Guardianship and Administration Act 2019 (Vic)

Version No. 009

Guardianship and Administration Act 2019

No. 13 of 2019

Version incorporating amendments as at

1 July 2024

TABLE OF PROVISIONS

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

3Definitions

4Meaning of promote the personal and social wellbeing of a person

5Meaning of decision-making capacity

6Assessing decision-making capacity

7Primary object

8General principles

9Decision-making principles

Part 2—The Public Advocate

10Public Advocate

11Terms and conditions of appointment

12Resignation and vacancy

13Acting Public Advocate

14Oath or affirmation

15Functions of the Public Advocate

16Powers and duties of the Public Advocate

17Powers of inspection

18Public Advocate employees

19Delegation

20Confidentiality

21Annual report

Part 3—Guardianship orders and administration orders

Division 1—Applications for guardianship orders and administration orders

22Application for guardianship orders

23Application for administration orders

24Matters to be included in application to VCAT

25Who are the parties to a proceeding on an application?

26Who is entitled to notice of an application, the hearing and any order made in the proceeding?

27Contents of notice of application

28Date for hearing of application for guardianship order or administration order

29Participation of proposed represented person at hearing

Division 2—Making guardianship orders and administration orders and eligibility of persons appointed

30VCAT may make a guardianship order or administration order

31Factors to consider in determining need for guardian or administrator

32Persons eligible as guardians or administrators

33Other matters pertaining to appointments

34Matters to be specified in guardianship orders and administration orders

35Statement of wishes for future appointment may be lodged

36Urgent guardianship orders and urgent administration orders

37Hearing after making of urgent guardianship order or urgent administration order

Division 3—Powers of guardians

38Powers of guardians

39Matters for which power cannot be given under a guardianship order

40Power for guardian to undertake legal proceedings

Division 4—Duties of guardians

41Exercise of power by guardian

42Guardian to report death of represented person

Division 5—Other matters pertaining to applications for guardianship orders and to guardianship orders

43Special order in relation to proposed represented person unlawfully detained or at risk of harm

44Guardian may seek advice from VCAT

45Order for represented person to comply with guardian's decisions

Division 6—Powers of administrators

46Powers of administrators

47Power to make gifts

48Powers of investment

49Power to open will deposited with administrator

50Power to exercise certain powers vested in represented person

51Power for administrator to undertake legal proceedings

52Other powers that may be specified in administration order

53Matters for which power cannot be given under an administration order

54Powers of administrator cease on death of represented person

Division 7—Duties of administrators

55Exercise of power by administrator

56Property of represented person

57Conflict transactions

58Permitted conflict transactions

59Keeping records

60Separation of administrator's property and the represented person's property

61Accounts

62Payments to person examining or auditing accounts

63Administrator to report death of represented person

Division 8—Other matters pertaining to administration orders

64Administrator may seek advice from VCAT

65Administrator may seek advice from professional adviser

66VCAT may open will

67VCAT may compel production of will

68VCAT may make copy of will available to administrator

69VCAT to notify administrator if person ceases to be a represented person

70Actions of administrator taken to be actions of former represented person

71Administrator to pay to former represented person any money outstanding

72Former represented person entitled to inspection of accounts

73VCAT order that delivery of, or access to, documents be withheld

74Sale of personal effects if unclaimed within 2 years after person ceases to be represented person

75Restriction on powers of represented person in relation to financial matters

76Interest of represented person in property not to be altered by sale or other disposition of property

77Guardianship and Administration Fund

78Application to VCAT by represented person or a person interested

Part 4—Supportive guardianship orders and supportive administration orders

Division 1—Application for supportive guardianship orders and supportive administration orders

79Application for supportive guardianship order

80Application for supportive administration order

81Matters to be included in application to VCAT

82Who are the parties to a proceeding on an application?

83Who is entitled to notice of an application, the hearing and any order made in the proceeding?

84Contents of notice of application

85Date for hearing of application for supportive guardianship order or supportive administration order

86Participation of proposed supported person at hearing

Division 2—Making supportive guardianship orders and supportive administration orders and eligibility of persons appointed

87VCAT may make a supportive guardianship order or supportive administration order

88Persons eligible as supportive guardians or supportive administrators

89Matters to be specified in supportive guardianship orders and supportive administration orders

Division 3—Powers and duties of supportive guardians and supportive administrators

90Powers of supportive guardians or supportive administrators

91Information power

92Communication power

93Power to give effect to decisions

94Duties and obligations of supportive guardians and supportive administrators

Division 4—General

95No entitlement to remuneration

96When does a supportive guardianship order or supportive administration order cease to have effect?

97Advice from VCAT

98Supportive guardian or supportive administrator to report death of supported person

Part 5—Administration (missing person) orders

Division 1—Application for administration (missing person) orders

99Application for administration (missing person) orders

100Matters to be included in application to VCAT

101Who are the parties to a proceeding on an application?

102Who is entitled to notice of an application, the hearing and any order made in the proceeding?

103Contents of notice of application

104Date for hearing of application for administration (missing person) order

Division 2—Making administration (missing person) orders and eligibility of persons appointed

105VCAT may make administration (missing person) order

106Duration of order

107Persons eligible as administrators for missing persons

108Matters to be specified in administration (missing person) orders

109Urgent administration (missing person) orders

Division 3—Powers of administrators for missing persons

110Powers of administrators for missing persons

111Powers of investment

112Power to open will

113Power to undertake legal proceedings

114Other powers that may be specified in administration (missing person) order

115Matters for which power cannot be given under an administration (missing person) order

Division 4—Duties of administrators under administration (missing person) orders

116Exercise of power by administrator

117Property of missing person

118Conflict transactions

119Permitted conflict transactions

120Keeping records

121Separation of administrator's property and missing person's property

122Accounts

123Payments to person examining or auditing accounts

124Administrator to notify VCAT about status of missing person

Division 5—Other matters pertaining to administration (missing person) orders

125Administrator may seek advice from VCAT

126Administrator may seek advice from professional adviser

127VCAT may open will

128VCAT may compel production of will

129VCAT may make copy of will available to administrator

130VCAT to notify administrator if person ceases to be a missing person

131Actions of administrator taken to be actions of former missing person

132Administrator to pay to former missing person any money outstanding

133Former missing person entitled to inspection of accounts

134VCAT order that delivery of, or access to, documents be withheld

135Sale of personal effects if unclaimed within 2 years after person ceases to be missing person

136Interest of missing person in property not to be altered by sale or other disposition of property

137Application to VCAT by a person interested

138Order to revoke administration (missing person) order

139Part does not exclude Administration and Probate Act 1958

Part 6—Special medical procedures

140Definitions

141VCAT may consent to special medical procedure

142Effect of consent

143Application for VCAT's consent to special medical procedure

144Date for hearing

145Consent of VCAT to special medical procedure

146VCAT may confer authority to consent to continuing or further special medical procedure

147Special medical procedure without consent of VCAT an offence

148Refusal of consent to special medical procedure under an instructional directive

149Unlawful consent to special medical procedure an offence

Part 7—Rehearings and reassessment of orders

Division 1—Rehearings

150Application for rehearing of application for order

151Application for rehearing of reassessment of order

152When may application for rehearing of application or for leave to apply for rehearing of application or rehearing of reassessment be made?

153Matters for which application for rehearing cannot be made

154Who are the parties to a rehearing?

155Who is entitled to notice of an application for a rehearing?

156Participation of proposed represented person or represented person at hearing

157Rehearing

158Effect of first instance order pending rehearing

Division 2—Reassessment of orders

159Reassessment

160Matters to be included in application to VCAT

161Who are the parties to a reassessment?

162Who is entitled to notice of a reassessment, the hearing and any order made in the proceeding?

163Contents of notice of application for a reassessment

164Conduct of reassessment on VCAT's initiative

165Participation of represented person or supported person at hearing

166VCAT to consider role of appointed person

167Order after reassessment

Part 8—Interstate orders

168Application of Part

169Definitions

170Corresponding laws and orders

171Ministerial agreements

172Registration of interstate orders

173Reassessment of interstate orders

174Reciprocal arrangements under the State Trustees (State Owned Company) Act 1994

Part 9—General provisions

175Remuneration of administrators

176Costs incurred by administrator

177Resolution of disagreements between persons appointed as guardians or administrators

178Enforcement orders

179Matters before a Court

180Effect of setting aside administration order or administration (missing person) order on previous actions of administrator

181Compensation for acts of guardian or administrator

182Relief from personal liability

183Who can apply for an order for compensation?

184Time limit for application for order for compensation

185VCAT may refer matter to Supreme Court

186No compensation

187Judicial notice

188Offence for guardian to use guardianship order dishonestly

189Offence for administrator to use administration order dishonestly

190Offence for administrator to use administration (missing person) order dishonestly

191Offence for supportive guardian to use supportive guardianship order dishonestly

192Offence for supportive administrator to use supportive administration order dishonestly

193Criminal liability of officers of bodies corporate—failure to exercise due diligence

194Regulations

Part 10—Repeal of Guardianship and Administration Act 1986 and savings and transitional provisions

196Definitions

197Guardianship and Administration Act 1986 repealed

198Guardianship orders made under the old Act

199Administration orders made under the old Act

200Administration orders made under the old Act in respect of the estate of a missing person

201Applications made under the old Act for guardianship orders and administration orders

202Special medical procedures

203Rehearings of orders made under the old Act

204Reassessments of orders made under the old Act

205Interstate orders

206VCAT may make orders of a transitional nature

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Endnotes

1      General information

2      Table of Amendments

3      Explanatory details

Version No. 009

Guardianship and Administration Act 2019

No. 13 of 2019

Version incorporating amendments as at

1 July 2024

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1Purposes

The purposes of this Act are—

(a)to re-enact with amendments the law relating to guardianship and administration; and

(b)to repeal the Guardianship and Administration Act 1986; and

(c)to make consequential amendments to various other Acts.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2)If a provision of this Act does not come into operation before 1 March 2020, it comes into operation on that day.

3Definitions

(1)In this Act—

administration (missing person) order means an order made under section 105 that appoints a person as an administrator;

administration order means an order made under section 30 that appoints a person as an administrator;

administrator means the person appointed as an administrator in relation to one or more specified financial matters—

(a)in an administration order; or

(b)in an administration (missing person) order;

close friend of a person means another person who has a close personal relationship with the first person and a personal interest in the first person's welfare;

determination, in relation to VCAT, includes an order, direction, consent, advice and approval;

disability, in relation to a person, means neurological impairment, 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, a government agency, a body corporate or a charitable or benevolent organisation);

financial matter, in relation to a person, means any matter relating to the person's financial or property affairs and includes any legal matter that relates to the financial or property affairs of the person;

Examples

The following are examples of financial matters—

(a)making money available to the person for the person's personal expenditure;

(b)paying expenses for the person and any dependants of the person relating to the maintenance and accommodation of the person and any dependants, including purchasing an interest in, or making a contribution to, a

property to accommodate the person or any dependants of the person or otherwise making payments in relation to such property;

(c)paying any debts of the person, including any fees and expenses to which an administrator is legally entitled;

(d)receiving and recovering money payable to the person;

(e)carrying on any trade or business of the person;

(f)performing any contracts entered into by the person;

(g)discharging any mortgage over the person's property;

(h)paying rates, taxes and insurance premiums or other outgoings for the person's property;

(i)insuring the person or the person's property;

(j)otherwise preserving or improving the person's property;

(k)making investments for the person;

(l)continuing investments of the person, including taking up rights to issues of new shares or options for new shares to which the person becomes entitled by the person's existing shareholding;

(m)undertaking any real estate transaction for the person;

(n)dealing with land for the person;

(o)undertaking a beneficial transaction for the person involving the use of the person's property as security for an obligation, including taking out a loan on behalf of the person or giving a guarantee on behalf of the person;

(p)withdrawing money from or depositing money into an account of the person with a financial institution.

guardian (except in section 50(2)(a)) means a person appointed in a guardianship order as a guardian in relation to one or more specified personal matters;

guardianship order means an order made under section 30 that appoints a person as a guardian;

income includes rents and profits;

legal matter in relation to a person means—

(a)the use of legal services for the person's benefit; or

(b)bringing or defending a legal proceeding or hearing in a court, tribunal or other body on behalf of the person, including settling a claim before or after a legal proceeding or hearing starts;

Examples

The following are examples of legal matters—

(a)the use of legal services to obtain information about the person's legal rights;

(b)the use of legal services to make a transaction.

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

missing person means a person determined to be a missing person under section 105(3);

nearest relative means the relative first listed in the definition of relative who is of or over 18 years of age, the elder or eldest of 2 or more relatives described in any paragraph being preferred to any other so described;

personal matter, in relation to a person, means any matter relating to the person's personal or lifestyle affairs, and includes any legal matter that relates to the person's personal or lifestyle affairs;

Examples

The following are examples of personal matters—

(a)where and with whom the person lives;

(b)other persons with whom the person associates;

(c)whether the person works and, if so, the kind and place of work and employer;

(d)whether the person undertakes education or training and if so, the kind of education or training and the place where it takes place;

(e)daily living issues such as diet and dress;

(f)medical treatment decisions, excluding decisions about matters provided for in Part 6.

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

primary carer has the same meaning as in the Medical Treatment Planning and Decisions Act 2016;

principal registrar means the principal registrar of VCAT;

proposed represented person means a person in relation to whom an application is made under section 22 or 23;

proposed supported person means a person in relation to whom VCAT considers making a supportive guardianship order or supportive administration order under section 87;

Public Advocate means the person appointed as the Public Advocate, being the office continued in existence by section 10;

Public Advocate employee means a person referred to in section 18 and employed to enable the Public Advocate to exercise the Public Advocate's powers, carry out the Public Advocate's functions or perform the Public Advocate's duties;

regulations means regulations made under this Act;

relative means any of the following—

(a)a spouse or domestic partner;

(b)a child;

(c)a parent;

(d)a step-parent;

(e)a sibling;

(f)a step-sibling;

(g)a grandparent;

(h)a grandchild;

(i)an uncle or aunt;

(j)a nephew or niece;

represented person means—

(a)a person in relation to whom a guardianship order has effect; or

(b)a person in relation to whom an administration order has effect;

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;

supported decision means—

(a)in the case of a supportive guardianship order, a decision about a personal matter that is specified in the order; and

(b)in the case of a supportive administration order, a decision about a financial matter that is specified in the order;

supported person means a person in relation to whom a supportive guardianship order or a supportive administration order has effect;

supportive administration order means an order made under section 87 that appoints a person as supportive administrator;

supportive administrator means a person appointed in a supportive administration order as supportive administrator in relation to one or more specified financial matters;

supportive guardian means a person appointed in a supportive guardianship order as supportive guardian in relation to one or more specified personal matters;

supportive guardianship order means an order made under section 87 that appoints a person as supportive guardian;

VCAT Act means the Victorian Civil and Administrative Tribunal Act 1998.

(2)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.

(3)A reference in the definition of relative in subsection (1) to a person's sibling includes a reference to a person who was adopted by one or both of the person's parents.

4Meaning of promote the personal and social wellbeing of a person

For the purposes of this Act, and without limiting the ways in which this may occur, the personal and social wellbeing of a person is promoted by—

(a)recognising the inherent dignity of the person; and

(b)respecting the person's individuality; and

(c)having regard to the person's existing supportive relationships, religion, values and cultural and linguistic environment; and

(d)respecting the confidentiality of confidential information relating to the person; and

(e)recognising the importance to the person of any companion animal the person has and having regard to the benefits that may be obtained from the person having any companion animal.

5Meaning of decision-making capacity

(1)For the purposes of this Act, a person has capacity to make a decision in relation to a matter (decision-making capacity) if the person is able—

(a)to understand the information relevant to the decision and the effect of the decision; and

(b)to retain that information to the extent necessary to make the decision; and

(c)to use or weigh that information as part of the process of making the decision; and

(d)to communicate the decision and the person's views and needs as to the decision in some way, including by speech, gesture or other means.

(2)For the purposes of subsection (1), a person is presumed to have decision-making capacity unless there is evidence to the contrary.

(3)For the purposes of subsection (1)(a), a person is taken to understand the information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person's circumstances, whether by using modified language, visual aids or any other means.

(4)In determining whether a person has decision‑making capacity, regard must be had to the following—

(a)a person may have decision-making capacity in relation to some matters and not others;

(b)if a person does not have decision-making capacity in relation to a matter, it may be temporary;

(c)it should not be assumed that a person does not have decision-making capacity in relation to a matter on the basis of the person's appearance;

(d)it should not be assumed that a person does not have decision-making capacity in relation to a matter merely because the person makes a decision that, in the opinion of others, is unwise;

(e)a person has decision-making capacity in relation to a matter if it is possible for the person to make the decision with practicable and appropriate support.

Examples

The following are examples of practicable and appropriate support—

(a)using information or formats tailored to the particular needs of a person;

(b)communicating or assisting a person to communicate the person's decision;

(c)giving a person additional time and discussing the matter with the person;

(d)using technology that alleviates the effects of a person's disability.

6Assessing decision-making capacity

For the purposes of this Act, a person who is assessing whether a person has decision-making capacity in relation to a matter must take reasonable steps to conduct the assessment at a time at which, and in an environment in which, the person's decision-making capacity can be assessed most accurately.

7Primary object

(1)The primary object of this Act is to protect and promote the human rights and dignity of persons with a disability by—

(a)having regard to the Convention on the Rights of Persons with Disabilities, recognising the need to support persons with a disability to make, participate in and implement decisions that affect their lives; and

(b)if a guardianship order or administration order is made for such persons—

(i)enabling VCAT to set safeguards and appropriate limitations on the powers of guardians and administrators when making such orders; and

(ii)requiring VCAT to review regularly such orders; and

(iii)providing guidance for guardians and administrators when making decisions for represented persons, as the case requires.

(2)In this section, the Convention on the Rights of Persons with Disabilities means the United Nations Convention on the Rights of Persons with Disabilities, done at New York on 13 December 2006, as in force for Australia.

8General principles

(1)A person exercising a power, carrying out a function or performing a duty under this Act must have regard to the following principles—

(a)a person with a disability who requires support to make decisions should be provided with practicable and appropriate support to enable the person, as far as practicable in the circumstances—

(i)to make and participate in decisions affecting the person; and

(ii)to express the person's will and preferences; and

(iii)to develop the person's decision-making capacity;

(b)the will and preferences of a person with a disability should direct, as far as practicable, decisions made for that person;

(c)powers, functions and duties under this Act should be exercised, carried out and performed in a way which is the least restrictive of the ability of a person with a disability to decide and act as is possible in the circumstances.

(2)In subsection (1), the reference to a person exercising a power, carrying out a function or performing a duty under this Act includes VCAT.

9Decision-making principles

(1)A person making a decision for a represented person must have regard to the following principles—

(a)the person should give all practicable and appropriate effect to the represented person's will and preferences, if known;

(b)if the person is not able to determine the represented person's will and preferences, the person should give effect as far as practicable in the circumstances to what the person believes the represented person's will and preferences are likely to be, based on all the information available, including information obtained by consulting the represented person's relatives, close friends and carers;

(c)if the person is not able to determine the represented person's likely will and preferences, the person should act in a manner which promotes the represented person's personal and social wellbeing;

(d)if the represented person has a companion animal, the person should act in a manner that recognises the importance of the companion animal to the represented person and any benefits the represented person obtains from the companion animal;

(e)the represented person's will and preferences should only be overridden if it is necessary to do so to prevent serious harm to the represented person.

(2)In this section, represented person—

(a)has the meaning given in section 3(1); and

(b)includes a missing person for whom an administration (missing person) order has effect.

PART 2—THE PUBLIC ADVOCATE

10Public Advocate

(1)The office of Public Advocate established under section 14 of the Guardianship and Administration Act 1986 as in force immediately before the commencement of this Act continues in existence.

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

11Terms and conditions of appointment

(1)The Public Advocate—

(a)holds office for 7 years; and

(b)is eligible for reappointment.

(2)The Public Advocate is entitled to be paid the remuneration and allowances as are fixed by the Governor in Council from time to time.

(3)The Public Advocate is not, in relation to the office of Public Advocate, subject to the Public Administration Act 2004 (other than Part 5 of that Act).

12Resignation and vacancy

(1)The Public Advocate ceases to hold office if the Public Advocate—

(a)resigns by writing delivered to the Governor in Council; or

(b)becomes insolvent under administration; or

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

(d)nominates for election for, or is elected to—

(i)the Parliament of Victoria; or

(ii)the Parliament of the Commonwealth or of another State or a Territory of the Commonwealth; or

(iii)a Council, within the meaning of the Local Government Act 2020; or

(e)is removed from office under subsection (4).

(2)The Governor in Council, on the recommendation of the Minister, may suspend the Public Advocate from office on any of the following grounds—

(a)the Public Advocate has engaged in paid employment outside the duties of the office without the approval of the Governor in Council;

(b)the Public Advocate is unable to perform, or has neglected, the duties of the office of Public Advocate;

(c)the Public Advocate has engaged in misconduct;

(d)the Public Advocate has failed to disclose a material conflict of interest.

(3)The Minister must cause to be laid before each House of the Parliament a full statement of the grounds of suspension of the Public Advocate within 7 sitting days after the suspension.

(4)The Governor in Council must remove the Public Advocate from office if each House of the Parliament, within 7 sitting days after the day when the statement of the grounds of suspension is laid before it, declares by resolution that the Public Advocate ought to be removed from office.

(5)If both Houses of the Parliament do not within the period referred to in subsection (4) declare by resolution that the Public Advocate ought to be removed from office, the Governor in Council must remove the suspension and restore the Public Advocate to office.

13Acting Public Advocate

(1)The Governor in Council, on the recommendation of the Minister, may appoint an Acting Public Advocate during the temporary absence or the suspension of the Public Advocate and may at any time revoke the appointment.

(2)The Minister may appoint a person as Acting Public Advocate during the temporary absence or the suspension of the Public Advocate if the person—

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

(b)has taken an oath or made an affirmation under section 14.

(3)A person appointed under subsection (2) is not required to take another oath or make another affirmation under section 14.

(4)The Minister may at any time revoke an appointment under subsection (2).

(5)The Acting Public Advocate—

(a)has all the powers and duties and may carry out any of the functions of the Public Advocate; and

(b)is entitled to be paid the remuneration and allowances as are fixed by the Governor in Council from time to time; and

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

14Oath or affirmation

Before taking office, the Public Advocate and any Acting Public Advocate must take an oath or make an affirmation to be administered by the Speaker of the Legislative Assembly that the Public Advocate or the Acting Public Advocate (as the case requires) will faithfully and impartially perform the duties of office.

15Functions of the Public Advocate

The functions of the Public Advocate are—

(a)to promote the human rights of persons with a disability and the development of the ability of such persons to act independently; and

(b)to protect persons with a disability from abuse, neglect and exploitation; and

(c)to undertake advocacy for persons with a disability on a systemic or individual basis; and

(d)to manage and coordinate programs that promote the human rights of persons with a disability; and

(e)to encourage the development and operation of programs, services and facilities for persons with a disability that—

(i)involve and engage persons with a disability in the provision of these services; and

(ii)develop the ability of persons with a disability to act independently; and

(iii)promote accessibility of services for persons with a disability; and

(iv)minimise restrictions on the human rights of persons with a disability; and

(f)to promote and facilitate informed public awareness and understanding by disseminating information about—

(i)the provisions of this Act and other legislation dealing with or affecting persons with a disability or persons who may not have decision-making capacity; and

(ii)the role of VCAT and the Public Advocate; and

(iii)services provided to persons with a disability; and

(g)to investigate, report and make recommendations to the Minister in relation to—

(i)any aspect of the operation of the Guardianship and Administration Act 2019; and

(ii)any function conferred on the Public Advocate by or under this or any other Act; and

(h)any other function conferred on the Public Advocate by or under this or any other Act.

16Powers and duties of the Public Advocate

(1)The Public Advocate—

(a)if appointed by VCAT, may be a guardian; and

(b)may make an application to VCAT for—

(i)the appointment of a guardian, a supportive guardian, an administrator or a supportive administrator; or

(ii)the rehearing or reassessment of a guardianship order, a supportive guardianship order, an administration order or a supportive administration order; and

(c)may advocate for the human rights and interests of a person with a disability (irrespective of the person's age) by—

(i)seeking assistance from a government department, institution, welfare organisation or service provider for the purpose of promoting the personal and social wellbeing of the person; and

(ii)making representations on behalf of, or acting for, the person; and

(iii)involving members of the community in the provision of programs and services for persons with a disability; and

(iv)reporting and making recommendations to VCAT on behalf of the person in any proceeding under the Equal Opportunity Act 2010; and

(v)with the leave of a court or VCAT—

(A)joining as a party to proceedings in the court or VCAT that involve the rights and interests of the person; and

(B)assisting the court or VCAT as amicus curiae in proceedings in the court or VCAT that involve the rights and interests of the person; and

Note

Clause 33 of Schedule 1 to the VCAT Act provides that the Public Advocate in a proceeding under this Act may intervene at any time and is entitled to be joined as a party.

(d)may give advice to any person about the provisions of this Act, including an application for a guardianship order, a supportive guardianship order, an administration order, a supportive administration order or an administration (missing person) order; and

(e)may provide information for persons who are, or are proposed to be, guardians, supportive guardians, administrators, supportive administrators or supportive attorneys (within the meaning of the Powers of Attorney Act 2014); and

(f)may provide information for persons who are, or are proposed to be, support persons or medical treatment decision makers (both within the meaning of the Medical Treatment Planning and Decisions Act 2016); and

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

(h)may engage a registered company auditor to carry out an inspection or an audit if required for the purposes of—

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

(ii)the provision of a report under clause 35 or 51AH of Schedule 1 to the VCAT Act; and

(i)subject to subsection (2), may require a person, government department, public authority, service provider, institution or welfare organisation to provide information for the purposes of—

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

(ii)the provision of a report under clause 35, 48 or 51AH of Schedule 1 to the VCAT Act; and

(j)may submit a report to VCAT on any matter referred by VCAT to the Public Advocate for a report; and

(k)may perform any other function and exercise any other power conferred on the Public Advocate by this or any other Act.

(2)It is a reasonable excuse for a person to refuse or fail to provide information that the person would otherwise be required to provide under subsection (1)(i) if providing the information would tend to incriminate the person.

(3)If the Public Advocate is appointed as the guardian for a represented person—

(a)the person for the time being holding the office or performing the functions of the Public Advocate is the guardian for that represented person; and

(b)the Public Advocate must use the Public Advocate's best endeavours to find an appropriate person to be appointed as the guardian.

17Powers of inspection

(1)The Public Advocate may 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)subject to subsection (2), inspect any document relating to any such person or any record required to be kept under—

(i)this Act; or

(ii)the Disability Act 2006; or

(iii)the Health Services Act 1988; or

(iv)the Mental Health and Wellbeing Act 2022; or

(v)the Social Services Regulation Act 2021.

(2)Subsection (1)(d) does not authorise the Public Advocate to inspect—

(a)a person's medical records unless the person consents; or

(b)personnel records unless the person to whom the records relate consents.

(3)The person in charge, and the members of staff or management, of an institution must provide the Public Advocate with any reasonable assistance that the Public Advocate requires to perform or exercise any power, function or duty under this section effectively.

(4)A person in charge, or a member of the staff or management, of an institution must not unreasonably refuse or neglect to give assistance when required to do so under subsection (3).

Penalty:25 penalty units.

(5)A person in charge, or a member of the staff or management, of an institution must not 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, function or duty under this section.

Penalty:25 penalty units.

(6)A person in charge, or a member of the staff or management, of an institution must not assault, obstruct or threaten the Public Advocate in the performance or exercise of any power, function or duty under this section.

Penalty:25 penalty units.

(7)In this section—

institution means any of the following—

(a)a disability service provider, residential service or residential treatment facility, all within the meaning of the Disability Act 2006;

(b)a designated public hospital within the meaning of the Health Services Act 1988;

(c)a mental health and wellbeing service provider within the meaning of the Mental Health and Wellbeing Act 2022;

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

(cab)accommodation approved for supervised treatment under section 187 of the Disability Act 2006;

(cb)an SDA 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 supported residential service within the meaning of the Social Services Regulation Act 2021.

18Public Advocate employees

There may be employed under Part 3 of the Public Administration Act 2004 any employees who are necessary to enable the Public Advocate to exercise the Public Advocate's powers, to carry out the Public Advocate's functions or to perform the Public Advocate's duties.

19Delegation

(1)The Public Advocate may, by an instrument of delegation, delegate to a Public Advocate employee any one or more of the following—

(a)a power, duty or function of the Public Advocate under this Act or any other Act, other than this power of delegation;

(b)any or all of the Public Advocate's powers or duties in the Public Advocate's capacity as guardian;

(c)despite section 25 of the Powers of Attorney Act 2014, any or all of the Public Advocate's powers or duties in the Public Advocate's capacity as an attorney under an enduring power of attorney within the meaning of that Act.

(2)The Public Advocate may, with VCAT's approval, by instrument of delegation, delegate any or all of the Public Advocate's powers or duties in the Public Advocate's capacity as guardian to an individual (other than to a Public Advocate employee) or organisation specified in the instrument of delegation.

20Confidentiality

(1)This section applies to a person who is, or has been—

(a)the Public Advocate; or

(b)an Acting Public Advocate; or

(c)a Public Advocate employee.

(2)A person must not, directly or indirectly, make a record of, disclose or communicate to any other person, any information relating to the affairs of an individual acquired in the exercise of a power, the carrying out of a function or the performance of a duty under this Act which may identify the individual unless—

(a)it is necessary to do so for the purposes of, or in connection with, the exercise of a power, the carrying out of a function or the performance of a duty under this or any other Act; or

(b)it is necessary to do so for the purposes of a criminal proceeding or any other proceeding under this or any other Act; or

(c)the individual to whom the information relates gives written consent to the making of the record, disclosure or communication; or

(d)it is necessary to do so for the purposes of enabling a guardian, supportive guardian, relative or primary carer of the individual to provide support or care to that individual; or

(e)the information is disclosed or communicated to a police officer for the purposes of reporting a suspected offence or assisting in the investigation of a suspected offence; or

(f)making the record of the information, or disclosing or communicating the information to any other person, is authorised by an Act or an Act of the Commonwealth or any other State or a Territory.

Penalty:60 penalty units.

21Annual report

(1)As soon as practicable in each year but not later than 30 September, the Public Advocate must submit to the Minister a report on the Public Advocate's performance of the Public Advocate's functions under this and any other Act during the 12 months ending on the preceding 30 June.

(2)The Minister must cause a report submitted under subsection (1) to be laid before each House of the Parliament within 14 sitting days of that House after it is received by the Minister.

PART 3—GUARDIANSHIP ORDERS AND ADMINISTRATION ORDERS

Division 1—Applications for guardianship orders and administration orders

22Application for guardianship orders

A person may apply to VCAT for a guardianship order that appoints a guardian for a person with a disability who is—

(a)of or over 18 years of age; or

(b)under 18 years of age but the order takes effect on that person attaining 18 years of age.

23Application for administration orders

(1)A person may apply to VCAT for an administration order that appoints an administrator for a person with a disability who is—

(a)of or over 18 years of age; or

(b)under 18 years of age but the order takes effect on that person attaining 18 years of age.

(2)Subject to subsection (1), if the person for whom an administration order is sought does not reside in Victoria but the person's property is partly or wholly in Victoria, an application may be made for an administration order appointing an administrator for the person in relation to that part of the property that is in Victoria.

24Matters to be included in application to VCAT

A person applying to VCAT for an order under this Division must include the following in the application—

(a)the name and contact details of the proposed represented person;

(b)the type of order applied for, including details of the personal matter or financial matter in relation to which the order is sought;

(c)details of the reasons for making the application;

(d)the name and contact details of any person proposed as guardian or administrator;

(e)the name and contact details of the applicant and of any person who has a direct interest in the application (if known to the applicant);

Note

Persons having a direct interest includes, amongst others, the proposed represented person's relatives, any primary carer, close friends, any attorney appointed under an enduring power of attorney and any supportive attorney appointed under the Powers of Attorney Act 2014.

(f)any support needs of the proposed represented person including support provided to the proposed represented person by any companion animal of the proposed represented person.

Note

Section 67 of the VCAT Act sets out additional requirements in relation to making an application.

25Who are the parties to a proceeding on an application?

The following persons are parties to a proceeding on an application under this Division—

(a)the applicant;

(b)the proposed represented person;

(c)the person proposed as guardian or administrator, as the case requires;

(d)in the case of an application for a guardianship order, any current administrator for the proposed represented person;

(e)in the case of an application for an administration order, any current guardian for the proposed represented person;

(f)any other person VCAT orders to be joined as a party to the proceeding.

Note

Section 60 of the VCAT Act provides that VCAT may in certain circumstances order that a person be joined as a party to a proceeding.

26Who is entitled to notice of an application, the hearing and any order made in the proceeding?

For the purposes of sections 72(1), 99(1) and 116(2) of the VCAT Act, the following persons are entitled to a notice referred to in each of those sections—

(a)any party to a proceeding on an application under this Part;

(b)the spouse or domestic partner of the proposed represented person, if any;

(c)the primary carer of the proposed represented person, if any;

(d)any person referred to in the application as having a direct interest in the application;

(e)in the case of an application for a guardianship order, the Public Advocate, if no person is proposed as guardian;

(f)any other person VCAT directs be given notice.

Note

Section 72(1) of the VCAT Act provides that an applicant for a VCAT order must serve a copy of the application on each party, each other person entitled to notice of the application under the enabling enactment (which is this Act) and each other person that VCAT so directs. Section 99(1)(b) of the VCAT Act provides that the principal registrar of VCAT must give notice of the time and place for the hearing of a proceeding to a person entitled to notice of the proceeding or hearing under the enabling enactment. Section 116(2)(a) of the VCAT Act provides that VCAT must give a copy of any order it makes in a proceeding to each party and each other person entitled to notice of the proceeding or of the order under the enabling enactment.

27Contents of notice of application

(1)A notice of an application given to a party to the application must include the following—

(a)a copy of the application and any information filed in support of the application, subject to clause 37A of

Part 9 of Schedule 1 to the VCAT Act;

Note

Clause 37A of Part 9 of Schedule 1 to the VCAT Act provides that a person may make an application to the principal registrar of VCAT that any documents lodged in relation to a proceeding under this Act not be disclosed to a specified person or class of persons.

(b)the names of—

(i)the parties to the proceeding; and

(ii)the other persons entitled to the notice under section 26;

(c)information about the rights of the party in relation to the application.

(2)A notice of an application given to a person referred to in section 26 who is not a party to the application must include the following—

(a)a copy of the application;

(b)the names of—

(i)the parties to the proceeding; and

(ii)the other persons entitled to the notice under section 26;

(c)information about the rights of the person to seek information about the application;

(d)information about how to apply to VCAT to be made a party to the proceeding.

28Date for hearing of application for guardianship order or administration order

VCAT must commence to hear an application made under this Division within 30 days after the day on which the application is received by VCAT unless VCAT or the principal registrar under Division 5 of Part 4 of the VCAT Act—

(a)requires the parties to attend a compulsory conference in relation to the application; or

(b)refers the proceeding in relation to the application, or any part of it, for mediation.

29Participation of proposed represented person at hearing

The proposed represented person must attend in person a hearing conducted by VCAT in relation to an application made under this Division unless VCAT is satisfied that—

(a)the proposed represented person does not wish to attend the hearing in person; or

(b)the personal attendance of the proposed represented person at the hearing is impracticable or unreasonable, despite any arrangement that VCAT may make.

Note

See section 100(1) of the VCAT Act which provides that if VCAT thinks it appropriate, it may conduct all or part of a proceeding by means of a conference conducted using telephones, video links or any other system of telecommunication.

Division 2—Making guardianship orders and administration orders and eligibility of persons appointed

30VCAT may make a guardianship order or administration order

(1)After considering an application made under Division 1—

(a)VCAT may make one or more of the following orders—

(i)a guardianship order, subject to subsection (2);

(ii)an administration order, subject to subsection (2);

(iii)a supportive guardianship order under section 87, subject to Part 4;

(iv)supportive administration order under section 87, subject to Part 4; or

(b)VCAT may make no order under this Act.

Note

See sections 34(1)(f) and 36 in relation to guardianship orders and administration orders that are urgent orders.

(2)VCAT may only make a guardianship order or an administration order under this Division if satisfied that—

(a)because of the proposed represented person's disability, the person does not have decision‑making capacity in relation to—

(i)in the case of a guardianship order, the personal matter in relation to which the order is sought; or

(ii)in the case of an administration order, the financial matter in relation to which the order is sought; and

(b)the proposed represented person is in need of a guardian or administrator, as the case requires; and

Note

Section 31 sets out factors to consider in determining whether a person is in need of a guardian or an administrator.

(c)the guardianship order or administration order, as the case requires, will promote the proposed represented person's personal and social wellbeing; and

(d)in the case of an application for an administration order for a proposed represented person who does not reside in Victoria, State Trustees has not been authorised under section 12 of the State Trustees (State Owned Company) Act1994 to collect, manage, sell or otherwise dispose of or administer any property in Victoria in relation to which the administration order is sought.

31Factors to consider in determining need for guardian or administrator

For the purposes of section 30(2)(b), in determining whether a person is in need of a guardian or administrator, VCAT must consider the following—

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

(b)whether decisions in relation to the personal or financial matter for which the order is sought—

(i)may more suitably be made by informal means; or

(ii)may reasonably be made through negotiation, mediation or similar means;

(c)the wishes of any primary carer or relative of the proposed represented person or other person with a direct interest in the application;

(d)the desirability of preserving existing relationships that are important to the proposed represented person.

32Persons eligible as guardians or administrators

(1)VCAT may appoint as a guardian any individual who is of or over the age of 18 years and who consents to act as guardian if VCAT is satisfied that the individual—

(a)will act in accordance with the duties set out in Division 4; and

(b)is not in a position where the individual'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 for the proposed represented person.

(2)VCAT may appoint as an administrator any person (individual or body corporate) which, in the case of an individual, is of or over the age of 18 years and which consents to act as administrator if VCAT is satisfied that the person—

(a)will act in accordance with the duties set out in Division 7; 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 administrator in relation to the proposed represented person; and

(d)has sufficient expertise to make decisions about any financial matter to be specified in the administration order.

(3)In determining whether a person is a suitable person to act as a guardian or administrator for a proposed represented person, VCAT must take into account the following—

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

(b)the desirability of preserving existing relationships that are important to the proposed represented person;

(c)the desirability of appointing a person who is a relative of the proposed represented person, or who has a personal relationship with the proposed represented person, rather than appointing a person with no such relationship;

(d)whether the person will be available to the proposed represented person and able to meet and communicate with the proposed represented person;

(e)whether the person will act cooperatively with any current guardian or administrator for the proposed represented person (as the case requires);

(f)whether, in the case of an administration order, the person proposed as administrator is or was a member of VCAT as constituted for a proceeding under this Act.

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

(5)VCAT must not assume without any evidence that a proposed represented person's relative who is proposed as the guardian or administrator—

(a)has interests that conflict, or may conflict, with those of the proposed represented person merely because the proposed guardian or administrator is a relative of the proposed represented person; or

(b)is not suitable to be appointed as the guardian or administrator merely because that relative disagrees with another relative of the proposed represented person about a matter pertaining to the proposed represented person.

(6)If a statement of wishes for a future appointment was lodged under section 35, VCAT must consider that statement.

33Other matters pertaining to appointments

(1)VCAT may appoint the Public Advocate as guardian for a proposed represented person if VCAT is satisfied that no other person fulfils the requirements of section 32 for appointment as a guardian for the proposed represented person.

(2)Despite anything to the contrary in subsection (1), VCAT may appoint persons (including the Public Advocate or any other person) as joint guardians for the proposed represented person if—

(a)each person fulfils the relevant requirements of section 32; and

(b)VCAT considers it appropriate to do so.

34Matters to be specified in guardianship orders and administration orders

(1)A guardianship order must specify the following—

(a)the name of the represented person;

(b)the name of the guardian;

(c)the personal matters in relation to which the guardian has powers;

(d)whether VCAT specifically confers on the guardian the power to undertake legal proceedings under section 40;

(e)any restrictions on the guardian's exercise of a power referred to in paragraph (c) or (d);

(f)whether the order is an urgent order.

(2)An administration order must specify the following—

(a)the name of the represented person;

(b)the name of the administrator;

(c)the financial matters in relation to which the administrator has powers;

(d)any other power referred to in Division 6 that VCAT specifically confers on the administrator;

Note

Sections 51 and 52 provide for powers which may be specified in an administration order.

(e)any restrictions on the administrator's exercise of a power referred to in paragraph (c) or (d);

(f)whether the order is an urgent order.

35Statement of wishes for future appointment may be lodged

(1)The following persons in relation to a represented person may lodge with VCAT at any time a statement of wishes for a future guardian or administrator appointment for the represented person—

(a)the guardian;

(b)the supportive guardian;

(c)the administrator;

(d)the supportive administrator;

(e)the primary carer;

(f)a relative.

(2)A statement of wishes for a future guardian or administrator appointment referred to in subsection (1) must set out—

(a)the wishes of the person lodging the statement as to who in the future should be appointed as a guardian or administrator for the represented person; and

(b)the reasons for those wishes.

36Urgent guardianship orders and urgent administration orders

(1)VCAT may waive any of the requirements set out in section 24, 26, 27 or 29 and make an urgent guardianship order or urgent administration order under section 30 if VCAT is satisfied on reasonable grounds that there is an immediate risk of harm to the health, welfare or property of a proposed represented person if the order were not made.

(2)The risk of harm referred to in subsection (1) may be caused by one or more factors, including the following—

(a)abuse, exploitation or neglect of the proposed represented person;

(b)self-neglect by the proposed represented person.

(3)A guardianship order or administration order that is an urgent order—

(a)remains in force for the period specified in the order, being a period not exceeding 21 days; and

(b)may be renewed once for a further period not exceeding 21 days.

37Hearing after making of urgent guardianship order or urgent administration order

As soon as practicable after making a guardianship order or an administration order that is an urgent order (but within 42 days after making such an order) VCAT must hold a hearing to determine whether a guardianship order or an administration order (as the case requires) that is not an urgent order should be made.

Division 3—Powers of guardians

38Powers of guardians

(1)A guardianship order confers on the person appointed as guardian—

(a)a power to make decisions about the personal matters in relation to the represented person that are specified in the order; and

(b)the power to sign and do any thing that is necessary to give effect to any power or duty vested in the guardian; and

(c)the power to undertake legal proceedings under section 40, if specified in the order.

(2)For the purposes of subsection (1)(c), VCAT may only specify the power to undertake legal proceedings under section 40 if VCAT is satisfied that the power is necessary or desirable for the purposes of promoting the represented person's personal and social wellbeing.

(3)A decision made, action taken, consent given or thing done by a guardian under a guardianship order has effect as if it were made, taken, given or done by the represented person and the represented person had decision-making capacity for the matter in relation to which the order was made.

39Matters for which power cannot be given under a guardianship order

Despite anything to the contrary in this Division, a guardianship order does not confer on the person appointed as guardian the power—

(a)to make or revoke a will for the represented person; or

(b)to make or revoke an enduring power of attorney for the represented person; or

(c)to vote on the represented person's behalf in an election for the State or the Commonwealth or another State or a Territory of the Commonwealth or in a local election or a referendum; or

(d)to consent to the entering into, or dissolving of, a marriage of the represented person or a sexual relationship of the represented person; or

(e)to make or give effect to a decision about—

(i)the care and wellbeing of a child of the represented person; or

(ii)the adoption of a child under the age of 18 years of the represented person; or

(f)to enter into, or agree to enter into, a surrogacy arrangement within the meaning of the Assisted Reproductive Treatment Act 2008 on the represented person's behalf; or

(g)to consent to the making or discharge of a substitute parentage order within the meaning of the Status of Children Act 1974 on the represented person's behalf; or

(h)to manage the estate of the represented person on the death of the represented person; or

(i)to consent to an unlawful act.

40Power for guardian to undertake legal proceedings

(1)VCAT may specify in a guardianship order that the guardian has power to bring and defend an action or other legal proceeding in the name, and on behalf, of the represented person if the action or other legal proceeding is in relation to a personal matter specified in the order.

(2)A guardian on whom the power to bring and defend actions and other legal proceedings is conferred is not required to be appointed a litigation guardian in accordance with rules of the relevant court or tribunal.

(3)If a guardian undertakes a legal proceeding in accordance with subsection (1), the costs of the proceeding are to be paid out of the represented person's estate.

(4)Despite subsection (3), a court or tribunal may order that a guardian is personally liable to pay for any costs of the legal proceeding if the guardian was negligent or engaged in misconduct.

(5)A court or tribunal may order that a person who is or was a guardian be reimbursed from the represented person's estate for any costs incurred by the person as a guardian in bringing or defending an action or other legal proceeding in accordance with subsection (1).

Division 4—Duties of guardians

41Exercise of power by guardian

(1)A guardian—

(a)must act in accordance with the general principles set out in section 8 and the decision-making principles set out in section 9; and

(b)must act as an advocate for the represented person; and

(c)must encourage and assist the represented person to develop the person's decision-making capacity in relation to personal matters; and

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

(e)must act honestly, diligently and in good faith; and

(f)must exercise reasonable skill and care; and

(g)must not use the position for profit; and

(h)must avoid acting if there is or may be a conflict of interest; and

(i)must not disclose confidential information gained as a guardian unless authorised to do so under the guardianship order or by law.

(2)A guardian who has the power to make medical treatment decisions for a represented person must comply with the Medical Treatment Planning and Decisions Act 2016 in relation to those decisions.

42Guardian to report death of represented person

If a guardian is advised of the death of a represented person for whom the guardian is appointed, the guardian must report the death in writing to VCAT as soon as practicable.

Division 5—Other matters pertaining to applications for guardianship orders and to guardianship orders

43Special order in relation to proposed represented person unlawfully detained or at risk of harm

(1)This section applies if—

(a)an application for a guardianship order has been made under section 22; and

(b)VCAT has received information on oath or affirmation that the proposed represented person—

(i)is unlawfully detained against the person's will; or

(ii)is likely to suffer serious damage to the person's physical, emotional or mental health or wellbeing unless immediate action is taken.

(2)VCAT may by order empower the Public Advocate, or some other person specified in the order, to visit the proposed represented person in the company of a police officer for the purpose of preparing a report for VCAT.

(3)If, after receiving a report referred to in subsection (2), VCAT is satisfied that one of the circumstances described in subsection (1)(b) exists, VCAT may make an order enabling the proposed represented person to be taken to a place specified in the order for assessment and placement until the application under section 22 is determined.

(4)A police officer acting under an order made under subsection (2) may, with such assistance as is necessary, use reasonable force to enter the premises where the proposed represented person is.

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

Penalty:20 penalty units.

Note

Section 193 applies to an offence against this subsection.

44Guardian may seek advice from VCAT

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

(2)After considering an application for advice or on its own initiative, VCAT may—

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

(b)give advice as it considers appropriate; and

(c)make any order it considers necessary.

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

45Order for represented person to comply with guardian's decisions

(1)VCAT may make an order at any time while a guardianship order is in force that gives the guardian or another specified person power 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.

(2)VCAT must hold a hearing to reassess an order made under subsection (1) as soon as practicable after making the order but within 42 days after making the order.

(3)A guardian or other person specified in an order made under subsection (1) 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 a measure or action under the order if the guardian or other person takes that measure or action in the belief that it will promote the represented person's personal and social wellbeing.

(4)Subsection (1) does not limit section 38.

Division 6—Powers of administrators

46Powers of administrators

(1)An administration order confers on the person appointed as administrator—

(a)a power to make decisions about the financial matters in relation to the represented person specified in the order; and

(b)a power to make gifts in accordance with section 47; and

(c)a power of investment in accordance with section 48; and

(d)a power to open the will of the represented person in accordance with section 49; and

(e)any other power that is specified in the order; and

Note

Sections 51 and 52 provide for powers which may be specified in an administration order.

(f)a power to sign and do any thing that is necessary to give effect to any power or duty vested in the administrator; and

(g)a power to do all matters necessary or incidental to the performance of any power conferred on the administrator.

(2)For the purposes of subsection (1)(e), VCAT may only specify a power if VCAT is satisfied that the power is necessary or desirable for the purposes of promoting the represented person's personal and social wellbeing.

(3)Subject to, and in accordance with, this Act and the administration order, an administrator may do all acts and exercise all powers in relation to the financial matters specified in the order in the name, and on behalf, of the represented person as effectually and in the same manner as the represented person may have done if the represented person had the relevant decision-making capacity.

(4)A decision made, action taken, consent given or thing done by an administrator under an administration order has effect as if it were made, taken, given or done by the represented person and the represented person had decision-making capacity for the matter in relation to which the order was made.

47Power to make gifts

(1)Except as provided in any order of VCAT, an administrator may make a gift of a represented person's property if—

(a)the gift is reasonable, having regard to all the circumstances, including the represented person's financial circumstances; and

(b)the gift is—

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

Example

An example of a special event is a birth or a marriage.

(ii)of a type of donation that the represented person made when the represented person had decision-making capacity in relation to making donations or that the represented person might reasonably be expected to make.

(2)A gift may be made by an administrator under subsection (1) even if the gift is made to—

(a)the administrator; or

(b)a relative or close friend of the administrator; or

(c)an organisation with which the administrator has a connection.

Note

Section 61 sets out accounting requirements in relation to certain gifts that are of or over $100 or the prescribed amount (whichever is greater).

48Powers of investment

Except as provided in section 76 or in any order of VCAT, an administrator—

(a)in the case of investments of the represented person, may continue those investments in the manner in which they were invested by the represented person for such period as the administrator thinks fit, including taking up rights to issues of new shares and options; and

(b)in the case of money deposited in an ADI, may re-deposit it after it becomes payable; and

(c)in the case of property, has, and may, exercise the same powers as the administrator would have if the administrator were a trustee in

relation to that property under the Trustee Act 1958.

49Power to open will deposited with administrator

An administrator may, either before or after the death of the represented person, open and read without an order of VCAT any paper or writing deposited with the administrator that is a will, a revoked will, a purported will or a copy of a will of the represented person.

50Power to exercise certain powers vested in represented person

(1)An administrator may, on behalf and in the name of a represented person, exercise a power or give consent as the administrator thinks fit if—

(a)the power is vested in a represented person for that person's own benefit or the consent of the represented person is necessary to the exercise of the power; and

(b)the power or consent is in the nature of a beneficial interest in the represented person; and

(c)the administrator believes exercising the power or giving the consent will benefit the represented person.

(2)An administrator may, on behalf and in the name of a represented person, exercise a power or give consent as the administrator thinks fit if—

(a)the power is vested in the represented person in the represented person's capacity as a trustee or guardian of a trust or the consent of the represented person to the exercise of a power is necessary in the represented person's capacity as a trustee or guardian of a trust; and

(b)the administrator believes that the power should be exercised or that the consent should be given.

(3)The exercise under this section by an administrator of a power vested in a represented person to appoint a new trustee is taken to be power to appoint a new trustee within the meaning of section 45 of the Trustee Act 1958.

51Power for administrator to undertake legal proceedings

(1)VCAT may specify in an administration order that the administrator has power to bring and defend an action or other legal proceeding in the name, and on behalf, of a represented person if the action or other legal proceeding is in relation to a financial matter specified in the order.

(2)An administrator on whom the power to bring and defend actions and other legal proceedings is conferred is not required to be appointed a litigation guardian in accordance with rules of the relevant court or tribunal.

(9)In this section, Court means—

(a)the Supreme Court; or

(b)the County Court; or

(c)the Magistrates' Court.

180Effect of setting aside administration order or administration (missing person) order on previous actions of administrator

(1)An order of a court or VCAT (the setting aside order) that sets aside, or has the effect of setting aside, an administration order or administration (missing person) order does not affect the validity of anything done in accordance with the administration order or administration (missing person) order before the setting aside order takes effect.

(2)Subsection (1) is subject to any order to the contrary by the court or VCAT making the setting aside order.

181Compensation for acts of guardian or administrator

(1)The Supreme Court or VCAT may order a guardian or administrator to compensate the represented person or missing person for whom the guardian or administrator is appointed for a loss caused by the guardian or administrator contravening this Act when acting as guardian or administrator.

(2)Subsection (1) applies even if—

(a)the guardian or administrator is convicted of an offence in relation to the guardian's or administrator's contravention; or

(b)the represented person or missing person has died, in which case compensation is payable to the estate of the represented person or missing person; or

(c)the order appointing the guardian or administrator is no longer in force or is revoked or set aside.

182Relief from personal liability

If the Supreme Court or VCAT considers that a guardian or administrator—

(a)is or may be personally liable for a contravention of a provision of this Act; and

(b)acted honestly and reasonably and ought fairly to be excused for the contravention—

the Supreme Court or VCAT may relieve the guardian or administrator from all or part of that personal liability.

183Who can apply for an order for compensation?

The following persons may apply for an order for compensation under section 181—

(a)the represented person or a person who has ceased to be a represented person;

(b)a former missing person;

(c)the personal representative of a person referred to in paragraph (a) or (b);

(d)an executor or administrator (within the meaning of the Administration and Probate Act 1958) of the represented person's or missing person's estate;

(e)the Public Advocate;

(f)the nearest relative of the represented person or missing person;

(g)any other person the Supreme Court or VCAT determines to have a special interest in the affairs of the represented person or missing person.

184Time limit for application for order for compensation

(1)An application for an order for compensation under section 181 must be made—

(a)if the represented person or missing person has died, within 6 months after that death; or

(b)if the guardian or administrator has died, within 6 months after that death; or

(c)if both the represented person (or missing person) and the guardian (or administrator) have died, within 6 months after the first death.

(2)The Supreme Court or VCAT may extend the time specified under subsection (1).

185VCAT may refer matter to Supreme Court

VCAT may refer to the Supreme Court an application made to VCAT for an order for compensation under section 181.

186No compensation

No compensation is payable by the State in relation to any damage, loss or injury sustained by a person by reason of an act or omission of a guardian or an administrator under this Act.

187Judicial notice

All courts and persons acting judicially must take judicial notice of the signature of any person who is or has been the Public Advocate or Acting Public Advocate and of the fact that that person is or was the Public Advocate or Acting Public Advocate (as the case requires).

188Offence for guardian to use guardianship order dishonestly

(1)A guardian must not dishonestly use the guardianship order to obtain financial advantage for the guardian or another person.

Penalty:Level 6 imprisonment (5 years maximum) or 600 penalty units

or both.

(2)A guardian must not dishonestly use the guardianship order to cause loss to the represented person or another person.

Penalty:Level 6 imprisonment (5 years maximum) or 600 penalty units

or both.

189Offence for administrator to use administration order dishonestly

(1)An administrator must not dishonestly use the administration order to obtain financial advantage for the administrator or another person.

Penalty:In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both;

In the case of a body corporate, 2300 penalty units.

(2)An administrator must not dishonestly use the administration order to cause loss to the represented person or another person.

Penalty:In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both;

In the case of a body corporate, 2300 penalty units.

Note

Section 193 applies to an offence against subsection (1) or (2).

190Offence for administrator to use administration (missing person) order dishonestly

(1)An administrator must not dishonestly use the administration (missing person) order to obtain financial advantage for the administrator or another person.

Penalty:In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both;

In the case of a body corporate, 2300 penalty units.

(2)An administrator must not dishonestly use the administration (missing person) order to cause loss to the missing person or another person.

Penalty:In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both;

In the case of a body corporate, 2300 penalty units.

Note

Section 193 applies to an offence against subsection (1) or (2).

191Offence for supportive guardian to use supportive guardianship order dishonestly

(1)A supportive guardian must not dishonestly use the supportive guardianship order to obtain financial advantage for the supportive guardian or another person.

Penalty:Level 6 imprisonment (5 years maximum) or 600 penalty units

or both.

(2)A supportive guardian must not dishonestly use the supportive guardianship order to cause loss to the supported person or another person.

Penalty:Level 6 imprisonment (5 years maximum) or 600 penalty units

or both.

192Offence for supportive administrator to use supportive administration order dishonestly

(1)A supportive administrator must not dishonestly use the supportive administration order to obtain financial advantage for the supportive administrator or another person.

Penalty:In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both;

(2)A supportive administrator must not dishonestly use the supportive administration order to cause loss to the supported person or another person.

Penalty:In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both;

193Criminal liability of officers of bodies corporate—failure to exercise due diligence

(1)If a body corporate commits an offence against a provision specified in subsection (2), an officer of the body corporate also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the body corporate.

(2)For the purposes of subsection (1), the following provisions are specified—

(a)section 43(5);

(b)section 189(1);

(c)section 189(2);

(d)section 190(1);

(e)section 190(2).

(3)In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to—

(a)what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and

(b)whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and

(c)what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and

(d)any other relevant matter.

(4)Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear.

(5)An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision.

(6)In this section—

body corporate has the same meaning as corporation has in section 57A of the Corporations Act;

officer, in relation to a body corporate, means—

(a)a person who is an officer (as defined by section 9 of the Corporations Act) of the body corporate; or

(b)a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the body corporate.

194Regulations

(1)The Governor in Council may make regulations for or with respect to—

(a)prescribing any treatment to be a special medical procedure for the purposes of

Part 6; and

(b)prescribing annual fees to be paid in relation to estates which are the subject of an administration order; and

(c)any matter or thing authorised or required to be prescribed or necessary to be prescribed for carrying this Act into effect.

(2)Regulations under this Act—

(a)may be of general or of specially limited application; and

(b)may differ according to differences in time, place or circumstance; and

(c)may impose a penalty not exceeding 10 penalty units for any contravention of the regulations.

(3)Regulations made under subsection (1)(b)—

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

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

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

(4)Before the Governor in Council may make regulations under subsection (1)(b), the Minister must advise the Governor in Council that the Minister—

(a)has consulted the President of VCAT; 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 to meet the costs and expenses of VCAT in relation to proceedings under this Act in that year.

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PART 10—REPEAL OF GUARDIANSHIP AND ADMINISTRATION ACT 1986 AND SAVINGS AND TRANSITIONAL PROVISIONS

196Definitions

(1)In this Part—

commencement day means the day on which section 197 comes into operation;

new Act means the Guardianship and Administration Act 2019;

old Act means the Guardianship and Administration Act 1986.

(2)A word or expression that is defined in the old Act and is used in this Part in relation to the old Act has the same meaning as is given in the old Act.

197Guardianship and Administration Act 1986 repealed

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

(2)Except as is expressly or by necessary implication provided in the new Act, all persons, things and circumstances appointed or created by or under the old Act or existing or continuing under the old Act immediately before commencement day continue under and subject to the new Act to have the same status, operation and effect as they would have had if the old Act had not been repealed.

(3)On and after commencement day, any reference in any Act (other than the new Act or regulations under that Act), regulation, subordinate instrument or other document whatsoever to the old Act is to be construed as a reference to the new Act unless the contrary intention appears.

(4)Nothing in this Part limits or otherwise affects the operation of the Interpretation of Legislation Act 1984.

198Guardianship orders made under the old Act

(1)Despite the repeal of the old Act, a guardianship order made under section 22 or 33 of the old Act and in force immediately before commencement day remains in force for the period specified in the order unless sooner revoked or set aside by an order of a court or VCAT and—

(a)subject to anything to the contrary in this Part, the provisions of the old Act continue to apply, and the provisions of the new Act do not apply, to the guardian appointed under that guardianship order and to the represented person; and

(b)without limiting the generality of paragraph (a), the powers and duties of the guardian appointed by the guardianship order are the powers and duties conferred on the guardian under the old Act; and

(c)if, before the revocation or setting aside of the guardianship order, the alternative guardian takes over the office of the guardian in accordance with section 35 of the old Act, 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.

(2)On and after commencement day, the following provisions of the new Act apply to the guardian and to the represented person referred to in subsection (1)—

(a)section 177 of the new Act (resolution of disagreements);

(b)section 178 of the new Act (enforcement orders);

(c)sections 181 to 186 of the new Act (compensation), as if the contravention relevant to those provisions were a contravention of a provision under the old Act occurring after commencement day;

(d)section 188 of the new Act (offences to use guardianship order dishonestly).

(3)On and after commencement day, a temporary guardianship order made under section 33 of the old Act may be renewed once in accordance with section 33(2) of that Act and VCAT must hold a hearing to determine whether a guardianship order should be made under the new Act as soon as practicable after the making of the temporary order under the old Act but within 42 days after making that order.

199Administration orders made under the old Act

(1)Despite the repeal of the old Act, an administration order made under section 46

or 60 of the old Act and in force immediately before commencement day remains in force for the period specified in the order unless sooner revoked or set aside by an order of a court or VCAT and—

(a)subject to anything to the contrary in this Part, the provisions of the old Act continue to apply in relation to the administrator appointed under that administration order and to the represented person; and

(b)without limiting the generality of paragraph (a), the powers and duties of the administrator appointed by the administration order are the powers and duties conferred on the administrator under the old Act.

(2)On and after commencement day, the following provisions of the new Act apply to the administrator and to the represented person referred to in subsection (1)—

(a)section 51(3), (4) and (5) of the new Act, if the administration order made under the old Act conferred on the administrator the power to bring and defend actions and other legal proceedings in the name of the represented person under section 58B of the old Act;

(b)Division 8 of Part 3 of the new Act;

(c)section 177 of the new Act (resolution of disagreements);

(d)section 178 of the new Act (enforcement orders);

(e)sections 181 to 186 of the new Act (compensation), as if the contravention relevant to those provisions were a contravention of a provision under the old Act occurring after commencement day;

(f)section 189 of the new Act (offences to use administration order dishonestly).

(3)On and after commencement day, a temporary administration order made under section 60 of the old Act may be renewed once in accordance with section 60(2) of that Act and VCAT must hold a hearing to determine whether an administration order should be made under the new Act as soon as practicable after the making of the temporary order under the old Act but within 42 days after making that order.

200Administration orders made under the old Act in respect of the estate of a missing person

(1)Despite the repeal of the old Act, an administration order made under section 60AB or 60AG of the old Act and in force immediately before commencement day remains in force for the period specified in the order unless sooner revoked or set aside by an order of a court or VCAT and—

(a)subject to anything to the contrary in this Part, the provisions of the old Act continue to apply in relation to the administrator appointed under that administration order and to the missing person; and

(b)without limiting the generality of paragraph (a), the powers and duties of the administrator appointed by the administration order are the powers and duties conferred on the administrator under the old Act.

(2)On and after commencement day, the following provisions of the new Act apply to the administrator and to the missing person referred to subsection (1)—

(a)section 113(3), (4) and (5) of the new Act, if the administration order made under the old Act conferred on the administrator the power to bring and defend actions and other legal proceedings in the name of the missing person under section 58B of the old Act (as modified by section 60AI of the old Act);

(b)Division 5 of Part 5 of the new Act;

(c)section 177 of the new Act (resolution of disagreements);

(d)section 178 of the new Act (enforcement orders);

(e)sections 181 to 186 of the new Act (compensation), as if the contravention relevant to those provisions were a contravention of a provision under the old Act occurring after commencement day;

(f)section 190 of the new Act (offences to use administration (missing person) order dishonestly).

(3)On and after commencement day, a temporary administration order appointing an administrator in respect of the estate of a missing person made under section 60AG of the old Act may be renewed once in accordance with section 60AG(2) of that Act and VCAT must hold a hearing to determine whether an administration (missing person) order should be made under the new Act as soon as practicable after the making of the temporary order under the old Act but within 42 days after making that order.

201Applications made under the old Act for guardianship orders and administration orders

(1)On and after commencement day, an application made under section 19 of the old Act for a guardianship order that is not determined before commencement day—

(a)is taken to be an application made under section 22 of the new Act for a guardianship order; and

(b)must be determined by VCAT in accordance with the new Act.

(2)On and after commencement day, an application made under section 43 of the old Act for an administration order that is not determined before commencement day—

(a)is taken to be an application made under section 23 of the new Act for an administration order; and

(b)must be determined by VCAT in accordance with the new Act.

(3)On and after commencement day, an application made under section 60AA of the old Act for an administration order in respect of the estate of a missing person that is not determined before commencement day—

(a)is taken to be an application made under section 99 of the new Act for an administration (missing person) order; and

(b)must be determined by VCAT in accordance with the new Act.

202Special medical procedures

(1)On and after commencement day, an application for the Tribunal's consent to the carrying out of any special medical procedure made under section 42B of the old Act that is not determined before commencement day must be determined in accordance with Part 6 of the new Act.

(2)On and after commencement day, a consent given by the Tribunal under section 42E of the old Act is taken to be a consent given by VCAT under section 145 of the new Act.

(3)On and after commencement day, an authority conferred by the Tribunal under section 42F of the old Act is taken to be an authority conferred by VCAT under section 146 of the new Act.

203Rehearings of orders made under the old Act

Despite the repeal of the old Act, on and after commencement day—

(a)a person may apply under section 60A of the old Act, within 28 days after an order under that Act was made, for a rehearing (or for leave to apply for a rehearing) in relation to that order; and

(b)any application for a rehearing (or for leave to apply for a rehearing) in relation to an order made under the old Act that is not determined before commencement day must be determined by VCAT in accordance with the old Act; and

(c)in conducting a rehearing in relation to an order made under the old Act, VCAT is taken to have the same powers and functions as it had with respect to the matter at first instance under the old Act; and

(d)any order made by VCAT in determining the application for the rehearing is taken to be an order under the old Act and, accordingly, sections 198, 199 and 200 of the new Act apply to that order.

204Reassessments of orders made under the old Act

(1)A reassessment of an order made under the old Act (irrespective of whether the application for the reassessment is made before or after commencement day or on VCAT's initiative before or after commencement day) that is not determined before commencement day must be conducted in accordance with the new Act.

(2)Despite anything to the contrary in subsection (1)—

(a)in the course of conducting the reassessment, VCAT is not to consider whether, as the case requires—

(i)the guardian appointed at first instance has performed duties in compliance with section 41 of the new Act; or

(ii)the administrator appointed at first instance in an administration order has performed duties in compliance with section 55 of the new Act; and

(b)on completing the reassessment, VCAT—

(i)must revoke the order; and

(ii)may make an order under the new Act.

205Interstate orders

(1)On and after commencement day, an agreement referred to in section 63D of the old Act is taken to be an agreement referred to in section 171 of the new Act.

(2)On and after commencement day, an interstate order that is registered under section 63E of the old Act is taken to be an interstate order registered under section 172 of the new Act.

206VCAT may make orders of a transitional nature

(1)If any difficulty arises in a proceeding because of the operation of this Part, VCAT may make any order of a transitional nature it considers appropriate to resolve the difficulty.

(2)VCAT may make such an order on the application of any party to the proceeding or on its own initiative.

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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: 19 December 2018

Legislative Council: 2 May 2019

The long title for the Bill for this Act was "A Bill for an Act to re-enact with amendments the law relating to guardianship and administration, to repeal the Guardianship and Administration Act 1986 and to amend consequentially various other Acts and for other purposes."

The Guardianship and Administration Act 2019 was assented to on 4 June 2019 and came into operation as follows:

Part 1 (sections 1–9), section 195 on 28 February 2020: Special Gazette (No. 91) 25 February 2020 page 1; sections 10–194, 196–222, Schedule 1 on 1 March 2020: section 2(2).

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 2019 by Acts and subordinate instruments.

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

Guardianship and Administration Act 2019, No. 13/2019

Assent Date:	4.6.19
Commencement Date:	S. 222 on 1.3.20: s. 2(2); s. 195(5) on 28.2.20 Special Gazette (No. 91) 25.2.20 p. 1
Note:	S. 222 repealed Pt 11 (ss 207–222), Sch. 1 on 1.3.21; s. 195(5) provided that s. 195 expired on 28.2.22
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 2019

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

Assent Date:	25.6.19
Commencement Date:	S. 262(1) on 1.3.20: s. 2(2); s. 262(2) on 1.7.20: s. 2(4)
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 2019

Local Government Act 2020, No. 9/2020

Assent Date:	24.3.20
Commencement Date:	S. 390(Sch. 1 item 46) on 6.4.20: Special Gazette (No. 150) 24.3.20 p. 1
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 2019

Social Services Regulation Act 2021, No. 37/2021 (as amended by No. 40/2022)

Assent Date:	21.9.21
Commencement Date:	S. 393 on 1.7.24: s. 2(2)
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 2019

Mental Health and Wellbeing Act 2022, No. 39/2022

Assent Date:	6.9.22
Commencement Date:	S. 827 on 1.9.23: s. 2(2)
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 2019

Disability and Social Services Regulation Amendment Act 2023, No. 9/2023

Assent Date:	23.5.23
Commencement Date:	S. 234 on 24.5.23: s. 2(1); s. 256 on 1.7.24: s. 2(3)
Current State:	This information relates only to the provision/s amending the Guardianship and Administration Act 2019

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

3   Explanatory details

No entries at date of publication.