: www.lawreform.vic.gov.au
What can be put in place prior to a person losing their decision-making capacity?
Powers of attorney can be appointed by a person while they have full decision making capacity. It allows another person to make decisions on your behalf for a short period of time (general powers) or in the event that you can no longer make your own decisions (enduring powers). Powers of attorney are covered by the project and are also being reviewed by the Victorian Parliamentary Law Reform Committee.
Who appoints a guardian or administrator once a person’s decision- making is impaired?
An application is made to the Victorian Civil and Administrative Tribunal (VCAT). The tribunal must be satisfied that the person requiring representation:
- has a disability
- cannot make reasonable personal and lifestyle decisions because of that disability
- needs to make a decision and there is no less restrictive way of making the decision other than to appoint a guardian or administrator
- needs someone to act in their best interests.
What kinds of people are appointed as a guardian or administrator?
VCAT prefers to appoint a guardian who is familiar with the represented person's values and beliefs. VCAT must be assured that the guardian will act in the represented person's best interests. Where there is no suitable family member or friend who can act as guardian, VCAT can appoint the Public Advocate as an independent statutory guardian. When there is no family member, friend or legal professional, who is suitable to act as administrator, VCAT can appoint State Trustees as an independent administrator.
What kinds of decisions are made by a guardian?
A guardian is appointed to make personal and lifestyle decisions for an adult who cannot make their own decisions. For example, regarding accommodation, healthcare or access to services.
What kinds of decisions are made by an administrator?
An administrator is appointed to make financial and legal decisions for an adult who cannot make their own decisions. They advise whether the represented person can afford their proposed personal and lifestyle choices.
What kinds of people require others to make decisions?
In 2007-08 there were a total of 1383 guardianship orders made by VCAT with 314 orders made for private guardians. The disability profile of those under a guardianship order included people with dementia, acquired brain injury, psychiatric disability, intellectual disability and those with a physical disability.