‘I Want to Tell my Story’: The Guardianship and Administration Confidentiality Law

What is guardianship and administration?

15     The primary object of the G&A Act 2019 is ‘to protect and promote the human rights and dignity of persons with a disability’.^[11] The Act recognises the need to support persons with disability to make, participate in and implement decisions that affect their lives.^[12]

16     The G&A Act 2019 provides the legal framework for the appointment of a guardian or administrator and statutory recognition for supported decision-making in Victoria.

Substitute and supported decision-making

17     Some adults with disability may be unable to make decisions about their personal and financial affairs, even with support. If VCAT is satisfied that a person does not have ‘decision-making capacity’^[13] because of their disability, it can make an order that gives a guardian and/or an administrator legal authority to make decisions on that person’s behalf.^[14] VCAT manages guardianship and administration matters through its Guardianship List in the Human Rights Division.

18     When a guardian or administrator makes decisions for somebody, it is sometimes called ‘substitute decision-making’. The person for whom a guardianship or administration order is made is called the ‘represented person’ (or the ‘protected person’ in some interstate legislation).^[15] Guardianship and administration orders are only available for people aged 18 or over.

19     A guardian has legal authority to make decisions or support decision-making for a represented person about their personal and lifestyle matters that are specified in the order. For example, where the represented person lives, which services they use and what medical treatment they have.

20     An administrator has legal authority to make decisions or support decision-making about financial and property matters. For example, paying bills or buying and selling real estate.

21     According to VCAT, in December 2024 there were 18,266 people on guardianship and/or administration orders in Victoria.^[16]

22     Supported decision-making is decision-making with the help of other people. Many adults with disability do not need a guardian or administrator because they have decision-making ability. But some adults with disability may need some support from another person to make decisions.

23     Supported decision-making arrangements are often made informally. But VCAT can formally appoint a ‘supportive guardian or administrator’ to help an adult make decisions about their personal and financial matters’.^[17] Any adult can apply to VCAT for a supportive guardianship or supportive administration order as long as the represented person consents and someone is willing and able to take on the role. VCAT must determine that the nominated supporter is suitable.^[18] VCAT does not appoint the Victorian Public Advocate or State Trustees as supportive decision makers.

24     Victoria is the only Australian jurisdiction that provides for the formal appointment of supportive decision-makers in line with the Convention on the Rights of Persons with Disabilities (CRPD).^[19]

25     In Victoria, in December 2024, there were around 118 represented persons with a supportive administration appointment and 62 with a supportive guardianship appointment.^[20]

Who are guardians and administrators?

26     Guardians and administrators can be public or private. In the first instance, VCAT will try to appoint a friend or family member to act as a private guardian and a friend, family member, solicitor, accountant or organisation to act as a private administrator. The G&A Act 2019 stipulates that the Public Advocate (through the Office of the Public Advocate (OPA))^[21] may be appointed if there is no other suitable option available.^[22] In practice, State Trustees acts as administrator when there is no one else suitable.^[23]

27     In 2022-23, VCAT made 1,555 new guardianship orders and 2,340 new administration orders. Of the new guardianship orders, VCAT appointed the Victorian Public Advocate in 495 cases and a private guardian in 1,060. Of the administration orders it made, VCAT appointed State Trustees in 514 cases and a private administrator in 1,826 cases.^[24]

Who does the guardianship and administration system assist?

28     The guardianship and administration framework assists a broad range of people with disability. According to the Victorian Public Advocate’s 2022-23 Annual Report, it represents clients with dementia, an intellectual disability, a mental health issue,^[25] an acquired brain injury and/or a physical disability.^[26]

29     The Victorian Public Advocate consistently sees between 35 and 40 per cent of orders carried over at any given point of time each year.^[27] The Victorian Public Advocate’s 2022-23 Annual Report noted that it was working with more young clients, more clients with a mental health issue and fewer clients with dementia than in the past.^[28] The number of First Peoples on guardianship orders increased from 22 in 2016-17 to 49 in 2022-23.^[29] First Peoples are over-represented as a proportion of those on guardianship orders.^[30]

30     State Trustees represented 9,013 clients as at 30 June 2024.^[31] In 2023-24, people with mental health issues constituted the most significant client group represented by State Trustees. This group accounted for approximately 35 per cent of clients, followed by people with intellectual impairment (approximately 33 per cent), dementia (approximately 17 per cent) or an acquired brain injury (approximately 15 per cent).^[32] According to State Trustees, First Peoples clients tend to be younger than their other clients. There are currently 202 First Peoples on administration orders, most of whom are aged under 44.^[33] In contrast, the broader client group is predominantly aged 45 or over.^[34]

31     First Peoples in the guardianship system ‘deal with multiple factors of disadvantage’.^[35] We were told that young First Peoples clients tend to be on guardianship orders for much longer than older people,^[36] which means they are likely to be disproportionately impacted by the confidentiality law.

11. Guardianship and Administration Act 2019 (Vic) s 7.

    ↑

12. Ibid s 7.

    ↑

13. Ibid s 5(1) provides that a person has capacity to make a decision in relation to a matter if the person is able ‘(a) to understand the information relevant to the decision and the effect of the decision; and (b) to retain that information to the extent necessary to make the decision; and (c) to use or weigh that information as part of the process of making the decision; and (d) 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.’ Decision-making capacity is presumed unless there is evidence to the contrary. The Act recognises that a person may have decision-making capacity for some matters and not others and that a loss of decision-making capacity may be temporary. Further, it shouldn’t be assumed that just because a person makes an unwise decision, that they lack decision-making capacity. In addition, 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.

    ↑

14. Guardianship and Administration Act 2019 (Vic) ss 30(1)-(2). A person who has decision-making capacity can appoint someone to make decisions for them later on in life, in the event they lose capacity to make those decisions. This is called an ‘enduring power of attorney’. Guardians and administrators will only be appointed if a person does not already have an enduring power of attorney set up or where the enduring attorney has not been given the power to make all the decisions that need to be made. See Powers of Attorney Act 2014 (Vic) pt 3, s 22.

    ↑

15. Guardianship and Administration Act 2019 (Vic) s 3.

    ↑

16. Information provided by VCAT to the VLRC dated 6 December 2024.

    ↑

17. Guardianship and Administration Act 2019 (Vic) pt 4.

    ↑

18. Ibid s 87.

    ↑

19. Article 12(2) of the CRPD recognises that people with disability have legal capacity on an equal basis with others. Article 12(3) stipulates that, ‘states shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’. Article 12(4) provides that states must put safeguards in place to protect against abuse of these support mechanisms. Convention on the Rights of Persons with Disabilities (3 May 2008, Adopted 12 December 2006 No UN Doc A/RES/61/106) <https://www.ohchr.org/sites/default/files/Ch_IV_15.pdf>.

    ↑

20. Information provided by VCAT to the VLRC dated 6 December 2024.

    ↑

21. The Public Advocate is an independent statutory officer who promotes and protects the rights of people with disability. The Public Advocate is supported by around 120 staff who work at Office of the Public Advocate (OPA) as part of the Victorian Public Service. The Public Advocate’s powers and duties are set out in sections 15 and 16 of the Guardianship and Administration Act 2019 (Vic). They include being appointed a guardian of last resort by VCAT; investigating any complaint or allegation that a person is under inappropriate guardianship or is being exploited or abused or in need of guardianship; and reporting to VCAT about the need for guardianship or administration. Guardianship and Administration Act 2019 (Vic) ss 15-16; Office of the Public Advocate, 2024 Annual Report (Report, 2024) <https://www.publicadvocate.vic.gov.au/opa-s-work/our-organisation/annual-reports/opa-annual-reports/755-opa-annual-report-2023-2024>.

    ↑

22. Guardianship and Administration Act 2019 (Vic) s 33(1).

    ↑

23. State Trustees is Victoria’s public trustee. It manages the financial affairs of people who cannot do so for themselves, administers trusts, prepares wills and powers of attorney and acts as an executor for the deceased. Section 21 of the State Trustees (State Owned Company) Act 1994 (Vic) provides that the Treasurer has an obligation to ensure that members of the public, including children, have access to services relating to the management and administration of their estates and property, including trustee and administration services. In 2023-24, State Trustees managed more than 11,000 personal financial administration clients with assets worth $2.9 billion. Of these clients, approximately 9,000 were represented persons. State Trustees, State Trustees Annual Report 2023-24 (Report, 2024) 10, 20. <https://www.statetrustees.com.au/wp-content/uploads/annual-reports/2023_24-State-Trustees-Annual-Report_.pdf>.

    ↑

24. Australian Adult Guardianship and Administration Council, Australian Adult Guardianship Orders 2022-2023 (Report, Office of the Public Advocate (Qld), 2023) 1 <https://www.agac.org.au/assets/documents/Adult-Guardianship-Orders/AGAC-Guardianship-orders-Report-2022-2023.pdf>.

    ↑

25. The NDIS uses the term ‘psychosocial disability’, which it defines as the ‘reduced capacity to do daily life activities and tasks due to your mental health’. NDIS, ‘Do You Meet the Disability Requirements?’, National Disability Insurance Agency (Web Page, 3 October 2024) <https://ourguidelines.ndis.gov.au/home/becoming-participant/applying-ndis/do-you-meet-disability-requirements#caused-by-impairment>; Article 1 of the CRPD refers to long-term mental impairments. Convention on the Rights of Persons with Disabilities (3 May 2008, Adopted 12 December 2006 No UN Doc A/RES/61/106) art 1 <https://www.ohchr.org/sites/default/files/Ch_IV_15.pdf>.

    ↑

26. These are the categories used by the Office of the Public Advocate (Vic) in its Annual Reports.

    ↑

27. Information provided by the Victorian Public Advocate to the VLRC dated 18 December 2024.

    ↑

28. Office of the Public Advocate (Vic), 2023 Annual Report (Report, 2023) 35 <https://www.publicadvocate.vic.gov.au/opa-s-work/our-organisation/annual-reports/opa-annual-reports/648-opa-annual-report-2022-2023>. Note, the Public Advocate’s latest 2023-24 Annual Report did not contain a demographic breakdown of its client base. For information about who orders are made for please see the 2022-23 Annual Report.

    ↑

29. Office of the Public Advocate (Vic), 2024 Annual Report (Report, 2024) 34 <https://www.publicadvocate.vic.gov.au/opa-s-work/our-organisation/annual-reports/opa-annual-reports/755-opa-annual-report-2023-2024>.

    ↑

30. First Peoples comprise around 1.0% of the Victorian population (66,000 people as at the 2021 Census) but make up 2.4% of the guardianship population (49 of 2,079 as at 2023). Australian Bureau of Statistics, Victoria: Aboriginal and Torres Strait Islander Population Summary (Web Page, 1 July 2022) <https://www.abs.gov.au/articles/victoria-aboriginal-and-torres-strait-islander-population-summary>; Office of the Public Advocate, 2023 Annual Report (Report, 2023) 34 <https://www.publicadvocate.vic.gov.au/opa-s-work/our-organisation/annual-reports/opa-annual-reports/648-opa-annual-report-2022-2023>.

    ↑

31. Information provided by State Trustees to the VLRC dated 16 December 2024.

    ↑

32. Ibid.

    ↑

33. State Trustees suggests that 29 per cent of First Peoples clients under administration are aged 18-29 years, 28 per cent are aged 30-44 years, 19 per cent are aged 45-59 years, 18 per cent are aged 60-74 years and 5 per cent are aged 75 years or older. Information provided by State Trustees to the VLRC dated 16 December 2024.

    ↑

34. State Trustees suggests that 7 per cent of all clients under administration are aged 18-29 years, 18 per cent are aged 30-44 years, 29 per cent are aged 45-59 years, 28 per cent are aged 60-74 years and 18 per cent are aged 75 years or older. Information provided by State Trustees to the VLRC dated 16 December 2024.

    ↑

35. Office of the Public Advocate (Vic), 2023 Annual Report (Report, 2023) 34 <https://www.publicadvocate.vic.gov.au/opa-s-work/our-organisation/annual-reports/opa-annual-reports/648-opa-annual-report-2022-2023>.

    ↑

36. Consultation 1 (Public Advocate (Vic)). At the time of our consultation the Victorian Public Advocate was Dr Colleen Pearce.

    ↑