Guardianship and administration in Victoria 

This article states the law of Victoria. The Guardianship and Administration Act 2019 (Vic) organises substitute decision-making around the represented person's will and preferences rather than around their welfare or their hypothetical wishes¹. That choice of standard is the single most important thing to carry out of the Act, because it differs from both New South Wales and South Australia and produces different answers on the same facts.

The general principles

Section 8(1) requires a person exercising a power, carrying out a function or performing a duty under the Act — including VCAT (s 8(2)) — to have regard to three principles.

A person with a disability who requires support to make decisions should be given practicable and appropriate support to make and participate in decisions affecting them, to express their will and preferences, and to develop the person's decision-making capacity. The will and preferences of a person with a disability "should direct, as far as practicable, decisions made for that person". And powers, functions and duties should be exercised in the way least restrictive of the person's ability to decide and act.

The first principle is unusual in naming the development of capacity as an object. Support is not only a means of getting to a decision; building capacity is part of the exercise.

The decision-making cascade

Section 9(1) governs a person making a decision for a represented person, and it is a cascade rather than a list. The steps run in order:

1. give all practicable and appropriate effect to the represented person's will and preferences, if known;
2. if those cannot be determined, give effect so far as practicable to what the decision-maker believes their will and preferences are likely to be, based on all available information, including information obtained by consulting the person's relatives, close friends and carers;
3. if likely will and preferences cannot be determined either, act in a manner that promotes the represented person's personal and social wellbeing.

Wellbeing is therefore the third resort, not the starting point. A decision-maker who begins there has skipped two steps, and an answer that argues straight to the person's best interests has misapplied the section.

Two further paragraphs matter. Section 9(1)(d) requires a decision-maker, where the represented person has a companion animal, to act in a manner recognising the animal's importance and any benefits the person obtains from it — a provision with no counterpart in the New South Wales or South Australian statutes. And s 9(1)(e) sets the override threshold: will and preferences "should only be overridden if it is necessary to do so to prevent serious harm to the represented person".

That is a demanding threshold. Disagreement with the decision, or a risk of harm short of serious harm, does not license an override.

What VCAT may order

Section 30(1) gives VCAT four order types and an express fifth option. It may make a guardianship order, an administration order, a supportive guardianship order under s 87, or a supportive administration order under s 87 — or it may make no order under the Act at all (s 30(1)(b)).

Supportive orders are the structural feature that distinguishes the Victorian scheme. They sit alongside substitute decision-making rather than replacing it, and a student comparing jurisdictions should not assume an equivalent exists elsewhere: neither the New South Wales nor the South Australian statute provides for them in this form.

The threshold for a substitute order

Section 30(2) permits a guardianship or administration order only where VCAT is satisfied of several things, and the first is drawn narrowly.

Because of the proposed represented person's disability, the person must lack decision-making capacity in relation to the particular matter — the personal matter for which a guardianship order is sought, or the financial matter for which an administration order is sought (s 30(2)(a)). Capacity is assessed matter by matter, so evidence of general incapacity does not establish the threshold for the specific order sought.

VCAT must also be satisfied that the person is in need of a guardian or administrator, with s 31 supplying the factors; and that the order "will promote the proposed represented person's personal and social wellbeing" (s 30(2)(c)). A further condition applies to administration orders for a person not residing in Victoria.

Three jurisdictions, three standards

The comparison is the most useful thing this article offers, and the divergence is real rather than verbal:

• Victoria directs decisions by the represented person's will and preferences, with wellbeing as a third-resort fallback and an override confined to preventing serious harm.
• New South Wales makes the welfare and interests of the person the paramount consideration, with the person's views taken into consideration.
• South Australia makes paramount what the person's wishes would be if they were not mentally incapacitated, with present wishes separately sought.

Three statutes, three different things at the top. A student who learns one formula and applies it nationally will state the wrong test in two jurisdictions out of three, and this is the area where that error is least visible to a reader who does not already know the answer.

Applying this in a problem question

1. Identify the specific personal or financial matter, and test capacity against that matter under s 30(2)(a).
2. Consider whether a supportive order under s 87 answers the problem before a substitute order, and note that VCAT may make no order at all.
3. Work the s 9 cascade in order: known will and preferences, then likely will and preferences after consultation, then wellbeing.
4. Do not begin at wellbeing or at best interests.
5. Where an override is proposed, apply s 9(1)(e) and require necessity to prevent serious harm.
6. Address s 9(1)(d) where a companion animal is part of the facts.

Self-check

• Have I assessed capacity in relation to the particular matter rather than generally?
• Have I run the s 9 cascade in order rather than starting at wellbeing?
• Have I applied the serious harm threshold before overriding will and preferences?
• Have I avoided importing the New South Wales or South Australian formula into a Victorian problem?