On 19 December 2018, the Guardianship and Administration Bill 2018 (“the Bill”) was introduced. An overview of the Bill can be found in our first article of the series here.
This article is the third in our series, and will focus on the new regime of supported decision-making, a key change under the Bill.
What is supported decision-making?
Supported decision-making is a concept of growing importance in line with changing views on disability.
As distinct from “substituted” decision-making – where a third party makes a decision for the represented person – supported decision-making enables encourages individuals with disabilities to make their own decisions about their lives with the support of others. It offers an alternative to guardianship or administration orders, which recognises that individuals with a disability can often preserve their autonomy with support.
Supported decision-making is becoming preferred over substituted decision-making where possible. The provisions of the Bill reflect similar reforms implemented in several pieces of recent legislation including the Powers of Attorney Act 2014 (Vic) (POA Act) and the Medical Treatment Planning and Decisions Act 2016 (Vic) (MT Act).
New powers in the Bill
The Bill introduces the concept of supportive guardians and supportive administrators. VCAT will have the power to appoint these supportive roles under orders.
When making supportive orders, VCAT will need to consider the following:
- Decision-making capacity – VCAT will only be able to make supportive orders if it is satisfied that the power will ensure that the support given will enable the supported person to have decision-making capacity in relation to the relevant personal or financial matters.
- Scope of powers – the orders can confer a range of powers including allowing a person to access and collect information on behalf of another, communicate information and decisions and give effect to decisions.
Unlike guardianship and administration orders, supportive roles will only be able to take action to support the individual to make decisions as opposed to making decisions on their behalf.
Duties of supportive guardians and supportive administrators
Supportive guardians and administrators have a broad range of duties which include a duty to:
- act honestly, diligently and in good faith;
- exercise reasonable skill and care;
- not use the position for profit;
- not act where there is or may be a conflict and if there is a conflict, ensuring that the interests of the supported person are the primary consideration;
- discuss anything relating to a supported decision with the supported person in a way that the supported person can understand and that will assist them in making the decision;
- not assist the supported person to conduct any illegal activity; and
- not coerce, intimidate or any way unduly influence the supported person.
Supportive guardians and administrators cannot be remunerated for their role. They must also advise VCAT of the death of the supported person in writing as soon as practicable.
Supportive guardians and administrations that act dishonestly to obtain a financial advantage or cause loss to the supported person or another person are liable for a maximum of 5 years imprisonment or 600 penalty units or both.
When is a supportive order more suitable?
A supportive order may be more suitable than a guardianship or administration order if the supported individual has the capacity to make decisions, albeit with the support of others.
This could include individuals suffering from early cognitive decline who might need help accessing accounts or remembering passwords or individuals with a physical disability that require assistance in collecting information or enacting decisions.
The process for determining and applying for a supportive order is complex and individuals should consider obtaining legal advice.
If an individual has decision-making capacity, they can continue to appoint a “supportive attorney” of their choosing, without going to VCAT. For information about “supportive attorneys”, please see our previous article here.
How we can help
If you seek further advice about these matters, please do not hesitate to contact us.
This article is part of our Guardianship and Administration Bill series:
Click here for Guardianship and Administration Bill 2018 – Overview
Click here for Guardianship and Administration Bill 2018 – Administrator liability and new offences