Guardianship and Administration Bill 2014

Introduction Print

EXPLANATORY MEMORANDUM

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BILL LA INTRODUCTION 20/8/2014

General

The Guardianship and Administration Bill 2014 re-enacts the Guardianship and Administration Act 1986 with significant changes to provide the Victorian Civil and Administrative Tribunal (VCAT) with more flexible powers to customise its orders to the needs of people with impaired decision making capacity and their families; improve VCAT processes when dealing with guardianship and administration applications; introduce a streamlined process at VCAT to make it easier for parents of people with profound decision making incapacity to obtain a guardianship order or administration order; assist the operation of the Office of the Public Advocate; and to ensure consistency with the Powers of Attorney Act 2014.

Clause Notes

PART 1—PRELIMINARY

Clause 1sets out the purposes of the Bill, which are—

  • to re-enact with amendments the law relating to guardianship and administration;
  • to repeal the Guardianship and Administration Act 1986; and
  • tomake consequential amendments to various other Acts.

Clause 2provides that the Bill comes into operation immediately after Part10 of the Powers of Attorney Act 2014 comes into operation.

The Powers of Attorney Act 2014 comes into operation on a day or days to be proclaimed, but has a default date of 1 September 2015 if not proclaimed earlier.

Clause 3sets out definitions that apply throughout the Bill. Keydefinitions are set out below.

administration order means an order of VCAT appointing a person as an administrator or temporary administrator ofthe estate of a person under clause28 or Part 5 of the Bill. Clause28 sets out the conditions for making a guardianship or administration order. Part 5 of the Bill introduces a new streamlined process to enable a parent of an adult child with a disability (the proposed represented person) to apply to VCAT for a guardianship order or an administration order appointing the parent as the guardian or administrator.

administration (missing person) order means an order of VCAT appointing a person as an administrator of the estate of a missing person under clause 111 or appointing a temporary administrator of the estate of a missing person under clause 140. Clause 111 sets out the conditions for the making of an administration (missing person) order. This includes: the person is a missing person who usually resides in Victoria; and 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 or property; and it is in the best interests of the missing person for an administrator to be appointed; and the order would promote the missing person’s personal and social wellbeing while the person is missing. Clause 140 provides that VCAT may make a temporary administration (missing person) order if it is satisfied that:the person is a missing person who usually resides in Victoria; and 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 the order would promote the missing person's personal and social wellbeing while the person is missing. Amissing person is a person determined to be a missing person by VCAT under clause 111(2).

disability,in relation to a person, means aneurological impairment, intellectualimpairment, mental illness, brain injury,physical disability or dementia. This definition replaces the definition of disability in the Guardianship and Administration Act1986, but differs from that definition in that it includes neurological impairment. This is consistent with the definition of disability in the Disability Act2006 and is intended to include a person with autism spectrum disorder.

financial matter, in relation to a person,means any matter relating to a represented person's financial or property affairs. A financial matter includes any legal matter that relates to the financial or property affairs of the represented person. The definition provides a nonexhaustive list of examples of financial matters. Forinstance, making investments for the represented person is an example of a financial matter.

guardianship order means an order of VCAT appointing a person under clause 28 or Part 5 as a guardian. Clause 28 sets out the conditions for making a guardianship or administration order. Part 5 contains of the Bill introduces a new streamlined process to enable a parent of an adult child with a disability (the proposed represented person) to apply to VCAT for a guardianship order or an administration order appointing the parent as the guardian or administrator. A guardianship order may appoint a person as a guardian with powers for personal matters and financial matters. Financial and personal matters are defined in clause 3.

legal matter, in relation to a person, means use of legal services for a represented person's benefit; or bringing or defending a legal proceeding or hearing in a court or tribunal or other body on behalf of the represented person, including settling a claim before or after a legal proceeding or hearing starts. The term legal matter is used in reference to both financial and personal matters as defined in clause 3. The definition provides a non-exhaustive list of examples of legal matters. For instance, the use of legal services to make a transaction is an example of a legal matter.

medical or dental treatment means medical or dental treatment normally carried out by, or under, the supervision of a registered practitioner. The definition includes examples of medical and dental treatment. The definition includes any other treatment prescribed by the regulations to be medical or dental treatment for the purposes of this Act, and contains a list of excluded treatments.

personal matter, in relation to a person, means any matter relating to a represented person's personal or lifestyle affairs, including any legal matter that relates to the represented person's personal or lifestyle affairs. The definition provides a non-exhaustive list of examples of personal matters. Forinstance, where and with whom the represented person lives is an example of a personal matter.

supportive guardianship ordermeans an order of VCAT appointing a person as supportive guardian under clause 95. Clause 95 sets out the conditions for making a supportive guardianship order, including: the person is a person with a disability; the person does not oppose VCAT making the order; if the person is given practicable and appropriate support, the person will have decision making capacity (within the meaning of clause 4) to make a decision in relation to the personal matter or financial matter in relation to which the supportive guardianship order or the guardianship or administration order is sought.

Subclause (2) expands the definition of domestic partner.

Subclause (3) makes clear that a reference in the definition of relative to a person's sibling includes a reference to an individual who was adopted by one or both of the person's parents.

Subclause (4) provides guidance on ways in which a person may promote the personal and social wellbeing of another person for the purposes of the Bill (without limiting the ways in which this may be promoted) including by—

  • recognising the inherent dignity of the other person;
  • having regard to the other person's existing supportive relationships, religion, values and cultural and linguistic environment; and
  • respecting the confidentiality of confidential information.

Clause 4outlines the meaning of when a person has decision making capacity for the purposes of the Bill and provides guidance on determining whether a person has decision making capacity.

Subclause (1) provides that person has capacity to make a decision as to a matter (decision making capacity) if they are able to—

  • understand the information relevant to the decision and the effect of the decision. Under subclause (2), a person is taken to understand information relevant to a decision if they understand an explanation given in a way that is appropriate to their circumstances, whether by using modified language, visual aids or any other means; and
  • retain that information to the extent necessary to make the decision; and
  • use or weigh that information as part of the process of making the decision; and
  • communicate the decision, and the person's views and needs as to the decision, in some way, including by speech, gestures or other means.

Subclause (3) provides that a person is presumed to have decision making capacity unless there is evidence to the contrary.

Subclause (4) lists a number of factors to be considered in determining whether or not a person has decision making capacity, as follows—

  • a person may have decision making capacity for some matters and not others;
  • if a person does not have decision making capacity for a matter, it may be temporary and not permanent;
  • it should not be assumed that a person does not have decision making capacity for a matter on the basis of their appearance;
  • it should not be assumed that a person does not have decision making capacity merely because the person makes a decision that is, in the opinion of others, unwise. This is subject to subclause (5), which provides that the fact that a person has made or proposes to make a decision that has 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 effect of the decision;
  • a person has decision making capacity for a matter if it is possible for the person to make a decision with practicable andappropriate support.

A non-exhaustive list of examples of practicable and appropriate support is set out at the end of subclause (4)(e), including—

  • using information or formats tailored to the particular needs of the person;
  • communicating or assisting a person to communicate his or her decision;
  • giving a person additional time and discussing the matter with the person;
  • using technology that alleviates the effects of the person's disability.

Clause 5provides that, when assessing whether a person has decision making capacity, the person making the assessment must take reasonable steps to conduct the assessment at a time and in an environment in which the person's decision making capacity can be assessed most accurately.

Clause 6sets out the objectives of the Bill, including: continuing the office of the Public Advocate and providing for the appointment of a Public Advocate; enabling certain persons with a disability to have a supportive guardian, guardian or administrator appointed; enabling administration of missing persons' estates; providing consent to special procedures, medical research procedures and medical and dental treatment on behalf of persons incapable of giving consent; and providing for the registration of interstate guardianship order and administration orders.

Clause 7establishes guardianship and administration principles.

Paragraph (a) provides that every function, power, authority, discretion, jurisdiction or duty conferred or imposed by the Bill is to be exercised or performed—

  • in a way that is as least restrictive of a person's ability to decide and act as is possible in the circumstances; and
  • so that a person is given practicable and appropriate support to enable them to participate in decisions affecting the person as much as possible in the circumstances.

Paragraph (b) requires a guardian or administrator who makes a decision in relation to a matter for a represented person (other than a missing person) who does not have decision making capacity in relation to that matter to—

  • give all practicable and appropriate effect to the represented person's wishes;
  • 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;
  • act in a way that promotes the personal and social wellbeing of the represented person.

Subclause (1)(c) requires an administrator who makes a decision for a missing person to—

  • give all practicable and appropriate effect to the missing person's wishes, so far as they can be ascertained; and
  • act in a way that promotes the personal and social wellbeing of the missing person.

PART 2—THE PUBLIC ADVOCATE

Clause 8Subclause (1) makes clear that the office of Public Advocate established under section 14 of the Guardianship and Administration Act 1986 (to berepealed by this Bill)as in force immediately before the commencement of this section continues in existence.

Subclause (2) provides that the Governor in Council, on the recommendation of the Minister, may appoint a person as Public Advocate.

Clause 9sets out the terms and conditions of appointment of the Public Advocate.

Subclause (1) provides that the Public Advocate holds office for a period of 7 years and is entitled to be paid the remuneration and allowances as are fixed by the Governor in Council from time to time.

Subclause (2) makes clear that the Public Advocate, in relation to the office of Public Advocate, is not subject to the Public Administration Act 2004 (other than Part 5 of that Act, which relates to the operation of public entities).

Clause 10sets out the circumstances when the Public Advocate ceases to hold office.

Subclause (1) provides that the Public Advocate ceases to hold office if the Public Advocate:

  • resigns by notice in writing delivered to the Governor in Council; or
  • becomes insolvent under administration; or
  • is convicted of an indictable offence or of an offence which, if committed in Victoria, would be an indictable offence; or
  • is removed from office under subclause (5).

Subclause (2) provides that the Governor in Council, on the recommendation of the Minister (that is, the Attorney-General), may suspend or remove the Public Advocate from office on particular grounds, including that the Public Advocate has become incapable of performing or has neglected the duties of the office of Public Advocate.

Following suspension of the Public Advocate by the Minister, subclause (3) requires the Minister to lay before each House of Parliament a full statement of the grounds of suspension, 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.

Subclause (4) sets out the process for the removal of a Public Advocate who has been suspended from office. 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. Unless each House within that period makes such a declaration, the Governor in Council must remove the suspension and restore the Public Advocate to office.

Clause 11sets out the process for appointing an Acting Public Advocate.

Subclause (1) provides that 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.

Subclause (2) allows the Minister to 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 subclause (1); and

(b)taken an oath or made an affirmation under clause 12.

Subclause (3) provides that a person appointed as Acting Public Advocate under subclause(2) is not required to take another oath or make another affirmation under clause 12.

Subclause (4) provides that the Minister may at any time revoke an appointment under subclause (2).

Subclause (5) sets out the powers, duties and conditions of appointment of an Acting Public Advocate. An Acting Public Advocate has all the powers and duties of the Public Advocate and may exercise any of the functions of the Public Advocate. The Acting Public Advocate is entitled to be paid remuneration and allowances fixed by the Governor in Council from time to time and is not subject to the Public Administration Act 2004 (other than Part 5 of that Act, which relates to the operation of public entities).

Clause 12provides that, before taking office, the Public Advocate and any Acting Public Advocate (who has not previously taken the oath) must take an oath or make an affirmation to be administered by the Speaker of the Legislative Assembly. The oath is that the Public Advocate or Acting Public Advocate will faithfully and impartially perform the duties of office and, except in accordance with the Bill, not divulge information received or obtained under the Bill.

Clause 13sets out the functions of the Public Advocate. The functions include—

  • promoting, facilitating and encouraging the provision, development and coordination of services and facilities provided by government, community and voluntary organisations for persons with a disability;
  • arranging, coordinating and promoting informed public awareness and understanding by the dissemination of information with respect to particular matters, including:provisions of this Bill and any other legislation affecting persons with a disability; the role of VCAT and the Public Advocate; the duties, powers and functions of supportive guardians, guardians and administrators under this Act; and the protection of persons with a disability from abuse and exploitation and the protection of their rights;
  • investigating, reporting and making recommendations to the Minister on any aspect of the operation of this Act referred to the Public Advocate by the Minister.

Clause 14Subclause (1) sets out the powers and duties of the Public Advocate. These are to—

(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

(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 the Bill 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 subclause (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