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Estate Group update: Key changes under new guardianship law

Aug 29, 2019

On 4 June 2019, the Guardianship and Administration Bill 2018 (GAB) received royal assent and will come into operation on 1 March 2020 unless an earlier date is proclaimed.

The GAB represents a significant change in the area of guardianship and administration and repeals the current Guardianship and Administration Act which has been operating for over 30 years.

There is an overarching shift in focus in the new legislation from the protection of people with disabilities towards an emphasis on supporting people with disabilities to participate in decision making that affects them and upholding their autonomy and independence.

Key changes

Highlighted below are four key changes under the GAB that professional advisors and those in supportive or substitute decision making roles need to be aware of.

1A new primary objective of the Act, which is to ‘protect and promote the human rights and dignity of persons with a disability’, having regard to the United Nations Convention on the Rights of Persons with Disabilities. This replaces the current objective notion of considering what is in the ‘best interests’ of a person with a disability.
 2A new definition of ‘decision making capacity’ and the requirement to assess decision making capacity as a necessary criteria for the appointment of an administrator and guardian. This replaces the current concept of ‘reasonable judgments’ and is in line with the provisions of the Power of Attorney Act 2014. The GAB also provides guidance as to how decision making capacity should be assessed to protect a person’s right to make their own decisions where possible.
 3 Introducing supportive guardianship and administration orders, which enables VCAT to appoint a supportive guardian or administrator to assist a person to make personal and financial decisions. This includes such things as accessing or obtaining information, communicating information about the person, and taking actions to give effect to the person’s decisions. The role of the supportive guardian or attorney is not to make decisions for a person but to provide support that will enable the person to make the decision for themselves. 
 4Additional limitations and safeguards around the appointment of guardians and administrators, and providing VCAT with powers to make compensation orders for loss caused by an administrator or guardian contravening their duties under the Act. The GAB also introduces criminal offences for dishonestly using guardianship and administration orders to obtain financial advantage. This is intended to impose a higher level of accountability on substitute decision makers and address community concerns about the abuse of vulnerable people by those in a position of trust.

In conclusion

The changing landscape of the guardianship and administration legislation will impact on many different sectors. It is important that professional advisors and those in supportive or substitute decision making roles understand the effect of these changes and their responsibility to support people with a disability to have a voice and be heard.

More information

For more information on the GAB, or for advice on guardianship and administration, please contact our Estate Group on (03) 8600 8885.

Author

This Estate Group update was authored by Paul Beasant, Special Counsel.

Note: This update is a guide only and is not intended to constitute legal advice.