Guardianship and Administration Bill 2018
This is a Bill, not an Act. For current law, see the Acts databases.
Guardianship and Administration Bill 2018
Guardianship and Administration Act 2019
No. of 2019
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 2
3 Definitions 2
4 Meaning of promote the personal and social wellbeing of a
person 9
5 Meaning of decision-making capacity 10
6 Assessing decision-making capacity 11
7 Primary object 11
8 General principles 12
9 Decision-making principles 13
Part 2--The Public Advocate 15
10 Public Advocate 15
11 Terms and conditions of appointment 15
12 Resignation and vacancy 15
13 Acting Public Advocate 17
14 Oath or affirmation 18
15 Functions of the Public Advocate 18
16 Powers and duties of the Public Advocate 19
17 Powers of inspection 23
18 Public Advocate employees 25
19 Delegation 25
20 Confidentiality 25
21 Annual report 27
Part 3--Guardianship orders and administration orders 28
Division 1--Applications for guardianship orders and
administration orders 28
22 Application for guardianship orders 28
23 Application for administration orders 28
24 Matters to be included in application to VCAT 29
25 Who are the parties to a proceeding on an application? 30
26 Who is entitled to notice of an application, the hearing and any
order made in the proceeding? 30
27 Contents of notice of application 31
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Clause Page
28 Date for hearing of application for guardianship order or
administration order 32
29 Participation of proposed represented person at hearing 32
Division 2--Making guardianship orders and administration
orders and eligibility of persons appointed 33
30 VCAT may make a guardianship order or administration order 33
31 Factors to consider in determining need for guardian or
administrator 34
32 Persons eligible as guardians or administrators 35
33 Other matters pertaining to appointments 38
34 Matters to be specified in guardianship orders and
administration orders 38
35 Statement of wishes for future appointment may be lodged 39
36 Urgent guardianship orders and urgent administration orders 40
37 Hearing after making of urgent guardianship order or urgent
administration order 40
Division 3--Powers of guardians 41
38 Powers of guardians 41
39 Matters for which power cannot be given under a guardianship
order 41
40 Power for guardian to undertake legal proceedings 42
Division 4--Duties of guardians 43
41 Exercise of power by guardian 43
42 Guardian to report death of represented person 44
Division 5--Other matters pertaining to applications for
guardianship orders and to guardianship orders 44
43 Special order in relation to proposed represented person
unlawfully detained or at risk of harm 44
44 Guardian may seek advice from VCAT 46
45 Order for represented person to comply with guardian's
decisions 46
Division 6--Powers of administrators 47
46 Powers of administrators 47
47 Power to make gifts 48
48 Powers of investment 49
49 Power to open will deposited with administrator 50
50 Power to exercise certain powers vested in represented person 50
51 Power for administrator to undertake legal proceedings 51
52 Other powers that may be specified in administration order 52
53 Matters for which power cannot be given under an
administration order 54
54 Powers of administrator cease on death of represented person 55
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Clause Page
Division 7--Duties of administrators 55
55 Exercise of power by administrator 55
56 Property of represented person 56
57 Conflict transactions 56
58 Permitted conflict transactions 57
59 Keeping records 58
60 Separation of administrator's property and the represented
person's property 58
61 Accounts 58
62 Payments to person examining or auditing accounts 60
63 Administrator to report death of represented person 60
Division 8--Other matters pertaining to administration orders 60
64 Administrator may seek advice from VCAT 60
65 Administrator may seek advice from professional adviser 61
66 VCAT may open will 61
67 VCAT may compel production of will 62
68 VCAT may make copy of will available to administrator 62
69 VCAT to notify administrator if person ceases to be a
represented person 62
70 Actions of administrator taken to be actions of former
represented person 62
71 Administrator to pay to former represented person any money
outstanding 63
72 Former represented person entitled to inspection of accounts 64
73 VCAT order that delivery of, or access to, documents be
withheld 64
74 Sale of personal effects if unclaimed within 2 years after
person ceases to be represented person 65
75 Restriction on powers of represented person in relation to
financial matters 65
76 Interest of represented person in property not to be altered by
sale or other disposition of property 66
77 Guardianship and Administration Fund 67
78 Application to VCAT by represented person or a person
interested 68
Part 4--Supportive guardianship orders and supportive
administration orders 69
Division 1--Application for supportive guardianship orders and
supportive administration orders 69
79 Application for supportive guardianship order 69
80 Application for supportive administration order 69
81 Matters to be included in application to VCAT 70
82 Who are the parties to a proceeding on an application? 71
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Clause Page
83 Who is entitled to notice of an application, the hearing and any
order made in the proceeding? 71
84 Contents of notice of application 72
85 Date for hearing of application for supportive guardianship
order or supportive administration order 73
86 Participation of proposed supported person at hearing 73
Division 2--Making supportive guardianship orders and
supportive administration orders and eligibility of persons
appointed 74
87 VCAT may make a supportive guardianship order or
supportive administration order 74
88 Persons eligible as supportive guardians or supportive
administrators 75
89 Matters to be specified in supportive guardianship orders and
supportive administration orders 76
Division 3--Powers and duties of supportive guardians and
supportive administrators 77
90 Powers of supportive guardians or supportive administrators 77
91 Information power 78
92 Communication power 79
93 Power to give effect to decisions 79
94 Duties and obligations of supportive guardians and supportive
administrators 80
Division 4--General 81
95 No entitlement to remuneration 81
96 When does a supportive guardianship order or supportive
administration order cease to have effect? 81
97 Advice from VCAT 82
98 Supportive guardian or supportive administrator to report
death of supported person 83
Part 5--Administration (missing person) orders 84
Division 1--Application for administration (missing person)
orders 84
99 Application for administration (missing person) orders 84
100 Matters to be included in application to VCAT 84
101 Who are the parties to a proceeding on an application? 85
102 Who is entitled to notice of an application, the hearing and any
order made in the proceeding? 85
103 Contents of notice of application 86
104 Date for hearing of application for administration (missing
person) order 87
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Clause Page
Division 2--Making administration (missing person) orders and
eligibility of persons appointed 87
105 VCAT may make administration (missing person) order 87
106 Duration of order 89
107 Persons eligible as administrators for missing persons 90
108 Matters to be specified in administration (missing person)
orders 92
109 Urgent administration (missing person) orders 92
Division 3--Powers of administrators for missing persons 93
110 Powers of administrators for missing persons 93
111 Powers of investment 94
112 Power to open will 94
113 Power to undertake legal proceedings 95
114 Other powers that may be specified in administration (missing
person) order 95
115 Matters for which power cannot be given under an
administration (missing person) order 97
Division 4--Duties of administrators under administration
(missing person) orders 98
116 Exercise of power by administrator 98
117 Property of missing person 99
118 Conflict transactions 100
119 Permitted conflict transactions 100
120 Keeping records 101
121 Separation of administrator's property and missing person's
property 101
122 Accounts 101
123 Payments to person examining or auditing accounts 102
124 Administrator to notify VCAT about status of missing person 103
Division 5--Other matters pertaining to administration (missing
person) orders 103
125 Administrator may seek advice from VCAT 103
126 Administrator may seek advice from professional adviser 104
127 VCAT may open will 104
128 VCAT may compel production of will 104
129 VCAT may make copy of will available to administrator 105
130 VCAT to notify administrator if person ceases to be a missing
person 105
131 Actions of administrator taken to be actions of former missing
person 105
132 Administrator to pay to former missing person any money
outstanding 106
133 Former missing person entitled to inspection of accounts 107
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Clause Page
134 VCAT order that delivery of, or access to, documents be
withheld 108
135 Sale of personal effects if unclaimed within 2 years after
person ceases to be missing person 108
136 Interest of missing person in property not to be altered by sale
or other disposition of property 109
137 Application to VCAT by a person interested 110
138 Order to revoke administration (missing person) order 110
139 Part does not exclude Administration and Probate Act 1958 111
Part 6--Special medical procedures 112
140 Definitions 112
141 VCAT may consent to special medical procedure 112
142 Effect of consent 113
143 Application for VCAT's consent to special medical procedure 113
144 Date for hearing 114
145 Consent of VCAT to special medical procedure 114
146 VCAT may confer authority to consent to continuing or
further special medical procedure 116
147 Special medical procedure without consent of VCAT an
offence 117
148 Refusal of consent to special medical procedure under an
instructional directive 118
149 Unlawful consent to special medical procedure an offence 118
Part 7--Rehearings and reassessment of orders 119
Division 1--Rehearings 119
150 Application for rehearing of application for order 119
151 Application for rehearing of reassessment of order 119
152 When may application for rehearing of application or for leave
to apply for rehearing of application or rehearing of
reassessment be made? 119
153 Matters for which application for rehearing cannot be made 120
154 Who are the parties to a rehearing? 120
155 Who is entitled to notice of an application for a rehearing? 121
156 Participation of proposed represented person or represented
person at hearing 121
157 Rehearing 122
158 Effect of first instance order pending rehearing 122
Division 2--Reassessment of orders 123
159 Reassessment 123
160 Matters to be included in application to VCAT 123
161 Who are the parties to a reassessment? 124
162 Who is entitled to notice of a reassessment, the hearing and
any order made in the proceeding? 125
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Clause Page
163 Contents of notice of application for a reassessment 125
164 Conduct of reassessment on VCAT's initiative 127
165 Participation of represented person or supported person at
hearing 128
166 VCAT to consider role of appointed person 129
167 Order after reassessment 129
Part 8--Interstate orders 130
168 Application of Part 130
169 Definitions 130
170 Corresponding laws and orders 131
171 Ministerial agreements 131
172 Registration of interstate orders 131
173 Reassessment of interstate orders 132
174 Reciprocal arrangements under the State Trustees (State
Owned Company) Act 1994 133
Part 9--General provisions 134
175 Remuneration of administrators 134
176 Costs incurred by administrator 135
177 Resolution of disagreements between persons appointed as
guardians or administrators 135
178 Enforcement orders 137
179 Matters before a Court 138
180 Effect of setting aside administration order or administration
(missing person) order on previous actions of administrator 140
181 Compensation for acts of guardian or administrator 140
182 Relief from personal liability 141
183 Who can apply for an order for compensation? 141
184 Time limit for application for order for compensation 142
185 VCAT may refer matter to Supreme Court 142
186 No compensation 142
187 Judicial notice 142
188 Offence for guardian to use guardianship order dishonestly 143
189 Offence for administrator to use administration order
dishonestly 143
190 Offence for administrator to use administration (missing
person) order dishonestly 144
191 Offence for supportive guardian to use supportive
guardianship order dishonestly 144
192 Offence for supportive administrator to use supportive
administration order dishonestly 145
193 Criminal liability of officers of bodies corporate--failure to
exercise due diligence 145
194 Regulations 147
195 Transitional regulations 148
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Clause Page
Part 10--Repeal of Guardianship and Administration Act 1986
and savings and transitional provisions 150
196 Definitions 150
197 Guardianship and Administration Act 1986 repealed 150
198 Guardianship orders made under the old Act 151
199 Administration orders made under the old Act 152
200 Administration orders made under the old Act in respect of the
estate of a missing person 154
201 Applications made under the old Act for guardianship orders
and administration orders 155
202 Special medical procedures 156
203 Rehearings of orders made under the old Act 157
204 Reassessments of orders made under the old Act 157
205 Interstate orders 158
206 VCAT may make orders of a transitional nature 158
Part 11--Amendment of Victorian Civil and Administrative
Tribunal Act 1998 and other Acts 159
Division 1--Victorian Civil and Administrative Tribunal Act 1998 159
207 Definitions 159
208 What is review jurisdiction? 159
209 Proceeding files 159
210 Heading to Part 9 of Schedule 1 substituted 159
211 Constitution of Tribunal for proceedings 160
212 Notification of commencement 161
213 Public Advocate may intervene or be joined 161
214 Withdrawal of application does not preclude future application 161
215 Referral to administrators for report 162
216 Proceeding not invalidated by failure to give notice 162
217 Confidentiality of proceedings 162
218 New clause 37A inserted 162
219 Settlement offers 163
220 Subject matter for rules 163
Division 2--Amendments to other Acts 163
221 Consequential amendments 163
222 Repeal of Part 11 and Schedule 1 163
Schedule 1--Consequential amendments 164
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Endnotes 184
1 General information 184
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Guardianship and Administration
Act 2019
No. of 2019
[Assented to ]
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The purposes of this Act are--
(a) to re-enact with amendments the law relating
to guardianship and administration; and
(b) to repeal the Guardianship and
Administration Act 1986; and
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(c) to make consequential amendments to
various other Acts.
2 Commencement
(1) Subject to subsection (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision of this Act does not come into
operation before 1 March 2020, it comes into
operation on that day.
3 Definitions
(1) In this Act--
administration (missing person) order means an
order made under section 105 that appoints a
person as an administrator;
administration order means an order made under
section 30 that appoints a person as an
administrator;
administrator means the person appointed as an
administrator in relation to one or more
specified financial matters--
(a) in an administration order; or
(b) in an administration (missing person)
order;
close friend of a person means another person
who has a close personal relationship with
the first person and a personal interest in the
first person's welfare;
determination, in relation to VCAT, includes
an order, direction, consent, advice and
approval;
disability, in relation to a person, means
neurological impairment, intellectual
impairment, mental disorder, brain injury,
physical disability or dementia;
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domestic partner of a person means--
(a) a person who is in a registered
relationship with the person; or
(b) an adult person to whom the person is
not married but with whom the person
is in a relationship as a couple where
one or each of them provides personal
or financial commitment and support
of a domestic nature for the material
benefit of the other, irrespective of
their genders and whether or not they
are living under the same roof, but
does not include a person who provides
domestic support and personal care to
the person--
(i) for fee or reward; or
(ii) on behalf of another person or
an organisation (including a
government, a government
agency, a body corporate or a
charitable or benevolent
organisation);
financial matter, in relation to a person, means
any matter relating to the person's financial
or property affairs and includes any legal
matter that relates to the financial or property
affairs of the person;
Examples
The following are examples of financial matters--
(a) making money available to the person for the
person's personal expenditure;
(b) paying expenses for the person and any
dependants of the person relating to the
maintenance and accommodation of the person
and any dependants, including purchasing an
interest in, or making a contribution to, a
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property to accommodate the person or any
dependants of the person or otherwise making
payments in relation to such property;
(c) paying any debts of the person, including any
fees and expenses to which an administrator is
legally entitled;
(d) receiving and recovering money payable to the
person;
(e) carrying on any trade or business of the person;
(f) performing any contracts entered into by the
person;
(g) discharging any mortgage over the person's
property;
(h) paying rates, taxes and insurance premiums or
other outgoings for the person's property;
(i) insuring the person or the person's property;
(j) otherwise preserving or improving the person's
property;
(k) making investments for the person;
(l) continuing investments of the person, including
taking up rights to issues of new shares or
options for new shares to which the person
becomes entitled by the person's existing
shareholding;
(m) undertaking any real estate transaction for the
person;
(n) dealing with land for the person;
(o) undertaking a beneficial transaction for the
person involving the use of the person's
property as security for an obligation, including
taking out a loan on behalf of the person or
giving a guarantee on behalf of the person;
(p) withdrawing money from or depositing money
into an account of the person with a financial
institution.
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guardian (except in section 50(2)(a)) means a
person appointed in a guardianship order as a
guardian in relation to one or more specified
personal matters;
guardianship order means an order made under
section 30 that appoints a person as a
guardian;
income includes rents and profits;
legal matter in relation to a person means--
(a) the use of legal services for the person's
benefit; or
(b) bringing or defending a legal
proceeding or hearing in a court,
tribunal or other body on behalf of
the person, including settling a claim
before or after a legal proceeding or
hearing starts;
Examples
The following are examples of legal matters--
(a) the use of legal services to obtain information
about the person's legal rights;
(b) the use of legal services to make a transaction.
medical treatment decision has the same meaning
as in the Medical Treatment Planning and
Decisions Act 2016;
missing person means a person determined to be
a missing person under section 105(3);
nearest relative means the relative first listed
in the definition of relative who is of or
over 18 years of age, the elder or eldest
of 2 or more relatives described in any
paragraph being preferred to any other so
described;
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personal matter, in relation to a person, means
any matter relating to the person's personal
or lifestyle affairs, and includes any legal
matter that relates to the person's personal
or lifestyle affairs;
Examples
The following are examples of personal matters--
(a) where and with whom the person lives;
(b) other persons with whom the person associates;
(c) whether the person works and, if so, the kind
and place of work and employer;
(d) whether the person undertakes education or
training and if so, the kind of education or
training and the place where it takes place;
(e) daily living issues such as diet and dress;
(f) medical treatment decisions, excluding
decisions about matters provided for in Part 6.
police officer has the same meaning as in the
Victoria Police Act 2013;
primary carer has the same meaning as in
the Medical Treatment Planning and
Decisions Act 2016;
principal registrar means the principal registrar
of VCAT;
proposed represented person means a person in
relation to whom an application is made
under section 22 or 23;
proposed supported person means a person in
relation to whom VCAT considers making a
supportive guardianship order or supportive
administration order under section 87;
Public Advocate means the person appointed
as the Public Advocate, being the office
continued in existence by section 10;
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Public Advocate employee means a person
referred to in section 18 and employed to
enable the Public Advocate to exercise the
Public Advocate's powers, carry out the
Public Advocate's functions or perform the
Public Advocate's duties;
regulations means regulations made under
this Act;
relative means any of the following--
(a) a spouse or domestic partner;
(b) a child;
(c) a parent;
(d) a step-parent;
(e) a sibling;
(f) a step-sibling;
(g) a grandparent;
(h) a grandchild;
(i) an uncle or aunt;
(j) a nephew or niece;
represented person means--
(a) a person in relation to whom a
guardianship order has effect; or
(b) a person in relation to whom an
administration order has effect;
spouse of a person means a person to whom the
person is married;
State Trustees has the same meaning as in the
State Trustees (State Owned Company)
Act 1994;
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supported decision means--
(a) in the case of a supportive guardianship
order, a decision about a personal
matter that is specified in the order; and
(b) in the case of a supportive
administration order, a decision about
a financial matter that is specified in
the order;
supported person means a person in relation to
whom a supportive guardianship order or a
supportive administration order has effect;
supportive administration order means an order
made under section 87 that appoints a person
as supportive administrator;
supportive administrator means a person
appointed in a supportive administration
order as supportive administrator in relation
to one or more specified financial matters;
supportive guardian means a person appointed in
a supportive guardianship order as
supportive guardian in relation to one or
more specified personal matters;
supportive guardianship order means an order
made under section 87 that appoints a person
as supportive guardian;
VCAT Act means the Victorian Civil and
Administrative Tribunal Act 1998.
(2) For the purposes of the definition of domestic
partner in subsection (1)--
(a) registered relationship has the same
meaning as in the Relationships Act 2008;
and
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(b) in determining whether persons who are not
in a registered relationship are domestic
partners of each other, all the circumstances
of their relationship are to be taken into
account, including any one or more of the
matters referred to in section 35(2) of the
Relationships Act 2008 as may be relevant
in a particular case; and
(c) a person is not a domestic partner of another
person only because they are co-tenants.
(3) A reference in the definition of relative in
subsection (1) to a person's sibling includes a
reference to a person who was adopted by one
or both of the person's parents.
4 Meaning of promote the personal and social
wellbeing of a person
For the purposes of this Act, and without limiting
the ways in which this may occur, the personal
and social wellbeing of a person is promoted
by--
(a) recognising the inherent dignity of the
person; and
(b) respecting the person's individuality; and
(c) having regard to the person's existing
supportive relationships, religion, values and
cultural and linguistic environment; and
(d) respecting the confidentiality of confidential
information relating to the person; and
(e) recognising the importance to the person of
any companion animal the person has and
having regard to the benefits that may be
obtained from the person having any
companion animal.
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5 Meaning of decision-making capacity
(1) For the purposes of this Act, a person has capacity
to make a decision in relation to a matter
(decision-making capacity) 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.
(2) For the purposes of subsection (1), a person is
presumed to have decision-making capacity
unless there is evidence to the contrary.
(3) For the purposes of subsection (1)(a), a person is
taken to understand the information relevant to a
decision if the person understands an explanation
of the information given to the person in a way
that is appropriate to the person's circumstances,
whether by using modified language, visual aids
or any other means.
(4) In determining whether a person has
decision-making capacity, regard must
be had to the following--
(a) a person may have decision-making
capacity in relation to some matters
and not others;
(b) if a person does not have decision-making
capacity in relation to a matter, it may be
temporary;
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(c) it should not be assumed that a person
does not have decision-making capacity
in relation to a matter on the basis of the
person's appearance;
(d) it should not be assumed that a person
does not have decision-making capacity
in relation to a matter merely because the
person makes a decision that, in the opinion
of others, is unwise;
(e) 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.
Examples
The following are examples of practicable and
appropriate support--
(a) using information or formats tailored to the
particular needs of a person;
(b) communicating or assisting a person to
communicate the person's decision;
(c) giving a person additional time and discussing
the matter with the person;
(d) using technology that alleviates the effects of a
person's disability.
6 Assessing decision-making capacity
For the purposes of this Act, a person who is
assessing whether a person has decision-making
capacity in relation to a matter must take
reasonable steps to conduct the assessment at a
time at which, and in an environment in which,
the person's decision-making capacity can be
assessed most accurately.
7 Primary object
(1) The primary object of this Act is to protect and
promote the human rights and dignity of persons
with a disability by--
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(a) having regard to the Convention on
the Rights of Persons with Disabilities,
recognising the need to support persons
with a disability to make, participate in
and implement decisions that affect their
lives; and
(b) if a guardianship order or administration
order is made for such persons--
(i) enabling VCAT to set safeguards and
appropriate limitations on the powers
of guardians and administrators when
making such orders; and
(ii) requiring VCAT to review regularly
such orders; and
(iii) providing guidance for guardians and
administrators when making decisions
for represented persons, as the case
requires.
(2) In this section, the Convention on the Rights
of Persons with Disabilities means the United
Nations Convention on the Rights of Persons with
Disabilities, done at New York on 13 December
2006, as in force for Australia.
8 General principles
(1) A person exercising a power, carrying out a
function or performing a duty under this Act
must have regard to the following principles--
(a) a person with a disability who requires
support to make decisions should be
provided with practicable and appropriate
support to enable the person, as far as
practicable in the circumstances--
(i) to make and participate in decisions
affecting the person; and
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(ii) to express the person's will and
preferences; and
(iii) to develop the person's decision-making
capacity;
(b) the will and preferences of a person with a
disability should direct, as far as practicable,
decisions made for that person;
(c) powers, functions and duties under this
Act should be exercised, carried out and
performed in a way which is the least
restrictive of the ability of a person with
a disability to decide and act as is possible
in the circumstances.
(2) In subsection (1), the reference to a person
exercising a power, carrying out a function
or performing a duty under this Act includes
VCAT.
9 Decision-making principles
(1) A person making a decision for a represented
person must have regard to the following
principles--
(a) the person should give all practicable and
appropriate effect to the represented person's
will and preferences, if known;
(b) if the person is not able to determine the
represented person's will and preferences,
the person should give effect as far as
practicable in the circumstances to what
the person believes the represented person's
will and preferences are likely to be, based
on all the information available, including
information obtained by consulting the
represented person's relatives, close friends
and carers;
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(c) if the person is not able to determine
the represented person's likely will and
preferences, the person should act in a
manner which promotes the represented
person's personal and social wellbeing;
(d) if the represented person has a companion
animal, the person should act in a manner
that recognises the importance of the
companion animal to the represented person
and any benefits the represented person
obtains from the companion animal;
(e) the represented person's will and preferences
should only be overridden if it is necessary
to do so to prevent serious harm to the
represented person.
(2) In this section, represented person--
(a) has the meaning given in section 3(1); and
(b) includes a missing person for whom an
administration (missing person) order has
effect.
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Part 2--The Public Advocate
Part 2--The Public Advocate
10 Public Advocate
(1) The office of Public Advocate established
under section 14 of the Guardianship
and Administration Act 1986 as in force
immediately before the commencement of
this Act continues in existence.
(2) The Governor in Council, on the recommendation
of the Minister, may appoint a person as Public
Advocate.
11 Terms and conditions of appointment
(1) The Public Advocate--
(a) holds office for 7 years; and
(b) is eligible for reappointment.
(2) The Public Advocate is entitled to be paid the
remuneration and allowances as are fixed by
the Governor in Council from time to time.
(3) The Public Advocate is not, in relation to
the office of Public Advocate, subject to the
Public Administration Act 2004 (other than
Part 5 of that Act).
12 Resignation and vacancy
(1) The Public Advocate ceases to hold office if the
Public Advocate--
(a) resigns by writing delivered to the Governor
in Council; or
(b) becomes insolvent under administration; or
(c) is convicted of an indictable offence or of
an offence which, if committed in Victoria,
would be an indictable offence; or
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(d) nominates for election for, or is elected to--
(i) the Parliament of Victoria; or
(ii) the Parliament of the Commonwealth
or of another State or a Territory of the
Commonwealth; or
(iii) a Council, within the meaning of the
Local Government Act 1989; or
(e) is removed from office under subsection (4).
(2) The Governor in Council, on the recommendation
of the Minister, may suspend the Public Advocate
from office on any of the following grounds--
(a) the Public Advocate has engaged in paid
employment outside the duties of the office
without the approval of the Governor in
Council;
(b) the Public Advocate is unable to perform,
or has neglected, the duties of the office
of Public Advocate;
(c) the Public Advocate has engaged in
misconduct;
(d) the Public Advocate has failed to disclose
a material conflict of interest.
(3) The Minister must cause to be laid before each
House of the Parliament a full statement of the
grounds of suspension of the Public Advocate
within 7 sitting days after the suspension.
(4) The Governor in Council must remove the Public
Advocate from office if each House of the
Parliament, within 7 sitting days after the day
when the statement of the grounds of suspension
is laid before it, declares by resolution that the
Public Advocate ought to be removed from office.
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(5) If both Houses of the Parliament do not within
the period referred to in subsection (4) declare
by resolution that the Public Advocate ought
to be removed from office, the Governor in
Council must remove the suspension and restore
the Public Advocate to office.
13 Acting Public Advocate
(1) The Governor in Council, on the recommendation
of the Minister, may appoint an Acting Public
Advocate during the temporary absence or the
suspension of the Public Advocate and may at any
time revoke the appointment.
(2) The Minister may appoint a person as Acting
Public Advocate during the temporary absence
or the suspension of the Public Advocate if the
person--
(a) previously has been appointed as Acting
Public Advocate under subsection (1); and
(b) has taken an oath or made an affirmation
under section 14.
(3) A person appointed under subsection (2) is not
required to take another oath or make another
affirmation under section 14.
(4) The Minister may at any time revoke an
appointment under subsection (2).
(5) The Acting Public Advocate--
(a) has all the powers and duties and may
carry out any of the functions of the Public
Advocate; and
(b) is entitled to be paid the remuneration and
allowances as are fixed by the Governor in
Council from time to time; and
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(c) is not, in relation to the office of Acting
Public Advocate, subject to the Public
Administration Act 2004 (other than
Part 5 of that Act).
14 Oath or affirmation
Before taking office, the Public Advocate and
any Acting Public Advocate must take an oath
or make an affirmation to be administered by
the Speaker of the Legislative Assembly that
the Public Advocate or the Acting Public
Advocate (as the case requires) will faithfully
and impartially perform the duties of office.
15 Functions of the Public Advocate
The functions of the Public Advocate are--
(a) to promote the human rights of persons
with a disability and the development of the
ability of such persons to act independently;
and
(b) to protect persons with a disability from
abuse, neglect and exploitation; and
(c) to undertake advocacy for persons with a
disability on a systemic or individual basis;
and
(d) to manage and coordinate programs that
promote the human rights of persons with
a disability; and
(e) to encourage the development and operation
of programs, services and facilities for
persons with a disability that--
(i) involve and engage persons with a
disability in the provision of these
services; and
(ii) develop the ability of persons with a
disability to act independently; and
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(iii) promote accessibility of services for
persons with a disability; and
(iv) minimise restrictions on the human
rights of persons with a disability; and
(f) to promote and facilitate informed public
awareness and understanding by
disseminating information about--
(i) the provisions of this Act and other
legislation dealing with or affecting
persons with a disability or persons
who may not have decision-making
capacity; and
(ii) the role of VCAT and the Public
Advocate; and
(iii) services provided to persons with a
disability; and
(g) to investigate, report and make
recommendations to the Minister
in relation to--
(i) any aspect of the operation of the
Guardianship and Administration
Act 2019; and
(ii) any function conferred on the Public
Advocate by or under this or any other
Act; and
(h) any other function conferred on the Public
Advocate by or under this or any other Act.
16 Powers and duties of the Public Advocate
(1) The Public Advocate--
(a) if appointed by VCAT, may be a guardian;
and
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(b) may make an application to VCAT for--
(i) the appointment of a guardian, a
supportive guardian, an administrator
or a supportive administrator; or
(ii) the rehearing or reassessment of a
guardianship order, a supportive
guardianship order, an administration
order or a supportive administration
order; and
(c) may advocate for the human rights and
interests of a person with a disability
(irrespective of the person's age) by--
(i) seeking assistance from a government
department, institution, welfare
organisation or service provider for the
purpose of promoting the personal and
social wellbeing of the person; and
(ii) making representations on behalf of, or
acting for, the person; and
(iii) involving members of the community
in the provision of programs and
services for persons with a disability;
and
(iv) reporting and making recommendations
to VCAT on behalf of the person in
any proceeding under the Equal
Opportunity Act 2010; and
(v) with the leave of a court or VCAT--
(A) joining as a party to proceedings
in the court or VCAT that involve
the rights and interests of the
person; and
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(B) assisting the court or VCAT as
amicus curiae in proceedings in
the court or VCAT that involve
the rights and interests of the
person; and
Note
Clause 33 of Schedule 1 to the VCAT
Act provides that the Public Advocate in
a proceeding under this Act may intervene
at any time and is entitled to be joined as a
party.
(d) may give advice to any person about
the provisions of this Act, including
an application for a guardianship
order, a supportive guardianship order,
an administration order, a supportive
administration order or an administration
(missing person) order; and
(e) may provide information for persons
who are, or are proposed to be, guardians,
supportive guardians, administrators,
supportive administrators or supportive
attorneys (within the meaning of the
Powers of Attorney Act 2014); and
(f) may provide information for persons
who are, or are proposed to be, support
persons or medical treatment decision
makers (both within the meaning of the
Medical Treatment Planning and
Decisions Act 2016); and
(g) may investigate any complaint or
allegation that a person is under
inappropriate guardianship, is being
exploited or abused or is in need of
guardianship; and
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(h) may engage a registered company
auditor to carry out an inspection or an
audit if required for the purposes of--
(i) an investigation under paragraph (g); or
(ii) the provision of a report under
clause 35 or 51AH of Schedule 1
to the VCAT Act; and
(i) subject to subsection (2), may require a
person, government department, public
authority, service provider, institution or
welfare organisation to provide information
for the purposes of--
(i) an investigation under paragraph (g); or
(ii) the provision of a report under
clause 35, 48 or 51AH of Schedule 1
to the VCAT Act; and
(j) may submit a report to VCAT on any matter
referred by VCAT to the Public Advocate for
a report; and
(k) may perform any other function and exercise
any other power conferred on the Public
Advocate by this or any other Act.
(2) It is a reasonable excuse for a person to refuse or
fail to provide information that the person would
otherwise be required to provide under subsection
(1)(i) if providing the information would tend to
incriminate the person.
(3) If the Public Advocate is appointed as the
guardian for a represented person--
(a) the person for the time being holding the
office or performing the functions of the
Public Advocate is the guardian for that
represented person; and
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(b) the Public Advocate must use the Public
Advocate's best endeavours to find an
appropriate person to be appointed as the
guardian.
17 Powers of inspection
(1) The Public Advocate may enter any premises on
which an institution is situated and--
(a) inspect those premises; and
(b) see any person who is a resident of those
premises or who is receiving any service
from the institution; and
(c) make enquiries relating to the admission,
care, detention, treatment or control of any
such person; and
(d) subject to subsection (2), inspect any
document relating to any such person or
any record required to be kept under--
(i) this Act; or
(ii) the Disability Act 2006; or
(iii) the Health Services Act 1988; or
(iv) the Mental Health Act 2014; or
(v) the Supported Residential Services
(Private Proprietors) Act 2010.
(2) Subsection (1)(d) does not authorise the Public
Advocate to inspect--
(a) a person's medical records unless the person
consents; or
(b) personnel records unless the person to whom
the records relate consents.
(3) The person in charge, and the members of staff or
management, of an institution must provide the
Public Advocate with any reasonable assistance
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that the Public Advocate requires to perform or
exercise any power, function or duty under this
section effectively.
(4) A person in charge, or a member of the staff
or management, of an institution must not
unreasonably refuse or neglect to give assistance
when required to do so under subsection (3).
Penalty: 25 penalty units.
(5) A person in charge, or a member of the staff or
management, of an institution must not refuse or
fail to give full and true answers to the best of that
person's knowledge to any questions asked by the
Public Advocate in the performance or exercise of
any power, function or duty under this section.
Penalty: 25 penalty units.
(6) A person in charge, or a member of the staff or
management, of an institution must not assault,
obstruct or threaten the Public Advocate in the
performance or exercise of any power, function
or duty under this section.
Penalty: 25 penalty units.
(7) In this section--
institution means any of the following--
(a) a disability service provider, residential
service, residential institution or residential
treatment facility, all within the meaning of
the Disability Act 2006;
(b) a designated public hospital within the
meaning of the Health Services Act 1988;
(c) a mental health service provider within the
meaning of the Mental Health Act 2014;
(d) a supported residential service within the
meaning of the Supported Residential
Services (Private Proprietors) Act 2010.
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18 Public Advocate employees
There may be employed under Part 3 of the
Public Administration Act 2004 any employees
who are necessary to enable the Public Advocate
to exercise the Public Advocate's powers, to carry
out the Public Advocate's functions or to perform
the Public Advocate's duties.
19 Delegation
(1) The Public Advocate may, by an instrument
of delegation, delegate to a Public Advocate
employee any one or more of the following--
(a) a power, duty or function of the Public
Advocate under this Act or any other
Act, other than this power of delegation;
(b) any or all of the Public Advocate's powers or
duties in the Public Advocate's capacity as
guardian;
(c) despite section 25 of the Powers of
Attorney Act 2014, any or all of the Public
Advocate's powers or duties in the Public
Advocate's capacity as an attorney under an
enduring power of attorney within the
meaning of that Act.
(2) The Public Advocate may, with VCAT's
approval, by instrument of delegation, delegate
any or all of the Public Advocate's powers or
duties in the Public Advocate's capacity as
guardian to an individual (other than to a
Public Advocate employee) or organisation
specified in the instrument of delegation.
20 Confidentiality
(1) This section applies to a person who is, or has
been--
(a) the Public Advocate; or
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(b) an Acting Public Advocate; or
(c) a Public Advocate employee.
(2) A person must not, directly or indirectly, make a
record of, disclose or communicate to any other
person, any information relating to the affairs of
an individual acquired in the exercise of a power,
the carrying out of a function or the performance
of a duty under this Act which may identify the
individual unless--
(a) it is necessary to do so for the purposes
of, or in connection with, the exercise of
a power, the carrying out of a function
or the performance of a duty under this
or any other Act; or
(b) it is necessary to do so for the purposes of a
criminal proceeding or any other proceeding
under this or any other Act; or
(c) the individual to whom the information
relates gives written consent to the making of
the record, disclosure or communication; or
(d) it is necessary to do so for the purposes of
enabling a guardian, supportive guardian,
relative or primary carer of the individual to
provide support or care to that individual; or
(e) the information is disclosed or
communicated to a police officer for the
purposes of reporting a suspected offence or
assisting in the investigation of a suspected
offence; or
(f) making the record of the information, or
disclosing or communicating the information
to any other person, is authorised by an Act
or an Act of the Commonwealth or any other
State or a Territory.
Penalty: 60 penalty units.
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21 Annual report
(1) As soon as practicable in each year but not later
than 30 September, the Public Advocate must
submit to the Minister a report on the Public
Advocate's performance of the Public Advocate's
functions under this and any other Act during the
12 months ending on the preceding 30 June.
(2) The Minister must cause a report submitted under
subsection (1) to be laid before each House of the
Parliament within 14 sitting days of that House
after it is received by the Minister.
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Part 3--Guardianship orders and
administration orders
Division 1--Applications for guardianship
orders and administration orders
22 Application for guardianship orders
A person may apply to VCAT for a guardianship
order that appoints a guardian for a person with a
disability who is--
(a) of or over 18 years of age; or
(b) under 18 years of age but the order takes
effect on that person attaining 18 years of
age.
23 Application for administration orders
(1) A person may apply to VCAT for an
administration order that appoints an
administrator for a person with a disability
who is--
(a) of or over 18 years of age; or
(b) under 18 years of age but the order takes
effect on that person attaining 18 years of
age.
(2) Subject to subsection (1), if the person for
whom an administration order is sought does
not reside in Victoria but the person's property
is partly or wholly in Victoria, an application
may be made for an administration order
appointing an administrator for the person in
relation to that part of the property that is in
Victoria.
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24 Matters to be included in application to VCAT
A person applying to VCAT for an order under
this Division must include the following in the
application--
(a) the name and contact details of the proposed
represented person;
(b) the type of order applied for, including
details of the personal matter or financial
matter in relation to which the order is
sought;
(c) details of the reasons for making the
application;
(d) the name and contact details of any person
proposed as guardian or administrator;
(e) the name and contact details of the applicant
and of any person who has a direct interest in
the application (if known to the applicant);
Note
Persons having a direct interest includes, amongst
others, the proposed represented person's relatives,
any primary carer, close friends, any attorney
appointed under an enduring power of attorney and
any supportive attorney appointed under the Powers
of Attorney Act 2014.
(f) any support needs of the proposed
represented person including support
provided to the proposed represented person
by any companion animal of the proposed
represented person.
Note
Section 67 of the VCAT Act sets out additional requirements in
relation to making an application.
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25 Who are the parties to a proceeding on an
application?
The following persons are parties to a proceeding
on an application under this Division--
(a) the applicant;
(b) the proposed represented person;
(c) the person proposed as guardian or
administrator, as the case requires;
(d) in the case of an application for a
guardianship order, any current
administrator for the proposed
represented person;
(e) in the case of an application for an
administration order, any current
guardian for the proposed represented
person;
(f) any other person VCAT orders to be
joined as a party to the proceeding.
Note
Section 60 of the VCAT Act provides that VCAT
may in certain circumstances order that a person be
joined as a party to a proceeding.
26 Who is entitled to notice of an application, the
hearing and any order made in the proceeding?
For the purposes of sections 72(1), 99(1)
and 116(2) of the VCAT Act, the following
persons are entitled to a notice referred to in
each of those sections--
(a) any party to a proceeding on an application
under this Part;
(b) the spouse or domestic partner of the
proposed represented person, if any;
(c) the primary carer of the proposed
represented person, if any;
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(d) any person referred to in the application as
having a direct interest in the application;
(e) in the case of an application for a
guardianship order, the Public Advocate,
if no person is proposed as guardian;
(f) any other person VCAT directs be given
notice.
Note
Section 72(1) of the VCAT Act provides that an applicant for a
VCAT order must serve a copy of the application on each party,
each other person entitled to notice of the application under the
enabling enactment (which is this Act) and each other person
that VCAT so directs. Section 99(1)(b) of the VCAT Act provides
that the principal registrar of VCAT must give notice of the time
and place for the hearing of a proceeding to a person entitled to
notice of the proceeding or hearing under the enabling enactment.
Section 116(2)(a) of the VCAT Act provides that VCAT must
give a copy of any order it makes in a proceeding to each party
and each other person entitled to notice of the proceeding or of
the order under the enabling enactment.
27 Contents of notice of application
(1) A notice of an application given to a party to the
application must include the following--
(a) a copy of the application and any
information filed in support of the
application, subject to clause 37A of
Part 9 of Schedule 1 to the VCAT Act;
Note
Clause 37A of Part 9 of Schedule 1 to the VCAT Act
provides that a person may make an application to
the principal registrar of VCAT that any documents
lodged in relation to a proceeding under this Act not
be disclosed to a specified person or class of persons.
(b) the names of--
(i) the parties to the proceeding; and
(ii) the other persons entitled to the notice
under section 26;
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(c) information about the rights of the party in
relation to the application.
(2) A notice of an application given to a person
referred to in section 26 who is not a party to
the application must include the following--
(a) a copy of the application;
(b) the names of--
(i) the parties to the proceeding; and
(ii) the other persons entitled to the notice
under section 26;
(c) information about the rights of the person to
seek information about the application;
(d) information about how to apply to VCAT to
be made a party to the proceeding.
28 Date for hearing of application for guardianship
order or administration order
VCAT must commence to hear an application
made under this Division within 30 days after
the day on which the application is received by
VCAT unless VCAT or the principal registrar
under Division 5 of Part 4 of the VCAT Act--
(a) requires the parties to attend a compulsory
conference in relation to the application; or
(b) refers the proceeding in relation to the
application, or any part of it, for mediation.
29 Participation of proposed represented person at
hearing
The proposed represented person must attend in
person a hearing conducted by VCAT in relation
to an application made under this Division unless
VCAT is satisfied that--
(a) the proposed represented person does not
wish to attend the hearing in person; or
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(b) the personal attendance of the proposed
represented person at the hearing is
impracticable or unreasonable, despite
any arrangement that VCAT may make.
Note
See section 100(1) of the VCAT Act which provides that if VCAT
thinks it appropriate, it may conduct all or part of a proceeding by
means of a conference conducted using telephones, video links or
any other system of telecommunication.
Division 2--Making guardianship orders
and administration orders and eligibility
of persons appointed
30 VCAT may make a guardianship order or
administration order
(1) After considering an application made under
Division 1--
(a) VCAT may make one or more of the
following orders--
(i) a guardianship order, subject to
subsection (2);
(ii) an administration order, subject to
subsection (2);
(iii) a supportive guardianship order under
section 87, subject to Part 4;
(iv) supportive administration order under
section 87, subject to Part 4; or
(b) VCAT may make no order under this Act.
Note
See sections 34(1)(f) and 36 in relation to guardianship
orders and administration orders that are urgent orders.
(2) VCAT may only make a guardianship order or
an administration order under this Division if
satisfied that--
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(a) because of the proposed represented
person's disability, the person does not have
decision-making capacity in relation to--
(i) in the case of a guardianship order, the
personal matter in relation to which the
order is sought; or
(ii) in the case of an administration order,
the financial matter in relation to which
the order is sought; and
(b) the proposed represented person is in need
of a guardian or administrator, as the case
requires; and
Note
Section 31 sets out factors to consider in determining
whether a person is in need of a guardian or an
administrator.
(c) the guardianship order or administration
order, as the case requires, will promote the
proposed represented person's personal and
social wellbeing; and
(d) in the case of an application for an
administration order for a proposed
represented person who does not reside
in Victoria, State Trustees has not been
authorised under section 12 of the State
Trustees (State Owned Company)
Act 1994 to collect, manage, sell or
otherwise dispose of or administer any
property in Victoria in relation to which
the administration order is sought.
31 Factors to consider in determining need for
guardian or administrator
For the purposes of section 30(2)(b), in
determining whether a person is in need
of a guardian or administrator, VCAT must
consider the following--
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(a) the will and preferences of the proposed
represented person (so far as they can be
ascertained);
(b) whether decisions in relation to the personal
or financial matter for which the order is
sought--
(i) may more suitably be made by informal
means; or
(ii) may reasonably be made through
negotiation, mediation or similar
means;
(c) the wishes of any primary carer or relative
of the proposed represented person or other
person with a direct interest in the
application;
(d) the desirability of preserving existing
relationships that are important to the
proposed represented person.
32 Persons eligible as guardians or administrators
(1) VCAT may appoint as a guardian any individual
who is of or over the age of 18 years and who
consents to act as guardian if VCAT is satisfied
that the individual--
(a) will act in accordance with the duties set out
in Division 4; and
(b) is not in a position where the individual's
interests conflict, or may conflict, with the
interests of the proposed represented person;
and
(c) is a suitable person to act as the guardian for
the proposed represented person.
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(2) VCAT may appoint as an administrator any
person (individual or body corporate) which,
in the case of an individual, is of or over the
age of 18 years and which consents to act as
administrator if VCAT is satisfied that the
person--
(a) will act in accordance with the duties set out
in Division 7; and
(b) is not in a position where the person's
interests conflict, or may conflict, with the
interests of the proposed represented person;
and
(c) is a suitable person to act as the
administrator in relation to the proposed
represented person; and
(d) has sufficient expertise to make decisions
about any financial matter to be specified
in the administration order.
(3) In determining whether a person is a suitable
person to act as a guardian or administrator for
a proposed represented person, VCAT must take
into account the following--
(a) the will and preferences of the proposed
represented person (so far as they can be
ascertained);
(b) the desirability of preserving existing
relationships that are important to the
proposed represented person;
(c) the desirability of appointing a person who
is a relative of the proposed represented
person, or who has a personal relationship
with the proposed represented person, rather
than appointing a person with no such
relationship;
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(d) whether the person will be available to the
proposed represented person and able to
meet and communicate with the proposed
represented person;
(e) whether the person will act cooperatively
with any current guardian or administrator
for the proposed represented person (as the
case requires);
(f) whether, in the case of an administration
order, the person proposed as administrator
is or was a member of VCAT as constituted
for a proceeding under this Act.
(4) VCAT may appoint as an administrator a person
who was at any time a member of VCAT as
constituted for a proceeding under this Act if
VCAT considers that in the circumstances it is
appropriate for the person to act as an
administrator.
(5) VCAT must not assume without any evidence
that a proposed represented person's relative who
is proposed as the guardian or administrator--
(a) has interests that conflict, or may conflict,
with those of the proposed represented
person merely because the proposed
guardian or administrator is a relative
of the proposed represented person; or
(b) is not suitable to be appointed as the
guardian or administrator merely because
that relative disagrees with another relative
of the proposed represented person about a
matter pertaining to the proposed represented
person.
(6) If a statement of wishes for a future appointment
was lodged under section 35, VCAT must
consider that statement.
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33 Other matters pertaining to appointments
(1) VCAT may appoint the Public Advocate as
guardian for a proposed represented person if
VCAT is satisfied that no other person fulfils the
requirements of section 32 for appointment as a
guardian for the proposed represented person.
(2) Despite anything to the contrary in subsection (1),
VCAT may appoint persons (including the Public
Advocate or any other person) as joint guardians
for the proposed represented person if--
(a) each person fulfils the relevant requirements
of section 32; and
(b) VCAT considers it appropriate to do so.
34 Matters to be specified in guardianship orders and
administration orders
(1) A guardianship order must specify the
following--
(a) the name of the represented person;
(b) the name of the guardian;
(c) the personal matters in relation to which the
guardian has powers;
(d) whether VCAT specifically confers on the
guardian the power to undertake legal
proceedings under section 40;
(e) any restrictions on the guardian's exercise of
a power referred to in paragraph (c) or (d);
(f) whether the order is an urgent order.
(2) An administration order must specify the
following--
(a) the name of the represented person;
(b) the name of the administrator;
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(c) the financial matters in relation to which the
administrator has powers;
(d) any other power referred to in Division 6
that VCAT specifically confers on the
administrator;
Note
Sections 51 and 52 provide for powers which may be
specified in an administration order.
(e) any restrictions on the administrator's
exercise of a power referred to in
paragraph (c) or (d);
(f) whether the order is an urgent order.
35 Statement of wishes for future appointment may be
lodged
(1) The following persons in relation to a represented
person may lodge with VCAT at any time a
statement of wishes for a future guardian or
administrator appointment for the represented
person--
(a) the guardian;
(b) the supportive guardian;
(c) the administrator;
(d) the supportive administrator;
(e) the primary carer;
(f) a relative.
(2) A statement of wishes for a future guardian
or administrator appointment referred to in
subsection (1) must set out--
(a) the wishes of the person lodging the
statement as to who in the future should be
appointed as a guardian or administrator for
the represented person; and
(b) the reasons for those wishes.
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36 Urgent guardianship orders and urgent
administration orders
(1) VCAT may waive any of the requirements set out
in section 24, 26, 27 or 29 and make an urgent
guardianship order or urgent administration
order under section 30 if VCAT is satisfied on
reasonable grounds that there is an immediate
risk of harm to the health, welfare or property of
a proposed represented person if the order were
not made.
(2) The risk of harm referred to in subsection (1) may
be caused by one or more factors, including the
following--
(a) abuse, exploitation or neglect of the
proposed represented person;
(b) self-neglect by the proposed represented
person.
(3) A guardianship order or administration order that
is an urgent order--
(a) remains in force for the period specified
in the order, being a period not exceeding
21 days; and
(b) may be renewed once for a further period not
exceeding 21 days.
37 Hearing after making of urgent guardianship order
or urgent administration order
As soon as practicable after making a
guardianship order or an administration order
that is an urgent order (but within 42 days
after making such an order) VCAT must hold
a hearing to determine whether a guardianship
order or an administration order (as the case
requires) that is not an urgent order should be
made.
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Division 3--Powers of guardians
38 Powers of guardians
(1) A guardianship order confers on the person
appointed as guardian--
(a) a power to make decisions about the personal
matters in relation to the represented person
that are specified in the order; and
(b) the power to sign and do any thing that is
necessary to give effect to any power or duty
vested in the guardian; and
(c) the power to undertake legal proceedings
under section 40, if specified in the order.
(2) For the purposes of subsection (1)(c), VCAT
may only specify the power to undertake legal
proceedings under section 40 if VCAT is satisfied
that the power is necessary or desirable for the
purposes of promoting the represented person's
personal and social wellbeing.
(3) A decision made, action taken, consent
given or thing done by a guardian under a
guardianship order has effect as if it were made,
taken, given or done by the represented person
and the represented person had decision-making
capacity for the matter in relation to which the
order was made.
39 Matters for which power cannot be given under a
guardianship order
Despite anything to the contrary in this Division, a
guardianship order does not confer on the person
appointed as guardian the power--
(a) to make or revoke a will for the represented
person; or
(b) to make or revoke an enduring power of
attorney for the represented person; or
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(c) to vote on the represented person's
behalf in an election for the State or the
Commonwealth or another State or a
Territory of the Commonwealth or in
a local election or a referendum; or
(d) to consent to the entering into, or dissolving
of, a marriage of the represented person or a
sexual relationship of the represented person;
or
(e) to make or give effect to a decision about--
(i) the care and wellbeing of a child of the
represented person; or
(ii) the adoption of a child under the age of
18 years of the represented person; or
(f) to enter into, or agree to enter into, a
surrogacy arrangement within the meaning
of the Assisted Reproductive Treatment
Act 2008 on the represented person's behalf;
or
(g) to consent to the making or discharge
of a substitute parentage order within
the meaning of the Status of Children
Act 1974 on the represented person's
behalf; or
(h) to manage the estate of the represented
person on the death of the represented
person; or
(i) to consent to an unlawful act.
40 Power for guardian to undertake legal proceedings
(1) VCAT may specify in a guardianship order that
the guardian has power to bring and defend an
action or other legal proceeding in the name, and
on behalf, of the represented person if the action
or other legal proceeding is in relation to a
personal matter specified in the order.
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(2) A guardian on whom the power to bring and
defend actions and other legal proceedings is
conferred is not required to be appointed a
litigation guardian in accordance with rules
of the relevant court or tribunal.
(3) If a guardian undertakes a legal proceeding in
accordance with subsection (1), the costs of the
proceeding are to be paid out of the represented
person's estate.
(4) Despite subsection (3), a court or tribunal may
order that a guardian is personally liable to pay for
any costs of the legal proceeding if the guardian
was negligent or engaged in misconduct.
(5) A court or tribunal may order that a person
who is or was a guardian be reimbursed from
the represented person's estate for any costs
incurred by the person as a guardian in bringing
or defending an action or other legal proceeding
in accordance with subsection (1).
Division 4--Duties of guardians
41 Exercise of power by guardian
(1) A guardian--
(a) must act in accordance with the general
principles set out in section 8 and the
decision-making principles set out in
section 9; and
(b) must act as an advocate for the represented
person; and
(c) must encourage and assist the represented
person to develop the person's decision-
making capacity in relation to personal
matters; and
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(d) must act in such a way so to protect the
represented person from neglect, abuse or
exploitation; and
(e) must act honestly, diligently and in good
faith; and
(f) must exercise reasonable skill and care; and
(g) must not use the position for profit; and
(h) must avoid acting if there is or may be a
conflict of interest; and
(i) must not disclose confidential information
gained as a guardian unless authorised to do
so under the guardianship order or by law.
(2) A guardian who has the power to make medical
treatment decisions for a represented person must
comply with the Medical Treatment Planning
and Decisions Act 2016 in relation to those
decisions.
42 Guardian to report death of represented person
If a guardian is advised of the death of a
represented person for whom the guardian is
appointed, the guardian must report the death
in writing to VCAT as soon as practicable.
Division 5--Other matters pertaining
to applications for guardianship orders
and to guardianship orders
43 Special order in relation to proposed represented
person unlawfully detained or at risk of harm
(1) This section applies if--
(a) an application for a guardianship order has
been made under section 22; and
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(b) VCAT has received information on oath or
affirmation that the proposed represented
person--
(i) is unlawfully detained against the
person's will; or
(ii) is likely to suffer serious damage to the
person's physical, emotional or mental
health or wellbeing unless immediate
action is taken.
(2) VCAT may by order empower the Public
Advocate, or some other person specified in the
order, to visit the proposed represented person in
the company of a police officer for the purpose of
preparing a report for VCAT.
(3) If, after receiving a report referred to in
subsection (2), VCAT is satisfied that one of
the circumstances described in subsection (1)(b)
exists, VCAT may make an order enabling the
proposed represented person to be taken to a
place specified in the order for assessment and
placement until the application under section 22
is determined.
(4) A police officer acting under an order made
under subsection (2) may, with such assistance
as is necessary, use reasonable force to enter the
premises where the proposed represented person
is.
(5) A person must not delay or obstruct a person
who is acting under an order under this section.
Penalty: 20 penalty units.
Note
Section 193 applies to an offence against this subsection.
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44 Guardian may seek advice from VCAT
(1) A guardian may apply to VCAT for advice on any
matter relating to the scope of the guardianship
order or the exercise of any power under the
order.
(2) After considering an application for advice or on
its own initiative, VCAT may--
(a) approve or disapprove of any act proposed to
be done by the guardian; and
(b) give advice as it considers appropriate; and
(c) make any order it considers necessary.
(3) An action does not lie against a guardian on
account of an act or thing done or omitted to be
done by the guardian under any order or on the
advice of VCAT made or given under this section
unless, in representing the facts to VCAT, the
guardian is guilty of fraud, wilful concealment or
misrepresentation.
45 Order for represented person to comply with
guardian's decisions
(1) VCAT may make an order at any time while a
guardianship order is in force that gives the
guardian or another specified person power to take
specified measures or actions to ensure that the
represented person complies with the guardian's
decisions in the exercise of the powers and duties
conferred by the guardianship order.
(2) VCAT must hold a hearing to reassess an order
made under subsection (1) as soon as practicable
after making the order but within 42 days after
making the order.
(3) A guardian or other person specified in an order
made under subsection (1) is not liable to any
action for false imprisonment or assault or any
other action, liability, claim or demand arising out
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of the taking of a measure or action under the
order if the guardian or other person takes that
measure or action in the belief that it will promote
the represented person's personal and social
wellbeing.
(4) Subsection (1) does not limit section 38.
Division 6--Powers of administrators
46 Powers of administrators
(1) An administration order confers on the person
appointed as administrator--
(a) a power to make decisions about the
financial matters in relation to the
represented person specified in the
order; and
(b) a power to make gifts in accordance with
section 47; and
(c) a power of investment in accordance with
section 48; and
(d) a power to open the will of the represented
person in accordance with section 49; and
(e) any other power that is specified in the order;
and
Note
Sections 51 and 52 provide for powers which may be
specified in an administration order.
(f) a power to sign and do any thing that is
necessary to give effect to any power or
duty vested in the administrator; and
(g) a power to do all matters necessary or
incidental to the performance of any
power conferred on the administrator.
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(2) For the purposes of subsection (1)(e), VCAT
may only specify a power if VCAT is satisfied
that the power is necessary or desirable for the
purposes of promoting the represented person's
personal and social wellbeing.
(3) Subject to, and in accordance with, this Act
and the administration order, an administrator
may do all acts and exercise all powers in
relation to the financial matters specified in
the order in the name, and on behalf, of the
represented person as effectually and in the
same manner as the represented person may
have done if the represented person had the
relevant decision-making capacity.
(4) A decision made, action taken, consent given
or thing done by an administrator under an
administration order has effect as if it were made,
taken, given or done by the represented person
and the represented person had decision-making
capacity for the matter in relation to which the
order was made.
47 Power to make gifts
(1) Except as provided in any order of VCAT, an
administrator may make a gift of a represented
person's property if--
(a) the gift is reasonable, having regard to all
the circumstances, including the represented
person's financial circumstances; and
(b) the gift is--
(i) to a relative or a close friend of the
represented person and is of a seasonal
nature or for a special event; or
Example
An example of a special event is a birth or a
marriage.
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(ii) of a type of donation that the
represented person made when the
represented person had decision-
making capacity in relation to making
donations or that the represented person
might reasonably be expected to make.
(2) A gift may be made by an administrator under
subsection (1) even if the gift is made to--
(a) the administrator; or
(b) a relative or close friend of the administrator;
or
(c) an organisation with which the administrator
has a connection.
Note
Section 61 sets out accounting requirements in relation to certain
gifts that are of or over $100 or the prescribed amount (whichever
is greater).
48 Powers of investment
Except as provided in section 76 or in any order of
VCAT, an administrator--
(a) in the case of investments of the represented
person, may continue those investments in
the manner in which they were invested by
the represented person for such period as the
administrator thinks fit, including taking up
rights to issues of new shares and options;
and
(b) in the case of money deposited in an
ADI, may re-deposit it after it becomes
payable; and
(c) in the case of property, has, and
may, exercise the same powers as
the administrator would have if
the administrator were a trustee in
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relation to that property under the Trustee
Act 1958.
49 Power to open will deposited with administrator
An administrator may, either before or after the
death of the represented person, open and read
without an order of VCAT any paper or writing
deposited with the administrator that is a will, a
revoked will, a purported will or a copy of a will
of the represented person.
50 Power to exercise certain powers vested in
represented person
(1) An administrator may, on behalf and in the name
of a represented person, exercise a power or give
consent as the administrator thinks fit if--
(a) the power is vested in a represented person
for that person's own benefit or the consent
of the represented person is necessary to the
exercise of the power; and
(b) the power or consent is in the nature of a
beneficial interest in the represented person;
and
(c) the administrator believes exercising the
power or giving the consent will benefit
the represented person.
(2) An administrator may, on behalf and in the name
of a represented person, exercise a power or give
consent as the administrator thinks fit if--
(a) the power is vested in the represented
person in the represented person's capacity
as a trustee or guardian of a trust or the
consent of the represented person to the
exercise of a power is necessary in the
represented person's capacity as a trustee
or guardian of a trust; and
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(b) the administrator believes that the power
should be exercised or that the consent
should be given.
(3) The exercise under this section by an
administrator of a power vested in a represented
person to appoint a new trustee is taken to be
power to appoint a new trustee within the meaning
of section 45 of the Trustee Act 1958.
51 Power for administrator to undertake legal
proceedings
(1) VCAT may specify in an administration order
that the administrator has power to bring and
defend an action or other legal proceeding in the
name, and on behalf, of a represented person if
the action or other legal proceeding is in relation
to a financial matter specified in the order.
(2) An administrator on whom the power to bring
and defend actions and other legal proceedings
is conferred is not required to be appointed a
litigation guardian in accordance with rules of
the relevant court or tribunal.
(3) If an administrator undertakes a legal proceeding
in accordance with subsection (1), the costs of the
proceeding are to be paid out of the represented
person's estate.
(4) Despite subsection (3), a court or tribunal may
order that an administrator is personally liable to
pay for any costs of the legal proceeding if the
administrator was negligent or engaged in
misconduct.
(5) A court or tribunal may order that a person who is
or was an administrator be reimbursed from the
represented person's estate for any costs incurred
by the person as an administrator in bringing or
defending an action or other legal proceeding in
accordance with subsection (1).
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52 Other powers that may be specified in
administration order
VCAT may specify in an administration order that
the administrator has any or all of the following
powers in relation to a financial matter specified
in the order--
(a) the power to collect, receive and recover--
(i) income of the represented person; and
(ii) money due or which becomes due to
the represented person; and
(iii) any compensation or damages for
injury to the estate or person of the
represented person;
(b) the power to invest any money in any
security in which a trustee may by law
invest;
(c) the power to demise land at a rent and on
conditions as the administrator thinks fit for
any term not exceeding 5 years or, with the
consent of VCAT, for any longer term;
(d) the power to exercise, to the extent and in
the manner the administrator thinks fit, any
power of leasing vested in the represented
person;
(e) the powers to surrender any lease, accept any
lease, accept the surrender of any lease or
renew any lease;
(f) the power to bring land under the Transfer
of Land Act 1958;
(g) the power to sell, exchange, partition or
convert into money any property;
(h) the power to mortgage or charge any
property;
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(i) the power to pay any debts and settle, adjust
or compromise any demand made by or
against the represented person's estate and
discharge any encumbrance on the
represented person's estate;
(j) the power to carry on, to the extent the
administrator thinks appropriate, any trade,
profession or business which the represented
person carried on;
(k) the power to agree to any alteration of a
condition of any partnership into which
the represented person has entered or to a
dissolution and distribution of the assets of
the partnership;
(l) the power to execute and sign deeds,
instruments and other documents;
(m) the power to complete any contract for the
performance of which the represented person
was liable, or enter into any agreement
terminating liability;
(n) the power to pay a sum for--
(i) the maintenance of the represented
person and, in the event of the
represented person's death, the
represented person's funeral expenses;
and
(ii) the maintenance of the represented
person's spouse or domestic partner
or any child, parent or other person
dependent on the represented person;
and
(iii) the education of any child of the
represented person; and
(iv) the ongoing care of any companion
animal of the represented person;
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(o) the power to pay to the represented person
any amount of money standing to the credit
of the person with the administrator for the
personal use of that person;
(p) the power to give to the represented person
for the personal use of that person any
personal property which is under the control
of the administrator and belongs to the
person;
(q) any other relevant power in relation to a
specified financial matter.
53 Matters for which power cannot be given under an
administration order
Despite anything to the contrary in this Division,
an administration order does not confer on the
person appointed as administrator the power--
(a) to make or revoke a will for the represented
person; or
(b) to make or revoke an enduring power of
attorney for the represented person; or
(c) to vote on the represented person's
behalf in an election for the State or the
Commonwealth or another State or a
Territory of the Commonwealth or in a
local election or a referendum; or
(d) to consent to the entering into, or dissolving
of, a marriage of the represented person or a
sexual relationship of the represented person;
or
(e) to make or give effect to a decision about--
(i) the care and wellbeing of a child of the
represented person; or
(ii) the adoption of a child under the age of
18 years of the represented person; or
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(f) to enter into, or agree to enter into, a
surrogacy arrangement within the meaning
of the Assisted Reproductive Treatment
Act 2008 on the represented person's behalf;
or
(g) to consent to the making or discharge of
a substitute parentage order within the
meaning of the Status of Children Act 1974
on the represented person's behalf; or
(h) to manage the estate of the represented
person on the death of the represented
person; or
(i) to consent to an unlawful act.
54 Powers of administrator cease on death of
represented person
An administration order lapses on the death of
the represented person and the law relating to
the administration of a deceased person's estate
applies accordingly.
Division 7--Duties of administrators
55 Exercise of power by administrator
An administrator--
(a) must act in accordance with the general
principles set out in section 8 and the
decision-making principles set out in
section 9; and
(b) must act as an advocate for the represented
person; and
(c) must encourage and assist the represented
person to develop the person's decision-
making capacity in relation to financial
matters; and
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(d) must act in such a way so to protect the
represented person from neglect, abuse or
exploitation; and
(e) must act honestly, diligently and in good
faith; and
(f) must exercise reasonable skill and care; and
(g) must not use the position for profit unless
permitted under section 175 or otherwise
authorised by law; and
(h) must avoid acting if there is or may be a
conflict of interest unless so authorised under
this Act, by order of VCAT or otherwise by
law; and
(i) must not disclose confidential information
gained as an administrator unless authorised
to do so under the administration order or by
law.
56 Property of represented person
Subject to, and in accordance with, this Act and
the administration order, the administrator must--
(a) take possession and care of, recover, collect,
preserve and administer, the property and
estate of the represented person; and
(b) generally manage the property and financial
affairs of the represented person.
57 Conflict transactions
(1) Subject to section 58, an administrator must
not enter into a transaction in the capacity of
administrator if the transaction is one in which
there is, or may be, a conflict between--
(a) the duty of the administrator to the
represented person; and
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(b) the interests of the administrator, or of a
relative, business associate or close friend
of the administrator.
(2) Subsection (1) does not apply to--
(a) a gift made in accordance with section 47; or
(b) a transaction providing for the maintenance
of a dependant of the represented person
made in accordance with section 52(n); or
(c) a transaction merely because in the
transaction, the administrator (in the
administrator's own right and on behalf
of the represented person)--
(i) deals with an interest in property held
jointly by the administrator and the
represented person (whether as joint
tenants or tenants in common); or
(ii) obtains a loan or gives a guarantee or
indemnity in respect of a transaction
referred to in subparagraph (i).
58 Permitted conflict transactions
(1) An administrator may enter into a transaction
prohibited by section 57(1) if VCAT authorises
the administrator at or before the time of the
transaction to enter into--
(a) the transaction; or
(b) a transaction of a similar nature; or
(c) any transaction prohibited by section 57(1).
(2) VCAT may validate a transaction prohibited
under section 57(1).
(3) A transaction validated under subsection (2) is
taken to be valid from the time it was entered into.
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59 Keeping records
An administrator must keep accurate records and
accounts of all dealings and transactions made
by the administrator in relation to the financial
matters specified in the administration order.
60 Separation of administrator's property and the
represented person's property
(1) An administrator must keep the administrator's
property separate from the represented person's
property.
(2) Subsection (1) does not apply to property owned
jointly by the administrator and the represented
person.
(3) Subsection (1) does not affect any other obligation
imposed by law.
61 Accounts
(1) VCAT may, at the time it appoints an
administrator, or at any later time, appoint a
person to examine or audit the accounts of all
dealings and transactions relating to the financial
matters specified in the administration order for a
fee approved by VCAT and paid from the
represented person's estate.
(2) Unless VCAT otherwise directs, on, or as soon
as practicable after, the anniversary in each year
of the appointment of the administrator, the
administrator must lodge with VCAT an account
of the dealings and transactions relating to the
financial matters specified in the administration
order during the previous 12 months.
(3) Despite subsection (2), VCAT may require an
administrator to lodge accounts at a time other
than the time specified in that subsection.
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(4) An account lodged under subsection (2) or (3)
must--
(a) provide a full and true account of--
(i) the assets and liabilities of the
represented person in relation to the
financial matters specified in the
administration order; and
(ii) all receipts and disbursements in
relation to those financial matters made
during the previous 12 months; and
(b) include details of any gift made by the
administrator of the represented person's
property with a total value of or over the
prescribed amount (or, if an amount is not
prescribed, of or over $100) to--
(i) the administrator; or
(ii) a relative or close friend of the
administrator; or
(iii) an organisation with which the
administrator has a connection.
(5) A person appointed under subsection (1) to
examine or audit the accounts--
(a) must lodge with VCAT a report in relation to
the accounts examined or audited; and
(b) may recommend in the report the
disallowance of any item in the accounts.
(6) VCAT must not make an order disallowing an
item referred to in subsection (5) if VCAT is
satisfied that the administrator acted in good
faith and with reasonable care in the exercise
of powers conferred on the administrator.
(7) If VCAT makes an order disallowing an item
referred to in subsection (5), the administrator
is liable for the amount of the item disallowed.
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62 Payments to person examining or auditing accounts
(1) An administrator must pay to a person appointed
under section 61(1) an amount certified by that
person as being the reasonable cost of examining
or auditing the accounts referred to in that section.
(2) On the application by the administrator, and with
the consent of the person appointed under section
61(1) to examine or audit the accounts, VCAT
may waive payment of the whole or part of the
amount required to be paid under subsection (1).
63 Administrator to report death of represented person
If an administrator is advised of the death of a
represented person for whom the administrator is
appointed, the administrator must report the death
in writing to VCAT as soon as practicable.
Division 8--Other matters pertaining
to administration orders
64 Administrator may seek advice from VCAT
(1) An administrator may apply to VCAT for
advice on any matter relating to the scope of
the administration order or the exercise of any
power under the order.
(2) Without limiting subsection (1), the jurisdiction
of VCAT includes jurisdiction in the case of an
administration by State Trustees to approve, order
or advise the commencement of a proceeding by
State Trustees acting in one capacity or on behalf
of one represented person against State Trustees
acting in another capacity or on behalf of another
represented person.
(3) After considering an application for advice, or on
its own initiative, VCAT may--
(a) approve or disapprove of any act proposed to
be done by the administrator; and
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(b) give advice as it considers appropriate; and
(c) make any order it considers necessary.
(4) An action does not lie against an administrator on
account of an act or thing done or omitted to be
done by the administrator under any order or on
the advice of VCAT made or given under this
section unless, in representing the facts to VCAT,
the administrator is guilty of fraud, wilful
concealment or misrepresentation.
65 Administrator may seek advice from professional
adviser
(1) An administrator may seek advice from a
professional adviser about the financial matters
specified in the administration order.
(2) An administrator is entitled to be reimbursed from
the represented person's estate for any costs paid
by the administrator in the course of obtaining
professional advice.
(3) In this section--
professional adviser means a person
who provides professional advice to
administrators and includes a financial
adviser, a legal practitioner and an
accountant.
66 VCAT may open will
VCAT may open and read any paper or writing
that is a will, a revoked will, a purported will or
a copy of a will of--
(a) a represented person who does not have
testamentary capacity; or
(b) a deceased person who, immediately before
the person died, was a represented person.
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67 VCAT may compel production of will
VCAT may make an order compelling a person
who has possession or control of a will, a revoked
will or a purported will of a represented person
who does not have testamentary capacity to
produce that document to VCAT--
(a) for the purposes of section 66 or 68; or
(b) on the application of an administrator.
68 VCAT may make copy of will available to
administrator
VCAT may make available to an administrator a
full or redacted copy of a will, a revoked will or a
purported will of the represented person if VCAT
is satisfied that the represented person does not
have testamentary capacity.
69 VCAT to notify administrator if person ceases to be
a represented person
(1) If VCAT knows that a person has ceased to be a
represented person or has died, VCAT must give
notice of that fact to the administrator as soon as
practicable.
(2) An administrator may exercise all or any of
the powers given to the administrator by the
administration order until the administrator
knows that the represented person has ceased
to be a represented person or has died.
70 Actions of administrator taken to be actions of
former represented person
On and after VCAT gives notice to an
administrator under section 69(1), the former
represented person or that person's personal
representative (as the case requires) is bound
by, and may take advantage of, any act done
on behalf of the represented person by the
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administrator within the powers conferred on the
administrator by VCAT as if--
(a) the act had been done by the represented
person; and
(b) the represented person had decision-making
capacity to do the act.
71 Administrator to pay to former represented person
any money outstanding
(1) If an administrator receives a notice under
section 69 or is otherwise advised that a person
has ceased to be a represented person or has died,
the administrator must--
(a) pay or cause to be paid to the person or to the
person's personal representative (as the case
requires) all money standing to the person's
credit with the administrator; and
(b) deliver to the person or to the person's
personal representative (as the case requires)
all property of the person that is in the
custody of the administrator and, subject to
an order under section 73, any documents
relating to that property.
(2) Any payment made under subsection (1) and
any property delivered under that subsection is
subject to the satisfaction of any amount due
to the administrator and all costs, expenses and
liabilities incurred by the administrator in relation
to the dealings and transactions made for the
financial matters specified in the administration
order.
(3) The receipt by a person who has ceased to be a
represented person or by that person's personal
representative is an absolute discharge to an
administrator despite any informality in the
discharge or certification.
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72 Former represented person entitled to inspection of
accounts
Subject to an order under section 73, a person
who has ceased to be a represented person (or the
personal representative of such a person), before
or after obtaining the restoration of all or any part
of the person's money or other property from the
administrator--
(a) may examine and inspect, or cause a legal
practitioner or other authorised agent to
examine and inspect, all books, accounts,
notices and other documents in the custody
of the administrator relating to the dealings
and transactions made for the financial
matters specified in the administration order
and make or cause to be made copies of, or
extracts from, these items; and
(b) must be provided with--
(i) copies of or extracts from any book,
account, notice or document relating
to the dealings and transactions made
for the financial matters specified in
the administration order by the
administrator; and
(ii) information relating to the dealings
and transactions made for the financial
matters specified in the administration
order by the administrator that is
reasonable to request and that can be
given by the administrator.
73 VCAT order that delivery of, or access to,
documents be withheld
(1) An administrator may apply to VCAT for an
order that a book, account, notice or other
document (or any part of such book, account,
notice or other document) in the custody of the
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administrator relating to the property or financial
affairs of a former represented person be withheld
from the person specified in the order or a person
belonging to a class of person specified in the
order.
(2) VCAT may make an order referred to in
subsection (1) if VCAT is satisfied that--
(a) it is in the interests of the former represented
person that the information, or part of the
information, contained in the book, account,
notice or other document remain
confidential; or
(b) the book, account, notice or other document
contains confidential information about
another person.
74 Sale of personal effects if unclaimed within 2 years
after person ceases to be represented person
(1) After public notice, an administrator may sell any
personal effect of a former represented person
that--
(a) is in the administrator's possession; and
(b) is not claimed within 2 years after the date
on which the person ceased to be a
represented person.
(2) The proceeds of a sale referred to in subsection (1)
are to be paid into the Consolidated Fund.
75 Restriction on powers of represented person in
relation to financial matters
(1) Without an order of VCAT or the written consent
of the administrator, to the extent that a financial
matter in relation to a represented person is
subject to an administration order, the represented
person is taken not to have decision-making
capacity in relation to--
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(a) dealing with, transferring, alienating or
charging the represented person's money
or other property, in whole or in part; or
(b) becoming liable under a contract.
(2) Any dealing, transfer, alienation or charge by a
represented person in relation to a financial matter
that is subject to an administration order is void
and of no effect, and the money or other property
that is the subject of the dealing, transfer,
alienation or charge is recoverable by the
administrator in any court of competent
jurisdiction.
(3) This section does not render invalid any dealing,
transfer, alienation or charge by a represented
person if--
(a) the dealing, transfer, alienation or charge
was made for adequate consideration with
or to or in favour of another person; and
(b) the other person proves that the other person
acted in good faith and did not know or
could not reasonably have known that the
represented person was a represented person.
(4) For the purpose of this section, the acceptance of
payment of the whole or a part of a debt is taken
to be a dealing with property.
76 Interest of represented person in property not to be
altered by sale or other disposition of property
(1) A represented person (irrespective of whether
the represented person has testamentary capacity)
and a beneficiary of a represented person have
the same interest in any money or other property
arising from or received in respect of any sale,
mortgage, exchange, partition or other disposition
under the powers conferred on an administrator
by an administration order which have not been
applied under those powers that the represented
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person or beneficiary would have had in the
property the subject of the sale, mortgage,
exchange, partition or disposition if no sale,
mortgage, exchange, partition or disposition
had been made.
(2) For the purposes of this section, money arising
from the compulsory acquisition or purchase
under any Act of property of a represented
person is taken to be money arising from the sale
of that property under the powers conferred on
an administrator under an administration order.
(3) An administrator is not required to keep the
proceeds of the sale or other disposition of
property under this section separate from the
represented person's other assets.
(4) Money received by an administrator under this
section may be invested in any manner in which
trust funds may be invested under the Trustee
Act 1958.
(5) In this section, beneficiary of a represented
person means--
(a) a beneficiary under the will of a represented
person; or
(b) a represented person's executor; or
(c) a represented person's administrator under
the Administration and Probate Act 1958.
77 Guardianship and Administration Fund
(1) The account known as "The Guardianship and
Administration Fund" that was established in
the Public Account under section 58AA of the
Guardianship and Administration Act 1986
continues in existence.
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(2) The following must be paid into the Guardianship
and Administration Fund--
(a) any annual fee prescribed under
section 194(1)(b) that is paid in relation
to an estate of a represented person;
(b) interest received from the investment of
money in the Fund.
(3) Money standing to the credit of the Guardianship
and Administration Fund may be invested in any
manner in which trust funds may be invested
under the Trustee Act 1958.
(4) The Guardianship and Administration Fund is to
be used to meet the costs and expenses of VCAT
in relation to proceedings under this Act.
78 Application to VCAT by represented person or a
person interested
(1) A represented person or a person interested as a
creditor, beneficiary, next of kin, guardian, nearest
relative, primary carer or the Public Advocate or
otherwise in a financial matter specified in the
administration order may apply to VCAT on any
matter arising out of any dealing or transaction in
relation to that financial matter.
(2) VCAT may make any order in relation to the
application which VCAT considers appropriate.
(3) In this section--
next of kin, in relation to a represented person,
means any person who would be entitled to
the property of the represented person or to
any share of the property under any law for
the distribution of the property of intestates
if the represented person had died intestate.
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Part 4--Supportive guardianship orders
and supportive administration orders
Division 1--Application for supportive
guardianship orders and supportive
administration orders
79 Application for supportive guardianship order
A person may apply to VCAT for a supportive
guardianship order that appoints a supportive
guardian for a person with a disability who is--
(a) of or over 18 years of age; or
(b) under 18 years of age but the order takes
effect on that person attaining 18 years of
age.
80 Application for supportive administration order
(1) A person may apply to VCAT for a supportive
administration order that appoints a supportive
administrator for a person with a disability who
is--
(a) of or over 18 years of age; or
(b) under 18 years of age but the order takes
effect on that person attaining 18 years of
age.
(2) Subject to subsection (1), if the person in relation
to whom a supportive administration order is
sought does not reside in Victoria but the person's
property is partly or wholly in Victoria, an
application may be made for an order appointing a
supportive administrator for the person in relation
to that part of the property that is in Victoria.
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81 Matters to be included in application to VCAT
A person applying to VCAT for a supportive
guardianship order or supportive administration
order must include the following in the
application--
(a) the name and contact details of the proposed
supported person;
(b) the type of order applied for, including
details of the personal matters or financial
matters in relation to which the order is
sought;
(c) details of the reasons for making the
application;
(d) the name and contact details of the person
proposed as supportive guardian or
supportive administrator;
(e) the name and contact details of the applicant
and of any person who has a direct interest in
the application (if known to the applicant);
Note
Persons having a direct interest includes, amongst
others, the proposed supported person's relatives, any
primary carer, close friends, any attorney appointed
under an enduring power of attorney and any
supportive attorney appointed under the Powers of
Attorney Act 2014.
(f) any support needs of the proposed supported
person including support provided to the
proposed supported person by any
companion animal of the proposed supported
person.
Note
Section 67 of the VCAT Act sets out additional requirements in
relation to making an application.
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82 Who are the parties to a proceeding on an
application?
The following persons are parties to a proceeding
on an application under this Division--
(a) the applicant;
(b) the proposed supported person;
(c) the person proposed as supportive guardian
or supportive administrator, as the case
requires;
(d) any other person VCAT orders to be joined
as a party to the proceeding.
Note
Section 60 of the VCAT Act provides that VCAT
may in certain circumstances order that a person be
joined as a party to a proceeding.
83 Who is entitled to notice of an application, the
hearing and any order made in the proceeding?
For the purposes of sections 72(1), 99(1)
and 116(2) of the VCAT Act, the following
persons are entitled to a notice referred to in
each of those provisions--
(a) any party to a proceeding on an application
under this Part;
(b) the spouse or domestic partner of the
proposed supported person, if any;
(c) the primary carer of the proposed supported
person, if any;
(d) any person referred to in the application as
having a direct interest in the application;
(e) any other person VCAT directs be given
notice.
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Note
Section 72(1) of the VCAT Act provides that an applicant for a
VCAT order must serve a copy of the application on each party,
each other person entitled to notice of the application under the
enabling enactment (which is this Act) and each other person
that VCAT so directs. Section 99(1)(b) of the VCAT Act provides
that the principal registrar of VCAT must give notice of the time
and place for the hearing of a proceeding to a person entitled to
notice of the proceeding or hearing under the enabling enactment.
Section 116(2)(a) of the VCAT Act provides that VCAT must
give a copy of any order it makes in a proceeding to each party
and each other person entitled to notice of the proceeding or of
the order under the enabling enactment.
84 Contents of notice of application
(1) A notice of an application given to a party to the
application must include the following--
(a) a copy of the application and any
information filed in support of the
application, subject to clause 37A of
Part 9 of Schedule 1 to the VCAT Act;
Note
Clause 37A of Part 9 of Schedule 1 to the VCAT Act
provides that a person may make an application to
the principal registrar of VCAT that any documents
lodged in relation to a proceeding under this Act not
be disclosed to a specified person or class of persons.
(b) the names of--
(i) the parties to the proceeding; and
(ii) the other persons entitled to the notice
under section 83;
(c) information about the rights of the party in
relation to the application.
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(2) A notice of an application given to a person
referred to in section 83 who is not a party to
the application must include the following--
(a) a copy of the application;
(b) the names of--
(i) the parties to the proceeding; and
(ii) the other persons entitled to the notice
under section 83;
(c) information about the rights of the person to
seek information about the application;
(d) information about how to apply to VCAT to
be made a party to the proceeding.
85 Date for hearing of application for supportive
guardianship order or supportive administration
order
VCAT must commence to hear an application
made under this Division within 30 days after
the day on which the application is received by
VCAT unless VCAT or the principal registrar
under Division 5 of Part 4 of the VCAT Act--
(a) requires the parties to attend a compulsory
conference in relation to the application; or
(b) refers the proceeding in relation to the
application, or any part of it, for mediation.
86 Participation of proposed supported person at
hearing
The proposed supported person must attend in
person a hearing conducted by VCAT in relation
to an application made under this Division unless
VCAT is satisfied that--
(a) the proposed supported person does not wish
to attend the hearing in person; or
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(b) the personal attendance of the proposed
supported person at the hearing is
impracticable or unreasonable, despite
any arrangement that VCAT may make.
Note
See section 100(1) of the VCAT Act which provides that if VCAT
thinks it appropriate, it may conduct all or part of a proceeding by
means of a conference conducted using telephones, video links or
any other system of telecommunication.
Division 2--Making supportive guardianship
orders and supportive administration orders
and eligibility of persons appointed
87 VCAT may make a supportive guardianship order
or supportive administration order
(1) Subject to this Division, VCAT may make a
supportive guardianship order or supportive
administration order after considering--
(a) an application under Division 1; or
(b) an application for a guardianship order
or an administration order for a proposed
represented person.
(2) VCAT may only make an order appointing a
supportive guardian or a supportive administrator
for a proposed supported person if VCAT is
satisfied that--
(a) the person consents to VCAT making the
order; and
(b) if the person is given practicable and
appropriate support, the person will have
decision-making capacity in relation to the
personal matter or financial matter in relation
to which the supportive guardianship order
or supportive administration order may be
made; and
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(c) the supportive guardianship order or
supportive administration order, as the case
requires, will promote the person's personal
and social wellbeing.
88 Persons eligible as supportive guardians or
supportive administrators
(1) VCAT may appoint as a supportive guardian or
supportive administrator, as the case requires, any
individual who is of or over 18 years of age and
who consents to act as supportive guardian or
supportive administrator if VCAT is satisfied that
the individual--
(a) will act in accordance with the duties and
obligations set out in section 94; and
(b) is a suitable person to act as the supportive
guardian or supportive administrator for the
proposed supported person.
(2) In determining whether a person is a suitable
person to act as a supportive guardian or
supportive administrator for a proposed supported
person, VCAT must take into account the
following--
(a) the will and preferences of the proposed
supported person (so far as they can be
ascertained);
(b) the desirability of preserving existing family
relationships and other relationships that are
important to the proposed supported person;
(c) the nature of the relationship between the
person and the proposed supported person,
in particular whether the relationship is
characterised by trust;
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(d) whether the person will be available to
the proposed supported person and able to
meet and communicate with the proposed
supported person;
(e) the capacity of the person to recognise and
give due regard to the importance of the
relationship the proposed supported person
has with any companion animal of the
proposed supported person.
89 Matters to be specified in supportive guardianship
orders and supportive administration orders
A supportive guardianship order or supportive
administration order must specify the following--
(a) the name of the supported person;
(b) the name of the supportive guardian or
supportive administrator, as the case
requires;
(c) in the case of a supportive guardianship
order, the personal matters in relation to
which the supportive guardian has powers;
(d) in the case of a supportive administration
order, the financial matters in relation to
which the supportive administrator has
powers;
(e) any power referred to in Division 3 that
VCAT confers on the supportive guardian
or supportive administrator;
Note
Sections 91, 92 and 93 provide for powers which may
be specified in a supportive guardianship order or
supportive administration order.
(f) any restrictions on the supportive guardian's
or supportive administrator's exercise of
powers.
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Division 3--Powers and duties of supportive
guardians and supportive administrators
90 Powers of supportive guardians or supportive
administrators
(1) A supportive guardianship order or supportive
administration order confers on the person
appointed as supportive guardian or supportive
administrator, as the case requires, one or more
of the following powers listed in this subsection
and specified in the order--
(a) a power to access, collect or obtain
information, or to assist the supported person
to access, collect or obtain information, in
accordance with section 91;
(b) a power to communicate certain information
about the supported person with others, in
accordance with section 92(a);
(c) a power to communicate decisions made
by the supported person, or to assist the
supported person in communicating these
decisions in accordance with section 92(b);
(d) a power to take any reasonable action or do
anything that is reasonably necessary to give
effect to certain decisions in accordance with
section 93(1).
(2) For the purposes of subsection (1), VCAT
may only specify a power if VCAT is satisfied
that the power will ensure that the supportive
guardian or supportive administrator can give
practicable and appropriate support to the
supported person to enable that person to have
decision-making capacity in relation to the
relevant personal matters or financial matters.
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91 Information power
(1) VCAT may specify in a supportive guardianship
order or in a supportive administration order
that the supportive guardian or supportive
administrator, as the case requires, has power to
access, collect or obtain from any person, or assist
the supported person to access, collect or obtain
from any person, any personal information about
the supported person that--
(a) is relevant to a supported decision; and
(b) may lawfully be collected or obtained by
the supported person.
(2) For the purposes of subsection (1), a person
referred to in that subsection is authorised to
disclose personal information about the supported
person to the supportive guardian or supportive
administrator, as the case requires.
Note
See also the Disability Act 2006, the Health Records
Act 2001 and the Privacy and Data Protection Act 2014
for provisions as to disclosure of personal information to
supportive guardians and supportive administrators and
access to personal information by supportive guardians
and supportive administrators.
(3) A supportive guardian or supportive
administrator, as the case requires, may
disclose any information given under
subsection (1) for the purpose of--
(a) anything that is relevant and necessary
to the supportive guardian or supportive
administrator carrying out that role; or
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(b) any legal proceeding under this Act, or
any report of a legal proceeding under
this Act; or
(c) any other lawful reason.
92 Communication power
VCAT may specify in a supportive guardianship
order or in a supportive administration order
that the supportive guardian or supportive
administrator, as the case requires, has power--
(a) to communicate any information about
the supported person that is relevant to
or necessary for the making of or giving
effect to a supported decision; or
(b) to communicate or assist the supported
person to communicate a supported decision
of the supported person.
93 Power to give effect to decisions
(1) VCAT may specify in a supportive guardianship
order or supportive administration order that the
supportive guardian or supportive administrator,
as the case requires, has power to take any
reasonable action or do anything that is reasonably
necessary to give effect to a supported decision,
other than a decision about a significant financial
transaction.
(2) In this section, significant financial transaction
includes--
(a) making an investment for the supported
person or continuing an investment of the
supported person, including taking up rights
to issues of new shares or options for new
shares to which the supported person
becomes entitled by the supported person's
existing shareholding; or
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(b) undertaking any real estate transaction for
the supported person, excluding entering into
a residential tenancy for a premises in which
the supported person lives or intends to live;
or
(c) dealing with land on behalf of the supported
person, including taking out a loan on behalf
of the supported person or giving a guarantee
on behalf of the supported person; or
(d) undertaking a transaction for the supported
person involving the use of the supported
person's property as security for an
obligation; or
(e) buying and selling substantial personal
property on behalf of the supported person.
(3) For the purpose of the definition of significant
financial transaction in subsection (2),
paragraph (a) does not include investing or
continuing an investment of an amount of
$10 000 or less in total in one or more
interest-bearing accounts of an ADI.
94 Duties and obligations of supportive guardians and
supportive administrators
A supportive guardian under a supportive
guardianship order or a supportive administrator
under a supportive administration order--
(a) must act in accordance with the general
principles set out in section 8; and
(b) must act honestly, diligently and in good
faith; and
(c) must exercise reasonable skill and care; and
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(d) must not use the position for profit; and
(e) must avoid acting when there is or may be a
conflict of interest and, if acting when there
is a conflict of interest, must ensure that the
interests of the supported person are the
primary consideration; and
(f) must discuss anything relating to a supported
decision with the supported person in a way
that the supported person can understand and
that will assist the supported person to make
the decision; and
(g) must not assist the supported person, in the
role of supportive guardian or supportive
administrator (as the case requires), to
conduct any illegal activity; and
(h) must not coerce, intimidate or in any way
unduly influence the supported person into
a particular course of action.
Division 4--General
95 No entitlement to remuneration
A supportive guardian or supportive administrator
is not entitled to receive any remuneration for
acting in that role.
96 When does a supportive guardianship order or
supportive administration order cease to have
effect?
(1) A supportive guardianship order or supportive
administration order ceases to have effect to the
extent that it is inconsistent with any subsequent
guardianship order or administration order.
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(2) VCAT may modify a supportive guardianship
order or supportive administration order--
(a) if a subsequent guardianship order or
administration order is made for the
supported person; or
(b) under Part 7.
97 Advice from VCAT
(1) A supportive guardian may apply to VCAT for
advice on any matter relating to the scope of the
supportive guardianship order or the exercise of
any power by the supportive guardian under the
supportive guardianship order.
(2) A supportive administrator may apply to VCAT
for advice on any matter relating to the scope of
the supportive administration order or the exercise
of any power by the supportive administrator
under the supportive administration order.
(3) After considering an application for advice, or on
its own initiative, VCAT may--
(a) approve or disapprove of any act proposed
to be done by the supportive guardian or
supportive administrator; and
(b) give such advice as it considers appropriate;
and
(c) make any order it considers necessary.
(4) An action does not lie against a supportive
guardian or supportive administrator on account
of an act or thing done or omitted by the
supportive guardian or supportive administrator
under any order or on the advice of VCAT made
or given under this section unless, in representing
the facts to VCAT, the supportive guardian or
supportive administrator has been guilty of fraud,
wilful concealment or misrepresentation.
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98 Supportive guardian or supportive administrator
to report death of supported person
If a supportive guardian or supportive
administrator is advised of the death of a
supported person for whom the supportive
guardian or supportive administrator is
appointed, the supportive guardian or
supportive administrator must report the
death in writing to VCAT as soon as
practicable.
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Part 5--Administration
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Division 1--Application for administration
(missing person) orders
99 Application for administration (missing person)
orders
A person may apply to VCAT for an
administration (missing person) order that
appoints an administrator in relation to a
financial matter for a missing person who
is of or over 18 years of age.
100 Matters to be included in application to VCAT
A person applying to VCAT for an administration
(missing person) order must include the following
in the application--
(a) the name of the missing person;
(b) details of the reasons for making the
application;
(c) the name and contact details of any person
proposed as administrator;
(d) the name and contact details of the applicant
and of any person who has a direct interest in
the application (if known to the applicant).
Note
Persons having a direct interest includes, amongst
others, the missing person's relatives, any primary
carer, close friends, any attorney appointed under
an enduring power of attorney and any supportive
attorney appointed under the Powers of Attorney
Act 2014.
Note
Section 67 of the VCAT Act sets out additional requirements in
relation to making an application.
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101 Who are the parties to a proceeding on an
application?
The following persons are parties to a proceeding
on an application for an administration (missing
person) order--
(a) the applicant;
(b) the missing person;
(c) the person proposed as administrator;
(d) any other person VCAT orders to be joined
as a party to the proceeding.
Note
Section 60 of the VCAT Act provides that VCAT
may in certain circumstances order that a person be
joined as a party to a proceeding.
102 Who is entitled to notice of an application, the
hearing and any order made in the proceeding?
For the purposes of sections 72(1), 99(1)
and 116(2) of the VCAT Act, the following
persons are entitled to a notice referred to in
each of those sections--
(a) any party to a proceeding on an application
under this Part;
(b) the spouse or domestic partner of the missing
person, if any;
(c) the primary carer of the missing person, if
any;
(d) any person referred to in the application as
having a direct interest in the application;
(e) any other person VCAT directs be given
notice.
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Note
Section 72(1) of the VCAT Act provides that an applicant for a
VCAT order must serve a copy of the application on each party,
each other person entitled to notice of the application under the
enabling enactment (which is this Act) and each other person
that VCAT so directs. Section 99(1)(b) of the VCAT Act provides
that the principal registrar of VCAT must give notice of the time
and place for the hearing of a proceeding to a person entitled to
notice of the proceeding or hearing under the enabling enactment.
Section 116(2)(a) of the VCAT Act provides that VCAT must give
a copy of any order it makes in a proceeding to each party and
each other person entitled to notice of the proceeding or of the
order under the enabling enactment.
103 Contents of notice of application
(1) A notice of an application given to a party to the
application must include the following--
(a) a copy of the application and any
information filed in support of the
application, subject to clause 37A of
Part 9 of Schedule 1 to the VCAT Act;
Note
Clause 37A of Part 9 of Schedule 1 to the VCAT Act
provides that a person may make an application to
the principal registrar of VCAT that any documents
lodged in relation to a proceeding under this Act not
be disclosed to a specified person or class of persons.
(b) the names of--
(i) the parties to the proceeding on an
application under section 101; and
(ii) the other persons entitled to the notice
under section 102;
(c) information about the rights of the party in
relation to the application.
(2) A notice of an application given to a person
referred to in section 102 who is not a party to
the application must include the following--
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(a) a copy of the application;
(b) the names of--
(i) the parties to the proceeding; and
(ii) the other persons entitled to the notice
under section 102;
(c) information about the rights of the person to
seek information about the application;
(d) information about how to apply to VCAT to
be made a party to the proceeding on the
application.
104 Date for hearing of application for administration
(missing person) order
VCAT must commence to hear an application for
an administration (missing person) order within
30 days after the day on which the application is
received by VCAT unless VCAT or the principal
registrar under Division 5 of Part 4 of the VCAT
Act--
(a) requires the parties to attend a compulsory
conference in relation to the application; or
(b) refers the proceeding in relation to the
application, or any part of it, for mediation.
Division 2--Making administration
(missing person) orders and eligibility
of persons appointed
105 VCAT may make administration (missing person)
order
(1) After considering an application for an
administration (missing person) order, VCAT
may--
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(a) subject to subsection (2), make an
administration (missing person) order; or
Note
See sections 106 and 109 in relation to administration
(missing person) orders that are urgent orders.
(b) make no order under this Act.
(2) VCAT may only make an administration
(missing person) order if VCAT--
(a) has determined under subsection (3) that
the person is a missing person who usually
resides in Victoria; and
(b) is satisfied that--
(i) while the person is missing there is, or
is likely to be, a need for a decision to
be made in relation to the person's
financial matters including the ongoing
care of any companion animal of the
person; and
(ii) the order would promote the missing
person's personal and social wellbeing
while that person is missing.
(3) VCAT may determine that a person is a missing
person for the purposes of this Act if VCAT is
satisfied that--
(a) it is not known whether the person is alive;
and
(b) reasonable efforts have been made to find the
person; and
(c) for at least 90 days, the person has not
contacted--
(i) anyone who lives at the person's
last-known home address; or
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(ii) any relative or friend of the person
with whom the person is likely to
communicate.
(4) VCAT must not make an order under subsection
(1)(a) in relation to the property of a missing
person if the property is subject to--
(a) an order under section 24A of the
Administration and Probate
Act 1958; or
(b) an application for an order under
section 24A of the Administration
and Probate Act 1958.
Note
Section 24A of the Administration and Probate Act 1958
enables a trustee company to apply to the Supreme Court
for an order authorising the trustee company to do any act,
matter or thing in relation to the property or affairs of the
owner of property in Victoria in circumstances where
among other things the owner cannot be found or it is not
known whether the owner is alive or dead.
106 Duration of order
(1) An administration (missing person) order that
is not an urgent order is in force for the period
specified in the order, being a period not
exceeding 2 years.
(2) An administration (missing person) order that is
an urgent order is in force for the period specified
in the order, being a period not exceeding 21 days.
Note
Section 109 provides that a hearing must be held after an
urgent administration (missing person) order is made.
(3) If VCAT is satisfied that the matters referred
to in section 105(2) continue to apply, on the
application of the administrator, VCAT may
renew--
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(a) an administration (missing person) order
that is not an urgent order once for a further
period not exceeding 2 years specified in the
order; and
(b) an administration (missing person) order that
is an urgent order once for a further period
not exceeding 21 days specified in the order.
(4) Nothing in this section prevents a person applying
for a new administration (missing person) order if
the previous order has expired.
Note
A person may apply at any time for a reassessment of an
order under Part 7.
107 Persons eligible as administrators for missing
persons
(1) VCAT may appoint as an administrator for a
missing person a person (being an individual
or a body corporate) which, in the case of an
individual, is of or over the age of 18 years
who consents to act as administrator if VCAT
is satisfied that the person--
(a) will act in accordance with the duties set
out in Division 4; and
(b) is not in a position where the person's
interests conflict, or may conflict, with
the interests of the missing person; and
(c) is a suitable person to act as the
administrator for the missing person; and
(d) has sufficient expertise to make decisions
about any financial matter to be specified in
the administration (missing person) order.
(2) In determining whether a person is suitable to act
as the administrator for a missing person, VCAT
must take into account the following--
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(a) the will and preferences of the missing
person (so far as they can be ascertained);
(b) the desirability of preserving existing
relationships that are important to the
missing person;
(c) the desirability of appointing a person who
is a relative of the missing person, or who
has a personal relationship with the missing
person, rather than appointing a person with
no such relationship;
(d) whether the person proposed as administrator
is or was a member of VCAT as constituted
for a proceeding under this Act.
(3) VCAT may appoint as an administrator a person
who was at any time a member of VCAT as
constituted for a proceeding under this Act if
VCAT considers that in the circumstances it is
appropriate for the person to act as an
administrator.
(4) VCAT must not assume without any evidence
that a missing person's relative who is proposed
as administrator--
(a) has interests that conflict, or may conflict,
with those of the missing person merely
because the proposed administrator is a
relative of the missing person; or
(b) is not suitable to be appointed as the
administrator merely because that relative
disagrees with another relative of the missing
person about a matter pertaining to the
missing person.
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108 Matters to be specified in administration
(missing person) orders
An administration (missing person) order must
specify the following--
(a) the name of the missing person;
(b) the name of the administrator;
(c) the financial matters in relation to which
the administrator has powers;
(d) any other power referred to in Division 3
that VCAT specifically confers on the
administrator;
(e) any restrictions on the administrator's
exercise of powers referred to in
paragraph (c) or (d);
(f) whether the order is an urgent order.
109 Urgent administration (missing person) orders
(1) VCAT may waive any of the requirements set
out in section 100, 102 or 103 and make an
urgent administration (missing person) order
under section 105 if VCAT is satisfied on
reasonable grounds that there is an immediate
risk of harm to the property of a missing person
if the order were not made.
(2) As soon as practicable after making an
administration (missing person) order that is
an urgent order (but within 42 days after
making such an order) VCAT must hold a
hearing to determine whether an administration
(missing person) order that is not an urgent order
should be made.
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Division 3--Powers of administrators
for missing persons
110 Powers of administrators for missing persons
(1) An administration (missing person) order confers
on the person appointed as administrator--
(a) a power to make decisions about the
financial matters in relation to the missing
person specified in the order; and
(b) a power of investment in accordance with
section 111; and
(c) a power to open the will of the missing
person in accordance with section 112; and
(d) any other power that is specified in the order;
and
Note
Sections 113 and 114 provide for powers which may
be specified in an administration (missing person)
order.
(e) a power to sign and do any thing that is
necessary to give effect to any power or
duty vested in the administrator; and
(f) a power to do all matters necessary or
incidental to the performance of any
power conferred on the administrator.
(2) For the purposes of subsection (1)(d), VCAT may
only specify a power if VCAT is satisfied that the
power is necessary or desirable for the purposes of
promoting the personal and social wellbeing of the
missing person.
(3) Subject to, and in accordance with, this Act and
the administration (missing person) order, an
administrator may do all acts and exercise all
powers in relation to the financial matters
specified in the order in the name, and on behalf,
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of the missing person as effectually and in the
same manner as the missing person may have
done if the missing person were not missing and
had the relevant decision-making capacity.
(4) A decision made, action taken, consent given
or thing done by an administrator under a
administration (missing person) order has effect
as if it were made, taken, given or done by the
missing person and the missing person were not
missing and had the decision-making capacity
for the matter in relation to which the order was
made.
111 Powers of investment
Except as provided in section 136 or in any order
of VCAT, an administrator--
(a) in the case of investments of the missing
person, may continue those investments in
the manner in which they were invested by
the missing person for such period as the
administrator thinks fit, including taking up
rights to issues of new shares and options;
and
(b) in the case of money deposited in an
ADI, may re-deposit it after it becomes
payable; and
(c) in the case of property, has, and may,
exercise the same powers as the
administrator would have if the
administrator were a trustee in relation to
that property under the Trustee Act 1958.
112 Power to open will
An administrator may open and read without an
order of VCAT any paper or writing deposited
with the administrator that is a will, a revoked
will, a purported will or a copy of a will of the
missing person.
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113 Power to undertake legal proceedings
(1) VCAT may specify in an administration
(missing person) order that the administrator
has power to bring and defend an action or
other legal proceeding in the name, and on
behalf, of the missing person if the action or
other legal proceeding is in relation to a
financial matter specified in the order.
(2) An administrator on whom the power to bring
and defend actions and other legal proceedings
is conferred is not required to be appointed a
litigation guardian in accordance with rules of
the relevant court or tribunal.
(3) If an administrator undertakes a legal proceeding
in accordance with subsection (1), the costs of the
proceeding are to be paid out of the missing
person's estate.
(4) Despite subsection (3), a court or tribunal may
order that an administrator is personally liable
to pay for any costs of the legal proceeding if
the administrator was negligent or engaged in
misconduct.
(5) A court or tribunal may order that a person who
is or was an administrator be reimbursed from
the missing person's estate for any costs incurred
by the person as an administrator in bringing or
defending an action or other legal proceeding in
accordance with subsection (1).
114 Other powers that may be specified in
administration (missing person) order
VCAT may specify in an administration
(missing person) order that the administrator
has any or all of the following powers in relation
to a financial matter specified in the order--
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(a) the power to collect, receive and recover--
(i) income of the missing person; and
(ii) money due or which becomes due to
the missing person; and
(iii) any compensation or damages for
injury to the estate or person of the
missing person;
(b) the power to invest any money in any
security in which a trustee may by law
invest;
(c) the power to demise land at a rent and on
conditions as the administrator thinks fit for
any term not exceeding 5 years or, with the
consent of VCAT, for any longer term;
(d) the power to exercise, to the extent and in
the manner the administrator thinks fit,
any power of leasing vested in the missing
person;
(e) the power to surrender any lease, accept any
lease, accept the surrender of any lease or
renew any lease;
(f) the power to bring land under the Transfer
of Land Act 1958;
(g) the power, with the approval of VCAT, to
sell, exchange, partition or convert into
money any property;
(h) the power to mortgage or charge any
property;
(i) the power to pay any debts and settle, adjust
or compromise any demand made by or
against the missing person's estate and
discharge any encumbrance on the missing
person's estate;
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(j) the power to carry on, to the extent the
administrator thinks appropriate, any trade,
profession or business which the missing
person carried on;
(k) the power to agree to any alteration of a
condition of any partnership into which
the missing person has entered or to a
dissolution and distribution of the assets
of the partnership;
(l) the power to execute and sign deeds,
instruments and other documents;
(m) the power to complete any contract for the
performance of which the missing person
was liable, or enter into any agreement
terminating liability;
(n) the power to pay a sum for--
(i) the maintenance of the missing person's
spouse or domestic partner or any child,
parent or other person dependent on the
missing person; and
(ii) the education of any child of the
missing person;
(o) any other relevant power in relation to a
specified financial matter.
115 Matters for which power cannot be given under an
administration (missing person) order
Despite anything to the contrary in this Part, an
administration (missing person) order does not
confer on the person appointed as administrator
the power--
(a) to make or revoke a will for the missing
person; or
(b) to make or revoke an enduring power of
attorney for the missing person; or
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(c) to vote on the missing person's behalf in an
election for the State or the Commonwealth
or another State or a Territory of the
Commonwealth or in a local election or a
referendum; or
(d) to consent to the entering into, or the
dissolving of, a marriage of the missing
person; or
(e) to make or give effect to a decision about--
(i) the care and wellbeing of a child of the
missing person; or
(ii) the adoption of a child under the age of
18 years of the missing person; or
(f) to enter into, or agree to enter into, a
surrogacy arrangement within the meaning
of the Assisted Reproductive Treatment
Act 2008 on the missing person's behalf; or
(g) to consent to the making or discharge of
a substitute parentage order within the
meaning of the Status of Children Act 1974
on the missing person's behalf; or
(h) to manage the estate of the missing person
on the death of the missing person; or
(i) to consent to an unlawful act.
Division 4--Duties of administrators under
administration (missing person) orders
116 Exercise of power by administrator
An administrator must--
(a) take actions that the administrator considers
necessary or desirable for--
(i) the payment of the debts and
engagements of, and otherwise for the
benefit of, the missing person; and
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(ii) the maintenance and benefit of
dependants of the missing person; and
(iii) the care and management of the
property of the missing person; and
(b) act in accordance with the decision-making
principles set out in section 9; and
(c) act as an advocate for the missing person;
and
(d) act honestly, diligently and in good faith; and
(e) exercise reasonable skill and care; and
(f) not use the position for profit unless
permitted under section 175 or otherwise
authorised by law; and
(g) avoid acting if there is or may be a conflict
of interest unless so authorised under this
Act, by order of VCAT or otherwise by law;
and
(h) not disclose confidential information gained
as an administrator unless authorised to do so
under the administration (missing person)
order or by law.
117 Property of missing person
Subject to, and in accordance, with this Act and
the administration (missing person) order, the
administrator must--
(a) take possession and care of, recover, collect,
preserve and administer the property and
estate of the missing person; and
(b) generally manage the property and financial
affairs of the missing person.
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118 Conflict transactions
(1) Subject to section 119, an administrator must
not enter into a transaction in the capacity of
administrator if the transaction is one in which
there is, or may be, a conflict between--
(a) the duty of the administrator to the missing
person; and
(b) the interests of the administrator, or of a
relative, business associate or close friend of
the administrator.
(2) Subsection (1) does not apply to--
(a) a transaction providing for the maintenance
of a dependant of the missing person made in
accordance with section 114(n); or
(b) a transaction merely because in the
transaction, the administrator (in the
administrator's own right and on behalf
of the missing person)--
(i) deals with an interest in property held
jointly by the administrator and the
missing person (whether as joint
tenants or tenants in common); or
(ii) obtains a loan or gives a guarantee or
indemnity in respect of a transaction
referred to in subparagraph (i).
119 Permitted conflict transactions
(1) An administrator may enter into a transaction
prohibited by section 118(1) if VCAT authorises
the administrator at or before the time of the
transaction to enter into--
(a) the transaction; or
(b) a transaction of a similar nature; or
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(c) any transaction prohibited by
section 118(1).
(2) Despite section 118(1), VCAT may validate a
transaction prohibited under that section.
(3) A transaction validated under subsection (2) is
taken to be valid from the time it was entered into.
120 Keeping records
An administrator must keep accurate records
and accounts of all dealings and transactions
made by the administrator in relation to the
financial matters specified in the administration
(missing person) order.
121 Separation of administrator's property and missing
person's property
(1) An administrator must keep the administrator's
property separate from the missing person's
property.
(2) Subsection (1) does not apply to property owned
jointly by the administrator and the missing
person.
(3) Subsection (1) does not affect any other obligation
imposed by law.
122 Accounts
(1) VCAT may, at the time it appoints an
administrator or at any later time, appoint a
person to examine or audit the accounts of
all dealings and transactions relating to the
financial matters specified in the administration
(missing person) order for a fee approved by
VCAT and paid from the missing person's estate.
(2) Unless VCAT otherwise directs, on, or as soon
as practicable after, the anniversary in each
year of the appointment of the administrator, the
administrator must lodge with VCAT an account
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of the dealings and transactions relating to the
financial matters specified in the administration
(missing person) order during the previous
12 months.
(3) Despite subsection (2), VCAT may require an
administrator to lodge accounts at a time other
than the time specified in that subsection.
(4) An account lodged under subsection (2) or (3)
must provide a full and true account of the
assets and liabilities of the missing person in
relation to the financial matters specified in the
administration (missing person) order and of all
receipts and disbursements in relation to those
financial matters made during the previous
12 months.
(5) A person appointed under subsection (1) to
examine or audit the accounts--
(a) must lodge with VCAT a report in relation
to the accounts examined or audited; and
(b) may recommend in the report the
disallowance of any item in the accounts.
(6) VCAT must not make an order disallowing an
item referred to in subsection (5) if VCAT is
satisfied that the administrator acted in good
faith and with reasonable care in the exercise of
powers conferred on the administrator.
(7) If VCAT makes an order disallowing an item
referred to in subsection (5), the administrator
is liable for the amount of the item disallowed.
123 Payments to person examining or auditing accounts
(1) An administrator must pay to a person appointed
under section 122(1) an amount certified by that
person as being the reasonable cost of examining
or auditing the accounts referred to in that section.
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(2) On the application by the administrator, and
with the consent of the person appointed under
section 122(1) to examine or audit the accounts,
VCAT may waive payment of the whole or
part of the amount required to be paid under
subsection (1).
124 Administrator to notify VCAT about status of
missing person
An administrator must notify VCAT in writing
as soon as practicable after the administrator
becomes aware that--
(a) the missing person is alive (either in
Victoria or elsewhere); or
(b) the missing person has died.
Division 5--Other matters pertaining to
administration (missing person) orders
125 Administrator may seek advice from VCAT
(1) An administrator may apply to VCAT for
advice on any matter relating to the scope of
the administration (missing person) order or
the exercise of any power under the order.
(2) Without limiting subsection (1), the jurisdiction
of VCAT includes jurisdiction in the case of an
administration by State Trustees to approve, order
or advise the commencement of a proceeding by
State Trustees acting in one capacity or on behalf
of one represented person or missing person
against State Trustees acting in another capacity
or on behalf of another represented person or
missing person.
(3) After considering an application for advice or on
its own initiative, VCAT may--
(a) approve or disapprove of any act proposed to
be done by the administrator; and
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(b) give advice as it considers appropriate; and
(c) make any order it considers necessary.
(4) An action does not lie against an administrator
on account of an act or thing done or omitted to
be done by the administrator under any order or
on the advice of VCAT made or given under
this section unless, in representing the facts to
VCAT, the administrator is guilty of fraud, wilful
concealment or misrepresentation.
126 Administrator may seek advice from professional
adviser
(1) An administrator may seek advice from a
professional adviser about the financial matters
specified in the administration (missing person)
order.
(2) An administrator is entitled to be reimbursed from
the missing person's estate for any costs paid by
the administrator in the course of obtaining
professional advice.
(3) In this section--
professional adviser means a person
who provides professional advice to
administrators and includes a financial
adviser, a legal practitioner and an
accountant.
127 VCAT may open will
VCAT may open and read any paper or writing
that is a will, a revoked will, a purported will
or a copy of a will of a missing person.
128 VCAT may compel production of will
VCAT may make an order compelling a person
who has possession or control of a will, a revoked
will or a purported will of a missing person to
produce that document to VCAT--
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(a) for the purposes of section 127 or 129; or
(b) on the application of an administrator.
129 VCAT may make copy of will available to
administrator
VCAT may make available to an administrator a
full or redacted copy of a will, a revoked will or a
purported will of the missing person if VCAT is
satisfied that it is reasonable to make the full or
redacted copy available in the circumstances,
taking into account whether--
(a) the copy will assist the administrator to
make decisions about the financial matters
specified in the administration (missing
person) order; and
(b) the administrator is also a beneficiary under
the will.
130 VCAT to notify administrator if person ceases to be
a missing person
(1) If VCAT knows that a person has ceased to be
a missing person or that a missing person has
died, VCAT must give notice of that fact to the
administrator as soon as practicable.
(2) An administrator may exercise all or any of
the powers given to the administrator by the
administration (missing person) order until the
administrator knows that the missing person
has ceased to be a missing person or has died.
131 Actions of administrator taken to be actions of
former missing person
On and after VCAT gives notice to an
administrator under section 130(1), the
former missing person or that person's
personal representative (as the case requires)
is bound by, and may take advantage of, any
act done on behalf of the missing person by
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the administrator within the powers conferred
on the administrator by VCAT as if--
(a) the act had been done by the missing
person; and
(b) the missing person had decision-making
capacity to do the act.
132 Administrator to pay to former missing person any
money outstanding
(1) If an administrator receives a notice under
section 130 or is otherwise informed that a person
has ceased to be a missing person or a missing
person has died, the administrator must--
(a) pay or cause to be paid to the person or to
the person's personal representative (as the
case requires) all money standing to the
person's credit with the administrator; and
(b) deliver to the person or to the person's
personal representative (as the case requires)
all property of the person that is in the
custody of the administrator and, subject to
an order under section 134, any documents
relating to that property.
(2) Any payment made under subsection (1) and
any property delivered under that subsection is
subject to the satisfaction of any amount due to
the administrator and all costs, expenses and
liabilities incurred by the administrator in relation
to the dealings and transactions made for the
financial matters specified in the administration
(missing person) order.
(3) The receipt by a person who has ceased to be
a missing person or by that person's personal
representative is an absolute discharge to an
administrator despite any informality in the
discharge or certification.
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133 Former missing person entitled to inspection of
accounts
Subject to an order under section 134, a person
who has ceased to be a missing person (or the
personal representative of such a person), before
or after obtaining the restoration of all or any part
of the person's money or other property from the
administrator--
(a) may examine and inspect, or cause a legal
practitioner or other authorised agent to
examine and inspect, all books, accounts,
notices and other documents in the custody
of the administrator relating to the dealings
and transactions made for the financial
matters specified in the administration
(missing person) order and make or cause
to be made copies of, or extracts from, these
items; and
(b) must be provided with--
(i) copies of or extracts from any book,
account, notice or document relating
to the dealings and transactions made
for the financial matters specified in the
administration (missing person) order
by the administrator; and
(ii) information relating to the dealings
and transactions made for the financial
matters specified in the administration
(missing person) order by the
administrator that is reasonable to
request and that can be given by the
administrator.
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134 VCAT order that delivery of, or access to,
documents be withheld
(1) An administrator may apply to VCAT for an
order that a book, account, notice or other
document (or any part of such book, account,
notice or other document) in the custody of the
administrator relating to the property or financial
affairs of a former missing person be withheld
from the person specified in the order or a person
belonging to a class of person specified in the
order.
(2) VCAT may make an order referred to in
subsection (1) if VCAT is satisfied that--
(a) it is in the interests of the former missing
person that the information, or part of
the information, contained in the book,
account, notice or other document remain
confidential; or
(b) the book, account, notice or other document
contains confidential information about
another person.
135 Sale of personal effects if unclaimed within 2 years
after person ceases to be missing person
(1) After public notice, an administrator may sell any
personal effect of a former missing person that--
(a) is in the administrator's possession; and
(b) is not claimed within 2 years after the date
on which the person ceased to be a missing
person.
(2) The proceeds of a sale referred to in subsection (1)
are to be paid into the Consolidated Fund.
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136 Interest of missing person in property not to be
altered by sale or other disposition of property
(1) A missing person and a beneficiary of a missing
person have the same interest in any money
or other property arising from or received in
respect of any sale, mortgage, exchange, partition
or other disposition under the powers conferred
on an administrator by an administration
(missing person) order which have not been
applied under those powers that the missing
person or beneficiary would have had in the
property the subject of the sale, mortgage,
exchange, partition or disposition if no sale,
mortgage, exchange, partition or disposition
had been made.
(2) For the purposes of this section, money arising
from the compulsory acquisition or purchase
under any Act of property of a missing person
is taken to be money arising from the sale of
that property under the powers conferred on
an administrator under an administration
(missing person) order.
(3) An administrator is not required to keep the
proceeds of the sale or other disposition of
property under this section separate from the
missing person's other assets.
(4) Money received by an administrator under this
section may be invested in any manner in which
trust funds may be invested under the Trustee
Act 1958.
(5) In this section, beneficiary of a missing person
means--
(a) a beneficiary under the will of a missing
person; or
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(b) a missing person's executor; or
(c) a missing person's administrator under the
Administration and Probate Act 1958.
137 Application to VCAT by a person interested
(1) A person interested as a creditor, beneficiary,
next of kin, guardian, nearest relative, primary
carer or the Public Advocate or otherwise in a
financial matter specified in the administration
(missing person) order may apply to VCAT
on any matter arising out of any dealing or
transaction in relation to that financial matter.
(2) VCAT may make any order in relation to the
application which VCAT considers appropriate.
(3) In this section--
next of kin, in relation to a missing person,
means any person who would be entitled to
the property of the missing person or to any
share of the property under any law for the
distribution of the property of intestates if
the missing person had died intestate.
138 Order to revoke administration (missing person)
order
(1) VCAT may, by order, revoke an administration
(missing person) order--
(a) on application by the person who was the
missing person; or
(b) on application by the administrator or any
other person, if satisfied that--
(i) the missing person is alive; or
(ii) the missing person is dead; or
(iii) the missing person may be presumed
to be dead.
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(2) VCAT must, by order, revoke an administration
(missing person) order--
(a) if the Supreme Court, on being satisfied
of the death of the missing person, whether
by direct evidence or on presumption of
death, has made a grant of probate of the
will or administration of the estate of the
missing person under section 7 of the
Administration and Probate Act 1958; or
(b) if the registrar of probates, on being satisfied
of the death of the missing person, whether
by direct evidence or on presumption of
death, has made a grant of probate of the
will or administration of the estate of the
missing person under section 12 of the
Administration and Probate Act 1958; or
(c) if the presumption of death is successfully
invoked in relation to the missing person for
the purpose of any other proceeding before a
court in Victoria or elsewhere in Australia;
or
(d) if any property or affairs of the missing
person becomes subject to an order under
section 24A of the Administration and
Probate Act 1958.
139 Part does not exclude Administration and Probate
Act 1958
This Part is not intended to exclude or limit the
operation of the Administration and Probate
Act 1958.
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Part 6--Special medical procedures
140 Definitions
In this Part--
medical treatment decision maker has the same
meaning as in the Medical Treatment
Planning and Decisions Act 2016;
patient means a person with a disability
(irrespective of whether the person is
or is not a represented person) who--
(a) is of or over the age of 18 years; and
(b) does not have decision-making capacity
in relation to giving consent to the
carrying out of a special medical
procedure;
special medical procedure means--
(a) any procedure that is intended, or is
reasonably likely, to have the effect
of rendering permanently infertile the
person on whom it is carried out; or
(b) a termination of pregnancy; or
(c) any removal of tissue for the purposes
of transplantation to another person; or
(d) any other medical treatment within the
meaning of the Medical Treatment
Planning and Decisions Act 2016
that is prescribed under this Act to
be a special medical procedure for the
purposes of this Part.
141 VCAT may consent to special medical procedure
Subject to section 145, VCAT may give consent
to the carrying out of a special medical procedure
on a patient.
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142 Effect of consent
A consent given in accordance with this Part has
effect as if--
(a) the patient had decision-making capacity
in relation to giving consent to the carrying
out of the special medical procedure; and
(b) the special medical procedure was carried
out with the consent of the patient.
143 Application for VCAT's consent to special medical
procedure
(1) An application to VCAT for VCAT's consent to
the carrying out of a special medical procedure on
a patient may be made by--
(a) the patient's medical treatment decision
maker; or
(b) any person VCAT determines to have a
special interest in the affairs of the patient.
(2) A patient in relation to whom an application for
VCAT's consent is made under this Part is a party
to the proceeding.
(3) VCAT must give the Public Advocate and any
other person VCAT determines to have a special
interest in the affairs of the patient--
(a) notice of the application for VCAT's consent
to the carrying out of the special medical
procedure on the patient; and
(b) notice of the hearing of the application and
of any order in relation to the application;
and
(c) notice of any direction or advisory opinion in
relation to the application.
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144 Date for hearing
VCAT must commence to hear an application
under this Part within 30 days after the day on
which the application is received by VCAT.
145 Consent of VCAT to special medical procedure
(1) On hearing an application under this Part, VCAT
may consent to the carrying out of a special
medical procedure if VCAT is satisfied that--
(a) the patient has not given an instructional
directive (within the meaning of the Medical
Treatment Planning and Decisions
Act 2016) in relation to the special medical
procedure; and
(b) the patient does not have decision-making
capacity in relation to giving consent; and
(c) the patient is not likely to have
decision-making capacity in relation
to giving consent within a reasonable
time; and
(d) the patient would consent to the carrying
out of the special medical procedure if the
patient had decision-making capacity in
relation to giving consent.
(2) For the purposes of determining whether VCAT
is satisfied as to the matter set out in subsection
(1)(d)--
(a) first, if the patient has given a valid and
relevant values directive (within the meaning
of the Medical Treatment Planning and
Decisions Act 2016), VCAT must consider
the values directive; and
(b) second, VCAT must take into account any
other relevant preferences that the patient has
expressed and the circumstances in which
those preferences were expressed; and
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(c) if VCAT is unable to identify any relevant
preferences under paragraphs (a) and (b),
VCAT must give consideration to the
patient's values whether--
(i) expressed other than by way of a values
directive; or
(ii) inferred from the patient's life; and
(d) VCAT must also consider--
(i) the likely effects and consequences
of the special medical procedure,
including the likely effectiveness of
the procedure and whether these are
consistent with the patient's preferences
or values; and
(ii) whether there are any alternatives,
including refusing the special
medical procedure, that would be
more consistent with the patient's
preferences or values.
(3) If VCAT is unable to apply the process required
by subsection (2) because it is not possible to
ascertain or apply the patient's preferences or
values, VCAT may consent to the carrying out
of the special medical procedure if--
(a) VCAT is satisfied that the special medical
procedure will promote the personal and
social wellbeing of the patient, having
regard to the need to respect the patient's
individuality; and
(b) VCAT has considered--
(i) the likely effects and consequences
of the special medical procedure,
including the likely effectiveness of
the procedure; and
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(ii) whether there are any alternatives,
including refusing the special medical
procedure, that would better promote
the patient's personal and social
wellbeing.
(4) In the case of either subsection (2) or (3), VCAT
must also consult any other person who VCAT
reasonably believes the patient would want to be
consulted in the circumstances.
146 VCAT may confer authority to consent to
continuing or further special medical procedure
(1) If VCAT consents to the carrying out of a
special medical procedure on a patient, subject
to subsection (2), VCAT may confer authority
on the patient's medical treatment decision
maker to consent to--
(a) the continuation of the special medical
procedure; or
(b) the carrying out of any further special
medical procedure of a similar nature.
(2) VCAT may confer an authority under this section
only at the request, or with the consent, of the
patient's medical treatment decision maker.
(3) If a person on whom VCAT has conferred
authority under this section ceases to be the
patient's medical treatment decision maker, on
the application of the patient's new medical
treatment decision maker, VCAT may confer
authority under this section on the new medical
treatment decision maker.
(4) VCAT may at any time--
(a) impose conditions or give directions as
to the exercise of an authority under this
section; or
(b) revoke that authority.
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(5) If VCAT confers an authority under this
section, a person may request the consent of
the patient's medical treatment decision maker to
the continuation of the special medical procedure
or any further special medical procedure of a
similar nature.
147 Special medical procedure without consent of VCAT
an offence
(1) Subject to section 53 of the Medical Treatment
Planning and Decisions Act 2016, a registered
medical practitioner must not carry out, or
supervise the carrying out of, any special medical
procedure on a patient unless--
(a) VCAT has consented to the carrying out of
that procedure; or
(b) the patient's medical treatment decision
maker (with authority to consent to the
continuation of the special medical
procedure or a further special medical
procedure under section 146) has consented
to the carrying out of that procedure.
Penalty: Imprisonment for 2 years
or 240 penalty units or both.
(2) A registered medical practitioner who, in good
faith and without negligence, carries out, or
supervises the carrying out of, a special medical
procedure on a patient in the belief on reasonable
grounds that the requirements of this Part have
been complied with--
(a) is not guilty of an offence; and
(b) is not liable for unprofessional conduct or
professional misconduct; and
(c) is not liable in any civil proceeding; and
(d) is not liable for a contravention of any code
of conduct.
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(3) Nothing in this Part affects any duty of care owed
by a registered medical practitioner to a patient.
148 Refusal of consent to special medical procedure
under an instructional directive
A registered medical practitioner must not carry
out a special medical procedure under this Part if
the patient has refused consent to the procedure
under an instructional directive within the
meaning of the Medical Treatment Planning
and Decisions Act 2016.
149 Unlawful consent to special medical procedure an
offence
A person must not purport to give consent on
behalf of a patient to the continuation of a special
medical procedure or a further special medical
procedure unless--
(a) the person knows that the person is
authorised under section 146 to give
such consent; or
(b) the person believes on reasonable
grounds that the person is authorised
under section 146 to give such consent.
Penalty: 20 penalty units.
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Part 7--Rehearings and reassessment
of orders
Division 1--Rehearings
150 Application for rehearing of application for order
(1) The Public Advocate and any person who was a
party to an application in relation to which VCAT
made an order under this Act (other than an urgent
order appointing a guardian or an administrator)
may apply to VCAT for a rehearing of the
application.
(2) A person entitled to notice of an application in
relation to which VCAT made an order under
this Act (other than an urgent order appointing
a guardian or an administrator) who was not, or
did not become, a party to that application may,
if VCAT gives leave, apply to VCAT for a
rehearing of the application.
151 Application for rehearing of reassessment of order
If VCAT makes an order on a reassessment under
section 167 conducted on VCAT's own initiative,
a party to the reassessment or a person entitled to
notice of the reassessment may, if VCAT gives
leave, apply to VCAT for a rehearing of the
reassessment.
152 When may application for rehearing of application
or for leave to apply for rehearing of application or
rehearing of reassessment be made?
(1) An application under this Division for--
(a) a rehearing of an application; or
(b) leave to apply for a rehearing of an
application; or
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(c) leave to apply for a rehearing of a
reassessment--
must be made within 28 days after the day on
which VCAT makes the order on the rehearing
or the reassessment.
(2) For the purposes of subsection (1), if VCAT gives
oral reasons for making an order and a party then
requests written reasons under section 117 of the
VCAT Act, the day on which the written reasons
are given to the party is taken to be the day on
which the order is made.
153 Matters for which application for rehearing cannot
be made
A person cannot apply for a rehearing of--
(a) an application in relation to which an order
was made by VCAT constituted by the
President (whether with or without others);
or
(b) an application for a rehearing; or
(c) an application for leave to apply for a
rehearing of an application; or
(d) an application for leave to apply for a
rehearing of a reassessment.
154 Who are the parties to a rehearing?
The following persons are parties to a rehearing--
(a) in the case of the rehearing of an application
referred to in section 150--
(i) the applicant for the rehearing; and
(ii) any person who was a party to the
proceeding on the application at first
instance;
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(b) in the case of the rehearing of a reassessment
referred to in section 151--
(i) the applicant for the rehearing; and
(ii) any person who was a party to that
reassessment;
(c) any other person VCAT orders to be joined
as a party.
Note
Section 60 of the VCAT Act provides that VCAT
may in certain circumstances order that a person be
joined as a party to a proceeding.
155 Who is entitled to notice of an application for a
rehearing?
The following persons are entitled to notice of an
application for a rehearing--
(a) in the case of the rehearing of an application
referred to in section 150, a person who was
entitled to notice of that application;
(b) in the case of the rehearing of a reassessment
referred to in section 151, a person who was
entitled to notice of the reassessment;
(c) any other person VCAT directs be given
notice.
156 Participation of proposed represented person or
represented person at hearing
The proposed represented person, represented
person, proposed supported person or supported
person (as the case requires) must attend in person
a hearing conducted by VCAT in relation to an
application made under this Division unless
VCAT is satisfied that--
(a) the person does not wish to attend the
hearing in person; or
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(b) the personal attendance of the person at the
hearing is impracticable or unreasonable,
despite any arrangement that VCAT may
make.
Note
See section 100(1) of the VCAT Act which provides that if VCAT
thinks it appropriate, it may conduct all or part of a proceeding by
means of a conference conducted using telephones, video links or
any other system of telecommunication.
157 Rehearing
(1) On an application made under section 150 or 151,
VCAT must rehear the matter and, for that
purpose, VCAT has all the functions and powers
that VCAT had with respect to the matter at first
instance.
(2) In determining a rehearing, VCAT may--
(a) affirm the order of VCAT at first instance; or
(b) vary the order of VCAT at first instance; or
(c) set aside the order of VCAT at first instance
and make another order in substitution for it.
158 Effect of first instance order pending rehearing
(1) Subject to subsection (2), the making of an
application for a rehearing--
(a) does not affect the operation of any order to
which the application relates; and
(b) does not prevent the taking of action to
enforce any order to which the application
relates.
(2) VCAT may make an order staying the operation
of an order pending the determination of the
application for a rehearing to which the order
relates.
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Division 2--Reassessment of orders
159 Reassessment
(1) This section applies in relation to the following
orders--
(a) a guardianship order;
(b) a supportive guardianship order;
(c) an administration order;
(d) a supportive administration order;
(e) an administration (missing person) order.
(2) VCAT must conduct a reassessment of an order--
(a) within 12 months after making the order,
unless VCAT orders otherwise; and
(b) in any case, at least once within each 3 year
period after making the order, unless VCAT
orders otherwise.
(3) VCAT, on its own initiative or on the application
of any other person, may conduct at any time a
reassessment of any order to which this section
applies.
160 Matters to be included in application to VCAT
A person applying to VCAT for a reassessment
must include the following in the application--
(a) the name and contact details of the
represented person, supported person or
missing person, as the case requires;
(b) the type of order referred to in section 159
to which the application relates;
(c) details of the reasons for making the
application;
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(d) the name and contact details of the guardian,
administrator, supportive guardian or
supportive administrator, as the case
requires;
(e) the name and contact details of the applicant
and of any person who has a direct interest in
the application (if known to the applicant);
Note
Persons having a direct interest includes, amongst
others, the relatives of the represented person,
supported person or missing person, any primary
carer, close friends, any attorney appointed under
an enduring power of attorney and any supportive
attorney appointed under the Powers of Attorney
Act 2014.
(f) any support needs of the represented person
or supported person, as the case requires.
Note
Section 67 of the VCAT Act sets out additional requirements in
relation to making an application.
161 Who are the parties to a reassessment?
The following persons are parties to a
reassessment--
(a) the applicant, if any;
(b) the represented person or supported person,
as the case requires;
(c) the guardian, administrator, supportive
guardian or supportive administrator, as
the case requires;
(d) any other person VCAT orders to be joined
as a party to the reassessment.
Note
Section 60 of the VCAT Act provides that VCAT
may in certain circumstances order that a person be
joined as a party to a proceeding.
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162 Who is entitled to notice of a reassessment, the
hearing and any order made in the proceeding?
For the purposes of sections 72(1), 99(1)
and 116(2) of the VCAT Act, the following
persons are entitled to a notice referred to in
each of those sections--
(a) any party to a reassessment under this
Division;
(b) the spouse or domestic partner of the
represented person, supported person or
missing person, if any;
(c) the primary carer of the represented person
or supported person, if any;
(d) any person referred to in the application as
having a direct interest in the application;
(e) any other person VCAT directs be given
notice.
Note
Section 72(1) of the VCAT Act provides that an applicant for a
VCAT order must serve a copy of the application on each party,
each other person entitled to notice of the application under the
enabling enactment (which is this Act) and each other person that
VCAT so directs. Section 99(1)(b) of the VCAT Act provides
that the principal registrar of VCAT must give notice of the time
and place for the hearing of a proceeding to a person entitled to
notice of the proceeding or hearing under the enabling enactment.
Section 116(2)(a) of the VCAT Act provides that VCAT must give
a copy of any order it makes in a proceeding to each party and
each other person entitled to notice of the proceeding or of the
order under the enabling enactment.
163 Contents of notice of application for a reassessment
(1) A notice of an application for a reassessment
given to a party to the application must include the
following--
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(a) a copy of the application for the
reassessment and any information filed
in support of the application subject to
clause 37A of Part 9 of Schedule 1 to
the VCAT Act;
Note
Clause 37A of Part 9 of Schedule 1 to the VCAT Act
provides that a person may make an application to the
principal registrar of VCAT that any documents
lodged in relation to a proceeding under this Act not
be disclosed to a specified person or class of persons.
(b) the names of--
(i) the parties to the proceeding; and
(ii) the other persons entitled to the notice
under section 162;
(c) information about the rights of the party in
relation to the application.
(2) A notice of an application for a reassessment
given to a person referred to in section 162 who
is not a party to the application must include the
following--
(a) a copy of the application;
(b) the names of--
(i) the parties to the reassessment; and
(ii) the other persons entitled to the notice
under section 162;
(c) information about the rights of the person to
seek information about the application;
(d) information about how to apply to VCAT to
be made a party to the proceeding.
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164 Conduct of reassessment on VCAT's initiative
(1) Before conducting a reassessment on its own
initiative, VCAT must determine whether--
(a) to conduct a hearing in relation to the
reassessment; or
(b) to reassess the relevant order on the papers.
(2) In making a determination under subsection (1),
VCAT must take reasonable steps to contact the
represented person or supported person (as the
case requires) to ascertain whether the person
wishes VCAT to conduct a hearing or to reassess
the relevant order on the papers.
(3) If VCAT determines to conduct a hearing in
relation to a reassessment on its own initiative,
VCAT must give notice of the reassessment,
at least 7 days before the proposed day of the
hearing, to the parties and to the following
persons--
(a) the spouse or domestic partner of the
represented person, supported person or
missing person, if any;
(b) the primary carer of the represented person
or supported person, if any;
(c) the nearest relative available (other than
the spouse or domestic partner) of the
represented person, supported person or
missing person, if any;
(d) any person VCAT determines to have an
interest in the reassessment.
(4) If VCAT does not propose to amend, vary or
replace the relevant order and intends to conduct
the reassessment on the papers, VCAT may give
notice to the parties and each person specified in
subsection (3) that the party or person has 14 days
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after the date of the notice to request, in writing, a
hearing of the reassessment.
(5) If any of the parties or persons to whom a notice
is given under subsection (4) requests a hearing
within 14 days after the date of the notice, VCAT
must give at least 7 days' notice of the hearing to
each of the parties and persons.
(6) If none of the parties or persons to whom a notice
is given under subsection (4) requests a hearing
within 14 days after the date of the notice, VCAT
is not required to hold a hearing of the
reassessment.
(7) VCAT may, in a notice under subsection (4)
or (5), advise that a person to whom the notice is
given (other than a party) is not required to attend
the hearing if that person does not have any
matters to raise with VCAT in relation to the
reassessment.
165 Participation of represented person or supported
person at hearing
The represented person or supported person must
attend in person a hearing conducted by VCAT in
relation to a reassessment under this Division
unless VCAT is satisfied that--
(a) the represented person or supported person
does not wish to attend the hearing in person;
or
(b) the personal attendance of the represented
person or supported person at the hearing is
impracticable or unreasonable, despite any
arrangement that VCAT may make.
Note
See section 100(1) of the VCAT Act which provides that if VCAT
thinks it appropriate, it may conduct all or part of a proceeding by
means of a conference conducted using telephones, video links or
any other system of telecommunication.
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166 VCAT to consider role of appointed person
In the course of conducting a reassessment of an
order referred to in section 159(1), VCAT must
consider whether, as the case requires--
(a) the guardian appointed at first instance
has performed duties in compliance with
section 41; or
(b) the administrator appointed at first instance
in an administration order has performed
duties in compliance with section 55; or
(c) the supportive guardian or supportive
administrator appointed at first instance
has performed duties in compliance with
section 94; or
(d) the administrator appointed at first instance
in an administration (missing person) order
has performed duties in compliance with
section 116.
167 Order after reassessment
(1) On completing a reassessment of an order referred
to in section 159(1), VCAT may by order--
(a) amend, vary, continue or replace the relevant
order subject to any conditions or
requirements it considers necessary; or
(b) revoke the relevant order.
(2) If the Public Advocate is appointed as guardian
for a represented person in an order of VCAT
at first instance, that appointment may only be
retained on reassessment if VCAT is satisfied
that no other person fulfils the requirements for
appointment as guardian.
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168 Application of Part
This Part applies to--
(a) a guardianship order, a supportive
guardianship order, an administration order
or a supportive administration order made
under a corresponding law of a participating
State or Territory in relation to a person
who--
(i) resides in the participating State or
Territory and proposes entering
Victoria; or
(ii) has property in Victoria; and
(b) an administration (missing person) order
made under a corresponding law of a
participating State or Territory in relation to
a person who has property in Victoria.
169 Definitions
In this Part--
corresponding law means a law that is declared
to be a corresponding law by an Order in
Council made under section 170;
determining body, in relation to a participating
State or Territory, means a court, tribunal,
board or other body that is authorised under
a corresponding law to make, revoke, amend
or vary a guardianship order, a supportive
guardianship order, an administration order,
a supportive administration order or an
administration (missing person) order;
interstate order means an order made under a
corresponding law of a participating State
or Territory;
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participating State or Territory means a State or
Territory of the Commonwealth in which a
corresponding law is in force.
170 Corresponding laws and orders
(1) The Governor in Council, on the recommendation
of the Minister, by Order published in the
Government Gazette, may declare that a
law of another State or of a Territory of the
Commonwealth is a corresponding law for
the purposes of this Part.
(2) An Order under subsection (1) in relation to a
law of another State or a Territory may include
a declaration that an order under that law is
substantially similar to a guardianship order, a
supportive guardianship order, an administration
order, a supportive administration order or an
administration (missing person) order for the
purposes of this Part.
171 Ministerial agreements
The Minister may make an agreement with
a Minister responsible for administering a
corresponding law about any matter in
connection with the administration of this
Part or a corresponding law.
172 Registration of interstate orders
(1) VCAT may register an interstate order on the
application of--
(a) a guardian, a supportive guardian, an
administrator or a supportive administrator
in a participating State or Territory; or
(b) the Public Advocate.
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(2) If the guardian in a participating State or Territory
is a person who holds an equivalent position to the
Public Advocate, VCAT may appoint the Public
Advocate as the guardian for the represented
person if no other person fulfils the requirements
of section 32 for appointment as guardian for that
person.
(3) On registration of an interstate order, VCAT must
notify the determining body which made the order
that the order has been registered.
(4) An interstate order that is registered under this
Part has the same force and effect according
to its terms as a guardianship order, a supportive
guardianship order, an administration order,
a supportive administration order or an
administration order (missing person) order
(as the case requires) that is made under this
Act.
(5) A guardianship order, a supportive guardianship
order, an administration order, a supportive
administration order or an administration
(missing person) order made under this Act
is not revoked in Victoria if that order is
registered in a participating State or Territory.
173 Reassessment of interstate orders
(1) An interstate order (other than an administration
(missing person) order) that is registered under
this Part may be reassessed by VCAT in
accordance with Division 2 of Part 7.
(2) VCAT may make any order that it is authorised to
make under Division 2 of Part 7 in relation to an
interstate order that is registered under this Part,
including an order appointing a new guardian,
supportive guardian, administrator or supportive
administrator.
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(3) VCAT must notify the determining body which
made the interstate order as soon as practicable
after VCAT makes an order under subsection (2).
(4) An order made by VCAT under subsection (2) has
no effect in the participating State or Territory in
which the interstate order was made.
(5) The revocation, amendment or variation of an
interstate order by a determining body after the
order is registered under this Part has no effect in
Victoria.
174 Reciprocal arrangements under the State Trustees
(State Owned Company) Act 1994
Nothing in this Part affects the operation of
section 12 of the State Trustees (State Owned
Company) Act 1994.
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175 Remuneration of administrators
(1) An administrator (other than a person who carries
on a business of, or including, the administration
of estates) is not entitled to receive any fee,
remuneration or other reward from the estate of
a represented person or missing person for acting
as administrator unless VCAT otherwise specifies
in the administration order or administration
(missing person) order, as the case requires.
(2) Remuneration to which an administrator who
carries on a business of, or including, the
administration of estates is entitled must be--
(a) in accordance with a scale in relation to
remuneration for administrators that is fixed
by rules made under the VCAT Act; or
(b) as determined by VCAT.
(3) Despite subsection (2), remuneration determined
by VCAT in relation to a licensed trustee
company (within the meaning of section 601RAA
of the Corporations Act) must not exceed the limit
on fees that may be charged by a licensed trustee
company under Chapter 5D of the Corporations
Act.
(4) VCAT may request an administrator to provide
VCAT with any account in the administrator's
custody in relation to dealings and transactions
relating to the financial matters specified in
the administration order or administration
(missing person) order (as the case requires) for
the purpose of examining those accounts and
determining whether the administrator has
complied with the requirements of this Act,
any order made by VCAT or any approval or
specification made by VCAT in relation to
remuneration under this section.
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(5) VCAT may require by order an administrator to
pay to the estate of the represented person or
missing person any remuneration or other reward
paid or deducted from the estate which VCAT
specifies.
176 Costs incurred by administrator
(1) A court or tribunal may order that the costs
incurred by an administrator arising from
the administrator's dealings and transactions
relating to the financial matters specified in
the administration order or administration
(missing person) order may be paid out of, or
reimbursed from, the estate of the represented
person or missing person, whether or not the
appointment as administrator is no longer in
force or is revoked or set aside.
(2) An order referred to in subsection (1) may be
made on an application under section 64 or 125
or otherwise, and for that purpose, a reference in
section 64 or 125 to an administrator is taken to
include a reference to a person whose appointment
as an administrator has been revoked or set aside.
177 Resolution of disagreements between persons
appointed as guardians or administrators
(1) This section applies if--
(a) VCAT appoints for the same represented
person--
(i) more than one guardian; or
(ii) more than one administrator; or
(iii) both a guardian and an administrator; or
(b) VCAT appoints for the same missing person
more than one administrator.
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(2) A guardian or administrator must consult any
other guardian or administrator appointed for the
same represented person or missing person (as the
case requires) in relation to any overlap in the
exercise, in accordance with the relevant orders
made under this Act, of the guardian's or
administrator's powers.
(3) If there is a disagreement between persons
appointed as a guardian or an administrator for
the same represented person or missing person
(as the case requires) about the exercise of their
respective powers under each relevant order, the
appointed persons must--
(a) first, seek to resolve the disagreement by
informal means or by mediation; and
(b) second, if the disagreement continues, seek
advice from VCAT about how to resolve the
disagreement.
(4) Unless otherwise agreed by each person appointed
as a guardian or an administrator for the same
represented person or unless otherwise directed by
VCAT--
(a) a decision of a guardian prevails over a
decision of an administrator, to the extent of
any inconsistency; and
(b) subject to subsection (5), an administrator
must take any necessary steps to ensure that
a guardian's decision may be implemented.
(5) If an administrator reasonably believes that
taking steps to comply with the requirement of
subsection (4)(b) is likely to deplete seriously the
represented person's estate, the administrator--
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(a) is not required to comply with the
requirement of subsection (4)(b); and
(b) must seek advice from VCAT about how
to resolve the disagreement.
178 Enforcement orders
(1) A guardian or administrator may apply to VCAT
for an enforcement order in relation to a decision
or act that the guardian or administrator claims--
(a) is an exercise of the guardian's or
administrator's powers under this Act; and
(b) is not recognised as an exercise of the
guardian's or administrator's powers under
this Act, or given effect to, by another
specified person.
(2) The specified person referred to in subsection
(1)(b) is entitled to notice of the application.
Note
See section 72 of the VCAT Act.
(3) VCAT may make an order that the specified
person referred to in subsection (1)(b) recognise
or give effect to the decision or act that the
guardian or administrator claims is an exercise
of the guardian's or administrator's powers under
this Act if VCAT is satisfied that--
(a) the relevant decision or act is an exercise of
the guardian's or administrator's powers
under this Act; and
(b) the specified person has failed or refused
to recognise or give effect to the decision
or act as an exercise of the guardian's or
administrator's powers under this Act; and
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(c) the order will promote the personal and
social wellbeing of the represented person
or missing person for whom the guardian or
administrator is appointed.
Note
Section 133 of the VCAT Act provides that it is an offence
not to comply with an order of VCAT.
179 Matters before a Court
(1) If in any civil proceeding before a Court the
Court considers that a party may be in need of a
guardian, a supportive guardian, an administrator
or a supportive administrator, the Court may refer
the issue to VCAT for determination.
(2) If a Court refers an issue to VCAT under
subsection (1)--
(a) the referral is to be treated as if it were an
application to VCAT for the making of the
relevant order under this Act; and
(b) the prothonotary (in the case of a referral by
the Supreme Court) or the principal registrar
of the Court (in any other case) is to be taken
to be the applicant.
(3) If in any civil proceeding before a Court it is
adjudged or ordered that money be paid to a
person with a disability (whether or not that
person is a party to a cause or matter), the
money--
(a) is to be paid into court; and
(b) unless the Court otherwise orders, is to
be paid out to the administrator (if any)
for that person or State Trustees.
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(4) If any money--
(a) is paid into court before or after the
commencement of this section; and
(b) the money is being held in court on behalf
of a person with a disability--
the Court may by order direct that the money be
paid out to the administrator (if any) for that
person or State Trustees.
(5) If the Court adjudges or orders that property
(whether real or personal) be delivered up
or transferred to a person with a disability
(whether or not that person is a party to a
cause or matter), the Court--
(a) may order that the property be delivered up
or transferred to the administrator (if any) for
that person or State Trustees; and
(b) may give any directions for the service of the
order on that administrator or State Trustees
as it thinks fit.
(6) If an order under subsection (5) is served on an
administrator or State Trustees, the administrator
or State Trustees must accept delivery or transfer
of the property to which the order relates and the
acceptance of the property is a sufficient discharge
to the person delivering or transferring the
property.
(7) A copy of any order made under this section
must be given by the administrator or State
Trustees (as the case requires) to VCAT and the
Public Advocate.
(8) An order of the Court under this section that
money be paid out to an administrator (if any)
for a person or State Trustees has effect as if it
were an administration order.
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(9) In this section, Court means--
(a) the Supreme Court; or
(b) the County Court; or
(c) the Magistrates' Court.
180 Effect of setting aside administration order or
administration (missing person) order on previous
actions of administrator
(1) An order of a court or VCAT (the setting aside
order) that sets aside, or has the effect of setting
aside, an administration order or administration
(missing person) order does not affect the
validity of anything done in accordance with
the administration order or administration
(missing person) order before the setting aside
order takes effect.
(2) Subsection (1) is subject to any order to the
contrary by the court or VCAT making the
setting aside order.
181 Compensation for acts of guardian or administrator
(1) The Supreme Court or VCAT may order a
guardian or administrator to compensate the
represented person or missing person for whom
the guardian or administrator is appointed for a
loss caused by the guardian or administrator
contravening this Act when acting as guardian
or administrator.
(2) Subsection (1) applies even if--
(a) the guardian or administrator is convicted of
an offence in relation to the guardian's or
administrator's contravention; or
(b) the represented person or missing person has
died, in which case compensation is payable
to the estate of the represented person or
missing person; or
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(c) the order appointing the guardian or
administrator is no longer in force or
is revoked or set aside.
182 Relief from personal liability
If the Supreme Court or VCAT considers that a
guardian or administrator--
(a) is or may be personally liable for a
contravention of a provision of this Act; and
(b) acted honestly and reasonably and ought
fairly to be excused for the contravention--
the Supreme Court or VCAT may relieve the
guardian or administrator from all or part of that
personal liability.
183 Who can apply for an order for compensation?
The following persons may apply for an order for
compensation under section 181--
(a) the represented person or a person who has
ceased to be a represented person;
(b) a former missing person;
(c) the personal representative of a person
referred to in paragraph (a) or (b);
(d) an executor or administrator (within the
meaning of the Administration and
Probate Act 1958) of the represented
person's or missing person's estate;
(e) the Public Advocate;
(f) the nearest relative of the represented person
or missing person;
(g) any other person the Supreme Court or
VCAT determines to have a special interest
in the affairs of the represented person or
missing person.
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184 Time limit for application for order for
compensation
(1) An application for an order for compensation
under section 181 must be made--
(a) if the represented person or missing person
has died, within 6 months after that death; or
(b) if the guardian or administrator has died,
within 6 months after that death; or
(c) if both the represented person (or missing
person) and the guardian (or administrator)
have died, within 6 months after the first
death.
(2) The Supreme Court or VCAT may extend the
time specified under subsection (1).
185 VCAT may refer matter to Supreme Court
VCAT may refer to the Supreme Court an
application made to VCAT for an order for
compensation under section 181.
186 No compensation
No compensation is payable by the State in
relation to any damage, loss or injury sustained
by a person by reason of an act or omission of a
guardian or an administrator under this Act.
187 Judicial notice
All courts and persons acting judicially must
take judicial notice of the signature of any person
who is or has been the Public Advocate or Acting
Public Advocate and of the fact that that person
is or was the Public Advocate or Acting Public
Advocate (as the case requires).
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188 Offence for guardian to use guardianship order
dishonestly
(1) A guardian must not dishonestly use the
guardianship order to obtain financial
advantage for the guardian or another person.
Penalty: Level 6 imprisonment (5 years
maximum) or 600 penalty units
or both.
(2) A guardian must not dishonestly use the
guardianship order to cause loss to the
represented person or another person.
Penalty: Level 6 imprisonment (5 years
maximum) or 600 penalty units
or both.
189 Offence for administrator to use administration
order dishonestly
(1) An administrator must not dishonestly use the
administration order to obtain financial advantage
for the administrator or another person.
Penalty: In the case of a natural person, level 6
imprisonment (5 years maximum)
or 600 penalty units or both;
In the case of a body corporate,
2300 penalty units.
(2) An administrator must not dishonestly use the
administration order to cause loss to the
represented person or another person.
Penalty: In the case of a natural person, level 6
imprisonment (5 years maximum)
or 600 penalty units or both;
In the case of a body corporate,
2300 penalty units.
Note
Section 193 applies to an offence against subsection (1) or (2).
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190 Offence for administrator to use administration
(missing person) order dishonestly
(1) An administrator must not dishonestly use the
administration (missing person) order to obtain
financial advantage for the administrator or
another person.
Penalty: In the case of a natural person, level 6
imprisonment (5 years maximum)
or 600 penalty units or both;
In the case of a body corporate,
2300 penalty units.
(2) An administrator must not dishonestly use the
administration (missing person) order to cause
loss to the missing person or another person.
Penalty: In the case of a natural person, level 6
imprisonment (5 years maximum)
or 600 penalty units or both;
In the case of a body corporate,
2300 penalty units.
Note
Section 193 applies to an offence against subsection (1) or (2).
191 Offence for supportive guardian to use supportive
guardianship order dishonestly
(1) A supportive guardian must not dishonestly
use the supportive guardianship order to obtain
financial advantage for the supportive guardian
or another person.
Penalty: Level 6 imprisonment (5 years
maximum) or 600 penalty units
or both.
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(2) A supportive guardian must not dishonestly use
the supportive guardianship order to cause loss
to the supported person or another person.
Penalty: Level 6 imprisonment (5 years
maximum) or 600 penalty units
or both.
192 Offence for supportive administrator to use
supportive administration order dishonestly
(1) A supportive administrator must not dishonestly
use the supportive administration order to obtain
financial advantage for the supportive
administrator or another person.
Penalty: In the case of a natural person, level 6
imprisonment (5 years maximum)
or 600 penalty units or both;
(2) A supportive administrator must not dishonestly
use the supportive administration order to cause
loss to the supported person or another person.
Penalty: In the case of a natural person, level 6
imprisonment (5 years maximum)
or 600 penalty units or both;
193 Criminal liability of officers of bodies corporate--
failure to exercise due diligence
(1) If a body corporate commits an offence against a
provision specified in subsection (2), an officer
of the body corporate also commits an offence
against the provision if the officer failed to
exercise due diligence to prevent the commission
of the offence by the body corporate.
(2) For the purposes of subsection (1), the following
provisions are specified--
(a) section 43(5);
(b) section 189(1);
(c) section 189(2);
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(d) section 190(1);
(e) section 190(2).
(3) In determining whether an officer of a body
corporate failed to exercise due diligence, a
court may have regard to--
(a) what the officer knew, or ought reasonably
to have known, about the commission of the
offence by the body corporate; and
(b) whether or not the officer was in a position
to influence the body corporate in relation to
the commission of the offence by the body
corporate; and
(c) what steps the officer took, or could
reasonably have taken, to prevent the
commission of the offence by the body
corporate; and
(d) any other relevant matter.
(4) Without limiting any other defence available to
the officer, an officer of a body corporate may
rely on a defence that would be available to the
body corporate if it were charged with the offence
with which officer is charged and, in doing so, the
officer bears the same burden of proof that the
body corporate would bear.
(5) An officer of a body corporate may commit an
offence against a provision specified in subsection
(2) whether or not the body corporate has been
prosecuted for, or found guilty of, an offence
against that provision.
(6) In this section--
body corporate has the same meaning as
corporation has in section 57A of the
Corporations Act;
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officer, in relation to a body corporate, means--
(a) a person who is an officer (as defined
by section 9 of the Corporations Act)
of the body corporate; or
(b) a person (other than a person referred
to in paragraph (a)), by whatever name
called, who is concerned in, or takes
part in, the management of the body
corporate.
194 Regulations
(1) The Governor in Council may make regulations
for or with respect to--
(a) prescribing any treatment to be a special
medical procedure for the purposes of
Part 6; and
(b) prescribing annual fees to be paid in relation
to estates which are the subject of an
administration order; and
(c) any matter or thing authorised or required to
be prescribed or necessary to be prescribed
for carrying this Act into effect.
(2) Regulations under this Act--
(a) may be of general or of specially limited
application; and
(b) may differ according to differences in time,
place or circumstance; and
(c) may impose a penalty not exceeding
10 penalty units for any contravention
of the regulations.
(3) Regulations made under subsection (1)(b)--
(a) may prescribe fees in relation to a particular
class or classes of estates only; and
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(b) may prescribe different fees in relation to
different classes of estates; and
(c) may authorise VCAT to waive fees in
particular cases or classes of cases.
(4) Before the Governor in Council may make
regulations under subsection (1)(b), the Minister
must advise the Governor in Council that the
Minister--
(a) has consulted the President of VCAT; and
(b) is of the opinion that the fees to be charged
in the proposed regulations will not result in
an amount of fees being collected in any year
that will exceed the amount required to meet
the costs and expenses of VCAT in relation
to proceedings under this Act in that year.
195 Transitional regulations
(1) The Governor in Council may make regulations
containing provisions of a transitional nature,
including matters of an application or savings
nature, arising as a result of the enactment of this
Act, including any repeals and amendments made
by or as a result of the enactment of this Act.
(2) Regulations made under this section may--
(a) have a retrospective effect to a day on or
after a date not earlier than the day on which
this section comes into operation; and
(b) be of limited or general application; and
(c) differ according to time, place or
circumstance; and
(d) leave any matter or thing to be decided by a
specified person or class of person.
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(3) Regulations under this section have effect despite
anything to the contrary in any Act (other than
this Act or the Charter of Human Rights and
Responsibilities Act 2006) or in any subordinate
instrument.
(4) Sections 6 and 7 of the Subordinate Legislation
Act 1994 do not apply to any regulations made
under this section.
(5) This section expires on the second anniversary
of the day on which this section comes into
operation.
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196 Definitions
(1) In this Part--
commencement day means the day on which
section 197 comes into operation;
new Act means the Guardianship and
Administration Act 2019;
old Act means the Guardianship and
Administration Act 1986.
(2) A word or expression that is defined in the old Act
and is used in this Part in relation to the old Act
has the same meaning as is given in the old Act.
197 Guardianship and Administration Act 1986
repealed
(1) The Guardianship and Administration
Act 1986 is repealed.
(2) Except as is expressly or by necessary implication
provided in the new Act, all persons, things and
circumstances appointed or created by or under
the old Act or existing or continuing under the old
Act immediately before commencement day
continue under and subject to the new Act to have
the same status, operation and effect as they
would have had if the old Act had not been
repealed.
(3) On and after commencement day, any reference
in any Act (other than the new Act or regulations
under that Act), regulation, subordinate instrument
or other document whatsoever to the old Act is to
be construed as a reference to the new Act unless
the contrary intention appears.
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(4) Nothing in this Part limits or otherwise affects the
operation of the Interpretation of Legislation
Act 1984.
198 Guardianship orders made under the old Act
(1) Despite the repeal of the old Act, a guardianship
order made under section 22 or 33 of the old Act
and in force immediately before commencement
day remains in force for the period specified in the
order unless sooner revoked or set aside by an
order of a court or VCAT and--
(a) subject to anything to the contrary in this
Part, the provisions of the old Act continue
to apply, and the provisions of the new Act
do not apply, to the guardian appointed
under that guardianship order and to the
represented person; and
(b) without limiting the generality of
paragraph (a), the powers and duties of
the guardian appointed by the guardianship
order are the powers and duties conferred
on the guardian under the old Act; and
(c) if, before the revocation or setting aside
of the guardianship order, the alternative
guardian takes over the office of the guardian
in accordance with section 35 of the old Act,
the alternative guardian has the same powers
and duties with respect to the represented
person as the guardian had immediately
before the guardian's death, absence or
incapacity.
(2) On and after commencement day, the following
provisions of the new Act apply to the guardian
and to the represented person referred to in
subsection (1)--
(a) section 177 of the new Act (resolution of
disagreements);
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(b) section 178 of the new Act (enforcement
orders);
(c) sections 181 to 186 of the new Act
(compensation), as if the contravention
relevant to those provisions were a
contravention of a provision under the old
Act occurring after commencement day;
(d) section 188 of the new Act (offences to use
guardianship order dishonestly).
(3) On and after commencement day, a temporary
guardianship order made under section 33 of the
old Act may be renewed once in accordance with
section 33(2) of that Act and VCAT must hold a
hearing to determine whether a guardianship order
should be made under the new Act as soon as
practicable after the making of the temporary
order under the old Act but within 42 days after
making that order.
199 Administration orders made under the old Act
(1) Despite the repeal of the old Act, an
administration order made under section 46
or 60 of the old Act and in force immediately
before commencement day remains in force for
the period specified in the order unless sooner
revoked or set aside by an order of a court or
VCAT and--
(a) subject to anything to the contrary in this
Part, the provisions of the old Act continue
to apply in relation to the administrator
appointed under that administration order
and to the represented person; and
(b) without limiting the generality of
paragraph (a), the powers and duties
of the administrator appointed by the
administration order are the powers
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and duties conferred on the administrator
under the old Act.
(2) On and after commencement day, the following
provisions of the new Act apply to the
administrator and to the represented person
referred to in subsection (1)--
(a) section 51(3), (4) and (5) of the new Act,
if the administration order made under the
old Act conferred on the administrator
the power to bring and defend actions and
other legal proceedings in the name of the
represented person under section 58B of
the old Act;
(b) Division 8 of Part 3 of the new Act;
(c) section 177 of the new Act (resolution of
disagreements);
(d) section 178 of the new Act (enforcement
orders);
(e) sections 181 to 186 of the new Act
(compensation), as if the contravention
relevant to those provisions were a
contravention of a provision under the old
Act occurring after commencement day;
(f) section 189 of the new Act (offences to use
administration order dishonestly).
(3) On and after commencement day, a temporary
administration order made under section 60 of the
old Act may be renewed once in accordance with
section 60(2) of that Act and VCAT must hold a
hearing to determine whether an administration
order should be made under the new Act as soon
as practicable after the making of the temporary
order under the old Act but within 42 days after
making that order.
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200 Administration orders made under the old Act in
respect of the estate of a missing person
(1) Despite the repeal of the old Act, an
administration order made under section 60AB
or 60AG of the old Act and in force immediately
before commencement day remains in force for
the period specified in the order unless sooner
revoked or set aside by an order of a court or
VCAT and--
(a) subject to anything to the contrary in this
Part, the provisions of the old Act continue
to apply in relation to the administrator
appointed under that administration order
and to the missing person; and
(b) without limiting the generality of
paragraph (a), the powers and duties
of the administrator appointed by the
administration order are the powers
and duties conferred on the administrator
under the old Act.
(2) On and after commencement day, the following
provisions of the new Act apply to the
administrator and to the missing person referred
to subsection (1)--
(a) section 113(3), (4) and (5) of the new Act,
if the administration order made under the
old Act conferred on the administrator the
power to bring and defend actions and other
legal proceedings in the name of the missing
person under section 58B of the old Act
(as modified by section 60AI of the old Act);
(b) Division 5 of Part 5 of the new Act;
(c) section 177 of the new Act (resolution of
disagreements);
(d) section 178 of the new Act (enforcement
orders);
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(e) sections 181 to 186 of the new Act
(compensation), as if the contravention
relevant to those provisions were a
contravention of a provision under the old
Act occurring after commencement day;
(f) section 190 of the new Act (offences to
use administration (missing person) order
dishonestly).
(3) On and after commencement day, a temporary
administration order appointing an administrator
in respect of the estate of a missing person made
under section 60AG of the old Act may be
renewed once in accordance with section 60AG(2)
of that Act and VCAT must hold a hearing to
determine whether an administration (missing
person) order should be made under the new Act
as soon as practicable after the making of the
temporary order under the old Act but within
42 days after making that order.
201 Applications made under the old Act for
guardianship orders and administration orders
(1) On and after commencement day, an application
made under section 19 of the old Act for a
guardianship order that is not determined before
commencement day--
(a) is taken to be an application made under
section 22 of the new Act for a guardianship
order; and
(b) must be determined by VCAT in accordance
with the new Act.
(2) On and after commencement day, an application
made under section 43 of the old Act for an
administration order that is not determined before
commencement day--
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(a) is taken to be an application made under
section 23 of the new Act for an
administration order; and
(b) must be determined by VCAT in accordance
with the new Act.
(3) On and after commencement day, an application
made under section 60AA of the old Act for an
administration order in respect of the estate of a
missing person that is not determined before
commencement day--
(a) is taken to be an application made
under section 99 of the new Act for
an administration (missing person)
order; and
(b) must be determined by VCAT in
accordance with the new Act.
202 Special medical procedures
(1) On and after commencement day, an application
for the Tribunal's consent to the carrying out
of any special medical procedure made under
section 42B of the old Act that is not determined
before commencement day must be determined
in accordance with Part 6 of the new Act.
(2) On and after commencement day, a consent given
by the Tribunal under section 42E of the old Act
is taken to be a consent given by VCAT under
section 145 of the new Act.
(3) On and after commencement day, an authority
conferred by the Tribunal under section 42F of
the old Act is taken to be an authority conferred
by VCAT under section 146 of the new Act.
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203 Rehearings of orders made under the old Act
Despite the repeal of the old Act, on and after
commencement day--
(a) a person may apply under section 60A of
the old Act, within 28 days after an order
under that Act was made, for a rehearing
(or for leave to apply for a rehearing) in
relation to that order; and
(b) any application for a rehearing (or for leave
to apply for a rehearing) in relation to an
order made under the old Act that is not
determined before commencement day must
be determined by VCAT in accordance with
the old Act; and
(c) in conducting a rehearing in relation to an
order made under the old Act, VCAT is
taken to have the same powers and functions
as it had with respect to the matter at first
instance under the old Act; and
(d) any order made by VCAT in determining the
application for the rehearing is taken to be an
order under the old Act and, accordingly,
sections 198, 199 and 200 of the new Act
apply to that order.
204 Reassessments of orders made under the old Act
(1) A reassessment of an order made under the old
Act (irrespective of whether the application
for the reassessment is made before or after
commencement day or on VCAT's initiative
before or after commencement day) that is not
determined before commencement day must
be conducted in accordance with the new Act.
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(2) Despite anything to the contrary in
subsection (1)--
(a) in the course of conducting the
reassessment, VCAT is not to consider
whether, as the case requires--
(i) the guardian appointed at first instance
has performed duties in compliance
with section 41 of the new Act; or
(ii) the administrator appointed at first
instance in an administration order has
performed duties in compliance with
section 55 of the new Act; and
(b) on completing the reassessment, VCAT--
(i) must revoke the order; and
(ii) may make an order under the new Act.
205 Interstate orders
(1) On and after commencement day, an agreement
referred to in section 63D of the old Act is taken
to be an agreement referred to in section 171 of
the new Act.
(2) On and after commencement day, an interstate
order that is registered under section 63E of
the old Act is taken to be an interstate order
registered under section 172 of the new Act.
206 VCAT may make orders of a transitional nature
(1) If any difficulty arises in a proceeding because of
the operation of this Part, VCAT may make any
order of a transitional nature it considers
appropriate to resolve the difficulty.
(2) VCAT may make such an order on the application
of any party to the proceeding or on its own
initiative.
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1998 and other Acts
Part 11--Amendment of Victorian
Civil and Administrative Tribunal
Act 1998 and other Acts
Division 1--Victorian Civil and
Administrative Tribunal Act 1998
207 Definitions
In section 3 of the Victorian Civil and
Administrative Tribunal Act 1998, for
paragraph (d) of the definition of proceeding
substitute--
"(d) a rehearing or reassessment under Part 7
of the Guardianship and Administration
Act 2019;".
208 What is review jurisdiction?
In section 42(2) of the Victorian Civil and
Administrative Tribunal Act 1998, for "Part 6
of the Guardianship and Administration Act
1986" substitute "Part 7 of the Guardianship
and Administration Act 2019".
209 Proceeding files
After section 146(4)(c) of the Victorian Civil and
Administrative Tribunal Act 1998 insert--
"(ca) any determination by the principal registrar
under clause 37A of Part 9 of Schedule 1;".
210 Heading to Part 9 of Schedule 1 substituted
For the heading to Part 9 of Schedule 1 to the
Victorian Civil and Administrative Tribunal
Act 1998 substitute--
"Part 9--Guardianship and
Administration Act 2019".
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211 Constitution of Tribunal for proceedings
(1) For clause 31(1) and (2) of Schedule 1 to the
Victorian Civil and Administrative Tribunal
Act 1998 substitute--
"(1) Section 64(2)(a) does not apply to a
proceeding under the Guardianship and
Administration Act 2019, other than a
proceeding for--
(a) an urgent guardianship order or urgent
administration order referred to in
section 36 of that Act;
(b) an administration (missing person)
order or an urgent administration
(missing person) order under Part 5
of that Act.
(2) The Tribunal is to be constituted for the
purposes of a proceeding for an urgent
guardianship order or urgent administration
order referred to in section 36 of the
Guardianship and Administration
Act 2019 by--
(a) a presidential member sitting alone; or
(b) a member who is an Australian lawyer
sitting alone.".
(2) In clause 31(3) of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998,
for "Division 1 of Part 6 of the Guardianship
and Administration Act 1986" substitute
"Division 1 of Part 7 of the Guardianship and
Administration Act 2019".
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212 Notification of commencement
(1) In clause 32(1) of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998,
for "Guardianship and Administration
Act 1986" substitute "Guardianship and
Administration Act 2019".
(2) In clause 32(2) of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998--
(a) for "Guardianship and Administration
Act 1986" substitute "Guardianship and
Administration Act 2019";
(b) for "a temporary order" substitute
"an urgent order".
(3) For clause 32(3) of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998
substitute--
"(3) Subclause (2) does not apply to an
application for an administration
(missing person) order under Part 5 of
the Guardianship and Administration
Act 2019.".
213 Public Advocate may intervene or be joined
In clause 33 of Schedule 1 to the Victorian Civil
and Administrative Tribunal Act 1998, for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
214 Withdrawal of application does not preclude future
application
In clause 34 of Schedule 1 to the Victorian Civil
and Administrative Tribunal Act 1998, for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
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215 Referral to administrators for report
In clause 35(1) of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998,
for "Guardianship and Administration
Act 1986" substitute "Guardianship and
Administration Act 2019".
216 Proceeding not invalidated by failure to give notice
In clause 36 of Schedule 1 to the Victorian Civil
and Administrative Tribunal Act 1998, for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
217 Confidentiality of proceedings
(1) In clause 37(1) of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998,
for "Guardianship and Administration Act
1986" substitute "Guardianship and
Administration Act 2019".
(2) For clause 37(4) of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998
substitute--
"(4) This clause does not apply to an application
for an administration (missing person) order
under Part 5 of the Guardianship and
Administration Act 2019.".
218 New clause 37A inserted
After clause 37 in Part 9 of Schedule 1 to the
Victorian Civil and Administrative Tribunal
Act 1998 insert--
"37A Access to documents
(1) A person may make an application to the
principal registrar that any documents
lodged in relation to a proceeding under
the Guardianship and Administration
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Act 2019 not be disclosed to a specified
person or class of persons.
(2) The principal registrar must determine an
application under subclause (1) fairly and
according to the merits of the application.".
219 Settlement offers
In clause 38 of Schedule 1 to the Victorian Civil
and Administrative Tribunal Act 1998, for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
220 Subject matter for rules
At the end of Schedule 2 to the Victorian Civil
and Administrative Tribunal Act 1998 insert--
"A scale of remuneration to which persons
who carry on a business of, or including, the
administration of estates may be entitled to
under the Guardianship and Administration
Act 2019.".
Division 2--Amendments to other Acts
221 Consequential amendments
On the coming into operation of an item in
Schedule 1, the Act specified in the heading
to that item is amended as set out in the item.
222 Repeal of Part 11 and Schedule 1
Part 11 and Schedule 1 are repealed on
1 March 2021.
Note
The repeal of Part 11 and Schedule 1 does not affect the
continuing operation of the amendments made by that Part or the
Schedule (see section 15(1) of the Interpretation of Legislation
Act 1984).
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Schedule 1--Consequential amendments
1 Administration and Probate Act 1958
1.1 In sections 50(1)(a) and 51, for "section 53
of the Guardianship and Administration
Act 1986" substitute "section 76 or 136 of the
Guardianship and Administration Act 2019".
2 Appeal Costs Act 1998
2.1 In section 3(2)(a) and (b), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
3 Associations Incorporation Reform Act 2012
3.1 In section 78(2)(c)(iii), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
4 Australian Consumer Law and Fair Trading
Act 2012
4.1 In sections 47(1)(a)(ii), 48(6)(b) and 92(1)(g), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
5 Building Act 1993
5.1 In sections 25AE(1)(c)(iii), 80D(3)(b)(iii),
83B(1)(e) and 171F(1)(g), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
5.2 In section 90(3), for "administrator of the estate
of the adjoining owner under the Guardianship
and Administration Act 1986" substitute
"administrator for the adjoining owner under the
Guardianship and Administration Act 2019".
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6 Business Licensing Authority Act 1998
6.1 In the Schedule, in clause 3(1)(c), for
"Guardianship and Administration
Act 1986" substitute "Guardianship and
Administration Act 2019".
7 Child Wellbeing and Safety Act 2005
7.1 In section 41H(1)(j), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
8 Conveyancers Act 2006
8.1 In section 5(h), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
9 Coptic Orthodox Church (Victoria) Property Trust
Act 2006
9.1 In section 8(d), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
10 County Court Act 1958
10.1 In section 39B(5), for "the Tribunal within
the meaning of the Guardianship and
Administration Act 1986 and the Public
Advocate appointed under that Act" substitute
"VCAT and the Public Advocate within the
meaning of the Guardianship and
Administration Act 2019".
10.2 For section 39B(6) substitute--
"(6) An order of the Court under this section
that money be paid out to an administrator
has effect as if it were an administration
order under the Guardianship and
Administration Act 2019 and, subject
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to the order of the Court, the administrator
has all the powers and duties set out in
Divisions 6, 7 and 8 of Part 3 of that Act.".
10.3 In section 39C(6), for "section 66 of the
Guardianship and Administration Act 1986"
substitute "section 179 of the Guardianship and
Administration Act 2019".
11 Crimes Act 1958
11.1 In section 175(1), in the definition of trustee, for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
12 Disability Act 2006
12.1 In section 3(1)--
(a) for the definition of Public Advocate
substitute--
"Public Advocate has the same meaning
as in the Guardianship and
Administration Act 2019;";
(b) in the definition of resident's guardian, in
paragraph (a)(i), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
12.2 After section 39(4)(cc) insert--
"(cd) to a supportive administrator acting under a
supportive administration order within the
meaning of the Guardianship and
Administration Act 2019;
(ce) to a supportive guardian acting under a
supportive guardianship order within the
meaning of the Guardianship and
Administration Act 2019;".
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12.3 In section 144(2), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
12.4 In section 200, for "in respect of whom
a guardianship order in force under the
Guardianship and Administration
Act 1986" substitute "in relation to whom
a guardianship order under the Guardianship
and Administration Act 2019 has effect".
13 Duties Act 2000
13.1 In section 57G(1), in the definition of guardian,
for paragraph (b) substitute--
"(b) an administrator for the person within
the meaning of the Guardianship and
Administration Act 2019;".
14 Estate Agents Act 1980
14.1 In sections 14(5)(da) and 16(1)(da), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
14.2 In sections 22(1)(c) and 31E(1)(c), for
"Guardianship and Administration Board
Act 1986" substitute "Guardianship and
Administration Act 2019".
15 Family Violence Protection Act 2008
15.1 In section 4, in the definition of guardian, for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
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15.2 For the note at the foot of sections 64(1) and 112
substitute--
"Note
In relation to resolving an issue between the guardian
appointed under the Guardianship and Administration
Act 2019 and the affected family member, see sections 44
and 159 of that Act. Section 44 provides that the guardian
may seek advice from VCAT and section 159 provides for
the reassessment of a guardianship order by VCAT.".
15.3 In section 144ND(3), in the definition of
authorised representative, for paragraph (c)
substitute--
"(c) an administrator appointed for the primary
person or linked person in an administration
order made under the Guardianship and
Administration Act 2019; or".
16 First Home Owner Grant Act 2000
16.1 In section 3(1), in the definition of guardian, for
paragraph (b) substitute--
"(b) an administrator for the person appointed in
an administration order made under the
Guardianship and Administration
Act 2019;".
17 Fundraising Act 1998
17.1 In sections 19A(1)(c), 24B(1)(a)(iii)
and 34(1)(f)(i)(C), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
18 Gambling Regulation Act 2003
18.1 In sections 3.4.24(3)(a)(iv), 7.3.15(1)(b)
and 7.3.17(c), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
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19 Health Records Act 2001
19.1 In section 85(2)(a)(iii), for "and" substitute "or".
19.2 After section 85(2)(a)(iii) insert--
"(iv) a supportive administrator acting under a
supportive administration order within the
meaning of the Guardianship and
Administration Act 2019; or
(v) a supportive guardian acting under a
supportive guardianship order within the
meaning of the Guardianship and
Administration Act 2019; and".
19.3 In section 85(4) and (6)(d), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
20 Health Services Act 1988
20.1 In section 3(1)--
(a) for the definition of Public Advocate
substitute--
"Public Advocate has the same meaning
as in the Guardianship and
Administration Act 2019;";
(b) for the definition of resident's guardian
substitute--
"resident's guardian means the resident's
guardian appointed under the
Guardianship and Administration
Act 2019 or appointed by a court;".
21 Housing Act 1983
21.1 In section 142C(2), in the definition of personal
details, in paragraph (c), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
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22 Human Services (Complex Needs) Act 2009
22.1 In section 3, in the definition of Public Advocate,
for "Guardianship and Administration
Act 1986" substitute "Guardianship and
Administration Act 2019".
22.2 In section 21(b)(i), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
23 Independent Broad-based Anti-corruption
Commission Act 2011
23.1 In sections 25(1)(f) and 27(1)(f), for
"Guardianship and Administration
Act 1986" substitute "Guardianship
and Administration Act 2019".
24 Juries Act 2000
24.1 In Schedule 2, in clause 3(d), for
"Guardianship and Administration
Act 1986" substitute "Guardianship
and Administration Act 2019".
25 Land Act 1958
25.1 In section 110(3), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
25.2 In section 110(4), for "under the Guardianship
and Administration Act 1986" substitute
"appointed in an administration order made
under the Guardianship and Administration
Act 2019".
25.3 In section 353(5), for "under the Guardianship
and Administration Act 1986" substitute "in a
guardianship order or an administration order
made under the Guardianship and
Administration Act 2019".
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26 Land Tax Act 2005
26.1 In section 3(1), in the definition of concessional
trust, in paragraph (a)(i), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
27 Limitation of Actions Act 1958
27.1 For section 3(3) substitute--
"(3) Without limiting the meaning of unsound
mind, a person is conclusively presumed
to be of unsound mind if the person is a
represented person within the meaning of
the Guardianship and Administration
Act 2019.".
27.2 In section 27J(4)--
(a) for the definition of guardian substitute--
"guardian, in relation to a represented
person, means the guardian or
administrator for that person under the
Guardianship and Administration
Act 2019;";
(b) for the definition of represented person
substitute--
"represented person means a represented
person within the meaning of the
Guardianship and Administration
Act 2019.".
28 Liquor Control Reform Act 1998
28.1 In sections 66(c) and 85(a)(ii), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
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28.2 In section 80(1)(b), for "under the Guardianship
and Administration Act 1986" substitute "in a
guardianship order or an administration order
made under the Guardianship and
Administration Act 2019".
29 Magistrates' Court Act 1989
29.1 For section 101A(5) and (6) substitute--
"(5) A copy of any order made under this
section must be given by the administrator
to VCAT and to the Public Advocate within
the meaning of the Guardianship and
Administration Act 2019.
(6) An order of the Court under this section
that money be paid out to an administrator
has effect as if it were an administration
order under the Guardianship and
Administration Act 2019 and, subject to
the order of the Court, the administrator
has all the powers and duties set out in
Divisions 6, 7 and 8 of Part 3 of that Act.".
29.2 In section 101B(6), for "section 66 of the
Guardianship and Administration Act 1986"
substitute "section 179 of the Guardianship
and Administration Act 2019".
30 Marine Safety Act 2010
30.1 In section 298A, in the definition of
authorised representative, in paragraph (d),
for "Guardianship and Administration
Act 1986" substitute "Guardianship and
Administration Act 2019".
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31 Medical Treatment Planning and Decisions Act 2016
31.1 In section 3(1)--
(a) in the definition of Public Advocate, for
"Guardianship and Administration
Act 1986" substitute "Guardianship
and Administration Act 2019";
(b) in the definition of special medical
procedure, for "the Guardianship and
Administration Act 1986" substitute
"section 140 of the Guardianship and
Administration Act 2019".
31.2 For the note at the foot of sections 12(3)(c)(i),
57(2) and 64 substitute--
"Note
See Part 6 of the Guardianship and Administration
Act 2019.".
31.3 In section 55(2), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
32 Mental Health Act 2014
32.1 In section 3(1)--
(a) in the definition of guardian, for
"Guardianship and Administration
Act 1986" substitute "Guardianship
and Administration Act 2019";
(b) for the definition of Public Advocate
substitute--
"Public Advocate has the same meaning
as in the Guardianship and
Administration Act 2019;".
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32.2 In section 75(1)(c), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
33 Motor Car Traders Act 1986
33.1 In sections 13(4)(k) and (6)(l)(i), 28(1)(c)
and 33(1)(c), for "Guardianship and
Administration Board Act 1986" substitute
"Guardianship and Administration Act 2019".
34 Owners Corporations Act 2006
34.1 In sections 179(b), 186(a) and 187(1)(c), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
35 Parliamentary Budget Officer Act 2017
35.1 In section 11(e), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
36 Partnership Act 1958
36.1 In section 39(a), for "under the Guardianship
and Administration Act 1986" substitute
"in a guardianship order or an administration
order made under the Guardianship and
Administration Act 2019".
37 Personal Safety Intervention Orders Act 2010
37.1 In section 4, in the definition of guardian, for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
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37.2 For the note at the foot of sections 46(1) and 89(1)
substitute--
"Note
In relation to resolving an issue between the guardian
appointed under the Guardianship and Administration
Act 2019 and the affected person, see sections 44 and 159
of that Act. Section 44 provides that the guardian may
seek advice from VCAT and section 159 provides for
the reassessment of a guardianship order by VCAT.".
38 Powers of Attorney Act 2014
38.1 In section 3(1), in the definitions of
administration order and guardianship
order, for "Guardianship and Administration
Act 1986" substitute "Guardianship and
Administration Act 2019".
38.2 In section 3(1), for the definition of Public
Advocate substitute--
"Public Advocate has the same meaning as in
the Guardianship and Administration
Act 2019;".
38.3 For section 123(4)(e)(i) substitute--
"(i) any guardian for the principal, within
the meaning of the Guardianship and
Administration Act 2019;".
38.4 Section 123(4)(e)(ii) is repealed.
38.5 For section 123(4)(e)(iii) and (iv) substitute--
"(iii) any administrator for the principal
appointed in an administration order
made under the Guardianship and
Administration Act 2019;
(iv) the primary carer of the principal, within
the meaning of the Medical Treatment
Planning and Decisions Act 2016;".
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39 Privacy and Data Protection Act 2014
39.1 In section 28(2)(a)(ii), for "and" substitute "or".
39.2 After section 28(2)(a)(ii) insert--
"(iii) a supportive administrator acting under a
supportive administration order within
the meaning of the Guardianship and
Administration Act 2019; or
(iv) a supportive guardian acting under a
supportive guardianship order within the
meaning of the Guardianship and
Administration Act 2019; and".
39.3 In section 28(6), in the definition of authorised
representative, in paragraph (a)(iv), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
40 Professional Standards Act 2003
40.1 In Schedule 2, in clause 5(1)(e), for
"Guardianship and Administration
Act 1986" substitute "Guardianship
and Administration Act 2019".
41 Property Law Act 1958
41.1 In section 30(1), for "in respect of whose
estate an administrator is appointed under the
Guardianship and Administration Act 1986"
substitute "for whom an administrator is
appointed in an administration order made
under the Guardianship and Administration
Act 2019".
41.2 In section 30(2), for "in respect of whom a
guardian is appointed under the Guardianship
and Administration Act 1986" substitute
"for whom a guardian is appointed under the
Guardianship and Administration Act 2019".
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41.3 In section 171(9), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
42 Public Health and Wellbeing Act 2008
42.1 In section 138(3)(b), for "any person responsible
under the Guardianship and Administration
Act 1986" substitute "the medical treatment
decision maker (within the meaning of the
Medical Treatment Planning and Decision
Act 2016)".
43 Road Safety Act 1986
43.1 In section 90I, in the definition of
authorised representative, in paragraph (d),
for "Guardianship and Administration
Act 1986" substitute "Guardianship and
Administration Act 2019".
44 Rooming House Operators Act 2016
44.1 In sections 17(1)(d), 18(1)(b)(iii), 41(1)(c)
and 82(3)(c), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
45 Second-Hand Dealers and Pawnbrokers Act 1989
45.1 In sections 6(1)(a), 10(1)(a) and 18(1)(c),
for "Guardianship and Administration
Act 1986" substitute "Guardianship
and Administration Act 2019".
46 Sentencing Act 1991
46.1 In section 105(1), in the definition of applicant,
in paragraph (b), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
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47 Severe Substance Dependence Treatment Act 2010
47.1 In section 4--
(a) for the definition of guardian substitute--
"guardian has the same meaning as in the
Guardianship and Administration
Act 2019;";
(b) in the definition of Public Advocate, for
"Guardianship and Administration
Act 1986" substitute "Guardianship
and Administration Act 2019".
47.2 In section 6(2), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
48 Sex Offenders Registration Act 2004
48.1 In section 3(1), in the definition of guardianship
order, for "Guardianship and Administration
Act 1986" substitute "Guardianship and
Administration Act 2019".
49 Sex Work Act 1994
49.1 In sections 37(1)(g), 47(1)(g), 47A(1)(c),
51(1)(g) and 53(1)(f), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
50 State Trustees (State Owned Company) Act 1994
50.1 In section 3--
(a) the definition of protected person is
repealed;
(b) for the definition of represented person
substitute--
"represented person means a represented
person within the meaning of the
Guardianship and Administration
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Act 2019 for whom State Trustees is
appointed as administrator under that
Act;".
50.2 In section 12(5)--
(a) for "Guardianship and Administration
Act 1986" substitute "Guardianship and
Administration Act 2019";
(b) in paragraph (d), for "Divisions 3 and 3A of
Part 5" substitute "Divisions 6, 7 and 8 of
Part 3".
50.3 In sections 13(1)(d) and 14(2)(c)(i), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
50.4 Section 14(2)(c)(ii) is repealed.
50.5 In section 17(1) and (2) omit "or a protected
person".
50.6 For section 19(a)(i) substitute--
"(i) an administration order made under the
Guardianship and Administration
Act 2019 appointing State Trustees as
administrator for a person is in force; or".
50.7 Section 19(a)(ii) and (b)(ii) is repealed.
51 Supported Residential Services (Private
Proprietors) Act 2010
51.1 In section 3(1)--
(a) in the definition of Public Advocate, for
"Guardianship and Administration
Act 1986" substitute "Guardianship
and Administration Act 2019";
(b) in the definition of resident's administrator,
in paragraph (b), after "property;" insert
"or";
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(c) in the definition of resident's administrator,
after paragraph (b) insert--
"(c) a person appointed as administrator for
the resident under the Guardianship
and Administration Act 2019;";
(d) in the definition of resident's guardian, for
paragraph (a)(i) substitute--
"(i) under the Guardianship and
Administration Act 2019; or".
51.2 In section 35(1)(a)(ii), (b)(ii) and (2)(b), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
51.3 In the note at the foot of section 45(1), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
52 Supreme Court Act 1986
52.1 For section 51A(5) and (6) substitute--
"(5) A copy of any order made under this section
must be given by the administrator to VCAT
and the Public Advocate within the meaning
of the Guardianship and Administration
Act 2019.
(6) An order of the Court under this section
that money be paid out to an administrator
has effect as if it were an administration
order under the Guardianship and
Administration Act 2019 and, subject to
the order of the Court, the administrator
has all the powers and duties set out in
Divisions 6, 7 and 8 of Part 3 of that Act.".
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52.2 In section 113(1), for "section 66 of the
Guardianship and Administration Act 1986"
substitute "section 179 of the Guardianship
and Administration Act 2019".
52.3 In section 113B(1)--
(a) for paragraph (a) substitute--
"(a) an administrator has not been
appointed under the Guardianship
and Administration Act 2019 for a
person; and";
(b) for "section 58B(2)" substitute "section 52".
52.4 For section 113B(2) substitute--
"(2) The Senior Master ceases to have the powers
conferred by subsection (1) if another person
is appointed under the Guardianship and
Administration Act 2019 as administrator
for the person.".
53 The Uniting Church in Australia Act 1977
53.1 In section 15(1)(d), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
54 Transport Accident Act 1986
54.1 In section 3(1), in the definition of administration
order and administrator, for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
55 Trustee Act 1958
55.1 In section 41(9)(a), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
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56 Trustee Companies Act 1984
56.1 In section 14(2), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
56.2 In section 17(1)(c), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
57 Unclaimed Money Act 2008
57.1 In section 87(2)(c) and (3)(a)(iii), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
58 Victims of Crime Assistance Act 1996
58.1 In section 3(1), for the definition of guardian
substitute--
"guardian, in relation to a victim or applicant
(except in section 25(3) and (4)), does not
include the Secretary within the meaning
of the Children, Youth and Families
Act 2005 or a guardian appointed under
the Guardianship and Administration
Act 2019 or any other government agency;".
58.2 In section 25(4), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
58.3 In section 70A(4), for "section 66 of the
Guardianship and Administration Act 1986"
substitute "section 179 of the Guardianship and
Administration Act 2019".
59 Victoria Police Act 2013
59.1 In section 246, in the definition of
personal representative, in paragraph (b),
for "Guardianship and Administration
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Act 1986" substitute "Guardianship and
Administration Act 2019".
59.2 In Schedule 1, in clauses 2(b) and 7(b), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2019".
60 Victorian Inspectorate Act 2011
60.1 In section 22(1)(g), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2019".
61 Wills Act 1997
61.1 For section 21C(d) substitute--
"(d) any guardian or administrator for the person
appointed under the Guardianship and
Administration Act 2019;".
62 Workplace Injury Rehabilitation and Compensation
Act 2013
62.1 In section 310(3)(a), for "in respect of the worker
under the Guardianship and Administration
Act 1986" substitute "for the worker under the
Guardianship and Administration Act 2019".
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Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech--
Legislative Assembly:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to re-enact
with amendments the law relating to guardianship and administration, to
repeal the Guardianship and Administration Act 1986 and to amend
consequentially various other Acts and for other purposes."
By Authority. Government Printer for the State of Victoria.
184