What is a Guardianship Order?
A Guardianship Order is when a guardian (or administrator) is appointed to help manage the personal, legal or financial affairs of an adult with a disability.
This may include assistance with accommodation, health care and access to services.
In some cases, there may be more than one guardian (called ‘joint guardians’).
Applying for a Guardianship Order is a family law matter that will be heard at the Victorian Civil and Administrative Tribunal (VCAT). They may make a Guardianship Order if they find:
- The person has a disability and is 18 years or older
- The person is unable to make decisions about lifestyle matters
- The person needs somebody to help them make choices about lifestyle matters
Intellectual disabilities, mental illnesses, brain injuries, dementia and physical disabilities may all lead to the need for a Guardianship Order.
Who Can Apply for a Guardianship Order?
It is not necessary for the disabled person to lodge a Guardianship Order themselves.
Any person concerned about the disabled person’s capacity to make difficult decisions may ask VCAT to make an order. Usually, this would be a family member or a support worker.
According to VCAT, an application must include a report from a doctor or social worker that validates the disability. This involves confirming that a person’s ability to make reasonable decisions is impaired and that they need a guardian to make those decisions for them.
Guardianship Order Hearings
VCAT must hold a hearing to decide whether or not to appoint a guardian.
They will consider all the circumstances, taking note of the applicant’s view and the family’s wishes.
In determining who to appoint as a guardian, VCAT considers the wishes of the disabled person and family members. However, if VCAT deems there to be no suitable person, they can appoint the Public Advocate as guardian.
If the Public Advocate becomes a guardian, they can delegate the role and duties to one of its Advocate Guardians or a volunteer Community Guardian (who is trained and supported by the Public Advocate).
What Happens if a Guardianship Order is Made?
A guardian cannot make decisions based on their own opinion or preferences – they are required to act strictly in the person’s best interests. The guardian is also held accountable to VCAT for the decisions they make.
The guardian will also be required to consult with the disabled person when they make decisions, ensuring that the person is not neglected or exploited. They must also listen and encourage the person to make their own decisions where possible.
A guardianship order does not give a guardian power to make decisions about money. Only an administrator can do so, under an administration order.
There are two types of Guardian orders:
- A “plenary guardianship order” lets a guardian make all major decisions for a person like a parent would for a child
- A “limited guardianship order” that states exactly what decisions a guardian can make on behalf of a person. These decisions can include:
- Where you live
- What medical, dental and other health care you receive (with some exceptions)
- What support services you receive
- Where you work
Legal Advice
If you are considering whether a guardianship order is the best course of action for someone you care about, we can help.
Our team of family lawyers can help you to understand all of the possible outcomes and scenarios for your case by maintaining constant and compassionate communication, every step of the way.
Call us on (03) 9762 3877 or contact us online.
