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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Guardianship and Administration Bill 2014
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purposes 1
2 Commencement 2
3 Definitions 2
4 Meaning of decision making capacity 14
5 Assessing decision making capacity 16
6 Objectives of Act 16
7 Guardianship and administration principles 17
PART 2--THE PUBLIC ADVOCATE 19
8 Public Advocate 19
9 Terms and conditions of appointment 19
10 Resignation and vacancy 19
11 Acting Public Advocate 20
12 Oath or affirmation 21
13 Functions of the Public Advocate 22
14 Powers and duties of the Public Advocate 23
15 Staff of office of the Public Advocate 25
16 Delegation 25
17 Powers of inspection 26
18 Confidentiality 28
19 Annual report 29
PART 3--APPLICATION FOR GUARDIANSHIP AND
ADMINISTRATION ORDERS 30
20 Application for guardianship or administration order 30
21 Matters to be included in application to VCAT 31
22 Who are the parties to a proceeding on an application? 31
23 Who is entitled to notice of an application, the hearing and
any order made in the proceeding? 32
24 Contents of notice of application 33
25 Date for hearing of application for guardianship or
administration order 34
26 Participation of proposed represented person at hearing 35
27 Special powers in relation to proposed represented persons 35
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PART 4--CONDITIONS FOR MAKING GUARDIANSHIP AND
ADMINISTRATION ORDERS AND ELIGIBILITY OF PERSON
APPOINTED 37
28 VCAT may make a guardianship or administration order 37
29 Factors to consider in determining need for guardian or
administrator 38
30 Persons eligible as guardians or administrators 39
31 Factors to consider in relation to suitability of person
appointed 40
32 Other matters pertaining to appointments 42
33 Wishes for future appointments may be lodged 43
PART 5--GUARDIANSHIP AND ADMINISTRATION ORDERS
APPOINTING A PARENT AS GUARDIAN OR ADMINISTRATOR 44
34 Application provision 44
35 Parental application for guardianship or administration order 44
36 Matters to be included in application 46
37 Who are the parties to a proceeding? 49
38 Who is entitled to notice of an application? 49
39 Contents of notice of an application 50
40 Submissions may be made in relation to an application 50
41 When must VCAT make a guardianship or administration
order on the papers? 51
42 When must VCAT commence hearing in relation to
application for a guardianship order or an administration
order? 51
43 Participation of proposed represented person at hearing 52
44 When must VCAT make guardianship or administration
order following hearing? 52
45 Reassessment of orders made under this Part 53
46 VCAT may request information and documents 54
47 VCAT must give notice 54
48 Conduct of reassessment 55
49 Order after reassessment 56
PART 6--POWERS AND DUTIES OF GUARDIANS AND
ADMINISTRATORS 57
Division 1--Guardians 57
50 Authority of a guardian 57
51 Appointment and authority of an alternative guardian 58
52 Temporary guardianship orders 59
53 Authority of guardians--general 59
54 Represented person to comply with guardian's decisions 60
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Division 2--Administrators 60
55 Authority of administrator 60
56 Temporary administration orders 61
Division 3--Powers and duties of all guardians and all
administrators 62
57 Matters for which power cannot be given under an order
made under section 28 62
58 Exercise of power by guardian or administrator 63
59 Ancillary powers of guardian or administrator 64
60 Guardian or administrator may seek advice 64
61 Notice of death of represented person 65
Division 4--Powers for all guardians with powers in relation to a
financial matter and all administrators 65
62 General powers and rights in relation to estate of
represented persons 65
63 Powers of investment 65
64 Power to make gifts 66
65 Exercise of certain powers 67
66 Guardian with powers in relation to a financial matter
or administrator may open will 68
67 Guardian with powers in relation to a financial matter or an
administrator may seek advice from professional adviser 69
Division 5--Powers that may be conferred on guardians with
power in relation to a financial matter and administrators 69
68 Application of Division to guardians and administrators 69
69 Powers in relation to represented persons 70
Division 6--Additional duties of all guardians with power in
relation to a financial matter and all administrators 73
70 Property of represented person 73
71 Conflict transactions 73
72 Permitted conflict transactions 74
73 Keeping records 74
74 Separation of guardian's or administrator's property and the
property of the represented person 74
75 Accounts 75
76 Alternative accounting requirements for certain estates 77
Division 7--Other matters pertaining to the administration
of estates of represented persons 78
77 Guardian's or administrator's power to act until notice
received 78
78 Action on a person ceasing to be a represented person 79
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79 Represented person entitled to inspection of accounts 80
80 Sale of personal effects if unclaimed within 2 years from
date of discharge 80
81 Death of represented person 81
82 Restriction on powers of represented person in relation
to estate 81
83 Interest of represented person in property not to be altered
by sale or other disposition of property 82
84 VCAT may open will 83
85 Guardianship and Administration Fund 83
86 Application to VCAT by represented person or a person
interested 84
PART 7--SUPPORTIVE GUARDIANSHIP ORDERS 85
Division 1--Application for supportive guardianship orders 85
87 Application for supportive guardianship orders 85
88 Matters to be included in application to VCAT 85
89 Who are the parties to a proceeding? 85
90 Who is entitled to notice of an application, the hearing
and any order made in the proceeding? 86
91 Contents of notice of application 87
92 Date for hearing of application for supportive guardianship
order 88
93 Participation at hearing by proposed supported person 88
Division 2--Conditions for making supportive guardianship
orders and eligibility of person appointed 89
94 When may VCAT make a supportive guardianship order? 89
95 Conditions for making supportive guardianship orders 89
96 Factors to consider in determining appropriateness of
supportive guardianship order 90
97 Persons eligible as supportive guardians 90
98 Factors to consider in relation to suitability of person
appointed 91
Division 3--Powers of a supportive guardian 91
99 Power to make and scope of appointment 91
100 Information power 92
101 Communication power 93
102 Powers as to giving effect to decisions 93
103 Duties and obligations of supportive guardian 94
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Division 4--General 95
104 When does a supportive guardianship order cease to have
effect? 95
105 Supportive guardian may seek advice from VCAT 95
106 Notice of death of supported person 96
PART 8--ADMINISTRATION (MISSING PERSON) ORDERS 97
Division 1--Application of administration (missing person) orders 97
107 Application for administration in relation to the estate of a
missing person 97
108 Who is entitled to notice of an application, the hearing and
any order made in the proceeding? 97
109 Contents of notice of application 98
110 Date for hearing 99
Division 2--Conditions for making administration (missing
person) orders and eligibility of person appointed 100
111 Appointment of administrator in relation to the estate of a
missing person 100
112 Persons eligible as administrator of missing person's estate 101
113 Factors to consider in relation to suitability of person
appointed 102
114 Other matters pertaining to appointments 103
Division 3--Powers of administrator (missing person) 103
115 Powers and duties of administrator appointed under this
Part 103
116 Exercise of power by administrator 105
117 Conflict transactions 105
118 Permitted conflict transactions 106
119 Keeping records 107
120 Separation of administrator's and missing person's property 107
121 Ancillary powers of administrator 107
122 Powers of investment 107
123 Administrator may seek advice from VCAT 108
124 Administrator may seek advice from professional adviser 109
125 Accounts 109
126 Alternative accounting requirements for certain estates 111
127 Administrator may open will 112
Division 4--Powers and duties that may be conferred on
administrators in relation to missing persons 112
128 Powers and duties in relation to missing persons 112
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Division 5--General 115
129 Interest of missing person in property not to be altered by
sale or other disposition of property 115
130 VCAT may open will 116
131 Application to VCAT by a person interested 116
132 Power of administrator to act until notice of discharge etc.
received 116
133 Action upon a person ceasing to be a missing person 117
134 Former missing person entitled to inspection of accounts 118
135 Sale of personal effects if unclaimed within 2 years from
date of discharge 118
136 Administrator to notify VCAT 119
137 Order to remove an administrator 119
138 Duration of order 120
139 Application for temporary order 120
140 Temporary order 121
141 Part does not exclude Administration and Probate
Act 1958 122
PART 9--MEDICAL AND OTHER TREATMENT 123
Division 1--Preliminary 123
142 Definition of patient 123
143 Health decision maker 123
144 Best interests 127
Division 2--Consent 128
145 Persons who may consent to medical or other treatment 128
146 Effect of consent 128
147 Refusal of medical treatment under the Medical Treatment
Act 1988 129
148 Unlawful consent to medical or other treatment an offence 129
Division 3--Emergency treatment 130
149 Emergency medical or dental treatment 130
Division 4--Special procedures 131
150 Application for consent of VCAT to special procedure 131
151 Guidelines for special procedures 131
152 Date for hearing 132
153 Consent of VCAT to special procedure 132
154 VCAT may confer authority to consent to continuing
or further special procedure 132
155 Special procedure without consent of VCAT an offence 133
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Division 5--Other medical or dental treatment 134
156 Consent of health decision maker 134
157 Consent if patient is likely to recover within a reasonable
time 134
158 Health decision maker may seek advice 136
159 Guidelines for medical or dental treatment 137
160 Medical or dental treatment without consent of health
decision maker 137
161 Medical or dental treatment if health decision maker does
not consent 139
162 Statement by registered practitioner 140
163 Application to VCAT relating to medical or dental treatment 141
164 Protection of registered practitioner 143
Division 6--Medical research procedures 144
165 Introduction and outline of Division 144
166 Step 1--Approval of relevant research project 145
167 Step 2--Is patient likely to recover within a reasonable
time? 146
168 Step 3--Consent of health decision maker 147
169 Step 4--Procedural authorisation 148
170 Best interests 152
171 Applications to VCAT 153
172 Health decision maker may seek advice 155
173 Guidelines for medical research procedures 155
174 Offences 156
175 Protection of registered practitioner 156
PART 10--REHEARINGS AND REASSESSMENT
OF ORDERS 158
Division 1--Rehearings 158
176 Application for rehearing 158
177 Parties and notice 159
178 Rehearing 160
179 Effect of first instance order pending rehearing 160
Division 2--Reassessment of orders 160
180 Reassessment 160
181 Who are the parties to a reassessment? 161
182 Who is entitled to notice of a reassessment, the hearing
and any order made in the proceeding? 161
183 Contents of notice of application for reassessment 163
184 Conduct of reassessment if VCAT conducts reassessment
on own initiative 164
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185 Participation of represented person or supported person at
hearing 165
186 Order after reassessment 166
PART 11--INTERSTATE ORDERS 167
187 Application of Part 167
188 Definitions 167
189 Corresponding laws and orders 168
190 Ministerial agreements 168
191 Registration of interstate orders 168
192 Reassessment of interstate orders 169
193 Reciprocal arrangements under the State Trustees
(State Owned Company) Act 1994 170
PART 12--GENERAL PROVISIONS 171
194 Remuneration of administrators and certain guardians 171
195 Payment from estate of costs and expenses to administrator
or guardian 172
196 Resolution of conflicts between guardians and administrators 173
197 Enforcement orders 173
198 Matters before a Court 174
199 Effect of setting aside administration order on previous
actions of administrator 177
200 Compensation for acts of guardian or administrator 177
201 Relief from personal liability 177
202 Who can apply for an order for compensation? 178
203 Time limit for application for order for compensation 178
204 VCAT may refer matter to Supreme Court 179
205 No compensation 179
206 Judicial notice 179
207 Audit 179
208 Offence as to guardian, supportive guardian or administrator 179
209 Criminal liability of officers of bodies corporate--failure to
exercise due diligence 181
210 Regulations 182
211 Transitional regulations 184
PART 13--REPEAL OF GUARDIANSHIP AND
ADMINISTRATION ACT 1986, SAVINGS AND
TRANSITIONAL PROVISIONS 185
212 Definitions 185
213 Guardianship and Administration Act 1986 repealed 185
214 Guardianship order and appointment of guardian 186
215 Authority of guardian 186
216 Administration order and appointment of administrator 187
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217 Authority of administrator 188
218 Administration order in respect of missing person's estate 188
219 Authority of administrator in respect of missing person's
estate 188
220 Application for guardianship orders 189
221 Application for administration orders 189
222 Application for administration (missing person) orders 189
223 Rehearings and reassessments of orders 190
224 Medical and other treatment 190
225 Interstate orders 191
226 VCAT may make orders of a transitional nature 192
PART 14--AMENDMENTS TO THE VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998 AND OTHER ACTS 193
Division 1--Victorian Civil and Administrative Tribunal Act 1998 193
227 Definitions 193
228 What is review jurisdiction? 193
229 Proceeding files 193
230 Heading to Part 9 of Schedule 1 194
231 Constitution of Tribunal for proceedings 194
232 Notification of commencement 194
233 Public Advocate may intervene or be joined 195
234 Withdrawal of application does not preclude future
application 195
235 Referral to administrators for report 195
236 Proceeding not invalidated by failure to give notice 195
237 Confidentiality of proceedings 196
238 New clause 37A inserted 196
37A Access to documents 196
239 Subject matter for rules 196
Division 2--Amendments to other Acts 197
240 Consequential amendments 197
241 Repeal of Part 14 and Schedule 197
__________________
SCHEDULE 198
Consequential Amendments 198
1 Appeal Costs Act 1998 198
2 Associations Incorporation Reform Act 2012 198
3 Australian Consumer Law and Fair Trading Act 2012 198
4 Building Act 1993 198
5 Business Licensing Authority Act 1998 198
6 Conveyancers Act 2006 199
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7 Coptic Orthodox Church (Victoria) Property Trust
Act 2006 199
8 County Court Act 1958 199
9 Crimes Act 1958 199
10 Disability Act 2006 200
11 Duties Act 2000 200
12 Estate Agents Act 1980 201
13 Family Violence Protection Act 2008 201
14 Fire Services Levy Monitor Act 2012 201
15 First Home Owner Grant Act 2000 201
16 Fundraising Act 1998 202
17 Gambling Regulation Act 2003 202
18 Health Records Act 2001 202
19 Health Services Act 1988 203
20 Human Services (Complex Needs) Act 2009 203
21 Independent Broad-based Anti-corruption Commission
Act 2011 203
22 Juries Act 2000 203
23 Land Act 1958 204
24 Land Tax Act 2005 204
25 Limitation of Actions Act 1958 204
26 Liquor Control Reform Act 1998 205
27 Magistrates Court Act 1989 205
28 Medical Treatment Act 1988 206
29 Mental Health Act 2014 206
30 Motor Car Traders Act 1986 207
31 Owners Corporations Act 2006 207
32 Partnership Act 1958 207
33 Personal Safety Intervention Orders Act 2010 207
34 Powers of Attorney Act 2014 208
35 Privacy and Data Protection Act 2014 209
36 Professional Standards Act 2003 209
37 Property Law Act 1958 209
38 Public Health and Wellbeing Act 2008 209
39 Road Safety Act 1986 210
40 Second-Hand Dealers and Pawnbrokers Act 1989 210
41 Severe Substance Dependence Treatment Act 2010 210
42 Sex Work Act 1994 210
43 State Trustees (State Owned Company) Act 1994 211
44 Supported Residential Services (Private Proprietors)
Act 2010 212
45 Supreme Court Act 1986 213
46 The Uniting Church in Australia Act 1977 214
47 Trustee Act 1958 214
48 Trustee Companies Act 1984 214
49 Unclaimed Money Act 2008 214
50 Victims of Crime Assistance Act 1996 215
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51 Victoria Police Act 2013 215
52 Victorian Inspectorate Act 2011 215
53 Wills Act 1997 216
54 Workplace Injury Rehabilitation and Compensation
Act 2013 216
ENDNOTES 217
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PARLIAMENT OF VICTORIA
Introduced in the Assembly
Guardianship and Administration Bill
2014
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 consequentially amend various other
Acts and for other purposes.
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
(c) to make consequential amendments to
various other Acts.
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2 Commencement
This Act comes into operation immediately after
Part 10 of the Powers of Attorney Act 2014
comes into operation.
3 Definitions
(1) In this Act--
accommodation provider, for an individual,
means a person who is, in a professional or
administrative capacity, directly or indirectly
responsible for or involved in the provision
of accommodation to the individual;
administration order means an order of VCAT
appointing a person under section 28 or
Part 5 as--
(a) an administrator of the estate of a
person; or
(b) a temporary administrator of the estate
of a person;
administration (missing person) order means an
order of VCAT appointing a person as--
(a) an administrator of the estate of a
missing person under section 111; or
(b) a temporary administrator of the estate
of a missing person under section 140;
administrator means the person named as
administrator in--
(a) an administration order; or
(b) a temporary administration order; or
(c) an administration (missing person)
order; or
(d) a temporary administration (missing
person) order;
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care worker, for an individual, means a person
who performs services for the care of the
individual and receives remuneration for
those services from any source, but does not
include--
(a) a person who receives a carer payment
or other benefit from the
Commonwealth or a State or a Territory
of the Commonwealth for providing
home care for the individual; or
(b) a person who is a health provider;
close friend, for 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 a
neurological impairment, intellectual
impairment, mental illness, brain injury,
physical disability or dementia;
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
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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 or government
agency, a body corporate or a
charitable or benevolent
organisation);
emergency treatment means treatment under
section 149;
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
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 a guardian or
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;
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(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.
guardian means (except in section 65(3)(a))--
(a) the Public Advocate (if named in a
guardianship order under section 28) or
a person named in a guardianship order
under section 28 or Part 5 as--
(i) a guardian; or
(ii) a temporary guardian; or
(b) on the death, absence or loss of
decision making capacity of the
original guardian, a person appointed as
an alternative guardian under
section 51;
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guardianship order means--
(a) an order of VCAT appointing a person
under section 28 or Part 5 as--
(i) a guardian; or
(ii) a temporary guardian; or
(b) an order of VCAT appointing a person
as an alternative guardian under
section 51;
health decision maker has the meaning given by
section 143;
health provider means a person who provides
health care in the practice of a profession or
in the ordinary course of business;
human research ethics committee means--
(a) a human research ethics committee
established in accordance with the
requirements of the National Statement;
or
(b) an ethics committee established under
the by-laws of a public hospital, public
health service, denominational hospital
or multi purpose service (within the
meaning of the Health Services Act
1988);
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
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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.
licensed trustee company has the same meaning
as in section 601RAA of the Corporations
Act;
medical or dental treatment means--
(a) medical treatment (including any
medical or surgical procedure,
operation or examination and any
prophylactic, palliative or rehabilitative
care) normally carried out by, or under,
the supervision of a registered
practitioner; or
(b) dental treatment (including any dental
procedure, operation or examination)
normally carried out by or under the
supervision of a registered practitioner;
or
(c) any other treatment not referred to in
paragraphs (a) and (b) that is prescribed
by the regulations to be medical or
dental treatment for the purposes of
this Act--
but does not include--
(d) a special procedure; or
(e) a medical research procedure; or
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(f) any non-intrusive examination made for
diagnostic purposes (including a visual
examination of the mouth, throat, nasal
cavity, eyes or ears); or
(g) first-aid treatment; or
(h) the administration of a pharmaceutical
drug for the purpose and in accordance
with the dosage level--
(i) if the drug is one for which a
prescription is required,
recommended by a registered
practitioner; or
(ii) if the drug is one for which a
prescription is not required and
which is normally self-
administered, recommended in the
manufacturer's instructions or by a
registered practitioner; or
(i) any other kind of treatment that is
prescribed by the regulations not to be
medical or dental treatment for the
purposes of this Act;
medical research procedure means--
(a) a procedure carried out for the purposes
of medical research, including, as part
of a clinical trial, the administration of
medication or the use of equipment or a
device; or
(b) a procedure that is prescribed by the
regulations to be a medical research
procedure for the purposes of this
Act--
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but does not include--
(c) any non-intrusive examination
(including a visual examination of the
mouth, throat, nasal cavity, eyes or ears
or the measuring of a person's height,
weight or vision); or
(d) observing a person's activities; or
(e) undertaking a survey; or
(f) collecting or using information,
including personal information (within
the meaning of the Privacy and Data
Protection Act 2014) or health
information (within the meaning of the
Health Records Act 2001); or
(g) any other procedure that is prescribed
by the regulations not to be a medical
research procedure for the purposes of
this Act;
missing person means a person determined to be a
missing person under section 111(2);
National Statement means--
(a) the National Statement on Ethical
Conduct in Research Involving Humans
published by the National Health and
Medical Research Council in 1999 as in
force from time to time; or
(b) any superseding document published by
the National Health and Medical
Research Council that covers the same
subject matter;
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 two or
more relatives described in any paragraph
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being preferred to any other so described,
regardless of sex;
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, the kind of education or training and
the place where it takes place;
(e) daily living issues such as diet and dress;
(f) health care matters, including matters provided
for in Part 9;
police officer has the same meaning as in the
Victoria Police Act 2013;
prescribed means prescribed by the regulations;
primary carer means a person who is primarily
responsible for providing support or care to a
person;
principal registrar means the principal registrar of
VCAT;
proposed represented person means a person in
relation to whom an application is made
under section 20 or Part 5;
proposed supported person means a person in
relation to whom an application is made for a
supportive guardianship order under
section 87;
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Public Advocate means the person appointed as
the Public Advocate, being the office
continued in existence by section 8;
Public Advocate employee means a person
employed in the Office of the Public
Advocate and referred to in section 15;
registered medical practitioner means a person
registered under the Health Practitioner
Regulation National Law to practise in the
medical profession (other than as a student);
registered practitioner means--
(a) a registered medical practitioner; or
(b) a person registered under the Health
Practitioner Regulation National Law--
(i) to practise in the dental profession
as a dentist (other than as a
student); and
(ii) in the dentist division of that
profession;
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;
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(i) an uncle or aunt;
(j) a nephew or niece;
relevant human research ethics committee for a
medical research procedure means the
human research ethics committee responsible
for approving the relevant research project;
relevant research project for a medical research
procedure means the research project for the
purposes of which the procedure is, or is to
be, carried out;
represented person means--
(a) a person in relation to whom a
guardianship order is in effect; or
(b) a person whose estate is subject to an
administration order; or
(c) a person in relation to whom a
guardianship order is in effect and
whose estate is subject to an
administration order; or
(d) in Parts 10, 11 and 12, a person referred
to in paragraph (a), (b) or (c) or a
missing person whose estate is subject
to an administration (missing person)
order;
special 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) termination of pregnancy; or
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(c) any removal of tissue for the purposes
of transplantation to another person; or
(d) any other medical or dental treatment
that is prescribed by the regulations to
be a special procedure for the purposes
of Part 9;
spouse of a person means a person to whom the
first-mentioned person is married;
State Trustees has the same meaning as in the
State Trustees (State Owned Company)
Act 1994;
supported decision means a decision about a
matter that under a supportive guardianship
order a supportive guardian is authorised to
support the supported person in making;
supported person means a person in relation to
whom a supportive guardianship order is
made;
supportive guardian means a person named as
supportive guardian in a supportive
guardianship order;
supportive guardianship order means an order of
VCAT appointing a person as supportive
guardian under section 95;
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 to a person's sibling in the definition
of relative in subsection (1) includes a reference
to an individual who was adopted by one or both
of the person's parents.
(4) For the purposes of this Act, without limiting the
ways in which a person may promote the personal
and social wellbeing of another person, this may
occur by--
(a) recognising the inherent dignity of the other
person; and
(b) having regard to the other person's existing
supportive relationships, religion, values and
cultural and linguistic environment; and
(c) respecting the confidentiality of confidential
information relating to the other person.
4 Meaning of decision making capacity
(1) For the purpose 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
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(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, gestures 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 that is 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 or not a person has
decision making capacity, regard should 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 and not permanent;
(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;
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(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.
(5) Despite subsection (4)(d), the fact that a person
makes or proposes to make a decision the
consequences of which have a high risk of being
seriously injurious to the person's health or
wellbeing, may, in conjunction with other factors,
be evidence that the person is unable to
understand, use or weigh information relevant to
the decision or the consequences of the decision.
5 Assessing decision making capacity
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, and in an environment in,
which the person's decision making capacity can
be assessed most accurately.
6 Objectives of Act
The objectives of this Act are--
(a) to continue the office of the Public Advocate
and provide for the appointment of a Public
Advocate; and
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(b) to enable certain persons with a disability to
have a supportive guardian, guardian or
administrator appointed in specified
circumstances; and
(c) to enable administration (missing person)
orders to be made in relation to the estates of
missing persons; and
(d) to provide for consent to special procedures,
medical research procedures and medical and
dental treatment on behalf of persons
incapable of giving consent to those
procedures or treatment; and
(e) to provide for the registration of interstate
guardianship orders and administration
orders.
7 Guardianship and administration principles
The following are guardianship and administration
principles--
(a) subject to the provisions of this Act, every
function, power, authority, discretion,
jurisdiction or duty conferred or imposed by
this Act is to be exercised or performed--
(i) in a way which is as least restrictive of
a person's ability to decide and act as is
possible in the circumstances; and
(ii) so that a person is given practicable and
appropriate support to enable that
person to participate in decisions
affecting the person as much as
possible in the circumstances;
(b) a guardian or administrator who under this
Act makes a decision in relation to a matter
for a represented person (other than a
missing person) who does not have decision
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making capacity in relation to that matter,
must--
(i) give all practicable and appropriate
effect to the represented person's
wishes; and
(ii) take any steps that are reasonably
available to encourage the represented
person to participate in decision
making, even though the represented
person does not have decision making
capacity in relation to that matter; and
(iii) act in a way that promotes the personal
and social wellbeing of the represented
person;
(c) an administrator, who under this Act makes a
decision in relation to a matter for a missing
person, must--
(i) give all practicable and appropriate
effect to the missing person's wishes, so
far as they can be ascertained; and
(ii) act in a way that promotes the personal
and social wellbeing of the missing
person.
__________________
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Part 2--The Public Advocate
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PART 2--THE PUBLIC ADVOCATE
8 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.
9 Terms and conditions of appointment
(1) Subject to this Part, the Public Advocate--
(a) holds office for a period of 7 years; and
(b) is entitled to be paid the remuneration and
allowances as are fixed by the Governor in
Council from time to time.
(2) 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).
10 Resignation and vacancy
(1) The Public Advocate ceases to hold office if the
Public Advocate--
(a) resigns by notice in 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
(d) is removed from office under subsection (5).
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(2) The Governor in Council, on the recommendation
of the Minister, may suspend or remove 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 has become incapable
of performing or has neglected the duties of
the office of Public Advocate;
(c) the Public Advocate has engaged in
misconduct.
(3) The Minister must cause to be laid before each
House of Parliament a full statement of the
grounds of suspension of the Public Advocate
within 7 sitting days after the suspension if that
House is then sitting or, if that House is not then
sitting, within 7 sitting days after the next meeting
of that House.
(4) The Public Advocate may be removed from office
by the Governor in Council if each House of
Parliament, within 7 sitting days after the day
when the statement is laid before it, declares by
resolution that the Public Advocate ought to be
removed from office and, unless each House
within that period so declares, the Governor in
Council must remove the suspension and restore
the Public Advocate to office.
11 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.
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(2) The Minister may appoint a person as Acting
Public Advocate during the temporary absence or
suspension of the Public Advocate if the person
has--
(a) previously been appointed as Acting Public
Advocate under subsection (1); and
(b) taken an oath or made an affirmation under
section 12.
(3) A person appointed under subsection (2) is not
required to take another oath or make another
affirmation under section 12.
(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
exercise any of the functions of the Public
Advocate; and
(b) is entitled to be paid the remuneration and
allowances fixed by the Governor in Council
from time to time; and
(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).
12 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 may be) will--
(a) faithfully and impartially perform the duties
of office; and
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(b) except in accordance with this Act, not
divulge information received or obtained
under this Act.
13 Functions of the Public Advocate
The functions of the Public Advocate are--
(a) to promote, facilitate and encourage the
provision, development and coordination of
services and facilities provided by
government, community and voluntary
organisations for persons with a disability
with a view--
(i) to promoting the development of the
ability and capacity of persons with a
disability to act independently; and
(ii) to minimising the restrictions on the
rights of persons with a disability; and
(iii) to ensuring the maximum utilisation by
persons with a disability of those
services and facilities; and
(iv) to encouraging the involvement of
voluntary organisations and relatives,
guardians, supportive guardians and
friends in the provision and
management of those services and
facilities; and
(b) to support the establishment of organisations
involved with persons with a disability and
their relatives, guardians, supportive
guardians and friends for the purpose of--
(i) instituting citizen advocacy programs
and other advocacy programs; and
(ii) undertaking community education
projects; and
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(iii) promoting family and community
responsibility for guardianship; and
(c) to arrange, coordinate and promote informed
public awareness and understanding by the
dissemination of information with respect
to--
(i) the provisions of this Act and any other
legislation dealing with or affecting
persons with a disability; and
(ii) the role of VCAT and the Public
Advocate; and
(iii) the duties, powers and functions of
supportive guardians, guardians and
administrators under this Act; and
(iv) the protection of persons with a
disability from abuse and exploitation
and the protection of their rights; and
(d) to investigate, report and make
recommendations to the Minister on any
aspect of the operation of this Act referred to
the Public Advocate by the Minister.
14 Powers and duties of the Public Advocate
(1) The Public Advocate may--
(a) if appointed by VCAT, be a guardian with
powers in relation to a personal matter; and
(b) make an application to VCAT for the
appointment of a supportive guardian,
guardian or administrator or the rehearing or
reassessment of a supportive guardianship
order, guardianship order or an
administration order; and
(c) submit a report to VCAT on any matter
referred to the Public Advocate for a report
by VCAT; and
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(d) seek assistance in promoting the personal
and social wellbeing of a person with a
disability from a government department,
institution, welfare organisation or service
provider; and
(e) make representations on behalf of, or act for,
a person with a disability; and
(f) give advice to any person as to the
provisions of this Act and in relation to
applications for supportive guardianship
orders, guardianship orders or administration
orders; and
(g) investigate any complaint or allegation that a
person is under inappropriate guardianship or
is being exploited or abused or is in need of
guardianship; and
(h) subject to subsection (2), 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 or 48 of Schedule 1 to the
VCAT Act; and
(i) provide information for persons who are or
propose to be supportive guardians,
guardians or administrators; and
(j) report and make recommendations to VCAT
on behalf of any person with a disability in
any proceeding under the Equal
Opportunity Act 2010; and
(k) make recommendations to VCAT with
respect to guidelines proposed to be issued
by VCAT about consent to a special
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procedure or medical research procedure and
any other medical or dental treatment under
Part 9; and
(l) 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 under subsection (1)(h) to
provide if providing the information would tend to
incriminate the person.
(3) If the Public Advocate is appointed as the
guardian of a represented person--
(a) the person for the time being holding the
office or performing the functions of the
Public Advocate is the guardian of that
represented person; and
(b) the Public Advocate must use the Public
Advocate's best endeavours to find an
appropriate person to be appointed as the
guardian.
15 Staff of office of the Public Advocate
Any employees who are necessary to enable the
Public Advocate to perform the Public Advocate's
functions may be employed under Part 3 of the
Public Administration Act 2004.
16 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, other than this
power of delegation;
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(b) any or all of the Public Advocate's powers
and duties in the Public Advocate's capacity
as guardian;
(c) any or all of the Public Advocate's powers
and duties in the Public Advocate's capacity
as an attorney under an enduring power of
attorney within the meaning of the Powers
of Attorney Act 2014.
(2) The Public Advocate may, with VCAT's approval,
by instrument of delegation, delegate any or all of
the Public Advocate's powers and duties in the
Public Advocate's capacity as guardian to an
individual (other than a Public Advocate
employee) or organisation specified in the
instrument of delegation.
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) inspect any document relating to any such
person or any record required to be kept
under this Act, the Health Services Act
1988, the Supported Residential Services
(Private Proprietors) Act 2010, the
Disability Act 2006 or the Mental Health
Act 2014.
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(2) Subsection (1)(d) does not authorise the Public
Advocate to inspect--
(a) a person's medical records unless that person
consents; or
(b) personnel records unless the person to whom
they relate consents.
(3) The person in charge and the members of staff or
management of the institution must provide the
Public Advocate with any reasonable assistance
that the Public Advocate requires to perform or
exercise any power, duty or function under this
section effectively.
(4) A person in charge or a member of the staff or
management of an institution must not--
(a) unreasonably refuse or neglect to give
assistance when required to do so under
subsection (3); or
(b) 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,
duty or function under this section; or
(c) assault, obstruct or threaten the Public
Advocate in the performance or exercise of
any power, duty or function under this
section.
Penalty: 25 penalty units.
(5) In this section--
institution means any of the following--
(a) a disability service provider within the
meaning of section 3(1) of the
Disability Act 2006;
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(b) a designated public hospital within the
meaning of the Health Services Act
1988;
(c) a residential service, residential
institution or residential treatment
facility within the meaning of
section 3(1) of the Disability Act 2006;
(d) a mental health service provider within
the meaning of section 3(1) of the
Mental Health Act 2014;
(e) a supported residential service within
the meaning of the Supported
Residential Services (Private
Proprietors) Act 2010.
18 Confidentiality
(1) This section applies to a person who is or has
been--
(a) the Public Advocate; or
(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 a
natural person acquired in the performance of
functions or duties or the exercise of powers under
this Act which may identify the natural person
unless--
(a) it is necessary to do so for the purposes of, or
in connection with, the performance of a
function or duty or the exercise of a power
under this Act; or
(b) it is necessary to do so for the purposes of
criminal proceedings or any proceedings
under this Act; or
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(c) the person 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 or a relative or primary
carer of the person to provide care to that
person; 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 by an Act of the Commonwealth or any
other State or Territory.
Penalty: 60 penalty units.
19 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 containing a
review of the operation of the Public Advocate
during the 12 months ending on the preceding 30
June.
(2) The Minister must cause each report 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--Application for Guardianship and Administration Orders
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PART 3--APPLICATION FOR GUARDIANSHIP AND
ADMINISTRATION ORDERS
20 Application for guardianship or administration
order
(1) A person may apply to VCAT for a guardianship
order that appoints a guardian or temporary
guardian in relation to another 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 other person attaining 18 years
of age.
(2) A person may make an application under
subsection (1) for a guardianship order appointing
a temporary guardian irrespective of whether an
application for a guardianship order that appoints
a guardian has been made.
(3) A person may apply to VCAT for an
administration order that appoints an administrator
or temporary administrator in relation to the estate
of another 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 other person attaining 18 years
of age.
(4) A person may make an application under
subsection (3) for an administration order
appointing a temporary administrator irrespective
of whether an application for an administration
order that appoints an administrator has been
made.
(5) If a person with a disability who is of or over
18 years of age does not reside in Victoria but has
an estate the whole or part of which is in Victoria,
another person may apply to VCAT for an order
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appointing an administrator in relation to so much
of the estate as is in Victoria.
21 Matters to be included in application to VCAT
A person applying to VCAT for an order under
this Part must include in the person's application
the following--
(a) the names and contact details (if known to
the applicant) of any person who has a direct
interest in the application; and
(b) the type of order being applied for, including
details of the personal or financial matters in
relation to which the order is sought.
22 Who are the parties to a proceeding on an
application?
The following persons are parties to a proceeding
on an application under section 20--
(a) the applicant;
(b) the proposed represented person;
(c) the person proposed as guardian or
administrator, as the case may be;
(d) if VCAT determines this role is relevant to
the proceeding, the proposed represented
person's--
(i) current supportive attorney within the
meaning of section 3(1) of the Powers
of Attorney Act 2014; or
(ii) current supportive guardian;
(e) any other person whom VCAT determines to
be a party to the proceeding.
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23 Who is entitled to notice of an application, the
hearing and any order made in the proceeding?
(1) In addition to any party to a proceeding on an
application under section 20, 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 of the
VCAT Act--
(a) the spouse or domestic partner of the
proposed represented person;
(b) the primary carer of the proposed
represented person;
(c) the nearest relative available (other than the
spouse or domestic partner) of the proposed
represented person;
(d) the proposed represented person's supportive
attorney (if not a party under section 22);
(e) the Public Advocate, if the Public Advocate
is proposed as guardian or no other person is
proposed as guardian;
(f) any current administrator of the estate of the
proposed represented person or current
guardian of the proposed represented person;
(g) any other person whom VCAT determines to
have an interest in the application.
(2) As soon as practicable after making any
determination under section 22(d) or (e) or
subsection (1)(g), VCAT must notify the applicant
as to who--
(a) are the parties to the proceeding on the
application; and
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(b) is entitled under subsection (1) to a notice of
the making of the application.
Note
Section 72(1)(b) of the VCAT Act provides that an applicant
for a VCAT order must serve a copy of the application on a
person entitled to notice of the application under the
enabling enactment (which is this Act). 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 person entitled to
notice of the proceeding or of the order under the enabling
enactment.
24 Contents of notice of application
(1) A notice of the making of an application that is
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, as stated in the notification given
under section 23(2), of--
(i) the parties to the proceeding on an
application under section 20; and
(ii) the other persons entitled to the notice
under section 23(1);
(c) information about the rights of the party in
relation to the application.
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(2) A notice of the making of an application that is
given to a person referred to in section 23(1) who
is not a party must include the following--
(a) a copy of the application;
(b) the names, as stated in the notification given
under section 23(2), of--
(i) the parties to the proceeding on an
application under section 20; and
(ii) the other persons entitled to the notice
under section 23(1);
(c) information about the rights of the person in
relation to seeking information about the
application;
(d) information about the procedure for applying
to VCAT to be made a party to the
proceeding on the application.
25 Date for hearing of application for guardianship or
administration order
VCAT must commence to hear an application
made under section 20 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 the application 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.
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26 Participation of proposed represented person at
hearing
VCAT may only conduct a hearing in relation to
an application made under section 20 if--
(a) the proposed represented person is present at
the hearing; or
(b) VCAT is satisfied that--
(i) the proposed represented person does
not wish to attend the hearing; or
(ii) the presence 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.
27 Special powers in relation to proposed represented
persons
(1) This section applies in relation to a proposed
represented person in relation to whom--
(a) an application for a guardianship order has
been made under section 20; and
(b) VCAT has received information on oath that
the proposed represented person--
(i) is being 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.
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(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
subsection (1)(b) applies, 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 20 or 35 is determined.
(4) A police officer acting under an order made under
subsection (2) may, with such assistance as is
necessary, use such force as is reasonably
necessary to enter the premises where the person
with a disability 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 209 applies to an offence against this subsection.
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Eligibility of Person Appointed
PART 4--CONDITIONS FOR MAKING GUARDIANSHIP
AND ADMINISTRATION ORDERS AND ELIGIBILITY OF
PERSON APPOINTED
28 VCAT may make a guardianship or administration
order
(1) After considering an application made under
section 20, VCAT may--
(a) subject to subsection (4), make a
guardianship order or an administration
order; or
(b) make no order under this Act; or
(c) subject to section 95, make a supportive
guardianship order.
(2) A guardianship order made under this section in
relation to a proposed represented person may
appoint--
(a) a guardian; or
(b) a temporary guardian.
(3) An administration order made under this section
in relation to the estate of a proposed represented
person may appoint--
(a) an administrator; or
(b) a temporary administrator.
(4) VCAT may only make a guardianship order or
administration order under this section if satisfied
that--
(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--
(A) the personal matter in relation to
which the order is to be made; or
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Eligibility of Person Appointed
(B) the personal and financial matters
in relation to which the order is to
be made; or
(ii) in the case of an administration order,
the financial matter in relation to which
the order is to be made; and
(b) the proposed represented person is in need of
a guardian or administrator, as the case may
be; and
(c) the guardianship order or administration
order (as the case may be) would promote
the proposed represented person's personal
and social wellbeing; and
(d) in the case of an application for an
administration order in relation to a 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 which
forms part of the estate of the person in
relation to whom the application is made.
29 Factors to consider in determining need for
guardian or administrator
For the purposes of section 28(4)(b), in
determining whether or not a person is in need of
a guardian or administrator, VCAT must consider
the following--
(a) the wishes of the proposed represented
person (so far as they can be ascertained);
(b) the wishes of the nearest relative of the
proposed represented person or any other
family members of the proposed represented
person;
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Eligibility of Person Appointed
(c) the desirability of preserving existing family
relationships and other relationships that are
important to the proposed represented
person;
(d) whether it is more suitable that the decision
in relation to the personal or financial matter
in relation to which the order is sought is
made--
(i) by the proposed represented person
with appropriate assistance from a
supportive guardian; or
(ii) through negotiation, mediation or
similar means; or
(iii) by informal means.
30 Persons eligible as guardians or administrators
(1) Subject to subsection (3), if VCAT is satisfied as
to the matters set out in subsection (2), VCAT
may appoint--
(a) as a guardian, any individual who is of or
over the age of 18 years and who consents to
act as guardian; or
(b) as an administrator--
(i) any individual who is of or over the age
of 18 years and who consents to act as
administrator; or
(ii) any body corporate that consents to act
as administrator.
(2) For the purposes of subsection (1), VCAT must be
satisfied that the person to be appointed meets the
following criteria--
(a) the person will promote the proposed
represented person's personal and social
wellbeing;
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Eligibility of Person Appointed
(b) the person is not in a position where the
person's interests conflict or may conflict
with the interests of the proposed represented
person;
(c) the person is a suitable person to act as the
guardian of the proposed represented person
or as administrator of the proposed
represented person's estate;
(d) the person has sufficient expertise to
administer the estate of the represented
person or there is a special relationship
between the person and the proposed
represented person or other special reason
why that person should be appointed as
administrator (in the case of an
administration order) or as guardian (in the
case of a guardianship order specifying
powers in relation to a financial matter).
(3) If a statement was lodged under section 33 by the
proposed represented person's guardian or
administrator, VCAT must appoint the person
named in the statement as guardian or
administrator if VCAT is satisfied that the
person--
(a) is of or over the age of 18 years and consents
to act as guardian or administrator; and
(b) meets the criteria set out in subsection (2).
31 Factors to consider in relation to suitability of
person appointed
(1) For the purposes of section 30(2)(c), in
determining whether a person is suitable to act as
the guardian of a proposed represented person or
as administrator of the estate of a proposed
represented person, VCAT must consider the
following--
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Eligibility of Person Appointed
(a) the wishes of the proposed represented
person (so far as they can be ascertained);
(b) any statement lodged under section 33 in
relation to the proposed represented person;
(c) the desirability of preserving existing family
relationships and other relationships that are
important to the proposed represented
person;
(d) the desirability of appointing a person as a
guardian or administrator (as the case may
be) who has an existing personal relationship
with the proposed represented person rather
than a person with no such relationship;
(e) the compatibility of the person proposed as
guardian of the proposed represented person
and the administrator (if any) of the proposed
represented person's estate, in the case of a
guardianship order;
(f) the compatibility of the person proposed as
administrator of the proposed represented
person's estate and the guardian (if any) of
the proposed represented person, in the case
of an administration order;
(g) whether the person proposed as guardian or
administrator (as the case may be) will be
available and able to meet, and communicate
with, the proposed represented person so as
to make decisions that best promote the
personal and social wellbeing of the
proposed represented person;
(h) whether the person proposed as administrator
or guardian (in the case of a guardianship
order specifying powers in relation to a
financial matter) was a member of VCAT as
constituted for a proceeding under this Act.
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Eligibility of Person Appointed
(2) VCAT must not assume without any evidence that
a proposed represented person's relative who is
proposed as the guardian or administrator, as the
case may be, is--
(a) in a position where the relative's interests
conflict, or may conflict, with those of the
proposed represented person; or
(b) not suitable to be appointed as the guardian
or administrator merely because that relative
disagrees with another relative of the
proposed represented person in relation to a
matter pertaining to the proposed represented
person.
32 Other matters pertaining to appointments
(1) Subject to section 28, VCAT may appoint the
Public Advocate as guardian of a proposed
represented person with powers in relation to a
personal matter if VCAT is satisfied that no other
person fulfils the requirements of section 30 for
appointment as the guardian of that person.
(2) Subsection (1) does not prevent VCAT from
appointing persons (including the Public Advocate
and any other person) as joint guardians of the
proposed represented person if--
(a) each person fulfils the relevant requirements
of section 30; and
(b) VCAT considers it appropriate to do so.
(3) VCAT may appoint a person as guardian with
powers in relation to a financial matter or as
administrator who was at any time a member of
VCAT as constituted for a proceeding under this
Act only if VCAT considers that in the
circumstances it is appropriate for the person to
act as a guardian or an administrator, as the case
may be.
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33 Wishes for future appointments may be lodged
(1) The following persons in relation to a represented
person may lodge with VCAT at any time a
statement referred to in subsection (2)--
(a) any guardian;
(b) any supportive guardian;
(c) any administrator;
(d) the primary carer;
(e) any relative.
(2) A statement referred to in subsection (1) must set
out--
(a) the wishes of the person lodging the
statement as to who in the future is to be
appointed a guardian or administrator in
relation to the represented person; and
(b) the reasons for those wishes.
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Guardian or Administrator
PART 5--GUARDIANSHIP AND ADMINISTRATION
ORDERS APPOINTING A PARENT AS GUARDIAN OR
ADMINISTRATOR
34 Application provision
Parts 3, 4 (other than section 33) and 10 do not
apply in relation to--
(a) an application for an order made under this
Part; or
(b) an applicant or a proposed represented
person in respect of an application for an
order made under this Part; or
(c) an order made under this Part; or
(d) a guardian or administrator appointed under
this Part; or
(e) a represented person in respect of whom, or
in respect of whose estate, an order is made
under this Part.
35 Parental application for guardianship or
administration order
(1) A parent may apply to VCAT for a guardianship
order that appoints the parent as guardian in
relation to a person with a disability if the person
is a child of the parent and 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) A parent may apply to VCAT for an
administration order that appoints the parent as
administrator in relation to the estate of a person
with a disability if the person is a child of the
parent and is--
(a) of or over 18 years of age; or
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Guardian or Administrator
(b) under 18 years of age but the order takes
effect on that person attaining 18 years of
age.
(3) If a person with a disability who is of or over 18
years of age does not reside in Victoria but has an
estate the whole or part of which is in Victoria, the
parent of that person may apply to VCAT for an
order under this Part appointing the parent as
administrator or as guardian with powers in
relation to a financial matter for so much of the
estate as is in Victoria.
(4) A parent may not make an application for an order
under this Part in relation to a child of the parent if
at any time before the application, guardianship,
custody, daily care or parental responsibility in
relation to the child was removed by law from the
parent in one or more of the following
circumstances--
(a) the child was the subject of an order in a
Family Court proceeding;
(b) the child was the subject of an order by an
interstate authority;
(c) the child was the subject of an order that
granted guardianship, custody, daily care or
parental responsibility to the Secretary to the
Department of Human Services or an
equivalent interstate officeholder.
Note
Nothing in this Part prevents a parent making an application under
section 20 in relation to a child of the parent.
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36 Matters to be included in application
(1) A parent applying to VCAT for an order under
this Part must--
(a) include the following in the application--
(i) the names and contact details (if known
to the parent) of--
(A) the primary carer of the proposed
represented person; and
(B) the accommodation provider in
relation to the proposed
represented person; and
(C) any care worker who provides
care on a regular and ongoing
basis to the proposed represented
person that is necessary because
of the person's disability; and
(D) any health provider who provides
substantial health care on a regular
and ongoing basis to the proposed
represented person; and
(E) the nearest relative available of
the proposed represented person
(other than the applicant);
(ii) the type of order being applied for,
including which specified decision
making powers are sought; and
(b) file the following in support of the
application--
(i) evidence provided by a registered
medical practitioner that--
(A) because of the proposed
represented person's disability, the
person does not have the decision
making capacity to make a
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supportive attorney appointment
or an enduring power of attorney;
and
(B) the disability referred to in sub-
subparagraph (A) arose before the
proposed represented person
attained 18 years of age; and
(C) it is unlikely that the proposed
represented person's decision
making capacity will improve to
the extent that the person could
make a supportive attorney
appointment or an enduring power
of attorney during the term of the
order; and
(D) the views of the proposed
represented person can or cannot
be ascertained, and if they cannot
be ascertained, the reasons why
they cannot be ascertained;
(ii) the history of the care arrangements for
the proposed represented person,
including--
(A) any significant events and changes
and whether there is a history of
parental care for the person; and
(B) evidence that the applicant has
been making decisions for the
proposed represented person on a
regular basis before the proposed
represented person attained
18 years of age, and is currently
doing so;
(iii) evidence provided by a registered
medical practitioner, registered
psychologist or person who is a
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member of a prescribed class of
persons, of the views of the proposed
represented person (so far as they can
be ascertained) in relation to the
proposed order or any other issues
arising from the application;
(iv) a statement that the proposed
represented person has not been
removed from the guardianship,
custody, daily care or parental
responsibility of the applicant as
referred to in section 35(4);
(v) a statement listing any conviction of the
applicant in relation to--
(A) an offence involving violence; or
(B) a prescribed offence; or
(C) an offence which has a maximum
penalty of 5 years or more.
(2) A person who provides evidence under
subsection (1)(b)(i) or (iii)--
(a) must not be a relative of the proposed
represented person; and
(b) must give that evidence independently of the
views of the applicant or any other person;
and
(c) must obtain the evidence in the prescribed
manner, if any.
(3) In this section--
enduring power of attorney has the same meaning
as in the Powers of Attorney Act 2014;
registered psychologist means a person registered
under the Health Practitioner Regulation
National Law to practise in the psychology
profession (other than as a student);
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supportive attorney appointment has the same
meaning as in the Powers of Attorney
Act 2014.
37 Who are the parties to a proceeding?
The following persons are parties to a proceeding
on an application under section 35--
(a) the applicant;
(b) the proposed represented person.
38 Who is entitled to notice of an application?
In addition to any party to a proceeding on an
application under section 35, for the purposes of
section 72(1) of the VCAT Act, the following
persons (of whom the applicant could be
reasonably expected to be aware and to be able to
notify) are entitled to a notice of the making of the
application--
(a) the primary carer of the proposed
represented person;
(b) the accommodation provider in relation to
the proposed represented person;
(c) any care worker who provides care on a
regular and ongoing basis to the proposed
represented person that is necessary because
of the person's disability;
(d) any health provider who provides substantial
health care on a regular and ongoing basis to
the proposed represented person;
(e) the nearest relative available of the proposed
represented person (other than the applicant).
Note
Section 72(1)(b) of the VCAT Act provides that an applicant
for a VCAT order must serve a copy of the application on a
person entitled to notice of the application under the
enabling enactment (which is this Act). Section 72 of the
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VCAT Act also provides for the circumstances in which
service by the applicant may not be required.
39 Contents of notice of an application
(1) A notice of the making of an application that is
given to the proposed represented person 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;
(b) a statement that the proposed represented
person may--
(i) make a submission to VCAT in relation
to the application within 60 days after
the notice was given to the proposed
represented person; and
(ii) provide VCAT with the proposed
represented person's views in relation to
the application.
(2) A notice referred to in section 38 and given to a
person who is not the represented person must
include the following--
(a) a copy of the application;
(b) a statement that the person may make a
submission to VCAT in relation to the
application within 60 days after the notice
was given to the person.
40 Submissions may be made in relation to an
application
A person who is entitled to receive a notice under
section 38 or who has an interest in the application
may make a submission to VCAT in relation to
the application within 60 days after the notice was
given under that section.
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41 When must VCAT make a guardianship or
administration order on the papers?
(1) Subject to subsection (2), VCAT must make a
guardianship order or administration order as
sought on the papers that appoints the applicant as
guardian or administrator if VCAT--
(a) did not receive any submission in relation to
the application in accordance with section 40
and is satisfied as to the matters referred to in
section 36(1)(b)(i) and (ii); or
(b) received a submission in relation to the
application in accordance with section 40
and is satisfied as to the matters referred to in
section 36(1)(b)(i) and (ii), taking into
account the contents of the submission.
(2) VCAT must not make a guardianship order or
administration order under subsection (1) if
VCAT is satisfied that--
(a) the proposed represented person--
(i) does not want the order to be made; or
(ii) has other concerns that VCAT wishes
to consider at a hearing; or
(b) based on the evidence in the application and
any submissions received by VCAT, there is
a significant risk that the order sought would
be harmful to the personal and social
wellbeing of the proposed represented
person.
42 When must VCAT commence hearing in relation to
application for a guardianship order or an
administration order?
If section 41(2)(a) or (b) applies, VCAT must
commence to hear an application under this Part
within 30 days after the expiry of the 60 day
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period for receiving a submission under section
40.
43 Participation of proposed represented person at
hearing
VCAT may only conduct a hearing in relation to
an application made under section 35 if--
(a) the proposed represented person is present at
the hearing; or
(b) VCAT is satisfied that--
(i) the proposed represented person does
not wish to attend the hearing; or
(ii) the presence 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.
44 When must VCAT make guardianship or
administration order following hearing?
(1) Subject to this section, VCAT must make a
guardianship order or administration order as
sought following a hearing in relation to an
application under this Part that appoints the
applicant as guardian or administrator if VCAT is
satisfied as to the matters referred to in section
36(1)(b)(i) and (ii).
(2) VCAT must refuse to make a guardianship order
or administration order as sought following a
hearing in relation to an application under this
Part that appoints the applicant as guardian or
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administrator if VCAT is satisfied that the order
sought--
(a) would be harmful to the personal and social
wellbeing of the proposed represented
person; or
(b) would not be appropriate, on the basis of the
views of the proposed represented person (so
far as they can be ascertained).
(3) VCAT may make a guardianship or
administration order that confers more limited
powers on the guardian or administrator appointed
than were sought in the application under this Part
if VCAT is satisfied as to the matters referred to
in section 36(1)(b)(i) and (ii) and that--
(a) the order sought would not be harmful to the
personal and social wellbeing of the
proposed represented person; or
(b) the order made by VCAT more closely
reflects the views of the proposed
represented person (so far as they can be
ascertained).
45 Reassessment of orders made under this Part
(1) VCAT must conduct a reassessment of a
guardianship order or an administration order
made under this Part within the 6 month period
immediately before the fifth anniversary of the
order.
(2) VCAT may at any time conduct a reassessment of
a guardianship order or an administration order
made under this Part if VCAT is satisfied that--
(a) there is a significant risk that the order is
harmful to the represented person; or
(b) the order may no longer be appropriate, on
the basis of the views of the represented
person.
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(3) Before conducting a reassessment under
subsection (2), VCAT must--
(a) consider whether it is appropriate to give the
guardian or administrator, as the case may
be, an opportunity to make a submission to
VCAT as to whether or not a reassessment
should be conducted; and
(b) if it considers that it is appropriate, provide
the guardian or administrator, as the case
may be, the opportunity to do so.
(4) A reassessment under subsection (2) may be
conducted--
(a) on VCAT's own initiative; or
(b) on the application of any person.
46 VCAT may request information and documents
For the purposes of a reassessment that occurs in
accordance with section 45(1), VCAT may
request the guardian or administrator, as the case
may be, to provide VCAT with some or all of the
information and documents referred to in section
36(1).
47 VCAT must give notice
(1) After a guardian or administrator is notified that
VCAT intends to reassess the guardianship order
or administration order made under this Part, the
following persons (of whom the applicant could
be reasonably expected to be aware and to be able
to notify) are entitled to notice of the making of
the reassessment--
(a) the represented person;
(b) the primary carer of the represented person;
(c) the accommodation provider in relation to
the represented person;
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Guardian or Administrator
(d) any care worker who provides care on a
regular and ongoing basis to the represented
person that is necessary because of the
person's disability;
(e) any health provider who provides substantial
health care on a regular and ongoing basis to
the represented person;
(f) the nearest relative available of the
represented person (other than the applicant);
(g) a person not referred to in paragraphs (a) to
(f) who made a submission to VCAT in the
original application.
(2) Section 72 of the VCAT Act applies as if the
notice were in relation to an application.
Note
Section 72(1)(b) of the VCAT Act provides that an applicant
for a VCAT order must serve a copy of the application on a
person entitled to notice of the application under the
enabling enactment (which is this Act). Section 72 of the
VCAT Act also provides for the circumstances in which
service by the applicant may not be required.
(3) A person who is notified under subsection (1) may
make a submission to VCAT in relation to the
reassessment within 60 days after the notification
is made under that subsection.
48 Conduct of reassessment
(1) Subject to subsection (2), a reassessment of an
order made under this Part must be conducted on
the papers.
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(2) A reassessment under section 45(1) or (2) of an
order made under this Part must be conducted at a
hearing if--
(a) VCAT is satisfied that that the represented
person does not want the order as made to
continue to be in force or has other concerns
that should be considered at a hearing; or
(b) VCAT considers that based on the evidence
provided by the guardian or administrator, as
the case may be, or on any submission
received by VCAT, there is a significant risk
that continuing the order would be harmful
to the personal and social wellbeing of the
represented person.
49 Order after reassessment
(1) On completing a reassessment of an order under
this Part on the papers, VCAT may by order--
(a) amend, vary, continue or replace the order
subject to any conditions or requirements it
considers necessary, if satisfied as to the
matters referred to in section 36(1)(b)(i) and
(ii); or
(b) revoke the order if section 41(2)(a) or (b)
applies.
(2) On completing a reassessment of an order under
this Part at a hearing, VCAT may by order--
(a) amend, vary, continue or replace the order to
alleviate the represented person's concerns, if
satisfied as to the matters referred to in
section 36(1)(b)(i) and (ii); or
(b) revoke the order.
__________________
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PART 6--POWERS AND DUTIES OF GUARDIANS AND
ADMINISTRATORS
Division 1--Guardians
50 Authority of a guardian
(1) A guardianship order appointing a guardian in
relation to the represented person confers on the
guardian--
(a) in relation to a personal matter--
(i) the powers and duties set out in
Division 3; and
(ii) those powers in relation to the
represented person that VCAT specifies
in the order in accordance with
subsection (2); and
(b) in addition to the powers and duties under
paragraph (a), in relation to a financial
matter--
(i) the powers set out in Division 4; and
(ii) the duties set out in Division 6; and
(iii) such of the powers set out in Division 5
that VCAT specifies in the order in
accordance with subsection (3).
(2) For the purposes of subsection (1)(a), VCAT may
specify one or more of the powers that a principal
may confer on an enduring attorney under the
Powers of Attorney Act 2014 in relation to a
personal matter if VCAT is satisfied that the
power is necessary or desirable for the purpose of
promoting the personal and social wellbeing of the
represented person.
(3) For the purposes of subsection (1)(b)(iii), VCAT
may specify one or more of the powers set out in
Division 5 if VCAT is satisfied that the power is
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necessary or desirable for the purpose of
promoting the personal and social wellbeing of the
represented person.
51 Appointment and authority of an alternative
guardian
(1) When making or reassessing a guardianship order
which only confers powers in relation to a
personal matter, or at any time when such a
guardianship order is in force, VCAT may make
an order appointing an alternative guardian with
powers in relation to a personal matter if--
(a) the person proposed as an alternative
guardian has consented to act as guardian of
the represented person in the event of--
(i) the death or absence of the original
guardian; or
(ii) the original guardian becoming a
person who does not have decision
making capacity in relation to the
personal matters in respect of which the
guardianship order was made; and
(b) VCAT is satisfied that the persons to whom
notice of the hearing of a guardianship order
is given under section 23 have had sufficient
notice of the willingness of the person
proposed as alternative guardian to act as
alternative guardian.
(2) Sections 31 and 32 (other than section 32(2))
apply to and in relation to the person proposed as
alternative guardian as if that person were the
proposed guardian.
(3) If an alternative guardian is appointed, the
alternative guardian immediately takes over the
office of guardian without further proceedings on
one of the following events--
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(a) the death or absence of the original guardian;
(b) the original guardian becoming a person who
does not have decision making capacity in
relation to the matters in respect of which the
guardianship order was made.
(4) The alternative guardian must notify VCAT in
writing of an event referred to in subsection (3)
and provide evidence of the event.
(5) An alternative guardian who has taken over the
office of a guardian has the same powers and
duties with respect to the represented person as
the original guardian had immediately before that
guardian's death, absence or loss of decision
making capacity.
52 Temporary guardianship orders
(1) A temporary guardianship order--
(a) remains in effect for such period not
exceeding 21 days as is specified in the
order; and
(b) may be renewed once for a further period not
exceeding 21 days.
(2) VCAT must hold a hearing to determine whether
a guardianship order should be made under
section 28 as soon as practicable after making a
temporary order but within 42 days of making that
order.
53 Authority of guardians--general
A decision made, action taken, consent given or
thing done by a guardian under a guardianship
order has effect as if it had been made, taken,
given or done by the represented person and the
represented person had the decision making
capacity for the matter in relation to which the
order was made.
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54 Represented person to comply with guardian's
decisions
(1) VCAT may make an order that specifies that the
person named as guardian or another specified
person is empowered 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 that order but within 42 days of
making that 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
of the taking of a measure or action under that
order if the guardian or other person took that
measure or action in the belief that--
(a) the measure or action would promote the
personal and social wellbeing of the
represented person; and
(b) it was reasonable to take that measure or
action in the circumstances.
(4) Subsection (1) does not limit section 50, 51 or 53.
Division 2--Administrators
55 Authority of administrator
(1) An administration order appointing an
administrator confers on the administrator--
(a) the powers and duties set out in Division 3;
and
(b) the powers set out in Division 4; and
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(c) the duties set out in Division 6; and
(d) such of the powers referred to in Division 5
that VCAT specifies in the order in
accordance with subsection (2).
(2) For the purposes of subsection (1)(d), VCAT may
specify one or more of the powers set out in
Division 5 if VCAT is satisfied that the power is
necessary or desirable for the purpose of
promoting the personal and social wellbeing of the
represented person.
(3) A decision made, action taken, consent given or
thing done by an administrator under an
administration order has effect as if it had been
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.
56 Temporary administration orders
(1) A temporary administration order--
(a) remains in effect for such period not
exceeding 21 days as is specified in the
order; and
(b) may be renewed once for a further period not
exceeding 21 days.
(2) VCAT must hold a hearing to determine whether
an administration order should be made under
section 28 as soon as practicable after making a
temporary order but within 42 days of making that
order.
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Division 3--Powers and duties of all guardians and all
administrators
57 Matters for which power cannot be given under an
order made under section 28
To avoid doubt, despite anything to the contrary in
this Part, an order made under section 28 does not
confer on the person appointed as guardian or
administrator, as the case may be, authority--
(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 a local
election or referendum; or
(d) to enter into or dissolve 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 any 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
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(h) to manage the estate of the represented
person on the death of the represented
person; or
(i) to consent to an unlawful act.
58 Exercise of power by guardian or administrator
Without limiting section 7, in relation to the
represented person for whom an order is made
under section 28--
(a) the guardian must--
(i) act as an advocate for the represented
person; and
(ii) act in such a way as to protect the
represented person from neglect, abuse
or exploitation; and
(b) the guardian or administrator, as the case
may be, must--
(i) act honestly, diligently and in good
faith; and
(ii) exercise reasonable skill and care; and
(iii) not use the position for profit, unless
permitted under section 194; and
(iv) avoid acting if there is or may be a
conflict of interest unless a power
conferred by the order so authorises;
and
(v) not disclose confidential information
gained as a guardian or administrator
unless authorised to do so under the
order or by law.
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59 Ancillary powers of guardian or administrator
A guardian or administrator may on behalf of a
represented person sign and do all such things as
are necessary to give effect to any power or duty
vested in the guardian or administrator.
60 Guardian or administrator may seek advice
(1) A guardian or administrator may apply to VCAT
for advice on any matter relating to the scope of
the guardianship order or administration order (as
the case may be) or the exercise of any power by
the guardian or administrator under the relevant
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 proceedings 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) VCAT may--
(a) approve or disapprove of any act proposed to
be done by the guardian or administrator;
and
(b) give such advice as it considers appropriate;
and
(c) make any order it considers necessary.
(4) VCAT, of its own initiative, may direct or give an
advisory opinion to the guardian or administrator
concerning any matter.
(5) An action does not lie against a guardian or
administrator on account of an act or thing done or
omitted by the guardian or administrator under
any order or on the advice of VCAT made or
given under this section unless, in representing the
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facts to VCAT, the guardian or administrator has
been guilty of fraud, wilful concealment or
misrepresentation.
61 Notice of death of represented person
If a represented person, in relation to whom a
guardian or administrator has been appointed,
dies, the guardian or administrator (as the case
may be) must report the death in writing to VCAT
without delay.
Division 4--Powers for all guardians with powers in relation
to a financial matter and all administrators
62 General powers and rights in relation to estate of
represented persons
A guardian with powers in relation to a financial
matter or an administrator may, in the name and
on behalf of the represented person, generally do
all acts and exercise all powers and rights with
respect to the estate of the represented person as
effectually and in the same manner as the
represented person could have done if the
represented person had decision making capacity
to do so for the matters in relation to which the
guardianship order or administration order was
made.
63 Powers of investment
Except as provided in section 83 or any order of
VCAT, a guardian with powers in relation to a
financial matter, or an administrator, who is
appointed in relation to any part of the estate of
the represented person--
(a) may, for such period as the guardian or
administrator thinks fit, allow that part of the
estate to remain invested in the manner in
which it has been invested by the represented
person; and
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(b) may, in the case of money deposited in an
authorised deposit-taking institution within
the meaning of the Banking Act 1959 of the
Commonwealth, re-deposit it after it
becomes payable; and
(c) has, and may exercise in relation to that part
of the estate, the same powers as the
guardian or administrator would have if the
guardian or administrator were a trustee of
that part of the estate under the Trustee Act
1958.
64 Power to make gifts
(1) A guardian with power in relation to a financial
matter or an administrator may make a gift of a
represented person's property only if--
(a) the gift is reasonable, having regard to all the
circumstances and, in particular, 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.
(ii) a type of donation that the represented
person made when the represented
person had decision making capacity
for the matter or that the represented
person might reasonably be expected to
make.
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(2) A gift may be made by a guardian with power in
relation to a financial matter or the administrator
under subsection (1) even if the gift is made to--
(a) that guardian or administrator; or
(b) a relative or close friend of the guardian or
administrator; or
(c) an organisation with whom the guardian or
administrator has a connection.
Note
Sections 75 and 76 set out accounting requirements in
relation to gifts that are of or over $100 or the prescribed
amount (whichever is greater).
65 Exercise of certain powers
(1) Subsection (2) applies if--
(a) a power is vested in a represented person for
that person's own benefit or the consent of a
represented person is necessary to the
exercise of a power; and
(b) the power or consent is in the nature of a
beneficial interest in the represented person;
and
(c) it appears to the guardian with powers in
relation to a financial matter or the
administrator to be for the benefit of the
represented person that the power should be
exercised or the consent given.
(2) A guardian with powers in relation to a financial
matter or an administrator may, on behalf and in
the name of a represented person, in any manner
that the guardian or administrator thinks fit,
exercise a power referred to in subsection (1) or
give a consent referred to in that subsection.
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(3) Subsection (4) applies if--
(a) a power is vested in a represented person in
the character of a trustee or guardian, or the
consent of a represented person to the
exercise of a power is necessary in the
character of a trustee or guardian or as a
check on the undue exercise of the power;
and
(b) it appears to the guardian with powers in
relation to a financial matter or the
administrator that the power should be
exercised or the consent given.
(4) A guardian with powers in relation to a financial
matter or an administrator may in any manner that
the guardian or administrator thinks fit, on behalf
and in the name of a represented person, exercise
a power referred to in subsection (3) or give a
consent referred to in that subsection.
(5) The exercise, under this section by a guardian
with powers in relation to a financial matter or by
an administrator, of a power vested in a
represented person to appoint a new trustee is to
be taken to be the appointment of a new trustee
within the meaning of section 45 of the Trustee
Act 1958.
66 Guardian with powers in relation to a financial
matter or administrator may open will
A guardian with powers in relation to a financial
matter or an administrator may, either before or
after the death of a represented person, open and
read without order any paper or writing deposited
with the guardian or administrator that is
purported or alleged to be the will of the
represented person.
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67 Guardian with powers in relation to a financial
matter or an administrator may seek advice from
professional adviser
(1) A guardian with powers in relation to a financial
matter or an administrator may seek advice from a
professional adviser on the administration of the
represented person's estate.
(2) A guardian with powers in relation to a financial
matter or an administrator is entitled to be
reimbursed from the estate administered by the
guardian or administrator for any costs paid by
that person in the course of obtaining advice under
subsection (1).
(3) In this section--
professional adviser means a person who
provides professional advice in relation to
financial matters to guardians with power in
relation to a financial matter or to
administrators and includes a financial
adviser, legal practitioner and accountant.
Division 5--Powers that may be conferred on guardians
with power in relation to a financial matter and
administrators
68 Application of Division to guardians and
administrators
In this Division--
(a) a provision that refers to a guardian only
applies to a specific guardian with powers in
relation to a financial matter if the order
appointing that guardian specifies that the
provision applies to that guardian or that the
power in that provision is conferred on the
guardian; and
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(b) a provision that refers to an administrator
only applies to a specific administrator if the
order appointing that administrator specifies
that the provision applies to that
administrator or that the power in that
provision is conferred on the administrator.
69 Powers in relation to represented persons
(1) Subject to and in accordance with this Act and the
order appointing a guardian with powers in
relation to a financial matter or an administrator,
the guardian or administrator has the general care
and management of the represented person's
estate.
(2) Without limiting subsection (1), a guardian with
powers in relation to a financial matter or an
administrator may, in the name and on behalf of a
represented person--
(a) 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; and
(b) invest any money in any security in which
trustees may by law invest; and
(c) 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; and
(d) exercise to the extent and in the manner the
guardian or administrator thinks fit any
power of leasing vested in the represented
person; and
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(e) surrender any lease, accept any lease, accept
the surrender of any lease or renew any
lease; and
(f) bring land under the Transfer of Land Act
1958; and
(g) sell, exchange, partition or convert into
money any property; and
(h) mortgage or charge any property; and
(i) pay any debts and settle, adjust or
compromise any demand made by or against
the estate and discharge any encumbrance on
the estate; and
(j) carry on so far as appears desirable any
trade, profession or business which the
represented person carried on; and
(k) agree to any alteration of the conditions of
any partnership into which any represented
person has entered or to a dissolution and
distribution of the assets of the partnership;
and
(l) bring and defend actions and other legal
proceedings in the name of the represented
person; and
(m) execute and sign deeds, instruments and
other documents; and
(n) complete any contract for the performance of
which the represented person was liable, or
enter into any agreement terminating
liability; and
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(o) pay any sum that appears expedient and
reasonable to the guardian or administrator
for--
(i) the maintenance of the represented
person (and, in the event of the
represented person's death, for 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 maintenance and education of the
represented person's children; and
(p) do all matters necessary or incidental to the
performance of any of the above-mentioned
matters and apply any money from the estate
which it is necessary to apply for the
purposes of this Act.
(3) A guardian with powers in relation to a financial
matter or an administrator may--
(a) pay or cause to be paid to the represented
person for the personal use of that person
any amount of money standing to the credit
of that person with the guardian or
administrator; and
(b) give or cause to be given to the represented
person for the personal use of that person
any personal property which belongs to that
person and is under the control of the
guardian with powers in relation to a
financial matter or the administrator.
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Division 6--Additional duties of all guardians with power in
relation to a financial matter and all administrators
70 Property of represented person
Subject to and in accordance with this Act and the
order appointing a guardian with powers in
relation to a financial matter or an administrator, it
is the duty of the guardian or administrator to take
possession and care of, recover, collect, preserve
and administer the property and estate of the
represented person and generally to manage the
property and financial affairs of the represented
person.
71 Conflict transactions
(1) A guardian with powers in relation to a financial
matter or an administrator must not enter into a
transaction in that capacity if the transaction is
one in which there is, or may be, a conflict
between a duty of the guardian or administrator to
the represented person and the interests of the
guardian or administrator, or a relative, business
associate or close friend of the guardian or
administrator.
(2) Subsection (1) does not apply to--
(a) a gift made in accordance with section 64; or
(b) a transaction providing for the maintenance
of a dependant of the represented person
made in accordance with section 69(2)(o); or
(c) a transaction merely because in the
transaction, the guardian or administrator, in
the guardian's or administrator's own right
and on behalf of the represented person--
(i) deals with an interest in property held
jointly by the guardian or administrator
and the represented person (whether as
joint tenants or tenants in common); or
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(ii) obtains a loan or gives a guarantee or
indemnity in respect to a transaction
referred to in subparagraph (i).
72 Permitted conflict transactions
(1) A guardian with powers in relation to a financial
matter or an administrator may enter into a
transaction prohibited by section 71(1) if VCAT
authorises the guardian or administrator at or
before the time of the transaction to enter into--
(a) the transaction; or
(b) that kind of transaction; or
(c) any transaction prohibited by section 71(1).
(2) Despite section 71(1), VCAT may validate a
transaction prohibited under that section.
(3) A transaction validated under subsection (2) is
taken to be valid from its commencement.
73 Keeping records
A guardian with powers in relation to a financial
matter or an administrator must keep accurate
records and accounts of all dealings and
transactions made for financial matters.
74 Separation of guardian's or administrator's
property and the property of the represented person
(1) A guardian with powers in relation to a financial
matter or administrator appointed in relation to the
estate of a represented person must keep the
guardian's or administrator's property separate
from the represented person's property.
(2) Subsection (1) does not apply to property owned
jointly by the guardian or administrator and the
represented person.
(3) Subsection (1) does not affect any other obligation
imposed by law.
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75 Accounts
(1) VCAT may, at the time that it appoints under
section 28 a guardian with powers in relation to a
financial matter or an administrator or at any later
time, appoint a person to examine or audit the
accounts of the estate of a represented person for a
fee approved by VCAT and paid from that estate.
(2) On, or as soon as practicable after, the anniversary
in each year of the appointment of the guardian
with powers in relation to a financial matter or of
the administrator, the guardian or administrator
must lodge an account of the administration of the
estate of a represented person with--
(a) the person appointed under subsection (1) to
examine or audit accounts; or
(b) VCAT, if no person is appointed under
subsection (1).
(3) Despite subsection (2), VCAT may require a
guardian with powers in relation to a financial
matter or an administrator to lodge accounts at a
time other than a time specified in that subsection.
(4) Subject to section 76, an account lodged under
subsection (2) or (3) must--
(a) provide a full and true account of the assets
and liabilities of the estate of the represented
person and all receipts and disbursements in
relation to that estate; and
(b) include details of any gift made by the
guardian or administrator of the represented
person's property with a total value of or
over the prescribed amount or, if an amount
is not prescribed, $100 and that is made to--
(i) that guardian or administrator; or
(ii) a relative or close friend of the guardian
or administrator; or
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(iii) an organisation with whom the
guardian or administrator has a
connection.
(5) A person appointed under subsection (1) to
examine or audit accounts must lodge with VCAT
a report in relation to the accounts examined or
audited and 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 guardian with powers in relation
to a financial matter or administrator acted in
good faith and with reasonable care in the exercise
of powers conferred on the guardian or
administrator.
(7) If VCAT disallows an item referred to in
subsection (5), the guardian with powers in
relation to a financial matter or the administrator
is liable for the amount of the item disallowed.
(8) A guardian with powers in relation to a financial
matter or an administrator must, in relation to each
estate administered by the guardian or
administrator, pay to a person appointed under
subsection (1) to examine or audit accounts an
amount certified by that person as being the
reasonable cost of examining or auditing the
accounts.
(9) VCAT may, on an application by the guardian
with powers in relation to a financial matter or the
administrator and with the consent of the person
appointed under subsection (1) to examine or
audit accounts, waive payment of the whole or
part of the amount required to be paid under
subsection (8).
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76 Alternative accounting requirements for certain
estates
(1) If VCAT determines that the estate of a
represented person is a small estate and that it is
appropriate (having regard to the nature of the
relationship between the represented person and
the guardian with powers in relation to a financial
matter or the administrator) that section 75(4) not
apply, a guardian or an administrator must instead
comply with the requirements of this section.
(2) Subject to subsection (1), an account lodged under
section 75(2) must include the following--
(a) a declaration made by the guardian with
powers in relation to a financial matter or the
administrator that all expenditure in relation
to the estate during the accounting period
was solely for the benefit of the represented
person;
(b) details of any gift made by the guardian or
administrator of the represented person's
property with a total value of or over $100 or
the prescribed amount (whichever is greater)
and that is made to--
(i) that guardian or administrator; or
(ii) a relative or close friend of the guardian
or administrator; or
(iii) an organisation with whom the
guardian or administrator has a
connection;
(c) details of any expenditure on a single
occasion that is greater than $1000 or the
prescribed amount (whichever is greater);
(d) details of any major change in the
represented person's income or expenditure;
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(e) details of any major change in the
represented person's assets or liabilities.
(3) In this section--
small estate means an estate of a represented
person that consists of assets with a value of
less than $10 000 or the prescribed amount
(whichever is greater) and an income that is
not more than $25 000 or the prescribed
amount (whichever is greater).
Division 7--Other matters pertaining to the administration
of estates of represented persons
77 Guardian's or administrator's power to act until
notice received
(1) If VCAT knows that a person has ceased to be a
represented person, VCAT must without delay
give notice of that fact to the guardian with
powers in relation to a financial matter or to the
administrator.
(2) Until the guardian with powers in relation to a
financial matter or the administrator learns that a
person has ceased to be a represented person or
has died, the guardian or administrator may
exercise all or any of the powers given to the
guardian or administrator by order of VCAT with
respect to the estate of the represented person.
(3) On notice being given under subsection (1), the
represented person or the represented person's
legal personal representative (as the case may be)
is bound by, and may take advantage of, any act
done on behalf of the represented person by the
guardian with powers in relation to a financial
matter or by the administrator within the powers
conferred on the guardian or administrator by
VCAT as if it had been done by the represented
person and the represented person had decision
making capacity to do so for the matter in relation
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to which the guardianship or administration order
was made.
78 Action on a person ceasing to be a represented
person
(1) If a guardian with powers in relation to a financial
matter or an administrator receives notice from
any person that a represented person has died or
from VCAT that a represented person has died or
ceased to be a represented person, the guardian or
administrator must--
(a) pay or cause to be paid to that person or to
that person's personal representative (as the
case requires) all money standing to the
person's credit with the guardian or
administrator; and
(b) deliver to that person or to that person's
personal representative (as the case requires)
all property forming part of the person's
estate that is in the custody of the guardian or
administrator and 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
guardian with powers in relation to a financial
matter or the administrator and all costs, expenses
and liabilities incurred by the guardian or
administrator in relation to the administration of
that person's estate.
(3) The receipt by a person who has ceased to be a
represented person or of that person's personal
representative is an absolute discharge to a
guardian or administrator despite any informality
in the discharge or certification.
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79 Represented person entitled to inspection of
accounts
A person who has ceased to be a represented
person (or the personal representative of such a
person) is entitled, before or after obtaining the
restoration of all or any part of the estate from a
guardian with powers in relation to a financial
matter or an administrator--
(a) to examine and inspect or cause to be
examined and inspected by a legal
practitioner or other authorised agent all
books, accounts, notices and other
documents in the custody of the guardian or
administrator relating to the estate and to
make or cause to be made copies or extracts;
and
(b) to be provided with--
(i) copies of or extracts from any book,
account, notice or document in relation
to the administration of the estate by
the guardian or administrator; and
(ii) information in relation to the
administration of the estate by the
guardian or administrator that is
reasonable to request and that can be
given by the guardian or administrator.
80 Sale of personal effects if unclaimed within 2 years
from date of discharge
(1) All personal effects of a person who was a
represented person that are in the possession of a
guardian with powers in relation to a financial
matter or an administrator and are not claimed
within 2 years after the date on which the person
ceased to be a represented person, may, after
public notice, be sold by order of the guardian or
administrator.
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(2) The proceeds are to be paid into the Consolidated
Fund.
81 Death of represented person
On the death of a represented person, an order
appointing an administrator of that represented
person's estate under this Act lapses and the law
relating to the administration of a deceased
person's estate applies accordingly.
82 Restriction on powers of represented person in
relation to estate
(1) A represented person is taken to be incapable (to
the extent that the represented person's estate is
under the control of a guardian with powers in
relation to a financial matter or an administrator),
of dealing with, transferring, alienating or
charging the represented person's money or
property in whole or in part or becoming liable
under any contract without the order of VCAT or
the written consent of the guardian or
administrator.
(2) Any dealing, transfer, alienation or charge by any
represented person in relation to any part of the
estate which is under the control of the guardian
with powers in relation to a financial matter or the
administrator is void and of no effect, and the
money or property that is the subject of the
dealing, transfer, alienation or charge is
recoverable by the guardian or administrator in
any court of competent jurisdiction.
(3) This section does not render invalid any dealing,
transfer, alienation or charge by a represented
person made for adequate consideration with or to
or in favour of any other person who 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.
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(4) For the purpose of this section, the acceptance of
payment of the whole or any part of a debt is
taken to be a dealing with property.
83 Interest of represented person in property not to be
altered by sale or other disposition of property
(1) A represented person and the represented person's
heirs, executors, administrators, next of kin,
devisees, legatees and assigns 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 a guardian with powers in
relation to a financial matter or an administrator
by an order of VCAT which have not been applied
under those powers as the represented person or
those other persons 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 given to a guardian
with powers in relation to a financial matter or an
administrator by an order of VCAT.
(3) A guardian with powers in relation to a financial
matter or an administrator who receives money or
other property under this section must keep a
separate account and record of the money or other
property.
(4) Money received by a guardian with powers in
relation to a financial matter or an administrator
under this section may be invested in any manner
in which trust funds may be invested under the
Trustee Act 1958.
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(5) 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.
84 VCAT may open will
VCAT may either before or after the death of a
represented person open and read any paper or
writing which is purported or alleged to be the
will of the represented person.
85 Guardianship and Administration Fund
(1) The account that is known as "The Guardianship
and Administration Fund" and that was
established in the Public Account under
section 58AA of the Guardianship and
Administration Act 1986 continues in existence.
(2) There is to be paid into the Guardianship and
Administration Fund--
(a) all annual fees prescribed under section 210
that are paid in relation to estates which are
the subject of an administration order or
guardianship order that appoints a guardian
with powers in relation to a financial matter;
and
(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.
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86 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 the estate of the represented person
that is administered by a guardian with powers in
relation to a financial matter or an administrator
may apply to VCAT on any matter arising out of
the administration of that estate by the guardian or
administrator.
(2) VCAT may make such order in relation to the
application as the circumstances of the case may
require.
(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 7--SUPPORTIVE GUARDIANSHIP ORDERS
Division 1--Application for supportive guardianship orders
87 Application for supportive guardianship orders
A person may apply to VCAT for a supportive
guardianship order in relation to another person
with a disability to support that person in making
and giving effect to decisions in relation to any
personal, financial or other matters specified in
the order if that person is--
(a) of or over 18 years of age; or
(b) under 18 years of age but the order takes
effect on that other person attaining 18 years
of age.
88 Matters to be included in application to VCAT
A person applying to VCAT for a supportive
guardianship order must include in the person's
application the following--
(a) the names and contact details (if known to
the applicant) of any person who has a direct
interest in the application; and
(b) the matters in relation to which the order is
sought.
89 Who are the parties to a proceeding?
The following persons are parties to a proceeding
on an application under section 87--
(a) the applicant;
(b) the proposed supported person;
(c) the person proposed as supportive guardian;
(d) any other person whom VCAT determines to
be a party to the proceeding.
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90 Who is entitled to notice of an application, the
hearing and any order made in the proceeding?
(1) In addition to any party to a proceeding on an
application under section 87, 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 of the
VCAT Act--
(a) the spouse or domestic partner of the
proposed supported person;
(b) the primary carer of the proposed supported
person;
(c) the nearest relative available (other than the
spouse or domestic partner) of the proposed
supportive person;
(d) any other person whom VCAT determines to
have an interest in the application.
(2) As soon as practicable after making any
determination under section 89(d) or subsection
(1)(d), VCAT must notify the applicant as to
who--
(a) are the parties to the proceeding on the
application; and
(b) is entitled under subsection (1) to a notice of
the making of the application.
Note
Section 72(1)(b) of the VCAT Act provides that an applicant
for a VCAT order must serve a copy of the application on a
person entitled to notice of the application under the
enabling enactment (which is this Act). 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 person entitled to
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notice of the proceeding or of the order under the enabling
enactment.
91 Contents of notice of application
(1) A notice of the making of an application that is
given to a party to an application must include the
following--
(a) a copy of the application and any
information filed in support of the
application subject to clause 37A in 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, as stated in the notification given
under section 90(2), of--
(i) the parties to the proceeding on an
application under section 87; and
(ii) the other persons entitled to the notice
under section 90(1);
(c) information about the rights of the party in
relation to the application.
(2) A notice of the making of an application that is
given a person referred to in section 90(1) who is
not a party must include the following--
(a) a copy of the application;
(b) the names, as stated in the notification given
under section 90(2), of--
(i) the parties to the proceeding on an
application under section 87; and
(ii) the other persons entitled to the notice
under section 90(1);
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(c) information about the rights of the person in
relation to seeking information about the
application;
(d) information about the procedure for applying
to VCAT to be made a party to the
proceeding on the application.
92 Date for hearing of application for supportive
guardianship order
VCAT must commence to hear an application
made under section 87 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 the application 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.
93 Participation at hearing by proposed supported
person
VCAT may only conduct a hearing in relation to
an application for a supportive guardianship order
if the proposed supported person is present at the
hearing unless VCAT is satisfied that--
(a) the proposed supported person does not wish
to attend; or
(b) the presence of the proposed supported
person 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
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telephones, video links or any other system of
telecommunication.
Division 2--Conditions for making supportive guardianship
orders and eligibility of person appointed
94 When may VCAT make a supportive guardianship
order?
Subject to this Division, VCAT may make a
supportive guardianship order after considering an
application for--
(a) a supportive guardianship order in relation to
a proposed supported person; or
(b) an administration or guardianship order in
relation to a proposed represented person, if
satisfied that the criteria set out in
section 28(4) do not apply.
95 Conditions for making supportive guardianship
orders
VCAT may make an order appointing a
supportive guardian for a proposed supported
person or proposed represented person if VCAT is
satisfied that--
(a) the person is a person with a disability; and
(b) the person does not oppose VCAT making
the order; and
(c) if the person is given practicable and
appropriate support, the person will have
decision making capacity in relation to the
personal, financial or other matter in relation
to which the supportive guardianship order
or the guardianship or administration order is
sought; and
(d) it is more appropriate that a supportive
guardianship order is made than a
guardianship or an administration order; and
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(e) the supportive guardianship order would
promote the person's personal and social
wellbeing.
96 Factors to consider in determining appropriateness
of supportive guardianship order
For the purposes of section 95(d), in determining
whether or not a supportive guardianship order in
relation to a proposed supported person or
proposed represented person is appropriate,
VCAT must consider--
(a) the wishes of the person, so far as they can
be ascertained; and
(b) the wishes of the nearest relative of the
person or any other family members; and
(c) the desirability of preserving existing family
relationships and other relationships that are
important to the person; and
(d) whether it is more suitable that the decision
in relation to the personal, financial or other
matter in relation to which the order is
sought is made--
(i) through negotiation, mediation or
similar means; or
(ii) by informal means.
97 Persons eligible as supportive guardians
VCAT may appoint as a supportive guardian any
individual of or over 18 years of age who consents
to act as supportive guardian if VCAT is satisfied
that the person--
(a) will promote the personal and social
wellbeing of the proposed supported person
or proposed represented person; and
(b) is a suitable person to act as the supportive
guardian.
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98 Factors to consider in relation to suitability of
person appointed
For the purposes of section 97(b), in determining
whether a person is suitable to act as the
supportive guardian of a proposed supported
person or proposed represented person, VCAT
must consider the following--
(a) the wishes of the proposed supported person
or proposed represented 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
or proposed represented person;
(c) the nature of the relationship between the
proposed supportive guardian and the
proposed supported person or proposed
represented person, in particular whether the
relationship is characterised by trust;
(d) whether the person proposed as a supportive
guardian will be available and able to meet
and communicate with the proposed
supported person or proposed represented
person.
Division 3--Powers of a supportive guardian
99 Power to make and scope of appointment
(1) Subject to Division 2, VCAT may appoint a
supportive guardian under a supportive
guardianship order to support the supported
person in making and giving effect to decisions by
exercising any of the powers referred to in
sections 100, 101 or 102 that VCAT specifies in
the order in relation to the personal, financial or
other matters in respect of which the order was
made.
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(2) To avoid doubt, nothing in this Act or in a
supportive guardianship order should be taken as
providing for the making of a supported decision
that is not a decision of the supported person.
100 Information power
(1) A supportive guardian may 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 who is acting
under the supportive guardianship order.
Note
See also the Disability Act 2006, the Health Records Act
2001 and the Privacy and Data Protection Act 2014 for
provision as to disclosure of personal information to
supportive guardians and access to personal information by
supportive guardians.
(3) A supportive guardian may disclose any
information given to the supportive guardian
under subsection (1) for the purpose of--
(a) anything that is relevant and necessary to the
supportive guardian carrying out the role of
supportive guardian; or
(b) any legal proceeding under this Act, or any
report of a legal proceeding under this Act;
or
(c) any other lawful reason.
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101 Communication power
A supportive guardian may--
(a) 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) communicate or assist the supported person
to communicate a supported decision of the
supported person.
102 Powers as to giving effect to decisions
(1) A supportive guardian may 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
(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
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(d) undertaking a transaction for the
supported person involving the use of
the supported person's property as
security for an obligation;
(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 authorised deposit-taking institution within the
meaning of the Banking Act 1959 of the
Commonwealth.
103 Duties and obligations of supportive guardian
(1) A supportive guardian under a supportive
guardianship order must--
(a) act honestly, diligently, and in good faith;
and
(b) exercise reasonable skill and care; and
(c) not use the position for profit; and
(d) avoid acting where there is or may be a
conflict and, if acting where there is a
conflict of interest, must ensure that the
interests of the supported person are the
primary consideration; and
(e) 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.
(2) A supportive guardian under a supportive
guardianship order is not entitled to receive any
remuneration for acting as supportive guardian.
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(3) A supportive guardian must not--
(a) assist the supported person, in the supportive
guardian's role as supportive guardian, to
conduct any illegal activity; or
(b) coerce, intimidate or in any way unduly
influence the supported person into a
particular course of action.
Division 4--General
104 When does a supportive guardianship order cease to
have effect?
(1) A supportive guardianship order ceases to have
effect to the extent that it is inconsistent with any
subsequent guardianship order or administration
order.
(2) VCAT may modify a supportive guardianship
order--
(a) if an application is made for a subsequent
guardianship order or administration order in
relation to the supported person; or
(b) under Part 10.
105 Supportive guardian may seek 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) VCAT may--
(a) approve or disapprove of any act proposed to
be done by the supportive guardian; and
(b) give such advice as it considers appropriate;
and
(c) make any order it considers necessary.
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(3) VCAT, of its own initiative, may direct or give an
advisory opinion to a supportive guardian
concerning any matter.
(4) An action does not lie against a supportive
guardian on account of an act or thing done or
omitted by the supportive guardian 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 has been guilty
of fraud, wilful concealment or misrepresentation.
106 Notice of death of supported person
If a supported person dies, the supportive guardian
must report the death in writing to VCAT without
delay.
__________________
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PART 8--ADMINISTRATION (MISSING PERSON) ORDERS
Division 1--Application of administration (missing person)
orders
107 Application for administration in relation to the
estate of a missing person
(1) A person may apply to VCAT for an
administration (missing person) order in relation
to the estate of a missing person.
(2) The following persons are parties to a proceeding
on an application under subsection (1)--
(a) the applicant;
(b) the person proposed as administrator;
(c) any other person determined by VCAT to be
a party.
108 Who is entitled to notice of an application, the
hearing and any order made in the proceeding?
(1) In addition to any party to a proceeding on an
application under section 107, 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 of the
VCAT Act--
(a) the spouse or domestic partner of the missing
person;
(b) the primary carer of the missing person;
(c) the nearest relative available (other than the
spouse or domestic partner) of the missing
person;
(d) any other person whom VCAT determines to
have a special interest in the application.
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(2) As soon as practicable after making any
determination under section 107(2)(c) or (1)(d),
VCAT must notify the applicant as to who--
(a) are the parties to the proceeding on the
application; and
(b) is entitled under subsection (1) to a notice of
the making of the application.
Note
Section 72(1)(b) of the VCAT Act provides that an applicant
for a VCAT order must serve a copy of the application on a
person entitled to notice of the application under the
enabling enactment (which is this Act). 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 person entitled to
notice of the proceeding or of the order under the enabling
enactment.
109 Contents of notice of application
(1) A notice of the making of an application that is
given to a party to an application must include the
following--
(a) a copy of the application and any
information filed in support of the
application subject to clause 37A in 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.
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(b) the names, as stated in the notification given
under section 108(2), of--
(i) the parties to the proceeding on an
application under section 107; and
(ii) the other persons entitled to the notice
under section 108;
(c) information about the rights of the party in
relation to the application.
(2) A notice of the making of an application that is
given to a person referred to in section 108(1) who
is not a party must include the following--
(a) a copy of the application;
(b) the names, as stated in the notification given
under section 108(2), of--
(i) the parties to the proceeding on an
application under section 107; and
(ii) the other persons entitled to the notice
under section 108;
(c) information about the rights of the person in
relation to seeking information about the
application;
(d) information about the procedure for applying
to VCAT to be made a party to the
proceeding on the application.
110 Date for hearing
VCAT must commence to hear an application
made under section 107 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 the application to
attend a compulsory conference in relation to
the application; or
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(b) refers the proceeding in relation to the
application, or any part of it, for mediation.
Division 2--Conditions for making administration (missing
person) orders and eligibility of person appointed
111 Appointment of administrator in relation to the
estate of a missing person
(1) VCAT may make an order in relation to the estate
of a missing person if VCAT is satisfied that--
(a) the person is a missing person who usually
resides in Victoria; and
(b) while the person is missing there is, or is
likely to be, a need for a decision in relation
to the person's financial matters; and
(c) the order would promote the missing
person's personal and social wellbeing while
that person is missing.
(2) 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
(ii) any relative or friend of the person with
whom the person is likely to
communicate.
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(3) An order may be made under this section in
relation to a person who becomes a missing
person whether before or after the commencement
of this Act.
(4) Subject to subsection (5), an administrator may be
appointed under subsection (1) to administer all or
a specified part of the estate of the missing person.
(5) VCAT cannot make an order under subsection (1)
in relation to the estate of a missing person if the
estate or any part of the estate of the missing
person 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 of
Victoria 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.
112 Persons eligible as administrator of missing person's
estate
(1) If VCAT is satisfied as to the matters set out in
subsection (2), VCAT may appoint as an
administrator in relation to the estate of a missing
person--
(a) any individual who is of or over the age of
18 years and who consents to act as
administrator; or
(b) any body corporate that consents to act as
administrator.
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(2) For the purposes of subsection (1), VCAT must be
satisfied that the person appointed--
(a) is not in a position where the person's
interests conflict or may conflict with the
interests of the missing person; and
(b) is a suitable person to act as the
administrator of the missing person's estate;
and
(c) has sufficient expertise to administer the
estate or there is a special relationship
between the missing person and the person
appointed or other special reason why that
person should be appointed as administrator.
113 Factors to consider in relation to suitability of
person appointed
(1) In determining whether a person is suitable to act
as the administrator of the estate of a missing
person, VCAT must consider the following--
(a) the wishes of the missing person, so far as
they can be ascertained;
(b) the desirability of preserving existing family
relationships and other relationships that are
important to the missing person;
(c) the desirability of appointing a person as
administrator who has an existing personal
relationship with the missing person rather
than a person with no such relationship;
(d) whether the person proposed as administrator
was a member of VCAT as constituted for a
proceeding under this Act.
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(2) VCAT must not assume without any evidence that
a missing person's relative who is proposed as the
administrator is--
(a) in a position where the relative's interests
conflict, or may conflict, with those of the
missing person; or
(b) not suitable to be appointed as the
administrator merely because that relative
disagrees with another relative of the missing
person in relation to a matter pertaining to
the missing person.
114 Other matters pertaining to appointments
Subject to section 112, VCAT may appoint a
person as administrator who was at any time a
member of VCAT as constituted for a proceeding
under this Act only if VCAT considers that in the
circumstances it is appropriate for the person to
act as an administrator.
Division 3--Powers of administrator (missing person)
115 Powers and duties of administrator appointed under
this Part
(1) Subject to subsection (2), an administrator
appointed under this Part has--
(a) the powers and duties set out in this
Division; and
(b) such of the powers and duties set out in
Division 4 that VCAT may specify in the
order if VCAT is satisfied that the power or
duty is necessary or desirable to promote the
personal and social wellbeing of the missing
person while that person is missing.
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(2) In the order appointing the administrator under
this Part, VCAT must specify the kinds of
decision that the administrator may make and the
parts of the estate in relation to which the power
may be exercised.
(3) To avoid doubt, despite anything to the contrary in
this Part, an administration (missing person) order
appointing an administrator does not confer on the
administrator authority--
(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
(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 a local election or
referendum; or
(d) to enter into or dissolve a marriage of the
missing person or a sexual relationship of the
missing person; or
(e) to make or give effect to a decision about--
(i) the care and wellbeing of any child of
the missing person; or
(ii) the adoption of a child under 18 years
of age 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
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(h) to manage the estate of the missing person
on the death of the missing person; or
(i) to consent to an unlawful act.
(4) A decision made, action taken, consent given or
thing done by an administrator under an
administration (missing person) order has effect as
if it had been made, taken, given or done by the
missing person and the missing person had
decision making capacity to do so for the matters
in relation to which the administration (missing
person) order was made.
116 Exercise of power by administrator
Without limiting section 7, in respect of a missing
person in relation to whom an administration
(missing person) order is made, the administrator
must only take actions that the administrator
considers are necessary or desirable for--
(a) the payment of the debts and engagements
of, and otherwise for the benefit of, the
missing person; or
(b) the maintenance and benefit of dependants of
the missing person; or
(c) the care and management of the estate of the
missing person.
117 Conflict transactions
(1) An administrator must not enter into a transaction
if the transaction is one in which there is, or may
be, a conflict between a duty of the administrator
in relation to the missing person and the interests
of the administrator, or a relative, business
associate or close friend of the administrator.
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(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 127(2)(o); 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 as to a transaction referred to
in subparagraph (i).
118 Permitted conflict transactions
(1) An administrator may enter into a transaction
prohibited by section 117(1) if VCAT authorises
the administrator--
(a) at or before the time of the transaction to
enter into--
(i) the transaction; or
(ii) that kind of transaction; or
(iii) any transaction prohibited by
section 117; or
(b) after the transaction, to enter into the
transaction.
(2) If VCAT authorises a transaction under subsection
(1)(b), it is taken to be valid from its
commencement.
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119 Keeping records
An administrator must keep accurate records and
accounts of all dealings and transactions made for
financial matters.
120 Separation of administrator's and missing person's
property
(1) An administrator appointed in relation to a
missing person's estate 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.
121 Ancillary powers of administrator
An administrator may, on behalf of a missing
person, sign and do all such things as are
necessary to give effect to any power or duty
vested in the administrator.
122 Powers of investment
Except as provided in section 129 or any order of
VCAT, an administrator in relation to any part of
the estate of the missing person of which the
administrator is appointed--
(a) may, for such period as the administrator
thinks fit, allow any part of the estate to
remain invested in the manner in which it
has been invested by the missing person; and
(b) may, in the case of money deposited in an
authorised deposit-taking institution within
the meaning of the Banking Act 1959 of the
Commonwealth, re-deposit it after it
becomes payable; and
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(c) has, and may exercise in relation to any part
of the estate, the same powers as the
administrator would have if the administrator
were a trustee of that part of the estate under
the Trustee Act 1958.
123 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 by the administrator under
that 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 proceedings 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 missing person.
(3) VCAT may--
(a) approve or disapprove of any act proposed to
be done by the administrator; and
(b) give such advice as it considers appropriate;
and
(c) make any order it considers necessary.
(4) VCAT, of its own initiative, may direct or give an
advisory opinion to an administrator concerning
any matter.
(5) An action does not lie against an administrator on
account of an act or thing done or omitted by the
administrator under the administration (missing
person) order or on the advice of VCAT made or
given under this section unless, in representing the
facts to VCAT, the administrator has been guilty
of fraud, wilful concealment or misrepresentation.
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124 Administrator may seek advice from professional
adviser
(1) An administrator may seek advice from a
professional adviser on the administration of a
missing person's estate.
(2) An administrator is entitled to be reimbursed from
the estate administered by the administrator for
any costs paid by the administrator in the course
of obtaining advice under subsection (1).
(3) In this section--
professional adviser means a person who
provides professional advice to
administrators in relation to financial matters
and includes a financial adviser, legal
practitioner and accountant.
125 Accounts
(1) VCAT may, at the time that it appoints an
administrator under section 111 or at any later
time, appoint a person to examine or audit the
accounts of the estate of a missing person for a fee
approved by VCAT and paid from that estate.
(2) On, or as soon as practicable after, the anniversary
of the appointment of the administrator in each
year, an administrator must lodge an account of
the administration of the estate of a missing
person with--
(a) the person appointed under subsection (1) to
examine or audit accounts; or
(b) VCAT, if no person is appointed under
subsection (1).
(3) Despite subsection (2), VCAT may require an
administrator to lodge accounts at a time other
than a time specified in that subsection.
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(4) Subject to section 126, an account lodged under
subsection (2) or (3) must--
(a) provide a full and true account of the assets
and liabilities of the estate of the missing
person and all receipts and disbursements in
relation to that estate; and
(b) include details of any gift made by the
administrator of the missing person's
property with a total value of or over the
prescribed amount or, if an amount is not
prescribed, $100 and that is made to--
(i) that administrator; or
(ii) a relative or close friend of the
administrator; or
(iii) an organisation with whom the
administrator has a connection.
(5) A person appointed under subsection (1) to
examine or audit accounts must lodge with VCAT
a report in relation to the accounts examined or
audited and 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 disallows an item referred to in
subsection (5), the administrator is liable for the
amount of the item disallowed.
(8) An administrator must, in relation to each estate
administered by the administrator, pay to a person
appointed under subsection (1) to examine or
audit accounts an amount certified by that person
as being the reasonable cost of examining or
auditing the accounts.
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(9) VCAT may, on an application by the
administrator and with the consent of the person
appointed under subsection (1) to examine or
audit accounts, waive payment of the whole or
part of the amount required to be paid under
subsection (8).
126 Alternative accounting requirements for certain
estates
(1) If VCAT determines that the estate of a missing
person is a small estate and that it is appropriate
(having regard to the nature of the relationship
between the missing person and the administrator)
that section 125(4) not apply, an administrator
must comply with the requirements of this section.
(2) Subject to subsection (1), an account lodged under
section 125(2) or (3) must include the following--
(a) a declaration made by the administrator that
all expenditure in relation to the estate were
solely for the benefit of the missing person;
(b) details of any gift made by the administrator
of the missing person's property with a total
value of or over $100 or the prescribed
amount (whichever is greater) and that is
made to--
(i) that administrator; or
(ii) a relative or close friend of the
administrator; or
(iii) an organisation with whom the
administrator has a connection;
(c) details of any expenditure on a single
occasion that is greater than $1000 or the
prescribed amount (whichever is greater);
(d) details of any major change in the missing
person's income or expenditure;
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(e) details of any major change in the missing
person's assets or liabilities.
(3) In this section--
small estate means an estate of a missing person
that consists of assets with a value of less
than $10 000 or the prescribed amount
(whichever is greater) and an income that is
not more than $25 000 or the prescribed
amount (whichever is greater).
127 Administrator may open will
An administrator may open and read without order
any paper or writing deposited with the
administrator that is purported or alleged to be the
will of the missing person.
Division 4--Powers and duties that may be conferred on
administrators in relation to missing persons
128 Powers and duties in relation to missing persons
(1) Subject to this Act, and in accordance with the
administration (missing person) order appointing
the administrator in relation to a missing person's
estate--
(a) the administrator has the general care and
management of the estate of the missing
person; and
(b) the administrator, in the name and on behalf
of the missing person, may generally do all
acts and exercise all powers with respect to
the estate as effectually and in the same
manner as the missing person could have
done if the missing person were not a
missing person.
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(2) Without limiting subsection (1), an administrator
may, in the name and on behalf of a missing
person--
(a) 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; and
(b) invest any money in any security in which
trustees may by law invest; and
(c) 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; and
(d) exercise to the extent and in the manner the
administrator thinks proper any power of
leasing vested in the missing person; and
(e) surrender any lease, accept any lease, accept
the surrender of any lease or renew any
lease; and
(f) bring land under the Transfer of Land Act
1958; and
(g) with the approval of VCAT, sell, exchange,
partition or convert into money any property;
and
(h) mortgage or charge any property; and
(i) pay any debts and settle, adjust or
compromise any demand made by or against
the estate and discharge any encumbrance on
the estate; and
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(j) carry on so far as appears desirable any
trade, profession or business which the
missing person carried on; and
(k) agree to any alteration of the conditions of
any partnership into which any missing
person has entered or to a dissolution and
distribution of the assets of the partnership;
and
(l) bring and defend actions and other legal
proceedings in the name of the missing
person; and
(m) execute and sign deeds, instruments and
other documents; and
(n) complete any contract for the performance of
which the missing person was liable, or enter
into any agreement terminating liability; and
(o) pay any sum that appears to the administrator
to be expedient and reasonable 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; or
(ii) the maintenance and education of the
missing person's children; and
(p) do all matters necessary or incidental to the
performance of any of the above-mentioned
matters and apply any money from the estate
which it is necessary to apply for the
purposes of this Act.
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Division 5--General
129 Interest of missing person in property not to be
altered by sale or other disposition of property
(1) A missing person and the missing person's heirs,
executors, administrators, next of kin, devisees,
legatees and assigns 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
given to an administrator by an order of VCAT
which have not been applied under those powers
as the missing person or those other persons
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 given to an
administrator by an order of VCAT.
(3) An administrator who receives money or other
property under this section must keep a separate
account and record of the money or other
property.
(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--
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
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distribution of the property of intestates if the
missing person had died intestate.
130 VCAT may open will
VCAT may open and read any paper or writing
which is purported or alleged to be the will of the
missing person.
131 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 any estate
administered by an administrator under an
administration (missing person) order may apply
to VCAT on any matter arising out of the
administration of the estate by the administrator.
(2) VCAT may make such order in relation to the
application as the circumstances of the case may
require.
(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.
132 Power of administrator to act until notice of
discharge etc. received
(1) If VCAT knows that a person has ceased to be a
missing person, VCAT must without delay give
notice of that fact to the administrator.
(2) Until the administrator learns that a person has
ceased to be a missing person, an administrator
may exercise all or any of the powers given to the
administrator by order of VCAT with respect to
the estate of that person.
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(3) On notice being given under subsection (1), the
person who was a missing person or that person's
legal personal representative (as the case may be)
is bound by, and may take advantage of, any act
done on behalf of the person by the administrator
within the powers conferred on the administrator
by VCAT as if it had been done by the person and
the person had decision making capacity to do so
for the matters in relation to which the
administration (missing person) order was made.
133 Action upon a person ceasing to be a missing person
(1) If an administrator receives notice from any
person or from VCAT that a missing person has
ceased to be a missing person, the administrator
must--
(a) pay or cause to be paid to that person or to
that person's personal representative (as the
case requires) all money standing to the
person's credit with the administrator; and
(b) deliver to that person or to that person's
personal representative (as the case requires)
all property forming part of the person's
estate that is in the custody of the
administrator and any documents relating to
that property.
(2) Any payment made under subsection (1) 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
administration of that person's estate.
(3) The receipt by a person who has ceased to be a
missing person or of that person's personal
representative is an absolute discharge to an
administrator despite any informality in the
discharge or certification.
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134 Former missing person entitled to inspection of
accounts
A person who has ceased to be a missing person
(or the personal representative of such a person) is
entitled, before or after obtaining the restoration
of all or any part of the estate from an
administrator--
(a) to examine and inspect or cause to be
examined and inspected by a legal
practitioner or other authorised agent all
books, accounts, notices and other
documents in the custody of the
administrator relating to the estate and to
make or cause to be made copies or extracts;
and
(b) to be provided with--
(i) copies of or extracts from any book,
account, notice or document in relation
to the administration of the estate by
the administrator; and
(ii) information in relation to the
administration of the estate by the
administrator that is reasonable to
request and can be given by the
administrator.
135 Sale of personal effects if unclaimed within 2 years
from date of discharge
(1) All personal effects of a person who was a
missing person that are in the possession of an
administrator and are not claimed within 2 years
after the date on which the person ceased to be a
missing person, may, after public notice, be sold
by order of the administrator.
(2) The proceeds are to be paid into the Consolidated
Fund.
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136 Administrator to notify VCAT
An administrator must notify VCAT in writing
without delay when the administrator becomes
aware that--
(a) the missing person is alive (either in Victoria
or elsewhere); or
(b) the missing person has died.
137 Order to remove an administrator
(1) VCAT may, by order, remove an administrator--
(a) on application by the person who was the
missing person; or
(b) if satisfied, on application by the
administrator or any other person, 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.
(2) VCAT must, by order, remove an administrator--
(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
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(c) if the presumption of death has been
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 part of the estate of the missing person
becomes subject to an order under
section 24A of the Administration and
Probate Act 1958.
138 Duration of order
(1) Subject to section 137, an administration (missing
person) order under section 111 continues in
effect for the period not exceeding 2 years as is
specified in the order.
(2) An administration (missing person) order under
section 111 may on the application of the
administrator be renewed once for a further period
not exceeding 2 years as is specified in the order if
VCAT is satisfied that the matters specified in
section 111 continue to apply.
(3) Nothing in this section prevents a person applying
for a new administration (missing person) order in
accordance with section 107 if the previous order
has expired.
Note
A person may apply at any time for a reassessment of an
order under Part 10.
139 Application for temporary order
(1) Any person may apply to VCAT for a temporary
order appointing an administrator in relation to the
estate of a missing person.
(2) An application may be made under subsection (1)
whether or not an application has been made to
VCAT under section 107.
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(3) Each person who would be entitled to notice
under section 108 of an application under
section 107 is entitled to--
(a) notice of the making of an application under
this section; and
(b) notice of the hearing of the application; and
(c) notice of any order made by VCAT in
relation to the application.
140 Temporary order
(1) VCAT may make a temporary administration
(missing person) order in relation to the estate of a
missing person if VCAT is satisfied that--
(a) the person is a missing person who usually
resides in Victoria; and
(b) while the person is missing there is, or is
likely to be, a need for a decision in relation
to the person's financial matters; and
(c) the order would promote the missing
person's personal and social wellbeing while
the person is missing.
(2) Subject to subsection (4), an administrator may be
appointed under subsection (1) to administer all or
a specified part of the estate of the missing person.
(3) VCAT cannot make a temporary order under
subsection (1) in relation to the estate of a missing
person if the estate or any part of the estate of the
missing person is subject to--
(a) an order under section 24A of the
Administration and Probate Act 1958; or
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(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 of
Victoria 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.
(4) A temporary order--
(a) remains in effect for such period not
exceeding 21 days as is specified in the
order; and
(b) may be renewed once for a further period not
exceeding 21 days.
(5) VCAT must hold a hearing to determine whether
an administrator should be appointed under
section 111 as soon as practicable after the
making of a temporary order but within 42 days of
making that order.
141 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 9--MEDICAL AND OTHER TREATMENT
Division 1--Preliminary
142 Definition of patient
(1) In this Part--
patient means a person (other than a person who
is a patient within the meaning of the
Mental Health Act 2014) with a disability
who is--
(a) of or over the age of 18 years; and
(b) incapable of giving consent, within the
meaning of subsection (2), to the
carrying out of a special procedure, a
medical research procedure or medical
or dental treatment, whether or not the
person is a represented person.
(2) For the purposes of paragraph (b) of the definition
of patient in subsection (1), a person is incapable
of giving consent to the carrying out of a special
procedure, a medical research procedure or
medical or dental treatment if the person is
incapable of--
(a) understanding the general nature and effect
of the proposed procedure or treatment; or
(b) indicating whether or not the person consents
or does not consent to the carrying out of the
proposed procedure or treatment.
143 Health decision maker
(1) In this Part--
health decision maker, in relation to a patient and
in relation to a proposed medical research
procedure or proposed medical or dental
treatment or a special procedure, means the
first person listed below who is responsible
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for the patient and who, in the circumstances,
is reasonably available and willing and able
to make a decision under this Part--
(a) a person appointed by the patient under
section 5A of the Medical Treatment
Act 1988;
(b) a person appointed by VCAT to make
decisions in relation to the proposed
procedure or treatment;
(c) a person appointed under a
guardianship order with power to make
decisions in relation to the proposed
procedure or treatment;
(d) a person appointed in writing by the
patient under an enduring power of
attorney under the Powers of Attorney
Act 2014 with power to make decisions
in relation to the proposed procedure or
treatment;
(e) a person appointed in writing by the
patient (being the person appointed last
in time before the patient became
incapable of giving consent) to make
decisions in relation to medical
research procedures that include the
proposed procedure or medical or
dental treatment which includes the
proposed treatment;
(f) the patient's spouse or domestic partner;
(g) the patient's primary carer;
(h) the patient's nearest relative.
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(2) The circumstances in which a person is to be
regarded as having the care of a patient include,
but are not limited to, the case where the person,
other than wholly or substantially on a
commercial basis, regularly--
(a) provides domestic services and support to
the patient; or
(b) arranges for the patient to be provided with
domestic services and support.
(3) A patient who is cared for in an institution at
which the patient is cared for by some other
person is not, by reason only of that fact, to be
regarded as being in the care of that other person
and remains in the care of the person in whose
care the patient was immediately before being
cared for in that institution.
(4) For the purposes of this section, a reference to the
spouse or domestic partner of a patient, is a
reference to a spouse or domestic partner who is
not under guardianship and with whom the patient
has a close and continuing relationship.
(5) If the health decision maker for a patient is an
agent appointed under section 5A of the Medical
Treatment Act 1988, the powers that the person
may exercise as an agent under that Act are in
addition to the powers that the person may
exercise under this Act.
(6) For the purposes of subsection (1)(h), a person
who is the patient's nearest relative is taken not to
be the patient's nearest relative if the patient--
(a) is likely to be capable, within a reasonable
time, of giving consent to the carrying out of
a special procedure or medical or dental
treatment; and
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(b) objects to that person being involved in
decisions concerning a special procedure to
be carried out on the patient or the patient's
medical or dental treatment.
(7) For the purposes of subsection (1)(h), a person
who is the patient's nearest relative is taken not to
be the patient's nearest relative if the patient--
(a) is likely to be capable of giving consent to
the carrying out of a medical research
procedure, but not within a reasonable time
as determined in accordance with
section 167(2); and
(b) objects to that person being involved in
decisions concerning the patient that would
include a medical research procedure being
carried out on the patient.
(8) In this section--
institution means any of the following--
(a) a disability service provider within the
meaning of section 3(1) of the
Disability Act 2006;
(b) a designated public hospital within the
meaning of the Health Services Act
1988;
(c) a residential service, residential
institution or residential treatment
facility within the meaning of
section 3(1) of the Disability Act 2006;
(d) a mental health service provider within
the meaning of section 3(1) of the
Mental Health Act 2014;
(e) a supported residential service within
the meaning of the Supported
Residential Services (Private
Proprietors) Act 2010.
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144 Best interests
(1) In this Part, for the purposes of determining
whether any special procedure or any medical or
dental treatment would be in the best interests of
the patient, the following matters must be taken
into account--
(a) the wishes of the patient, so far as they can
be ascertained;
(b) the wishes of the nearest relative of the
patient or, if that is not possible, the wishes
of any other family members of the patient;
(c) the consequences for the patient if the
treatment is not carried out;
(d) any alternative treatment available;
(e) the nature and degree of any significant risks
associated with the treatment or any
alternative treatment;
(f) whether the treatment to be carried out is
only to promote and maintain the health and
well-being of the patient;
(g) any other matters prescribed by the
regulations.
(2) For the purposes of subsection (1)(b), a person
who is the patient's nearest relative or a family
member (other than the patient's spouse or
domestic partner) is taken not to be the patient's
nearest relative or a family member if the
patient--
(a) is likely to be capable, within a reasonable
time, of giving consent to the carrying out of
a special procedure or medical or dental
treatment; and
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(b) objects to that relative or family member
being involved in decisions concerning a
special procedure to be carried out on the
patient or the patient's medical or dental
treatment.
Division 2--Consent
145 Persons who may consent to medical or other
treatment
Subject to Divisions 4 and 5, consent to the
carrying out of a special procedure or medical or
dental treatment on a patient may be given--
(a) in the case of a special procedure or any
medical or dental treatment, by VCAT; or
(b) in the case of any medical or dental
treatment, by the health decision maker for
the patient.
Note
Division 6 contains provisions for the giving of consent in relation
to the carrying out of a medical research procedure on a patient.
146 Effect of consent
A consent given in accordance with this Part in
relation to the carrying out of a special procedure,
a medical research procedure or any medical or
dental treatment on a patient has effect as if--
(a) the patient was capable of giving consent to
the carrying out of the procedure or
treatment; and
(b) the procedure or treatment had been carried
out with the consent of the patient.
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147 Refusal of medical treatment under the Medical
Treatment Act 1988
A registered practitioner must not carry out any
medical or dental treatment, medical research
procedure or special procedure (including any
emergency treatment) under this Part that is
medical treatment within the meaning of the
Medical Treatment Act 1988 if a refusal of that
treatment is in force in accordance with that Act.
148 Unlawful consent to medical or other treatment an
offence
(1) A person must not purport to give consent to the
continuation of a special procedure or a further
special procedure under section 154 unless the
person believes on reasonable grounds that the
person is authorised to give such consent.
Penalty: 20 penalty units.
(2) A person must not purport to give consent to a
medical research procedure or to any medical or
dental treatment on behalf of a patient unless the
person believes on reasonable grounds that the
person is authorised to give such consent.
Penalty: 20 penalty units.
(3) A person must not represent to a registered
practitioner that the person is authorised to give
consent referred to in subsection (1) or (2) unless
the person believes on reasonable grounds that the
person is authorised to give such consent.
Penalty: 20 penalty units.
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Division 3--Emergency treatment
149 Emergency medical or dental treatment
(1) A registered practitioner may carry out, or
supervise the carrying out of, a special procedure,
a medical research procedure or medical or dental
treatment on a patient without consent under this
Part or an authorisation under section 169 if the
practitioner believes on reasonable grounds that
the procedure or treatment is necessary, as a
matter of urgency--
(a) to save the patient's life; or
(b) to prevent serious damage to the patient's
health; or
(c) in the case of a medical research procedure
or medical or dental treatment, to prevent the
patient from suffering or continuing to suffer
significant pain or distress.
(2) A registered practitioner who, in good faith,
carries out, or supervises the carrying out, of a
special procedure, a medical research procedure or
medical or dental treatment in the belief on
reasonable grounds that the requirements of this
section and, in the case of a medical research
procedure, section 166 have been complied with is
not--
(a) guilty of assault or battery; or
(b) guilty of professional misconduct; or
(c) liable in any civil proceedings for assault or
battery; or
(d) guilty of an offence against section 155(1)
or 174(1).
(3) Nothing in this section affects any duty of care
owed by a registered practitioner to a patient.
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Division 4--Special procedures
150 Application for consent of VCAT to special
procedure
(1) An application for the consent of VCAT to the
carrying out of any special procedure on a patient
may be made by--
(a) the health decision maker for the patient; or
(b) any person whom VCAT determines to have
a special interest in the affairs of the patient.
(2) A patient in relation to whom an application for
consent is made under this Division is a party to
the proceedings.
(3) VCAT must give the Public Advocate and any
other person whom VCAT considers to have a
special interest in the affairs of the patient--
(a) notice of an application for the consent of
VCAT to the carrying out of the special
procedure on a patient; and
(b) notice of the hearing of the application and
of any order; and
(c) directions or an advisory opinion of VCAT
in relation to the application.
151 Guidelines for special procedures
In consultation with the Public Advocate and the
Secretary to the Department of Justice and with
the approval of the Governor in Council, VCAT
may issue, and make available to members of the
public, guidelines specifying situations in which
applications may be made to VCAT under this
Division.
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152 Date for hearing
VCAT must commence to hear an application
under this Division within 30 days after the day on
which the application is received by VCAT.
153 Consent of VCAT to special procedure
On hearing an application under this Division,
VCAT may consent to the carrying out of a
special procedure if it is satisfied that--
(a) the patient is incapable of giving consent;
and
(b) the patient is not likely to be capable, within
a reasonable time, of giving consent; and
(c) the special procedure would be in the
patient's best interests.
154 VCAT may confer authority to consent to
continuing or further special procedure
(1) If VCAT consents to the carrying out of a special
procedure on a patient, VCAT may confer on the
health decision maker for the patient authority to
consent to--
(a) the continuation of the special procedure; or
(b) the carrying out of any further special
procedure of a similar nature.
(2) VCAT may confer an authority under this section
only at the request, or with the consent, of the
health decision maker.
(3) If a person on whom VCAT has conferred
authority under this section ceases to be the health
decision maker, VCAT, on the application of the
new health decision maker, may confer authority
under this section on that person.
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(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.
(5) If VCAT confers an authority under this section, a
person may request the consent of the health
decision maker to the carrying out of the special
procedure.
155 Special procedure without consent of VCAT an
offence
(1) Subject to section 148, a registered practitioner
must not carry out, or supervise the carrying out
of, any special procedure on a patient unless--
(a) VCAT has consented to the carrying out of
that procedure; or
(b) the health decision maker with authority to
consent to the continuation of the procedure
or a further special procedure under
section 154 has consented to the carrying out
of that procedure.
Penalty: Imprisonment for 2 years or
240 penalty units or both.
(2) A registered practitioner who, in good faith,
carries out, or supervises the carrying out of, a
special procedure on a patient in the belief on
reasonable grounds that the requirements of this
Division have been complied with and in reliance
on--
(a) a consent given by another person who was
believed on reasonable grounds by the
registered practitioner to be authorised to
give such consent; or
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(b) a purported consent given by another person
who was believed by the registered
practitioner on reasonable grounds to be
authorised to give such consent but was not
so authorised--
is not--
(c) guilty of assault or battery; or
(d) guilty of professional misconduct; or
(e) liable in any civil proceedings for assault or
battery; or
(f) guilty of an offence against subsection (1).
(3) Nothing in this Division affects any duty of care
owed by a registered practitioner to a patient.
Division 5--Other medical or dental treatment
156 Consent of health decision maker
(1) The health decision maker for a patient may
consent to the carrying out of any medical or
dental treatment.
Note
However, section 157 affects whether the health decision
maker may consent to the carrying out of medical or dental
treatment in certain circumstances.
(2) In determining whether or not to consent to
medical or dental treatment, the health decision
maker must act in the best interests of the patient.
157 Consent if patient is likely to recover within a
reasonable time
(1) This section applies despite anything else in this
Part but does not apply to emergency treatment
under section 149.
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(2) If a patient is likely to be capable, within a
reasonable time, of giving consent to the carrying
out of medical or dental treatment, the health
decision maker for the patient can only consent to
the carrying out of the treatment, and a registered
practitioner can only carry out that treatment, if--
(a) the registered practitioner reasonably
believes, and states in writing in the patient's
clinical records, that a further delay in
carrying out the treatment would result in a
significant deterioration of the patient's
condition; and
(b) neither the registered practitioner nor the
health decision maker has any reason to
believe that the carrying out of the treatment
would be against the patient's wishes.
(3) If the registered practitioner or health decision
maker has reason to believe that the carrying out
of the treatment would be against the patient's
wishes, the practitioner or health decision maker
may apply to VCAT for its consent to the carrying
out of the treatment.
(4) VCAT must--
(a) give notice of the application and of any
order, directions or advisory opinion made or
given concerning the application to--
(i) the Public Advocate; and
(ii) any other person whom VCAT
determines to have a special interest in
the patient's affairs, including the
registered practitioner and health
decision maker for the patient; and
(b) start hearing the application within 14 days
after the day on which VCAT received it.
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(5) The patient is a party to the proceeding on the
application.
(6) On hearing the application, VCAT may consent to
the carrying out of the medical or dental
treatment, and a registered practitioner may carry
out that treatment, if VCAT is satisfied that--
(a) the patient is incapable of giving consent;
and
(b) a further delay in carrying out the treatment
would result in a significant deterioration of
the patient's condition; and
(c) the treatment would be in the patient's best
interests, having regard to the evidence (if
any) of the patient's views about such
treatment.
158 Health decision maker may seek advice
(1) The health decision maker for a patient may apply
to VCAT for directions or an advisory opinion on
any matter or question relating to the scope or
exercise of the health decision maker's authority to
consent to medical or dental treatment on behalf
of the patient.
(2) VCAT must give notice to any person whom
VCAT determines to have a special interest in the
affairs of the patient of the application, of the
hearing of the application and of any order,
directions or advisory opinion of VCAT in
relation to the application.
(3) VCAT may--
(a) give any directions or advisory opinion it
considers necessary; and
(b) make any order it considers necessary.
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(4) VCAT of its own initiative may direct, or give an
advisory opinion to, the health decision maker for
a patient in relation to any matter.
(5) An action does not lie against the health decision
maker for a patient on account of an act or thing
done or omitted to be done by the health decision
maker in accordance with any order, directions or
advisory opinion of VCAT made or given under
this section unless in representing the facts to
VCAT the health decision maker has been guilty
of fraud, wilful concealment or misrepresentation.
159 Guidelines for medical or dental treatment
VCAT may, in consultation with the Public
Advocate and the Secretary to the Department of
Justice and with the approval of the Governor in
Council, issue and make available to members of
the public, guidelines specifying situations in
which the health decision maker for a patient may
consent to medical or dental treatment in relation
to the patient.
160 Medical or dental treatment without consent of
health decision maker
(1) Subject to section 147, a registered practitioner
may carry out, or supervise the carrying out of,
medical or dental treatment under this section
without the consent of the health decision maker if
the practitioner--
(a) has been unable to ascertain whether there is
a health decision maker or who that person is
or to contact that person despite the
practitioner's reasonable efforts to do so; and
(b) believes on reasonable grounds that the
proposed treatment is in the best interests of
the patient; and
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(c) before carrying out, or supervising the
carrying out of, the medical or dental
treatment, gives notice to the Public
Advocate in accordance with subsection (2).
(2) A notice referred to in subsection (1)(c) must state
the following--
(a) the nature of the patient's condition;
(b) the medical or dental treatment that the
registered practitioner proposes carrying out
on the patient;
(c) that the practitioner believes on reasonable
grounds that the proposed treatment is in the
best interests of the patient;
(d) that despite reasonable efforts by the
practitioner, the practitioner has been
unable--
(i) to ascertain whether there is a health
decision maker for the patient; or
(ii) if there is a health decision maker, to
ascertain who that person is or to
contact that person.
(3) A registered practitioner who carries out, or
supervises the carrying out of, medical or dental
treatment on a patient under this section must state
in writing in the clinical records relating to that
patient--
(a) why the treatment is considered to be in the
best interests of the patient; and
(b) how the treatment is considered to promote
or maintain the health and wellbeing of the
patient.
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161 Medical or dental treatment if health decision
maker does not consent
(1) Subject to section 147, a registered practitioner
may carry out, or supervise the carrying out of,
medical or dental treatment under this section if--
(a) the registered practitioner has consulted the
health decision maker for a patient; and
(b) the health decision maker does not consent to
the proposed medical or dental treatment;
and
(c) the practitioner nevertheless believes on
reasonable grounds that the proposed
treatment is in the best interests of the
patient; and
(d) the practitioner, within 3 days after the
health decision maker has communicated to
the practitioner that the health decision
maker does not consent, gives to the health
decision maker and the Public Advocate a
statement in accordance with section 162.
(2) A registered practitioner must not carry out, or
supervise the carrying out of, any medical or
dental treatment under this section (other than
emergency treatment)--
(a) earlier than 7 days after giving the health
decision maker a statement in accordance
with section 162, if the health decision
maker does not apply to VCAT under section
163 within 7 days after receiving that
statement; or
(b) earlier than 14 days after giving the health
decision maker a statement in accordance
with section 162, if the health decision
maker applies to VCAT under section 163
within 7 days after receiving the statement;
or
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(c) if VCAT makes an order under section 163
that the treatment is not in the best interests
of the patient; or
(d) if the health decision maker appeals from an
order of VCAT made under section 163,
before the determination of the appeal.
(3) If the health decision maker does not apply to
VCAT under section 163 within 7 days after
receiving a statement in accordance with
section 162 and a registered practitioner carries
out, or supervises the carrying out of, medical or
dental treatment on a patient under this section,
the practitioner must state in writing in the clinical
records relating to that patient--
(a) why the treatment is considered to be in the
best interests of the patient; and
(b) how the treatment is considered to promote
or maintain the health and well-being of the
patient.
162 Statement by registered practitioner
A statement referred to in section 161 must--
(a) be in writing and be dated and signed by the
registered practitioner; and
(b) state that--
(i) the health decision maker for the
patient has been informed about the
nature of the patient's condition to an
extent that would be sufficient to enable
the patient, if the patient were able to
consent, to decide whether or not to
consent to the proposed treatment
generally or to treatment of a particular
kind for that condition; and
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(ii) the health decision maker has not
consented to the proposed treatment;
and
(iii) the registered practitioner believes on
reasonable grounds that the proposed
treatment is in the best interests of the
patient; and
(iv) unless the health decision maker
applies to VCAT and VCAT otherwise
orders, the practitioner will, not earlier
than 7 days after giving the statement to
the health decision maker, carry out the
proposed treatment; and
(c) set out the procedures under the VCAT Act
for making an application to VCAT.
163 Application to VCAT relating to medical or dental
treatment
(1) An application may be made to VCAT in relation
to any matter, question or dispute under this Part
relating to medical or dental treatment or relating
to the best interests of a patient.
(2) An application may be made by--
(a) the patient's health decision maker; or
(b) a person whom VCAT determines to have a
special interest in the affairs of the patient,
including a registered practitioner (if any).
(3) A health decision maker who receives a statement
in accordance with section 162 and consequently
wishes to make an application under this section,
must do so within 7 days after receiving the
statement.
(4) A patient in relation to whom an application is
made under this section is a party to the
proceeding.
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(5) VCAT must give notice of an application under
this section, of the hearing of the application and
of any order of VCAT in relation to the
application to--
(a) the Public Advocate; and
(b) if the application is made after a statement
has been given in accordance with
section 162, the registered practitioner who
gave the statement; and
(c) any other person whom VCAT determines to
have a special interest in the affairs of the
patient.
(6) VCAT must hear and determine the application
referred to in subsection (3) within 7 days after
receiving it.
(7) On an application under this section, VCAT may
do one or more of the following--
(a) make an order that for matters relating to
medical or dental treatment, either generally
or of a particular kind, a person specified in
the order is to be the health decision maker;
(b) subject to Part 4, appoint a person as
guardian of the patient generally or for
matters relating to the medical or dental
treatment of a patient;
(c) vary a guardianship order to make provision
for matters relating to the medical or dental
treatment of a patient;
(d) revoke, suspend or vary an instrument
appointing a person as the attorney under the
enduring power of attorney under the
Powers of Attorney Act 2014 to the extent
that the instrument relates to medical or
dental treatment of a patient;
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(e) make an order that any proposed medical or
dental treatment is or is not in the best
interests of the patient;
(f) make any orders or give any directions it
considers necessary to resolve any conflict
between persons relating to the best interests
of a patient;
(g) make a declaration as to the validity or effect
of any decision relating to medical or dental
treatment;
(h) give an advisory opinion in relation to the
best interests of a patient;
(i) make any other orders it considers to be in
the best interests of a patient.
Note
Sections 171, 172 and 173 provide for VCAT's jurisdiction
in relation to medical research procedures.
164 Protection of registered practitioner
(1) A registered practitioner who, in good faith,
carries out, or supervises the carrying out of,
medical or dental treatment on a patient in
accordance with this Division in reliance on--
(a) a consent given by another person who was
believed on reasonable grounds by the
registered practitioner to be authorised to
give such consent; or
(b) a purported consent given by another person
who was believed on reasonable grounds by
the registered practitioner to be authorised to
give such consent but was not so
authorised--
is not--
(c) guilty of assault or battery; or
(d) guilty of professional misconduct; or
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(e) liable in any civil proceedings for assault or
battery.
(2) A registered practitioner who, in good faith,
carries out, or supervises the carrying out of,
medical or dental treatment on a patient in
accordance with this Division without the consent
of another person and in the belief on reasonable
grounds that the requirements of this Division
have been complied with is not--
(a) guilty of assault or battery; or
(b) guilty of professional misconduct; or
(c) liable in any civil proceedings for assault or
battery.
(3) Nothing in this section affects any duty of care
owed by a registered practitioner to a patient.
Division 6--Medical research procedures
165 Introduction and outline of Division
(1) This Division contains provisions for the carrying
out of a medical research procedure on a patient.
Note
See section 142 for the definition of patient.
(2) In essence, this Division provides a 4 step process
for authorising the carrying out of a medical
research procedure on a patient as follows--
(a) step 1 is to determine whether the relevant
research project is approved by the relevant
human research ethics committee--see
section 166;
(b) step 2 is to determine whether the patient is
likely to recover the capacity to consent to
the procedure within a reasonable time--see
section 167;
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(c) step 3 is to seek the consent of the health
decision maker for the patient, which only
applies if allowed by section 167--see
section 168;
(d) step 4 is procedural authorisation which only
applies if allowed by section 167 and the
health decision maker cannot be ascertained
or contacted--see section 169.
(3) Steps 2, 3 and 4 referred to in subsection (2) do
not apply to the carrying out of a medical research
procedure under section 148.
Note
Section 149 provides for the carrying out of a medical
research procedure without consent in emergency situations.
(4) This Division also provides that--
(a) VCAT has jurisdiction in various
circumstances--see sections 171, 172
and 173;
(b) offences may be committed by registered
practitioners who fail to comply with the
Division--see section 174;
(c) registered practitioners who comply with the
Division are protected from civil and
criminal liability--see section 175.
(5) This Division is subject to section 147 which
prohibits the carrying out of medical treatment if a
refusal of that treatment is in force under the
Medical Treatment Act 1988.
166 Step 1--Approval of relevant research project
(1) Step 1 is to determine whether the relevant
research project has been approved by the relevant
human research ethics committee.
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(2) A medical research procedure must not be carried
out on a patient if the relevant research project has
not been approved by the relevant human research
ethics committee.
(3) A medical research procedure must be carried out
in accordance with the relevant human research
ethics committee approval, including any
conditions of that approval.
167 Step 2--Is patient likely to recover within a
reasonable time?
(1) Step 2 is to determine whether the patient is likely
to be capable, within a reasonable time, of giving
consent to the carrying out of a medical research
procedure.
(2) The reasonable time is the time by which (given
the nature of the relevant research project) the
procedure would need to be performed on the
patient, having regard to--
(a) the medical or physical condition of the
patient; and
(b) the stage of treatment or care; and
(c) other circumstances specific to the patient.
(3) If a patient is likely to be capable, within a
reasonable time as determined in accordance with
subsection (2), of giving consent to the carrying
out of a medical research procedure, a registered
practitioner must not carry out, or supervise the
carrying out of, the procedure under the authority
of a consent under section 168 or procedural
authorisation under section 169.
(4) If a patient is not likely to be capable, within a
reasonable time as determined in accordance with
subsection (2), of giving consent to the carrying
out of a medical research procedure, a registered
practitioner may carry out, or supervise the
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carrying out of, the procedure under the authority
of a consent under section 168 or procedural
authorisation under section 169.
(5) Before, or as soon as practicable after, carrying
out, or supervising the carrying out of, the medical
research procedure, the registered practitioner
must state the registered practitioner's belief that,
at the time of the procedure, the patient is or was
not likely to be capable of giving consent within a
reasonable time and the reason for that belief in
writing in the patient's clinical records.
Note
This section does not apply to a medical research procedure
under section 148--see section 165(3).
168 Step 3--Consent of health decision maker
(1) Step 3 is to seek the consent of the health decision
maker for the patient to the carrying out of the
medical research procedure on the patient.
Note
This section does not apply to a medical research procedure
under section 148--see section 165(3).
(2) The health decision maker may consent to the
carrying out of a medical research procedure on
the patient.
(3) The health decision maker may only consent to
the carrying out of the procedure if the health
decision maker believes that the carrying out of
the procedure would not be contrary to the best
interests of the patient.
(4) The consent must be consistent with the
requirements for consent, if any, specified in the
relevant human research ethics committee
approval for the relevant research project or the
conditions of that approval.
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169 Step 4--Procedural authorisation
(1) Step 4 is procedural authorisation for the carrying
out of the medical research procedure on the
patient which applies only if the health decision
maker for the patient cannot be ascertained or
contacted.
Note
This section does not apply to a medical research procedure
under section 148--see section 165(3).
(2) A registered practitioner may carry out, or
supervise the carrying out of, a medical research
procedure on a patient without the consent under
section 168 of the health decision maker for the
patient if--
(a) the patient is not likely to be capable, within
a reasonable time as determined in
accordance with section 167(2), of giving
consent to the carrying out of the procedure;
and
(b) the practitioner has been unable to ascertain
whether there is a health decision maker or
who that person is or to contact that person
despite the practitioner's reasonable efforts to
do so; and
(c) the practitioner believes on reasonable
grounds that inclusion of the patient in the
relevant research project, and being the
subject of the proposed procedure, would not
be contrary to the best interests of the
patient; and
(d) the practitioner does not have any reason to
believe that the carrying out of the procedure
would be against the patient's wishes; and
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(e) the practitioner believes on reasonable
grounds that the relevant human research
ethics committee has approved the relevant
research project in the knowledge that a
patient may participate in the project without
the prior consent of the patient or the health
decision maker; and
(f) the practitioner believes on reasonable
grounds that--
(i) one of the purposes of the relevant
research project is to assess the
effectiveness of the therapy being
researched; and
(ii) the medical research procedure poses
no more of a risk to the patient than the
risk that is inherent in the patient's
condition and alternative treatment; and
(g) the practitioner believes on reasonable
grounds that the relevant research project is
based on valid scientific hypotheses that
support a reasonable possibility of benefit for
the patient as compared with standard
treatment.
(3) Before, or as soon as practicable after, the medical
research procedure is carried out, the registered
practitioner supervising the carrying out of the
procedure (or, if there is no such person, the
practitioner carrying out the procedure) must sign
a certificate--
(a) certifying as to each of the matters set out in
subsection (2); and
(b) stating that the health decision maker (if any)
or the patient (if the patient gains or regains
capacity) will be informed as required by
subsection (4).
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(4) A registered practitioner involved in the relevant
research project must inform the health decision
maker (if any) or the patient (if the patient gains
or regains capacity) as soon as reasonably
practicable of--
(a) the patient's inclusion in the relevant
research project; and
(b) the option to refuse consent for the procedure
to be continued and withdraw the patient
from future participation in the project
without compromising the patient's ability to
receive any available alternative treatment or
care.
(5) The registered practitioner supervising the
carrying out of the procedure (or, if there is no
such person, the registered practitioner carrying
out the procedure) must--
(a) forward a copy of the certificate referred to
in subsection (3) to the Public Advocate and
the relevant human research ethics
committee as soon as practicable (and in any
event within 2 working days) after
supervising the carrying out of, or carrying
out, the procedure; and
(b) ensure that the certificate is kept in the
patient's clinical records.
(6) The practitioner must, at intervals of not more
than one month while the medical research
procedure continues, sign a certificate, and
forward a copy to the Public Advocate and the
relevant human research ethics committee,
certifying that each of the matters set out in
subsection (2) continue to apply if--
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(a) the medical research procedure is a
procedure extending over a period exceeding
one month after a copy of the certificate is
forwarded to the Public Advocate and the
relevant human research ethics committee
under subsection (5); and
(b) the registered practitioner supervising the
carrying out of the procedure (or, if there is
no such person, the registered practitioner
carrying out the procedure) believes on
reasonable grounds that--
(i) the requirements of subsections (2)(b)
and (8) (if applicable) have been met
but the health decision maker has not
been able to be ascertained or
contacted; and
(ii) the patient has not gained or regained
the capacity to consent.
(7) The registered practitioner supervising the
carrying out of the procedure (or, if there is no
such person, the registered practitioner carrying
out the procedure) must ensure that each
certificate referred to in subsection (6) is kept in
the patient's clinical records.
(8) If a medical research procedure is being carried
out on a patient under the authority of this section,
steps that are reasonable in the circumstances
must continue to be taken (as the case requires)--
(a) to ascertain whether there is a health decision
maker and, if so, who that person is; and
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(b) if the health decision maker is ascertained, to
contact that person to seek the health
decision maker's consent to the proposed
procedure.
Note
If the health decision maker is contacted and is willing and
able to make a decision (see section 143), section 168
applies. If the patient gains or regains capacity to consent,
the patient's consent must be sought, as the patient will no
longer be a person to which this Division applies.
170 Best interests
(1) In this Division, for the purposes of determining
whether a medical research procedure would or
would not be contrary to the best interests of a
patient, the following matters must be taken into
account--
(a) the wishes of the patient, so far as they can
be ascertained;
(b) the wishes of the nearest relative or any other
family members of the patient;
(c) the nature and degree of any benefits,
discomforts and risks for the patient in
having or not having the procedure;
(d) any other consequences for the patient if the
procedure is or is not carried out;
(e) any other prescribed matters.
(2) For the purposes of subsection (1)(b), a family
member or the patient's nearest relative is taken
not to be a family member or the nearest relative
if the patient--
(a) is likely to be capable of giving consent to
the carrying out of a medical research
procedure, but not within a reasonable
time as determined in accordance with
section 167(2); and
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(b) objects to the nearest relative or another
family member (other than the patient's
spouse or domestic partner) being involved
in decisions concerning the patient that
would include a medical research procedure
being carried out on the patient.
171 Applications to VCAT
(1) An application may be made to VCAT in relation
to any matter, question or dispute under this
Division relating to the best interests of a patient.
(2) An application may be made by--
(a) a health decision maker; or
(b) a person who, in the opinion of VCAT, has a
special interest in the affairs of the patient,
including a registered practitioner.
(3) Despite subsection (2)(b), a registered practitioner
who is involved in the relevant research project
cannot apply to VCAT in relation to a refusal of
the health decision maker for a patient to consent
under section 169 to the carrying out of a medical
research procedure on the patient.
(4) If an application is made under this section, the
patient is a party to the proceeding.
(5) VCAT must give notice of an application under
this section, of the hearing of the application and
of any order of VCAT in relation to the
application to--
(a) the Public Advocate; and
(b) any other person whom VCAT determines to
have a special interest in the affairs of the
patient.
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(6) On an application under this section, VCAT may
do any of the following--
(a) make an order that for matters relating to
medical research procedures, either generally
or of a particular kind, a person specified in
the order is to be the health decision maker;
(b) appoint a person as guardian of the patient
generally or for matters relating to medical
research procedures;
(c) vary a guardianship order to make provision
for matters relating to medical research
procedures;
(d) revoke, suspend or vary an instrument
appointing a person as the attorney under the
enduring power of attorney under the
Powers of Attorney Act 2014, to the extent
that the instrument relates to medical
research procedures;
(e) make an order that any proposed medical
research procedure is or is not contrary to the
best interests of the patient;
(f) make any orders or give any directions it
considers necessary to resolve any conflict
between persons relating to the best interests
of a patient;
(g) make a declaration as to the validity or effect
of any decision relating to medical research
procedures;
(h) give an advisory opinion in relation to the
best interests of a patient;
(i) make any other orders it considers to be in
the best interests of the patient.
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172 Health decision maker may seek advice
(1) The health decision maker for a patient may apply
to VCAT for directions or an advisory opinion on
any matter or question relating to the scope or
exercise of the health decision maker's authority to
consent to a medical research procedure on behalf
of the patient.
(2) VCAT must give notice to any person whom
VCAT determines to have a special interest in the
affairs of the patient of the application, of the
hearing of the application and of any order,
directions or advisory opinion of VCAT in
relation to the application.
(3) VCAT may--
(a) give any directions or advisory opinion it
considers necessary; and
(b) make any order it considers necessary.
(4) VCAT of its own initiative may direct, or give an
advisory opinion to, the health decision maker for
a patient in relation to any matter.
(5) An action does not lie against the health decision
maker for a patient on account of an act or thing
done or omitted to be done by the health decision
maker in accordance with any order, directions or
advisory opinion of VCAT made or given under
this section unless, in representing the facts to
VCAT, the health decision maker has been guilty
of fraud, wilful concealment or misrepresentation.
173 Guidelines for medical research procedures
VCAT may, in consultation with the Public
Advocate and the Secretary to the Department of
Justice and with the approval of the Governor in
Council, issue and make available to members of
the public, guidelines to assist the health decision
maker for a patient in determining whether or not
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to consent to medical research procedures in
relation to the patient.
174 Offences
(1) Subject to section 148, a registered practitioner
must not carry out, or supervise the carrying out
of, a medical research procedure on a patient
unless--
(a) the carrying out of the procedure is allowed
by section 167 and either the health decision
maker for the patient has given consent
under section 168 or the procedure is
authorised under section 169; or
(b) the carrying out of the procedure is otherwise
authorised by law.
Penalty: Imprisonment for 2 years or
240 penalty units or both.
(2) A registered practitioner must not sign a
certificate under section 169(3) or (6) that the
practitioner knows to be false.
Penalty: 120 penalty units.
(3) A registered practitioner must not carry out, or
supervise the carrying out of, a medical research
procedure on a patient unless the relevant research
project has been approved by the relevant human
research ethics committee.
Penalty: 240 penalty units.
175 Protection of registered practitioner
(1) A registered practitioner who, in good faith,
carries out, or supervises the carrying out of, a
medical research procedure on a patient in
accordance with this Division in reliance on--
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(a) a consent given by another person who was
believed on reasonable grounds by the
registered practitioner to be authorised to
give such consent; or
(b) a purported consent given by another person
who was believed on reasonable grounds by
the registered practitioner to be authorised to
give such consent but was not so
authorised--
is not--
(c) guilty of assault or battery; or
(d) guilty of professional misconduct; or
(e) liable in any civil proceedings for assault or
battery; or
(f) guilty of an offence against section 174(1).
(2) A registered practitioner who, in good faith,
carries out, or supervises the carrying out of, a
medical research procedure on a patient in
accordance with this Division without the consent
of another person and in the belief on reasonable
grounds that the requirements of this Division
have been complied with is not--
(a) guilty of assault or battery; or
(b) guilty of professional misconduct; or
(c) liable in any civil proceedings for assault or
battery; or
(d) guilty of an offence against section 174(1).
(3) Nothing in this section affects any duty of care
owed by a registered practitioner to a patient.
__________________
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PART 10--REHEARINGS AND REASSESSMENT OF
ORDERS
Division 1--Rehearings
176 Application for rehearing
(1) A party to an application in relation to which
VCAT made an order under this Act (other than
an interim order or a temporary order) 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 interim order or a temporary
order) 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.
(3) Subsection (2) does not apply to the Public
Advocate.
(4) If VCAT makes an order on a reassessment under
section 180 conducted on VCAT's own initiative,
a party or a person entitled to notice of the
reassessment may apply to VCAT for a rehearing
of the reassessment, if VCAT gives leave.
(5) An application for a rehearing, or for leave to
apply for a rehearing, must be made within
28 days after the day that the order is made.
(6) For the purposes of subsection (5), 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 that
the order is made.
(7) A person cannot apply for a rehearing of--
(a) an application the order in relation to which
was made by VCAT constituted by the
President, whether with or without others; or
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(b) an application under section 171 (except an
application in relation to which an order is
made under section 171(6)(b) appointing a
guardian generally); or
(c) an application under section 158 or 163 to
VCAT relating to medical or dental
treatment (except an application in relation
to which an order is made under section
163(7)(b) appointing a guardian generally);
or
(d) an application for a rehearing or for leave to
apply for a rehearing.
177 Parties and notice
(1) The following persons are parties to a rehearing--
(a) in the case of the rehearing of an application
referred to in section 176(1), a party to the
proceeding on that application;
(b) in the case of the rehearing of a reassessment
referred to in section 176(4), a party to the
reassessment;
(c) any other person whom VCAT determines to
be a party.
(2) 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 176(1), a person who
was entitled to notice of the making of that
application;
(b) in the case of the rehearing of a reassessment
referred to in section 176(4), a person who
was entitled to notice of the reassessment;
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(c) any person whom VCAT determines to have
an interest in, or personal involvement with
the affairs of, the represented person,
supported person or missing person, as the
case may be.
178 Rehearing
(1) On an application under section 176, 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.
179 Effect of first instance order pending rehearing
(1) Subject to subsection (2), the making of an
application for a rehearing does not affect the
operation of any order to which the application
relates or prevent the taking of action to enforce
the order.
(2) VCAT may make an order staying the operation
of an order pending the determination of the
rehearing of the application to which the order
relates.
Division 2--Reassessment of orders
180 Reassessment
(1) VCAT must conduct a reassessment of a
guardianship order, an administration order, a
supportive guardianship order or an administration
(missing person) order, as the case may be--
(a) within 12 months after making the order,
unless VCAT orders otherwise; and
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(b) in any case, at least once within each 3 year
period after making the order unless VCAT
orders otherwise.
(2) VCAT may at any time conduct a reassessment of
any order made by it under this Act.
(3) A reassessment under this section may be
conducted--
(a) on VCAT's own initiative; or
(b) on the application of any person.
181 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 may be;
(c) the guardian, administrator or supportive
guardian, as the case may be;
(d) any other person whom VCAT determines to
be a party to the reassessment.
182 Who is entitled to notice of a reassessment, the
hearing and any order made in the proceeding?
(1) In addition to any party to a reassessment under
section 181, 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 of the VCAT Act--
(a) the spouse or domestic partner of the
represented person or supported person;
(b) the primary carer of the represented person
or supported person;
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(c) the nearest relative available (other than the
spouse or domestic partner) of the
represented person or supported person;
(d) the Public Advocate;
(e) any current administrator of the estate of the
represented person, in the case of a
reassessment of a guardianship order;
(f) any current guardian of the represented
person, in the case of a reassessment of an
administration order;
(g) any person whom VCAT determines to have
an interest in, or personal involvement with,
the affairs of the represented person or
supported person.
(2) As soon as practicable after making any
determination under section 181(d) or
subsection (1)(g), VCAT must notify the applicant
as to who--
(a) are the parties to the proceeding on the
application; and
(b) is entitled under subsection (1) to a notice of
the making of the application.
Note
Section 72(1)(b) of the VCAT Act provides that an applicant
for a VCAT order must serve a copy of the application on a
person entitled to notice of the application under the
enabling enactment (which is this Act). 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 person entitled to
notice of the proceeding or of the order under the enabling
enactment.
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183 Contents of notice of application for reassessment
(1) A notice of the making of an application that is
given to a party to a reassessment must include the
following--
(a) a copy of the application for the
reassessment and any information filed in
support of the application subject to
clause 37A in 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, as stated in the notification given
under section 182(2), of--
(i) the parties to the proceeding on the
reassessment under section 180; and
(ii) the other persons entitled to the notice
under section 182;
(c) information about the rights of the party in
relation to the reassessment.
(2) A notice of the making of an application that is
given to a person referred to in section 182(1) who
is not a party must include the following--
(a) a copy of the application;
(b) the names, as stated in the notification given
under section 182(2), of--
(i) the parties to the proceeding on the
reassessment under section 180; and
(ii) the other persons entitled to the notice
under section 182;
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(c) information about the rights of the person in
relation to seeking information about the
reassessment;
(d) information about the procedure for applying
to VCAT to be made a party to the
proceeding on the reassessment;
(e) a statement that the person is not required to
attend the hearing if the person does not have
any matter to raise with VCAT in relation to
the reassessment.
184 Conduct of reassessment if VCAT conducts
reassessment on own initiative
(1) If VCAT determines to conduct a reassessment on
its own initiative under this Division, VCAT
must--
(a) take reasonable steps to contact the
represented person or supported person to
ascertain whether that person wishes VCAT
to reassess the relevant order at a hearing;
and
(b) give notice to each person referred to in
section 182(1), including the represented
person or the supported person, that the
person has 14 days after the date of the
notice to request in writing a hearing of the
reassessment.
(2) VCAT is not required to hold a hearing of the
reassessment and may conduct a reassessment on
the papers if--
(a) none of the persons referred to in
section 182(1), including the represented
person or the supported person, requests a
hearing within 14 days after the date of the
notice; and
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(b) VCAT is satisfied that a hearing is not
necessary and it is appropriate to reassess the
relevant order on the papers.
(3) VCAT must conduct a hearing at which the
relevant order is assessed and give at least 7 days'
notice of the hearing to each person referred to in
section 182(1), including the represented person
or the supported person, if--
(a) any of the persons referred to in
section 182(1), including the represented
person or supported person, requests a
hearing within 14 days after the date of the
notice; or
(b) VCAT is satisfied that a hearing is
necessary.
185 Participation of represented person or supported
person at hearing
VCAT may only conduct a hearing in relation to a
reassessment if--
(a) the represented person or supported person is
present at the hearing; or
(b) VCAT is satisfied that--
(i) the represented person or supported
person does not wish to attend the
hearing; or
(ii) the presence 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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186 Order after reassessment
(1) On completing a reassessment, VCAT may by
order--
(a) amend, vary, continue or replace the order
subject to any conditions or requirements it
considers necessary; or
(b) revoke the order.
(2) If the Public Advocate is appointed as guardian of
a represented person under 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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PART 11--INTERSTATE ORDERS
187 Application of Part
This Part applies to--
(a) a guardianship order, supportive
guardianship order, administration order or
administration (missing person) 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 situated in Victoria; or
(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 situated in
Victoria.
188 Definitions
In this Part--
corresponding law means a law that, under an
Order in Council in force under section 189,
is declared to be a corresponding law for the
purposes of this Part;
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, supportive
guardianship order, administration order or
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 in which a corresponding law is in
force.
189 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 a
State (other than this State) or of a Territory 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 Territory may include a
declaration that an order under that law is
substantially similar to a guardianship order,
supportive guardianship order, administration
order or administration (missing person) order for
the purposes of this Part.
190 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.
191 Registration of interstate orders
(1) VCAT may register an interstate order on the
application of--
(a) a guardian, supportive guardian or
administrator in a participating State or
Territory; or
(b) the Public Advocate.
(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 of the represented
person in this State if no other person fulfils the
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requirements of section 30 for appointment as the
guardian of 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 registered under this Part has
the same force and effect according to its terms as
a guardianship order, supportive guardianship
order, administration order or administration order
(missing person) order (as the case may be) that is
made under this Act.
(5) A guardianship order, supportive guardianship
order, administration order or administration
(missing person) order made under this Act is not
revoked in Victoria if that order is registered in a
participating State or Territory.
192 Reassessment of interstate orders
(1) A registered interstate order (other than an
administration (missing person) order) may be
reassessed by VCAT in accordance with
Division 2 of Part 10.
(2) VCAT may make any order that it is authorised to
make under Division 2 of Part 10 in relation to an
interstate order that has been registered under this
Part, including an order appointing a new
guardian, supportive guardian or administrator.
(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.
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(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.
193 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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PART 12--GENERAL PROVISIONS
194 Remuneration of administrators and certain
guardians
(1) An administrator or a guardian with powers in
relation to a financial matter (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 for acting as
administrator or guardian with powers in relation
to a financial matter unless VCAT otherwise
specifies in the administration order or
guardianship order, as the case may be.
(2) The remuneration to which a person who carries
on a business of, or including, the administration
of estates is entitled, is to be approved by VCAT
in accordance with a scale in relation to
remuneration for administrators fixed by rules
made under the VCAT Act.
(3) Despite subsection (2), the remuneration approved
by VCAT in relation to a licensed trustee
company 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 a guardian with powers in
relation to a financial matter or an administrator to
provide VCAT with any account in the guardian's
or administrator's custody in relation to the
represented person's estate for the purpose of
examining those accounts and determining
whether the guardian or administrator has
complied with the requirements of this Act, orders
made by VCAT or any approvals or specifications
made by VCAT in relation to remuneration under
this section.
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(5) VCAT may by order require a guardian with
powers in relation to a financial matter or an
administrator to pay to the estate of the
represented person any remuneration or other
reward paid or deducted from the estate which
VCAT specifies.
195 Payment from estate of costs and expenses to
administrator or guardian
(1) If in any proceeding, a court or VCAT orders that
an administrator or a guardian pay any costs of the
proceeding, the court or VCAT may order that the
administrator or guardian pay, or be reimbursed
for, all or part of those costs from the estate of the
represented person.
(2) In any proceeding, a court or VCAT may order
that an administrator or a guardian be reimbursed
for all or part of the administrator's or guardian's
costs of the proceeding from the estate of the
represented person.
(3) A court or VCAT may order that the costs
incurred in administering an estate by a person
appointed as an administrator or a guardian
(including the costs of any proceeding) may be
paid out of, or reimbursed from, the estate of the
represented person, whether or not the
appointment has been revoked or quashed.
(4) An order referred to in subsection (3) may be
made on an application under section 60 or
otherwise, and for that purpose, a reference in
section 60 to an administrator or a guardian is
taken to include a reference to a person whose
appointment as an administrator or guardian has
been revoked or quashed.
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196 Resolution of conflicts between guardians and
administrators
(1) When appointing a guardian in relation to a
person whose estate is administered by an
administrator, VCAT must specify whether, in the
event of a disagreement, the views of the guardian
or the administrator are to prevail in relation to a
matter that is within the power and duty of both
the guardian and the administrator.
(2) When appointing an administrator in relation to a
person for whom a guardian has been appointed,
VCAT must specify whether, in the event of a
disagreement, the views of the guardian or the
administrator are to prevail in relation to a matter
that is within the power and duty of both the
guardian and the administrator.
(3) When appointing a guardian for a person in
relation to a personal matter and another guardian
for that person in relation to a different personal
matter has been appointed, VCAT must specify, in
the event of a disagreement, which guardian's
views are to prevail in relation to a matter that is
within the power and duty of both the guardians.
(4) In any disagreement between an administrator and
a guardian, or between 2 guardians, appointed in
relation to the same person and in relation to a
matter where each has authority to act, the
administrator and the guardian or the 2 guardians
may apply to VCAT for an order as to how the
matter should be resolved.
197 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 the Act; and
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(b) is so not recognised, 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.
(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 to be an exercise
of the guardian's or administrator's powers under
the Act if VCAT is satisfied that--
(a) the order will promote the personal and
social wellbeing of the represented person in
relation to whom or to whose estate the
guardian or administrator has been
appointed; and
(b) the relevant decision or act is an exercise of
the guardian's or administrator's powers
under this Act; and
(c) 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 the Act.
Note
Section 133 of the VCAT Act provides that it is an offence
not to comply with an order of VCAT.
198 Matters before a Court
(1) If in any civil proceedings before a Court, the
Court considers that a party may need to have a
guardian or administrator or both or a supportive
guardian appointed under this Act, the Court may
refer the issue to VCAT for its determination.
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(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 a
guardianship order, an administration order
or a supportive guardianship order (as the
case requires); 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 proceedings 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) of the
estate of that person or State Trustees.
(4) In making an order under subsection (3)(b), there
is no presumption that money should be
administered in accordance with Division 2AA of
Part 7 of the Supreme Court Act 1986 in
preference to administration by an administrator.
(5) Subsection (4) does not limit any other factors the
Court may consider in making an order under
subsection (3)(b).
(6) If any money--
(a) is paid into Court before or after the
commencement of this section; and
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(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) of the estate
of that person or State Trustees.
(7) 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) of
the estate of 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.
(8) If an order under subsection (7) 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.
(9) A copy of any order made under this section must
be given by the administrator or State Trustees (as
the case may be) to VCAT and the Public
Advocate.
(10) An order of the Court under this section that
money be paid out to an administrator (if any) of
the estate of a person or State Trustees has effect
as if it were an administration order.
(11) In this section Court means--
(a) the Supreme Court; or
(b) the County Court; or
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(c) the Magistrates' Court.
199 Effect of setting aside administration 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 does not affect the
validity of anything done in accordance with the
administration 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.
200 Compensation for acts of guardian or administrator
(1) The Supreme Court or VCAT may order a
guardian or administrator to compensate the
represented person 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 has died, in which
case compensation is payable to the estate of
the represented person.
201 Relief from personal liability
If the Supreme Court or VCAT considers that--
(a) an administrator or guardian is or may be
personally liable for a contravention of the
provisions of this Act; and
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(b) the administrator or guardian has acted
honestly and reasonably and ought fairly to
be excused for the contravention--
the Supreme Court or VCAT may relieve the
administrator or guardian from all or part of that
personal liability.
202 Who can apply for an order for compensation?
A person may apply for an order under
section 200 if the person is--
(a) the represented person; or
(b) an executor or administrator (within the
Administration and Probate Act 1958) of
the represented person's estate; or
(c) the Public Advocate; or
(d) the nearest relative of the represented person;
or
(e) any other person whom VCAT considers to
have a special interest in the affairs of the
represented person.
203 Time limit for application for order for
compensation
(1) An application for an order for compensation
under section 200 must be made--
(a) if the represented 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 and the
guardian or administrator died, within
6 months after the first death.
(2) The Supreme Court or VCAT may extend the
time specified under subsection (1).
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204 VCAT may refer matter to Supreme Court
VCAT may refer to the Supreme Court an
application made to it for an order for
compensation under section 200.
205 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.
206 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 may be).
207 Audit
VCAT or the Public Advocate may engage a
registered company auditor to carry out an
inspection or an audit that VCAT or the Public
Advocate considers to be necessary.
208 Offence as to guardian, supportive guardian or
administrator
(1) A guardian under a guardianship order must not
dishonestly use the guardianship order--
(a) to obtain financial advantage for the
guardian or another person; or
(b) to cause loss to the represented person or
another person.
Penalty: Level 6 imprisonment (5 years
maximum) or 600 penalty units or both.
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(2) A supportive guardian under a supportive
guardianship order must not dishonestly use the
supportive guardianship order--
(a) to obtain financial advantage for the
supportive guardian or another person; or
(b) to cause loss to the supported person or
another person.
Penalty: Level 6 imprisonment (5 years
maximum) or 600 penalty units or both.
(3) An administrator under an administration order
must not dishonestly use the administration
order--
(a) to obtain financial advantage for the
administrator or another person; or
(b) 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,
2400 penalty units.
(4) An administrator under an administration (missing
person) order must not dishonestly use the
administration (missing person) order--
(a) to obtain financial advantage for the
administrator or another person; or
(b) 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,
2400 penalty units.
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Part 12--General Provisions
s. 209
Notes
1 The offences under this section are indictable offences that
may be heard summarily.
2 Section 209 applies to an offence against subsection (3) or
(4).
209 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 27(5);
(b) section 208(3);
(c) section 208(4).
(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.
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(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;
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.
210 Regulations
(1) The Governor in Council may make regulations
for or with respect to--
(a) prescribing forms to be used for the purposes
of this Act; and
(b) prescribing any treatment--
(i) to be medical or dental treatment for
the purposes of this Act; or
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(ii) not to be medical or dental treatment
for the purposes of this Act; or
(iii) to be a special procedure for the
purposes of Part 9; and
(c) prescribing any procedure--
(i) to be a medical research procedure for
the purposes of this Act; or
(ii) not to be a medical research procedure
for the purposes of this Act; and
(d) prescribing any matters to be taken into
account in determining whether a medical
research procedure would or would not be
contrary to the best interests of a person to
whom Part 9 applies; and
(e) prescribing any matters to be taken into
account in determining whether a special
procedure or medical or dental treatment
would be in the best interests of a person to
whom Part 9 applies; and
(f) prescribing annual fees to be paid in relation
to estates which are the subject of an
administration order; and
(g) 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.
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(3) Regulations made under subsection (1)(f)--
(a) may prescribe fees in relation to a particular
class or classes of estates only; and
(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 this section, the Minister must
advise the Governor in Council that the
Minister--
(a) has consulted the President of VCAT and the
Public Advocate; 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 by
VCAT and the Public Advocate to fulfil their
estate administration functions under this Act
in that year.
211 Transitional regulations
(1) The Governor in Council may make regulations
containing provisions of a savings or transitional
nature consequent to the enactment of this Act.
(2) A provision mentioned in subsection (1) may be
retrospective in operation to 1 September 2015.
(3) Regulations made 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) This section expires on 1 September 2017.
_______________
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Part 13--Repeal of Guardianship and Administration Act 1986, Savings and
s. 212
Transitional Provisions
PART 13--REPEAL OF GUARDIANSHIP AND
ADMINISTRATION ACT 1986, SAVINGS AND
TRANSITIONAL PROVISIONS
212 Definitions
(1) In this Part--
1986 Act means the Guardianship and
Administration Act 1986;
2014 Act means the Guardianship and
Administration Act 2014;
commencement day means the day on which the
2014 Act comes into operation.
(2) A word or expression that is defined in the
1986 Act and is used in this Part in relation to the
1986 Act has the same meaning as is given in the
1986 Act.
213 Guardianship and Administration Act 1986
repealed
(1) The Guardianship and Administration Act See:
Act No.
1986 is repealed. 58/1986.
Reprint No. 8
(2) Except as is expressly or by necessary implication as at
17 January
provided in the 2014 Act, all persons, things and 2013
circumstances appointed or created by or under and
amending
the 1986 Act or existing or continuing under the Act Nos
1986 Act immediately before commencement day 26/2014 and
37/2014.
continue under and subject to the 2014 Act to LawToday:
have the same status, operation and effect as they www.
legislation.
would have had if the 1986 Act had not been vic.gov.au
repealed.
(3) On and after commencement day, any reference in
any Act (other than the 2014 Act or regulations
under that Act), regulation, subordinate instrument
or other document whatsoever to the 1986 Act is
to be construed as a reference to the 2014 Act
unless the contrary intention appears.
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Part 13--Repeal of Guardianship and Administration Act 1986, Savings and
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Transitional Provisions
(4) Nothing in this Part limits or otherwise affects the
operation of the Interpretation of Legislation
Act 1984.
214 Guardianship order and appointment of guardian
(1) On and after commencement day, a guardianship
order made under section 22 or 33 of the
1986 Act that is in force immediately before that
day is taken to be a guardianship order made
under the 2014 Act and, in the case of a
guardianship order made under section 33 of the
1986 Act, is taken to remain in force for such
period as is specified in the order or renewal of
the order under the 1986 Act.
(2) On and after commencement day, a person
appointed as guardian under an order made under
section 22 or 33 of the 1986 Act that is in force
immediately before that day is taken to be
appointed as a guardian under an order made
under the 2014 Act.
(3) On and after commencement day, a person who
immediately before that day is appointed as
alternative guardian under section 34 of the
1986 Act and is not a guardian under section 35 of
that Act, is taken to be appointed as an alternative
guardian under an order made under the 2014 Act.
(4) On and after commencement day, a person who
immediately before that day is a guardian under
section 35 of the 1986 Act is taken to be a
guardian under the 2014 Act.
215 Authority of guardian
(1) On and after commencement day, a plenary
guardian appointed under a guardianship order
made under the 1986 Act that is in force
immediately before commencement day is taken
to be conferred with--
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Transitional Provisions
(a) all the powers and duties that were conferred
on the plenary guardian under the 1986 Act;
and
(b) the powers and duties referred to in sections
57, 58(b) and 60 of the 2014 Act.
(2) On and after commencement day, a limited
guardian appointed under a guardianship order
made under the 1986 Act that is in force
immediately before commencement day is taken
to be conferred with--
(a) all the powers and duties that were specified
in the guardianship order made under the
1986 Act; and
(b) the powers and duties referred to in sections
57, 58(b) and 60 of the 2014 Act.
216 Administration order and appointment of
administrator
(1) On and after commencement day, an
administration order made under section 46 or 60
of the 1986 Act that is in force immediately before
that day is taken to be an administration order
made under the 2014 Act and, in the case of an
administration order made under section 60 of the
1986 Act, is taken to remain in force for such
period as is specified in the order or renewal of
the order under the 1986 Act.
(2) On and after commencement day, a person
appointed as administrator or temporary
administrator in an administration order made
under section 46 or 60 of the 1986 Act is taken to
be appointed under an administration order made
under the 2014 Act as an administrator as
described in paragraph (a) or (b), as relevant, of
the definition of administrator in section 3(1) of
the 2014 Act.
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Part 13--Repeal of Guardianship and Administration Act 1986, Savings and
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Transitional Provisions
217 Authority of administrator
On and after commencement day, an administrator
appointed under an administration order made
under the 1986 Act that is in force immediately
before commencement day is taken to be
conferred with--
(a) all the powers and duties that were conferred
on the administrator under Division 3 of Part
5 of the 1986 Act and such of the powers and
duties referred to in Division 3A of Part 5 of
that Act as were specified in the order; and
(b) the powers and duties referred to in sections
57, 58(b), 63, 65, 67 and 72 of the 2014 Act.
218 Administration order in respect of missing person's
estate
(1) On and after commencement day, an
administration order made under Part 5A of the
1986 Act that is in force immediately before that
day is taken to be an administration (missing
person) order made under the 2014 Act.
(2) On and after commencement day, a person
appointed as administrator in an administration
order made under Part 5A of the 1986 Act is taken
to be appointed as an administrator under an
administration (missing person) order made under
the 2014 Act.
219 Authority of administrator in respect of missing
person's estate
On and after commencement day, an administrator
appointed under an administration order made
under Part 5A of the 1986 Act that is in force
immediately before commencement day is taken
to be conferred with all the powers and duties that
were conferred on the administrator under the
1986 Act.
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Part 13--Repeal of Guardianship and Administration Act 1986, Savings and
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Transitional Provisions
220 Application for guardianship orders
On and after commencement day, an application
for an order appointing a plenary guardian or a
limited guardian that is made under section 19
or 33 of the 1986 Act is taken to be an application
for a guardianship order made under section 20 of
the 2014 Act and, irrespective of whether the
application is or is not part-heard immediately
before commencement day, must be determined in
accordance with the relevant provisions of the
2014 Act (other than sections 23 and 24).
221 Application for administration orders
On and after commencement day, an application
for an order appointing an administrator that is
made under section 43 of the 1986 Act is taken to
be an application for an administration order made
under section 20 of the 2014 Act and, irrespective
of whether the application is or is not part-heard
immediately before commencement day, must be
determined in accordance with the relevant
provisions of the 2014 Act (other than sections 23
and 24).
222 Application for administration (missing person)
orders
On and after commencement day, an application
for an order appointing an administrator that is
made under section 60AA or 60AF of the 1986
Act is taken to be an application for an
administration (missing person) order made under
section 107 or 139, as the case may be, of the
2014 Act and, irrespective of whether the
application is or is not part-heard immediately
before commencement day, must be determined in
accordance with the relevant provisions of the
2014 Act (other than sections 108 and 109).
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Part 13--Repeal of Guardianship and Administration Act 1986, Savings and
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Transitional Provisions
223 Rehearings and reassessments of orders
(1) If, immediately before commencement day, an
application is made under Part 6 of the 1986 Act
for a rehearing or reassessment of an order, the
application is taken to be made under Part 10 of
the 2014 Act.
(2) If, immediately before commencement day, a
rehearing or reassessment under Part 6 of the 1986
Act is part-heard, adjourned or not completed, the
rehearing or reassessment is to be heard or
completed in accordance with the relevant
provisions of Part 10 of the 2014 Act in relation to
the order that is taken to be an order made under
the 2014 Act by virtue of this Part.
(3) On and after commencement day, an order made
under Part 6 of the 1986 Act that is in force
immediately before commencement day is taken
to be an order made under Part 10 of the
2014 Act.
224 Medical and other treatment
(1) On and after commencement day, a person who is
a person responsible under Part 4A of the 1986
Act is taken to be a health decision maker under
Part 9 of the 2014 Act.
(2) On and after commencement day, a consent given
by a person responsible under Part 4A of the 1986
Act is taken to be a consent given by a health
decision maker under Part 9 of the
2014 Act.
(3) On and from commencement day, an order,
directions or an advisory opinion given by VCAT
under section 42I of the 1986 Act is taken to be an
order, directions or an advisory opinion given by
VCAT under section 158 of the 2014 Act.
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Part 13--Repeal of Guardianship and Administration Act 1986, Savings and
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Transitional Provisions
(4) On and from commencement day, subject to
section 147 of the 2014 Act, a registered
practitioner may carry out, or supervise the
carrying out of, medical or dental treatment under
section 161 of the 2014 Act if, immediately before
the commencement day, the registered practitioner
was permitted to carry out, or supervise the
carrying out of, such treatment under section 42L
of the 1986 Act.
(5) On and from commencement day, an application
made under section 42N of the 1986 Act and not
determined immediately before commencement
day, is taken to be an application under
section 163 of the 2014 Act.
(6) On and from commencement day, an application
made under section 42V of the 1986 Act and not
determined immediately before commencement
day, is taken to be an application under
section 171 of the 2014 Act.
(7) On and from commencement day, an order,
directions or an advisory opinion given by VCAT
under section 42W of the 1986 Act is taken to be
an order, directions or an advisory opinion given
by VCAT under section 172 of the 2014 Act.
225 Interstate orders
(1) On and from commencement day, an agreement
referred to in section 63D of the 1986 Act is taken
to be an agreement referred to in section 190 of
the 2014 Act.
(2) On and from commencement day, an interstate
order that is registered under section 63E of the
1986 Act is taken to be an interstate order
registered under section 191 of the 2014 Act.
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Transitional Provisions
226 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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Part 14--Amendments to the Victorian Civil and Administrative Tribunal
s. 227
Act 1998 and Other Acts
PART 14--AMENDMENTS TO THE VICTORIAN CIVIL AND
ADMINISTRATIVE TRIBUNAL ACT 1998 AND OTHER ACTS
Division 1--Victorian Civil and Administrative Tribunal
Act 1998
227 Definitions
In section 3 of the Victorian Civil and See:
Act No.
Administrative Tribunal Act 1998, for 53/1998.
paragraph (d) of the definition of proceeding Reprint No. 9
as at
substitute-- 1 January
2014
"(d) a rehearing or reassessment under Part 10 of and
amending
the Guardianship and Administration Act Act Nos
2014;". 67/2013,
1/2014,
17/2014,
23/2014,
37/2014 and
42/2014.
LawToday:
www.
legislation.
vic.gov.au
228 What is review jurisdiction?
For section 42(2) of the Victorian Civil and
Administrative Tribunal Act 1998, for "Part 6 of
the Guardianship and Administration Act
1986" substitute "Part 10 of the Guardianship
and Administration Act 2014".
229 Proceeding files
After section 146(4)(c) of the Victorian Civil and
Administration Tribunal Act 1998 insert--
"(ca) any determination by the principal registrar
under clause 37A of Part 9 to Schedule 1;".
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Part 14--Amendments to the Victorian Civil and Administrative Tribunal
s. 230
Act 1998 and Other Acts
230 Heading to Part 9 of Schedule 1
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 2014".
231 Constitution of Tribunal for proceedings
(1) For clause 31(1) 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 2014, other than a
proceeding for a temporary order under
section 20 of that Act.".
(2) In clause 31(2) of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998,
for "Division 4 of Part 4 or Division 4 of Part 5 of
the Guardianship and Administration Act
1986" substitute "Parts 3 and 4".
(3) 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 10 of the Guardianship and
Administration Act 2014".
232 Notification of commencement
(1) In clause 32(1) and (2) of Schedule 1 to the
Victorian Civil and Administrative Tribunal
Act 1998, for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
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Part 14--Amendments to the Victorian Civil and Administrative Tribunal
s. 233
Act 1998 and Other Acts
(2) In clause 32(3) of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998,
for "Part 5A of the Guardianship and
Administration Act 1986" substitute "Part 8 of
the Guardianship and Administration Act
2014".
233 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 2014".
234 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 2014".
235 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 2014".
236 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 2014".
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Part 14--Amendments to the Victorian Civil and Administrative Tribunal
s. 237
Act 1998 and Other Acts
237 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 2014".
(2) In clause 37(4) of Schedule 1 to the Victorian
Civil and Administrative Tribunal Act 1998,
for "Part 5A of the Guardianship and
Administration Act 1986" substitute "Part 8 of
the Guardianship and Administration Act
2014".
238 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 Act
2014 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.".
239 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
2014, subject to the Tribunal's approval.".
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Part 14--Amendments to the Victorian Civil and Administrative Tribunal
s. 240
Act 1998 and Other Acts
Division 2--Amendments to other Acts
240 Consequential amendments
On the coming into operation of an item in the
Schedule, the Act specified in the heading to that
item is amended as set out in the item.
241 Repeal of Part 14 and Schedule
Part 14 and the Schedule are repealed on
1 September 2016.
Note
The repeal of Part 14 and the Schedule does not affect the
continuing operation of the amendments made by that Part of the
Schedule (see section 15(1) of the Interpretation of Legislation
Act 1984.).
__________________
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Sch.
SCHEDULE
Section 240
CONSEQUENTIAL AMENDMENTS
1 Appeal Costs Act 1998
1.1 In section 3(2)(a) and (b), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
2 Associations Incorporation Reform Act 2012
2.1 In section 78(2)(c)(iii), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
3 Australian Consumer Law and Fair Trading Act
2012
3.1 In sections 47(1)(a)(ii), 48(6)(b) and 92(1)(g), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2014".
4 Building Act 1993
4.1 In sections 83(1)(b)(iii), 83B(1)(e)
and 148F(1)(g), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
4.2 In section 90(3), for "under the Guardianship
and Administration Act 1986" substitute "or as
guardian with powers in relation to a financial
matter of the adjoining owner under the
Guardianship and Administration Act 2014".
5 Business Licensing Authority Act 1998
5.1 In the Schedule, in clause 3(1)(c), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2014".
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6 Conveyancers Act 2006
6.1 In section 5(h), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
7 Coptic Orthodox Church (Victoria) Property Trust
Act 2006
7.1 In section 8(d), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
8 County Court Act 1958
8.1 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 2014".
8.2 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 2014 and, subject to the
order of the Court, the administrator has all
the powers and duties set out in Divisions 3,
4, 5 and 6 of Part 6 of that Act.".
8.3 In section 39C(6), for "section 66 of the
Guardianship and Administration Act 1986"
substitute "section 198 of the Guardianship and
Administration Act 2014".
9 Crimes Act 1958
9.1 In section 175(1), in the definition of trustee, for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2014".
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10 Disability Act 2006
10.1 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 2014;";
(b) in the definition of resident's administrator,
after "resident's" insert "guardian with
powers in relation to a financial matter
appointed under the Guardianship and
Administration Act 2014 or the resident's";
(c) in the definition of resident's guardian, for
in paragraph (a)(i) substitute--
"(i) appointed under the Guardianship and
Administration Act 2014 with powers
in relation to a personal matter; or".
10.2 After section 39(4)(ca) insert--
"(cb) to a supportive guardian within the meaning
of the Guardianship and Administration
Act 2014;".
10.3 In section 144(2), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
10.4 In section 200, for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
11 Duties Act 2000
11.1 In section 57G(1), for paragraph (b) of the
definition of guardian substitute--
"(b) an administrator of the person's estate
appointed under the Guardianship and
Administration Act 2014 or a person
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Sch.
appointed under that Act for the person
under a legal disability as guardian with
powers in relation to a financial matter;".
12 Estate Agents Act 1980
12.1 In sections 14(5)(da), 16(1)(da), 22(1)(c) and
31E(1)(c), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
13 Family Violence Protection Act 2008
13.1 In section 4, in the definition of guardian, for
"under the Guardianship and Administration
Act 1986" substitute "with powers in relation to a
personal matter under the Guardianship and
Administration Act 2014".
13.2 In the note at the foot of sections 64(1) and 112--
(a) for "sections 30 and 61 of the Guardianship
and Administration Act 1986. Section 30"
substitute "section 60 and Division 2 of
Part 10 of the Guardianship and
Administration Act 2014. Section 60";
(b) for "section 61" substitute "Division 2 of
Part 10".
14 Fire Services Levy Monitor Act 2012
14.1 In section 10(c), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
15 First Home Owner Grant Act 2000
15.1 In section 3(1), for paragraph (b) of the definition
of guardian substitute--
"(b) an administrator of the person's estate
appointed under the Guardianship and
Administration Act 2014 or a person
appointed under that Act for the person
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under a legal disability as guardian with
powers in relation to a financial matter;".
16 Fundraising Act 1998
16.1 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 2014".
17 Gambling Regulation Act 2003
17.1 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 2014".
18 Health Records Act 2001
18.1 In section 85--
(a) in subsection (4), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act
2014";
(b) for subsection (6)(d) substitute--
"(d) an administrator, a guardian, supportive
guardian or a health decision maker (all
within the meaning of the
Guardianship and Administration
Act 2014); or".
18.2 In section 30(2), for the definition of written
authority substitute--
"written authority includes--
(a) a supportive attorney appointment
within the meaning of the Powers of
Attorney Act 2014;
(b) a supportive guardianship order within
the meaning of the Guardianship and
Administration Act 2014.".
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18.3 In section 85(2)(a)(ii), for "and" substitute "or".
18.4 After section 85(2)(a)(ii) insert--
"(iii) a supportive guardian acting under a
supportive guardianship order, within the
meaning of the Guardianship and
Administration Act 2014; and".
19 Health Services Act 1988
19.1 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 2014;".
20 Human Services (Complex Needs) Act 2009
20.1 In section 3, in the definition of Public Advocate,
for "Guardianship and Administration Act
1986" substitute "Guardianship and
Administration Act 2014".
20.2 In section 21(b)(i), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
21 Independent Broad-based Anti-corruption
Commission Act 2011
21.1 In sections 25(1)(f) and 27(1)(f), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2014".
22 Juries Act 2000
22.1 In Schedule 2, in clause 3(d), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
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23 Land Act 1958
23.1 In section 110--
(a) in subsection (3), for "as administrator under
the Guardianship and Administration Act
1986" substitute "under the Guardianship
and Administration Act 2014 as an
administrator or as a guardian with powers in
relation to a financial matter";
(b) in subsection (4), for "administrator under
the Guardianship and Administration Act
1986" substitute "administrator or guardian
with powers in relation to a financial matter
appointed under the Guardianship and
Administration Act 2014".
23.2 In section 353(5), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
24 Land Tax Act 2005
24.1 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 2014".
25 Limitation of Actions Act 1958
25.1 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
2014.".
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25.2 In section 27J(4)--
(a) for the definition of guardian substitute--
"guardian, in relation to a represented
person means the guardian or
administrator of that person under the
Guardianship and Administration
Act 2014;";
(b) for the definition of represented person
substitute--
"represented person means represented
person within the meaning of the
Guardianship and Administration
Act 2014;".
26 Liquor Control Reform Act 1998
26.1 In sections 66(c), 80(1)(b) and 85(a)(ii), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2014".
27 Magistrates Court Act 1989
27.1 In section 101A(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 appointed under
the Guardianship and Administration Act
2014".
27.2 For section 101A(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 2014 and, subject to the
order of the Court, the administrator has all
the powers and duties set out in Divisions 3,
4, 5 and 6 of Part 6 of that Act.".
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27.3 In section 101B(6), for "section 66 of the
Guardianship and Administration Act 1986"
substitute "section 198 of the Guardianship and
Administration Act 2014".
28 Medical Treatment Act 1988
28.1 In section 5A--
(a) in subsection (1)(b), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act
2014";
(b) for subsection (4)(b) substitute--
"(b) on the donor of the power becoming a
represented person within the meaning
of the Guardianship and
Administration Act 2014--".
28.2 In section 5D(1)(b), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
28.3 In Schedule 3, for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
29 Mental Health Act 2014
29.1 In section 3(1)--
(a) in the definition of guardian, for
"Guardianship and Administration Act
1986" substitute "Guardianship and
Administration Act 2014";
(b) for the definition of Public Advocate
substitute--
"Public Advocate has the same meaning as
in the Guardianship and
Administration Act 2014;".
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29.2 In section 7--
(a) in paragraph (e), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act
2014";
(b) in the note at the foot of paragraph (e), for
"Part 4A of the Guardianship and
Administration Act 1986" substitute
"Part 9 of the Guardianship and
Administration Act 2014".
29.3 In section 75(1)(c), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
30 Motor Car Traders Act 1986
30.1 In sections 13(4)(k) and (6)(1)(i), 28(1)(c)
and 33(1)(c), for "Guardianship and
Administration Board Act 1986" substitute
"Guardianship and Administration Act 2014".
31 Owners Corporations Act 2006
31.1 In sections 179(b), 186(a) and 187(1)(c), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2014".
32 Partnership Act 1958
32.1 In section 39(a), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
33 Personal Safety Intervention Orders Act 2010
33.1 In section 4, in the definition of guardian, for
"under the Guardianship and Administration
Act 1986" substitute "with powers in relation to a
personal matter under the Guardianship and
Administration Act 2014".
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33.2 In the note at the foot of sections 46(1) and
89(1)--
(a) for "sections 30 and 61 of the Guardianship
and Administration Act 1986. Section 30"
substitute "section 60 and Division 2 of
Part 10 of the Guardianship and
Administration Act 2014. Section 60";
(b) for "section 61" substitute "Division 2 of
Part 10".
34 Powers of Attorney Act 2014
34.1 In section 3(1), in the definitions of
administration order, guardianship order and
Public Advocate, for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
34.2 In section 3(1), in the definition of personal
matter, in paragraph (f) of the Examples, for "Part
4A of the Guardianship and Administration
Act 1986" substitute "Part 9 of the
Guardianship and Administration Act 2014".
34.3 In section 3(1), in the definition of relative, for
paragraphs (c) and (d) substitute--
"(c) parent;
(ca) step-parent;
(d) sibling;
(da) step-sibling;".
34.4 In section 83(1), after "makes" insert "a
guardianship order appointing a guardian with
powers in relation to a financial matter or".
35.5 In section 123(4)(e)--
(a) in paragraphs (i), (iii) and (iv), for
"Guardianship and Administration Act
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1986" substitute "Guardianship and
Administration Act 2014";
(b) in paragraph (ii), for "section 35 of the
Guardianship and Administration Act
1986" substitute "section 51 of the
Guardianship and Administration Act
2014".
35 Privacy and Data Protection Act 2014
35.1 In section 28(6), in the definition of authorised
representative, for paragraph (a)(iv) substitute--
"(iv) an administrator, a guardian or a health
decision maker (all within the meaning of the
Guardianship and Administration Act
2014); or".
36 Professional Standards Act 2003
36.1 In Schedule 2, in clause 5(1)(e), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2014".
37 Property Law Act 1958
37.1 In section 30(1), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014 or
a guardian with powers in relation to a financial
matter is appointed under that Act".
37.2 In section 30(1), after "the administrator" insert
"or guardian".
37.3 In sections 30(2) and 171(9), for "Guardianship
and Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
38 Public Health and Wellbeing Act 2008
38.1 In section 138(3)(b), for "person responsible
under the Guardianship and Administration
Act 1986" substitute "health decision maker
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under the Guardianship and Administration
Act 2014".
39 Road Safety Act 1986
39.1 In section 90I, in the definition of authorised
representative, for paragraph (d) substitute--
"(d) an administrator, a guardian or a health
decision maker (all within the meaning of the
Guardianship and Administration Act
2014); or".
40 Second-Hand Dealers and Pawnbrokers Act 1989
40.1 In sections 6(1)(a), 10(1)(a) and 18(1)(c), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2014".
41 Severe Substance Dependence Treatment Act 2010
41.1 In section 4--
(a) for the definition of guardian substitute--
"guardian has the same meaning as in the
"Guardianship and Administration
Act 2014;";
(b) in the definition of Public Advocate, for
"Guardianship and Administration Act
1986" substitute "Guardianship and
Administration Act 2014".
41.2 In section 6(2), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
42 Sex Work Act 1994
42.1 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 2014".
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43 State Trustees (State Owned Company) Act 1994
43.1 In section 3--
(a) the definition of protected person is
repealed;
(b) in the definition of represented person, for
"Guardianship and Administration Act
1986" substitute "Guardianship and
Administration Act 2014".
43.2 In section 12(5)--
(a) for "Guardianship and Administration Act
1986" substitute "Guardianship and
Administration Act 2014";
(b) in paragraph (d), for "Divisions 3 and 3A of
Part 5" substitute "Divisions 3, 4, 5 and 6 of
Part 6".
43.3 In section 13(1)(d), for "administrators' accounts
under the Guardianship and Administration
Act 1986" substitute "accounts of administrators
or of guardians with powers in relation to a
financial matter under the Guardianship and
Administration Act 2014".
43.4 In section 14(2)(c)(i), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
43.5 Section 14(2)(c)(ii) is repealed.
43.6 In section 17(1) and (2) omit "or a protected
person".
43.7 In section 19--
(a) in paragraph (a)--
(i) for subparagraph (i) substitute--
"(i) an order under the Guardianship
and Administration Act 2014
appointing State Trustees as
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administrator of the estate of any
person or as guardian with powers
in relation to a financial matter is
in force; or";
(ii) subparagraph (ii) is repealed;
(b) paragraph (b)(ii) is repealed.
44 Supported Residential Services (Private
Proprietors) Act 2010
44.1 In section 3(1)--
(a) in the definition of Public Advocate, for
"Guardianship and Administration Act
1986" substitute "Guardianship and
Administration Act 2014";
(b) in the definition of resident's administrator,
after "resident's" insert "guardian with
powers in relation to a financial matter
appointed under the Guardianship and
Administration Act 2014 or the resident's";
(c) in the definition of resident's guardian, for
in paragraph (a)(i) substitute--
"(i) under the Guardianship and
Administration Act 2014 with powers
in relation to a personal matter; or".
44.2 In section 35(1)(a)(ii), (b)(ii) and (2)(b), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2014".
44.3 In the note at the foot of section 45(1), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2014".
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45 Supreme Court Act 1986
45.1 In section 51A(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 appointed under
the Guardianship and Administration Act
2014".
45.2 For section 51A(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 2014 and, subject to the
order of the Court, the administrator has all
the powers and duties set out in Divisions 3,
4, 5 and 6 of Part 6 of that Act.".
45.3 In section 113(1), for "section 66 of the
Guardianship and Administration Act 1986"
substitute "section 198 of the Guardianship and
Administration Act 2014".
45.4 In section 113B(1)(a), for "under the
Guardianship and Administration Act 1986"
substitute "or a guardian with powers in relation
to a financial matter under the Guardianship and
Administration Act 2014".
45.5 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 2014 as administrator
of the estate of the person under disability or
as guardian with powers in relation to a
financial matter for that person.".
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46 The Uniting Church in Australia Act 1977
46.1 In section 15(1)(d), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
47 Trustee Act 1958
47.1 In section 41(9)(a), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
48 Trustee Companies Act 1984
48.1 In section 14(2)--
(a) for "as an administrator under the
Guardianship and Administration Act
1986" substitute "under the Guardianship
and Administration Act 2014 as an
administrator or as a guardian with powers in
relation to a financial matter";
(b) for "administrator," substitute
"administrator or guardian with powers in
relation to a financial matter,".
48.2 In section 17(1)(c), for "an administrator
appointed under the Guardianship and
Administration Act 1986" substitute "an
administrator or a guardian with powers in
relation to a financial matter appointed under the
Guardianship and Administration Act 2014".
49 Unclaimed Money Act 2008
49.1 In section 87(2)(c) and (3)(a)(iii), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2014".
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50 Victims of Crime Assistance Act 1996
50.1 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
2014;".
50.2 In section 25(4), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
50.3 In section 70A(4), for "section 66 of the
Guardianship and Administration Act 1986"
substitute "section 198 of the Guardianship and
Administration Act 2014".
51 Victoria Police Act 2013
51.1 In section 246, in the definition of personal
representative, in paragraph (b), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2014".
51.2 In Schedule 1, in clauses 2(b) and 7(b), for
"Guardianship and Administration Act 1986"
substitute "Guardianship and Administration
Act 2014".
52 Victorian Inspectorate Act 2011
52.1 In section 22(1)(g), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
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53 Wills Act 1997
53.1 In section 29(d), for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration Act 2014".
54 Workplace Injury Rehabilitation and Compensation
Act 2013
54.1 For section 310(3)(a) substitute--
"(a) if proceedings have not been commenced in
respect of the worker's claim--
(i) an administrator appointed in respect of
the worker under the Guardianship
and Administration Act 2014; or
(ii) a guardian with powers in relation to a
financial matter appointed in respect of
the worker under the Guardianship
and Administration Act 2014; or".
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Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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