Victoria Medical Decision Maker now in Place v Outdated Medical EPOA

Changes to Victorian guardianship laws simplify and modernise guardianship, protecting and promoting the human rights and dignity of adults with a disability, including the elderly and those with age-related illnesses and impaired decision making. It also introduces new offences.

Lawyer Juliet O’Brien outlines the key issues that those involved with guardianship and administration matters for represented persons need to be aware of.

The Guardianship and Administration Act 2019 (GAA) will come into force in Victoria on 1 March 2020.  This Act replaces the Guardianship and Administration Act 1986 (Victoria).  There has been significant change in Victorian law in recent years surrounding our right to make decisions. This is seen in reforms to the laws relating to powers of attorney in 2015 and 2017, voluntary assisted dying in 2019 and now guardianship in 2020.

Where is the GAA relevant?

The GAA is relevant for people who do not have capacity to execute enduring power of attorney or appointment of medical treatment decision maker documents, and allows Victorian Civil Administrative Tribunal (VCAT), to appoint an administrator (for financial and legal decisions) and a guardian (for medical treatment and related decisions).

Focus of the GAA

This new GAA simplifies and modernises guardianship, protecting and promoting the human rights and dignity of adults with a disability, including the elderly, particularly those with age related illnesses and impaired decision making.  It takes into account the United Nation’s Convention on 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.

The new GAA takes a more realistic view of what constitutes decision making capacity, recognising that a person has decision making capacity if they can make decisions with support.  The focus is on capacity, maximising participation of the represented person in the decision making, and allowing for a broader range of decision making.  A number of changes mirror the changes made earlier to laws governing powers of attorney, including dealing with conflicts, compensation provisions and penalty provisions where an administrator or guardian acts inappropriately.

Where a guardianship or administration order is made by VCAT, it can set safeguards and limits on the powers of guardians and administrators including:

• require regular review of orders; and
• providing guidance to them when making decisions.

Importantly, VCAT can tailor an order to an individual’s specific circumstances.  This will enable persons with decision making capacity regarding the matter at hand, to receive appropriate and practicable support, rather than to have another person making the decision for them.  This follows the concepts introduced around ‘supportive attorney’ appointments under the Powers of Attorney Act 2014 (Victoria).

Further, Orders made under the old GAA will continue to remain in force unless revoked or set aside by a Court or VCAT.

Powers of attorney?

It is also important to remember these provisions usually only apply where a person has lost decision making capacity.

Where a person has decision making capacity, or importantly is starting to show signs of diminished capacity, they should put in place Enduring Powers of Attorney and Appointments of Medical Treatment Decision Maker.  This gives a person the ability to appoint people they want to make financial, legal, personal and medical treatment decisions and not be reliant on VCAT making that appointment after decision making capacity is lost.  It also avoids family members or friends having to apply to VCAT to be appointed as administrators and guardians.

Please contact us if you or your clients require assistance with any of these matters.