Key lessons learnt from recent VCAT decisions under new Guardianship and Administration Act

The new Guardianship and Administration Act 2019 (new Act) commenced on 1 March 2020. VCAT has now handed down two decisions since the new Act commenced, and provides some guidance around what can be expected under the new Act. Many of our organisational clients interact with persons with a disability (whether their participants or residents), or work closely with administrators or guardians appointed by VCAT. It will be essential to understand the provisions of the new Act, which are a significant departure from the Guardianship and Administration Act 1986 (old Act).

New Act vs Old Act

There are substantial differences in the role of administrators and guardians under the new Act. The old Act required decisions to be made in the best interests of the represented person. The new Act requires decisions to be made, giving priority to the represented person’s will and preferences (unless, by doing so, there is a risk of serious harm to the person). It represents a shift from a paternalistic approach to persons with a disability, to a rights and person-centred approach to decision making.

Tribunal Decisions and the new Act

VCAT handed down its first decision under the new Act commenced on 29 April 2020. The decision of EHV (Guardianship) [2020] VCAT 501 considered whether EHV’s share in a property should be sold, where EHV’s “will and preference” was that the property not be sold. EHV participated in all hearings, and objected to the sale of the property. 

EHV is 63 and suffers from an acquired brain injury as a result of long term alcohol and drug abuse, and was living at an aged care facility at the time of the hearing. Each of his prior attempts to live in the property resulted in a relapse to substance use, admissions to hospital or arrest for intoxication-related offences. EHV’s income fell short of his basic expenses by $100 per fortnight, and he owed debts of approximately $11,000.

EHV’s administrator sought advice from VCAT about whether it could sell the property. The application was made under the old Act, but by the time it was heard the new Act was in force. The Tribunal determined that the property should be sold, and overriding EHV’s will and preference was necessary to avoid a risk of serious (financial) harm. The Tribunal also determined the sale of the property did not offend EHV’s rights under the Victorian Charter of Human Rights and Responsibilities Act for two reasons – while a person has a right to choose where they live, freedom to choose is dependent on a person’s ability to afford accommodation. Further, the Tribunal found the sale of the property did not amount to an unlawful or arbitrary sale, but rather a cautious and steady approach by the administrator.

Key lessons

The key take-aways from the first decision are:

  • The new Act applies to administrators appointed under the new act, but the old Act applies to administrators appointed under the old Act
  • The overarching principles of the new Act will be applied in all cases, including where the administrator or guardian was appointed under the old Act (although the decision maker’s obligations under the old Act will still apply)
  • A human rights assessment will be increasingly incorporated in Tribunal decisions.

How we can help

If you have questions about your residents or your obligations when dealing with guardians and administrators, please do not hesitate to contact Jessica Latimer, Special Counsel and elder financial abuse expert on (03) 9843 2100 or via our contact us form.

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