The State Government increased the protection of Victoria’s vulnerable citizens by the passing of the Guardianship & Administration Act 2019 (the Act) in the most significant updating of the law in this area for over 30 years. It will commence once proclaimed and no later than 1 March 2020. It adopted a more up-to-date understanding of disability, decision-making and capacity. The key changes are:
1. Criminal offences
There will be criminal offences for Guardians and Administrators who abuse their appointment and act dishonestly for their own financial gain. When they are convicted of their crimes, they face fines of up to $95,000 or prison terms of up to five years.
2. Presumption of capacity
There will be a presumption that the proposed represented person has the capacity to make his/her own decision, unless there is evidence to the contrary.
3. Supportive decision-making
When a minor impairment in decision-making capacity is proved, the Act will allow Victorian Civil and Administrative Tribunal (VCAT) to appoint a Supportive Guardian or Supportive Administrator, who will support the older person to make decisions. The Act directs that VCAT only deprive the person of the ability to make the decision for himself/herself when this restriction cannot be avoided.
4. Appointments that suit the older person
The Act permits VCAT to better design the appointment to suit an individual older person’s circumstances.
5. The older person is to attend VCAT
VCAT will require attendance at VCAT of the proposed represented person unless VCAT is satisfied that the person prefers not to attend the Tribunal or is satisfied there is a proper reason for the person’s absence.
Persons who are subject to the Act may seek compensation for any loss that is caused by Guardians and Administrators who do not properly perform their duties.
The changes will modernise the Act and will reflect a better understanding of the decision-making capacity and disability to ensure that the wishes and the preferences of a person are fully respected and followed at all times.