Guardianship orders

Guardianship orders

A guardianship order is a legal document that gives a person (called a ‘guardian’) power to make decisions on behalf of another person about personal matters. This may include decisions about accommodation, health care and access to services. In some cases, there may be more than one guardian (called ‘joint guardians’). 

The Victorian Civil and Administrative Tribunal (VCAT) can only make an order if:

  • you do not have decision-making capacity to make decisions about personal matters because of your disability
  • you are in need of a guardian and  
  • an order will promote your personal and social wellbeing.

A disability includes a neurological disability (such as autism spectrum disorder), an intellectual disability, a mental illness, an acquired brain injury, dementia or a physical disability.

It is important to remember that you are presumed to have decision-making capacity unless VCAT decides on the evidence that you lack capacity.

Important note – Guardianship laws changed on 1 March 2020. The information on this page is about guardianship orders under the new laws. If you had a guardian appointed to make decisions on your behalf prior to 1 March 2020, you may wish to speak to a lawyer about how the recent changes to guardianship laws affect you. Find out how you can get help with guardianship and administration.

How a guardianship order works

If VCAT makes a guardianship order, a guardian can only make decisions about the personal matters that are set out in the order.

There are two types of orders:

  • a supportive guardianship order – if you agree, and VCAT decides that you are able to make personal decisions with practicable and appropriate support, then VCAT may appoint a ‘supportive guardian’. A supportive guardian cannot make decisions on your behalf. However, they can support you to make and give effect to your own decisions about personal matters.
  • a guardianship order – a guardian appointed by VCAT has the power to make decisions about the personal matters listed in the order. 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.

Role of a guardian

Even if a guardian is appointed by VCAT you still get a say about your personal matters. A guardian must give effect to your will and preferences (if known), unless this would cause you serious harm.

Your guardian must consult with you when they make decisions that affect you. The law says they must also:

  • exercise their powers in a way that is least restrictive of your ability to decide and act as is possible
  • protect you from abuse, exploitation and neglect
  • advocate on your behalf
  • act honestly, diligently and in good faith
  • support you to make your own decisions where possible
  • help you to become able to make your own decisions again.

A guardianship order does not give a guardian power to make decisions about your money. Only an administrator can help you look after your money, under an administration order.

Applying for guardianship orders

If a person is concerned that you are having difficulty making decisions about personal matters, they may ask VCAT to make an order. This could be a family member or a support worker. The person who asks VCAT to make an order is called the ‘applicant’.

The applicant fills in a VCAT application form about you. They must include details of the personal matters about which the order is sought and state their reasons for making the application. The applicant will also attach a report from a doctor or social worker that says:

  • what  disability you have
  • how your disability impairs your ability to make decisions about the personal matters listed in the application
  • why you need a guardian to make those decisions for you.

The applicant must give you a copy of the form and the report. If the applicant does not give you a copy of the form, you can ask VCAT for a copy.

The applicant and VCAT will tell you when your hearing will take place.

Hearings at VCAT about guardianship orders

VCAT must have a hearing to decide whether or not to appoint a guardian.

If VCAT is satisfied that you are capable of making personal decisions with support, then VCAT may appoint a ’supportive guardian’. A supportive guardian cannot make decisions on your behalf. However, they can support you to make and give effect to your own decisions about personal matters. VCAT can only appoint a supportive guardian if you agree.

VCAT will only make a guardianship order if there is no other less restrictive option available. Before appointing a guardian, VCAT must be satisfied that:

  • you do not have decision-making capacity to make decisions about personal matters because of your disability
  • you are in need of a guardian to make decisions about the personal matters listed in the application and
  • an order will promote your personal and social wellbeing.

You are presumed to have decision-making capacity unless VCAT decides on the evidence that you lack capacity.

You have decision-making capacity if you are able to:

  • understand the information relevant to the decision
  • understand the effect of the decision
  • retain that information long enough to make the decision
  • use or weigh that information in the process of making the decision
  • communicate that decision and your views in some way. 

You also have decision-making capacity if it is possible for you to make the decision with practical and appropriate support.

When deciding whether you are in need of a guardian, VCAT must consider:

  • your will and preferences
  • whether decisions about the personal matters for which the order is sought may be better dealt with informally or could be reasonably made through negotiation, mediation or similar means
  • the wishes of any primary carer or relative of yours and
  • the need to preserve existing relationships that are important to you.

Disagreeing with guardianship orders

If you disagree with a guardianship order being made by VCAT about you and would like more information about your what options you may have, see Changing or cancelling an order.

If you are unhappy with your guardian

A guardian must follow your will and preferences when making decisions for you unless this would cause you serious harm.

If you are not happy with your guardian's decisions, try talking to them. If that doesn't help you can make a complaint.

If your guardian is the Office of the Public Advocate you can:

  • complain to someone more senior at the Office of the Public Advocate
  • make a complaint online to the Victorian Ombudsman.

The Victorian Ombudsman can only look into complaints about government organisations, like the Office of the Public Advocate.

With other guardians, you will have to go back to VCAT and ask for a re-assessment hearing, where you can ask for a different guardian or to have the order cancelled.

It is against the law for a guardian to use a guardianship order dishonestly to obtain a financial gain for themselves or another person. In some circumstances, you may be able to seek compensation for any loss caused by a guardian who has breached their duties under the law.

Get help

Find out how you can get help with guardianship and administration.

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