Victorian Bills

[Index] [Search] [Download] [Related Items] [Help]


This is a Bill, not an Act. For current law, see the Acts databases.


GUARDIANSHIP AND ADMINISTRATION BILL 2014

                 PARLIAMENT OF VICTORIA

       Guardianship and Administration Bill 2014



                      TABLE OF PROVISIONS
Clause                                                                  Page

PART 1--PRELIMINARY                                                        1
  1      Purposes                                                          1
  2      Commencement                                                      2
  3      Definitions                                                       2
  4      Meaning of decision making capacity                              14
  5      Assessing decision making capacity                               16
  6      Objectives of Act                                                16
  7      Guardianship and administration principles                       17

PART 2--THE PUBLIC ADVOCATE                                               19
  8      Public Advocate                                                  19
  9      Terms and conditions of appointment                              19
  10     Resignation and vacancy                                          19
  11     Acting Public Advocate                                           20
  12     Oath or affirmation                                              21
  13     Functions of the Public Advocate                                 22
  14     Powers and duties of the Public Advocate                         23
  15     Staff of office of the Public Advocate                           25
  16     Delegation                                                       25
  17     Powers of inspection                                             26
  18     Confidentiality                                                  28
  19     Annual report                                                    29

PART 3--APPLICATION FOR GUARDIANSHIP AND
ADMINISTRATION ORDERS                                                     30
  20     Application for guardianship or administration order             30
  21     Matters to be included in application to VCAT                    31
  22     Who are the parties to a proceeding on an application?           31
  23     Who is entitled to notice of an application, the hearing and
         any order made in the proceeding?                                32
  24     Contents of notice of application                                33
  25     Date for hearing of application for guardianship or
         administration order                                             34
  26     Participation of proposed represented person at hearing          35
  27     Special powers in relation to proposed represented persons       35



571241B.I-20/8/2014                    i       BILL LA INTRODUCTION 20/8/2014

 


 

Clause Page PART 4--CONDITIONS FOR MAKING GUARDIANSHIP AND ADMINISTRATION ORDERS AND ELIGIBILITY OF PERSON APPOINTED 37 28 VCAT may make a guardianship or administration order 37 29 Factors to consider in determining need for guardian or administrator 38 30 Persons eligible as guardians or administrators 39 31 Factors to consider in relation to suitability of person appointed 40 32 Other matters pertaining to appointments 42 33 Wishes for future appointments may be lodged 43 PART 5--GUARDIANSHIP AND ADMINISTRATION ORDERS APPOINTING A PARENT AS GUARDIAN OR ADMINISTRATOR 44 34 Application provision 44 35 Parental application for guardianship or administration order 44 36 Matters to be included in application 46 37 Who are the parties to a proceeding? 49 38 Who is entitled to notice of an application? 49 39 Contents of notice of an application 50 40 Submissions may be made in relation to an application 50 41 When must VCAT make a guardianship or administration order on the papers? 51 42 When must VCAT commence hearing in relation to application for a guardianship order or an administration order? 51 43 Participation of proposed represented person at hearing 52 44 When must VCAT make guardianship or administration order following hearing? 52 45 Reassessment of orders made under this Part 53 46 VCAT may request information and documents 54 47 VCAT must give notice 54 48 Conduct of reassessment 55 49 Order after reassessment 56 PART 6--POWERS AND DUTIES OF GUARDIANS AND ADMINISTRATORS 57 Division 1--Guardians 57 50 Authority of a guardian 57 51 Appointment and authority of an alternative guardian 58 52 Temporary guardianship orders 59 53 Authority of guardians--general 59 54 Represented person to comply with guardian's decisions 60 571241B.I-20/8/2014 ii BILL LA INTRODUCTION 20/8/2014

 


 

Clause Page Division 2--Administrators 60 55 Authority of administrator 60 56 Temporary administration orders 61 Division 3--Powers and duties of all guardians and all administrators 62 57 Matters for which power cannot be given under an order made under section 28 62 58 Exercise of power by guardian or administrator 63 59 Ancillary powers of guardian or administrator 64 60 Guardian or administrator may seek advice 64 61 Notice of death of represented person 65 Division 4--Powers for all guardians with powers in relation to a financial matter and all administrators 65 62 General powers and rights in relation to estate of represented persons 65 63 Powers of investment 65 64 Power to make gifts 66 65 Exercise of certain powers 67 66 Guardian with powers in relation to a financial matter or administrator may open will 68 67 Guardian with powers in relation to a financial matter or an administrator may seek advice from professional adviser 69 Division 5--Powers that may be conferred on guardians with power in relation to a financial matter and administrators 69 68 Application of Division to guardians and administrators 69 69 Powers in relation to represented persons 70 Division 6--Additional duties of all guardians with power in relation to a financial matter and all administrators 73 70 Property of represented person 73 71 Conflict transactions 73 72 Permitted conflict transactions 74 73 Keeping records 74 74 Separation of guardian's or administrator's property and the property of the represented person 74 75 Accounts 75 76 Alternative accounting requirements for certain estates 77 Division 7--Other matters pertaining to the administration of estates of represented persons 78 77 Guardian's or administrator's power to act until notice received 78 78 Action on a person ceasing to be a represented person 79 571241B.I-20/8/2014 iii BILL LA INTRODUCTION 20/8/2014

 


 

Clause Page 79 Represented person entitled to inspection of accounts 80 80 Sale of personal effects if unclaimed within 2 years from date of discharge 80 81 Death of represented person 81 82 Restriction on powers of represented person in relation to estate 81 83 Interest of represented person in property not to be altered by sale or other disposition of property 82 84 VCAT may open will 83 85 Guardianship and Administration Fund 83 86 Application to VCAT by represented person or a person interested 84 PART 7--SUPPORTIVE GUARDIANSHIP ORDERS 85 Division 1--Application for supportive guardianship orders 85 87 Application for supportive guardianship orders 85 88 Matters to be included in application to VCAT 85 89 Who are the parties to a proceeding? 85 90 Who is entitled to notice of an application, the hearing and any order made in the proceeding? 86 91 Contents of notice of application 87 92 Date for hearing of application for supportive guardianship order 88 93 Participation at hearing by proposed supported person 88 Division 2--Conditions for making supportive guardianship orders and eligibility of person appointed 89 94 When may VCAT make a supportive guardianship order? 89 95 Conditions for making supportive guardianship orders 89 96 Factors to consider in determining appropriateness of supportive guardianship order 90 97 Persons eligible as supportive guardians 90 98 Factors to consider in relation to suitability of person appointed 91 Division 3--Powers of a supportive guardian 91 99 Power to make and scope of appointment 91 100 Information power 92 101 Communication power 93 102 Powers as to giving effect to decisions 93 103 Duties and obligations of supportive guardian 94 571241B.I-20/8/2014 iv BILL LA INTRODUCTION 20/8/2014

 


 

Clause Page Division 4--General 95 104 When does a supportive guardianship order cease to have effect? 95 105 Supportive guardian may seek advice from VCAT 95 106 Notice of death of supported person 96 PART 8--ADMINISTRATION (MISSING PERSON) ORDERS 97 Division 1--Application of administration (missing person) orders 97 107 Application for administration in relation to the estate of a missing person 97 108 Who is entitled to notice of an application, the hearing and any order made in the proceeding? 97 109 Contents of notice of application 98 110 Date for hearing 99 Division 2--Conditions for making administration (missing person) orders and eligibility of person appointed 100 111 Appointment of administrator in relation to the estate of a missing person 100 112 Persons eligible as administrator of missing person's estate 101 113 Factors to consider in relation to suitability of person appointed 102 114 Other matters pertaining to appointments 103 Division 3--Powers of administrator (missing person) 103 115 Powers and duties of administrator appointed under this Part 103 116 Exercise of power by administrator 105 117 Conflict transactions 105 118 Permitted conflict transactions 106 119 Keeping records 107 120 Separation of administrator's and missing person's property 107 121 Ancillary powers of administrator 107 122 Powers of investment 107 123 Administrator may seek advice from VCAT 108 124 Administrator may seek advice from professional adviser 109 125 Accounts 109 126 Alternative accounting requirements for certain estates 111 127 Administrator may open will 112 Division 4--Powers and duties that may be conferred on administrators in relation to missing persons 112 128 Powers and duties in relation to missing persons 112 571241B.I-20/8/2014 v BILL LA INTRODUCTION 20/8/2014

 


 

Clause Page Division 5--General 115 129 Interest of missing person in property not to be altered by sale or other disposition of property 115 130 VCAT may open will 116 131 Application to VCAT by a person interested 116 132 Power of administrator to act until notice of discharge etc. received 116 133 Action upon a person ceasing to be a missing person 117 134 Former missing person entitled to inspection of accounts 118 135 Sale of personal effects if unclaimed within 2 years from date of discharge 118 136 Administrator to notify VCAT 119 137 Order to remove an administrator 119 138 Duration of order 120 139 Application for temporary order 120 140 Temporary order 121 141 Part does not exclude Administration and Probate Act 1958 122 PART 9--MEDICAL AND OTHER TREATMENT 123 Division 1--Preliminary 123 142 Definition of patient 123 143 Health decision maker 123 144 Best interests 127 Division 2--Consent 128 145 Persons who may consent to medical or other treatment 128 146 Effect of consent 128 147 Refusal of medical treatment under the Medical Treatment Act 1988 129 148 Unlawful consent to medical or other treatment an offence 129 Division 3--Emergency treatment 130 149 Emergency medical or dental treatment 130 Division 4--Special procedures 131 150 Application for consent of VCAT to special procedure 131 151 Guidelines for special procedures 131 152 Date for hearing 132 153 Consent of VCAT to special procedure 132 154 VCAT may confer authority to consent to continuing or further special procedure 132 155 Special procedure without consent of VCAT an offence 133 571241B.I-20/8/2014 vi BILL LA INTRODUCTION 20/8/2014

 


 

Clause Page Division 5--Other medical or dental treatment 134 156 Consent of health decision maker 134 157 Consent if patient is likely to recover within a reasonable time 134 158 Health decision maker may seek advice 136 159 Guidelines for medical or dental treatment 137 160 Medical or dental treatment without consent of health decision maker 137 161 Medical or dental treatment if health decision maker does not consent 139 162 Statement by registered practitioner 140 163 Application to VCAT relating to medical or dental treatment 141 164 Protection of registered practitioner 143 Division 6--Medical research procedures 144 165 Introduction and outline of Division 144 166 Step 1--Approval of relevant research project 145 167 Step 2--Is patient likely to recover within a reasonable time? 146 168 Step 3--Consent of health decision maker 147 169 Step 4--Procedural authorisation 148 170 Best interests 152 171 Applications to VCAT 153 172 Health decision maker may seek advice 155 173 Guidelines for medical research procedures 155 174 Offences 156 175 Protection of registered practitioner 156 PART 10--REHEARINGS AND REASSESSMENT OF ORDERS 158 Division 1--Rehearings 158 176 Application for rehearing 158 177 Parties and notice 159 178 Rehearing 160 179 Effect of first instance order pending rehearing 160 Division 2--Reassessment of orders 160 180 Reassessment 160 181 Who are the parties to a reassessment? 161 182 Who is entitled to notice of a reassessment, the hearing and any order made in the proceeding? 161 183 Contents of notice of application for reassessment 163 184 Conduct of reassessment if VCAT conducts reassessment on own initiative 164 571241B.I-20/8/2014 vii BILL LA INTRODUCTION 20/8/2014

 


 

Clause Page 185 Participation of represented person or supported person at hearing 165 186 Order after reassessment 166 PART 11--INTERSTATE ORDERS 167 187 Application of Part 167 188 Definitions 167 189 Corresponding laws and orders 168 190 Ministerial agreements 168 191 Registration of interstate orders 168 192 Reassessment of interstate orders 169 193 Reciprocal arrangements under the State Trustees (State Owned Company) Act 1994 170 PART 12--GENERAL PROVISIONS 171 194 Remuneration of administrators and certain guardians 171 195 Payment from estate of costs and expenses to administrator or guardian 172 196 Resolution of conflicts between guardians and administrators 173 197 Enforcement orders 173 198 Matters before a Court 174 199 Effect of setting aside administration order on previous actions of administrator 177 200 Compensation for acts of guardian or administrator 177 201 Relief from personal liability 177 202 Who can apply for an order for compensation? 178 203 Time limit for application for order for compensation 178 204 VCAT may refer matter to Supreme Court 179 205 No compensation 179 206 Judicial notice 179 207 Audit 179 208 Offence as to guardian, supportive guardian or administrator 179 209 Criminal liability of officers of bodies corporate--failure to exercise due diligence 181 210 Regulations 182 211 Transitional regulations 184 PART 13--REPEAL OF GUARDIANSHIP AND ADMINISTRATION ACT 1986, SAVINGS AND TRANSITIONAL PROVISIONS 185 212 Definitions 185 213 Guardianship and Administration Act 1986 repealed 185 214 Guardianship order and appointment of guardian 186 215 Authority of guardian 186 216 Administration order and appointment of administrator 187 571241B.I-20/8/2014 viii BILL LA INTRODUCTION 20/8/2014

 


 

Clause Page 217 Authority of administrator 188 218 Administration order in respect of missing person's estate 188 219 Authority of administrator in respect of missing person's estate 188 220 Application for guardianship orders 189 221 Application for administration orders 189 222 Application for administration (missing person) orders 189 223 Rehearings and reassessments of orders 190 224 Medical and other treatment 190 225 Interstate orders 191 226 VCAT may make orders of a transitional nature 192 PART 14--AMENDMENTS TO THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 AND OTHER ACTS 193 Division 1--Victorian Civil and Administrative Tribunal Act 1998 193 227 Definitions 193 228 What is review jurisdiction? 193 229 Proceeding files 193 230 Heading to Part 9 of Schedule 1 194 231 Constitution of Tribunal for proceedings 194 232 Notification of commencement 194 233 Public Advocate may intervene or be joined 195 234 Withdrawal of application does not preclude future application 195 235 Referral to administrators for report 195 236 Proceeding not invalidated by failure to give notice 195 237 Confidentiality of proceedings 196 238 New clause 37A inserted 196 37A Access to documents 196 239 Subject matter for rules 196 Division 2--Amendments to other Acts 197 240 Consequential amendments 197 241 Repeal of Part 14 and Schedule 197 __________________ SCHEDULE 198 Consequential Amendments 198 1 Appeal Costs Act 1998 198 2 Associations Incorporation Reform Act 2012 198 3 Australian Consumer Law and Fair Trading Act 2012 198 4 Building Act 1993 198 5 Business Licensing Authority Act 1998 198 6 Conveyancers Act 2006 199 571241B.I-20/8/2014 ix BILL LA INTRODUCTION 20/8/2014

 


 

Clause Page 7 Coptic Orthodox Church (Victoria) Property Trust Act 2006 199 8 County Court Act 1958 199 9 Crimes Act 1958 199 10 Disability Act 2006 200 11 Duties Act 2000 200 12 Estate Agents Act 1980 201 13 Family Violence Protection Act 2008 201 14 Fire Services Levy Monitor Act 2012 201 15 First Home Owner Grant Act 2000 201 16 Fundraising Act 1998 202 17 Gambling Regulation Act 2003 202 18 Health Records Act 2001 202 19 Health Services Act 1988 203 20 Human Services (Complex Needs) Act 2009 203 21 Independent Broad-based Anti-corruption Commission Act 2011 203 22 Juries Act 2000 203 23 Land Act 1958 204 24 Land Tax Act 2005 204 25 Limitation of Actions Act 1958 204 26 Liquor Control Reform Act 1998 205 27 Magistrates Court Act 1989 205 28 Medical Treatment Act 1988 206 29 Mental Health Act 2014 206 30 Motor Car Traders Act 1986 207 31 Owners Corporations Act 2006 207 32 Partnership Act 1958 207 33 Personal Safety Intervention Orders Act 2010 207 34 Powers of Attorney Act 2014 208 35 Privacy and Data Protection Act 2014 209 36 Professional Standards Act 2003 209 37 Property Law Act 1958 209 38 Public Health and Wellbeing Act 2008 209 39 Road Safety Act 1986 210 40 Second-Hand Dealers and Pawnbrokers Act 1989 210 41 Severe Substance Dependence Treatment Act 2010 210 42 Sex Work Act 1994 210 43 State Trustees (State Owned Company) Act 1994 211 44 Supported Residential Services (Private Proprietors) Act 2010 212 45 Supreme Court Act 1986 213 46 The Uniting Church in Australia Act 1977 214 47 Trustee Act 1958 214 48 Trustee Companies Act 1984 214 49 Unclaimed Money Act 2008 214 50 Victims of Crime Assistance Act 1996 215 571241B.I-20/8/2014 x BILL LA INTRODUCTION 20/8/2014

 


 

Clause Page 51 Victoria Police Act 2013 215 52 Victorian Inspectorate Act 2011 215 53 Wills Act 1997 216 54 Workplace Injury Rehabilitation and Compensation Act 2013 216 ENDNOTES 217 571241B.I-20/8/2014 xi BILL LA INTRODUCTION 20/8/2014

 


 

PARLIAMENT OF VICTORIA Introduced in the Assembly Guardianship and Administration Bill 2014 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 consequentially amend various other Acts and for other purposes. The Parliament of Victoria enacts: PART 1--PRELIMINARY 1 Purposes 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. 571241B.I-20/8/2014 1 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 2 2 Commencement This Act comes into operation immediately after Part 10 of the Powers of Attorney Act 2014 comes into operation. 3 Definitions (1) In this Act-- accommodation provider, for an individual, means a person who is, in a professional or administrative capacity, directly or indirectly responsible for or involved in the provision of accommodation to the individual; administration order means an order of VCAT appointing a person under section 28 or Part 5 as-- (a) an administrator of the estate of a person; or (b) a temporary administrator of the estate of a person; administration (missing person) order means an order of VCAT appointing a person as-- (a) an administrator of the estate of a missing person under section 111; or (b) a temporary administrator of the estate of a missing person under section 140; administrator means the person named as administrator in-- (a) an administration order; or (b) a temporary administration order; or (c) an administration (missing person) order; or (d) a temporary administration (missing person) order; 571241B.I-20/8/2014 2 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 3 care worker, for an individual, means a person who performs services for the care of the individual and receives remuneration for those services from any source, but does not include-- (a) a person who receives a carer payment or other benefit from the Commonwealth or a State or a Territory of the Commonwealth for providing home care for the individual; or (b) a person who is a health provider; close friend, for 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 a neurological impairment, intellectual impairment, mental illness, 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 571241B.I-20/8/2014 3 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 3 domestic support and personal care to the person-- (i) for fee or reward; or (ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation); emergency treatment means treatment under section 149; 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 a guardian or 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; 571241B.I-20/8/2014 4 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 3 (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 means (except in section 65(3)(a))-- (a) the Public Advocate (if named in a guardianship order under section 28) or a person named in a guardianship order under section 28 or Part 5 as-- (i) a guardian; or (ii) a temporary guardian; or (b) on the death, absence or loss of decision making capacity of the original guardian, a person appointed as an alternative guardian under section 51; 571241B.I-20/8/2014 5 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 3 guardianship order means-- (a) an order of VCAT appointing a person under section 28 or Part 5 as-- (i) a guardian; or (ii) a temporary guardian; or (b) an order of VCAT appointing a person as an alternative guardian under section 51; health decision maker has the meaning given by section 143; health provider means a person who provides health care in the practice of a profession or in the ordinary course of business; human research ethics committee means-- (a) a human research ethics committee established in accordance with the requirements of the National Statement; or (b) an ethics committee established under the by-laws of a public hospital, public health service, denominational hospital or multi purpose service (within the meaning of the Health Services Act 1988); 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 571241B.I-20/8/2014 6 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 3 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. licensed trustee company has the same meaning as in section 601RAA of the Corporations Act; medical or dental treatment means-- (a) medical treatment (including any medical or surgical procedure, operation or examination and any prophylactic, palliative or rehabilitative care) normally carried out by, or under, the supervision of a registered practitioner; or (b) dental treatment (including any dental procedure, operation or examination) normally carried out by or under the supervision of a registered practitioner; or (c) any other treatment not referred to in paragraphs (a) and (b) that is prescribed by the regulations to be medical or dental treatment for the purposes of this Act-- but does not include-- (d) a special procedure; or (e) a medical research procedure; or 571241B.I-20/8/2014 7 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 3 (f) any non-intrusive examination made for diagnostic purposes (including a visual examination of the mouth, throat, nasal cavity, eyes or ears); or (g) first-aid treatment; or (h) the administration of a pharmaceutical drug for the purpose and in accordance with the dosage level-- (i) if the drug is one for which a prescription is required, recommended by a registered practitioner; or (ii) if the drug is one for which a prescription is not required and which is normally self- administered, recommended in the manufacturer's instructions or by a registered practitioner; or (i) any other kind of treatment that is prescribed by the regulations not to be medical or dental treatment for the purposes of this Act; medical research procedure means-- (a) a procedure carried out for the purposes of medical research, including, as part of a clinical trial, the administration of medication or the use of equipment or a device; or (b) a procedure that is prescribed by the regulations to be a medical research procedure for the purposes of this Act-- 571241B.I-20/8/2014 8 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 3 but does not include-- (c) any non-intrusive examination (including a visual examination of the mouth, throat, nasal cavity, eyes or ears or the measuring of a person's height, weight or vision); or (d) observing a person's activities; or (e) undertaking a survey; or (f) collecting or using information, including personal information (within the meaning of the Privacy and Data Protection Act 2014) or health information (within the meaning of the Health Records Act 2001); or (g) any other procedure that is prescribed by the regulations not to be a medical research procedure for the purposes of this Act; missing person means a person determined to be a missing person under section 111(2); National Statement means-- (a) the National Statement on Ethical Conduct in Research Involving Humans published by the National Health and Medical Research Council in 1999 as in force from time to time; or (b) any superseding document published by the National Health and Medical Research Council that covers the same subject matter; 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 two or more relatives described in any paragraph 571241B.I-20/8/2014 9 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 3 being preferred to any other so described, regardless of sex; 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, the kind of education or training and the place where it takes place; (e) daily living issues such as diet and dress; (f) health care matters, including matters provided for in Part 9; police officer has the same meaning as in the Victoria Police Act 2013; prescribed means prescribed by the regulations; primary carer means a person who is primarily responsible for providing support or care to a person; principal registrar means the principal registrar of VCAT; proposed represented person means a person in relation to whom an application is made under section 20 or Part 5; proposed supported person means a person in relation to whom an application is made for a supportive guardianship order under section 87; 571241B.I-20/8/2014 10 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 3 Public Advocate means the person appointed as the Public Advocate, being the office continued in existence by section 8; Public Advocate employee means a person employed in the Office of the Public Advocate and referred to in section 15; registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); registered practitioner means-- (a) a registered medical practitioner; or (b) a person registered under the Health Practitioner Regulation National Law-- (i) to practise in the dental profession as a dentist (other than as a student); and (ii) in the dentist division of that profession; regulations means regulations made under this Act; 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; 571241B.I-20/8/2014 11 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 3 (i) an uncle or aunt; (j) a nephew or niece; relevant human research ethics committee for a medical research procedure means the human research ethics committee responsible for approving the relevant research project; relevant research project for a medical research procedure means the research project for the purposes of which the procedure is, or is to be, carried out; represented person means-- (a) a person in relation to whom a guardianship order is in effect; or (b) a person whose estate is subject to an administration order; or (c) a person in relation to whom a guardianship order is in effect and whose estate is subject to an administration order; or (d) in Parts 10, 11 and 12, a person referred to in paragraph (a), (b) or (c) or a missing person whose estate is subject to an administration (missing person) order; special procedure means-- (a) any procedure that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out; or (b) termination of pregnancy; or 571241B.I-20/8/2014 12 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 3 (c) any removal of tissue for the purposes of transplantation to another person; or (d) any other medical or dental treatment that is prescribed by the regulations to be a special procedure for the purposes of Part 9; spouse of a person means a person to whom the first-mentioned person is married; State Trustees has the same meaning as in the State Trustees (State Owned Company) Act 1994; supported decision means a decision about a matter that under a supportive guardianship order a supportive guardian is authorised to support the supported person in making; supported person means a person in relation to whom a supportive guardianship order is made; supportive guardian means a person named as supportive guardian in a supportive guardianship order; supportive guardianship order means an order of VCAT appointing a person as supportive guardian under section 95; 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 571241B.I-20/8/2014 13 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 4 (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 to a person's sibling in the definition of relative in subsection (1) includes a reference to an individual who was adopted by one or both of the person's parents. (4) For the purposes of this Act, without limiting the ways in which a person may promote the personal and social wellbeing of another person, this may occur by-- (a) recognising the inherent dignity of the other person; and (b) having regard to the other person's existing supportive relationships, religion, values and cultural and linguistic environment; and (c) respecting the confidentiality of confidential information relating to the other person. 4 Meaning of decision making capacity (1) For the purpose 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 571241B.I-20/8/2014 14 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 4 (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, gestures 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 that is 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 or not a person has decision making capacity, regard should 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 and not permanent; (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; 571241B.I-20/8/2014 15 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 5 (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. (5) Despite subsection (4)(d), the fact that a person makes or proposes to make a decision the consequences of which have a high risk of being seriously injurious to the person's health or wellbeing, may, in conjunction with other factors, be evidence that the person is unable to understand, use or weigh information relevant to the decision or the consequences of the decision. 5 Assessing decision making capacity 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, and in an environment in, which the person's decision making capacity can be assessed most accurately. 6 Objectives of Act The objectives of this Act are-- (a) to continue the office of the Public Advocate and provide for the appointment of a Public Advocate; and 571241B.I-20/8/2014 16 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 7 (b) to enable certain persons with a disability to have a supportive guardian, guardian or administrator appointed in specified circumstances; and (c) to enable administration (missing person) orders to be made in relation to the estates of missing persons; and (d) to provide for consent to special procedures, medical research procedures and medical and dental treatment on behalf of persons incapable of giving consent to those procedures or treatment; and (e) to provide for the registration of interstate guardianship orders and administration orders. 7 Guardianship and administration principles The following are guardianship and administration principles-- (a) subject to the provisions of this Act, every function, power, authority, discretion, jurisdiction or duty conferred or imposed by this Act is to be exercised or performed-- (i) in a way which is as least restrictive of a person's ability to decide and act as is possible in the circumstances; and (ii) so that a person is given practicable and appropriate support to enable that person to participate in decisions affecting the person as much as possible in the circumstances; (b) a guardian or administrator who under this Act makes a decision in relation to a matter for a represented person (other than a missing person) who does not have decision 571241B.I-20/8/2014 17 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 1--Preliminary s. 7 making capacity in relation to that matter, must-- (i) give all practicable and appropriate effect to the represented person's wishes; and (ii) take any steps that are reasonably available to encourage the represented person to participate in decision making, even though the represented person does not have decision making capacity in relation to that matter; and (iii) act in a way that promotes the personal and social wellbeing of the represented person; (c) an administrator, who under this Act makes a decision in relation to a matter for a missing person, must-- (i) give all practicable and appropriate effect to the missing person's wishes, so far as they can be ascertained; and (ii) act in a way that promotes the personal and social wellbeing of the missing person. __________________ 571241B.I-20/8/2014 18 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 2--The Public Advocate s. 8 PART 2--THE PUBLIC ADVOCATE 8 Public 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. 9 Terms and conditions of appointment (1) Subject to this Part, the Public Advocate-- (a) holds office for a period of 7 years; and (b) is entitled to be paid the remuneration and allowances as are fixed by the Governor in Council from time to time. (2) 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). 10 Resignation and vacancy (1) The Public Advocate ceases to hold office if the Public Advocate-- (a) resigns by notice in 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) is removed from office under subsection (5). 571241B.I-20/8/2014 19 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 2--The Public Advocate s. 11 (2) The Governor in Council, on the recommendation of the Minister, may suspend or remove 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 has become incapable of performing or has neglected the duties of the office of Public Advocate; (c) the Public Advocate has engaged in misconduct. (3) The Minister must cause to be laid before each House of Parliament a full statement of the grounds of suspension of the Public Advocate within 7 sitting days after the suspension if that House is then sitting or, if that House is not then sitting, within 7 sitting days after the next meeting of that House. (4) The Public Advocate may be removed from office by the Governor in Council if each House of Parliament, within 7 sitting days after the day when the statement is laid before it, declares by resolution that the Public Advocate ought to be removed from office and, unless each House within that period so declares, the Governor in Council must remove the suspension and restore the Public Advocate to office. 11 Acting 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. 571241B.I-20/8/2014 20 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 2--The Public Advocate s. 12 (2) The Minister may appoint a person as Acting Public Advocate during the temporary absence or suspension of the Public Advocate if the person has-- (a) previously been appointed as Acting Public Advocate under subsection (1); and (b) taken an oath or made an affirmation under section 12. (3) A person appointed under subsection (2) is not required to take another oath or make another affirmation under section 12. (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 exercise any of the functions of the Public Advocate; and (b) is entitled to be paid the remuneration and allowances 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). 12 Oath 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 may be) will-- (a) faithfully and impartially perform the duties of office; and 571241B.I-20/8/2014 21 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 2--The Public Advocate s. 13 (b) except in accordance with this Act, not divulge information received or obtained under this Act. 13 Functions of the Public Advocate The functions of the Public Advocate are-- (a) to promote, facilitate and encourage the provision, development and coordination of services and facilities provided by government, community and voluntary organisations for persons with a disability with a view-- (i) to promoting the development of the ability and capacity of persons with a disability to act independently; and (ii) to minimising the restrictions on the rights of persons with a disability; and (iii) to ensuring the maximum utilisation by persons with a disability of those services and facilities; and (iv) to encouraging the involvement of voluntary organisations and relatives, guardians, supportive guardians and friends in the provision and management of those services and facilities; and (b) to support the establishment of organisations involved with persons with a disability and their relatives, guardians, supportive guardians and friends for the purpose of-- (i) instituting citizen advocacy programs and other advocacy programs; and (ii) undertaking community education projects; and 571241B.I-20/8/2014 22 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 2--The Public Advocate s. 14 (iii) promoting family and community responsibility for guardianship; and (c) to arrange, coordinate and promote informed public awareness and understanding by the dissemination of information with respect to-- (i) the provisions of this Act and any other legislation dealing with or affecting persons with a disability; and (ii) the role of VCAT and the Public Advocate; and (iii) the duties, powers and functions of supportive guardians, guardians and administrators under this Act; and (iv) the protection of persons with a disability from abuse and exploitation and the protection of their rights; and (d) to investigate, report and make recommendations to the Minister on any aspect of the operation of this Act referred to the Public Advocate by the Minister. 14 Powers and duties of the Public Advocate (1) The Public Advocate may-- (a) if appointed by VCAT, be a guardian with powers in relation to a personal matter; and (b) make an application to VCAT for the appointment of a supportive guardian, guardian or administrator or the rehearing or reassessment of a supportive guardianship order, guardianship order or an administration order; and (c) submit a report to VCAT on any matter referred to the Public Advocate for a report by VCAT; and 571241B.I-20/8/2014 23 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 2--The Public Advocate s. 14 (d) seek assistance in promoting the personal and social wellbeing of a person with a disability from a government department, institution, welfare organisation or service provider; and (e) make representations on behalf of, or act for, a person with a disability; and (f) give advice to any person as to the provisions of this Act and in relation to applications for supportive guardianship orders, guardianship orders or administration orders; and (g) investigate any complaint or allegation that a person is under inappropriate guardianship or is being exploited or abused or is in need of guardianship; and (h) subject to subsection (2), 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 or 48 of Schedule 1 to the VCAT Act; and (i) provide information for persons who are or propose to be supportive guardians, guardians or administrators; and (j) report and make recommendations to VCAT on behalf of any person with a disability in any proceeding under the Equal Opportunity Act 2010; and (k) make recommendations to VCAT with respect to guidelines proposed to be issued by VCAT about consent to a special 571241B.I-20/8/2014 24 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 2--The Public Advocate s. 15 procedure or medical research procedure and any other medical or dental treatment under Part 9; and (l) 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 under subsection (1)(h) to provide if providing the information would tend to incriminate the person. (3) If the Public Advocate is appointed as the guardian of a represented person-- (a) the person for the time being holding the office or performing the functions of the Public Advocate is the guardian of that represented person; and (b) the Public Advocate must use the Public Advocate's best endeavours to find an appropriate person to be appointed as the guardian. 15 Staff of office of the Public Advocate Any employees who are necessary to enable the Public Advocate to perform the Public Advocate's functions may be employed under Part 3 of the Public Administration Act 2004. 16 Delegation (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, other than this power of delegation; 571241B.I-20/8/2014 25 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 2--The Public Advocate s. 17 (b) any or all of the Public Advocate's powers and duties in the Public Advocate's capacity as guardian; (c) any or all of the Public Advocate's powers and duties in the Public Advocate's capacity as an attorney under an enduring power of attorney within the meaning of the Powers of Attorney Act 2014. (2) The Public Advocate may, with VCAT's approval, by instrument of delegation, delegate any or all of the Public Advocate's powers and duties in the Public Advocate's capacity as guardian to an individual (other than a Public Advocate employee) or organisation specified in the instrument of delegation. 17 Powers 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) inspect any document relating to any such person or any record required to be kept under this Act, the Health Services Act 1988, the Supported Residential Services (Private Proprietors) Act 2010, the Disability Act 2006 or the Mental Health Act 2014. 571241B.I-20/8/2014 26 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 2--The Public Advocate s. 17 (2) Subsection (1)(d) does not authorise the Public Advocate to inspect-- (a) a person's medical records unless that person consents; or (b) personnel records unless the person to whom they relate consents. (3) The person in charge and the members of staff or management of the institution must provide the Public Advocate with any reasonable assistance that the Public Advocate requires to perform or exercise any power, duty or function under this section effectively. (4) A person in charge or a member of the staff or management of an institution must not-- (a) unreasonably refuse or neglect to give assistance when required to do so under subsection (3); or (b) refuse or fail to give full and true answers to the best of that person's knowledge to any questions asked by the Public Advocate in the performance or exercise of any power, duty or function under this section; or (c) assault, obstruct or threaten the Public Advocate in the performance or exercise of any power, duty or function under this section. Penalty: 25 penalty units. (5) In this section-- institution means any of the following-- (a) a disability service provider within the meaning of section 3(1) of the Disability Act 2006; 571241B.I-20/8/2014 27 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 2--The Public Advocate s. 18 (b) a designated public hospital within the meaning of the Health Services Act 1988; (c) a residential service, residential institution or residential treatment facility within the meaning of section 3(1) of the Disability Act 2006; (d) a mental health service provider within the meaning of section 3(1) of the Mental Health Act 2014; (e) a supported residential service within the meaning of the Supported Residential Services (Private Proprietors) Act 2010. 18 Confidentiality (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 a natural person acquired in the performance of functions or duties or the exercise of powers under this Act which may identify the natural person unless-- (a) it is necessary to do so for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act; or (b) it is necessary to do so for the purposes of criminal proceedings or any proceedings under this Act; or 571241B.I-20/8/2014 28 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 2--The Public Advocate s. 19 (c) the person 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 or a relative or primary carer of the person to provide care to that person; 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 by an Act of the Commonwealth or any other State or Territory. Penalty: 60 penalty units. 19 Annual 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 containing a review of the operation of the Public Advocate during the 12 months ending on the preceding 30 June. (2) The Minister must cause each report 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. _______________ 571241B.I-20/8/2014 29 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 3--Application for Guardianship and Administration Orders s. 20 PART 3--APPLICATION FOR GUARDIANSHIP AND ADMINISTRATION ORDERS 20 Application for guardianship or administration order (1) A person may apply to VCAT for a guardianship order that appoints a guardian or temporary guardian in relation to another 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 other person attaining 18 years of age. (2) A person may make an application under subsection (1) for a guardianship order appointing a temporary guardian irrespective of whether an application for a guardianship order that appoints a guardian has been made. (3) A person may apply to VCAT for an administration order that appoints an administrator or temporary administrator in relation to the estate of another 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 other person attaining 18 years of age. (4) A person may make an application under subsection (3) for an administration order appointing a temporary administrator irrespective of whether an application for an administration order that appoints an administrator has been made. (5) If a person with a disability who is of or over 18 years of age does not reside in Victoria but has an estate the whole or part of which is in Victoria, another person may apply to VCAT for an order 571241B.I-20/8/2014 30 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 3--Application for Guardianship and Administration Orders s. 21 appointing an administrator in relation to so much of the estate as is in Victoria. 21 Matters to be included in application to VCAT A person applying to VCAT for an order under this Part must include in the person's application the following-- (a) the names and contact details (if known to the applicant) of any person who has a direct interest in the application; and (b) the type of order being applied for, including details of the personal or financial matters in relation to which the order is sought. 22 Who are the parties to a proceeding on an application? The following persons are parties to a proceeding on an application under section 20-- (a) the applicant; (b) the proposed represented person; (c) the person proposed as guardian or administrator, as the case may be; (d) if VCAT determines this role is relevant to the proceeding, the proposed represented person's-- (i) current supportive attorney within the meaning of section 3(1) of the Powers of Attorney Act 2014; or (ii) current supportive guardian; (e) any other person whom VCAT determines to be a party to the proceeding. 571241B.I-20/8/2014 31 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 3--Application for Guardianship and Administration Orders s. 23 23 Who is entitled to notice of an application, the hearing and any order made in the proceeding? (1) In addition to any party to a proceeding on an application under section 20, 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 provisions of the VCAT Act-- (a) the spouse or domestic partner of the proposed represented person; (b) the primary carer of the proposed represented person; (c) the nearest relative available (other than the spouse or domestic partner) of the proposed represented person; (d) the proposed represented person's supportive attorney (if not a party under section 22); (e) the Public Advocate, if the Public Advocate is proposed as guardian or no other person is proposed as guardian; (f) any current administrator of the estate of the proposed represented person or current guardian of the proposed represented person; (g) any other person whom VCAT determines to have an interest in the application. (2) As soon as practicable after making any determination under section 22(d) or (e) or subsection (1)(g), VCAT must notify the applicant as to who-- (a) are the parties to the proceeding on the application; and 571241B.I-20/8/2014 32 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 3--Application for Guardianship and Administration Orders s. 24 (b) is entitled under subsection (1) to a notice of the making of the application. Note Section 72(1)(b) of the VCAT Act provides that an applicant for a VCAT order must serve a copy of the application on a person entitled to notice of the application under the enabling enactment (which is this Act). 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 person entitled to notice of the proceeding or of the order under the enabling enactment. 24 Contents of notice of application (1) A notice of the making of an application that is 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, as stated in the notification given under section 23(2), of-- (i) the parties to the proceeding on an application under section 20; and (ii) the other persons entitled to the notice under section 23(1); (c) information about the rights of the party in relation to the application. 571241B.I-20/8/2014 33 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 3--Application for Guardianship and Administration Orders s. 25 (2) A notice of the making of an application that is given to a person referred to in section 23(1) who is not a party must include the following-- (a) a copy of the application; (b) the names, as stated in the notification given under section 23(2), of-- (i) the parties to the proceeding on an application under section 20; and (ii) the other persons entitled to the notice under section 23(1); (c) information about the rights of the person in relation to seeking information about the application; (d) information about the procedure for applying to VCAT to be made a party to the proceeding on the application. 25 Date for hearing of application for guardianship or administration order VCAT must commence to hear an application made under section 20 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 the application 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. 571241B.I-20/8/2014 34 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 3--Application for Guardianship and Administration Orders s. 26 26 Participation of proposed represented person at hearing VCAT may only conduct a hearing in relation to an application made under section 20 if-- (a) the proposed represented person is present at the hearing; or (b) VCAT is satisfied that-- (i) the proposed represented person does not wish to attend the hearing; or (ii) the presence 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. 27 Special powers in relation to proposed represented persons (1) This section applies in relation to a proposed represented person in relation to whom-- (a) an application for a guardianship order has been made under section 20; and (b) VCAT has received information on oath that the proposed represented person-- (i) is being 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. 571241B.I-20/8/2014 35 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 3--Application for Guardianship and Administration Orders s. 27 (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 subsection (1)(b) applies, 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 20 or 35 is determined. (4) A police officer acting under an order made under subsection (2) may, with such assistance as is necessary, use such force as is reasonably necessary to enter the premises where the person with a disability is. (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 209 applies to an offence against this subsection. __________________ 571241B.I-20/8/2014 36 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 4--Conditions for Making Guardianship and Administration Orders and s. 28 Eligibility of Person Appointed PART 4--CONDITIONS FOR MAKING GUARDIANSHIP AND ADMINISTRATION ORDERS AND ELIGIBILITY OF PERSON APPOINTED 28 VCAT may make a guardianship or administration order (1) After considering an application made under section 20, VCAT may-- (a) subject to subsection (4), make a guardianship order or an administration order; or (b) make no order under this Act; or (c) subject to section 95, make a supportive guardianship order. (2) A guardianship order made under this section in relation to a proposed represented person may appoint-- (a) a guardian; or (b) a temporary guardian. (3) An administration order made under this section in relation to the estate of a proposed represented person may appoint-- (a) an administrator; or (b) a temporary administrator. (4) VCAT may only make a guardianship order or administration order under this section 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-- (A) the personal matter in relation to which the order is to be made; or 571241B.I-20/8/2014 37 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 4--Conditions for Making Guardianship and Administration Orders and s. 29 Eligibility of Person Appointed (B) the personal and financial matters in relation to which the order is to be made; or (ii) in the case of an administration order, the financial matter in relation to which the order is to be made; and (b) the proposed represented person is in need of a guardian or administrator, as the case may be; and (c) the guardianship order or administration order (as the case may be) would promote the proposed represented person's personal and social wellbeing; and (d) in the case of an application for an administration order in relation to a person who does not reside in Victoria, State Trustees has not been authorised under section 12 of the State Trustees (State Owned Company) Act 1994 to collect, manage, sell or otherwise dispose of or administer any property in Victoria which forms part of the estate of the person in relation to whom the application is made. 29 Factors to consider in determining need for guardian or administrator For the purposes of section 28(4)(b), in determining whether or not a person is in need of a guardian or administrator, VCAT must consider the following-- (a) the wishes of the proposed represented person (so far as they can be ascertained); (b) the wishes of the nearest relative of the proposed represented person or any other family members of the proposed represented person; 571241B.I-20/8/2014 38 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 4--Conditions for Making Guardianship and Administration Orders and s. 30 Eligibility of Person Appointed (c) the desirability of preserving existing family relationships and other relationships that are important to the proposed represented person; (d) whether it is more suitable that the decision in relation to the personal or financial matter in relation to which the order is sought is made-- (i) by the proposed represented person with appropriate assistance from a supportive guardian; or (ii) through negotiation, mediation or similar means; or (iii) by informal means. 30 Persons eligible as guardians or administrators (1) Subject to subsection (3), if VCAT is satisfied as to the matters set out in subsection (2), VCAT may appoint-- (a) as a guardian, any individual who is of or over the age of 18 years and who consents to act as guardian; or (b) as an administrator-- (i) any individual who is of or over the age of 18 years and who consents to act as administrator; or (ii) any body corporate that consents to act as administrator. (2) For the purposes of subsection (1), VCAT must be satisfied that the person to be appointed meets the following criteria-- (a) the person will promote the proposed represented person's personal and social wellbeing; 571241B.I-20/8/2014 39 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 4--Conditions for Making Guardianship and Administration Orders and s. 31 Eligibility of Person Appointed (b) the person is not in a position where the person's interests conflict or may conflict with the interests of the proposed represented person; (c) the person is a suitable person to act as the guardian of the proposed represented person or as administrator of the proposed represented person's estate; (d) the person has sufficient expertise to administer the estate of the represented person or there is a special relationship between the person and the proposed represented person or other special reason why that person should be appointed as administrator (in the case of an administration order) or as guardian (in the case of a guardianship order specifying powers in relation to a financial matter). (3) If a statement was lodged under section 33 by the proposed represented person's guardian or administrator, VCAT must appoint the person named in the statement as guardian or administrator if VCAT is satisfied that the person-- (a) is of or over the age of 18 years and consents to act as guardian or administrator; and (b) meets the criteria set out in subsection (2). 31 Factors to consider in relation to suitability of person appointed (1) For the purposes of section 30(2)(c), in determining whether a person is suitable to act as the guardian of a proposed represented person or as administrator of the estate of a proposed represented person, VCAT must consider the following-- 571241B.I-20/8/2014 40 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 4--Conditions for Making Guardianship and Administration Orders and s. 31 Eligibility of Person Appointed (a) the wishes of the proposed represented person (so far as they can be ascertained); (b) any statement lodged under section 33 in relation to the proposed represented person; (c) the desirability of preserving existing family relationships and other relationships that are important to the proposed represented person; (d) the desirability of appointing a person as a guardian or administrator (as the case may be) who has an existing personal relationship with the proposed represented person rather than a person with no such relationship; (e) the compatibility of the person proposed as guardian of the proposed represented person and the administrator (if any) of the proposed represented person's estate, in the case of a guardianship order; (f) the compatibility of the person proposed as administrator of the proposed represented person's estate and the guardian (if any) of the proposed represented person, in the case of an administration order; (g) whether the person proposed as guardian or administrator (as the case may be) will be available and able to meet, and communicate with, the proposed represented person so as to make decisions that best promote the personal and social wellbeing of the proposed represented person; (h) whether the person proposed as administrator or guardian (in the case of a guardianship order specifying powers in relation to a financial matter) was a member of VCAT as constituted for a proceeding under this Act. 571241B.I-20/8/2014 41 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 4--Conditions for Making Guardianship and Administration Orders and s. 32 Eligibility of Person Appointed (2) VCAT must not assume without any evidence that a proposed represented person's relative who is proposed as the guardian or administrator, as the case may be, is-- (a) in a position where the relative's interests conflict, or may conflict, with those of the proposed represented person; or (b) not suitable to be appointed as the guardian or administrator merely because that relative disagrees with another relative of the proposed represented person in relation to a matter pertaining to the proposed represented person. 32 Other matters pertaining to appointments (1) Subject to section 28, VCAT may appoint the Public Advocate as guardian of a proposed represented person with powers in relation to a personal matter if VCAT is satisfied that no other person fulfils the requirements of section 30 for appointment as the guardian of that person. (2) Subsection (1) does not prevent VCAT from appointing persons (including the Public Advocate and any other person) as joint guardians of the proposed represented person if-- (a) each person fulfils the relevant requirements of section 30; and (b) VCAT considers it appropriate to do so. (3) VCAT may appoint a person as guardian with powers in relation to a financial matter or as administrator who was at any time a member of VCAT as constituted for a proceeding under this Act only if VCAT considers that in the circumstances it is appropriate for the person to act as a guardian or an administrator, as the case may be. 571241B.I-20/8/2014 42 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 4--Conditions for Making Guardianship and Administration Orders and s. 33 Eligibility of Person Appointed 33 Wishes for future appointments may be lodged (1) The following persons in relation to a represented person may lodge with VCAT at any time a statement referred to in subsection (2)-- (a) any guardian; (b) any supportive guardian; (c) any administrator; (d) the primary carer; (e) any relative. (2) A statement referred to in subsection (1) must set out-- (a) the wishes of the person lodging the statement as to who in the future is to be appointed a guardian or administrator in relation to the represented person; and (b) the reasons for those wishes. __________________ 571241B.I-20/8/2014 43 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 5--Guardianship and Administration Orders Appointing a Parent as s. 34 Guardian or Administrator PART 5--GUARDIANSHIP AND ADMINISTRATION ORDERS APPOINTING A PARENT AS GUARDIAN OR ADMINISTRATOR 34 Application provision Parts 3, 4 (other than section 33) and 10 do not apply in relation to-- (a) an application for an order made under this Part; or (b) an applicant or a proposed represented person in respect of an application for an order made under this Part; or (c) an order made under this Part; or (d) a guardian or administrator appointed under this Part; or (e) a represented person in respect of whom, or in respect of whose estate, an order is made under this Part. 35 Parental application for guardianship or administration order (1) A parent may apply to VCAT for a guardianship order that appoints the parent as guardian in relation to a person with a disability if the person is a child of the parent and 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) A parent may apply to VCAT for an administration order that appoints the parent as administrator in relation to the estate of a person with a disability if the person is a child of the parent and is-- (a) of or over 18 years of age; or 571241B.I-20/8/2014 44 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 5--Guardianship and Administration Orders Appointing a Parent as s. 35 Guardian or Administrator (b) under 18 years of age but the order takes effect on that person attaining 18 years of age. (3) If a person with a disability who is of or over 18 years of age does not reside in Victoria but has an estate the whole or part of which is in Victoria, the parent of that person may apply to VCAT for an order under this Part appointing the parent as administrator or as guardian with powers in relation to a financial matter for so much of the estate as is in Victoria. (4) A parent may not make an application for an order under this Part in relation to a child of the parent if at any time before the application, guardianship, custody, daily care or parental responsibility in relation to the child was removed by law from the parent in one or more of the following circumstances-- (a) the child was the subject of an order in a Family Court proceeding; (b) the child was the subject of an order by an interstate authority; (c) the child was the subject of an order that granted guardianship, custody, daily care or parental responsibility to the Secretary to the Department of Human Services or an equivalent interstate officeholder. Note Nothing in this Part prevents a parent making an application under section 20 in relation to a child of the parent. 571241B.I-20/8/2014 45 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 5--Guardianship and Administration Orders Appointing a Parent as s. 36 Guardian or Administrator 36 Matters to be included in application (1) A parent applying to VCAT for an order under this Part must-- (a) include the following in the application-- (i) the names and contact details (if known to the parent) of-- (A) the primary carer of the proposed represented person; and (B) the accommodation provider in relation to the proposed represented person; and (C) any care worker who provides care on a regular and ongoing basis to the proposed represented person that is necessary because of the person's disability; and (D) any health provider who provides substantial health care on a regular and ongoing basis to the proposed represented person; and (E) the nearest relative available of the proposed represented person (other than the applicant); (ii) the type of order being applied for, including which specified decision making powers are sought; and (b) file the following in support of the application-- (i) evidence provided by a registered medical practitioner that-- (A) because of the proposed represented person's disability, the person does not have the decision making capacity to make a 571241B.I-20/8/2014 46 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 5--Guardianship and Administration Orders Appointing a Parent as s. 36 Guardian or Administrator supportive attorney appointment or an enduring power of attorney; and (B) the disability referred to in sub- subparagraph (A) arose before the proposed represented person attained 18 years of age; and (C) it is unlikely that the proposed represented person's decision making capacity will improve to the extent that the person could make a supportive attorney appointment or an enduring power of attorney during the term of the order; and (D) the views of the proposed represented person can or cannot be ascertained, and if they cannot be ascertained, the reasons why they cannot be ascertained; (ii) the history of the care arrangements for the proposed represented person, including-- (A) any significant events and changes and whether there is a history of parental care for the person; and (B) evidence that the applicant has been making decisions for the proposed represented person on a regular basis before the proposed represented person attained 18 years of age, and is currently doing so; (iii) evidence provided by a registered medical practitioner, registered psychologist or person who is a 571241B.I-20/8/2014 47 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 5--Guardianship and Administration Orders Appointing a Parent as s. 36 Guardian or Administrator member of a prescribed class of persons, of the views of the proposed represented person (so far as they can be ascertained) in relation to the proposed order or any other issues arising from the application; (iv) a statement that the proposed represented person has not been removed from the guardianship, custody, daily care or parental responsibility of the applicant as referred to in section 35(4); (v) a statement listing any conviction of the applicant in relation to-- (A) an offence involving violence; or (B) a prescribed offence; or (C) an offence which has a maximum penalty of 5 years or more. (2) A person who provides evidence under subsection (1)(b)(i) or (iii)-- (a) must not be a relative of the proposed represented person; and (b) must give that evidence independently of the views of the applicant or any other person; and (c) must obtain the evidence in the prescribed manner, if any. (3) In this section-- enduring power of attorney has the same meaning as in the Powers of Attorney Act 2014; registered psychologist means a person registered under the Health Practitioner Regulation National Law to practise in the psychology profession (other than as a student); 571241B.I-20/8/2014 48 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 5--Guardianship and Administration Orders Appointing a Parent as s. 37 Guardian or Administrator supportive attorney appointment has the same meaning as in the Powers of Attorney Act 2014. 37 Who are the parties to a proceeding? The following persons are parties to a proceeding on an application under section 35-- (a) the applicant; (b) the proposed represented person. 38 Who is entitled to notice of an application? In addition to any party to a proceeding on an application under section 35, for the purposes of section 72(1) of the VCAT Act, the following persons (of whom the applicant could be reasonably expected to be aware and to be able to notify) are entitled to a notice of the making of the application-- (a) the primary carer of the proposed represented person; (b) the accommodation provider in relation to the proposed represented person; (c) any care worker who provides care on a regular and ongoing basis to the proposed represented person that is necessary because of the person's disability; (d) any health provider who provides substantial health care on a regular and ongoing basis to the proposed represented person; (e) the nearest relative available of the proposed represented person (other than the applicant). Note Section 72(1)(b) of the VCAT Act provides that an applicant for a VCAT order must serve a copy of the application on a person entitled to notice of the application under the enabling enactment (which is this Act). Section 72 of the 571241B.I-20/8/2014 49 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 5--Guardianship and Administration Orders Appointing a Parent as s. 39 Guardian or Administrator VCAT Act also provides for the circumstances in which service by the applicant may not be required. 39 Contents of notice of an application (1) A notice of the making of an application that is given to the proposed represented person 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; (b) a statement that the proposed represented person may-- (i) make a submission to VCAT in relation to the application within 60 days after the notice was given to the proposed represented person; and (ii) provide VCAT with the proposed represented person's views in relation to the application. (2) A notice referred to in section 38 and given to a person who is not the represented person must include the following-- (a) a copy of the application; (b) a statement that the person may make a submission to VCAT in relation to the application within 60 days after the notice was given to the person. 40 Submissions may be made in relation to an application A person who is entitled to receive a notice under section 38 or who has an interest in the application may make a submission to VCAT in relation to the application within 60 days after the notice was given under that section. 571241B.I-20/8/2014 50 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 5--Guardianship and Administration Orders Appointing a Parent as s. 41 Guardian or Administrator 41 When must VCAT make a guardianship or administration order on the papers? (1) Subject to subsection (2), VCAT must make a guardianship order or administration order as sought on the papers that appoints the applicant as guardian or administrator if VCAT-- (a) did not receive any submission in relation to the application in accordance with section 40 and is satisfied as to the matters referred to in section 36(1)(b)(i) and (ii); or (b) received a submission in relation to the application in accordance with section 40 and is satisfied as to the matters referred to in section 36(1)(b)(i) and (ii), taking into account the contents of the submission. (2) VCAT must not make a guardianship order or administration order under subsection (1) if VCAT is satisfied that-- (a) the proposed represented person-- (i) does not want the order to be made; or (ii) has other concerns that VCAT wishes to consider at a hearing; or (b) based on the evidence in the application and any submissions received by VCAT, there is a significant risk that the order sought would be harmful to the personal and social wellbeing of the proposed represented person. 42 When must VCAT commence hearing in relation to application for a guardianship order or an administration order? If section 41(2)(a) or (b) applies, VCAT must commence to hear an application under this Part within 30 days after the expiry of the 60 day 571241B.I-20/8/2014 51 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 5--Guardianship and Administration Orders Appointing a Parent as s. 43 Guardian or Administrator period for receiving a submission under section 40. 43 Participation of proposed represented person at hearing VCAT may only conduct a hearing in relation to an application made under section 35 if-- (a) the proposed represented person is present at the hearing; or (b) VCAT is satisfied that-- (i) the proposed represented person does not wish to attend the hearing; or (ii) the presence 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. 44 When must VCAT make guardianship or administration order following hearing? (1) Subject to this section, VCAT must make a guardianship order or administration order as sought following a hearing in relation to an application under this Part that appoints the applicant as guardian or administrator if VCAT is satisfied as to the matters referred to in section 36(1)(b)(i) and (ii). (2) VCAT must refuse to make a guardianship order or administration order as sought following a hearing in relation to an application under this Part that appoints the applicant as guardian or 571241B.I-20/8/2014 52 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 5--Guardianship and Administration Orders Appointing a Parent as s. 45 Guardian or Administrator administrator if VCAT is satisfied that the order sought-- (a) would be harmful to the personal and social wellbeing of the proposed represented person; or (b) would not be appropriate, on the basis of the views of the proposed represented person (so far as they can be ascertained). (3) VCAT may make a guardianship or administration order that confers more limited powers on the guardian or administrator appointed than were sought in the application under this Part if VCAT is satisfied as to the matters referred to in section 36(1)(b)(i) and (ii) and that-- (a) the order sought would not be harmful to the personal and social wellbeing of the proposed represented person; or (b) the order made by VCAT more closely reflects the views of the proposed represented person (so far as they can be ascertained). 45 Reassessment of orders made under this Part (1) VCAT must conduct a reassessment of a guardianship order or an administration order made under this Part within the 6 month period immediately before the fifth anniversary of the order. (2) VCAT may at any time conduct a reassessment of a guardianship order or an administration order made under this Part if VCAT is satisfied that-- (a) there is a significant risk that the order is harmful to the represented person; or (b) the order may no longer be appropriate, on the basis of the views of the represented person. 571241B.I-20/8/2014 53 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 5--Guardianship and Administration Orders Appointing a Parent as s. 46 Guardian or Administrator (3) Before conducting a reassessment under subsection (2), VCAT must-- (a) consider whether it is appropriate to give the guardian or administrator, as the case may be, an opportunity to make a submission to VCAT as to whether or not a reassessment should be conducted; and (b) if it considers that it is appropriate, provide the guardian or administrator, as the case may be, the opportunity to do so. (4) A reassessment under subsection (2) may be conducted-- (a) on VCAT's own initiative; or (b) on the application of any person. 46 VCAT may request information and documents For the purposes of a reassessment that occurs in accordance with section 45(1), VCAT may request the guardian or administrator, as the case may be, to provide VCAT with some or all of the information and documents referred to in section 36(1). 47 VCAT must give notice (1) After a guardian or administrator is notified that VCAT intends to reassess the guardianship order or administration order made under this Part, the following persons (of whom the applicant could be reasonably expected to be aware and to be able to notify) are entitled to notice of the making of the reassessment-- (a) the represented person; (b) the primary carer of the represented person; (c) the accommodation provider in relation to the represented person; 571241B.I-20/8/2014 54 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 5--Guardianship and Administration Orders Appointing a Parent as s. 48 Guardian or Administrator (d) any care worker who provides care on a regular and ongoing basis to the represented person that is necessary because of the person's disability; (e) any health provider who provides substantial health care on a regular and ongoing basis to the represented person; (f) the nearest relative available of the represented person (other than the applicant); (g) a person not referred to in paragraphs (a) to (f) who made a submission to VCAT in the original application. (2) Section 72 of the VCAT Act applies as if the notice were in relation to an application. Note Section 72(1)(b) of the VCAT Act provides that an applicant for a VCAT order must serve a copy of the application on a person entitled to notice of the application under the enabling enactment (which is this Act). Section 72 of the VCAT Act also provides for the circumstances in which service by the applicant may not be required. (3) A person who is notified under subsection (1) may make a submission to VCAT in relation to the reassessment within 60 days after the notification is made under that subsection. 48 Conduct of reassessment (1) Subject to subsection (2), a reassessment of an order made under this Part must be conducted on the papers. 571241B.I-20/8/2014 55 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 5--Guardianship and Administration Orders Appointing a Parent as s. 49 Guardian or Administrator (2) A reassessment under section 45(1) or (2) of an order made under this Part must be conducted at a hearing if-- (a) VCAT is satisfied that that the represented person does not want the order as made to continue to be in force or has other concerns that should be considered at a hearing; or (b) VCAT considers that based on the evidence provided by the guardian or administrator, as the case may be, or on any submission received by VCAT, there is a significant risk that continuing the order would be harmful to the personal and social wellbeing of the represented person. 49 Order after reassessment (1) On completing a reassessment of an order under this Part on the papers, VCAT may by order-- (a) amend, vary, continue or replace the order subject to any conditions or requirements it considers necessary, if satisfied as to the matters referred to in section 36(1)(b)(i) and (ii); or (b) revoke the order if section 41(2)(a) or (b) applies. (2) On completing a reassessment of an order under this Part at a hearing, VCAT may by order-- (a) amend, vary, continue or replace the order to alleviate the represented person's concerns, if satisfied as to the matters referred to in section 36(1)(b)(i) and (ii); or (b) revoke the order. __________________ 571241B.I-20/8/2014 56 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 50 PART 6--POWERS AND DUTIES OF GUARDIANS AND ADMINISTRATORS Division 1--Guardians 50 Authority of a guardian (1) A guardianship order appointing a guardian in relation to the represented person confers on the guardian-- (a) in relation to a personal matter-- (i) the powers and duties set out in Division 3; and (ii) those powers in relation to the represented person that VCAT specifies in the order in accordance with subsection (2); and (b) in addition to the powers and duties under paragraph (a), in relation to a financial matter-- (i) the powers set out in Division 4; and (ii) the duties set out in Division 6; and (iii) such of the powers set out in Division 5 that VCAT specifies in the order in accordance with subsection (3). (2) For the purposes of subsection (1)(a), VCAT may specify one or more of the powers that a principal may confer on an enduring attorney under the Powers of Attorney Act 2014 in relation to a personal matter if VCAT is satisfied that the power is necessary or desirable for the purpose of promoting the personal and social wellbeing of the represented person. (3) For the purposes of subsection (1)(b)(iii), VCAT may specify one or more of the powers set out in Division 5 if VCAT is satisfied that the power is 571241B.I-20/8/2014 57 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 51 necessary or desirable for the purpose of promoting the personal and social wellbeing of the represented person. 51 Appointment and authority of an alternative guardian (1) When making or reassessing a guardianship order which only confers powers in relation to a personal matter, or at any time when such a guardianship order is in force, VCAT may make an order appointing an alternative guardian with powers in relation to a personal matter if-- (a) the person proposed as an alternative guardian has consented to act as guardian of the represented person in the event of-- (i) the death or absence of the original guardian; or (ii) the original guardian becoming a person who does not have decision making capacity in relation to the personal matters in respect of which the guardianship order was made; and (b) VCAT is satisfied that the persons to whom notice of the hearing of a guardianship order is given under section 23 have had sufficient notice of the willingness of the person proposed as alternative guardian to act as alternative guardian. (2) Sections 31 and 32 (other than section 32(2)) apply to and in relation to the person proposed as alternative guardian as if that person were the proposed guardian. (3) If an alternative guardian is appointed, the alternative guardian immediately takes over the office of guardian without further proceedings on one of the following events-- 571241B.I-20/8/2014 58 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 52 (a) the death or absence of the original guardian; (b) the original guardian becoming a person who does not have decision making capacity in relation to the matters in respect of which the guardianship order was made. (4) The alternative guardian must notify VCAT in writing of an event referred to in subsection (3) and provide evidence of the event. (5) An alternative guardian who has taken over the office of a guardian has the same powers and duties with respect to the represented person as the original guardian had immediately before that guardian's death, absence or loss of decision making capacity. 52 Temporary guardianship orders (1) A temporary guardianship order-- (a) remains in effect for such period not exceeding 21 days as is specified in the order; and (b) may be renewed once for a further period not exceeding 21 days. (2) VCAT must hold a hearing to determine whether a guardianship order should be made under section 28 as soon as practicable after making a temporary order but within 42 days of making that order. 53 Authority of guardians--general A decision made, action taken, consent given or thing done by a guardian under a guardianship order has effect as if it had been made, taken, given or done by the represented person and the represented person had the decision making capacity for the matter in relation to which the order was made. 571241B.I-20/8/2014 59 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 54 54 Represented person to comply with guardian's decisions (1) VCAT may make an order that specifies that the person named as guardian or another specified person is empowered to take specified measures or actions to ensure that the represented person complies with the guardian's decisions in the exercise of the powers and duties conferred by the guardianship order. (2) VCAT must hold a hearing to reassess an order made under subsection (1) as soon as practicable after making that order but within 42 days of making that 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 that order if the guardian or other person took that measure or action in the belief that-- (a) the measure or action would promote the personal and social wellbeing of the represented person; and (b) it was reasonable to take that measure or action in the circumstances. (4) Subsection (1) does not limit section 50, 51 or 53. Division 2--Administrators 55 Authority of administrator (1) An administration order appointing an administrator confers on the administrator-- (a) the powers and duties set out in Division 3; and (b) the powers set out in Division 4; and 571241B.I-20/8/2014 60 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 56 (c) the duties set out in Division 6; and (d) such of the powers referred to in Division 5 that VCAT specifies in the order in accordance with subsection (2). (2) For the purposes of subsection (1)(d), VCAT may specify one or more of the powers set out in Division 5 if VCAT is satisfied that the power is necessary or desirable for the purpose of promoting the personal and social wellbeing of the represented person. (3) A decision made, action taken, consent given or thing done by an administrator under an administration order has effect as if it had been 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. 56 Temporary administration orders (1) A temporary administration order-- (a) remains in effect for such period not exceeding 21 days as is specified in the order; and (b) may be renewed once for a further period not exceeding 21 days. (2) VCAT must hold a hearing to determine whether an administration order should be made under section 28 as soon as practicable after making a temporary order but within 42 days of making that order. 571241B.I-20/8/2014 61 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 57 Division 3--Powers and duties of all guardians and all administrators 57 Matters for which power cannot be given under an order made under section 28 To avoid doubt, despite anything to the contrary in this Part, an order made under section 28 does not confer on the person appointed as guardian or administrator, as the case may be, authority-- (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 a local election or referendum; or (d) to enter into or dissolve 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 any 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 571241B.I-20/8/2014 62 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 58 (h) to manage the estate of the represented person on the death of the represented person; or (i) to consent to an unlawful act. 58 Exercise of power by guardian or administrator Without limiting section 7, in relation to the represented person for whom an order is made under section 28-- (a) the guardian must-- (i) act as an advocate for the represented person; and (ii) act in such a way as to protect the represented person from neglect, abuse or exploitation; and (b) the guardian or administrator, as the case may be, must-- (i) act honestly, diligently and in good faith; and (ii) exercise reasonable skill and care; and (iii) not use the position for profit, unless permitted under section 194; and (iv) avoid acting if there is or may be a conflict of interest unless a power conferred by the order so authorises; and (v) not disclose confidential information gained as a guardian or administrator unless authorised to do so under the order or by law. 571241B.I-20/8/2014 63 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 59 59 Ancillary powers of guardian or administrator A guardian or administrator may on behalf of a represented person sign and do all such things as are necessary to give effect to any power or duty vested in the guardian or administrator. 60 Guardian or administrator may seek advice (1) A guardian or administrator may apply to VCAT for advice on any matter relating to the scope of the guardianship order or administration order (as the case may be) or the exercise of any power by the guardian or administrator under the relevant order. (2) Without limiting subsection (1), the jurisdiction of VCAT includes jurisdiction in the case of an administration by State Trustees to approve, order or advise the commencement of proceedings by State Trustees acting in one capacity or on behalf of one represented person against State Trustees acting in another capacity or on behalf of another represented person. (3) VCAT may-- (a) approve or disapprove of any act proposed to be done by the guardian or administrator; and (b) give such advice as it considers appropriate; and (c) make any order it considers necessary. (4) VCAT, of its own initiative, may direct or give an advisory opinion to the guardian or administrator concerning any matter. (5) An action does not lie against a guardian or administrator on account of an act or thing done or omitted by the guardian or administrator under any order or on the advice of VCAT made or given under this section unless, in representing the 571241B.I-20/8/2014 64 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 61 facts to VCAT, the guardian or administrator has been guilty of fraud, wilful concealment or misrepresentation. 61 Notice of death of represented person If a represented person, in relation to whom a guardian or administrator has been appointed, dies, the guardian or administrator (as the case may be) must report the death in writing to VCAT without delay. Division 4--Powers for all guardians with powers in relation to a financial matter and all administrators 62 General powers and rights in relation to estate of represented persons A guardian with powers in relation to a financial matter or an administrator may, in the name and on behalf of the represented person, generally do all acts and exercise all powers and rights with respect to the estate of the represented person as effectually and in the same manner as the represented person could have done if the represented person had decision making capacity to do so for the matters in relation to which the guardianship order or administration order was made. 63 Powers of investment Except as provided in section 83 or any order of VCAT, a guardian with powers in relation to a financial matter, or an administrator, who is appointed in relation to any part of the estate of the represented person-- (a) may, for such period as the guardian or administrator thinks fit, allow that part of the estate to remain invested in the manner in which it has been invested by the represented person; and 571241B.I-20/8/2014 65 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 64 (b) may, in the case of money deposited in an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth, re-deposit it after it becomes payable; and (c) has, and may exercise in relation to that part of the estate, the same powers as the guardian or administrator would have if the guardian or administrator were a trustee of that part of the estate under the Trustee Act 1958. 64 Power to make gifts (1) A guardian with power in relation to a financial matter or an administrator may make a gift of a represented person's property only if-- (a) the gift is reasonable, having regard to all the circumstances and, in particular, 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) a type of donation that the represented person made when the represented person had decision making capacity for the matter or that the represented person might reasonably be expected to make. 571241B.I-20/8/2014 66 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 65 (2) A gift may be made by a guardian with power in relation to a financial matter or the administrator under subsection (1) even if the gift is made to-- (a) that guardian or administrator; or (b) a relative or close friend of the guardian or administrator; or (c) an organisation with whom the guardian or administrator has a connection. Note Sections 75 and 76 set out accounting requirements in relation to gifts that are of or over $100 or the prescribed amount (whichever is greater). 65 Exercise of certain powers (1) Subsection (2) applies if-- (a) a power is vested in a represented person for that person's own benefit or the consent of a represented person is necessary to the exercise of a power; and (b) the power or consent is in the nature of a beneficial interest in the represented person; and (c) it appears to the guardian with powers in relation to a financial matter or the administrator to be for the benefit of the represented person that the power should be exercised or the consent given. (2) A guardian with powers in relation to a financial matter or an administrator may, on behalf and in the name of a represented person, in any manner that the guardian or administrator thinks fit, exercise a power referred to in subsection (1) or give a consent referred to in that subsection. 571241B.I-20/8/2014 67 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 66 (3) Subsection (4) applies if-- (a) a power is vested in a represented person in the character of a trustee or guardian, or the consent of a represented person to the exercise of a power is necessary in the character of a trustee or guardian or as a check on the undue exercise of the power; and (b) it appears to the guardian with powers in relation to a financial matter or the administrator that the power should be exercised or the consent given. (4) A guardian with powers in relation to a financial matter or an administrator may in any manner that the guardian or administrator thinks fit, on behalf and in the name of a represented person, exercise a power referred to in subsection (3) or give a consent referred to in that subsection. (5) The exercise, under this section by a guardian with powers in relation to a financial matter or by an administrator, of a power vested in a represented person to appoint a new trustee is to be taken to be the appointment of a new trustee within the meaning of section 45 of the Trustee Act 1958. 66 Guardian with powers in relation to a financial matter or administrator may open will A guardian with powers in relation to a financial matter or an administrator may, either before or after the death of a represented person, open and read without order any paper or writing deposited with the guardian or administrator that is purported or alleged to be the will of the represented person. 571241B.I-20/8/2014 68 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 67 67 Guardian with powers in relation to a financial matter or an administrator may seek advice from professional adviser (1) A guardian with powers in relation to a financial matter or an administrator may seek advice from a professional adviser on the administration of the represented person's estate. (2) A guardian with powers in relation to a financial matter or an administrator is entitled to be reimbursed from the estate administered by the guardian or administrator for any costs paid by that person in the course of obtaining advice under subsection (1). (3) In this section-- professional adviser means a person who provides professional advice in relation to financial matters to guardians with power in relation to a financial matter or to administrators and includes a financial adviser, legal practitioner and accountant. Division 5--Powers that may be conferred on guardians with power in relation to a financial matter and administrators 68 Application of Division to guardians and administrators In this Division-- (a) a provision that refers to a guardian only applies to a specific guardian with powers in relation to a financial matter if the order appointing that guardian specifies that the provision applies to that guardian or that the power in that provision is conferred on the guardian; and 571241B.I-20/8/2014 69 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 69 (b) a provision that refers to an administrator only applies to a specific administrator if the order appointing that administrator specifies that the provision applies to that administrator or that the power in that provision is conferred on the administrator. 69 Powers in relation to represented persons (1) Subject to and in accordance with this Act and the order appointing a guardian with powers in relation to a financial matter or an administrator, the guardian or administrator has the general care and management of the represented person's estate. (2) Without limiting subsection (1), a guardian with powers in relation to a financial matter or an administrator may, in the name and on behalf of a represented person-- (a) collect, receive and recover-- (i) income of the represented person; and (ii) money due or which becomes due to the represented person; and (iii) any compensation or damages for injury to the estate or person of the represented person; and (b) invest any money in any security in which trustees may by law invest; and (c) demise land at a rent and on conditions as the administrator thinks fit for any term not exceeding 5 years or, with the consent of VCAT, for any longer term; and (d) exercise to the extent and in the manner the guardian or administrator thinks fit any power of leasing vested in the represented person; and 571241B.I-20/8/2014 70 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 69 (e) surrender any lease, accept any lease, accept the surrender of any lease or renew any lease; and (f) bring land under the Transfer of Land Act 1958; and (g) sell, exchange, partition or convert into money any property; and (h) mortgage or charge any property; and (i) pay any debts and settle, adjust or compromise any demand made by or against the estate and discharge any encumbrance on the estate; and (j) carry on so far as appears desirable any trade, profession or business which the represented person carried on; and (k) agree to any alteration of the conditions of any partnership into which any represented person has entered or to a dissolution and distribution of the assets of the partnership; and (l) bring and defend actions and other legal proceedings in the name of the represented person; and (m) execute and sign deeds, instruments and other documents; and (n) complete any contract for the performance of which the represented person was liable, or enter into any agreement terminating liability; and 571241B.I-20/8/2014 71 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 69 (o) pay any sum that appears expedient and reasonable to the guardian or administrator for-- (i) the maintenance of the represented person (and, in the event of the represented person's death, for funeral expenses); and (ii) the maintenance of the represented person's spouse or domestic partner or any child, parent or other person dependent on the represented person; and (iii) the maintenance and education of the represented person's children; and (p) do all matters necessary or incidental to the performance of any of the above-mentioned matters and apply any money from the estate which it is necessary to apply for the purposes of this Act. (3) A guardian with powers in relation to a financial matter or an administrator may-- (a) pay or cause to be paid to the represented person for the personal use of that person any amount of money standing to the credit of that person with the guardian or administrator; and (b) give or cause to be given to the represented person for the personal use of that person any personal property which belongs to that person and is under the control of the guardian with powers in relation to a financial matter or the administrator. 571241B.I-20/8/2014 72 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 70 Division 6--Additional duties of all guardians with power in relation to a financial matter and all administrators 70 Property of represented person Subject to and in accordance with this Act and the order appointing a guardian with powers in relation to a financial matter or an administrator, it is the duty of the guardian or administrator to take possession and care of, recover, collect, preserve and administer the property and estate of the represented person and generally to manage the property and financial affairs of the represented person. 71 Conflict transactions (1) A guardian with powers in relation to a financial matter or an administrator must not enter into a transaction in that capacity if the transaction is one in which there is, or may be, a conflict between a duty of the guardian or administrator to the represented person and the interests of the guardian or administrator, or a relative, business associate or close friend of the guardian or administrator. (2) Subsection (1) does not apply to-- (a) a gift made in accordance with section 64; or (b) a transaction providing for the maintenance of a dependant of the represented person made in accordance with section 69(2)(o); or (c) a transaction merely because in the transaction, the guardian or administrator, in the guardian's or administrator's own right and on behalf of the represented person-- (i) deals with an interest in property held jointly by the guardian or administrator and the represented person (whether as joint tenants or tenants in common); or 571241B.I-20/8/2014 73 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 72 (ii) obtains a loan or gives a guarantee or indemnity in respect to a transaction referred to in subparagraph (i). 72 Permitted conflict transactions (1) A guardian with powers in relation to a financial matter or an administrator may enter into a transaction prohibited by section 71(1) if VCAT authorises the guardian or administrator at or before the time of the transaction to enter into-- (a) the transaction; or (b) that kind of transaction; or (c) any transaction prohibited by section 71(1). (2) Despite section 71(1), VCAT may validate a transaction prohibited under that section. (3) A transaction validated under subsection (2) is taken to be valid from its commencement. 73 Keeping records A guardian with powers in relation to a financial matter or an administrator must keep accurate records and accounts of all dealings and transactions made for financial matters. 74 Separation of guardian's or administrator's property and the property of the represented person (1) A guardian with powers in relation to a financial matter or administrator appointed in relation to the estate of a represented person must keep the guardian's or administrator's property separate from the represented person's property. (2) Subsection (1) does not apply to property owned jointly by the guardian or administrator and the represented person. (3) Subsection (1) does not affect any other obligation imposed by law. 571241B.I-20/8/2014 74 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 75 75 Accounts (1) VCAT may, at the time that it appoints under section 28 a guardian with powers in relation to a financial matter or an administrator or at any later time, appoint a person to examine or audit the accounts of the estate of a represented person for a fee approved by VCAT and paid from that estate. (2) On, or as soon as practicable after, the anniversary in each year of the appointment of the guardian with powers in relation to a financial matter or of the administrator, the guardian or administrator must lodge an account of the administration of the estate of a represented person with-- (a) the person appointed under subsection (1) to examine or audit accounts; or (b) VCAT, if no person is appointed under subsection (1). (3) Despite subsection (2), VCAT may require a guardian with powers in relation to a financial matter or an administrator to lodge accounts at a time other than a time specified in that subsection. (4) Subject to section 76, an account lodged under subsection (2) or (3) must-- (a) provide a full and true account of the assets and liabilities of the estate of the represented person and all receipts and disbursements in relation to that estate; and (b) include details of any gift made by the guardian or administrator of the represented person's property with a total value of or over the prescribed amount or, if an amount is not prescribed, $100 and that is made to-- (i) that guardian or administrator; or (ii) a relative or close friend of the guardian or administrator; or 571241B.I-20/8/2014 75 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 75 (iii) an organisation with whom the guardian or administrator has a connection. (5) A person appointed under subsection (1) to examine or audit accounts must lodge with VCAT a report in relation to the accounts examined or audited and may recommend in the report the disallowance of any item in the accounts. (6) VCAT must not make an order disallowing an item referred to in subsection (5) if VCAT is satisfied that the guardian with powers in relation to a financial matter or administrator acted in good faith and with reasonable care in the exercise of powers conferred on the guardian or administrator. (7) If VCAT disallows an item referred to in subsection (5), the guardian with powers in relation to a financial matter or the administrator is liable for the amount of the item disallowed. (8) A guardian with powers in relation to a financial matter or an administrator must, in relation to each estate administered by the guardian or administrator, pay to a person appointed under subsection (1) to examine or audit accounts an amount certified by that person as being the reasonable cost of examining or auditing the accounts. (9) VCAT may, on an application by the guardian with powers in relation to a financial matter or the administrator and with the consent of the person appointed under subsection (1) to examine or audit accounts, waive payment of the whole or part of the amount required to be paid under subsection (8). 571241B.I-20/8/2014 76 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 76 76 Alternative accounting requirements for certain estates (1) If VCAT determines that the estate of a represented person is a small estate and that it is appropriate (having regard to the nature of the relationship between the represented person and the guardian with powers in relation to a financial matter or the administrator) that section 75(4) not apply, a guardian or an administrator must instead comply with the requirements of this section. (2) Subject to subsection (1), an account lodged under section 75(2) must include the following-- (a) a declaration made by the guardian with powers in relation to a financial matter or the administrator that all expenditure in relation to the estate during the accounting period was solely for the benefit of the represented person; (b) details of any gift made by the guardian or administrator of the represented person's property with a total value of or over $100 or the prescribed amount (whichever is greater) and that is made to-- (i) that guardian or administrator; or (ii) a relative or close friend of the guardian or administrator; or (iii) an organisation with whom the guardian or administrator has a connection; (c) details of any expenditure on a single occasion that is greater than $1000 or the prescribed amount (whichever is greater); (d) details of any major change in the represented person's income or expenditure; 571241B.I-20/8/2014 77 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 77 (e) details of any major change in the represented person's assets or liabilities. (3) In this section-- small estate means an estate of a represented person that consists of assets with a value of less than $10 000 or the prescribed amount (whichever is greater) and an income that is not more than $25 000 or the prescribed amount (whichever is greater). Division 7--Other matters pertaining to the administration of estates of represented persons 77 Guardian's or administrator's power to act until notice received (1) If VCAT knows that a person has ceased to be a represented person, VCAT must without delay give notice of that fact to the guardian with powers in relation to a financial matter or to the administrator. (2) Until the guardian with powers in relation to a financial matter or the administrator learns that a person has ceased to be a represented person or has died, the guardian or administrator may exercise all or any of the powers given to the guardian or administrator by order of VCAT with respect to the estate of the represented person. (3) On notice being given under subsection (1), the represented person or the represented person's legal personal representative (as the case may be) is bound by, and may take advantage of, any act done on behalf of the represented person by the guardian with powers in relation to a financial matter or by the administrator within the powers conferred on the guardian or administrator by VCAT as if it had been done by the represented person and the represented person had decision making capacity to do so for the matter in relation 571241B.I-20/8/2014 78 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 78 to which the guardianship or administration order was made. 78 Action on a person ceasing to be a represented person (1) If a guardian with powers in relation to a financial matter or an administrator receives notice from any person that a represented person has died or from VCAT that a represented person has died or ceased to be a represented person, the guardian or administrator must-- (a) pay or cause to be paid to that person or to that person's personal representative (as the case requires) all money standing to the person's credit with the guardian or administrator; and (b) deliver to that person or to that person's personal representative (as the case requires) all property forming part of the person's estate that is in the custody of the guardian or administrator and any documents relating to that property. (2) Any payment made under subsection (1) and any property delivered under that subsection is subject to the satisfaction of any amount due to the guardian with powers in relation to a financial matter or the administrator and all costs, expenses and liabilities incurred by the guardian or administrator in relation to the administration of that person's estate. (3) The receipt by a person who has ceased to be a represented person or of that person's personal representative is an absolute discharge to a guardian or administrator despite any informality in the discharge or certification. 571241B.I-20/8/2014 79 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 79 79 Represented person entitled to inspection of accounts A person who has ceased to be a represented person (or the personal representative of such a person) is entitled, before or after obtaining the restoration of all or any part of the estate from a guardian with powers in relation to a financial matter or an administrator-- (a) to examine and inspect or cause to be examined and inspected by a legal practitioner or other authorised agent all books, accounts, notices and other documents in the custody of the guardian or administrator relating to the estate and to make or cause to be made copies or extracts; and (b) to be provided with-- (i) copies of or extracts from any book, account, notice or document in relation to the administration of the estate by the guardian or administrator; and (ii) information in relation to the administration of the estate by the guardian or administrator that is reasonable to request and that can be given by the guardian or administrator. 80 Sale of personal effects if unclaimed within 2 years from date of discharge (1) All personal effects of a person who was a represented person that are in the possession of a guardian with powers in relation to a financial matter or an administrator and are not claimed within 2 years after the date on which the person ceased to be a represented person, may, after public notice, be sold by order of the guardian or administrator. 571241B.I-20/8/2014 80 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 81 (2) The proceeds are to be paid into the Consolidated Fund. 81 Death of represented person On the death of a represented person, an order appointing an administrator of that represented person's estate under this Act lapses and the law relating to the administration of a deceased person's estate applies accordingly. 82 Restriction on powers of represented person in relation to estate (1) A represented person is taken to be incapable (to the extent that the represented person's estate is under the control of a guardian with powers in relation to a financial matter or an administrator), of dealing with, transferring, alienating or charging the represented person's money or property in whole or in part or becoming liable under any contract without the order of VCAT or the written consent of the guardian or administrator. (2) Any dealing, transfer, alienation or charge by any represented person in relation to any part of the estate which is under the control of the guardian with powers in relation to a financial matter or the administrator is void and of no effect, and the money or property that is the subject of the dealing, transfer, alienation or charge is recoverable by the guardian or administrator in any court of competent jurisdiction. (3) This section does not render invalid any dealing, transfer, alienation or charge by a represented person made for adequate consideration with or to or in favour of any other person who proves that the other person acted in good faith and did not know or could not reasonably have known that the represented person was a represented person. 571241B.I-20/8/2014 81 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 83 (4) For the purpose of this section, the acceptance of payment of the whole or any part of a debt is taken to be a dealing with property. 83 Interest of represented person in property not to be altered by sale or other disposition of property (1) A represented person and the represented person's heirs, executors, administrators, next of kin, devisees, legatees and assigns have the same interest in any money or other property arising from or received in respect of any sale, mortgage, exchange, partition or other disposition under the powers conferred on a guardian with powers in relation to a financial matter or an administrator by an order of VCAT which have not been applied under those powers as the represented person or those other persons would have had in the property the subject of the sale, mortgage, exchange, partition or disposition if no sale, mortgage, exchange, partition or disposition had been made. (2) For the purposes of this section, money arising from the compulsory acquisition or purchase under any Act of property of a represented person is taken to be money arising from the sale of that property under the powers given to a guardian with powers in relation to a financial matter or an administrator by an order of VCAT. (3) A guardian with powers in relation to a financial matter or an administrator who receives money or other property under this section must keep a separate account and record of the money or other property. (4) Money received by a guardian with powers in relation to a financial matter or an administrator under this section may be invested in any manner in which trust funds may be invested under the Trustee Act 1958. 571241B.I-20/8/2014 82 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 84 (5) In this section-- next of kin in relation to a represented person means any person who would be entitled to the property of the represented person or to any share of the property under any law for the distribution of the property of intestates if the represented person had died intestate. 84 VCAT may open will VCAT may either before or after the death of a represented person open and read any paper or writing which is purported or alleged to be the will of the represented person. 85 Guardianship and Administration Fund (1) The account that is known as "The Guardianship and Administration Fund" and that was established in the Public Account under section 58AA of the Guardianship and Administration Act 1986 continues in existence. (2) There is to be paid into the Guardianship and Administration Fund-- (a) all annual fees prescribed under section 210 that are paid in relation to estates which are the subject of an administration order or guardianship order that appoints a guardian with powers in relation to a financial matter; and (b) interest received from the investment of money in the Fund. (3) Money standing to the credit of the Guardianship and Administration Fund may be invested in any manner in which trust funds may be invested under the Trustee Act 1958. (4) The Guardianship and Administration Fund is to be used to meet the costs and expenses of VCAT in relation to proceedings under this Act. 571241B.I-20/8/2014 83 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 6--Powers and Duties of Guardians and Administrators s. 86 86 Application to VCAT by represented person or a person interested (1) A represented person or a person interested as a creditor, beneficiary, next of kin, guardian, nearest relative, primary carer or the Public Advocate or otherwise in the estate of the represented person that is administered by a guardian with powers in relation to a financial matter or an administrator may apply to VCAT on any matter arising out of the administration of that estate by the guardian or administrator. (2) VCAT may make such order in relation to the application as the circumstances of the case may require. (3) In this section-- next of kin in relation to a represented person means any person who would be entitled to the property of the represented person or to any share of the property under any law for the distribution of the property of intestates if the represented person had died intestate. _________________ 571241B.I-20/8/2014 84 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 7--Supportive Guardianship Orders s. 87 PART 7--SUPPORTIVE GUARDIANSHIP ORDERS Division 1--Application for supportive guardianship orders 87 Application for supportive guardianship orders A person may apply to VCAT for a supportive guardianship order in relation to another person with a disability to support that person in making and giving effect to decisions in relation to any personal, financial or other matters specified in the order if that person is-- (a) of or over 18 years of age; or (b) under 18 years of age but the order takes effect on that other person attaining 18 years of age. 88 Matters to be included in application to VCAT A person applying to VCAT for a supportive guardianship order must include in the person's application the following-- (a) the names and contact details (if known to the applicant) of any person who has a direct interest in the application; and (b) the matters in relation to which the order is sought. 89 Who are the parties to a proceeding? The following persons are parties to a proceeding on an application under section 87-- (a) the applicant; (b) the proposed supported person; (c) the person proposed as supportive guardian; (d) any other person whom VCAT determines to be a party to the proceeding. 571241B.I-20/8/2014 85 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 7--Supportive Guardianship Orders s. 90 90 Who is entitled to notice of an application, the hearing and any order made in the proceeding? (1) In addition to any party to a proceeding on an application under section 87, 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 provisions of the VCAT Act-- (a) the spouse or domestic partner of the proposed supported person; (b) the primary carer of the proposed supported person; (c) the nearest relative available (other than the spouse or domestic partner) of the proposed supportive person; (d) any other person whom VCAT determines to have an interest in the application. (2) As soon as practicable after making any determination under section 89(d) or subsection (1)(d), VCAT must notify the applicant as to who-- (a) are the parties to the proceeding on the application; and (b) is entitled under subsection (1) to a notice of the making of the application. Note Section 72(1)(b) of the VCAT Act provides that an applicant for a VCAT order must serve a copy of the application on a person entitled to notice of the application under the enabling enactment (which is this Act). 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 person entitled to 571241B.I-20/8/2014 86 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 7--Supportive Guardianship Orders s. 91 notice of the proceeding or of the order under the enabling enactment. 91 Contents of notice of application (1) A notice of the making of an application that is given to a party to an application must include the following-- (a) a copy of the application and any information filed in support of the application subject to clause 37A in 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, as stated in the notification given under section 90(2), of-- (i) the parties to the proceeding on an application under section 87; and (ii) the other persons entitled to the notice under section 90(1); (c) information about the rights of the party in relation to the application. (2) A notice of the making of an application that is given a person referred to in section 90(1) who is not a party must include the following-- (a) a copy of the application; (b) the names, as stated in the notification given under section 90(2), of-- (i) the parties to the proceeding on an application under section 87; and (ii) the other persons entitled to the notice under section 90(1); 571241B.I-20/8/2014 87 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 7--Supportive Guardianship Orders s. 92 (c) information about the rights of the person in relation to seeking information about the application; (d) information about the procedure for applying to VCAT to be made a party to the proceeding on the application. 92 Date for hearing of application for supportive guardianship order VCAT must commence to hear an application made under section 87 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 the application 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. 93 Participation at hearing by proposed supported person VCAT may only conduct a hearing in relation to an application for a supportive guardianship order if the proposed supported person is present at the hearing unless VCAT is satisfied that-- (a) the proposed supported person does not wish to attend; or (b) the presence of the proposed supported person 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 571241B.I-20/8/2014 88 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 7--Supportive Guardianship Orders s. 94 telephones, video links or any other system of telecommunication. Division 2--Conditions for making supportive guardianship orders and eligibility of person appointed 94 When may VCAT make a supportive guardianship order? Subject to this Division, VCAT may make a supportive guardianship order after considering an application for-- (a) a supportive guardianship order in relation to a proposed supported person; or (b) an administration or guardianship order in relation to a proposed represented person, if satisfied that the criteria set out in section 28(4) do not apply. 95 Conditions for making supportive guardianship orders VCAT may make an order appointing a supportive guardian for a proposed supported person or proposed represented person if VCAT is satisfied that-- (a) the person is a person with a disability; and (b) the person does not oppose VCAT making the order; and (c) if the person is given practicable and appropriate support, the person will have decision making capacity in relation to the personal, financial or other matter in relation to which the supportive guardianship order or the guardianship or administration order is sought; and (d) it is more appropriate that a supportive guardianship order is made than a guardianship or an administration order; and 571241B.I-20/8/2014 89 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 7--Supportive Guardianship Orders s. 96 (e) the supportive guardianship order would promote the person's personal and social wellbeing. 96 Factors to consider in determining appropriateness of supportive guardianship order For the purposes of section 95(d), in determining whether or not a supportive guardianship order in relation to a proposed supported person or proposed represented person is appropriate, VCAT must consider-- (a) the wishes of the person, so far as they can be ascertained; and (b) the wishes of the nearest relative of the person or any other family members; and (c) the desirability of preserving existing family relationships and other relationships that are important to the person; and (d) whether it is more suitable that the decision in relation to the personal, financial or other matter in relation to which the order is sought is made-- (i) through negotiation, mediation or similar means; or (ii) by informal means. 97 Persons eligible as supportive guardians VCAT may appoint as a supportive guardian any individual of or over 18 years of age who consents to act as supportive guardian if VCAT is satisfied that the person-- (a) will promote the personal and social wellbeing of the proposed supported person or proposed represented person; and (b) is a suitable person to act as the supportive guardian. 571241B.I-20/8/2014 90 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 7--Supportive Guardianship Orders s. 98 98 Factors to consider in relation to suitability of person appointed For the purposes of section 97(b), in determining whether a person is suitable to act as the supportive guardian of a proposed supported person or proposed represented person, VCAT must consider the following-- (a) the wishes of the proposed supported person or proposed represented person, so far as they can be ascertained; (b) the desirability of preserving existing family relationships and other relationships that are important to the proposed supported person or proposed represented person; (c) the nature of the relationship between the proposed supportive guardian and the proposed supported person or proposed represented person, in particular whether the relationship is characterised by trust; (d) whether the person proposed as a supportive guardian will be available and able to meet and communicate with the proposed supported person or proposed represented person. Division 3--Powers of a supportive guardian 99 Power to make and scope of appointment (1) Subject to Division 2, VCAT may appoint a supportive guardian under a supportive guardianship order to support the supported person in making and giving effect to decisions by exercising any of the powers referred to in sections 100, 101 or 102 that VCAT specifies in the order in relation to the personal, financial or other matters in respect of which the order was made. 571241B.I-20/8/2014 91 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 7--Supportive Guardianship Orders s. 100 (2) To avoid doubt, nothing in this Act or in a supportive guardianship order should be taken as providing for the making of a supported decision that is not a decision of the supported person. 100 Information power (1) A supportive guardian may access, collect or obtain from any person, or assist the supported person to access, collect or obtain from any person, any personal information about the supported person that-- (a) is relevant to a supported decision; and (b) may lawfully be collected or obtained by the supported person. (2) For the purposes of subsection (1), a person referred to in that subsection is authorised to disclose personal information about the supported person to the supportive guardian who is acting under the supportive guardianship order. Note See also the Disability Act 2006, the Health Records Act 2001 and the Privacy and Data Protection Act 2014 for provision as to disclosure of personal information to supportive guardians and access to personal information by supportive guardians. (3) A supportive guardian may disclose any information given to the supportive guardian under subsection (1) for the purpose of-- (a) anything that is relevant and necessary to the supportive guardian carrying out the role of supportive guardian; or (b) any legal proceeding under this Act, or any report of a legal proceeding under this Act; or (c) any other lawful reason. 571241B.I-20/8/2014 92 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 7--Supportive Guardianship Orders s. 101 101 Communication power A supportive guardian may-- (a) communicate any information about the supported person that is relevant to or necessary for the making of or giving effect to a supported decision; or (b) communicate or assist the supported person to communicate a supported decision of the supported person. 102 Powers as to giving effect to decisions (1) A supportive guardian may take any reasonable action or do anything that is reasonably necessary to give effect to a supported decision, other than a decision about a significant financial transaction. (2) In this section-- significant financial transaction includes-- (a) making an investment for the supported person or continuing an investment of the supported person, including taking up rights to issues of new shares or options for new shares to which the supported person becomes entitled by the supported person's existing shareholding; or (b) undertaking any real estate transaction for the supported person, excluding entering into a residential tenancy for a premises in which the supported person lives or intends to live; or (c) dealing with land on behalf of the supported person, including taking out a loan on behalf of the supported person or giving a guarantee on behalf of the supported person; or 571241B.I-20/8/2014 93 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 7--Supportive Guardianship Orders s. 103 (d) undertaking a transaction for the supported person involving the use of the supported person's property as security for an obligation; (e) buying and selling substantial personal property on behalf of the supported person. (3) For the purpose of the definition of significant financial transaction in subsection (2), paragraph (a) does not include investing or continuing an investment of an amount of $10 000 or less in total in one or more interest-bearing accounts of an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth. 103 Duties and obligations of supportive guardian (1) A supportive guardian under a supportive guardianship order must-- (a) act honestly, diligently, and in good faith; and (b) exercise reasonable skill and care; and (c) not use the position for profit; and (d) avoid acting where there is or may be a conflict and, if acting where there is a conflict of interest, must ensure that the interests of the supported person are the primary consideration; and (e) discuss anything relating to a supported decision with the supported person in a way that the supported person can understand and that will assist the supported person to make the decision. (2) A supportive guardian under a supportive guardianship order is not entitled to receive any remuneration for acting as supportive guardian. 571241B.I-20/8/2014 94 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 7--Supportive Guardianship Orders s. 104 (3) A supportive guardian must not-- (a) assist the supported person, in the supportive guardian's role as supportive guardian, to conduct any illegal activity; or (b) coerce, intimidate or in any way unduly influence the supported person into a particular course of action. Division 4--General 104 When does a supportive guardianship order cease to have effect? (1) A supportive guardianship order ceases to have effect to the extent that it is inconsistent with any subsequent guardianship order or administration order. (2) VCAT may modify a supportive guardianship order-- (a) if an application is made for a subsequent guardianship order or administration order in relation to the supported person; or (b) under Part 10. 105 Supportive guardian may seek advice from VCAT (1) A supportive guardian may apply to VCAT for advice on any matter relating to the scope of the supportive guardianship order or the exercise of any power by the supportive guardian under the supportive guardianship order. (2) VCAT may-- (a) approve or disapprove of any act proposed to be done by the supportive guardian; and (b) give such advice as it considers appropriate; and (c) make any order it considers necessary. 571241B.I-20/8/2014 95 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 7--Supportive Guardianship Orders s. 106 (3) VCAT, of its own initiative, may direct or give an advisory opinion to a supportive guardian concerning any matter. (4) An action does not lie against a supportive guardian on account of an act or thing done or omitted by the supportive guardian under any order or on the advice of VCAT made or given under this section unless, in representing the facts to VCAT, the supportive guardian has been guilty of fraud, wilful concealment or misrepresentation. 106 Notice of death of supported person If a supported person dies, the supportive guardian must report the death in writing to VCAT without delay. __________________ 571241B.I-20/8/2014 96 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 107 PART 8--ADMINISTRATION (MISSING PERSON) ORDERS Division 1--Application of administration (missing person) orders 107 Application for administration in relation to the estate of a missing person (1) A person may apply to VCAT for an administration (missing person) order in relation to the estate of a missing person. (2) The following persons are parties to a proceeding on an application under subsection (1)-- (a) the applicant; (b) the person proposed as administrator; (c) any other person determined by VCAT to be a party. 108 Who is entitled to notice of an application, the hearing and any order made in the proceeding? (1) In addition to any party to a proceeding on an application under section 107, 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 provisions of the VCAT Act-- (a) the spouse or domestic partner of the missing person; (b) the primary carer of the missing person; (c) the nearest relative available (other than the spouse or domestic partner) of the missing person; (d) any other person whom VCAT determines to have a special interest in the application. 571241B.I-20/8/2014 97 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 109 (2) As soon as practicable after making any determination under section 107(2)(c) or (1)(d), VCAT must notify the applicant as to who-- (a) are the parties to the proceeding on the application; and (b) is entitled under subsection (1) to a notice of the making of the application. Note Section 72(1)(b) of the VCAT Act provides that an applicant for a VCAT order must serve a copy of the application on a person entitled to notice of the application under the enabling enactment (which is this Act). 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 person entitled to notice of the proceeding or of the order under the enabling enactment. 109 Contents of notice of application (1) A notice of the making of an application that is given to a party to an application must include the following-- (a) a copy of the application and any information filed in support of the application subject to clause 37A in 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. 571241B.I-20/8/2014 98 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 110 (b) the names, as stated in the notification given under section 108(2), of-- (i) the parties to the proceeding on an application under section 107; and (ii) the other persons entitled to the notice under section 108; (c) information about the rights of the party in relation to the application. (2) A notice of the making of an application that is given to a person referred to in section 108(1) who is not a party must include the following-- (a) a copy of the application; (b) the names, as stated in the notification given under section 108(2), of-- (i) the parties to the proceeding on an application under section 107; and (ii) the other persons entitled to the notice under section 108; (c) information about the rights of the person in relation to seeking information about the application; (d) information about the procedure for applying to VCAT to be made a party to the proceeding on the application. 110 Date for hearing VCAT must commence to hear an application made under section 107 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 the application to attend a compulsory conference in relation to the application; or 571241B.I-20/8/2014 99 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 111 (b) refers the proceeding in relation to the application, or any part of it, for mediation. Division 2--Conditions for making administration (missing person) orders and eligibility of person appointed 111 Appointment of administrator in relation to the estate of a missing person (1) VCAT may make an order in relation to the estate of a missing person if VCAT is satisfied that-- (a) the person is a missing person who usually resides in Victoria; and (b) while the person is missing there is, or is likely to be, a need for a decision in relation to the person's financial matters; and (c) the order would promote the missing person's personal and social wellbeing while that person is missing. (2) VCAT may determine that a person is a missing person for the purposes of this Act if VCAT is satisfied that-- (a) it is not known whether the person is alive; and (b) reasonable efforts have been made to find the person; and (c) for at least 90 days, the person has not contacted-- (i) anyone who lives at the person's last- known home address; or (ii) any relative or friend of the person with whom the person is likely to communicate. 571241B.I-20/8/2014 100 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 112 (3) An order may be made under this section in relation to a person who becomes a missing person whether before or after the commencement of this Act. (4) Subject to subsection (5), an administrator may be appointed under subsection (1) to administer all or a specified part of the estate of the missing person. (5) VCAT cannot make an order under subsection (1) in relation to the estate of a missing person if the estate or any part of the estate of the missing person is subject to-- (a) an order under section 24A of the Administration and Probate Act 1958; or (b) an application for an order under section 24A of the Administration and Probate Act 1958. Note Section 24A of the Administration and Probate Act 1958 enables a trustee company to apply to the Supreme Court of Victoria for an order authorising the trustee company to do any act, matter or thing in relation to the property or affairs of the owner of property in Victoria in circumstances where among other things the owner cannot be found or it is not known whether the owner is alive or dead. 112 Persons eligible as administrator of missing person's estate (1) If VCAT is satisfied as to the matters set out in subsection (2), VCAT may appoint as an administrator in relation to the estate of a missing person-- (a) any individual who is of or over the age of 18 years and who consents to act as administrator; or (b) any body corporate that consents to act as administrator. 571241B.I-20/8/2014 101 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 113 (2) For the purposes of subsection (1), VCAT must be satisfied that the person appointed-- (a) is not in a position where the person's interests conflict or may conflict with the interests of the missing person; and (b) is a suitable person to act as the administrator of the missing person's estate; and (c) has sufficient expertise to administer the estate or there is a special relationship between the missing person and the person appointed or other special reason why that person should be appointed as administrator. 113 Factors to consider in relation to suitability of person appointed (1) In determining whether a person is suitable to act as the administrator of the estate of a missing person, VCAT must consider the following-- (a) the wishes of the missing person, so far as they can be ascertained; (b) the desirability of preserving existing family relationships and other relationships that are important to the missing person; (c) the desirability of appointing a person as administrator who has an existing personal relationship with the missing person rather than a person with no such relationship; (d) whether the person proposed as administrator was a member of VCAT as constituted for a proceeding under this Act. 571241B.I-20/8/2014 102 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 114 (2) VCAT must not assume without any evidence that a missing person's relative who is proposed as the administrator is-- (a) in a position where the relative's interests conflict, or may conflict, with those of the missing person; or (b) not suitable to be appointed as the administrator merely because that relative disagrees with another relative of the missing person in relation to a matter pertaining to the missing person. 114 Other matters pertaining to appointments Subject to section 112, VCAT may appoint a person as administrator who was at any time a member of VCAT as constituted for a proceeding under this Act only if VCAT considers that in the circumstances it is appropriate for the person to act as an administrator. Division 3--Powers of administrator (missing person) 115 Powers and duties of administrator appointed under this Part (1) Subject to subsection (2), an administrator appointed under this Part has-- (a) the powers and duties set out in this Division; and (b) such of the powers and duties set out in Division 4 that VCAT may specify in the order if VCAT is satisfied that the power or duty is necessary or desirable to promote the personal and social wellbeing of the missing person while that person is missing. 571241B.I-20/8/2014 103 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 115 (2) In the order appointing the administrator under this Part, VCAT must specify the kinds of decision that the administrator may make and the parts of the estate in relation to which the power may be exercised. (3) To avoid doubt, despite anything to the contrary in this Part, an administration (missing person) order appointing an administrator does not confer on the administrator authority-- (a) to make or revoke a will for the missing person; or (b) to make or revoke an enduring power of attorney for the missing person; or (c) to vote on the missing person's behalf in an election for the State or the Commonwealth or another State or a Territory of the Commonwealth or a local election or referendum; or (d) to enter into or dissolve a marriage of the missing person or a sexual relationship of the missing person; or (e) to make or give effect to a decision about-- (i) the care and wellbeing of any child of the missing person; or (ii) the adoption of a child under 18 years of age of the missing 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 missing 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 missing person's behalf; or 571241B.I-20/8/2014 104 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 116 (h) to manage the estate of the missing person on the death of the missing person; or (i) to consent to an unlawful act. (4) A decision made, action taken, consent given or thing done by an administrator under an administration (missing person) order has effect as if it had been made, taken, given or done by the missing person and the missing person had decision making capacity to do so for the matters in relation to which the administration (missing person) order was made. 116 Exercise of power by administrator Without limiting section 7, in respect of a missing person in relation to whom an administration (missing person) order is made, the administrator must only take actions that the administrator considers are necessary or desirable for-- (a) the payment of the debts and engagements of, and otherwise for the benefit of, the missing person; or (b) the maintenance and benefit of dependants of the missing person; or (c) the care and management of the estate of the missing person. 117 Conflict transactions (1) An administrator must not enter into a transaction if the transaction is one in which there is, or may be, a conflict between a duty of the administrator in relation to the missing person and the interests of the administrator, or a relative, business associate or close friend of the administrator. 571241B.I-20/8/2014 105 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 118 (2) Subsection (1) does not apply to-- (a) a transaction providing for the maintenance of a dependant of the missing person made in accordance with section 127(2)(o); or (b) a transaction merely because in the transaction, the administrator, in the administrator's own right and on behalf of the missing person-- (i) deals with an interest in property held jointly by the administrator and the missing person (whether as joint tenants or tenants in common); or (ii) obtains a loan or gives a guarantee or indemnity as to a transaction referred to in subparagraph (i). 118 Permitted conflict transactions (1) An administrator may enter into a transaction prohibited by section 117(1) if VCAT authorises the administrator-- (a) at or before the time of the transaction to enter into-- (i) the transaction; or (ii) that kind of transaction; or (iii) any transaction prohibited by section 117; or (b) after the transaction, to enter into the transaction. (2) If VCAT authorises a transaction under subsection (1)(b), it is taken to be valid from its commencement. 571241B.I-20/8/2014 106 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 119 119 Keeping records An administrator must keep accurate records and accounts of all dealings and transactions made for financial matters. 120 Separation of administrator's and missing person's property (1) An administrator appointed in relation to a missing person's estate must keep the administrator's property separate from the missing person's property. (2) Subsection (1) does not apply to property owned jointly by the administrator and the missing person. (3) Subsection (1) does not affect any other obligation imposed by law. 121 Ancillary powers of administrator An administrator may, on behalf of a missing person, sign and do all such things as are necessary to give effect to any power or duty vested in the administrator. 122 Powers of investment Except as provided in section 129 or any order of VCAT, an administrator in relation to any part of the estate of the missing person of which the administrator is appointed-- (a) may, for such period as the administrator thinks fit, allow any part of the estate to remain invested in the manner in which it has been invested by the missing person; and (b) may, in the case of money deposited in an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth, re-deposit it after it becomes payable; and 571241B.I-20/8/2014 107 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 123 (c) has, and may exercise in relation to any part of the estate, the same powers as the administrator would have if the administrator were a trustee of that part of the estate under the Trustee Act 1958. 123 Administrator may seek advice from VCAT (1) An administrator may apply to VCAT for advice on any matter relating to the scope of the administration (missing person) order or the exercise of any power by the administrator under that order. (2) Without limiting subsection (1), the jurisdiction of VCAT includes jurisdiction in the case of an administration by State Trustees to approve, order or advise the commencement of proceedings by State Trustees acting in one capacity or on behalf of one represented person or missing person against State Trustees acting in another capacity or on behalf of another missing person. (3) VCAT may-- (a) approve or disapprove of any act proposed to be done by the administrator; and (b) give such advice as it considers appropriate; and (c) make any order it considers necessary. (4) VCAT, of its own initiative, may direct or give an advisory opinion to an administrator concerning any matter. (5) An action does not lie against an administrator on account of an act or thing done or omitted by the administrator under the administration (missing person) order or on the advice of VCAT made or given under this section unless, in representing the facts to VCAT, the administrator has been guilty of fraud, wilful concealment or misrepresentation. 571241B.I-20/8/2014 108 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 124 124 Administrator may seek advice from professional adviser (1) An administrator may seek advice from a professional adviser on the administration of a missing person's estate. (2) An administrator is entitled to be reimbursed from the estate administered by the administrator for any costs paid by the administrator in the course of obtaining advice under subsection (1). (3) In this section-- professional adviser means a person who provides professional advice to administrators in relation to financial matters and includes a financial adviser, legal practitioner and accountant. 125 Accounts (1) VCAT may, at the time that it appoints an administrator under section 111 or at any later time, appoint a person to examine or audit the accounts of the estate of a missing person for a fee approved by VCAT and paid from that estate. (2) On, or as soon as practicable after, the anniversary of the appointment of the administrator in each year, an administrator must lodge an account of the administration of the estate of a missing person with-- (a) the person appointed under subsection (1) to examine or audit accounts; or (b) VCAT, if no person is appointed under subsection (1). (3) Despite subsection (2), VCAT may require an administrator to lodge accounts at a time other than a time specified in that subsection. 571241B.I-20/8/2014 109 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 125 (4) Subject to section 126, an account lodged under subsection (2) or (3) must-- (a) provide a full and true account of the assets and liabilities of the estate of the missing person and all receipts and disbursements in relation to that estate; and (b) include details of any gift made by the administrator of the missing person's property with a total value of or over the prescribed amount or, if an amount is not prescribed, $100 and that is made to-- (i) that administrator; or (ii) a relative or close friend of the administrator; or (iii) an organisation with whom the administrator has a connection. (5) A person appointed under subsection (1) to examine or audit accounts must lodge with VCAT a report in relation to the accounts examined or audited and may recommend in the report the disallowance of any item in the accounts. (6) VCAT must not make an order disallowing an item referred to in subsection (5) if VCAT is satisfied that the administrator acted in good faith and with reasonable care in the exercise of powers conferred on the administrator. (7) If VCAT disallows an item referred to in subsection (5), the administrator is liable for the amount of the item disallowed. (8) An administrator must, in relation to each estate administered by the administrator, pay to a person appointed under subsection (1) to examine or audit accounts an amount certified by that person as being the reasonable cost of examining or auditing the accounts. 571241B.I-20/8/2014 110 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 126 (9) VCAT may, on an application by the administrator and with the consent of the person appointed under subsection (1) to examine or audit accounts, waive payment of the whole or part of the amount required to be paid under subsection (8). 126 Alternative accounting requirements for certain estates (1) If VCAT determines that the estate of a missing person is a small estate and that it is appropriate (having regard to the nature of the relationship between the missing person and the administrator) that section 125(4) not apply, an administrator must comply with the requirements of this section. (2) Subject to subsection (1), an account lodged under section 125(2) or (3) must include the following-- (a) a declaration made by the administrator that all expenditure in relation to the estate were solely for the benefit of the missing person; (b) details of any gift made by the administrator of the missing person's property with a total value of or over $100 or the prescribed amount (whichever is greater) and that is made to-- (i) that administrator; or (ii) a relative or close friend of the administrator; or (iii) an organisation with whom the administrator has a connection; (c) details of any expenditure on a single occasion that is greater than $1000 or the prescribed amount (whichever is greater); (d) details of any major change in the missing person's income or expenditure; 571241B.I-20/8/2014 111 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 127 (e) details of any major change in the missing person's assets or liabilities. (3) In this section-- small estate means an estate of a missing person that consists of assets with a value of less than $10 000 or the prescribed amount (whichever is greater) and an income that is not more than $25 000 or the prescribed amount (whichever is greater). 127 Administrator may open will An administrator may open and read without order any paper or writing deposited with the administrator that is purported or alleged to be the will of the missing person. Division 4--Powers and duties that may be conferred on administrators in relation to missing persons 128 Powers and duties in relation to missing persons (1) Subject to this Act, and in accordance with the administration (missing person) order appointing the administrator in relation to a missing person's estate-- (a) the administrator has the general care and management of the estate of the missing person; and (b) the administrator, in the name and on behalf of the missing person, may generally do all acts and exercise all powers with respect to the estate as effectually and in the same manner as the missing person could have done if the missing person were not a missing person. 571241B.I-20/8/2014 112 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 128 (2) Without limiting subsection (1), an administrator may, in the name and on behalf of a missing person-- (a) collect, receive and recover-- (i) income of the missing person; and (ii) money due or which becomes due to the missing person; and (iii) any compensation or damages for injury to the estate or person of the missing person; and (b) invest any money in any security in which trustees may by law invest; and (c) demise land at a rent and on conditions as the administrator thinks fit for any term not exceeding 5 years or, with the consent of VCAT, for any longer term; and (d) exercise to the extent and in the manner the administrator thinks proper any power of leasing vested in the missing person; and (e) surrender any lease, accept any lease, accept the surrender of any lease or renew any lease; and (f) bring land under the Transfer of Land Act 1958; and (g) with the approval of VCAT, sell, exchange, partition or convert into money any property; and (h) mortgage or charge any property; and (i) pay any debts and settle, adjust or compromise any demand made by or against the estate and discharge any encumbrance on the estate; and 571241B.I-20/8/2014 113 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 128 (j) carry on so far as appears desirable any trade, profession or business which the missing person carried on; and (k) agree to any alteration of the conditions of any partnership into which any missing person has entered or to a dissolution and distribution of the assets of the partnership; and (l) bring and defend actions and other legal proceedings in the name of the missing person; and (m) execute and sign deeds, instruments and other documents; and (n) complete any contract for the performance of which the missing person was liable, or enter into any agreement terminating liability; and (o) pay any sum that appears to the administrator to be expedient and reasonable for-- (i) the maintenance of the missing person's spouse or domestic partner or any child, parent or other person dependent on the missing person; or (ii) the maintenance and education of the missing person's children; and (p) do all matters necessary or incidental to the performance of any of the above-mentioned matters and apply any money from the estate which it is necessary to apply for the purposes of this Act. 571241B.I-20/8/2014 114 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 129 Division 5--General 129 Interest of missing person in property not to be altered by sale or other disposition of property (1) A missing person and the missing person's heirs, executors, administrators, next of kin, devisees, legatees and assigns have the same interest in any money or other property arising from or received in respect of any sale, mortgage, exchange, partition or other disposition under the powers given to an administrator by an order of VCAT which have not been applied under those powers as the missing person or those other persons would have had in the property the subject of the sale, mortgage, exchange, partition or disposition if no sale, mortgage, exchange, partition or disposition had been made. (2) For the purposes of this section, money arising from the compulsory acquisition or purchase under any Act of property of a missing person is taken to be money arising from the sale of that property under the powers given to an administrator by an order of VCAT. (3) An administrator who receives money or other property under this section must keep a separate account and record of the money or other property. (4) Money received by an administrator under this section may be invested in any manner in which trust funds may be invested under the Trustee Act 1958. (5) In this section-- next of kin in relation to a missing person means any person who would be entitled to the property of the missing person or to any share of the property under any law for the 571241B.I-20/8/2014 115 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 130 distribution of the property of intestates if the missing person had died intestate. 130 VCAT may open will VCAT may open and read any paper or writing which is purported or alleged to be the will of the missing person. 131 Application to VCAT by a person interested (1) A person interested as a creditor, beneficiary, next of kin, guardian, nearest relative, primary carer or the Public Advocate or otherwise in any estate administered by an administrator under an administration (missing person) order may apply to VCAT on any matter arising out of the administration of the estate by the administrator. (2) VCAT may make such order in relation to the application as the circumstances of the case may require. (3) In this section-- next of kin in relation to a missing person means any person who would be entitled to the property of the missing person or to any share of the property under any law for the distribution of the property of intestates if the missing person had died intestate. 132 Power of administrator to act until notice of discharge etc. received (1) If VCAT knows that a person has ceased to be a missing person, VCAT must without delay give notice of that fact to the administrator. (2) Until the administrator learns that a person has ceased to be a missing person, an administrator may exercise all or any of the powers given to the administrator by order of VCAT with respect to the estate of that person. 571241B.I-20/8/2014 116 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 133 (3) On notice being given under subsection (1), the person who was a missing person or that person's legal personal representative (as the case may be) is bound by, and may take advantage of, any act done on behalf of the person by the administrator within the powers conferred on the administrator by VCAT as if it had been done by the person and the person had decision making capacity to do so for the matters in relation to which the administration (missing person) order was made. 133 Action upon a person ceasing to be a missing person (1) If an administrator receives notice from any person or from VCAT that a missing person has ceased to be a missing person, the administrator must-- (a) pay or cause to be paid to that person or to that person's personal representative (as the case requires) all money standing to the person's credit with the administrator; and (b) deliver to that person or to that person's personal representative (as the case requires) all property forming part of the person's estate that is in the custody of the administrator and any documents relating to that property. (2) Any payment made under subsection (1) is subject to the satisfaction of any amount due to the administrator and all costs, expenses and liabilities incurred by the administrator in relation to the administration of that person's estate. (3) The receipt by a person who has ceased to be a missing person or of that person's personal representative is an absolute discharge to an administrator despite any informality in the discharge or certification. 571241B.I-20/8/2014 117 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 134 134 Former missing person entitled to inspection of accounts A person who has ceased to be a missing person (or the personal representative of such a person) is entitled, before or after obtaining the restoration of all or any part of the estate from an administrator-- (a) to examine and inspect or cause to be examined and inspected by a legal practitioner or other authorised agent all books, accounts, notices and other documents in the custody of the administrator relating to the estate and to make or cause to be made copies or extracts; and (b) to be provided with-- (i) copies of or extracts from any book, account, notice or document in relation to the administration of the estate by the administrator; and (ii) information in relation to the administration of the estate by the administrator that is reasonable to request and can be given by the administrator. 135 Sale of personal effects if unclaimed within 2 years from date of discharge (1) All personal effects of a person who was a missing person that are in the possession of an administrator and are not claimed within 2 years after the date on which the person ceased to be a missing person, may, after public notice, be sold by order of the administrator. (2) The proceeds are to be paid into the Consolidated Fund. 571241B.I-20/8/2014 118 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 136 136 Administrator to notify VCAT An administrator must notify VCAT in writing without delay when the administrator becomes aware that-- (a) the missing person is alive (either in Victoria or elsewhere); or (b) the missing person has died. 137 Order to remove an administrator (1) VCAT may, by order, remove an administrator-- (a) on application by the person who was the missing person; or (b) if satisfied, on application by the administrator or any other person, that-- (i) the missing person is alive; or (ii) the missing person is dead; or (iii) the missing person may be presumed to be dead. (2) VCAT must, by order, remove an administrator-- (a) if the Supreme Court, on being satisfied of the death of the missing person, whether by direct evidence or on presumption of death, has made a grant of probate of the will or administration of the estate of the missing person under section 7 of the Administration and Probate Act 1958; or (b) if the registrar of probates, on being satisfied of the death of the missing person, whether by direct evidence or on presumption of death, has made a grant of probate of the will or administration of the estate of the missing person under section 12 of the Administration and Probate Act 1958; or 571241B.I-20/8/2014 119 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 138 (c) if the presumption of death has been successfully invoked in relation to the missing person for the purpose of any other proceeding before a court in Victoria or elsewhere in Australia; or (d) if any part of the estate of the missing person becomes subject to an order under section 24A of the Administration and Probate Act 1958. 138 Duration of order (1) Subject to section 137, an administration (missing person) order under section 111 continues in effect for the period not exceeding 2 years as is specified in the order. (2) An administration (missing person) order under section 111 may on the application of the administrator be renewed once for a further period not exceeding 2 years as is specified in the order if VCAT is satisfied that the matters specified in section 111 continue to apply. (3) Nothing in this section prevents a person applying for a new administration (missing person) order in accordance with section 107 if the previous order has expired. Note A person may apply at any time for a reassessment of an order under Part 10. 139 Application for temporary order (1) Any person may apply to VCAT for a temporary order appointing an administrator in relation to the estate of a missing person. (2) An application may be made under subsection (1) whether or not an application has been made to VCAT under section 107. 571241B.I-20/8/2014 120 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 140 (3) Each person who would be entitled to notice under section 108 of an application under section 107 is entitled to-- (a) notice of the making of an application under this section; and (b) notice of the hearing of the application; and (c) notice of any order made by VCAT in relation to the application. 140 Temporary order (1) VCAT may make a temporary administration (missing person) order in relation to the estate of a missing person if VCAT is satisfied that-- (a) the person is a missing person who usually resides in Victoria; and (b) while the person is missing there is, or is likely to be, a need for a decision in relation to the person's financial matters; and (c) the order would promote the missing person's personal and social wellbeing while the person is missing. (2) Subject to subsection (4), an administrator may be appointed under subsection (1) to administer all or a specified part of the estate of the missing person. (3) VCAT cannot make a temporary order under subsection (1) in relation to the estate of a missing person if the estate or any part of the estate of the missing person is subject to-- (a) an order under section 24A of the Administration and Probate Act 1958; or 571241B.I-20/8/2014 121 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 8--Administration (Missing Person) Orders s. 141 (b) an application for an order under section 24A of the Administration and Probate Act 1958. Note Section 24A of the Administration and Probate Act 1958 enables a trustee company to apply to the Supreme Court of Victoria for an order authorising the trustee company to do any act, matter or thing in relation to the property or affairs of the owner of property in Victoria in circumstances where among other things the owner cannot be found or it is not known whether the owner is alive or dead. (4) A temporary order-- (a) remains in effect for such period not exceeding 21 days as is specified in the order; and (b) may be renewed once for a further period not exceeding 21 days. (5) VCAT must hold a hearing to determine whether an administrator should be appointed under section 111 as soon as practicable after the making of a temporary order but within 42 days of making that order. 141 Part does not exclude Administration and Probate Act 1958 This Part is not intended to exclude or limit the operation of the Administration and Probate Act 1958. __________________ 571241B.I-20/8/2014 122 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 142 PART 9--MEDICAL AND OTHER TREATMENT Division 1--Preliminary 142 Definition of patient (1) In this Part-- patient means a person (other than a person who is a patient within the meaning of the Mental Health Act 2014) with a disability who is-- (a) of or over the age of 18 years; and (b) incapable of giving consent, within the meaning of subsection (2), to the carrying out of a special procedure, a medical research procedure or medical or dental treatment, whether or not the person is a represented person. (2) For the purposes of paragraph (b) of the definition of patient in subsection (1), a person is incapable of giving consent to the carrying out of a special procedure, a medical research procedure or medical or dental treatment if the person is incapable of-- (a) understanding the general nature and effect of the proposed procedure or treatment; or (b) indicating whether or not the person consents or does not consent to the carrying out of the proposed procedure or treatment. 143 Health decision maker (1) In this Part-- health decision maker, in relation to a patient and in relation to a proposed medical research procedure or proposed medical or dental treatment or a special procedure, means the first person listed below who is responsible 571241B.I-20/8/2014 123 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 143 for the patient and who, in the circumstances, is reasonably available and willing and able to make a decision under this Part-- (a) a person appointed by the patient under section 5A of the Medical Treatment Act 1988; (b) a person appointed by VCAT to make decisions in relation to the proposed procedure or treatment; (c) a person appointed under a guardianship order with power to make decisions in relation to the proposed procedure or treatment; (d) a person appointed in writing by the patient under an enduring power of attorney under the Powers of Attorney Act 2014 with power to make decisions in relation to the proposed procedure or treatment; (e) a person appointed in writing by the patient (being the person appointed last in time before the patient became incapable of giving consent) to make decisions in relation to medical research procedures that include the proposed procedure or medical or dental treatment which includes the proposed treatment; (f) the patient's spouse or domestic partner; (g) the patient's primary carer; (h) the patient's nearest relative. 571241B.I-20/8/2014 124 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 143 (2) The circumstances in which a person is to be regarded as having the care of a patient include, but are not limited to, the case where the person, other than wholly or substantially on a commercial basis, regularly-- (a) provides domestic services and support to the patient; or (b) arranges for the patient to be provided with domestic services and support. (3) A patient who is cared for in an institution at which the patient is cared for by some other person is not, by reason only of that fact, to be regarded as being in the care of that other person and remains in the care of the person in whose care the patient was immediately before being cared for in that institution. (4) For the purposes of this section, a reference to the spouse or domestic partner of a patient, is a reference to a spouse or domestic partner who is not under guardianship and with whom the patient has a close and continuing relationship. (5) If the health decision maker for a patient is an agent appointed under section 5A of the Medical Treatment Act 1988, the powers that the person may exercise as an agent under that Act are in addition to the powers that the person may exercise under this Act. (6) For the purposes of subsection (1)(h), a person who is the patient's nearest relative is taken not to be the patient's nearest relative if the patient-- (a) is likely to be capable, within a reasonable time, of giving consent to the carrying out of a special procedure or medical or dental treatment; and 571241B.I-20/8/2014 125 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 143 (b) objects to that person being involved in decisions concerning a special procedure to be carried out on the patient or the patient's medical or dental treatment. (7) For the purposes of subsection (1)(h), a person who is the patient's nearest relative is taken not to be the patient's nearest relative if the patient-- (a) is likely to be capable of giving consent to the carrying out of a medical research procedure, but not within a reasonable time as determined in accordance with section 167(2); and (b) objects to that person being involved in decisions concerning the patient that would include a medical research procedure being carried out on the patient. (8) In this section-- institution means any of the following-- (a) a disability service provider within the meaning of section 3(1) of the Disability Act 2006; (b) a designated public hospital within the meaning of the Health Services Act 1988; (c) a residential service, residential institution or residential treatment facility within the meaning of section 3(1) of the Disability Act 2006; (d) a mental health service provider within the meaning of section 3(1) of the Mental Health Act 2014; (e) a supported residential service within the meaning of the Supported Residential Services (Private Proprietors) Act 2010. 571241B.I-20/8/2014 126 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 144 144 Best interests (1) In this Part, for the purposes of determining whether any special procedure or any medical or dental treatment would be in the best interests of the patient, the following matters must be taken into account-- (a) the wishes of the patient, so far as they can be ascertained; (b) the wishes of the nearest relative of the patient or, if that is not possible, the wishes of any other family members of the patient; (c) the consequences for the patient if the treatment is not carried out; (d) any alternative treatment available; (e) the nature and degree of any significant risks associated with the treatment or any alternative treatment; (f) whether the treatment to be carried out is only to promote and maintain the health and well-being of the patient; (g) any other matters prescribed by the regulations. (2) For the purposes of subsection (1)(b), a person who is the patient's nearest relative or a family member (other than the patient's spouse or domestic partner) is taken not to be the patient's nearest relative or a family member if the patient-- (a) is likely to be capable, within a reasonable time, of giving consent to the carrying out of a special procedure or medical or dental treatment; and 571241B.I-20/8/2014 127 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 145 (b) objects to that relative or family member being involved in decisions concerning a special procedure to be carried out on the patient or the patient's medical or dental treatment. Division 2--Consent 145 Persons who may consent to medical or other treatment Subject to Divisions 4 and 5, consent to the carrying out of a special procedure or medical or dental treatment on a patient may be given-- (a) in the case of a special procedure or any medical or dental treatment, by VCAT; or (b) in the case of any medical or dental treatment, by the health decision maker for the patient. Note Division 6 contains provisions for the giving of consent in relation to the carrying out of a medical research procedure on a patient. 146 Effect of consent A consent given in accordance with this Part in relation to the carrying out of a special procedure, a medical research procedure or any medical or dental treatment on a patient has effect as if-- (a) the patient was capable of giving consent to the carrying out of the procedure or treatment; and (b) the procedure or treatment had been carried out with the consent of the patient. 571241B.I-20/8/2014 128 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 147 147 Refusal of medical treatment under the Medical Treatment Act 1988 A registered practitioner must not carry out any medical or dental treatment, medical research procedure or special procedure (including any emergency treatment) under this Part that is medical treatment within the meaning of the Medical Treatment Act 1988 if a refusal of that treatment is in force in accordance with that Act. 148 Unlawful consent to medical or other treatment an offence (1) A person must not purport to give consent to the continuation of a special procedure or a further special procedure under section 154 unless the person believes on reasonable grounds that the person is authorised to give such consent. Penalty: 20 penalty units. (2) A person must not purport to give consent to a medical research procedure or to any medical or dental treatment on behalf of a patient unless the person believes on reasonable grounds that the person is authorised to give such consent. Penalty: 20 penalty units. (3) A person must not represent to a registered practitioner that the person is authorised to give consent referred to in subsection (1) or (2) unless the person believes on reasonable grounds that the person is authorised to give such consent. Penalty: 20 penalty units. 571241B.I-20/8/2014 129 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 149 Division 3--Emergency treatment 149 Emergency medical or dental treatment (1) A registered practitioner may carry out, or supervise the carrying out of, a special procedure, a medical research procedure or medical or dental treatment on a patient without consent under this Part or an authorisation under section 169 if the practitioner believes on reasonable grounds that the procedure or treatment is necessary, as a matter of urgency-- (a) to save the patient's life; or (b) to prevent serious damage to the patient's health; or (c) in the case of a medical research procedure or medical or dental treatment, to prevent the patient from suffering or continuing to suffer significant pain or distress. (2) A registered practitioner who, in good faith, carries out, or supervises the carrying out, of a special procedure, a medical research procedure or medical or dental treatment in the belief on reasonable grounds that the requirements of this section and, in the case of a medical research procedure, section 166 have been complied with is not-- (a) guilty of assault or battery; or (b) guilty of professional misconduct; or (c) liable in any civil proceedings for assault or battery; or (d) guilty of an offence against section 155(1) or 174(1). (3) Nothing in this section affects any duty of care owed by a registered practitioner to a patient. 571241B.I-20/8/2014 130 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 150 Division 4--Special procedures 150 Application for consent of VCAT to special procedure (1) An application for the consent of VCAT to the carrying out of any special procedure on a patient may be made by-- (a) the health decision maker for the patient; or (b) any person whom VCAT determines to have a special interest in the affairs of the patient. (2) A patient in relation to whom an application for consent is made under this Division is a party to the proceedings. (3) VCAT must give the Public Advocate and any other person whom VCAT considers to have a special interest in the affairs of the patient-- (a) notice of an application for the consent of VCAT to the carrying out of the special procedure on a patient; and (b) notice of the hearing of the application and of any order; and (c) directions or an advisory opinion of VCAT in relation to the application. 151 Guidelines for special procedures In consultation with the Public Advocate and the Secretary to the Department of Justice and with the approval of the Governor in Council, VCAT may issue, and make available to members of the public, guidelines specifying situations in which applications may be made to VCAT under this Division. 571241B.I-20/8/2014 131 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 152 152 Date for hearing VCAT must commence to hear an application under this Division within 30 days after the day on which the application is received by VCAT. 153 Consent of VCAT to special procedure On hearing an application under this Division, VCAT may consent to the carrying out of a special procedure if it is satisfied that-- (a) the patient is incapable of giving consent; and (b) the patient is not likely to be capable, within a reasonable time, of giving consent; and (c) the special procedure would be in the patient's best interests. 154 VCAT may confer authority to consent to continuing or further special procedure (1) If VCAT consents to the carrying out of a special procedure on a patient, VCAT may confer on the health decision maker for the patient authority to consent to-- (a) the continuation of the special procedure; or (b) the carrying out of any further special procedure of a similar nature. (2) VCAT may confer an authority under this section only at the request, or with the consent, of the health decision maker. (3) If a person on whom VCAT has conferred authority under this section ceases to be the health decision maker, VCAT, on the application of the new health decision maker, may confer authority under this section on that person. 571241B.I-20/8/2014 132 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 155 (4) VCAT may at any time-- (a) impose conditions or give directions as to the exercise of an authority under this section; or (b) revoke that authority. (5) If VCAT confers an authority under this section, a person may request the consent of the health decision maker to the carrying out of the special procedure. 155 Special procedure without consent of VCAT an offence (1) Subject to section 148, a registered practitioner must not carry out, or supervise the carrying out of, any special procedure on a patient unless-- (a) VCAT has consented to the carrying out of that procedure; or (b) the health decision maker with authority to consent to the continuation of the procedure or a further special procedure under section 154 has consented to the carrying out of that procedure. Penalty: Imprisonment for 2 years or 240 penalty units or both. (2) A registered practitioner who, in good faith, carries out, or supervises the carrying out of, a special procedure on a patient in the belief on reasonable grounds that the requirements of this Division have been complied with and in reliance on-- (a) a consent given by another person who was believed on reasonable grounds by the registered practitioner to be authorised to give such consent; or 571241B.I-20/8/2014 133 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 156 (b) a purported consent given by another person who was believed by the registered practitioner on reasonable grounds to be authorised to give such consent but was not so authorised-- is not-- (c) guilty of assault or battery; or (d) guilty of professional misconduct; or (e) liable in any civil proceedings for assault or battery; or (f) guilty of an offence against subsection (1). (3) Nothing in this Division affects any duty of care owed by a registered practitioner to a patient. Division 5--Other medical or dental treatment 156 Consent of health decision maker (1) The health decision maker for a patient may consent to the carrying out of any medical or dental treatment. Note However, section 157 affects whether the health decision maker may consent to the carrying out of medical or dental treatment in certain circumstances. (2) In determining whether or not to consent to medical or dental treatment, the health decision maker must act in the best interests of the patient. 157 Consent if patient is likely to recover within a reasonable time (1) This section applies despite anything else in this Part but does not apply to emergency treatment under section 149. 571241B.I-20/8/2014 134 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 157 (2) If a patient is likely to be capable, within a reasonable time, of giving consent to the carrying out of medical or dental treatment, the health decision maker for the patient can only consent to the carrying out of the treatment, and a registered practitioner can only carry out that treatment, if-- (a) the registered practitioner reasonably believes, and states in writing in the patient's clinical records, that a further delay in carrying out the treatment would result in a significant deterioration of the patient's condition; and (b) neither the registered practitioner nor the health decision maker has any reason to believe that the carrying out of the treatment would be against the patient's wishes. (3) If the registered practitioner or health decision maker has reason to believe that the carrying out of the treatment would be against the patient's wishes, the practitioner or health decision maker may apply to VCAT for its consent to the carrying out of the treatment. (4) VCAT must-- (a) give notice of the application and of any order, directions or advisory opinion made or given concerning the application to-- (i) the Public Advocate; and (ii) any other person whom VCAT determines to have a special interest in the patient's affairs, including the registered practitioner and health decision maker for the patient; and (b) start hearing the application within 14 days after the day on which VCAT received it. 571241B.I-20/8/2014 135 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 158 (5) The patient is a party to the proceeding on the application. (6) On hearing the application, VCAT may consent to the carrying out of the medical or dental treatment, and a registered practitioner may carry out that treatment, if VCAT is satisfied that-- (a) the patient is incapable of giving consent; and (b) a further delay in carrying out the treatment would result in a significant deterioration of the patient's condition; and (c) the treatment would be in the patient's best interests, having regard to the evidence (if any) of the patient's views about such treatment. 158 Health decision maker may seek advice (1) The health decision maker for a patient may apply to VCAT for directions or an advisory opinion on any matter or question relating to the scope or exercise of the health decision maker's authority to consent to medical or dental treatment on behalf of the patient. (2) VCAT must give notice to any person whom VCAT determines to have a special interest in the affairs of the patient of the application, of the hearing of the application and of any order, directions or advisory opinion of VCAT in relation to the application. (3) VCAT may-- (a) give any directions or advisory opinion it considers necessary; and (b) make any order it considers necessary. 571241B.I-20/8/2014 136 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 159 (4) VCAT of its own initiative may direct, or give an advisory opinion to, the health decision maker for a patient in relation to any matter. (5) An action does not lie against the health decision maker for a patient on account of an act or thing done or omitted to be done by the health decision maker in accordance with any order, directions or advisory opinion of VCAT made or given under this section unless in representing the facts to VCAT the health decision maker has been guilty of fraud, wilful concealment or misrepresentation. 159 Guidelines for medical or dental treatment VCAT may, in consultation with the Public Advocate and the Secretary to the Department of Justice and with the approval of the Governor in Council, issue and make available to members of the public, guidelines specifying situations in which the health decision maker for a patient may consent to medical or dental treatment in relation to the patient. 160 Medical or dental treatment without consent of health decision maker (1) Subject to section 147, a registered practitioner may carry out, or supervise the carrying out of, medical or dental treatment under this section without the consent of the health decision maker if the practitioner-- (a) has been unable to ascertain whether there is a health decision maker or who that person is or to contact that person despite the practitioner's reasonable efforts to do so; and (b) believes on reasonable grounds that the proposed treatment is in the best interests of the patient; and 571241B.I-20/8/2014 137 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 160 (c) before carrying out, or supervising the carrying out of, the medical or dental treatment, gives notice to the Public Advocate in accordance with subsection (2). (2) A notice referred to in subsection (1)(c) must state the following-- (a) the nature of the patient's condition; (b) the medical or dental treatment that the registered practitioner proposes carrying out on the patient; (c) that the practitioner believes on reasonable grounds that the proposed treatment is in the best interests of the patient; (d) that despite reasonable efforts by the practitioner, the practitioner has been unable-- (i) to ascertain whether there is a health decision maker for the patient; or (ii) if there is a health decision maker, to ascertain who that person is or to contact that person. (3) A registered practitioner who carries out, or supervises the carrying out of, medical or dental treatment on a patient under this section must state in writing in the clinical records relating to that patient-- (a) why the treatment is considered to be in the best interests of the patient; and (b) how the treatment is considered to promote or maintain the health and wellbeing of the patient. 571241B.I-20/8/2014 138 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 161 161 Medical or dental treatment if health decision maker does not consent (1) Subject to section 147, a registered practitioner may carry out, or supervise the carrying out of, medical or dental treatment under this section if-- (a) the registered practitioner has consulted the health decision maker for a patient; and (b) the health decision maker does not consent to the proposed medical or dental treatment; and (c) the practitioner nevertheless believes on reasonable grounds that the proposed treatment is in the best interests of the patient; and (d) the practitioner, within 3 days after the health decision maker has communicated to the practitioner that the health decision maker does not consent, gives to the health decision maker and the Public Advocate a statement in accordance with section 162. (2) A registered practitioner must not carry out, or supervise the carrying out of, any medical or dental treatment under this section (other than emergency treatment)-- (a) earlier than 7 days after giving the health decision maker a statement in accordance with section 162, if the health decision maker does not apply to VCAT under section 163 within 7 days after receiving that statement; or (b) earlier than 14 days after giving the health decision maker a statement in accordance with section 162, if the health decision maker applies to VCAT under section 163 within 7 days after receiving the statement; or 571241B.I-20/8/2014 139 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 162 (c) if VCAT makes an order under section 163 that the treatment is not in the best interests of the patient; or (d) if the health decision maker appeals from an order of VCAT made under section 163, before the determination of the appeal. (3) If the health decision maker does not apply to VCAT under section 163 within 7 days after receiving a statement in accordance with section 162 and a registered practitioner carries out, or supervises the carrying out of, medical or dental treatment on a patient under this section, the practitioner must state in writing in the clinical records relating to that patient-- (a) why the treatment is considered to be in the best interests of the patient; and (b) how the treatment is considered to promote or maintain the health and well-being of the patient. 162 Statement by registered practitioner A statement referred to in section 161 must-- (a) be in writing and be dated and signed by the registered practitioner; and (b) state that-- (i) the health decision maker for the patient has been informed about the nature of the patient's condition to an extent that would be sufficient to enable the patient, if the patient were able to consent, to decide whether or not to consent to the proposed treatment generally or to treatment of a particular kind for that condition; and 571241B.I-20/8/2014 140 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 163 (ii) the health decision maker has not consented to the proposed treatment; and (iii) the registered practitioner believes on reasonable grounds that the proposed treatment is in the best interests of the patient; and (iv) unless the health decision maker applies to VCAT and VCAT otherwise orders, the practitioner will, not earlier than 7 days after giving the statement to the health decision maker, carry out the proposed treatment; and (c) set out the procedures under the VCAT Act for making an application to VCAT. 163 Application to VCAT relating to medical or dental treatment (1) An application may be made to VCAT in relation to any matter, question or dispute under this Part relating to medical or dental treatment or relating to the best interests of a patient. (2) An application may be made by-- (a) the patient's health decision maker; or (b) a person whom VCAT determines to have a special interest in the affairs of the patient, including a registered practitioner (if any). (3) A health decision maker who receives a statement in accordance with section 162 and consequently wishes to make an application under this section, must do so within 7 days after receiving the statement. (4) A patient in relation to whom an application is made under this section is a party to the proceeding. 571241B.I-20/8/2014 141 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 163 (5) VCAT must give notice of an application under this section, of the hearing of the application and of any order of VCAT in relation to the application to-- (a) the Public Advocate; and (b) if the application is made after a statement has been given in accordance with section 162, the registered practitioner who gave the statement; and (c) any other person whom VCAT determines to have a special interest in the affairs of the patient. (6) VCAT must hear and determine the application referred to in subsection (3) within 7 days after receiving it. (7) On an application under this section, VCAT may do one or more of the following-- (a) make an order that for matters relating to medical or dental treatment, either generally or of a particular kind, a person specified in the order is to be the health decision maker; (b) subject to Part 4, appoint a person as guardian of the patient generally or for matters relating to the medical or dental treatment of a patient; (c) vary a guardianship order to make provision for matters relating to the medical or dental treatment of a patient; (d) revoke, suspend or vary an instrument appointing a person as the attorney under the enduring power of attorney under the Powers of Attorney Act 2014 to the extent that the instrument relates to medical or dental treatment of a patient; 571241B.I-20/8/2014 142 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 164 (e) make an order that any proposed medical or dental treatment is or is not in the best interests of the patient; (f) make any orders or give any directions it considers necessary to resolve any conflict between persons relating to the best interests of a patient; (g) make a declaration as to the validity or effect of any decision relating to medical or dental treatment; (h) give an advisory opinion in relation to the best interests of a patient; (i) make any other orders it considers to be in the best interests of a patient. Note Sections 171, 172 and 173 provide for VCAT's jurisdiction in relation to medical research procedures. 164 Protection of registered practitioner (1) A registered practitioner who, in good faith, carries out, or supervises the carrying out of, medical or dental treatment on a patient in accordance with this Division in reliance on-- (a) a consent given by another person who was believed on reasonable grounds by the registered practitioner to be authorised to give such consent; or (b) a purported consent given by another person who was believed on reasonable grounds by the registered practitioner to be authorised to give such consent but was not so authorised-- is not-- (c) guilty of assault or battery; or (d) guilty of professional misconduct; or 571241B.I-20/8/2014 143 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 165 (e) liable in any civil proceedings for assault or battery. (2) A registered practitioner who, in good faith, carries out, or supervises the carrying out of, medical or dental treatment on a patient in accordance with this Division without the consent of another person and in the belief on reasonable grounds that the requirements of this Division have been complied with is not-- (a) guilty of assault or battery; or (b) guilty of professional misconduct; or (c) liable in any civil proceedings for assault or battery. (3) Nothing in this section affects any duty of care owed by a registered practitioner to a patient. Division 6--Medical research procedures 165 Introduction and outline of Division (1) This Division contains provisions for the carrying out of a medical research procedure on a patient. Note See section 142 for the definition of patient. (2) In essence, this Division provides a 4 step process for authorising the carrying out of a medical research procedure on a patient as follows-- (a) step 1 is to determine whether the relevant research project is approved by the relevant human research ethics committee--see section 166; (b) step 2 is to determine whether the patient is likely to recover the capacity to consent to the procedure within a reasonable time--see section 167; 571241B.I-20/8/2014 144 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 166 (c) step 3 is to seek the consent of the health decision maker for the patient, which only applies if allowed by section 167--see section 168; (d) step 4 is procedural authorisation which only applies if allowed by section 167 and the health decision maker cannot be ascertained or contacted--see section 169. (3) Steps 2, 3 and 4 referred to in subsection (2) do not apply to the carrying out of a medical research procedure under section 148. Note Section 149 provides for the carrying out of a medical research procedure without consent in emergency situations. (4) This Division also provides that-- (a) VCAT has jurisdiction in various circumstances--see sections 171, 172 and 173; (b) offences may be committed by registered practitioners who fail to comply with the Division--see section 174; (c) registered practitioners who comply with the Division are protected from civil and criminal liability--see section 175. (5) This Division is subject to section 147 which prohibits the carrying out of medical treatment if a refusal of that treatment is in force under the Medical Treatment Act 1988. 166 Step 1--Approval of relevant research project (1) Step 1 is to determine whether the relevant research project has been approved by the relevant human research ethics committee. 571241B.I-20/8/2014 145 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 167 (2) A medical research procedure must not be carried out on a patient if the relevant research project has not been approved by the relevant human research ethics committee. (3) A medical research procedure must be carried out in accordance with the relevant human research ethics committee approval, including any conditions of that approval. 167 Step 2--Is patient likely to recover within a reasonable time? (1) Step 2 is to determine whether the patient is likely to be capable, within a reasonable time, of giving consent to the carrying out of a medical research procedure. (2) The reasonable time is the time by which (given the nature of the relevant research project) the procedure would need to be performed on the patient, having regard to-- (a) the medical or physical condition of the patient; and (b) the stage of treatment or care; and (c) other circumstances specific to the patient. (3) If a patient is likely to be capable, within a reasonable time as determined in accordance with subsection (2), of giving consent to the carrying out of a medical research procedure, a registered practitioner must not carry out, or supervise the carrying out of, the procedure under the authority of a consent under section 168 or procedural authorisation under section 169. (4) If a patient is not likely to be capable, within a reasonable time as determined in accordance with subsection (2), of giving consent to the carrying out of a medical research procedure, a registered practitioner may carry out, or supervise the 571241B.I-20/8/2014 146 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 168 carrying out of, the procedure under the authority of a consent under section 168 or procedural authorisation under section 169. (5) Before, or as soon as practicable after, carrying out, or supervising the carrying out of, the medical research procedure, the registered practitioner must state the registered practitioner's belief that, at the time of the procedure, the patient is or was not likely to be capable of giving consent within a reasonable time and the reason for that belief in writing in the patient's clinical records. Note This section does not apply to a medical research procedure under section 148--see section 165(3). 168 Step 3--Consent of health decision maker (1) Step 3 is to seek the consent of the health decision maker for the patient to the carrying out of the medical research procedure on the patient. Note This section does not apply to a medical research procedure under section 148--see section 165(3). (2) The health decision maker may consent to the carrying out of a medical research procedure on the patient. (3) The health decision maker may only consent to the carrying out of the procedure if the health decision maker believes that the carrying out of the procedure would not be contrary to the best interests of the patient. (4) The consent must be consistent with the requirements for consent, if any, specified in the relevant human research ethics committee approval for the relevant research project or the conditions of that approval. 571241B.I-20/8/2014 147 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 169 169 Step 4--Procedural authorisation (1) Step 4 is procedural authorisation for the carrying out of the medical research procedure on the patient which applies only if the health decision maker for the patient cannot be ascertained or contacted. Note This section does not apply to a medical research procedure under section 148--see section 165(3). (2) A registered practitioner may carry out, or supervise the carrying out of, a medical research procedure on a patient without the consent under section 168 of the health decision maker for the patient if-- (a) the patient is not likely to be capable, within a reasonable time as determined in accordance with section 167(2), of giving consent to the carrying out of the procedure; and (b) the practitioner has been unable to ascertain whether there is a health decision maker or who that person is or to contact that person despite the practitioner's reasonable efforts to do so; and (c) the practitioner believes on reasonable grounds that inclusion of the patient in the relevant research project, and being the subject of the proposed procedure, would not be contrary to the best interests of the patient; and (d) the practitioner does not have any reason to believe that the carrying out of the procedure would be against the patient's wishes; and 571241B.I-20/8/2014 148 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 169 (e) the practitioner believes on reasonable grounds that the relevant human research ethics committee has approved the relevant research project in the knowledge that a patient may participate in the project without the prior consent of the patient or the health decision maker; and (f) the practitioner believes on reasonable grounds that-- (i) one of the purposes of the relevant research project is to assess the effectiveness of the therapy being researched; and (ii) the medical research procedure poses no more of a risk to the patient than the risk that is inherent in the patient's condition and alternative treatment; and (g) the practitioner believes on reasonable grounds that the relevant research project is based on valid scientific hypotheses that support a reasonable possibility of benefit for the patient as compared with standard treatment. (3) Before, or as soon as practicable after, the medical research procedure is carried out, the registered practitioner supervising the carrying out of the procedure (or, if there is no such person, the practitioner carrying out the procedure) must sign a certificate-- (a) certifying as to each of the matters set out in subsection (2); and (b) stating that the health decision maker (if any) or the patient (if the patient gains or regains capacity) will be informed as required by subsection (4). 571241B.I-20/8/2014 149 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 169 (4) A registered practitioner involved in the relevant research project must inform the health decision maker (if any) or the patient (if the patient gains or regains capacity) as soon as reasonably practicable of-- (a) the patient's inclusion in the relevant research project; and (b) the option to refuse consent for the procedure to be continued and withdraw the patient from future participation in the project without compromising the patient's ability to receive any available alternative treatment or care. (5) The registered practitioner supervising the carrying out of the procedure (or, if there is no such person, the registered practitioner carrying out the procedure) must-- (a) forward a copy of the certificate referred to in subsection (3) to the Public Advocate and the relevant human research ethics committee as soon as practicable (and in any event within 2 working days) after supervising the carrying out of, or carrying out, the procedure; and (b) ensure that the certificate is kept in the patient's clinical records. (6) The practitioner must, at intervals of not more than one month while the medical research procedure continues, sign a certificate, and forward a copy to the Public Advocate and the relevant human research ethics committee, certifying that each of the matters set out in subsection (2) continue to apply if-- 571241B.I-20/8/2014 150 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 169 (a) the medical research procedure is a procedure extending over a period exceeding one month after a copy of the certificate is forwarded to the Public Advocate and the relevant human research ethics committee under subsection (5); and (b) the registered practitioner supervising the carrying out of the procedure (or, if there is no such person, the registered practitioner carrying out the procedure) believes on reasonable grounds that-- (i) the requirements of subsections (2)(b) and (8) (if applicable) have been met but the health decision maker has not been able to be ascertained or contacted; and (ii) the patient has not gained or regained the capacity to consent. (7) The registered practitioner supervising the carrying out of the procedure (or, if there is no such person, the registered practitioner carrying out the procedure) must ensure that each certificate referred to in subsection (6) is kept in the patient's clinical records. (8) If a medical research procedure is being carried out on a patient under the authority of this section, steps that are reasonable in the circumstances must continue to be taken (as the case requires)-- (a) to ascertain whether there is a health decision maker and, if so, who that person is; and 571241B.I-20/8/2014 151 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 170 (b) if the health decision maker is ascertained, to contact that person to seek the health decision maker's consent to the proposed procedure. Note If the health decision maker is contacted and is willing and able to make a decision (see section 143), section 168 applies. If the patient gains or regains capacity to consent, the patient's consent must be sought, as the patient will no longer be a person to which this Division applies. 170 Best interests (1) In this Division, for the purposes of determining whether a medical research procedure would or would not be contrary to the best interests of a patient, the following matters must be taken into account-- (a) the wishes of the patient, so far as they can be ascertained; (b) the wishes of the nearest relative or any other family members of the patient; (c) the nature and degree of any benefits, discomforts and risks for the patient in having or not having the procedure; (d) any other consequences for the patient if the procedure is or is not carried out; (e) any other prescribed matters. (2) For the purposes of subsection (1)(b), a family member or the patient's nearest relative is taken not to be a family member or the nearest relative if the patient-- (a) is likely to be capable of giving consent to the carrying out of a medical research procedure, but not within a reasonable time as determined in accordance with section 167(2); and 571241B.I-20/8/2014 152 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 171 (b) objects to the nearest relative or another family member (other than the patient's spouse or domestic partner) being involved in decisions concerning the patient that would include a medical research procedure being carried out on the patient. 171 Applications to VCAT (1) An application may be made to VCAT in relation to any matter, question or dispute under this Division relating to the best interests of a patient. (2) An application may be made by-- (a) a health decision maker; or (b) a person who, in the opinion of VCAT, has a special interest in the affairs of the patient, including a registered practitioner. (3) Despite subsection (2)(b), a registered practitioner who is involved in the relevant research project cannot apply to VCAT in relation to a refusal of the health decision maker for a patient to consent under section 169 to the carrying out of a medical research procedure on the patient. (4) If an application is made under this section, the patient is a party to the proceeding. (5) VCAT must give notice of an application under this section, of the hearing of the application and of any order of VCAT in relation to the application to-- (a) the Public Advocate; and (b) any other person whom VCAT determines to have a special interest in the affairs of the patient. 571241B.I-20/8/2014 153 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 171 (6) On an application under this section, VCAT may do any of the following-- (a) make an order that for matters relating to medical research procedures, either generally or of a particular kind, a person specified in the order is to be the health decision maker; (b) appoint a person as guardian of the patient generally or for matters relating to medical research procedures; (c) vary a guardianship order to make provision for matters relating to medical research procedures; (d) revoke, suspend or vary an instrument appointing a person as the attorney under the enduring power of attorney under the Powers of Attorney Act 2014, to the extent that the instrument relates to medical research procedures; (e) make an order that any proposed medical research procedure is or is not contrary to the best interests of the patient; (f) make any orders or give any directions it considers necessary to resolve any conflict between persons relating to the best interests of a patient; (g) make a declaration as to the validity or effect of any decision relating to medical research procedures; (h) give an advisory opinion in relation to the best interests of a patient; (i) make any other orders it considers to be in the best interests of the patient. 571241B.I-20/8/2014 154 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 172 172 Health decision maker may seek advice (1) The health decision maker for a patient may apply to VCAT for directions or an advisory opinion on any matter or question relating to the scope or exercise of the health decision maker's authority to consent to a medical research procedure on behalf of the patient. (2) VCAT must give notice to any person whom VCAT determines to have a special interest in the affairs of the patient of the application, of the hearing of the application and of any order, directions or advisory opinion of VCAT in relation to the application. (3) VCAT may-- (a) give any directions or advisory opinion it considers necessary; and (b) make any order it considers necessary. (4) VCAT of its own initiative may direct, or give an advisory opinion to, the health decision maker for a patient in relation to any matter. (5) An action does not lie against the health decision maker for a patient on account of an act or thing done or omitted to be done by the health decision maker in accordance with any order, directions or advisory opinion of VCAT made or given under this section unless, in representing the facts to VCAT, the health decision maker has been guilty of fraud, wilful concealment or misrepresentation. 173 Guidelines for medical research procedures VCAT may, in consultation with the Public Advocate and the Secretary to the Department of Justice and with the approval of the Governor in Council, issue and make available to members of the public, guidelines to assist the health decision maker for a patient in determining whether or not 571241B.I-20/8/2014 155 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 174 to consent to medical research procedures in relation to the patient. 174 Offences (1) Subject to section 148, a registered practitioner must not carry out, or supervise the carrying out of, a medical research procedure on a patient unless-- (a) the carrying out of the procedure is allowed by section 167 and either the health decision maker for the patient has given consent under section 168 or the procedure is authorised under section 169; or (b) the carrying out of the procedure is otherwise authorised by law. Penalty: Imprisonment for 2 years or 240 penalty units or both. (2) A registered practitioner must not sign a certificate under section 169(3) or (6) that the practitioner knows to be false. Penalty: 120 penalty units. (3) A registered practitioner must not carry out, or supervise the carrying out of, a medical research procedure on a patient unless the relevant research project has been approved by the relevant human research ethics committee. Penalty: 240 penalty units. 175 Protection of registered practitioner (1) A registered practitioner who, in good faith, carries out, or supervises the carrying out of, a medical research procedure on a patient in accordance with this Division in reliance on-- 571241B.I-20/8/2014 156 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 9--Medical and Other Treatment s. 175 (a) a consent given by another person who was believed on reasonable grounds by the registered practitioner to be authorised to give such consent; or (b) a purported consent given by another person who was believed on reasonable grounds by the registered practitioner to be authorised to give such consent but was not so authorised-- is not-- (c) guilty of assault or battery; or (d) guilty of professional misconduct; or (e) liable in any civil proceedings for assault or battery; or (f) guilty of an offence against section 174(1). (2) A registered practitioner who, in good faith, carries out, or supervises the carrying out of, a medical research procedure on a patient in accordance with this Division without the consent of another person and in the belief on reasonable grounds that the requirements of this Division have been complied with is not-- (a) guilty of assault or battery; or (b) guilty of professional misconduct; or (c) liable in any civil proceedings for assault or battery; or (d) guilty of an offence against section 174(1). (3) Nothing in this section affects any duty of care owed by a registered practitioner to a patient. __________________ 571241B.I-20/8/2014 157 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 10--Rehearings and Reassessment of Orders s. 176 PART 10--REHEARINGS AND REASSESSMENT OF ORDERS Division 1--Rehearings 176 Application for rehearing (1) A party to an application in relation to which VCAT made an order under this Act (other than an interim order or a temporary order) may apply to VCAT for a rehearing of the application. (2) A person entitled to notice of an application in relation to which VCAT made an order under this Act (other than an interim order or a temporary order) who was not, or did not become, a party to that application may, if VCAT gives leave, apply to VCAT for a rehearing of the application. (3) Subsection (2) does not apply to the Public Advocate. (4) If VCAT makes an order on a reassessment under section 180 conducted on VCAT's own initiative, a party or a person entitled to notice of the reassessment may apply to VCAT for a rehearing of the reassessment, if VCAT gives leave. (5) An application for a rehearing, or for leave to apply for a rehearing, must be made within 28 days after the day that the order is made. (6) For the purposes of subsection (5), if VCAT gives oral reasons for making an order and a party then requests written reasons under section 117 of the VCAT Act, the day on which the written reasons are given to the party is taken to be the day that the order is made. (7) A person cannot apply for a rehearing of-- (a) an application the order in relation to which was made by VCAT constituted by the President, whether with or without others; or 571241B.I-20/8/2014 158 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 10--Rehearings and Reassessment of Orders s. 177 (b) an application under section 171 (except an application in relation to which an order is made under section 171(6)(b) appointing a guardian generally); or (c) an application under section 158 or 163 to VCAT relating to medical or dental treatment (except an application in relation to which an order is made under section 163(7)(b) appointing a guardian generally); or (d) an application for a rehearing or for leave to apply for a rehearing. 177 Parties and notice (1) The following persons are parties to a rehearing-- (a) in the case of the rehearing of an application referred to in section 176(1), a party to the proceeding on that application; (b) in the case of the rehearing of a reassessment referred to in section 176(4), a party to the reassessment; (c) any other person whom VCAT determines to be a party. (2) The following persons are entitled to notice of an application for a rehearing-- (a) in the case of the rehearing of an application referred to in section 176(1), a person who was entitled to notice of the making of that application; (b) in the case of the rehearing of a reassessment referred to in section 176(4), a person who was entitled to notice of the reassessment; 571241B.I-20/8/2014 159 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 10--Rehearings and Reassessment of Orders s. 178 (c) any person whom VCAT determines to have an interest in, or personal involvement with the affairs of, the represented person, supported person or missing person, as the case may be. 178 Rehearing (1) On an application under section 176, VCAT must rehear the matter and, for that purpose, VCAT has all the functions and powers that VCAT had with respect to the matter at first instance. (2) In determining a rehearing, VCAT may-- (a) affirm the order of VCAT at first instance; or (b) vary the order of VCAT at first instance; or (c) set aside the order of VCAT at first instance and make another order in substitution for it. 179 Effect of first instance order pending rehearing (1) Subject to subsection (2), the making of an application for a rehearing does not affect the operation of any order to which the application relates or prevent the taking of action to enforce the order. (2) VCAT may make an order staying the operation of an order pending the determination of the rehearing of the application to which the order relates. Division 2--Reassessment of orders 180 Reassessment (1) VCAT must conduct a reassessment of a guardianship order, an administration order, a supportive guardianship order or an administration (missing person) order, as the case may be-- (a) within 12 months after making the order, unless VCAT orders otherwise; and 571241B.I-20/8/2014 160 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 10--Rehearings and Reassessment of Orders s. 181 (b) in any case, at least once within each 3 year period after making the order unless VCAT orders otherwise. (2) VCAT may at any time conduct a reassessment of any order made by it under this Act. (3) A reassessment under this section may be conducted-- (a) on VCAT's own initiative; or (b) on the application of any person. 181 Who are the parties to a reassessment? The following persons are parties to a reassessment-- (a) the applicant, if any; (b) the represented person or supported person, as the case may be; (c) the guardian, administrator or supportive guardian, as the case may be; (d) any other person whom VCAT determines to be a party to the reassessment. 182 Who is entitled to notice of a reassessment, the hearing and any order made in the proceeding? (1) In addition to any party to a reassessment under section 181, 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 provisions of the VCAT Act-- (a) the spouse or domestic partner of the represented person or supported person; (b) the primary carer of the represented person or supported person; 571241B.I-20/8/2014 161 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 10--Rehearings and Reassessment of Orders s. 182 (c) the nearest relative available (other than the spouse or domestic partner) of the represented person or supported person; (d) the Public Advocate; (e) any current administrator of the estate of the represented person, in the case of a reassessment of a guardianship order; (f) any current guardian of the represented person, in the case of a reassessment of an administration order; (g) any person whom VCAT determines to have an interest in, or personal involvement with, the affairs of the represented person or supported person. (2) As soon as practicable after making any determination under section 181(d) or subsection (1)(g), VCAT must notify the applicant as to who-- (a) are the parties to the proceeding on the application; and (b) is entitled under subsection (1) to a notice of the making of the application. Note Section 72(1)(b) of the VCAT Act provides that an applicant for a VCAT order must serve a copy of the application on a person entitled to notice of the application under the enabling enactment (which is this Act). 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 person entitled to notice of the proceeding or of the order under the enabling enactment. 571241B.I-20/8/2014 162 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 10--Rehearings and Reassessment of Orders s. 183 183 Contents of notice of application for reassessment (1) A notice of the making of an application that is given to a party to a reassessment must include the following-- (a) a copy of the application for the reassessment and any information filed in support of the application subject to clause 37A in 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, as stated in the notification given under section 182(2), of-- (i) the parties to the proceeding on the reassessment under section 180; and (ii) the other persons entitled to the notice under section 182; (c) information about the rights of the party in relation to the reassessment. (2) A notice of the making of an application that is given to a person referred to in section 182(1) who is not a party must include the following-- (a) a copy of the application; (b) the names, as stated in the notification given under section 182(2), of-- (i) the parties to the proceeding on the reassessment under section 180; and (ii) the other persons entitled to the notice under section 182; 571241B.I-20/8/2014 163 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 10--Rehearings and Reassessment of Orders s. 184 (c) information about the rights of the person in relation to seeking information about the reassessment; (d) information about the procedure for applying to VCAT to be made a party to the proceeding on the reassessment; (e) a statement that the person is not required to attend the hearing if the person does not have any matter to raise with VCAT in relation to the reassessment. 184 Conduct of reassessment if VCAT conducts reassessment on own initiative (1) If VCAT determines to conduct a reassessment on its own initiative under this Division, VCAT must-- (a) take reasonable steps to contact the represented person or supported person to ascertain whether that person wishes VCAT to reassess the relevant order at a hearing; and (b) give notice to each person referred to in section 182(1), including the represented person or the supported person, that the person has 14 days after the date of the notice to request in writing a hearing of the reassessment. (2) VCAT is not required to hold a hearing of the reassessment and may conduct a reassessment on the papers if-- (a) none of the persons referred to in section 182(1), including the represented person or the supported person, requests a hearing within 14 days after the date of the notice; and 571241B.I-20/8/2014 164 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 10--Rehearings and Reassessment of Orders s. 185 (b) VCAT is satisfied that a hearing is not necessary and it is appropriate to reassess the relevant order on the papers. (3) VCAT must conduct a hearing at which the relevant order is assessed and give at least 7 days' notice of the hearing to each person referred to in section 182(1), including the represented person or the supported person, if-- (a) any of the persons referred to in section 182(1), including the represented person or supported person, requests a hearing within 14 days after the date of the notice; or (b) VCAT is satisfied that a hearing is necessary. 185 Participation of represented person or supported person at hearing VCAT may only conduct a hearing in relation to a reassessment if-- (a) the represented person or supported person is present at the hearing; or (b) VCAT is satisfied that-- (i) the represented person or supported person does not wish to attend the hearing; or (ii) the presence of the represented person or supported 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. 571241B.I-20/8/2014 165 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 10--Rehearings and Reassessment of Orders s. 186 186 Order after reassessment (1) On completing a reassessment, VCAT may by order-- (a) amend, vary, continue or replace the order subject to any conditions or requirements it considers necessary; or (b) revoke the order. (2) If the Public Advocate is appointed as guardian of a represented person under an order of VCAT at first instance, that appointment may only be retained on reassessment if VCAT is satisfied that no other person fulfils the requirements for appointment as guardian. __________________ 571241B.I-20/8/2014 166 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 11--Interstate Orders s. 187 PART 11--INTERSTATE ORDERS 187 Application of Part This Part applies to-- (a) a guardianship order, supportive guardianship order, administration order or administration (missing person) order made under a corresponding law of a participating State or Territory in relation to a person who-- (i) resides in the participating State or Territory and proposes entering Victoria; or (ii) has property situated in Victoria; or (b) an administration (missing person) order made under a corresponding law of a participating State or Territory in relation to a person who has property situated in Victoria. 188 Definitions In this Part-- corresponding law means a law that, under an Order in Council in force under section 189, is declared to be a corresponding law for the purposes of this Part; determining body, in relation to a participating State or Territory, means a court, tribunal, board or other body that is authorised under a corresponding law to make, revoke, amend or vary a guardianship order, supportive guardianship order, administration order or administration (missing person) order; interstate order means an order made under a corresponding law of a participating State or Territory; 571241B.I-20/8/2014 167 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 11--Interstate Orders s. 189 participating State or Territory means a State or Territory in which a corresponding law is in force. 189 Corresponding laws and orders (1) The Governor in Council, on the recommendation of the Minister, by Order published in the Government Gazette, may declare that a law of a State (other than this State) or of a Territory is a corresponding law for the purposes of this Part. (2) An Order under subsection (1) in relation to a law of another State or Territory may include a declaration that an order under that law is substantially similar to a guardianship order, supportive guardianship order, administration order or administration (missing person) order for the purposes of this Part. 190 Ministerial agreements The Minister may make an agreement with a Minister responsible for administering a corresponding law about any matter in connection with the administration of this Part or a corresponding law. 191 Registration of interstate orders (1) VCAT may register an interstate order on the application of-- (a) a guardian, supportive guardian or administrator in a participating State or Territory; or (b) the Public Advocate. (2) If the guardian in a participating State or Territory is a person who holds an equivalent position to the Public Advocate, VCAT may appoint the Public Advocate as the guardian of the represented person in this State if no other person fulfils the 571241B.I-20/8/2014 168 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 11--Interstate Orders s. 192 requirements of section 30 for appointment as the guardian of that person. (3) On registration of an interstate order, VCAT must notify the determining body which made the order that the order has been registered. (4) An interstate order registered under this Part has the same force and effect according to its terms as a guardianship order, supportive guardianship order, administration order or administration order (missing person) order (as the case may be) that is made under this Act. (5) A guardianship order, supportive guardianship order, administration order or administration (missing person) order made under this Act is not revoked in Victoria if that order is registered in a participating State or Territory. 192 Reassessment of interstate orders (1) A registered interstate order (other than an administration (missing person) order) may be reassessed by VCAT in accordance with Division 2 of Part 10. (2) VCAT may make any order that it is authorised to make under Division 2 of Part 10 in relation to an interstate order that has been registered under this Part, including an order appointing a new guardian, supportive guardian or administrator. (3) VCAT must notify the determining body which made the interstate order as soon as practicable after VCAT makes an order under subsection (2). (4) An order made by VCAT under subsection (2) has no effect in the participating State or Territory in which the interstate order was made. 571241B.I-20/8/2014 169 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 11--Interstate Orders s. 193 (5) The revocation, amendment or variation of an interstate order by a determining body after the order is registered under this Part has no effect in Victoria. 193 Reciprocal arrangements under the State Trustees (State Owned Company) Act 1994 Nothing in this Part affects the operation of section 12 of the State Trustees (State Owned Company) Act 1994. _______________ 571241B.I-20/8/2014 170 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 12--General Provisions s. 194 PART 12--GENERAL PROVISIONS 194 Remuneration of administrators and certain guardians (1) An administrator or a guardian with powers in relation to a financial matter (other than a person who carries on a business of, or including, the administration of estates) is not entitled to receive any fee, remuneration or other reward from the estate of a represented person for acting as administrator or guardian with powers in relation to a financial matter unless VCAT otherwise specifies in the administration order or guardianship order, as the case may be. (2) The remuneration to which a person who carries on a business of, or including, the administration of estates is entitled, is to be approved by VCAT in accordance with a scale in relation to remuneration for administrators fixed by rules made under the VCAT Act. (3) Despite subsection (2), the remuneration approved by VCAT in relation to a licensed trustee company must not exceed the limit on fees that may be charged by a licensed trustee company under Chapter 5D of the Corporations Act. (4) VCAT may request a guardian with powers in relation to a financial matter or an administrator to provide VCAT with any account in the guardian's or administrator's custody in relation to the represented person's estate for the purpose of examining those accounts and determining whether the guardian or administrator has complied with the requirements of this Act, orders made by VCAT or any approvals or specifications made by VCAT in relation to remuneration under this section. 571241B.I-20/8/2014 171 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 12--General Provisions s. 195 (5) VCAT may by order require a guardian with powers in relation to a financial matter or an administrator to pay to the estate of the represented person any remuneration or other reward paid or deducted from the estate which VCAT specifies. 195 Payment from estate of costs and expenses to administrator or guardian (1) If in any proceeding, a court or VCAT orders that an administrator or a guardian pay any costs of the proceeding, the court or VCAT may order that the administrator or guardian pay, or be reimbursed for, all or part of those costs from the estate of the represented person. (2) In any proceeding, a court or VCAT may order that an administrator or a guardian be reimbursed for all or part of the administrator's or guardian's costs of the proceeding from the estate of the represented person. (3) A court or VCAT may order that the costs incurred in administering an estate by a person appointed as an administrator or a guardian (including the costs of any proceeding) may be paid out of, or reimbursed from, the estate of the represented person, whether or not the appointment has been revoked or quashed. (4) An order referred to in subsection (3) may be made on an application under section 60 or otherwise, and for that purpose, a reference in section 60 to an administrator or a guardian is taken to include a reference to a person whose appointment as an administrator or guardian has been revoked or quashed. 571241B.I-20/8/2014 172 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 12--General Provisions s. 196 196 Resolution of conflicts between guardians and administrators (1) When appointing a guardian in relation to a person whose estate is administered by an administrator, VCAT must specify whether, in the event of a disagreement, the views of the guardian or the administrator are to prevail in relation to a matter that is within the power and duty of both the guardian and the administrator. (2) When appointing an administrator in relation to a person for whom a guardian has been appointed, VCAT must specify whether, in the event of a disagreement, the views of the guardian or the administrator are to prevail in relation to a matter that is within the power and duty of both the guardian and the administrator. (3) When appointing a guardian for a person in relation to a personal matter and another guardian for that person in relation to a different personal matter has been appointed, VCAT must specify, in the event of a disagreement, which guardian's views are to prevail in relation to a matter that is within the power and duty of both the guardians. (4) In any disagreement between an administrator and a guardian, or between 2 guardians, appointed in relation to the same person and in relation to a matter where each has authority to act, the administrator and the guardian or the 2 guardians may apply to VCAT for an order as to how the matter should be resolved. 197 Enforcement orders (1) A guardian or administrator may apply to VCAT for an enforcement order in relation to a decision or act that the guardian or administrator claims-- (a) is an exercise of the guardian's or administrator's powers under the Act; and 571241B.I-20/8/2014 173 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 12--General Provisions s. 198 (b) is so not recognised, or given effect to, by another specified person. (2) The specified person referred to in subsection (1)(b) is entitled to notice of the application. (3) VCAT may make an order that the specified person referred to in subsection (1)(b) recognise or give effect to the decision or act that the guardian or administrator claims to be an exercise of the guardian's or administrator's powers under the Act if VCAT is satisfied that-- (a) the order will promote the personal and social wellbeing of the represented person in relation to whom or to whose estate the guardian or administrator has been appointed; and (b) the relevant decision or act is an exercise of the guardian's or administrator's powers under this Act; and (c) the specified person has failed or refused to recognise or give effect to the decision or act as an exercise of the guardian's or administrator's powers under the Act. Note Section 133 of the VCAT Act provides that it is an offence not to comply with an order of VCAT. 198 Matters before a Court (1) If in any civil proceedings before a Court, the Court considers that a party may need to have a guardian or administrator or both or a supportive guardian appointed under this Act, the Court may refer the issue to VCAT for its determination. 571241B.I-20/8/2014 174 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 12--General Provisions s. 198 (2) If a Court refers an issue to VCAT under subsection (1)-- (a) the referral is to be treated as if it were an application to VCAT for the making of a guardianship order, an administration order or a supportive guardianship order (as the case requires); and (b) the prothonotary (in the case of a referral by the Supreme Court) or the principal registrar of the Court (in any other case) is to be taken to be the applicant. (3) If in any civil proceedings before a Court it is adjudged or ordered that money be paid to a person with a disability (whether or not that person is a party to a cause or matter) the money-- (a) is to be paid into Court; and (b) unless the Court otherwise orders, is to be paid out to the administrator (if any) of the estate of that person or State Trustees. (4) In making an order under subsection (3)(b), there is no presumption that money should be administered in accordance with Division 2AA of Part 7 of the Supreme Court Act 1986 in preference to administration by an administrator. (5) Subsection (4) does not limit any other factors the Court may consider in making an order under subsection (3)(b). (6) If any money-- (a) is paid into Court before or after the commencement of this section; and 571241B.I-20/8/2014 175 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 12--General Provisions s. 198 (b) the money is being held in Court on behalf of a person with a disability-- the Court may by order direct that the money be paid out to the administrator (if any) of the estate of that person or State Trustees. (7) If the Court adjudges or orders that property (whether real or personal) be delivered up or transferred to a person with a disability (whether or not that person is a party to a cause or matter), the Court-- (a) may order that the property be delivered up or transferred to the administrator (if any) of the estate of that person or State Trustees; and (b) may give any directions for the service of the order on that administrator or State Trustees as it thinks fit. (8) If an order under subsection (7) is served on an administrator or State Trustees, the administrator or State Trustees must accept delivery or transfer of the property to which the order relates and the acceptance of the property is a sufficient discharge to the person delivering or transferring the property. (9) A copy of any order made under this section must be given by the administrator or State Trustees (as the case may be) to VCAT and the Public Advocate. (10) An order of the Court under this section that money be paid out to an administrator (if any) of the estate of a person or State Trustees has effect as if it were an administration order. (11) In this section Court means-- (a) the Supreme Court; or (b) the County Court; or 571241B.I-20/8/2014 176 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 12--General Provisions s. 199 (c) the Magistrates' Court. 199 Effect of setting aside administration 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 does not affect the validity of anything done in accordance with the administration 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. 200 Compensation for acts of guardian or administrator (1) The Supreme Court or VCAT may order a guardian or administrator to compensate the represented person 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 has died, in which case compensation is payable to the estate of the represented person. 201 Relief from personal liability If the Supreme Court or VCAT considers that-- (a) an administrator or guardian is or may be personally liable for a contravention of the provisions of this Act; and 571241B.I-20/8/2014 177 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 12--General Provisions s. 202 (b) the administrator or guardian has acted honestly and reasonably and ought fairly to be excused for the contravention-- the Supreme Court or VCAT may relieve the administrator or guardian from all or part of that personal liability. 202 Who can apply for an order for compensation? A person may apply for an order under section 200 if the person is-- (a) the represented person; or (b) an executor or administrator (within the Administration and Probate Act 1958) of the represented person's estate; or (c) the Public Advocate; or (d) the nearest relative of the represented person; or (e) any other person whom VCAT considers to have a special interest in the affairs of the represented person. 203 Time limit for application for order for compensation (1) An application for an order for compensation under section 200 must be made-- (a) if the represented 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 and the guardian or administrator died, within 6 months after the first death. (2) The Supreme Court or VCAT may extend the time specified under subsection (1). 571241B.I-20/8/2014 178 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 12--General Provisions s. 204 204 VCAT may refer matter to Supreme Court VCAT may refer to the Supreme Court an application made to it for an order for compensation under section 200. 205 No 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. 206 Judicial 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 may be). 207 Audit VCAT or the Public Advocate may engage a registered company auditor to carry out an inspection or an audit that VCAT or the Public Advocate considers to be necessary. 208 Offence as to guardian, supportive guardian or administrator (1) A guardian under a guardianship order must not dishonestly use the guardianship order-- (a) to obtain financial advantage for the guardian or another person; or (b) to cause loss to the represented person or another person. Penalty: Level 6 imprisonment (5 years maximum) or 600 penalty units or both. 571241B.I-20/8/2014 179 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 12--General Provisions s. 208 (2) A supportive guardian under a supportive guardianship order must not dishonestly use the supportive guardianship order-- (a) to obtain financial advantage for the supportive guardian or another person; or (b) to cause loss to the supported person or another person. Penalty: Level 6 imprisonment (5 years maximum) or 600 penalty units or both. (3) An administrator under an administration order must not dishonestly use the administration order-- (a) to obtain financial advantage for the administrator or another person; or (b) 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, 2400 penalty units. (4) An administrator under an administration (missing person) order must not dishonestly use the administration (missing person) order-- (a) to obtain financial advantage for the administrator or another person; or (b) 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, 2400 penalty units. 571241B.I-20/8/2014 180 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 12--General Provisions s. 209 Notes 1 The offences under this section are indictable offences that may be heard summarily. 2 Section 209 applies to an offence against subsection (3) or (4). 209 Criminal 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 27(5); (b) section 208(3); (c) section 208(4). (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. 571241B.I-20/8/2014 181 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 12--General Provisions s. 210 (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. 210 Regulations (1) The Governor in Council may make regulations for or with respect to-- (a) prescribing forms to be used for the purposes of this Act; and (b) prescribing any treatment-- (i) to be medical or dental treatment for the purposes of this Act; or 571241B.I-20/8/2014 182 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 12--General Provisions s. 210 (ii) not to be medical or dental treatment for the purposes of this Act; or (iii) to be a special procedure for the purposes of Part 9; and (c) prescribing any procedure-- (i) to be a medical research procedure for the purposes of this Act; or (ii) not to be a medical research procedure for the purposes of this Act; and (d) prescribing any matters to be taken into account in determining whether a medical research procedure would or would not be contrary to the best interests of a person to whom Part 9 applies; and (e) prescribing any matters to be taken into account in determining whether a special procedure or medical or dental treatment would be in the best interests of a person to whom Part 9 applies; and (f) prescribing annual fees to be paid in relation to estates which are the subject of an administration order; and (g) 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. 571241B.I-20/8/2014 183 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 12--General Provisions s. 211 (3) Regulations made under subsection (1)(f)-- (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 this section, the Minister must advise the Governor in Council that the Minister-- (a) has consulted the President of VCAT and the Public Advocate; and (b) is of the opinion that the fees to be charged in the proposed regulations will not result in an amount of fees being collected in any year that will exceed the amount required by VCAT and the Public Advocate to fulfil their estate administration functions under this Act in that year. 211 Transitional regulations (1) The Governor in Council may make regulations containing provisions of a savings or transitional nature consequent to the enactment of this Act. (2) A provision mentioned in subsection (1) may be retrospective in operation to 1 September 2015. (3) Regulations made under this section have effect despite anything to the contrary in any Act (other than this Act or the Charter of Human Rights and Responsibilities Act 2006) or in any subordinate instrument. (4) This section expires on 1 September 2017. _______________ 571241B.I-20/8/2014 184 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 13--Repeal of Guardianship and Administration Act 1986, Savings and s. 212 Transitional Provisions PART 13--REPEAL OF GUARDIANSHIP AND ADMINISTRATION ACT 1986, SAVINGS AND TRANSITIONAL PROVISIONS 212 Definitions (1) In this Part-- 1986 Act means the Guardianship and Administration Act 1986; 2014 Act means the Guardianship and Administration Act 2014; commencement day means the day on which the 2014 Act comes into operation. (2) A word or expression that is defined in the 1986 Act and is used in this Part in relation to the 1986 Act has the same meaning as is given in the 1986 Act. 213 Guardianship and Administration Act 1986 repealed (1) The Guardianship and Administration Act See: Act No. 1986 is repealed. 58/1986. Reprint No. 8 (2) Except as is expressly or by necessary implication as at 17 January provided in the 2014 Act, all persons, things and 2013 circumstances appointed or created by or under and amending the 1986 Act or existing or continuing under the Act Nos 1986 Act immediately before commencement day 26/2014 and 37/2014. continue under and subject to the 2014 Act to LawToday: have the same status, operation and effect as they www. legislation. would have had if the 1986 Act had not been vic.gov.au repealed. (3) On and after commencement day, any reference in any Act (other than the 2014 Act or regulations under that Act), regulation, subordinate instrument or other document whatsoever to the 1986 Act is to be construed as a reference to the 2014 Act unless the contrary intention appears. 571241B.I-20/8/2014 185 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 13--Repeal of Guardianship and Administration Act 1986, Savings and s. 214 Transitional Provisions (4) Nothing in this Part limits or otherwise affects the operation of the Interpretation of Legislation Act 1984. 214 Guardianship order and appointment of guardian (1) On and after commencement day, a guardianship order made under section 22 or 33 of the 1986 Act that is in force immediately before that day is taken to be a guardianship order made under the 2014 Act and, in the case of a guardianship order made under section 33 of the 1986 Act, is taken to remain in force for such period as is specified in the order or renewal of the order under the 1986 Act. (2) On and after commencement day, a person appointed as guardian under an order made under section 22 or 33 of the 1986 Act that is in force immediately before that day is taken to be appointed as a guardian under an order made under the 2014 Act. (3) On and after commencement day, a person who immediately before that day is appointed as alternative guardian under section 34 of the 1986 Act and is not a guardian under section 35 of that Act, is taken to be appointed as an alternative guardian under an order made under the 2014 Act. (4) On and after commencement day, a person who immediately before that day is a guardian under section 35 of the 1986 Act is taken to be a guardian under the 2014 Act. 215 Authority of guardian (1) On and after commencement day, a plenary guardian appointed under a guardianship order made under the 1986 Act that is in force immediately before commencement day is taken to be conferred with-- 571241B.I-20/8/2014 186 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 13--Repeal of Guardianship and Administration Act 1986, Savings and s. 216 Transitional Provisions (a) all the powers and duties that were conferred on the plenary guardian under the 1986 Act; and (b) the powers and duties referred to in sections 57, 58(b) and 60 of the 2014 Act. (2) On and after commencement day, a limited guardian appointed under a guardianship order made under the 1986 Act that is in force immediately before commencement day is taken to be conferred with-- (a) all the powers and duties that were specified in the guardianship order made under the 1986 Act; and (b) the powers and duties referred to in sections 57, 58(b) and 60 of the 2014 Act. 216 Administration order and appointment of administrator (1) On and after commencement day, an administration order made under section 46 or 60 of the 1986 Act that is in force immediately before that day is taken to be an administration order made under the 2014 Act and, in the case of an administration order made under section 60 of the 1986 Act, is taken to remain in force for such period as is specified in the order or renewal of the order under the 1986 Act. (2) On and after commencement day, a person appointed as administrator or temporary administrator in an administration order made under section 46 or 60 of the 1986 Act is taken to be appointed under an administration order made under the 2014 Act as an administrator as described in paragraph (a) or (b), as relevant, of the definition of administrator in section 3(1) of the 2014 Act. 571241B.I-20/8/2014 187 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 13--Repeal of Guardianship and Administration Act 1986, Savings and s. 217 Transitional Provisions 217 Authority of administrator On and after commencement day, an administrator appointed under an administration order made under the 1986 Act that is in force immediately before commencement day is taken to be conferred with-- (a) all the powers and duties that were conferred on the administrator under Division 3 of Part 5 of the 1986 Act and such of the powers and duties referred to in Division 3A of Part 5 of that Act as were specified in the order; and (b) the powers and duties referred to in sections 57, 58(b), 63, 65, 67 and 72 of the 2014 Act. 218 Administration order in respect of missing person's estate (1) On and after commencement day, an administration order made under Part 5A of the 1986 Act that is in force immediately before that day is taken to be an administration (missing person) order made under the 2014 Act. (2) On and after commencement day, a person appointed as administrator in an administration order made under Part 5A of the 1986 Act is taken to be appointed as an administrator under an administration (missing person) order made under the 2014 Act. 219 Authority of administrator in respect of missing person's estate On and after commencement day, an administrator appointed under an administration order made under Part 5A of the 1986 Act that is in force immediately before commencement day is taken to be conferred with all the powers and duties that were conferred on the administrator under the 1986 Act. 571241B.I-20/8/2014 188 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 13--Repeal of Guardianship and Administration Act 1986, Savings and s. 220 Transitional Provisions 220 Application for guardianship orders On and after commencement day, an application for an order appointing a plenary guardian or a limited guardian that is made under section 19 or 33 of the 1986 Act is taken to be an application for a guardianship order made under section 20 of the 2014 Act and, irrespective of whether the application is or is not part-heard immediately before commencement day, must be determined in accordance with the relevant provisions of the 2014 Act (other than sections 23 and 24). 221 Application for administration orders On and after commencement day, an application for an order appointing an administrator that is made under section 43 of the 1986 Act is taken to be an application for an administration order made under section 20 of the 2014 Act and, irrespective of whether the application is or is not part-heard immediately before commencement day, must be determined in accordance with the relevant provisions of the 2014 Act (other than sections 23 and 24). 222 Application for administration (missing person) orders On and after commencement day, an application for an order appointing an administrator that is made under section 60AA or 60AF of the 1986 Act is taken to be an application for an administration (missing person) order made under section 107 or 139, as the case may be, of the 2014 Act and, irrespective of whether the application is or is not part-heard immediately before commencement day, must be determined in accordance with the relevant provisions of the 2014 Act (other than sections 108 and 109). 571241B.I-20/8/2014 189 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 13--Repeal of Guardianship and Administration Act 1986, Savings and s. 223 Transitional Provisions 223 Rehearings and reassessments of orders (1) If, immediately before commencement day, an application is made under Part 6 of the 1986 Act for a rehearing or reassessment of an order, the application is taken to be made under Part 10 of the 2014 Act. (2) If, immediately before commencement day, a rehearing or reassessment under Part 6 of the 1986 Act is part-heard, adjourned or not completed, the rehearing or reassessment is to be heard or completed in accordance with the relevant provisions of Part 10 of the 2014 Act in relation to the order that is taken to be an order made under the 2014 Act by virtue of this Part. (3) On and after commencement day, an order made under Part 6 of the 1986 Act that is in force immediately before commencement day is taken to be an order made under Part 10 of the 2014 Act. 224 Medical and other treatment (1) On and after commencement day, a person who is a person responsible under Part 4A of the 1986 Act is taken to be a health decision maker under Part 9 of the 2014 Act. (2) On and after commencement day, a consent given by a person responsible under Part 4A of the 1986 Act is taken to be a consent given by a health decision maker under Part 9 of the 2014 Act. (3) On and from commencement day, an order, directions or an advisory opinion given by VCAT under section 42I of the 1986 Act is taken to be an order, directions or an advisory opinion given by VCAT under section 158 of the 2014 Act. 571241B.I-20/8/2014 190 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 13--Repeal of Guardianship and Administration Act 1986, Savings and s. 225 Transitional Provisions (4) On and from commencement day, subject to section 147 of the 2014 Act, a registered practitioner may carry out, or supervise the carrying out of, medical or dental treatment under section 161 of the 2014 Act if, immediately before the commencement day, the registered practitioner was permitted to carry out, or supervise the carrying out of, such treatment under section 42L of the 1986 Act. (5) On and from commencement day, an application made under section 42N of the 1986 Act and not determined immediately before commencement day, is taken to be an application under section 163 of the 2014 Act. (6) On and from commencement day, an application made under section 42V of the 1986 Act and not determined immediately before commencement day, is taken to be an application under section 171 of the 2014 Act. (7) On and from commencement day, an order, directions or an advisory opinion given by VCAT under section 42W of the 1986 Act is taken to be an order, directions or an advisory opinion given by VCAT under section 172 of the 2014 Act. 225 Interstate orders (1) On and from commencement day, an agreement referred to in section 63D of the 1986 Act is taken to be an agreement referred to in section 190 of the 2014 Act. (2) On and from commencement day, an interstate order that is registered under section 63E of the 1986 Act is taken to be an interstate order registered under section 191 of the 2014 Act. 571241B.I-20/8/2014 191 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 13--Repeal of Guardianship and Administration Act 1986, Savings and s. 226 Transitional Provisions 226 VCAT 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. __________________ 571241B.I-20/8/2014 192 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 14--Amendments to the Victorian Civil and Administrative Tribunal s. 227 Act 1998 and Other Acts PART 14--AMENDMENTS TO THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 AND OTHER ACTS Division 1--Victorian Civil and Administrative Tribunal Act 1998 227 Definitions In section 3 of the Victorian Civil and See: Act No. Administrative Tribunal Act 1998, for 53/1998. paragraph (d) of the definition of proceeding Reprint No. 9 as at substitute-- 1 January 2014 "(d) a rehearing or reassessment under Part 10 of and amending the Guardianship and Administration Act Act Nos 2014;". 67/2013, 1/2014, 17/2014, 23/2014, 37/2014 and 42/2014. LawToday: www. legislation. vic.gov.au 228 What is review jurisdiction? For section 42(2) of the Victorian Civil and Administrative Tribunal Act 1998, for "Part 6 of the Guardianship and Administration Act 1986" substitute "Part 10 of the Guardianship and Administration Act 2014". 229 Proceeding files After section 146(4)(c) of the Victorian Civil and Administration Tribunal Act 1998 insert-- "(ca) any determination by the principal registrar under clause 37A of Part 9 to Schedule 1;". 571241B.I-20/8/2014 193 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 14--Amendments to the Victorian Civil and Administrative Tribunal s. 230 Act 1998 and Other Acts 230 Heading to Part 9 of Schedule 1 For the heading to Part 9 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 substitute-- "PART 9--GUARDIANSHIP AND ADMINISTRATION ACT 2014". 231 Constitution of Tribunal for proceedings (1) For clause 31(1) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 substitute-- "(1) Section 64(2)(a) does not apply to a proceeding under the Guardianship and Administration Act 2014, other than a proceeding for a temporary order under section 20 of that Act.". (2) In clause 31(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "Division 4 of Part 4 or Division 4 of Part 5 of the Guardianship and Administration Act 1986" substitute "Parts 3 and 4". (3) In clause 31(3) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "Division 1 of Part 6 of the Guardianship and Administration Act 1986" substitute "Division 1 of Part 10 of the Guardianship and Administration Act 2014". 232 Notification of commencement (1) In clause 32(1) and (2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 571241B.I-20/8/2014 194 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 14--Amendments to the Victorian Civil and Administrative Tribunal s. 233 Act 1998 and Other Acts (2) In clause 32(3) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "Part 5A of the Guardianship and Administration Act 1986" substitute "Part 8 of the Guardianship and Administration Act 2014". 233 Public Advocate may intervene or be joined In clause 33 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 234 Withdrawal of application does not preclude future application In clause 34 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 235 Referral to administrators for report In clause 35(1) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 236 Proceeding not invalidated by failure to give notice In clause 36 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 571241B.I-20/8/2014 195 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 14--Amendments to the Victorian Civil and Administrative Tribunal s. 237 Act 1998 and Other Acts 237 Confidentiality of proceedings (1) In clause 37(1) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". (2) In clause 37(4) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "Part 5A of the Guardianship and Administration Act 1986" substitute "Part 8 of the Guardianship and Administration Act 2014". 238 New clause 37A inserted After clause 37 in Part 9 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 insert-- "37A Access to documents (1) A person may make an application to the principal registrar that any documents lodged in relation to a proceeding under the Guardianship and Administration Act 2014 not be disclosed to a specified person or class of persons. (2) The principal registrar must determine an application under subclause (1) fairly and according to the merits of the application.". 239 Subject matter for rules At the end of Schedule 2 to the Victorian Civil and Administrative Tribunal Act 1998 insert-- "A scale of remuneration to which persons who carry on a business of, or including, the administration of estates may be entitled to under the Guardianship and Administration Act 2014, subject to the Tribunal's approval.". 571241B.I-20/8/2014 196 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Part 14--Amendments to the Victorian Civil and Administrative Tribunal s. 240 Act 1998 and Other Acts Division 2--Amendments to other Acts 240 Consequential amendments On the coming into operation of an item in the Schedule, the Act specified in the heading to that item is amended as set out in the item. 241 Repeal of Part 14 and Schedule Part 14 and the Schedule are repealed on 1 September 2016. Note The repeal of Part 14 and the Schedule does not affect the continuing operation of the amendments made by that Part of the Schedule (see section 15(1) of the Interpretation of Legislation Act 1984.). __________________ 571241B.I-20/8/2014 197 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. SCHEDULE Section 240 CONSEQUENTIAL AMENDMENTS 1 Appeal Costs Act 1998 1.1 In section 3(2)(a) and (b), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 2 Associations Incorporation Reform Act 2012 2.1 In section 78(2)(c)(iii), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 3 Australian Consumer Law and Fair Trading Act 2012 3.1 In sections 47(1)(a)(ii), 48(6)(b) and 92(1)(g), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 4 Building Act 1993 4.1 In sections 83(1)(b)(iii), 83B(1)(e) and 148F(1)(g), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 4.2 In section 90(3), for "under the Guardianship and Administration Act 1986" substitute "or as guardian with powers in relation to a financial matter of the adjoining owner under the Guardianship and Administration Act 2014". 5 Business Licensing Authority Act 1998 5.1 In the Schedule, in clause 3(1)(c), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 571241B.I-20/8/2014 198 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. 6 Conveyancers Act 2006 6.1 In section 5(h), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 7 Coptic Orthodox Church (Victoria) Property Trust Act 2006 7.1 In section 8(d), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 8 County Court Act 1958 8.1 In section 39B(5), for "the Tribunal within the meaning of the Guardianship and Administration Act 1986 and the Public Advocate appointed under that Act" substitute "VCAT and the Public Advocate within the meaning of the Guardianship and Administration Act 2014". 8.2 For section 39B(6) substitute-- "(6) An order of the Court under this section that money be paid out to an administrator has effect as if it were an administration order under the Guardianship and Administration Act 2014 and, subject to the order of the Court, the administrator has all the powers and duties set out in Divisions 3, 4, 5 and 6 of Part 6 of that Act.". 8.3 In section 39C(6), for "section 66 of the Guardianship and Administration Act 1986" substitute "section 198 of the Guardianship and Administration Act 2014". 9 Crimes Act 1958 9.1 In section 175(1), in the definition of trustee, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 571241B.I-20/8/2014 199 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. 10 Disability Act 2006 10.1 In section 3(1)-- (a) for the definition of Public Advocate substitute-- "Public Advocate has the same meaning as in the Guardianship and Administration Act 2014;"; (b) in the definition of resident's administrator, after "resident's" insert "guardian with powers in relation to a financial matter appointed under the Guardianship and Administration Act 2014 or the resident's"; (c) in the definition of resident's guardian, for in paragraph (a)(i) substitute-- "(i) appointed under the Guardianship and Administration Act 2014 with powers in relation to a personal matter; or". 10.2 After section 39(4)(ca) insert-- "(cb) to a supportive guardian within the meaning of the Guardianship and Administration Act 2014;". 10.3 In section 144(2), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 10.4 In section 200, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 11 Duties Act 2000 11.1 In section 57G(1), for paragraph (b) of the definition of guardian substitute-- "(b) an administrator of the person's estate appointed under the Guardianship and Administration Act 2014 or a person 571241B.I-20/8/2014 200 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. appointed under that Act for the person under a legal disability as guardian with powers in relation to a financial matter;". 12 Estate Agents Act 1980 12.1 In sections 14(5)(da), 16(1)(da), 22(1)(c) and 31E(1)(c), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 13 Family Violence Protection Act 2008 13.1 In section 4, in the definition of guardian, for "under the Guardianship and Administration Act 1986" substitute "with powers in relation to a personal matter under the Guardianship and Administration Act 2014". 13.2 In the note at the foot of sections 64(1) and 112-- (a) for "sections 30 and 61 of the Guardianship and Administration Act 1986. Section 30" substitute "section 60 and Division 2 of Part 10 of the Guardianship and Administration Act 2014. Section 60"; (b) for "section 61" substitute "Division 2 of Part 10". 14 Fire Services Levy Monitor Act 2012 14.1 In section 10(c), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 15 First Home Owner Grant Act 2000 15.1 In section 3(1), for paragraph (b) of the definition of guardian substitute-- "(b) an administrator of the person's estate appointed under the Guardianship and Administration Act 2014 or a person appointed under that Act for the person 571241B.I-20/8/2014 201 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. under a legal disability as guardian with powers in relation to a financial matter;". 16 Fundraising Act 1998 16.1 In sections 19A(1)(c), 24B(1)(a)(iii) and 34(1)(f)(i)(C), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 17 Gambling Regulation Act 2003 17.1 In sections 3.4.24(3)(a)(iv), 7.3.15(1)(b) and 7.3.17(c), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 18 Health Records Act 2001 18.1 In section 85-- (a) in subsection (4), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014"; (b) for subsection (6)(d) substitute-- "(d) an administrator, a guardian, supportive guardian or a health decision maker (all within the meaning of the Guardianship and Administration Act 2014); or". 18.2 In section 30(2), for the definition of written authority substitute-- "written authority includes-- (a) a supportive attorney appointment within the meaning of the Powers of Attorney Act 2014; (b) a supportive guardianship order within the meaning of the Guardianship and Administration Act 2014.". 571241B.I-20/8/2014 202 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. 18.3 In section 85(2)(a)(ii), for "and" substitute "or". 18.4 After section 85(2)(a)(ii) insert-- "(iii) a supportive guardian acting under a supportive guardianship order, within the meaning of the Guardianship and Administration Act 2014; and". 19 Health Services Act 1988 19.1 In section 3(1)-- (a) for the definition of Public Advocate substitute-- "Public Advocate has the same meaning as in the Guardianship and Administration Act 2014;". 20 Human Services (Complex Needs) Act 2009 20.1 In section 3, in the definition of Public Advocate, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 20.2 In section 21(b)(i), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 21 Independent Broad-based Anti-corruption Commission Act 2011 21.1 In sections 25(1)(f) and 27(1)(f), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 22 Juries Act 2000 22.1 In Schedule 2, in clause 3(d), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 571241B.I-20/8/2014 203 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. 23 Land Act 1958 23.1 In section 110-- (a) in subsection (3), for "as administrator under the Guardianship and Administration Act 1986" substitute "under the Guardianship and Administration Act 2014 as an administrator or as a guardian with powers in relation to a financial matter"; (b) in subsection (4), for "administrator under the Guardianship and Administration Act 1986" substitute "administrator or guardian with powers in relation to a financial matter appointed under the Guardianship and Administration Act 2014". 23.2 In section 353(5), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 24 Land Tax Act 2005 24.1 In section 3(1), in the definition of concessional trust, in paragraph (a)(i), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 25 Limitation of Actions Act 1958 25.1 For section 3(3) substitute-- "(3) Without limiting the meaning of unsound mind a person is conclusively presumed to be of unsound mind if the person is a represented person within the meaning of the Guardianship and Administration Act 2014.". 571241B.I-20/8/2014 204 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. 25.2 In section 27J(4)-- (a) for the definition of guardian substitute-- "guardian, in relation to a represented person means the guardian or administrator of that person under the Guardianship and Administration Act 2014;"; (b) for the definition of represented person substitute-- "represented person means represented person within the meaning of the Guardianship and Administration Act 2014;". 26 Liquor Control Reform Act 1998 26.1 In sections 66(c), 80(1)(b) and 85(a)(ii), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 27 Magistrates Court Act 1989 27.1 In section 101A(5), for "the Tribunal within the meaning of the Guardianship and Administration Act 1986 and the Public Advocate appointed under that Act" substitute "VCAT and the Public Advocate appointed under the Guardianship and Administration Act 2014". 27.2 For section 101A(6) substitute-- "(6) An order of the Court under this section that money be paid out to an administrator has effect as if it were an administration order under the Guardianship and Administration Act 2014 and, subject to the order of the Court, the administrator has all the powers and duties set out in Divisions 3, 4, 5 and 6 of Part 6 of that Act.". 571241B.I-20/8/2014 205 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. 27.3 In section 101B(6), for "section 66 of the Guardianship and Administration Act 1986" substitute "section 198 of the Guardianship and Administration Act 2014". 28 Medical Treatment Act 1988 28.1 In section 5A-- (a) in subsection (1)(b), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014"; (b) for subsection (4)(b) substitute-- "(b) on the donor of the power becoming a represented person within the meaning of the Guardianship and Administration Act 2014--". 28.2 In section 5D(1)(b), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 28.3 In Schedule 3, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 29 Mental Health Act 2014 29.1 In section 3(1)-- (a) in the definition of guardian, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014"; (b) for the definition of Public Advocate substitute-- "Public Advocate has the same meaning as in the Guardianship and Administration Act 2014;". 571241B.I-20/8/2014 206 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. 29.2 In section 7-- (a) in paragraph (e), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014"; (b) in the note at the foot of paragraph (e), for "Part 4A of the Guardianship and Administration Act 1986" substitute "Part 9 of the Guardianship and Administration Act 2014". 29.3 In section 75(1)(c), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 30 Motor Car Traders Act 1986 30.1 In sections 13(4)(k) and (6)(1)(i), 28(1)(c) and 33(1)(c), for "Guardianship and Administration Board Act 1986" substitute "Guardianship and Administration Act 2014". 31 Owners Corporations Act 2006 31.1 In sections 179(b), 186(a) and 187(1)(c), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 32 Partnership Act 1958 32.1 In section 39(a), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 33 Personal Safety Intervention Orders Act 2010 33.1 In section 4, in the definition of guardian, for "under the Guardianship and Administration Act 1986" substitute "with powers in relation to a personal matter under the Guardianship and Administration Act 2014". 571241B.I-20/8/2014 207 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. 33.2 In the note at the foot of sections 46(1) and 89(1)-- (a) for "sections 30 and 61 of the Guardianship and Administration Act 1986. Section 30" substitute "section 60 and Division 2 of Part 10 of the Guardianship and Administration Act 2014. Section 60"; (b) for "section 61" substitute "Division 2 of Part 10". 34 Powers of Attorney Act 2014 34.1 In section 3(1), in the definitions of administration order, guardianship order and Public Advocate, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 34.2 In section 3(1), in the definition of personal matter, in paragraph (f) of the Examples, for "Part 4A of the Guardianship and Administration Act 1986" substitute "Part 9 of the Guardianship and Administration Act 2014". 34.3 In section 3(1), in the definition of relative, for paragraphs (c) and (d) substitute-- "(c) parent; (ca) step-parent; (d) sibling; (da) step-sibling;". 34.4 In section 83(1), after "makes" insert "a guardianship order appointing a guardian with powers in relation to a financial matter or". 35.5 In section 123(4)(e)-- (a) in paragraphs (i), (iii) and (iv), for "Guardianship and Administration Act 571241B.I-20/8/2014 208 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. 1986" substitute "Guardianship and Administration Act 2014"; (b) in paragraph (ii), for "section 35 of the Guardianship and Administration Act 1986" substitute "section 51 of the Guardianship and Administration Act 2014". 35 Privacy and Data Protection Act 2014 35.1 In section 28(6), in the definition of authorised representative, for paragraph (a)(iv) substitute-- "(iv) an administrator, a guardian or a health decision maker (all within the meaning of the Guardianship and Administration Act 2014); or". 36 Professional Standards Act 2003 36.1 In Schedule 2, in clause 5(1)(e), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 37 Property Law Act 1958 37.1 In section 30(1), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014 or a guardian with powers in relation to a financial matter is appointed under that Act". 37.2 In section 30(1), after "the administrator" insert "or guardian". 37.3 In sections 30(2) and 171(9), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 38 Public Health and Wellbeing Act 2008 38.1 In section 138(3)(b), for "person responsible under the Guardianship and Administration Act 1986" substitute "health decision maker 571241B.I-20/8/2014 209 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. under the Guardianship and Administration Act 2014". 39 Road Safety Act 1986 39.1 In section 90I, in the definition of authorised representative, for paragraph (d) substitute-- "(d) an administrator, a guardian or a health decision maker (all within the meaning of the Guardianship and Administration Act 2014); or". 40 Second-Hand Dealers and Pawnbrokers Act 1989 40.1 In sections 6(1)(a), 10(1)(a) and 18(1)(c), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 41 Severe Substance Dependence Treatment Act 2010 41.1 In section 4-- (a) for the definition of guardian substitute-- "guardian has the same meaning as in the "Guardianship and Administration Act 2014;"; (b) in the definition of Public Advocate, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 41.2 In section 6(2), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 42 Sex Work Act 1994 42.1 In sections 37(1)(g), 47(1)(g), 47A(1)(c), 51(1)(g) and 53(1)(f), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 571241B.I-20/8/2014 210 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. 43 State Trustees (State Owned Company) Act 1994 43.1 In section 3-- (a) the definition of protected person is repealed; (b) in the definition of represented person, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 43.2 In section 12(5)-- (a) for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014"; (b) in paragraph (d), for "Divisions 3 and 3A of Part 5" substitute "Divisions 3, 4, 5 and 6 of Part 6". 43.3 In section 13(1)(d), for "administrators' accounts under the Guardianship and Administration Act 1986" substitute "accounts of administrators or of guardians with powers in relation to a financial matter under the Guardianship and Administration Act 2014". 43.4 In section 14(2)(c)(i), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 43.5 Section 14(2)(c)(ii) is repealed. 43.6 In section 17(1) and (2) omit "or a protected person". 43.7 In section 19-- (a) in paragraph (a)-- (i) for subparagraph (i) substitute-- "(i) an order under the Guardianship and Administration Act 2014 appointing State Trustees as 571241B.I-20/8/2014 211 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. administrator of the estate of any person or as guardian with powers in relation to a financial matter is in force; or"; (ii) subparagraph (ii) is repealed; (b) paragraph (b)(ii) is repealed. 44 Supported Residential Services (Private Proprietors) Act 2010 44.1 In section 3(1)-- (a) in the definition of Public Advocate, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014"; (b) in the definition of resident's administrator, after "resident's" insert "guardian with powers in relation to a financial matter appointed under the Guardianship and Administration Act 2014 or the resident's"; (c) in the definition of resident's guardian, for in paragraph (a)(i) substitute-- "(i) under the Guardianship and Administration Act 2014 with powers in relation to a personal matter; or". 44.2 In section 35(1)(a)(ii), (b)(ii) and (2)(b), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 44.3 In the note at the foot of section 45(1), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 571241B.I-20/8/2014 212 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. 45 Supreme Court Act 1986 45.1 In section 51A(5), for "the Tribunal within the meaning of the Guardianship and Administration Act 1986 and the Public Advocate appointed under that Act" substitute "VCAT and the Public Advocate appointed under the Guardianship and Administration Act 2014". 45.2 For section 51A(6) substitute-- "(6) An order of the Court under this section that money be paid out to an administrator has effect as if it were an administration order under the Guardianship and Administration Act 2014 and, subject to the order of the Court, the administrator has all the powers and duties set out in Divisions 3, 4, 5 and 6 of Part 6 of that Act.". 45.3 In section 113(1), for "section 66 of the Guardianship and Administration Act 1986" substitute "section 198 of the Guardianship and Administration Act 2014". 45.4 In section 113B(1)(a), for "under the Guardianship and Administration Act 1986" substitute "or a guardian with powers in relation to a financial matter under the Guardianship and Administration Act 2014". 45.5 For section 113B(2) substitute-- "(2) The Senior Master ceases to have the powers conferred by subsection (1) if another person is appointed under the Guardianship and Administration Act 2014 as administrator of the estate of the person under disability or as guardian with powers in relation to a financial matter for that person.". 571241B.I-20/8/2014 213 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. 46 The Uniting Church in Australia Act 1977 46.1 In section 15(1)(d), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 47 Trustee Act 1958 47.1 In section 41(9)(a), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 48 Trustee Companies Act 1984 48.1 In section 14(2)-- (a) for "as an administrator under the Guardianship and Administration Act 1986" substitute "under the Guardianship and Administration Act 2014 as an administrator or as a guardian with powers in relation to a financial matter"; (b) for "administrator," substitute "administrator or guardian with powers in relation to a financial matter,". 48.2 In section 17(1)(c), for "an administrator appointed under the Guardianship and Administration Act 1986" substitute "an administrator or a guardian with powers in relation to a financial matter appointed under the Guardianship and Administration Act 2014". 49 Unclaimed Money Act 2008 49.1 In section 87(2)(c) and (3)(a)(iii), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 571241B.I-20/8/2014 214 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. 50 Victims of Crime Assistance Act 1996 50.1 In section 3(1), for the definition of guardian substitute-- "guardian, in relation to a victim or applicant (except in section 25(3) and (4)) does not include the Secretary within the meaning of the Children, Youth and Families Act 2005 or a guardian appointed under the Guardianship and Administration Act 2014;". 50.2 In section 25(4), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 50.3 In section 70A(4), for "section 66 of the Guardianship and Administration Act 1986" substitute "section 198 of the Guardianship and Administration Act 2014". 51 Victoria Police Act 2013 51.1 In section 246, in the definition of personal representative, in paragraph (b), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 51.2 In Schedule 1, in clauses 2(b) and 7(b), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 52 Victorian Inspectorate Act 2011 52.1 In section 22(1)(g), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 571241B.I-20/8/2014 215 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Sch. 53 Wills Act 1997 53.1 In section 29(d), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2014". 54 Workplace Injury Rehabilitation and Compensation Act 2013 54.1 For section 310(3)(a) substitute-- "(a) if proceedings have not been commenced in respect of the worker's claim-- (i) an administrator appointed in respect of the worker under the Guardianship and Administration Act 2014; or (ii) a guardian with powers in relation to a financial matter appointed in respect of the worker under the Guardianship and Administration Act 2014; or". 571241B.I-20/8/2014 216 BILL LA INTRODUCTION 20/8/2014

 


 

Guardianship and Administration Bill 2014 Endnotes ENDNOTES By Authority. Government Printer for the State of Victoria. 571241B.I-20/8/2014 217 BILL LA INTRODUCTION 20/8/2014

 


 

 


[Index] [Search] [Download] [Related Items] [Help]