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Judicial College of Victoria: A new era of support and empowerment

Judicial College of Victoria: A new era of support and empowerment

By Andrix Lim

Aged Persons Disabled Persons Guardianship 


The new Gu​ardianship and Administration Act 2019 (Vic) gives voice to the ‘will and preferences’ of people with a disability. The JCV has produced a succinct guide to help navigate the changes.

Recent reforms of guardianship and administration modernise the law in line with a more contemporary understanding of the rights of people with a disability and better supports their decision-making capacity.

For some people with mental illnesses, intellectual disabilities, dementia and acquired brain injuries, the difficult reality is that their condition may impair their capacity to make decisions over their personal or financial matters on their own.

Historically, guardians and administrators have been appointed with a broad mandate to make decisions for people with a disability, or to support them to make decisions for themselves in cases of less severe or fluctuating mental ill-health.

However, time has marked a paradigm shift in perspective towards inclusion and empowerment for people with disabilities.

On 19 December 2018, Victorian Attorney-General Jill Hennessy introduced a Bill that made the most significant reforms in over 30 years to guardianship and administration law. This was intended to recognise the rights of people with a decision-making impairment and the responsibilities of those who interact with them, bringing the law into alignment with the United Nations’ Convention on the Rights of Persons with Disabilities and other similar Victorian legislation.

That Bill became the new Guardianship and Administration Act 2019 (Vic) and commenced on 1 March 2020. It legislated a new approach to decision-making capacity, introduced the supportive guardian and supportive administrator regime, and created a compensation process and offences to hold decision-makers accountable.

The biggest change is to reorient away from the paternalistic “best interests” of the represented person and instead require that “the will and preferences of a person with a disability should direct, as far as practicable, decisions made for that person”.

Where will and preferences cannot be determined, decision makers must act in a manner which promotes the person’s personal and social wellbeing. As noted by Justice Nichols in Andrews v Andrews [2020] VSC 31, the first case to cite the 2019 Act, “ … it will be incumbent upon an administrator to assist [the represented person] to express [their] will and preferences so that, as far as practicable, [their] wishes direct the decisions made for [them].”

This focus on the individual represents a milestone in the way Victoria upholds the rights and meets the needs of people with disabilities into the future.

Everyone from VCAT members, lawyers, medical experts and the wider profession now face a somewhat uncertain transitional period of navigating the new Act and applying the changes. That is where the Judicial College of Victoria’s Guide to the Guardianship and Administration Act 2019 (Vic) aims to assist.

The guide is a clear and succinct publication that assists VCAT members to understand the changes to the law and what they need to do. It summarises relevant principles and discussion from existing authorities, legislative materials and reports of government and law reform bodies, providing a comprehensive precis to how the new Act operates.

The guide is separated into different orders and topics – not only on guardianship and administration orders, but also on supportive orders, special medical procedures and missing person administration orders, and discussion on disability, capacity and the new principles enshrined in the Act. It is intended to be convenient and accessible, allowing readers to quickly refer to the parts they need.

A warm thank you goes to deputy president Genevieve Nihill and senior member Bernadette Steele for their expert guidance and contributions to its development.

The guide has been published on our website and is available to the general public.

The Act’s many changes to guardianship and administration mark a step forward in protecting and promoting the human rights and dignity of persons with a disability. It’s hoped this guide assists in navigating this new era of support and empowerment. 

Andrix Lim is a Research and Innovation Officer at the JCV, with an interest in research and analysis of legal trends. A lawyer who has worked in Singapore, and in Queensland with LawRight, he writes ‘Out on a Lim’, a daily digest for the Victorian judiciary.

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