Guardianship and Administration Act 1986 (Vic)

Version No. 089

Guardianship and Administration Act 1986

No. 58 of 1986

Version incorporating amendments as at

23 October 2019

TABLE OF PROVISIONS

Section  Page

Part 1—Preliminary

1Purpose

2Commencement

3Definitions

4Objects of Act

Part 3—The Public Advocate

14The Public Advocate

15Functions of the Public Advocate

16Powers and duties of the Public Advocate

17Staff of office of the Public Advocate

18Delegation

18APowers of inspection

Part 4—Guardianship orders

Division 1—Application for guardianship order

19Application for guardianship order

20Who is entitled to notice of an application?

21Date for hearing

Division 2—Appointment of guardian

22Guardianship order

23Persons eligible as guardians

Division 3—Powers and duties of guardian

24Authority of plenary guardian

25Authority of limited guardian

26Power to enforce guardianship order

27Special powers in respect of persons with a disability

28Exercise of authority by guardian

28AExercise of authority by guardian under Medical Treatment Planning and Decisions Act 2016

29Ancillary powers of guardian

30Guardian may seek advice

31Notice of death of represented person

Division 4—Temporary orders

32Application for temporary order

33Temporary order

Division 5—Appointment of alternative guardian

34Appointment of alternative guardian

35Authority of alternative guardian

Part 4A—Special medical procedures

Division 1—Preliminary

36Persons to whom Part applies

38Best interests

Division 2—Consent

39Tribunal may consent to special medical procedure

40Effect of consent

41Refusal of special medical procedure under an advance care directive

42Unlawful consent to special medical procedure an offence

Division 4—Applications to the Tribunal

42BApplication for consent of Tribunal to special medical procedure

42DDate for hearing

42EConsent of Tribunal to special medical procedure

42FTribunal may confer authority to consent to continuing or further special medical procedure

42GSpecial medical procedure without consent of Tribunal an offence

Part 5—Administration orders

Division 1—Application for administration order

43Application for administration order

44Who is entitled to notice of an application?

45Date for hearing

Division 2—Appointment of administrator

46Appointment of administrator

47Persons eligible as administrators

47ARemuneration of professional administrator

47BPayment of costs and expenses to administrator or former administrator from estate

Division 3—Powers and duties of administrator

48Power of administrator

49Exercise of power by administrator

50Ancillary powers of administrator

50APower to make gifts

51Powers of investment

52Restriction on powers of represented person to enter into contracts etc.

53Interest of represented person in property not to be altered by sale or other disposition of property

53AException to ademption applies regardless of testamentary capacity

54Tribunal may open will

55Administrator may seek advice

56Application to the Tribunal by a creditor etc.

57Power to administrator to act until notice of discharge etc. received

58Accounts

58AAGuardianship and Administration Fund

58ABNotice of death of represented person

58APower to make regulations setting fees

Division 3A—Additional powers and duties of administrators

58BPowers and duties in relation to represented persons

58CExercise of certain powers

58DAction upon a person ceasing to be a represented person

58ERepresented person entitled to inspection of accounts

58FSale of personal effects if unclaimed within 2 years from date of discharge

58GPower to open will

Division 4—Temporary orders

59Application for temporary order

60Temporary order

Part 5A—Administration orders in respect of the estate of a missing person

60AAApplication for administration in respect of the estate of a missing person

60ABAppointment of administrator in respect of the estate of a missing person

60ACAdministrator to notify Tribunal

60ADOrder to remove an administrator

60AEDuration of order

60AFApplication for temporary order

60AGTemporary order

60AHOperation of Part

60AIApplication of Parts 5, 6 and 6A

60AJApplication of objects of this Act

Part 6—Rehearings and reassessment of orders

Division 1—Rehearings

60AApplication for rehearing

60BParties and notice

60CRehearing

60DEffect of first instance order pending rehearing

Division 2—Reassessment of orders

61Reassessment

62Who is entitled to notice of a reassessment?

63Order after reassessment

Part 6A—Interstate orders

63AApplication of Part

63BDefinitions

63CCorresponding laws and orders

63DMinisterial agreements

63ERegistration of interstate orders

63FReassessment of interstate orders

63GReciprocal arrangements under the State Trustees (State Owned Company) Act 1994

Part 7—General provisions

66Matters before a Court

67Effect of setting aside administration order on previous actions of administrator

70Immunity from suit

73Judicial notice

79Audit

80General penalty

81Offences by bodies corporate

82Regulations

Part 8—Amendments to the Public Trustee Act 1958

83Principal Act

85Existing protected persons

Part 9—Transitional provision

87Rehearings and reassessments under Part 6

Schedules

Schedule 3—Provisions with respect to the Public Advocate

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Endnotes

1      General information

2      Table of Amendments

3      Amendments Not in Operation

4      Explanatory details

Version No. 089

Guardianship and Administration Act 1986

No. 58 of 1986

Version incorporating amendments as at

23 October 2019

The Parliament of Victoria enacts as follows:

Part 1—Preliminary

1Purpose

(1)The purpose of this Act is to enable persons with a disability to have a guardian or administrator appointed when they need a guardian or administrator.

(2)It is also the purpose of this Act to enable the making of administration orders and temporary administration orders in respect of the estate of a missing person.

2Commencement

This Act comes into operation on a day or days to be proclaimed.

3Definitions

(1)In this Act—

administration order means—

(a)an order of the Tribunal appointing a person as an administrator of the estate of a person under section 46; or

(b)a temporary order of the Tribunal under section 60; or

(c)an order of the Tribunal appointing a person as an administrator or temporary administrator of the estate of a missing person under Part 5A;

*                *                *                *                *

administrator means the person named as administrator in an administration order;

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*                *                *                *                *

*                *                *                *                *

determination in relation to the Tribunal, includes order, direction, consent, advice and approval;

disability, in relation to a person, means intellectual impairment, mental disorder, 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 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);

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*                *                *                *                *

*                *                *                *                *

guardian means (except in section 58C(2))—

(a)the Public Advocate, person or body named as a plenary guardian or limited guardian in a guardianship order; or

(b)a person who becomes a guardian under section 35;

*                *                *                *                *

guardianship order means—

(a)an order of the Tribunal appointing a person as plenary guardian or limited guardian under section 22; or

(b)an order of the Tribunal appointing a person as an alternative guardian under section 34; or

(c)a temporary order of the Tribunal made under section 33;

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income includes rents and profits;

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*                *                *                *                *

*                *                *                *                *

medical treatment decision maker has the same meaning as it has in the Medical Treatment Planning and Decisions Act 2016;

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*                *                *                *                *

nearest relative in relation to a person means the spouse or domestic partner of that person or, where that person does not have a spouse or domestic partner, the relative of that person first listed in the following paragraphs who has attained the age of 18 years, the elder or eldest of two or more relatives described in any paragraph being preferred to either or any of those relatives regardless of sex—

(a)son or daughter;

(b)father or mother;

(c)brother or sister;

(d)grandfather or grandmother;

(e)grandson or granddaughter;

(f)uncle or aunt;

(g)nephew or niece;

*                *                *                *                *

prescribed means prescribed by the regulations;

*                *                *                *                *

primary carer means any person who is primarily responsible for providing support or care to a person;

principal registrar means principal registrar of the Tribunal;

Public Advocate means the person appointed as the Public Advocate under Part 3;

*                *                *                *                *

registered practitioner means—

(a)a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); 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;

*                *                *                *                *

*                *                *                *                *

represented person means—

(a)any person in respect of whom—

(i)a guardianship order is in effect; or

(ii)an administration order under Part 5 is in effect; or

(iii)both a guardianship order and an administration order under Part 5 are in effect; or

(b)any person whose estate is subject to an administration order or temporary administration order under Part 5A;

Note

See also section 60AH, which restricts the definition of represented person in relation to a person whose estate is subject to an order under Part 5A.

special medical 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

(c)any removal of tissue for the purposes of transplantation to another person; or

(d)any other medical treatment within the meaning of the Medical Treatment Planning and Decisions Act 2016 that is prescribed to be a special medical procedure for the purposes of Part 4A;

spouse of a person means a person to whom the person is married;

*                *                *                *                *

State Trustees has the same meaning as in the State Trustees (State Owned Company) Act 1994;

Tribunal means Victorian Civil and Administrative Tribunal established by the Victorian Civil and Administrative Tribunal Act 1998;

working day means a day other than a Saturday, a Sunday or a public holiday appointed under the Public Holidays Act 1993.

(2)A reference in the definition of nearest relative in subsection (1) to a person's brother or sister—

(a)is a reference to a brother or sister whether of the full or half blood; and

(b)includes a reference to a person who was adopted by one or both of the first‑mentioned person's parents.

*                *                *                *                *

(4)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

(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.

4Objects of Act

(1)The objects of this Act are—

*                *                *                *                *

(b)to provide for the appointment of a Public Advocate; and

(c)to enable the making of guardianship orders and administration orders; and

(ca)to enable the making of administration orders and temporary administration orders in respect of the estate of a missing person; and

(d)to ensure that persons with a disability and represented persons are informed of and make use of the provisions of this Act; and

*                *                *                *                *

(f)to provide for consent to special medical procedures on behalf of persons incapable of giving consent to those procedures; and

(g)to provide for the registration of interstate guardianship orders and administration orders.

(2)It is the intention of Parliament that the provisions of this Act be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that—

(a)the means which is the least restrictive of a person's freedom of decision and action as is possible in the circumstances is adopted; and

(b)the best interests of a person with a disability are promoted; and

(c)the wishes of a person with a disability are wherever possible given effect to.

*                *                *                *                *

Part 3—The Public Advocate

14The Public Advocate

(1)There is to be appointed a Public Advocate.

(2)Schedule 3 has effect with respect to the Public Advocate.

15Functions of the Public Advocate

The functions of the Public Advocate are—

(a)to promote, facilitate and encourage the provision, development and co-ordination of services and facilities provided by government, community and voluntary organisations for persons with a disability with a view to—

(i)promoting the development of the ability and capacity of persons with a disability to act independently; and

(ii)minimizing the restrictions on the rights of persons with a disability; and

(iii)ensuring the maximum utilization by persons with a disability of those services and facilities; and

(iv)encouraging the involvement of voluntary organizations and relatives, guardians and friends in the provision and management of those services and facilities; and

(b)to support the establishment of organizations involved with persons with a disability, relatives, guardians and friends for the purpose of—

(i)instituting citizen advocacy programs and other advocacy programs; and

(ii)undertaking community education projects; and

(iii)promoting family and community responsibility for guardianship; and

(c)to arrange, co-ordinate 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 the Tribunal and the Public Advocate; and

(iii)the duties, powers and functions of 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; and

(e)any function conferred by or under any other Act.

16Powers and duties of the Public Advocate

(1)The Public Advocate may—

(a)where appointed by the Tribunal be—

(i)a guardian (whether plenary or limited); or

(ii)an alternative guardian (whether plenary or limited); and

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(b)make an application to the Tribunal for the appointment of a guardian or administrator or the rehearing or reassessment of a guardianship order or an administration order; and

*                *                *                *                *

(d)submit a report to the Tribunal on any matter referred to the Public Advocate for a report by the Tribunal; and

(e)seek assistance in the best interests of any person with a disability from any government department, institution, welfare organization or service provider; and

(f)make representations on behalf of or act for a person with a disability; and

(g)give advice to any person as to the provisions of this Act and in respect of applications for guardianship or administration; and

(h)investigate any complaint or allegation that a person is under inappropriate guardianship or is being exploited or abused or in need of guardianship; and

(ha)for the purposes of—

(i)an investigation under paragraph (h); or

(ii)the provision of a report under clause 35, 42 or 48 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998—

require (subject to subsection (1A)) a person, government department, public authority, service provider, institution or welfare organisation to provide information; and

(i)provide information for persons who are or propose to be guardians; and

(j)report and make recommendations to the Tribunal on behalf of any person with a disability in any proceeding under the Equal Opportunity Act 2010; and

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(k)perform any other function and exercise any other power conferred on him or her by this or any other Act.

(1A)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)(ha) to provide if providing the information would tend to incriminate the person.

(2)Where 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 his or her best endeavours to find an appropriate person to be appointed as the guardian.

17Staff of office of the Public Advocate

(1)Any employees that are necessary to enable the functions of the Public Advocate to be properly carried out may be employed under Part 3 of the Public Administration Act 2004.

*                *                *                *                *

18Delegation

(1)The Public Advocate may by an instrument of delegation delegate to an officer or employee employed in the office of the Public Advocate under section 17 any power, duty or function of the Public Advocate other than this power of delegation.

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(2)The Public Advocate may with the approval of the Tribunal by instrument of delegation delegate any or all of the Public Advocate's powers and duties as guardian to an individual or organization specified in the instrument of delegation.

18APowers of inspection

(1)The Public Advocate is entitled to 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.

(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;

(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;

(ca)a short-term accommodation and assistance dwelling within the meaning of section 3(1) of the Disability Act 2006;

(cb)an SDA enrolled dwelling in respect of which an SDA resident resides under an SDA residency agreement within the meaning of the Residential Tenancies Act 1997;

(d)a prescribed premises within the meaning of Part 9 of the Mental Health Act 2014;

(e)a supported residential service within the meaning of the Supported Residential Services (Private Proprietors) Act 2010.

Part 4—Guardianship orders

Division 1—Application for guardianship order

19Application for guardianship order

(1)Any person may apply to the Tribunal for an order appointing—

(a)a plenary guardian; or

(b)a limited guardian—

in respect of a person with a disability who has attained the age of 18 years or to take effect upon the person attaining the age of 18 years.

(2)In addition to any other parties, the following are parties to a proceeding on an application under subsection (1)—

(a)the person in respect of whom the application is made; and

(b)the person proposed as guardian.

*                *                *                *                *

20Who is entitled to notice of an application?

Each of the following is entitled to notice of the making of an application for a guardianship order, notice of the hearing of the application and notice of any order made by the Tribunal in respect of the application—

(a)the nearest relative available of the person in respect of whom the application is made, not being—

(i)the applicant; or

(ii)the person proposed as guardian; or

(iii)a person referred to in paragraph (d);

(b)the primary carer of the person in respect of whom the application is made;

(c)the Public Advocate;

(d)any administrator of the estate of the person in respect of whom the application is made[1].

21Date for hearing

The Tribunal must commence to hear an application under section 19 within 30 days after the day on which the application is received by the Tribunal.

Division 2—Appointment of guardian

22Guardianship order

(1)If the Tribunal is satisfied that the person in respect of whom an application for an order appointing a guardian is made—

(a)is a person with a disability; and

(b)is unable by reason of the disability to make reasonable judgments in respect of all or any of the matters relating to her or his person or circumstances; and

(c)is in need of a guardian—

the Tribunal may make an order appointing a plenary guardian or a limited guardian in respect of that person.

(2)In determining whether or not a person is in need of a guardian, the Tribunal must consider—

(a)whether the needs of the person in respect of whom the application is made could be met by other means less restrictive of the person's freedom of decision and action; and

(ab)the wishes of the proposed represented person, so far as they can be ascertained; and

(b)the wishes of any nearest relatives or other family members of the proposed represented person; and

(c)the desirability of preserving existing family relationships.

(3)The Tribunal cannot make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the person in respect of whom the application is made.

(4)The Tribunal cannot make an order appointing a plenary guardian unless it is satisfied that a limited guardianship order would be insufficient to meet the needs of the person in respect of whom the application is made.

(5)Where the Tribunal makes an order appointing a limited guardian in respect of a person the order made must be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances.

23Persons eligible as guardians

(1)The Tribunal may appoint as a plenary guardian or limited guardian any person who has attained the age of 18 years and consents to act as guardian if the Tribunal is satisfied that that person—

(a)will act in the best interests of the proposed represented person; and

(b)is not in a position where the person's interests conflict or may conflict with the interests of the proposed represented person; and

(c)is a suitable person to act as the guardian of the proposed represented person.

(2)In determining whether a person is suitable to act as the guardian of a represented person, the Tribunal must take into account—

(a)the wishes of the proposed represented person, so far as they can be ascertained; and

(b)the desirability of preserving existing family relationships; and

(c)the compatibility of the person proposed as guardian with the proposed represented person and with the administrator (if any) of the proposed represented person's estate; and

(d)whether the person proposed as guardian will be available and accessible to the proposed represented person so as to fulfil the requirements of guardianship of that person.

(3)Where a parent or nearest relative of a proposed represented person is proposed as the guardian that person is not by virtue only of the fact that that person is a parent or nearest relative to be taken to be in a position where the person's interests conflict or may conflict with those of the proposed represented person.

(4)Where it appears to the Tribunal that—

(a)the person in respect of whom the application is made is a person in respect of whom an order could be made under section 22; and

(b)no other person fulfils the requirements of subsection (1) for appointment as the guardian of that person—

the Tribunal may appoint the Public Advocate as the plenary guardian or limited guardian of that person.

(5)This section does not prevent the Tribunal from appointing persons (including the Public Advocate and any other person) as joint plenary guardians or joint limited guardians of the proposed represented person if—

(a)each person fulfils the requirements of subsection (1); and

(b)the Tribunal considers it appropriate to do so.

Division 3—Powers and duties of guardian

24Authority of plenary guardian

(1)A guardianship order appointing a plenary guardian confers on the plenary guardian in respect of the represented person all the powers and duties which the plenary guardian would have if he or she were a parent and the represented person his or her child.

(2)Without limiting subsection (1) an order appointing a plenary guardian confers on the person named as plenary guardian the power—

(a)to decide where the represented person is to live, whether permanently or temporarily; and

(b)to decide with whom the represented person is to live; and

(c)to decide whether the represented person should or should not be permitted to work and, if so—

(i)the nature or type of work; and

(ii)for whom the represented person is to work; and

(iii)matters related thereto; and

(d)except as otherwise provided in Part 4A or in the Medical Treatment Planning and Decisions Act 2016, to consent to any health care that is in the best interests of the represented person; and

(e)to restrict visits to a represented person to such extent as may be necessary in his or her best interests and to prohibit visits by any person if the guardian reasonably believes that they would have an adverse effect on the represented person.

*                *                *                *                *

(4)Where a decision is made, action taken, consent given or thing done by a plenary guardian under an order made under Division 2 the decision, action, consent or thing has effect as if it had been made, taken, given or done by the represented person and the represented person had the legal capacity to do so.

25Authority of limited guardian

(1)If the Tribunal makes an order under Division 2 appointing a limited guardian, the guardianship order confers on the person named as limited guardian such one or more of the powers and duties in respect of the represented person that are conferred on a plenary guardian under this Act as the Tribunal may specify in the order.

*                *                *                *                *

(3)Where a decision is made, action taken, consent given or thing done by a limited guardian under an order of the Tribunal under Division 2, the decision, action, consent or thing has effect as if it had been made, taken, given or done by the represented person and the represented person had the legal capacity to do so.

26Power to enforce guardianship order

(1)If, having regard to the circumstances of the case, the Tribunal considers it appropriate to do so the Tribunal may—

(a)when making a guardianship order under Division 2 or 4, specify in the order; or

(b)at any time while a guardianship order under Division 2 or 4 is in force, make an order specifying—

that the person named as plenary guardian or limited 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.

(1A)If the Tribunal makes an order under subsection (1) empowering a guardian or a specified person to take such measures or actions as are specified in the order, the Tribunal must hold a hearing to reassess that order as soon as practicable after the making of that order but within 42 days of making that order.

(2)Where a guardian or other person specified in the order under subsection (1) takes any measure or action specified in the order in the belief that—

(a)the measure or action is in the best interests of the represented person; and

(b)it is reasonable to take that measure or action in the circumstances—

the guardian or other person 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 that measure or action.

(3)Subsection (1) does not limit section 24 or 25.

27Special powers in respect of persons with a disability

(1)If the Tribunal has received information on oath or by affirmation that a person with a disability in respect of whom an application has been made under section 19—

(a)is being unlawfully detained against her or his will; or

(b)is likely to suffer serious damage to her or his physical, emotional or mental health or well-being unless immediate action is taken—

the Tribunal may by order empower the Public Advocate or some other person specified in the order to visit the person with a disability in the company of a police officer for the purpose of preparing a report for the Tribunal.

(2)If after receiving a report under subsection (1) the Tribunal is satisfied that subsection (1)(a) or (1)(b) applies the Tribunal may make an order enabling the person with a disability to be taken to a place specified in the order for assessment and placement until the application under section 19 is heard.

(3)A police officer acting under an order made under subsection (1) 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.

(4)A person must not delay or obstruct a person who is acting under an order under this section.

Penalty:20 penalty units.

(5)In this section—

police officer has the same meaning as in the Victoria Police Act 2013.

28Exercise of authority by guardian

(1)A guardian must act in the best interests of the represented person.

(2)Without limiting subsection (1), a guardian acts in the best interests of a represented person if the guardian acts as far as possible—

(a)as an advocate for the represented person; and

(b)in such a way as to encourage the represented person to participate as much as possible in the life of the community; and

(c)in such a way as to encourage and assist the represented person to become capable of caring for herself or himself and of making reasonable judgments in respect of matters relating to her or his person; and

(d)in such a way as to protect the represented person from neglect, abuse or exploitation; and

(e)in consultation with the represented person, taking into account, as far as possible, the wishes of the represented person.

28AExercise of authority by guardian under Medical Treatment Planning and Decisions Act 2016

A guardian making a medical treatment decision for a person in accordance with the Medical Treatment Planning and Decisions Act 2016 is taken to be complying with section 28 of this Act.

Note

The Medical Treatment Planning and Decisions Act 2016 sets out the scheme under which a guardian must make medical treatment decisions, except those concerning special medical procedures.

29Ancillary powers of guardian

A guardian 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.

30Guardian may seek advice

(1)A guardian may apply for the advice of the Tribunal upon any matter relating to the scope of the guardianship order or the exercise of any power by the guardian under the guardianship order.

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(3)The Tribunal may—

(a)approve or disapprove of any act proposed to be done by the guardian; and

(b)give such advice as it considers appropriate; and

(c)make any order it considers necessary.

(4)An action does not lie against a guardian on account of an act or thing done or omitted by the guardian under any order or on the advice of the Tribunal made or given under this section unless in representing the facts to the Tribunal the guardian has been guilty of fraud, wilful concealment or misrepresentation.

31Notice of death of represented person

Where a represented person in respect of whom a guardian has been appointed, dies, the guardian must report the death in writing to the Tribunal without delay.

Division 4—Temporary orders

32Application for temporary order

(1)Any person may apply to the Tribunal for a temporary order appointing a guardian of a person in respect of whom an application could be made under section 19.

(2)An application may be made under subsection (1) whether or not an application has been made to the Tribunal under section 19.

(3)Each person who would be entitled to notice under section 20 of an application under section 19 is entitled to notice of the making of an application under this section, notice of the hearing of the application and notice of any order made by the Tribunal in respect of the application.

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33Temporary order

(1)If the Tribunal is satisfied that the person in respect of whom an application has been made under section 32—

(a)is a person with a disability; and

(b)is unable to make reasonable judgments in respect of all or any of the matters relating to her or his person or circumstances; and

(c)is in need of a guardian—

the Tribunal may make a temporary order appointing any person eligible to be appointed under section 23 as the plenary guardian or limited guardian of that person.

(2)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.

(3)The Tribunal must hold a hearing to determine whether a guardianship order should be made under section 22 as soon as practicable after the making of a temporary order but within 42 days of making that order.

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Division 5—Appointment of alternative guardian

34Appointment of alternative guardian

(1)When making or reassessing a guardianship order, or at any time when a guardianship order is in force, the Tribunal may make an order appointing an alternative guardian if—

(a)the person proposed as an alternative guardian has consented to act as guardian of the represented person in the event of the death, absence or incapacity of the original guardian; and

(b)the Tribunal is satisfied that the persons to whom notice of the hearing of a guardianship order is given under section 20 have had sufficient notice of the willingness of the person proposed as alternative guardian to act as alternative guardian.

(2)Section 23 (other than subsection (5)) applies to and in relation to the person proposed as alternative guardian as if that person were the proposed guardian.

35Authority of alternative guardian

(1)If an alternative guardian is appointed, the alternative guardian takes over the office of plenary guardian or limited guardian (as the case may be) without further proceedings immediately upon the death or during the period of absence or incapacity of the original guardian.

(2)The alternative guardian must notify the Tribunal in writing of the death, absence or incapacity of the original guardian and send to the Tribunal evidence of the death, absence or incapacity of the original guardian.

(3)Where an alternative guardian takes over the office of a guardian, the alternative guardian has the same powers and duties with respect to the represented person as the guardian had immediately before the guardian's death, absence or incapacity.

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Part 4A—Special medical procedures

Division 1—Preliminary

36Persons to whom Part applies

(1)In this Part, patient means a person with a disability who—

(a)is of or over the age of 18 years; and

(b)is incapable of giving consent, within the meaning of subsection (2), to the carrying out of a special medical procedure, 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 medical procedure if the person—

(a)is incapable of understanding the general nature and effect of the proposed procedure; or

(b)is incapable of indicating whether or not he or she consents or does not consent to the carrying out of the proposed procedure.

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38Best interests

(1)In this Part, for the purposes of determining whether a special medical procedure 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; and

(b)the wishes of any nearest relative or any other family members of the patient; and

(c)the consequences to the patient if the procedure is not carried out; and

(d)any alternative treatment available; and

(e)the nature and degree of any significant risks associated with the procedure or any alternative treatment; and

(f)whether the procedure to be carried out is only to promote and maintain the health and well-being of the patient; and

(g)any other matters prescribed by the regulations.

(2)For the purposes of subsection (1)(b), if the patient—

(a)is likely to be capable, within a reasonable time, of giving consent to the carrying out of a special medical procedure; and

(b)objects to—

(i)a relative referred to in paragraphs (a) to (g) of the definition of nearest relative in section 3(1); or

(ii)another family member (other than the patient's spouse or domestic partner)—

being involved in decisions concerning a special medical procedure to be carried out on the patient—

that relative or family member is taken not to be the nearest relative or a family member of the patient.

Division 2—Consent

39Tribunal may consent to special medical procedure

Subject to Division 4, consent to the carrying out of a special medical procedure may be given by the Tribunal.

40Effect of consent

A consent given in accordance with this Part in respect of the carrying out of a special medical procedure on a patient has effect as if—

(a)the patient had been capable of giving consent to the carrying out of the procedure; and

(b)the procedure had been carried out with the consent of the patient.

41Refusal of special medical procedure under an advance care directive

A medical research practitioner must not carry out a special medical procedure under this Part if the patient has refused consent to the procedure under an instructional directive within the meaning of the Medical Treatment Planning and Decisions Act 2016.

42Unlawful consent to special medical procedure an offence

A person must not—

(a)purport to give consent to the continuation of a special medical procedure or a further special medical procedure under section 42F on behalf of a patient; or

(b)represent to a registered practitioner that he or she is authorised to give such consent—

knowing that he or she is not authorised to give such consent or without reasonable grounds for believing that he or she is authorised to give such consent.

Penalty:20 penalty units.

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Division 4—Applications to the Tribunal

42BApplication for consent of Tribunal to special medical procedure

(1)An application for the consent of the Tribunal to the carrying out of any special medical procedure on a patient may be made by—

(a)the patient's medical treatment decision maker; or

(b)any person who, in the opinion of the Tribunal, has a special interest in the affairs of the patient.

(2)If an application for consent is made under this Division, the patient is a party to the proceedings.

(3)The Tribunal must give notice of an application, of the hearing of the application and of any order, directions or advisory opinion of the Tribunal in respect of the application to—

(a)the Public Advocate; and

(b)any other person whom the Tribunal considers has a special interest in the affairs of the patient.

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42DDate for hearing

The Tribunal must commence to hear an application under this Division within 30 days after the day on which the application is received by the Tribunal.

42EConsent of Tribunal to special medical procedure

On hearing an application under this Division, the Tribunal may consent to the carrying out of a special medical procedure only if it is satisfied that—

(aa)the patient has not given an instructional directive (within the meaning of the Medical Treatment Planning and Decisions Act 2016) in relation to the special medical procedure; and

(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

(ba)if the patient has given a values directive (within the meaning of the Medical Treatment Planning and Decisions Act 2016), that the carrying out of the special medical procedure would not be inconsistent with that directive; and

(c)the special medical procedure would be in the patient's best interests.

42FTribunal may confer authority to consent to continuing or further special medical procedure

(1)If the Tribunal consents to the carrying out of a special medical procedure on a patient, the Tribunal may confer on the patient's medical treatment decision maker authority to consent to—

(a)the continuation of the special medical procedure; or

(b)the carrying out of any further special medical procedure of a similar nature.

(2)The Tribunal may confer an authority under this section only at the request, or with the consent, of the patient's medical treatment decision maker.

(3)If a person on whom the Tribunal has conferred authority under this section ceases to be the patient's medical treatment decision maker, the Tribunal, on the application of the patient's new medical treatment decision maker, may confer authority under this section on that person.

(4)The Tribunal 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 the Tribunal confers an authority under this section, a person may request the consent of the patient's medical treatment decision maker to the carrying out of the special medical procedure.

42GSpecial medical procedure without consent of Tribunal an offence

(1)Subject to section 53 of the Medical Treatment Planning and Decisions Act 2016, a registered practitioner must not carry out, or supervise the carrying out of, any special medical procedure on a patient unless—

(a)the Tribunal has consented to the carrying out of that procedure; or

(b)the patient's medical treatment decision maker, with authority to consent to the continuation of the procedure or a further special medical procedure under section 42F, 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 medical 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 whom the registered practitioner believed on reasonable grounds was authorised to give such consent; or

(b)a purported consent given by another person whom the registered practitioner believed on reasonable grounds was 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.

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Part 5—Administration orders

Division 1—Application for administration order

43Application for administration order

(1)Any person may apply to the Tribunal for an order appointing an administrator in respect of the estate of a person with a disability who has attained the age of 18 years or to take effect upon the person attaining the age of 18 years.

(2)Where a person with a disability who has attained the age of 18 years does not reside in Victoria but has an estate the whole or part of which is in Victoria, any person may apply to the Tribunal for an order appointing an administrator in respect of so much of the estate as is in Victoria.

(3)In addition to any other parties, the following are parties to a proceeding on an application under subsection (1)—

(a)the person in respect of whom the application is made; and

(b)the person proposed as administrator.

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44Who is entitled to notice of an application?

Each of the following is entitled to notice of the making of an application for an order appointing an administrator, notice of the hearing of the application and notice of any order made by the Tribunal in respect of the application—

(a)the nearest relative available of the person in respect of whom the application is made;

(b)the primary carer (if any) of the person in respect of whom the application is made;

(c)the Public Advocate;

(d)any guardian of the person in respect of whom the application is made;

(e)any person who has advised the Tribunal of an interest in the person in respect of whom the application is made or in his or her estate.

45Date for hearing

The Tribunal must commence to hear an application under section 43 within 30 days after the day on which the application is received by the Tribunal.

Division 2—Appointment of administrator

46Appointment of administrator

(1)If the Tribunal is satisfied that—

(a)the person in respect of whom an application for an order appointing an administrator is made—

(i)is a person with a disability; and

(ii)is unable to make reasonable judgments in respect of the matters relating to all or any part of her or his estate by reason of the disability; and

(iii)is in need of an administrator of her or his estate; and

(b)in the case of an application in respect of a person who does not reside in Victoria, State Trustees has not been authorised under section 12 of the State Trustee (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 respect of whom the application is made—

the Tribunal may make an order appointing an administrator of that person's estate.

(2)In determining whether or not a person is in need of an administrator of her or his estate, the Tribunal must consider—

(a)whether the needs of the person in respect of whom the application is made could be met by other means less restrictive of the person's freedom of decision and action; and

(b)the wishes of the person in respect of whom the application is made, so far as they can be ascertained.

(3)The Tribunal cannot make an order under subsection (1) unless it is satisfied that the order would be in the best interests of the person in respect of whom the application is made.

(4)Where the Tribunal makes an order appointing an administrator of a person's estate, the order made must be that which is the least restrictive of that person's freedom of decision and action as is possible in the circumstances.

47Persons eligible as administrators

(1)The Tribunal may appoint as an administrator of the estate of a proposed represented person—

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(c)any person who consents to act as administrator if the Tribunal is satisfied that—

(i)the person will act in the best interests of the proposed represented person; and

(ii)the person is not in a position where the person's interests conflict or may conflict with the interests of the proposed represented person; and

(iii)the person is a suitable person to act as the administrator of the estate of the proposed represented person; and

(iv)the person has sufficient expertise to administer the estate or there is a special relationship or other special reason why that person should be appointed as administrator.

(2)In determining whether a person is suitable to act as the administrator of the estate of a proposed represented person, the Tribunal must take into account—

(a)the wishes of the proposed represented person, so far as they can be ascertained; and

(b)the compatibility of the person proposed as administrator with the proposed represented person and with the guardian (if any) of the proposed represented person; and

(c)whether the person was a member of the Tribunal as constituted for a proceeding under this Act.

(2A)The Tribunal may appoint a person who was at any time a member of the Tribunal as constituted for a proceeding under this Act only if the Tribunal considers that in the circumstances it is appropriate for the person to act as an administrator.

(3)Where a parent or nearest relative of the proposed represented person is proposed as the administrator, that person is not by virtue only of the fact that that person is a parent or nearest relative to be taken to be in a position where the person's interests conflict or may conflict with those of the proposed represented person.

(4)If the Tribunal makes an order—

(a)appointing State Trustees as administrator of the estate of a proposed represented person; and

(b)specifying that the administrator is to have powers and duties which are more limited than those referred to in Division 3A—

the Tribunal must give State Trustees a copy of the order as soon as practicable after it is made.

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47ARemuneration of professional administrator

(1)An administrator other than an administrator 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 unless the Tribunal otherwise specifies in the administration order.

(2)The remuneration to which an administrator who carries on a business of, or including, the administration of estates is entitled is to be approved by the Tribunal.

(3)Despite subsection (2), the remuneration approved by the Tribunal in respect of 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)For the purposes of this section—

licensed trustee company has the same meaning as in section 601RAA of the Corporations Act.

47BPayment of costs and expenses to administrator or former administrator from estate

(1)If, in any proceeding, a court or tribunal orders that an administrator pay any costs of the proceeding, the court or tribunal may order that the administrator pay, or be reimbursed for, all or part of those costs from the estate administered by the administrator.

(2)In any proceeding, a court or tribunal may order that an administrator be reimbursed for all or part of the administrator's costs of the proceeding from the estate administered by the administrator.

(3)A court or tribunal may order that the costs incurred in administering an estate by a person appointed as an administrator (including the costs of any proceeding) may be paid out of, or reimbursed from, the estate, 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 55 or otherwise, and for that purpose, a reference in section 55 to an administrator is taken to include a reference to a person whose appointment as an administrator has been revoked or quashed.

Division 3—Powers and duties of administrator

48Power of administrator

(1)An administrator has the powers and duties conferred by this Division and such of the powers and duties referred to in Division 3A as the Tribunal may specify in the order.

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(3)Where a decision is made, action taken, consent given or thing done by an administrator under an order made by the Tribunal the decision, action, consent or thing has effect as if it had been made, taken, given or done by the represented person and the represented person had the legal capacity to do so.

(4)Upon the death of a represented person any order appointing an administrator of that person's estate under this Act lapses and the law relating to the administration of a deceased person's estate applies accordingly.

49Exercise of power by administrator

(1)An administrator must act in the best interests of the represented person.

(2)Without limiting subsection (1) an administrator acts in the best interests of the represented person if the administrator acts as far as possible—

(a)in such a way as to encourage and assist the represented person to become capable of administering the estate; and

(b)in consultation with the represented person, taking into account as far as possible the wishes of the represented person.

50Ancillary powers of administrator

(1)An 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 administrator.

(2)This Act does not confer on an administrator the power to execute a will in the name of a represented person.

50APower to make gifts

(1)An administrator may make a gift of the represented person's property only if—

(a)the gift's value is not more than what is reasonable in all the circumstances and, in particular, the represented person's financial circumstances; and

(b)the gift is—

(i)to a relative or close friend of the represented person and is of a seasonal nature or for a special event (including, for example, a birth or marriage); or

(ii)a type of donation that the represented person made when he or she had the capacity to do so or might reasonably be expected to make.

(2)The administrator or a charity with which the administrator has a connection is not precluded from receiving such a gift.

(3)The administrator must notify (in writing) the Tribunal if the value of the gift, or total value of the gifts, of the represented person's property to the administrator, or a charity with which the administrator has a connection, is $100 or more.

51Powers of investment

(1)Except as provided in section 53 or any order of the Tribunal, an administrator other than State Trustees in respect of any part of the estate of the represented person of which the administrator is the administrator—

(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 represented 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

(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.

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52Restriction on powers of represented person to enter into contracts etc.

(1)Where the Tribunal has made an administration order the represented person whilst a represented person or until the Tribunal revokes that order is, to the extent that the represented person's estate is under the control of the administrator, deemed incapable of dealing with, transferring, alienating or charging her or his money or property or any part thereof or becoming liable under any contract without the order of the Tribunal or the written consent of the administrator.

(2)Every dealing, transfer, alienation or charge by any represented person in respect of any part of the estate which is under the control of the administrator is void and of no effect, and the money or property the subject of the dealing, transfer, alienation or charge is recoverable by the administrator in any court of competent jurisdiction.

(3)This section does not render invalid any dealing, transfer, alienation or charge by any represented person made for adequate consideration with or to or in favour of any other person who proves that she or he acted in good faith and did not know or could not reasonably have known that the person was a represented person.

(4)For the purpose of this section the acceptance of payment of the whole or any part of a debt is deemed to be a dealing with property.

53Interest of represented person in property not to be altered by sale or other disposition of property

(1)A represented person and a beneficiary of a represented person 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 the Tribunal which have not been applied under those powers as the person or beneficiary 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 deemed to be money arising from the sale of that property under the powers given to an administrator by an order of the Tribunal.

(3)An administrator is not required to keep the proceeds of the sale or other disposition of property under this section separate from the represented person's other assets.

(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, beneficiary of a represented person means—

(a)a beneficiary under the will of a represented person; or

(b)a represented person's executor; or

(c)a represented person's administrator under the Administration and Probate Act 1958.

53AException to ademption applies regardless of testamentary capacity

Section 53 applies whether or not the represented person has testamentary capacity.

54Tribunal may open will

The Tribunal 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.

55Administrator may seek advice

(1)An administrator may apply for the advice of the Tribunal upon any matter relating to the scope of the administration order or the exercise of any power by the administrator under the administration order.

(2)Without limiting subsection (1), the jurisdiction of the Tribunal 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.

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(4)The Tribunal 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.

(4A)The Tribunal may on its own initiative 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 any order or on the advice of the Tribunal made or given under this section unless in representing the facts to the Tribunal the administrator has been guilty of fraud, wilful concealment or misrepresentation.

56Application to the Tribunal by a creditor etc.

(1)Any 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 may apply to the Tribunal upon any matter arising out of the administration of the estate by the administrator.

(2)In subsection (1), 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 that property under any law for the distribution of the property of intestates if the represented person had died intestate.

(3)The Tribunal may make such order in relation to the application as the circumstances of the case may require.

57Power to administrator to act until notice of discharge etc. received

(1)Where the Tribunal knows that a person has ceased to be a represented person, the Tribunal must without delay give notice of that fact to the administrator.

(2)Until the administrator learns that a person has ceased to be a represented person or has died an administrator may exercise all or any of the powers given to the administrator by order of the Tribunal with respect to the estate of the represented person.

(3)Upon 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 administrator within the powers conferred on the administrator by the Tribunal as if it had been done by the represented person and the represented person had the legal capacity to do so.

58Accounts

(1)The Tribunal may, at the time that it appoints an administrator under section 46 or such later time as the Tribunal determines, appoint a person to examine or audit the accounts of the estate of a represented person for a fee approved by the Tribunal and paid from that estate.

(2)Unless the Tribunal otherwise directs, an administrator must lodge—

(a)if the Tribunal has appointed a person under subsection (1) to examine or audit accounts, with that person; or

(b)in any other case, with the Tribunal—

on, or as soon as practicable after, the anniversary of the appointment of the administrator in each year, accounts of the administration of the estate of a represented person providing a full and true account of the assets and liabilities of that estate and all receipts and disbursements in respect of that estate.

(2A)The Tribunal may require an administrator to lodge accounts at a time other than a time specified in subsection (2).

(2B)A person appointed under subsection (1) to examine or audit accounts must lodge with the Tribunal a report in relation to the accounts examined or audited.

(2C)A report under subsection (2B) may recommend the disallowance of any item in the accounts.

(3)Where the Tribunal receives a report under subsection (2C) the Tribunal cannot make an order disallowing an item if the Tribunal is satisfied that the administrator acted in good faith and with reasonable care in the exercise of powers conferred on the administrator.

(4)Where any item is disallowed by the Tribunal the administrator is liable for the amount of the item disallowed.

(5)An administrator must, in respect of 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.

(6)The Tribunal may upon 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 (5).

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58AAGuardianship and Administration Fund

(1)There is to be established in the Public Account as part of the Trust Fund an account to be known as "The Guardianship and Administration Fund".

(2)There is to be paid into the Fund—

(a)all fees prescribed under section 58A that are paid in respect of estates which are the subject of an administration order; and

(b)interest received from the investment of money in the Fund.

(3)There is also to be paid into the Fund all money standing to the credit of the Guardianship and Administration Fund established by section 58(7) immediately before that provision was repealed.

(4)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.

(5)The Guardianship and Administration Fund is to be used to meet the costs and expenses of the Tribunal in respect of proceedings under this Act.

(6)After this section commences, a reference in another Act or a statutory rule (within the meaning of the Subordinate Legislation Act 1994) to the Guardianship and Administration Fund established by section 58(7) of this Act is taken to be a reference to the Fund established by this section.

58ABNotice of death of represented person

An administrator must notify the Tribunal in writing without delay if the represented person dies.

58APower to make regulations setting fees

(1)The Governor in Council may make regulations for or with respect to prescribing annual fees to be paid in respect of estates which are the subject of an administration order.

(2)Regulations made under subsection (1)—

(a)may prescribe fees in respect of a particular class or classes of estates only; and

(b)may prescribe different fees in respect of different classes of estates; and

(c)may authorise the Tribunal to waive fees in particular cases or classes of cases.

(3)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 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 the Tribunal and the Public Advocate to fulfil their estate administration functions under this Act in that year.

*                *                *                *                *

Division 3A—Additional powers and
duties of administrators

58BPowers and duties in relation to represented persons

(1)Subject to and in accordance with this Act and the administration order appointing an administrator in each case—

(a)the administrator has the general care and management of the estate of the represented person; and

(b)it is the duty of the 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 affairs of the represented person and to exercise all rights statutory or otherwise which the represented person might exercise if the represented person had legal capacity; and

(c)the administrator in the name and on behalf of the represented person may generally do all acts and exercise all powers with respect to the estate as effectually and in the same manner as the represented person could have done if the represented person were not under a legal disability.

(2)Without limiting subsection (1), an administrator may in the name and on behalf of a represented person—

(a)collect, receive and recover income of and money due or which becomes due to and 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 the Tribunal, 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 represented 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)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

(o)pay any sum for the maintenance of the represented person (and, in the event of his or her death, for funeral expenses) and for the maintenance of his or her spouse or domestic partner or any child, parent or other person dependent upon him or her and for the maintenance and education of his or her children as to the administrator seems expedient and reasonable; 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)An administrator may if it seems to be expedient and reasonable—

(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 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 administrator.

58CExercise of certain powers

(1)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 administrator to be for the benefit of the represented person that the power should be exercised or the consent given—

the administrator may on behalf and in the name of the represented person exercise the power or give the consent in any manner the administrator thinks fit.

(2)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 upon the undue exercise of the power; and

*                *                *                *                *

Schedule 3—Provisions with respect to the Public Advocate

1The Public Advocate

(1)The Public Advocate—

(a)is to be appointed by the Governor in Council; and

(b)holds office for a period of 7 years; and

(c)is entitled to be paid—

(i)such remuneration as is from time to time fixed by the Governor in Council; and

(ii)such travelling and other allowances as are from time to time fixed by the Governor in Council; and

(d)is not in respect of the office of Public Advocate subject to the Public Administration Act 2004 (other than Part 5 of that Act).

(2)The Public Advocate ceases to hold office—

(a)if the Public Advocate resigns in writing signed by the Public Advocate and the resignation is accepted by the Governor in Council; or

(b)if the Public Advocate engages in any paid employment outside the duties of the office without the approval of the Governor in Council; or

(c)if the Public Advocate is removed from office under subclause (5).

(3)The Governor in Council may suspend or remove the Public Advocate from office.

(4)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.

(5)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.

(6)If the Public Advocate—

(a)becomes bankrupt; or

(b)is convicted of an indictable offence or of an offence which, if committed in Victoria, would be an indictable offence; or

(c)becomes incapable of performing the duties of the office of Public Advocate; or

(d)is removed from office under subclause (5) or resigns under subclause (2)(a); or

*                  *                  *                  *                  *

(f)dies—

the office of the Public Advocate becomes vacant.

2The Acting Public Advocate

(1)The Governor in Council 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.

(1A)The Attorney-General may appoint a person who—

(a)has previously been appointed as Acting Public Advocate under subclause (1); and

(b)has taken an oath or made an affirmation under clause 3—

as Acting Public Advocate during the temporary absence of the Public Advocate.

(1B)A person appointed under subclause (1A) is not required to take another oath or make another affirmation under clause 3.

(1C)The Attorney-General may at any time revoke an appointment under subclause (1A).

(2)The Acting Public Advocate while so acting—

(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—

(i)such remuneration as is from time to time fixed by the Governor in Council; and

(ii)such travelling and other allowances as are from time to time fixed by the Governor in Council; and

(c)is not in respect of the office of Acting Public Advocate subject to the Public Administration Act 2004 (other than Part 5 of that Act).

3Oath or affirmation

The Public Advocate and any Acting Public Advocate must before taking office take an oath or make an affirmation to be administered by the Speaker of the Legislative Assembly that—

(a)she or he will faithfully and impartially perform the duties of office; and

(b)she or he will not except in accordance with this Act divulge information received or obtained under this Act.

*                *                *                *                *

═══════════════

Endnotes

1   General information

See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 28 November 1985

Legislative Council: 22 April 1986

The long title for the Bill for this Act was "A Bill to provide for the establishment of a Guardianship and Administration Board, to provide for the appointment of a Public Advocate, to amend the Public Trustee Act 1958 and for other purposes.".

The Guardianship and Administration Board Act 1986 was assented to on 3 June 1986 and came into operation as follows:

Section 14 on 8 July 1986: Government Gazette 25 June 1986 page 2179; Part 1, sections 5, 6, 15–18, 75–82, Schedules 1 and 3 on 1 April 1987: Government Gazette 25 March 1987 page 695; section 58 on 1 April 1987: Government Gazette 1 April 1987 page 778; rest of Act on 14 July 1987: Government Gazette 8 July 1987 page 1792.

The name of this Act was changed from the Guardianship and Administration Board Act 1986 to the Guardianship and Administration Act 1986 by Act No. 52/1998 section 115.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

•    Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms.  See section 36(1A)(2A).

•    Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act.  Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act.  See section 36(3A).

•    Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act.  Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act.  See section 36(3B).

•    Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001.  Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs.  See section 36(3C).

•    Location of "legislative items"

A "legislative item" is a penalty, an example or a note.  As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision.  For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision.  See section 36B.

•    Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. 
See section 36(3)(3D)(3E).

2   Table of Amendments

This publication incorporates amendments made to the Guardianship and Administration Act 1986 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Supreme Court Act 1986, No. 110/1986

Assent Date:	16.12.86
Commencement Date:	1.1.87: s. 2
CurrentState:	All of Act in operation

State Trust Corporation of Victoria Act 1987, No. 55/1987

Assent Date:	20.10.87
Commencement Date:	2.11.87: Government Gazette 28.10.87 p. 2925
CurrentState:	All of Act in operation

Intellectually Disabled Persons' Services (Amendment) Act 1987, No. 74/1987

Assent Date:	24.11.87
Commencement Date:	24.11.87: Special Gazette (No. 50) 24.11.87 p. 1
CurrentState:	All of Act in operation

Health Services Act 1988, No. 49/1988

Assent Date:	24.5.88
Commencement Date:	S. 199 on 1.7.88: Government Gazette 29.6.88 p. 1896
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Guardianship and Administration Board (Amendment) Act 1989, No. 33/1989

Assent Date:	6.6.89
Commencement Date:	6.6.89: s. 2
CurrentState:	All of Act in operation

Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989

Assent Date:	14.6.98
Commencement Date:	S. 4(1)(a)–(e)(2) on 1.9.89: Government Gazette 30.8.89 p. 2210; rest of Act on 1.9.90: Government Gazette 25.7.90 p. 2217
CurrentState:	All of Act in operation

Medical Practice Act 1994, No. 23/1994

Assent Date:	17.5.94
Commencement Date:	Ss 1, 2 on 17.5.94: s. 2(1); rest of Act on 1.7.94: Government Gazette 23.6.94 p. 1672
CurrentState:	All of Act in operation

Financial Management (Consequential Amendments) Act 1994, No. 31/1994

Assent Date:	31.5.94
Commencement Date:	S. 4(Sch. 2 item 39) on 1.1.95: Government Gazette 28.7.94 p. 2055
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

State Trustees (State Owned Company) Act 1994, No. 45/1994

Assent Date:	7.6.94
Commencement Date:	Pt 1 (ss 1–3), s. 27 on 7.6.94: s. 2(1); rest of Act on 1.7.94: Special Gazette (No. 36) 23.6.94 p. 1
CurrentState:	All of Act in operation

Equal Opportunity Act 1995, No. 42/1995

Assent Date:	14.6.95
Commencement Date:	S. 224 on 5.10.95: Government Gazette 28.9.95 p. 2731; Sch. 2 items 20.1, 20.2, s. 223(Sch. 1 item 2) on 1.1.96: Government Gazette 21.12.95 p. 3571
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Trustee and Trustee Companies (Amendment) Act 1995, No. 104/1995

Assent Date:	5.12.95
Commencement Date:	1.1.96: s. 2
CurrentState:	All of Act in operation

Legal Practice Act 1996, No. 35/1996

Assent Date:	6.11.96
Commencement Date:	S. 453(Sch. 1 item 37) on 1.1.97: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998

Assent Date:	26.5.98
Commencement Date:	S. 7(Sch. 1) on 1.7.98: s.2(2)
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998, No. 52/1998

Assent Date:	2.6.98
Commencement Date:	Ss 114–129 on 1.7.98: Government Gazette 18.6.98 p. 1512
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Guardianship and Administration (Amendment) Act 1999, No. 40/1999

Assent Date:	8.6.99
Commencement Date:	Pt 1 (ss 1, 2) on 8.6.99: s. 2(1); rest of Act on 1.1.00: s. 2(3)
CurrentState:	All of Act in operation

Courts and Tribunals Legislation (Miscellaneous Amendments) Act 2000, No. 78/2000

Assent Date:	28.11.00
Commencement Date:	Ss 6–10 on 28.11.00: s. 2(1)
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Statute Law Amendment (Authorised Deposit-taking Institutions) Act 2001, No. 11/2001

Assent Date:	8.5.01
Commencement Date:	S. 3(Sch. item 33) on 1.6.01: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Statute Law Amendment (Relationships) Act 2001, No. 27/2001

Assent Date:	12.6.01
Commencement Date:	S. 9(Sch. 7 item 2) on 28.6.01: Government Gazette 28.6.01 p. 1428
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Community Visitors Legislation (Miscellaneous Amendments) Act 2001, No. 51/2001

Assent Date:	25.9.01
Commencement Date:	S. 5 on 1.2.02: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Guardianship and Administration (Amendment) Act 2002, No. 41/2002

Assent Date:	17.9.02
Commencement Date:	Ss 3–28 on 1.1.03: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Instruments (Enduring Powers of Attorney) Act 2003, No. 75/2003

Assent Date:	21.10.03
Commencement Date:	S. 8 on 1.4.04: Government Gazette 19.2.04 p. 333
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Public Administration Act 2004, No. 108/2004 (as amended by No. 20/2005)

Assent Date:	21.12.04
Commencement Date:	S. 117(1)(Sch. 3 item 92) on 5.4.05: Government Gazette 31.3.05 p. 602
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Health Professions Registration Act 2005, No. 97/2005

Assent Date:	7.12.05
Commencement Date:	S. 182(Sch. 4 item 23) on 1.7.07: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Guardianship and Administration (Further Amendment) Act 2006, No. 3/2006

Assent Date:	7.3.06
Commencement Date:	Ss 4–11, 13–24 on 15.7.06: Government Gazette 6.7.06 p. 1391
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Disability Act 2006, No. 23/2006

Assent Date:	16.5.06
Commencement Date:	S. 240 on 1.7.07: s. 2(3)
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Relationships Act 2008, No. 12/2008

Assent Date:	15.4.08
Commencement Date:	S. 73(1)(Sch. 1 item 27) on 1.12.08: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Statute Law Amendment (National Health Practitioner Regulation) Act 2010, No. 13/2010

Assent Date:	30.3.10
Commencement Date:	S. 51(Sch. item 26) on 1.7.10: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Equal Opportunity Act 2010, No. 16/2010

Assent Date:	27.4.10
Commencement Date:	S. 209(Sch. item 2) on 1.8.11: s. 2(4)
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Trustee Companies Legislation Amendment Act 2010, No. 17/2010

Assent Date:	11.5.10
Commencement Date:	S. 19 on 11.5.10: Special Gazette (No. 171) 11.5.10 p. 1
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Supported Residential Services (Private Proprietors) Act 2010, No. 49/2010

Assent Date:	24.8.10
Commencement Date:	S. 229 on 1.7.12: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Justice Legislation Further Amendment Act 2010, No. 64/2010

Assent Date:	28.9.10
Commencement Date:	Ss 29–32 on 28.10.10: Government Gazette 21.10.10 p. 2530
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Mental Health Act 2014, No. 26/2014

Assent Date:	8.4.14
Commencement Date:	S. 455(Sch. item 12) on 1.7.14: s. 2(1)
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014

Assent Date:	3.6.14
Commencement Date:	S. 10(Sch. item 76) on 1.7.14: Special Gazette (No. 200) 24.6.14 p. 2
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Powers of Attorney Act 2014, No. 57/2014

Assent Date:	26.8.14
Commencement Date:	Ss 145–148 on 1.9.15: s. 2(2)
CurrentState:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Privacy and Data Protection Act 2014, No. 60/2014

Assent Date:	2.9.14
Commencement Date:	S. 140(Sch. 3 item 22) on 17.9.14: Special Gazette (No. 317) 16.9.14 p. 1
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Access to Medicinal Cannabis Act 2016, No. 20/2016

Assent Date:	26.4.16
Commencement Date:	S. 146 on 14.9.16: Special Gazette (No. 284) 13.9.16 p. 1
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Medical Treatment Planning and Decisions Act 2016, No. 69/2016

Assent Date:	29.11.16
Commencement Date:	Ss 123−149 on 12.3.18: s. 2(2)
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017, No. 41/2017

Assent Date:	19.9.17
Commencement Date:	Ss 21–23 on 1.11.17: s. 2(2)
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Oaths and Affirmations Act 2018, No. 6/2018

Assent Date:	27.2.18
Commencement Date:	S. 68(Sch. 2 item 64) on 1.3.19: s. 2(2)
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Disability (National Disability Insurance Scheme Transition) Amendment Act 2019, No. 19/2019

Assent Date:	25.6.19
Commencement Date:	S. 261(1) on 1.7.19: Special Gazette (No. 254) 25.6.19 p. 1
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Health Legislation Amendment and Repeal Act 2019, No. 34/2019

Assent Date:	22.10.19
Commencement Date:	S. 48 on 23.10.19: s. 2(1)
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

–––––––––––––––––––––––––––––––––––––––––––––––––––

3   Amendments Not in Operation

This publication does not include amendments made to the Guardianship and Administration Act 1986 by the following Act/s.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Guardianship and Administration Act 2019, No. 13/2019

Assent Date:	4.6.19
Commencement Date:	S. 197(1) not yet proclaimed
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

Disability (National Disability Insurance Scheme Transition) Amendment Act 2019, No. 19/2019

Assent Date:	25.6.19
Commencement Date:	S. 261(2) not yet proclaimed
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 1986

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

At the date of this publication, the following provisions amending the Guardianship and Administration Act 1986 were Not in Operation:

Amending Act/s:

Guardianship and Administration Act 2019, No. 13/2019

197Guardianship and Administration Act 1986 repealed

(1)The Guardianship and Administration Act 1986 is repealed.

——

Disability (National Disability Insurance Scheme Transition) Amendment Act 2019, No. 19/2019

261Guardianship and Administration Act 1986

(2)In section 18A(5)(c) of the Guardianship and Administration Act 1986 omit ", residential institution".

4   Explanatory details

[1] S. 20(d): Section 72 of the Victorian Civil and Administrative Tribunal Act 1998 provides that the applicant must give notice to the other parties as well as to other persons entitled to notice.