Guardianship and Administration Act 2019

Authorised by the Chief Parliamentary Counsel Authorised Version i Guardianship and Administration Act 2019 No. 13 of 2019 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 2 3 Definitions 2 4 Meaning of promote the personal and social wellbeing of a person 9 5 Meaning of decision-making capacity 10 6 Assessing decision-making capacity 11 7 Primary object 11 8 General principles 12 9 Decision-making principles 13 Part 2—The Public Advocate 15 10 Public Advocate 15 11 Terms and conditions of appointment 15 12 Resignation and vacancy 15 13 Acting Public Advocate 17 14 Oath or affirmation 18 15 Functions of the Public Advocate 18 16 Powers and duties of the Public Advocate 19 17 Powers of inspection 23 18 Public Advocate employees 25 19 Delegation 25 20 Confidentiality 25 21 Annual report 27 Part 3—Guardianship orders and administration orders 28 Division 1—Applications for guardianship orders and administration orders 28 22 Application for guardianship orders 28 23 Application for administration orders 28 24 Matters to be included in application to VCAT 29 25 Who are the parties to a proceeding on an application? 30 26 Who is entitled to notice of an application, the hearing and any order made in the proceeding? 30 27 Contents of notice of application 31 -- 1 of 192 -- Section Page ii Authorised by the Chief Parliamentary Counsel 28 Date for hearing of application for guardianship order or administration order 32 29 Participation of proposed represented person at hearing 32 Division 2—Making guardianship orders and administration orders and eligibility of persons appointed 33 30 VCAT may make a guardianship order or administration order 33 31 Factors to consider in determining need for guardian or administrator 34 32 Persons eligible as guardians or administrators 35 33 Other matters pertaining to appointments 38 34 Matters to be specified in guardianship orders and administration orders 38 35 Statement of wishes for future appointment may be lodged 39 36 Urgent guardianship orders and urgent administration orders 40 37 Hearing after making of urgent guardianship order or urgent administration order 40 Division 3—Powers of guardians 41 38 Powers of guardians 41 39 Matters for which power cannot be given under a guardianship order 41 40 Power for guardian to undertake legal proceedings 42 Division 4—Duties of guardians 43 41 Exercise of power by guardian 43 42 Guardian to report death of represented person 44 Division 5—Other matters pertaining to applications for guardianship orders and to guardianship orders 44 43 Special order in relation to proposed represented person unlawfully detained or at risk of harm 44 44 Guardian may seek advice from VCAT 46 45 Order for represented person to comply with guardian's decisions 46 Division 6—Powers of administrators 47 46 Powers of administrators 47 47 Power to make gifts 48 48 Powers of investment 49 49 Power to open will deposited with administrator 50 50 Power to exercise certain powers vested in represented person 50 51 Power for administrator to undertake legal proceedings 51 52 Other powers that may be specified in administration order 52 53 Matters for which power cannot be given under an administration order 54 54 Powers of administrator cease on death of represented person 55 -- 2 of 192 -- Section Page iii Authorised by the Chief Parliamentary Counsel Division 7—Duties of administrators 55 55 Exercise of power by administrator 55 56 Property of represented person 56 57 Conflict transactions 56 58 Permitted conflict transactions 57 59 Keeping records 58 60 Separation of administrator's property and the represented person's property 58 61 Accounts 58 62 Payments to person examining or auditing accounts 60 63 Administrator to report death of represented person 60 Division 8—Other matters pertaining to administration orders 60 64 Administrator may seek advice from VCAT 60 65 Administrator may seek advice from professional adviser 61 66 VCAT may open will 61 67 VCAT may compel production of will 62 68 VCAT may make copy of will available to administrator 62 69 VCAT to notify administrator if person ceases to be a represented person 62 70 Actions of administrator taken to be actions of former represented person 62 71 Administrator to pay to former represented person any money outstanding 63 72 Former represented person entitled to inspection of accounts 64 73 VCAT order that delivery of, or access to, documents be withheld 64 74 Sale of personal effects if unclaimed within 2 years after person ceases to be represented person 65 75 Restriction on powers of represented person in relation to financial matters 65 76 Interest of represented person in property not to be altered by sale or other disposition of property 66 77 Guardianship and Administration Fund 67 78 Application to VCAT by represented person or a person interested 68 Part 4—Supportive guardianship orders and supportive administration orders 69 Division 1—Application for supportive guardianship orders and supportive administration orders 69 79 Application for supportive guardianship order 69 80 Application for supportive administration order 69 81 Matters to be included in application to VCAT 70 82 Who are the parties to a proceeding on an application? 71 -- 3 of 192 -- Section Page iv Authorised by the Chief Parliamentary Counsel 83 Who is entitled to notice of an application, the hearing and any order made in the proceeding? 71 84 Contents of notice of application 72 85 Date for hearing of application for supportive guardianship order or supportive administration order 73 86 Participation of proposed supported person at hearing 73 Division 2—Making supportive guardianship orders and supportive administration orders and eligibility of persons appointed 74 87 VCAT may make a supportive guardianship order or supportive administration order 74 88 Persons eligible as supportive guardians or supportive administrators 75 89 Matters to be specified in supportive guardianship orders and supportive administration orders 76 Division 3—Powers and duties of supportive guardians and supportive administrators 77 90 Powers of supportive guardians or supportive administrators 77 91 Information power 78 92 Communication power 79 93 Power to give effect to decisions 79 94 Duties and obligations of supportive guardians and supportive administrators 80 Division 4—General 81 95 No entitlement to remuneration 81 96 When does a supportive guardianship order or supportive administration order cease to have effect? 81 97 Advice from VCAT 82 98 Supportive guardian or supportive administrator to report death of supported person 83 Part 5—Administration (missing person) orders 84 Division 1—Application for administration (missing person) orders 84 99 Application for administration (missing person) orders 84 100 Matters to be included in application to VCAT 84 101 Who are the parties to a proceeding on an application? 85 102 Who is entitled to notice of an application, the hearing and any order made in the proceeding? 85 103 Contents of notice of application 86 104 Date for hearing of application for administration (missing person) order 87 -- 4 of 192 -- Section Page v Authorised by the Chief Parliamentary Counsel Division 2—Making administration (missing person) orders and eligibility of persons appointed 87 105 VCAT may make administration (missing person) order 87 106 Duration of order 89 107 Persons eligible as administrators for missing persons 90 108 Matters to be specified in administration (missing person) orders 92 109 Urgent administration (missing person) orders 92 Division 3—Powers of administrators for missing persons 93 110 Powers of administrators for missing persons 93 111 Powers of investment 94 112 Power to open will 94 113 Power to undertake legal proceedings 95 114 Other powers that may be specified in administration (missing person) order 95 115 Matters for which power cannot be given under an administration (missing person) order 97 Division 4—Duties of administrators under administration (missing person) orders 98 116 Exercise of power by administrator 98 117 Property of missing person 99 118 Conflict transactions 100 119 Permitted conflict transactions 100 120 Keeping records 101 121 Separation of administrator's property and missing person's property 101 122 Accounts 101 123 Payments to person examining or auditing accounts 102 124 Administrator to notify VCAT about status of missing person 103 Division 5—Other matters pertaining to administration (missing person) orders 103 125 Administrator may seek advice from VCAT 103 126 Administrator may seek advice from professional adviser 104 127 VCAT may open will 104 128 VCAT may compel production of will 104 129 VCAT may make copy of will available to administrator 105 130 VCAT to notify administrator if person ceases to be a missing person 105 131 Actions of administrator taken to be actions of former missing person 105 132 Administrator to pay to former missing person any money outstanding 106 133 Former missing person entitled to inspection of accounts 107 -- 5 of 192 -- Section Page vi Authorised by the Chief Parliamentary Counsel 134 VCAT order that delivery of, or access to, documents be withheld 108 135 Sale of personal effects if unclaimed within 2 years after person ceases to be missing person 108 136 Interest of missing person in property not to be altered by sale or other disposition of property 109 137 Application to VCAT by a person interested 110 138 Order to revoke administration (missing person) order 110 139 Part does not exclude Administration and Probate Act 1958 111 Part 6—Special medical procedures 112 140 Definitions 112 141 VCAT may consent to special medical procedure 112 142 Effect of consent 113 143 Application for VCAT's consent to special medical procedure 113 144 Date for hearing 114 145 Consent of VCAT to special medical procedure 114 146 VCAT may confer authority to consent to continuing or further special medical procedure 116 147 Special medical procedure without consent of VCAT an offence 117 148 Refusal of consent to special medical procedure under an instructional directive 118 149 Unlawful consent to special medical procedure an offence 118 Part 7—Rehearings and reassessment of orders 119 Division 1—Rehearings 119 150 Application for rehearing of application for order 119 151 Application for rehearing of reassessment of order 119 152 When may application for rehearing of application or for leave to apply for rehearing of application or rehearing of reassessment be made? 119 153 Matters for which application for rehearing cannot be made 120 154 Who are the parties to a rehearing? 120 155 Who is entitled to notice of an application for a rehearing? 121 156 Participation of proposed represented person or represented person at hearing 121 157 Rehearing 122 158 Effect of first instance order pending rehearing 122 Division 2—Reassessment of orders 123 159 Reassessment 123 160 Matters to be included in application to VCAT 123 161 Who are the parties to a reassessment? 124 162 Who is entitled to notice of a reassessment, the hearing and any order made in the proceeding? 125 -- 6 of 192 -- Section Page vii Authorised by the Chief Parliamentary Counsel 163 Contents of notice of application for a reassessment 125 164 Conduct of reassessment on VCAT's initiative 127 165 Participation of represented person or supported person at hearing 128 166 VCAT to consider role of appointed person 129 167 Order after reassessment 129 Part 8—Interstate orders 130 168 Application of Part 130 169 Definitions 130 170 Corresponding laws and orders 131 171 Ministerial agreements 131 172 Registration of interstate orders 131 173 Reassessment of interstate orders 132 174 Reciprocal arrangements under the State Trustees (State Owned Company) Act 1994 133 Part 9—General provisions 134 175 Remuneration of administrators 134 176 Costs incurred by administrator 135 177 Resolution of disagreements between persons appointed as guardians or administrators 135 178 Enforcement orders 137 179 Matters before a Court 138 180 Effect of setting aside administration order or administration (missing person) order on previous actions of administrator 140 181 Compensation for acts of guardian or administrator 140 182 Relief from personal liability 141 183 Who can apply for an order for compensation? 141 184 Time limit for application for order for compensation 142 185 VCAT may refer matter to Supreme Court 142 186 No compensation 142 187 Judicial notice 142 188 Offence for guardian to use guardianship order dishonestly 143 189 Offence for administrator to use administration order dishonestly 143 190 Offence for administrator to use administration (missing person) order dishonestly 144 191 Offence for supportive guardian to use supportive guardianship order dishonestly 144 192 Offence for supportive administrator to use supportive administration order dishonestly 145 193 Criminal liability of officers of bodies corporate—failure to exercise due diligence 145 194 Regulations 147 195 Transitional regulations 148 -- 7 of 192 -- Section Page viii Authorised by the Chief Parliamentary Counsel Part 10—Repeal of Guardianship and Administration Act 1986 and savings and transitional provisions 150 196 Definitions 150 197 Guardianship and Administration Act 1986 repealed 150 198 Guardianship orders made under the old Act 151 199 Administration orders made under the old Act 152 200 Administration orders made under the old Act in respect of the estate of a missing person 154 201 Applications made under the old Act for guardianship orders and administration orders 155 202 Special medical procedures 156 203 Rehearings of orders made under the old Act 157 204 Reassessments of orders made under the old Act 157 205 Interstate orders 158 206 VCAT may make orders of a transitional nature 158 Part 11—Amendment of Victorian Civil and Administrative Tribunal Act 1998 and other Acts 159 Division 1—Victorian Civil and Administrative Tribunal Act 1998 159 207 Definitions 159 208 What is review jurisdiction? 159 209 Proceeding files 159 210 Heading to Part 9 of Schedule 1 substituted 159 211 Constitution of Tribunal for proceedings 160 212 Notification of commencement 161 213 Public Advocate may intervene or be joined 161 214 Withdrawal of application does not preclude future application 161 215 Referral to administrators for report 162 216 Proceeding not invalidated by failure to give notice 162 217 Confidentiality of proceedings 162 218 New clause 37A inserted 162 219 Settlement offers 163 220 Subject matter for rules 163 Division 2—Amendments to other Acts 163 221 Consequential amendments 163 222 Repeal of Part 11 and Schedule 1 163 Schedule 1—Consequential amendments 164 ═════════════ Endnotes 184 1 General information 184 -- 8 of 192 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Guardianship and Administration Act 2019† No. 13 of 2019 [Assented to 4 June 2019] 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 Victoria -- 9 of 192 -- Part 1—Preliminary Guardianship and Administration Act 2019 No. 13 of 2019 2 Authorised by the Chief Parliamentary Counsel (c) to make consequential amendments to various other Acts. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 March 2020, it comes into operation on that day. 3 Definitions (1) In this Act— administration (missing person) order means an order made under section 105 that appoints a person as an administrator; administration order means an order made under section 30 that appoints a person as an administrator; administrator means the person appointed as an administrator in relation to one or more specified financial matters— (a) in an administration order; or (b) in an administration (missing person) order; close friend of a person means another person who has a close personal relationship with the first person and a personal interest in the first person's welfare; determination, in relation to VCAT, includes an order, direction, consent, advice and approval; disability, in relation to a person, means neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability or dementia; -- 10 of 192 -- Part 1—Preliminary Guardianship and Administration Act 2019 No. 13 of 2019 3 Authorised by the Chief Parliamentary Counsel domestic partner of a person means— (a) a person who is in a registered relationship with the person; or (b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person— (i) for fee or reward; or (ii) on behalf of another person or an organisation (including a government, a government agency, a body corporate or a charitable or benevolent organisation); financial matter, in relation to a person, means any matter relating to the person's financial or property affairs and includes any legal matter that relates to the financial or property affairs of the person; Examples The following are examples of financial matters— (a) making money available to the person for the person's personal expenditure; (b) paying expenses for the person and any dependants of the person relating to the maintenance and accommodation of the person and any dependants, including purchasing an interest in, or making a contribution to, a -- 11 of 192 -- Part 1—Preliminary Guardianship and Administration Act 2019 No. 13 of 2019 4 Authorised by the Chief Parliamentary Counsel property to accommodate the person or any dependants of the person or otherwise making payments in relation to such property; (c) paying any debts of the person, including any fees and expenses to which an administrator is legally entitled; (d) receiving and recovering money payable to the person; (e) carrying on any trade or business of the person; (f) performing any contracts entered into by the person; (g) discharging any mortgage over the person's property; (h) paying rates, taxes and insurance premiums or other outgoings for the person's property; (i) insuring the person or the person's property; (j) otherwise preserving or improving the person's property; (k) making investments for the person; (l) continuing investments of the person, including taking up rights to issues of new shares or options for new shares to which the person becomes entitled by the person's existing shareholding; (m) undertaking any real estate transaction for the person; (n) dealing with land for the person; (o) undertaking a beneficial transaction for the person involving the use of the person's property as security for an obligation, including taking out a loan on behalf of the person or giving a guarantee on behalf of the person; (p) withdrawing money from or depositing money into an account of the person with a financial institution. -- 12 of 192 -- Part 1—Preliminary Guardianship and Administration Act 2019 No. 13 of 2019 5 Authorised by the Chief Parliamentary Counsel guardian (except in section 50(2)(a)) means a person appointed in a guardianship order as a guardian in relation to one or more specified personal matters; guardianship order means an order made under section 30 that appoints a person as a guardian; income includes rents and profits; legal matter in relation to a person means— (a) the use of legal services for the person's benefit; or (b) bringing or defending a legal proceeding or hearing in a court, tribunal or other body on behalf of the person, including settling a claim before or after a legal proceeding or hearing starts; Examples The following are examples of legal matters— (a) the use of legal services to obtain information about the person's legal rights; (b) the use of legal services to make a transaction. medical treatment decision has the same meaning as in the Medical Treatment Planning and Decisions Act 2016; missing person means a person determined to be a missing person under section 105(3); nearest relative means the relative first listed in the definition of relative who is of or over 18 years of age, the elder or eldest of 2 or more relatives described in any paragraph being preferred to any other so described; -- 13 of 192 -- Part 1—Preliminary Guardianship and Administration Act 2019 No. 13 of 2019 6 Authorised by the Chief Parliamentary Counsel personal matter, in relation to a person, means any matter relating to the person's personal or lifestyle affairs, and includes any legal matter that relates to the person's personal or lifestyle affairs; Examples The following are examples of personal matters— (a) where and with whom the person lives; (b) other persons with whom the person associates; (c) whether the person works and, if so, the kind and place of work and employer; (d) whether the person undertakes education or training and if so, the kind of education or training and the place where it takes place; (e) daily living issues such as diet and dress; (f) medical treatment decisions, excluding decisions about matters provided for in Part 6. police officer has the same meaning as in the Victoria Police Act 2013; primary carer has the same meaning as in the Medical Treatment Planning and Decisions Act 2016; principal registrar means the principal registrar of VCAT; proposed represented person means a person in relation to whom an application is made under section 22 or 23; proposed supported person means a person in relation to whom VCAT considers making a supportive guardianship order or supportive administration order under section 87; Public Advocate means the person appointed as the Public Advocate, being the office continued in existence by section 10; -- 14 of 192 -- Part 1—Preliminary Guardianship and Administration Act 2019 No. 13 of 2019 7 Authorised by the Chief Parliamentary Counsel Public Advocate employee means a person referred to in section 18 and employed to enable the Public Advocate to exercise the Public Advocate's powers, carry out the Public Advocate's functions or perform the Public Advocate's duties; regulations means regulations made under this Act; relative means any of the following— (a) a spouse or domestic partner; (b) a child; (c) a parent; (d) a step-parent; (e) a sibling; (f) a step-sibling; (g) a grandparent; (h) a grandchild; (i) an uncle or aunt; (j) a nephew or niece; represented person means— (a) a person in relation to whom a guardianship order has effect; or (b) a person in relation to whom an administration order has effect; spouse of a person means a person to whom the person is married; State Trustees has the same meaning as in the State Trustees (State Owned Company) Act 1994; -- 15 of 192 -- Part 1—Preliminary Guardianship and Administration Act 2019 No. 13 of 2019 8 Authorised by the Chief Parliamentary Counsel supported decision means— (a) in the case of a supportive guardianship order, a decision about a personal matter that is specified in the order; and (b) in the case of a supportive administration order, a decision about a financial matter that is specified in the order; supported person means a person in relation to whom a supportive guardianship order or a supportive administration order has effect; supportive administration order means an order made under section 87 that appoints a person as supportive administrator; supportive administrator means a person appointed in a supportive administration order as supportive administrator in relation to one or more specified financial matters; supportive guardian means a person appointed in a supportive guardianship order as supportive guardian in relation to one or more specified personal matters; supportive guardianship order means an order made under section 87 that appoints a person as supportive guardian; VCAT Act means the Victorian Civil and Administrative Tribunal Act 1998. (2) For the purposes of the definition of domestic partner in subsection (1)— (a) registered relationship has the same meaning as in the Relationships Act 2008; and -- 16 of 192 -- Part 1—Preliminary Guardianship and Administration Act 2019 No. 13 of 2019 9 Authorised by the Chief Parliamentary Counsel (b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and (c) a person is not a domestic partner of another person only because they are co-tenants. (3) A reference in the definition of relative in subsection (1) to a person's sibling includes a reference to a person who was adopted by one or both of the person's parents. 4 Meaning of promote the personal and social wellbeing of a person For the purposes of this Act, and without limiting the ways in which this may occur, the personal and social wellbeing of a person is promoted by— (a) recognising the inherent dignity of the person; and (b) respecting the person's individuality; and (c) having regard to the person's existing supportive relationships, religion, values and cultural and linguistic environment; and (d) respecting the confidentiality of confidential information relating to the person; and (e) recognising the importance to the person of any companion animal the person has and having regard to the benefits that may be obtained from the person having any companion animal. -- 17 of 192 -- Part 1—Preliminary Guardianship and Administration Act 2019 No. 13 of 2019 10 Authorised by the Chief Parliamentary Counsel 5 Meaning of decision-making capacity (1) For the purposes of this Act, a person has capacity to make a decision in relation to a matter (decision-making capacity) if the person is able— (a) to understand the information relevant to the decision and the effect of the decision; and (b) to retain that information to the extent necessary to make the decision; and (c) to use or weigh that information as part of the process of making the decision; and (d) to communicate the decision and the person's views and needs as to the decision in some way, including by speech, gesture or other means. (2) For the purposes of subsection (1), a person is presumed to have decision-making capacity unless there is evidence to the contrary. (3) For the purposes of subsection (1)(a), a person is taken to understand the information relevant to a decision if the person understands an explanation of the information given to the person in a way that is appropriate to the person's circumstances, whether by using modified language, visual aids or any other means. (4) In determining whether a person has decision-making capacity, regard must be had to the following— (a) a person may have decision-making capacity in relation to some matters and not others; (b) if a person does not have decision-making capacity in relation to a matter, it may be temporary; -- 18 of 192 -- Part 1—Preliminary Guardianship and Administration Act 2019 No. 13 of 2019 11 Authorised by the Chief Parliamentary Counsel (c) it should not be assumed that a person does not have decision-making capacity in relation to a matter on the basis of the person's appearance; (d) it should not be assumed that a person does not have decision-making capacity in relation to a matter merely because the person makes a decision that, in the opinion of others, is unwise; (e) a person has decision-making capacity in relation to a matter if it is possible for the person to make the decision with practicable and appropriate support. Examples The following are examples of practicable and appropriate support— (a) using information or formats tailored to the particular needs of a person; (b) communicating or assisting a person to communicate the person's decision; (c) giving a person additional time and discussing the matter with the person; (d) using technology that alleviates the effects of a person's disability. 6 Assessing decision-making capacity For the purposes of this Act, a person who is assessing whether a person has decision-making capacity in relation to a matter must take reasonable steps to conduct the assessment at a time at which, and in an environment in which, the person's decision-making capacity can be assessed most accurately. 7 Primary object (1) The primary object of this Act is to protect and promote the human rights and dignity of persons with a disability by— -- 19 of 192 -- Part 1—Preliminary Guardianship and Administration Act 2019 No. 13 of 2019 12 Authorised by the Chief Parliamentary Counsel (a) having regard to the Convention on the Rights of Persons with Disabilities, recognising the need to support persons with a disability to make, participate in and implement decisions that affect their lives; and (b) if a guardianship order or administration order is made for such persons— (i) enabling VCAT to set safeguards and appropriate limitations on the powers of guardians and administrators when making such orders; and (ii) requiring VCAT to review regularly such orders; and (iii) providing guidance for guardians and administrators when making decisions for represented persons, as the case requires. (2) In this section, the Convention on the Rights of Persons with Disabilities means the United Nations Convention on the Rights of Persons with Disabilities, done at New York on 13 December 2006, as in force for Australia. 8 General principles (1) A person exercising a power, carrying out a function or performing a duty under this Act must have regard to the following principles— (a) a person with a disability who requires support to make decisions should be provided with practicable and appropriate support to enable the person, as far as practicable in the circumstances— (i) to make and participate in decisions affecting the person; and -- 20 of 192 -- Part 1—Preliminary Guardianship and Administration Act 2019 No. 13 of 2019 13 Authorised by the Chief Parliamentary Counsel (ii) to express the person's will and preferences; and (iii) to develop the person's decision-making capacity; (b) the will and preferences of a person with a disability should direct, as far as practicable, decisions made for that person; (c) powers, functions and duties under this Act should be exercised, carried out and performed in a way which is the least restrictive of the ability of a person with a disability to decide and act as is possible in the circumstances. (2) In subsection (1), the reference to a person exercising a power, carrying out a function or performing a duty under this Act includes VCAT. 9 Decision-making principles (1) A person making a decision for a represented person must have regard to the following principles— (a) the person should give all practicable and appropriate effect to the represented person's will and preferences, if known; (b) if the person is not able to determine the represented person's will and preferences, the person should give effect as far as practicable in the circumstances to what the person believes the represented person's will and preferences are likely to be, based on all the information available, including information obtained by consulting the represented person's relatives, close friends and carers; -- 21 of 192 -- Part 1—Preliminary Guardianship and Administration Act 2019 No. 13 of 2019 14 Authorised by the Chief Parliamentary Counsel (c) if the person is not able to determine the represented person's likely will and preferences, the person should act in a manner which promotes the represented person's personal and social wellbeing; (d) if the represented person has a companion animal, the person should act in a manner that recognises the importance of the companion animal to the represented person and any benefits the represented person obtains from the companion animal; (e) the represented person's will and preferences should only be overridden if it is necessary to do so to prevent serious harm to the represented person. (2) In this section, represented person— (a) has the meaning given in section 3(1); and (b) includes a missing person for whom an administration (missing person) order has effect. -- 22 of 192 -- Part 2—The Public Advocate Guardianship and Administration Act 2019 No. 13 of 2019 15 Authorised by the Chief Parliamentary Counsel Part 2—The Public Advocate 10 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. 11 Terms and conditions of appointment (1) The Public Advocate— (a) holds office for 7 years; and (b) is eligible for reappointment. (2) The Public Advocate is entitled to be paid the remuneration and allowances as are fixed by the Governor in Council from time to time. (3) The Public Advocate is not, in relation to the office of Public Advocate, subject to the Public Administration Act 2004 (other than Part 5 of that Act). 12 Resignation and vacancy (1) The Public Advocate ceases to hold office if the Public Advocate— (a) resigns by writing delivered to the Governor in Council; or (b) becomes insolvent under administration; or (c) is convicted of an indictable offence or of an offence which, if committed in Victoria, would be an indictable offence; or -- 23 of 192 -- Part 2—The Public Advocate Guardianship and Administration Act 2019 No. 13 of 2019 16 Authorised by the Chief Parliamentary Counsel (d) nominates for election for, or is elected to— (i) the Parliament of Victoria; or (ii) the Parliament of the Commonwealth or of another State or a Territory of the Commonwealth; or (iii) a Council, within the meaning of the Local Government Act 1989; or (e) is removed from office under subsection (4). (2) The Governor in Council, on the recommendation of the Minister, may suspend the Public Advocate from office on any of the following grounds— (a) the Public Advocate has engaged in paid employment outside the duties of the office without the approval of the Governor in Council; (b) the Public Advocate is unable to perform, or has neglected, the duties of the office of Public Advocate; (c) the Public Advocate has engaged in misconduct; (d) the Public Advocate has failed to disclose a material conflict of interest. (3) The Minister must cause to be laid before each House of the Parliament a full statement of the grounds of suspension of the Public Advocate within 7 sitting days after the suspension. (4) The Governor in Council must remove the Public Advocate from office if each House of the Parliament, within 7 sitting days after the day when the statement of the grounds of suspension is laid before it, declares by resolution that the Public Advocate ought to be removed from office. -- 24 of 192 -- Part 2—The Public Advocate Guardianship and Administration Act 2019 No. 13 of 2019 17 Authorised by the Chief Parliamentary Counsel (5) If both Houses of the Parliament do not within the period referred to in subsection (4) declare by resolution that the Public Advocate ought to be removed from office, the Governor in Council must remove the suspension and restore the Public Advocate to office. 13 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. (2) The Minister may appoint a person as Acting Public Advocate during the temporary absence or the suspension of the Public Advocate if the person— (a) previously has been appointed as Acting Public Advocate under subsection (1); and (b) has taken an oath or made an affirmation under section 14. (3) A person appointed under subsection (2) is not required to take another oath or make another affirmation under section 14. (4) The Minister may at any time revoke an appointment under subsection (2). (5) The Acting Public Advocate— (a) has all the powers and duties and may carry out any of the functions of the Public Advocate; and (b) is entitled to be paid the remuneration and allowances as are fixed by the Governor in Council from time to time; and -- 25 of 192 -- Part 2—The Public Advocate Guardianship and Administration Act 2019 No. 13 of 2019 18 Authorised by the Chief Parliamentary Counsel (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). 14 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 requires) will faithfully and impartially perform the duties of office. 15 Functions of the Public Advocate The functions of the Public Advocate are— (a) to promote the human rights of persons with a disability and the development of the ability of such persons to act independently; and (b) to protect persons with a disability from abuse, neglect and exploitation; and (c) to undertake advocacy for persons with a disability on a systemic or individual basis; and (d) to manage and coordinate programs that promote the human rights of persons with a disability; and (e) to encourage the development and operation of programs, services and facilities for persons with a disability that— (i) involve and engage persons with a disability in the provision of these services; and (ii) develop the ability of persons with a disability to act independently; and -- 26 of 192 -- Part 2—The Public Advocate Guardianship and Administration Act 2019 No. 13 of 2019 19 Authorised by the Chief Parliamentary Counsel (iii) promote accessibility of services for persons with a disability; and (iv) minimise restrictions on the human rights of persons with a disability; and (f) to promote and facilitate informed public awareness and understanding by disseminating information about— (i) the provisions of this Act and other legislation dealing with or affecting persons with a disability or persons who may not have decision-making capacity; and (ii) the role of VCAT and the Public Advocate; and (iii) services provided to persons with a disability; and (g) to investigate, report and make recommendations to the Minister in relation to— (i) any aspect of the operation of the Guardianship and Administration Act 2019; and (ii) any function conferred on the Public Advocate by or under this or any other Act; and (h) any other function conferred on the Public Advocate by or under this or any other Act. 16 Powers and duties of the Public Advocate (1) The Public Advocate— (a) if appointed by VCAT, may be a guardian; and -- 27 of 192 -- Part 2—The Public Advocate Guardianship and Administration Act 2019 No. 13 of 2019 20 Authorised by the Chief Parliamentary Counsel (b) may make an application to VCAT for— (i) the appointment of a guardian, a supportive guardian, an administrator or a supportive administrator; or (ii) the rehearing or reassessment of a guardianship order, a supportive guardianship order, an administration order or a supportive administration order; and (c) may advocate for the human rights and interests of a person with a disability (irrespective of the person's age) by— (i) seeking assistance from a government department, institution, welfare organisation or service provider for the purpose of promoting the personal and social wellbeing of the person; and (ii) making representations on behalf of, or acting for, the person; and (iii) involving members of the community in the provision of programs and services for persons with a disability; and (iv) reporting and making recommendations to VCAT on behalf of the person in any proceeding under the Equal Opportunity Act 2010; and (v) with the leave of a court or VCAT— (A) joining as a party to proceedings in the court or VCAT that involve the rights and interests of the person; and -- 28 of 192 -- Part 2—The Public Advocate Guardianship and Administration Act 2019 No. 13 of 2019 21 Authorised by the Chief Parliamentary Counsel (B) assisting the court or VCAT as amicus curiae in proceedings in the court or VCAT that involve the rights and interests of the person; and Note Clause 33 of Schedule 1 to the VCAT Act provides that the Public Advocate in a proceeding under this Act may intervene at any time and is entitled to be joined as a party. (d) may give advice to any person about the provisions of this Act, including an application for a guardianship order, a supportive guardianship order, an administration order, a supportive administration order or an administration (missing person) order; and (e) may provide information for persons who are, or are proposed to be, guardians, supportive guardians, administrators, supportive administrators or supportive attorneys (within the meaning of the Powers of Attorney Act 2014); and (f) may provide information for persons who are, or are proposed to be, support persons or medical treatment decision makers (both within the meaning of the Medical Treatment Planning and Decisions Act 2016); and (g) may investigate any complaint or allegation that a person is under inappropriate guardianship, is being exploited or abused or is in need of guardianship; and -- 29 of 192 -- Part 2—The Public Advocate Guardianship and Administration Act 2019 No. 13 of 2019 22 Authorised by the Chief Parliamentary Counsel (h) may engage a registered company auditor to carry out an inspection or an audit if required for the purposes of— (i) an investigation under paragraph (g); or (ii) the provision of a report under clause 35 or 51AH of Schedule 1 to the VCAT Act; and (i) subject to subsection (2), may require a person, government department, public authority, service provider, institution or welfare organisation to provide information for the purposes of— (i) an investigation under paragraph (g); or (ii) the provision of a report under clause 35, 48 or 51AH of Schedule 1 to the VCAT Act; and (j) may submit a report to VCAT on any matter referred by VCAT to the Public Advocate for a report; and (k) may perform any other function and exercise any other power conferred on the Public Advocate by this or any other Act. (2) It is a reasonable excuse for a person to refuse or fail to provide information that the person would otherwise be required to provide under subsection (1)(i) if providing the information would tend to incriminate the person. (3) If the Public Advocate is appointed as the guardian for a represented person— (a) the person for the time being holding the office or performing the functions of the Public Advocate is the guardian for that represented person; and -- 30 of 192 -- Part 2—The Public Advocate Guardianship and Administration Act 2019 No. 13 of 2019 23 Authorised by the Chief Parliamentary Counsel (b) the Public Advocate must use the Public Advocate's best endeavours to find an appropriate person to be appointed as the guardian. 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) subject to subsection (2), inspect any document relating to any such person or any record required to be kept under— (i) this Act; or (ii) the Disability Act 2006; or (iii) the Health Services Act 1988; or (iv) the Mental Health Act 2014; or (v) the Supported Residential Services (Private Proprietors) Act 2010. (2) Subsection (1)(d) does not authorise the Public Advocate to inspect— (a) a person's medical records unless the person consents; or (b) personnel records unless the person to whom the records relate consents. (3) The person in charge, and the members of staff or management, of an institution must provide the Public Advocate with any reasonable assistance -- 31 of 192 -- Part 2—The Public Advocate Guardianship and Administration Act 2019 No. 13 of 2019 24 Authorised by the Chief Parliamentary Counsel that the Public Advocate requires to perform or exercise any power, function or duty under this section effectively. (4) A person in charge, or a member of the staff or management, of an institution must not unreasonably refuse or neglect to give assistance when required to do so under subsection (3). Penalty: 25 penalty units. (5) A person in charge, or a member of the staff or management, of an institution must not refuse or fail to give full and true answers to the best of that person's knowledge to any questions asked by the Public Advocate in the performance or exercise of any power, function or duty under this section. Penalty: 25 penalty units. (6) A person in charge, or a member of the staff or management, of an institution must not assault, obstruct or threaten the Public Advocate in the performance or exercise of any power, function or duty under this section. Penalty: 25 penalty units. (7) In this section— institution means any of the following— (a) a disability service provider, residential service, residential institution or residential treatment facility, all within the meaning of the Disability Act 2006; (b) a designated public hospital within the meaning of the Health Services Act 1988; (c) a mental health service provider within the meaning of the Mental Health Act 2014; (d) a supported residential service within the meaning of the Supported Residential Services (Private Proprietors) Act 2010. -- 32 of 192 -- Part 2—The Public Advocate Guardianship and Administration Act 2019 No. 13 of 2019 25 Authorised by the Chief Parliamentary Counsel 18 Public Advocate employees There may be employed under Part 3 of the Public Administration Act 2004 any employees who are necessary to enable the Public Advocate to exercise the Public Advocate's powers, to carry out the Public Advocate's functions or to perform the Public Advocate's duties. 19 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 or any other Act, other than this power of delegation; (b) any or all of the Public Advocate's powers or duties in the Public Advocate's capacity as guardian; (c) despite section 25 of the Powers of Attorney Act 2014, any or all of the Public Advocate's powers or duties in the Public Advocate's capacity as an attorney under an enduring power of attorney within the meaning of that Act. (2) The Public Advocate may, with VCAT's approval, by instrument of delegation, delegate any or all of the Public Advocate's powers or duties in the Public Advocate's capacity as guardian to an individual (other than to a Public Advocate employee) or organisation specified in the instrument of delegation. 20 Confidentiality (1) This section applies to a person who is, or has been— (a) the Public Advocate; or -- 33 of 192 -- Part 2—The Public Advocate Guardianship and Administration Act 2019 No. 13 of 2019 26 Authorised by the Chief Parliamentary Counsel (b) an Acting Public Advocate; or (c) a Public Advocate employee. (2) A person must not, directly or indirectly, make a record of, disclose or communicate to any other person, any information relating to the affairs of an individual acquired in the exercise of a power, the carrying out of a function or the performance of a duty under this Act which may identify the individual unless— (a) it is necessary to do so for the purposes of, or in connection with, the exercise of a power, the carrying out of a function or the performance of a duty under this or any other Act; or (b) it is necessary to do so for the purposes of a criminal proceeding or any other proceeding under this or any other Act; or (c) the individual to whom the information relates gives written consent to the making of the record, disclosure or communication; or (d) it is necessary to do so for the purposes of enabling a guardian, supportive guardian, relative or primary carer of the individual to provide support or care to that individual; or (e) the information is disclosed or communicated to a police officer for the purposes of reporting a suspected offence or assisting in the investigation of a suspected offence; or (f) making the record of the information, or disclosing or communicating the information to any other person, is authorised by an Act or an Act of the Commonwealth or any other State or a Territory. Penalty: 60 penalty units. -- 34 of 192 -- Part 2—The Public Advocate Guardianship and Administration Act 2019 No. 13 of 2019 27 Authorised by the Chief Parliamentary Counsel 21 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 on the Public Advocate's performance of the Public Advocate's functions under this and any other Act during the 12 months ending on the preceding 30 June. (2) The Minister must cause a report submitted under subsection (1) to be laid before each House of the Parliament within 14 sitting days of that House after it is received by the Minister. -- 35 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 28 Authorised by the Chief Parliamentary Counsel Part 3—Guardianship orders and administration orders Division 1—Applications for guardianship orders and administration orders 22 Application for guardianship orders A person may apply to VCAT for a guardianship order that appoints a guardian for a person with a disability who is— (a) of or over 18 years of age; or (b) under 18 years of age but the order takes effect on that person attaining 18 years of age. 23 Application for administration orders (1) A person may apply to VCAT for an administration order that appoints an administrator for a person with a disability who is— (a) of or over 18 years of age; or (b) under 18 years of age but the order takes effect on that person attaining 18 years of age. (2) Subject to subsection (1), if the person for whom an administration order is sought does not reside in Victoria but the person's property is partly or wholly in Victoria, an application may be made for an administration order appointing an administrator for the person in relation to that part of the property that is in Victoria. -- 36 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 29 Authorised by the Chief Parliamentary Counsel 24 Matters to be included in application to VCAT A person applying to VCAT for an order under this Division must include the following in the application— (a) the name and contact details of the proposed represented person; (b) the type of order applied for, including details of the personal matter or financial matter in relation to which the order is sought; (c) details of the reasons for making the application; (d) the name and contact details of any person proposed as guardian or administrator; (e) the name and contact details of the applicant and of any person who has a direct interest in the application (if known to the applicant); Note Persons having a direct interest includes, amongst others, the proposed represented person's relatives, any primary carer, close friends, any attorney appointed under an enduring power of attorney and any supportive attorney appointed under the Powers of Attorney Act 2014. (f) any support needs of the proposed represented person including support provided to the proposed represented person by any companion animal of the proposed represented person. Note Section 67 of the VCAT Act sets out additional requirements in relation to making an application. -- 37 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 30 Authorised by the Chief Parliamentary Counsel 25 Who are the parties to a proceeding on an application? The following persons are parties to a proceeding on an application under this Division— (a) the applicant; (b) the proposed represented person; (c) the person proposed as guardian or administrator, as the case requires; (d) in the case of an application for a guardianship order, any current administrator for the proposed represented person; (e) in the case of an application for an administration order, any current guardian for the proposed represented person; (f) any other person VCAT orders to be joined as a party to the proceeding. Note Section 60 of the VCAT Act provides that VCAT may in certain circumstances order that a person be joined as a party to a proceeding. 26 Who is entitled to notice of an application, the hearing and any order made in the proceeding? For the purposes of sections 72(1), 99(1) and 116(2) of the VCAT Act, the following persons are entitled to a notice referred to in each of those sections— (a) any party to a proceeding on an application under this Part; (b) the spouse or domestic partner of the proposed represented person, if any; (c) the primary carer of the proposed represented person, if any; -- 38 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 31 Authorised by the Chief Parliamentary Counsel (d) any person referred to in the application as having a direct interest in the application; (e) in the case of an application for a guardianship order, the Public Advocate, if no person is proposed as guardian; (f) any other person VCAT directs be given notice. Note Section 72(1) of the VCAT Act provides that an applicant for a VCAT order must serve a copy of the application on each party, each other person entitled to notice of the application under the enabling enactment (which is this Act) and each other person that VCAT so directs. Section 99(1)(b) of the VCAT Act provides that the principal registrar of VCAT must give notice of the time and place for the hearing of a proceeding to a person entitled to notice of the proceeding or hearing under the enabling enactment. Section 116(2)(a) of the VCAT Act provides that VCAT must give a copy of any order it makes in a proceeding to each party and each other person entitled to notice of the proceeding or of the order under the enabling enactment. 27 Contents of notice of application (1) A notice of an application given to a party to the application must include the following— (a) a copy of the application and any information filed in support of the application, subject to clause 37A of Part 9 of Schedule 1 to the VCAT Act; Note Clause 37A of Part 9 of Schedule 1 to the VCAT Act provides that a person may make an application to the principal registrar of VCAT that any documents lodged in relation to a proceeding under this Act not be disclosed to a specified person or class of persons. (b) the names of— (i) the parties to the proceeding; and (ii) the other persons entitled to the notice under section 26; -- 39 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 32 Authorised by the Chief Parliamentary Counsel (c) information about the rights of the party in relation to the application. (2) A notice of an application given to a person referred to in section 26 who is not a party to the application must include the following— (a) a copy of the application; (b) the names of— (i) the parties to the proceeding; and (ii) the other persons entitled to the notice under section 26; (c) information about the rights of the person to seek information about the application; (d) information about how to apply to VCAT to be made a party to the proceeding. 28 Date for hearing of application for guardianship order or administration order VCAT must commence to hear an application made under this Division within 30 days after the day on which the application is received by VCAT unless VCAT or the principal registrar under Division 5 of Part 4 of the VCAT Act— (a) requires the parties to attend a compulsory conference in relation to the application; or (b) refers the proceeding in relation to the application, or any part of it, for mediation. 29 Participation of proposed represented person at hearing The proposed represented person must attend in person a hearing conducted by VCAT in relation to an application made under this Division unless VCAT is satisfied that— (a) the proposed represented person does not wish to attend the hearing in person; or -- 40 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 33 Authorised by the Chief Parliamentary Counsel (b) the personal attendance of the proposed represented person at the hearing is impracticable or unreasonable, despite any arrangement that VCAT may make. Note See section 100(1) of the VCAT Act which provides that if VCAT thinks it appropriate, it may conduct all or part of a proceeding by means of a conference conducted using telephones, video links or any other system of telecommunication. Division 2—Making guardianship orders and administration orders and eligibility of persons appointed 30 VCAT may make a guardianship order or administration order (1) After considering an application made under Division 1— (a) VCAT may make one or more of the following orders— (i) a guardianship order, subject to subsection (2); (ii) an administration order, subject to subsection (2); (iii) a supportive guardianship order under section 87, subject to Part 4; (iv) supportive administration order under section 87, subject to Part 4; or (b) VCAT may make no order under this Act. Note See sections 34(1)(f) and 36 in relation to guardianship orders and administration orders that are urgent orders. (2) VCAT may only make a guardianship order or an administration order under this Division if satisfied that— -- 41 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 34 Authorised by the Chief Parliamentary Counsel (a) because of the proposed represented person's disability, the person does not have decision-making capacity in relation to— (i) in the case of a guardianship order, the personal matter in relation to which the order is sought; or (ii) in the case of an administration order, the financial matter in relation to which the order is sought; and (b) the proposed represented person is in need of a guardian or administrator, as the case requires; and Note Section 31 sets out factors to consider in determining whether a person is in need of a guardian or an administrator. (c) the guardianship order or administration order, as the case requires, will promote the proposed represented person's personal and social wellbeing; and (d) in the case of an application for an administration order for a proposed represented person who does not reside in Victoria, State Trustees has not been authorised under section 12 of the State Trustees (State Owned Company) Act 1994 to collect, manage, sell or otherwise dispose of or administer any property in Victoria in relation to which the administration order is sought. 31 Factors to consider in determining need for guardian or administrator For the purposes of section 30(2)(b), in determining whether a person is in need of a guardian or administrator, VCAT must consider the following— -- 42 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 35 Authorised by the Chief Parliamentary Counsel (a) the will and preferences of the proposed represented person (so far as they can be ascertained); (b) whether decisions in relation to the personal or financial matter for which the order is sought— (i) may more suitably be made by informal means; or (ii) may reasonably be made through negotiation, mediation or similar means; (c) the wishes of any primary carer or relative of the proposed represented person or other person with a direct interest in the application; (d) the desirability of preserving existing relationships that are important to the proposed represented person. 32 Persons eligible as guardians or administrators (1) VCAT may appoint as a guardian any individual who is of or over the age of 18 years and who consents to act as guardian if VCAT is satisfied that the individual— (a) will act in accordance with the duties set out in Division 4; and (b) is not in a position where the individual's interests conflict, or may conflict, with the interests of the proposed represented person; and (c) is a suitable person to act as the guardian for the proposed represented person. -- 43 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 36 Authorised by the Chief Parliamentary Counsel (2) VCAT may appoint as an administrator any person (individual or body corporate) which, in the case of an individual, is of or over the age of 18 years and which consents to act as administrator if VCAT is satisfied that the person— (a) will act in accordance with the duties set out in Division 7; and (b) is not in a position where the person's interests conflict, or may conflict, with the interests of the proposed represented person; and (c) is a suitable person to act as the administrator in relation to the proposed represented person; and (d) has sufficient expertise to make decisions about any financial matter to be specified in the administration order. (3) In determining whether a person is a suitable person to act as a guardian or administrator for a proposed represented person, VCAT must take into account the following— (a) the will and preferences of the proposed represented person (so far as they can be ascertained); (b) the desirability of preserving existing relationships that are important to the proposed represented person; (c) the desirability of appointing a person who is a relative of the proposed represented person, or who has a personal relationship with the proposed represented person, rather than appointing a person with no such relationship; -- 44 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 37 Authorised by the Chief Parliamentary Counsel (d) whether the person will be available to the proposed represented person and able to meet and communicate with the proposed represented person; (e) whether the person will act cooperatively with any current guardian or administrator for the proposed represented person (as the case requires); (f) whether, in the case of an administration order, the person proposed as administrator is or was a member of VCAT as constituted for a proceeding under this Act. (4) VCAT may appoint as an administrator a person who was at any time a member of VCAT as constituted for a proceeding under this Act if VCAT considers that in the circumstances it is appropriate for the person to act as an administrator. (5) VCAT must not assume without any evidence that a proposed represented person's relative who is proposed as the guardian or administrator— (a) has interests that conflict, or may conflict, with those of the proposed represented person merely because the proposed guardian or administrator is a relative of the proposed represented person; or (b) is not suitable to be appointed as the guardian or administrator merely because that relative disagrees with another relative of the proposed represented person about a matter pertaining to the proposed represented person. (6) If a statement of wishes for a future appointment was lodged under section 35, VCAT must consider that statement. -- 45 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 38 Authorised by the Chief Parliamentary Counsel 33 Other matters pertaining to appointments (1) VCAT may appoint the Public Advocate as guardian for a proposed represented person if VCAT is satisfied that no other person fulfils the requirements of section 32 for appointment as a guardian for the proposed represented person. (2) Despite anything to the contrary in subsection (1), VCAT may appoint persons (including the Public Advocate or any other person) as joint guardians for the proposed represented person if— (a) each person fulfils the relevant requirements of section 32; and (b) VCAT considers it appropriate to do so. 34 Matters to be specified in guardianship orders and administration orders (1) A guardianship order must specify the following— (a) the name of the represented person; (b) the name of the guardian; (c) the personal matters in relation to which the guardian has powers; (d) whether VCAT specifically confers on the guardian the power to undertake legal proceedings under section 40; (e) any restrictions on the guardian's exercise of a power referred to in paragraph (c) or (d); (f) whether the order is an urgent order. (2) An administration order must specify the following— (a) the name of the represented person; (b) the name of the administrator; -- 46 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 39 Authorised by the Chief Parliamentary Counsel (c) the financial matters in relation to which the administrator has powers; (d) any other power referred to in Division 6 that VCAT specifically confers on the administrator; Note Sections 51 and 52 provide for powers which may be specified in an administration order. (e) any restrictions on the administrator's exercise of a power referred to in paragraph (c) or (d); (f) whether the order is an urgent order. 35 Statement of wishes for future appointment may be lodged (1) The following persons in relation to a represented person may lodge with VCAT at any time a statement of wishes for a future guardian or administrator appointment for the represented person— (a) the guardian; (b) the supportive guardian; (c) the administrator; (d) the supportive administrator; (e) the primary carer; (f) a relative. (2) A statement of wishes for a future guardian or administrator appointment referred to in subsection (1) must set out— (a) the wishes of the person lodging the statement as to who in the future should be appointed as a guardian or administrator for the represented person; and (b) the reasons for those wishes. -- 47 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 40 Authorised by the Chief Parliamentary Counsel 36 Urgent guardianship orders and urgent administration orders (1) VCAT may waive any of the requirements set out in section 24, 26, 27 or 29 and make an urgent guardianship order or urgent administration order under section 30 if VCAT is satisfied on reasonable grounds that there is an immediate risk of harm to the health, welfare or property of a proposed represented person if the order were not made. (2) The risk of harm referred to in subsection (1) may be caused by one or more factors, including the following— (a) abuse, exploitation or neglect of the proposed represented person; (b) self-neglect by the proposed represented person. (3) A guardianship order or administration order that is an urgent order— (a) remains in force for the period specified in the order, being a period not exceeding 21 days; and (b) may be renewed once for a further period not exceeding 21 days. 37 Hearing after making of urgent guardianship order or urgent administration order As soon as practicable after making a guardianship order or an administration order that is an urgent order (but within 42 days after making such an order) VCAT must hold a hearing to determine whether a guardianship order or an administration order (as the case requires) that is not an urgent order should be made. -- 48 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 41 Authorised by the Chief Parliamentary Counsel Division 3—Powers of guardians 38 Powers of guardians (1) A guardianship order confers on the person appointed as guardian— (a) a power to make decisions about the personal matters in relation to the represented person that are specified in the order; and (b) the power to sign and do any thing that is necessary to give effect to any power or duty vested in the guardian; and (c) the power to undertake legal proceedings under section 40, if specified in the order. (2) For the purposes of subsection (1)(c), VCAT may only specify the power to undertake legal proceedings under section 40 if VCAT is satisfied that the power is necessary or desirable for the purposes of promoting the represented person's personal and social wellbeing. (3) A decision made, action taken, consent given or thing done by a guardian under a guardianship order has effect as if it were made, taken, given or done by the represented person and the represented person had decision-making capacity for the matter in relation to which the order was made. 39 Matters for which power cannot be given under a guardianship order Despite anything to the contrary in this Division, a guardianship order does not confer on the person appointed as guardian the power— (a) to make or revoke a will for the represented person; or (b) to make or revoke an enduring power of attorney for the represented person; or -- 49 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 42 Authorised by the Chief Parliamentary Counsel (c) to vote on the represented person's behalf in an election for the State or the Commonwealth or another State or a Territory of the Commonwealth or in a local election or a referendum; or (d) to consent to the entering into, or dissolving of, a marriage of the represented person or a sexual relationship of the represented person; or (e) to make or give effect to a decision about— (i) the care and wellbeing of a child of the represented person; or (ii) the adoption of a child under the age of 18 years of the represented person; or (f) to enter into, or agree to enter into, a surrogacy arrangement within the meaning of the Assisted Reproductive Treatment Act 2008 on the represented person's behalf; or (g) to consent to the making or discharge of a substitute parentage order within the meaning of the Status of Children Act 1974 on the represented person's behalf; or (h) to manage the estate of the represented person on the death of the represented person; or (i) to consent to an unlawful act. 40 Power for guardian to undertake legal proceedings (1) VCAT may specify in a guardianship order that the guardian has power to bring and defend an action or other legal proceeding in the name, and on behalf, of the represented person if the action or other legal proceeding is in relation to a personal matter specified in the order. -- 50 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 43 Authorised by the Chief Parliamentary Counsel (2) A guardian on whom the power to bring and defend actions and other legal proceedings is conferred is not required to be appointed a litigation guardian in accordance with rules of the relevant court or tribunal. (3) If a guardian undertakes a legal proceeding in accordance with subsection (1), the costs of the proceeding are to be paid out of the represented person's estate. (4) Despite subsection (3), a court or tribunal may order that a guardian is personally liable to pay for any costs of the legal proceeding if the guardian was negligent or engaged in misconduct. (5) A court or tribunal may order that a person who is or was a guardian be reimbursed from the represented person's estate for any costs incurred by the person as a guardian in bringing or defending an action or other legal proceeding in accordance with subsection (1). Division 4—Duties of guardians 41 Exercise of power by guardian (1) A guardian— (a) must act in accordance with the general principles set out in section 8 and the decision-making principles set out in section 9; and (b) must act as an advocate for the represented person; and (c) must encourage and assist the represented person to develop the person's decision- making capacity in relation to personal matters; and -- 51 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 44 Authorised by the Chief Parliamentary Counsel (d) must act in such a way so to protect the represented person from neglect, abuse or exploitation; and (e) must act honestly, diligently and in good faith; and (f) must exercise reasonable skill and care; and (g) must not use the position for profit; and (h) must avoid acting if there is or may be a conflict of interest; and (i) must not disclose confidential information gained as a guardian unless authorised to do so under the guardianship order or by law. (2) A guardian who has the power to make medical treatment decisions for a represented person must comply with the Medical Treatment Planning and Decisions Act 2016 in relation to those decisions. 42 Guardian to report death of represented person If a guardian is advised of the death of a represented person for whom the guardian is appointed, the guardian must report the death in writing to VCAT as soon as practicable. Division 5—Other matters pertaining to applications for guardianship orders and to guardianship orders 43 Special order in relation to proposed represented person unlawfully detained or at risk of harm (1) This section applies if— (a) an application for a guardianship order has been made under section 22; and -- 52 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 45 Authorised by the Chief Parliamentary Counsel (b) VCAT has received information on oath or affirmation that the proposed represented person— (i) is unlawfully detained against the person's will; or (ii) is likely to suffer serious damage to the person's physical, emotional or mental health or wellbeing unless immediate action is taken. (2) VCAT may by order empower the Public Advocate, or some other person specified in the order, to visit the proposed represented person in the company of a police officer for the purpose of preparing a report for VCAT. (3) If, after receiving a report referred to in subsection (2), VCAT is satisfied that one of the circumstances described in subsection (1)(b) exists, VCAT may make an order enabling the proposed represented person to be taken to a place specified in the order for assessment and placement until the application under section 22 is determined. (4) A police officer acting under an order made under subsection (2) may, with such assistance as is necessary, use reasonable force to enter the premises where the proposed represented person is. (5) A person must not delay or obstruct a person who is acting under an order under this section. Penalty: 20 penalty units. Note Section 193 applies to an offence against this subsection. -- 53 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 46 Authorised by the Chief Parliamentary Counsel 44 Guardian may seek advice from VCAT (1) A guardian may apply to VCAT for advice on any matter relating to the scope of the guardianship order or the exercise of any power under the order. (2) After considering an application for advice or on its own initiative, VCAT may— (a) approve or disapprove of any act proposed to be done by the guardian; and (b) give advice as it considers appropriate; and (c) make any order it considers necessary. (3) An action does not lie against a guardian on account of an act or thing done or omitted to be done by the guardian under any order or on the advice of VCAT made or given under this section unless, in representing the facts to VCAT, the guardian is guilty of fraud, wilful concealment or misrepresentation. 45 Order for represented person to comply with guardian's decisions (1) VCAT may make an order at any time while a guardianship order is in force that gives the guardian or another specified person power to take specified measures or actions to ensure that the represented person complies with the guardian's decisions in the exercise of the powers and duties conferred by the guardianship order. (2) VCAT must hold a hearing to reassess an order made under subsection (1) as soon as practicable after making the order but within 42 days after making the order. (3) A guardian or other person specified in an order made under subsection (1) is not liable to any action for false imprisonment or assault or any other action, liability, claim or demand arising out -- 54 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 47 Authorised by the Chief Parliamentary Counsel of the taking of a measure or action under the order if the guardian or other person takes that measure or action in the belief that it will promote the represented person's personal and social wellbeing. (4) Subsection (1) does not limit section 38. Division 6—Powers of administrators 46 Powers of administrators (1) An administration order confers on the person appointed as administrator— (a) a power to make decisions about the financial matters in relation to the represented person specified in the order; and (b) a power to make gifts in accordance with section 47; and (c) a power of investment in accordance with section 48; and (d) a power to open the will of the represented person in accordance with section 49; and (e) any other power that is specified in the order; and Note Sections 51 and 52 provide for powers which may be specified in an administration order. (f) a power to sign and do any thing that is necessary to give effect to any power or duty vested in the administrator; and (g) a power to do all matters necessary or incidental to the performance of any power conferred on the administrator. -- 55 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 48 Authorised by the Chief Parliamentary Counsel (2) For the purposes of subsection (1)(e), VCAT may only specify a power if VCAT is satisfied that the power is necessary or desirable for the purposes of promoting the represented person's personal and social wellbeing. (3) Subject to, and in accordance with, this Act and the administration order, an administrator may do all acts and exercise all powers in relation to the financial matters specified in the order in the name, and on behalf, of the represented person as effectually and in the same manner as the represented person may have done if the represented person had the relevant decision-making capacity. (4) A decision made, action taken, consent given or thing done by an administrator under an administration order has effect as if it were made, taken, given or done by the represented person and the represented person had decision-making capacity for the matter in relation to which the order was made. 47 Power to make gifts (1) Except as provided in any order of VCAT, an administrator may make a gift of a represented person's property if— (a) the gift is reasonable, having regard to all the circumstances, including the represented person's financial circumstances; and (b) the gift is— (i) to a relative or a close friend of the represented person and is of a seasonal nature or for a special event; or Example An example of a special event is a birth or a marriage. -- 56 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 49 Authorised by the Chief Parliamentary Counsel (ii) of a type of donation that the represented person made when the represented person had decision- making capacity in relation to making donations or that the represented person might reasonably be expected to make. (2) A gift may be made by an administrator under subsection (1) even if the gift is made to— (a) the administrator; or (b) a relative or close friend of the administrator; or (c) an organisation with which the administrator has a connection. Note Section 61 sets out accounting requirements in relation to certain gifts that are of or over $100 or the prescribed amount (whichever is greater). 48 Powers of investment Except as provided in section 76 or in any order of VCAT, an administrator— (a) in the case of investments of the represented person, may continue those investments in the manner in which they were invested by the represented person for such period as the administrator thinks fit, including taking up rights to issues of new shares and options; and (b) in the case of money deposited in an ADI, may re-deposit it after it becomes payable; and (c) in the case of property, has, and may, exercise the same powers as the administrator would have if the administrator were a trustee in -- 57 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 50 Authorised by the Chief Parliamentary Counsel relation to that property under the Trustee Act 1958. 49 Power to open will deposited with administrator An administrator may, either before or after the death of the represented person, open and read without an order of VCAT any paper or writing deposited with the administrator that is a will, a revoked will, a purported will or a copy of a will of the represented person. 50 Power to exercise certain powers vested in represented person (1) An administrator may, on behalf and in the name of a represented person, exercise a power or give consent as the administrator thinks fit if— (a) the power is vested in a represented person for that person's own benefit or the consent of the represented person is necessary to the exercise of the power; and (b) the power or consent is in the nature of a beneficial interest in the represented person; and (c) the administrator believes exercising the power or giving the consent will benefit the represented person. (2) An administrator may, on behalf and in the name of a represented person, exercise a power or give consent as the administrator thinks fit if— (a) the power is vested in the represented person in the represented person's capacity as a trustee or guardian of a trust or the consent of the represented person to the exercise of a power is necessary in the represented person's capacity as a trustee or guardian of a trust; and -- 58 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 51 Authorised by the Chief Parliamentary Counsel (b) the administrator believes that the power should be exercised or that the consent should be given. (3) The exercise under this section by an administrator of a power vested in a represented person to appoint a new trustee is taken to be power to appoint a new trustee within the meaning of section 45 of the Trustee Act 1958. 51 Power for administrator to undertake legal proceedings (1) VCAT may specify in an administration order that the administrator has power to bring and defend an action or other legal proceeding in the name, and on behalf, of a represented person if the action or other legal proceeding is in relation to a financial matter specified in the order. (2) An administrator on whom the power to bring and defend actions and other legal proceedings is conferred is not required to be appointed a litigation guardian in accordance with rules of the relevant court or tribunal. (3) If an administrator undertakes a legal proceeding in accordance with subsection (1), the costs of the proceeding are to be paid out of the represented person's estate. (4) Despite subsection (3), a court or tribunal may order that an administrator is personally liable to pay for any costs of the legal proceeding if the administrator was negligent or engaged in misconduct. (5) A court or tribunal may order that a person who is or was an administrator be reimbursed from the represented person's estate for any costs incurred by the person as an administrator in bringing or defending an action or other legal proceeding in accordance with subsection (1). -- 59 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 52 Authorised by the Chief Parliamentary Counsel 52 Other powers that may be specified in administration order VCAT may specify in an administration order that the administrator has any or all of the following powers in relation to a financial matter specified in the order— (a) the power to 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; (b) the power to invest any money in any security in which a trustee may by law invest; (c) the power to 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; (d) the power to exercise, to the extent and in the manner the administrator thinks fit, any power of leasing vested in the represented person; (e) the powers to surrender any lease, accept any lease, accept the surrender of any lease or renew any lease; (f) the power to bring land under the Transfer of Land Act 1958; (g) the power to sell, exchange, partition or convert into money any property; (h) the power to mortgage or charge any property; -- 60 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 53 Authorised by the Chief Parliamentary Counsel (i) the power to pay any debts and settle, adjust or compromise any demand made by or against the represented person's estate and discharge any encumbrance on the represented person's estate; (j) the power to carry on, to the extent the administrator thinks appropriate, any trade, profession or business which the represented person carried on; (k) the power to agree to any alteration of a condition of any partnership into which the represented person has entered or to a dissolution and distribution of the assets of the partnership; (l) the power to execute and sign deeds, instruments and other documents; (m) the power to complete any contract for the performance of which the represented person was liable, or enter into any agreement terminating liability; (n) the power to pay a sum for— (i) the maintenance of the represented person and, in the event of the represented person's death, the represented person's 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 education of any child of the represented person; and (iv) the ongoing care of any companion animal of the represented person; -- 61 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 54 Authorised by the Chief Parliamentary Counsel (o) the power to pay to the represented person any amount of money standing to the credit of the person with the administrator for the personal use of that person; (p) the power to give to the represented person for the personal use of that person any personal property which is under the control of the administrator and belongs to the person; (q) any other relevant power in relation to a specified financial matter. 53 Matters for which power cannot be given under an administration order Despite anything to the contrary in this Division, an administration order does not confer on the person appointed as administrator the power— (a) to make or revoke a will for the represented person; or (b) to make or revoke an enduring power of attorney for the represented person; or (c) to vote on the represented person's behalf in an election for the State or the Commonwealth or another State or a Territory of the Commonwealth or in a local election or a referendum; or (d) to consent to the entering into, or dissolving of, a marriage of the represented person or a sexual relationship of the represented person; or (e) to make or give effect to a decision about— (i) the care and wellbeing of a child of the represented person; or (ii) the adoption of a child under the age of 18 years of the represented person; or -- 62 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 55 Authorised by the Chief Parliamentary Counsel (f) to enter into, or agree to enter into, a surrogacy arrangement within the meaning of the Assisted Reproductive Treatment Act 2008 on the represented person's behalf; or (g) to consent to the making or discharge of a substitute parentage order within the meaning of the Status of Children Act 1974 on the represented person's behalf; or (h) to manage the estate of the represented person on the death of the represented person; or (i) to consent to an unlawful act. 54 Powers of administrator cease on death of represented person An administration order lapses on the death of the represented person and the law relating to the administration of a deceased person's estate applies accordingly. Division 7—Duties of administrators 55 Exercise of power by administrator An administrator— (a) must act in accordance with the general principles set out in section 8 and the decision-making principles set out in section 9; and (b) must act as an advocate for the represented person; and (c) must encourage and assist the represented person to develop the person's decision- making capacity in relation to financial matters; and -- 63 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 56 Authorised by the Chief Parliamentary Counsel (d) must act in such a way so to protect the represented person from neglect, abuse or exploitation; and (e) must act honestly, diligently and in good faith; and (f) must exercise reasonable skill and care; and (g) must not use the position for profit unless permitted under section 175 or otherwise authorised by law; and (h) must avoid acting if there is or may be a conflict of interest unless so authorised under this Act, by order of VCAT or otherwise by law; and (i) must not disclose confidential information gained as an administrator unless authorised to do so under the administration order or by law. 56 Property of represented person Subject to, and in accordance with, this Act and the administration order, the administrator must— (a) take possession and care of, recover, collect, preserve and administer, the property and estate of the represented person; and (b) generally manage the property and financial affairs of the represented person. 57 Conflict transactions (1) Subject to section 58, an administrator must not enter into a transaction in the capacity of administrator if the transaction is one in which there is, or may be, a conflict between— (a) the duty of the administrator to the represented person; and -- 64 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 57 Authorised by the Chief Parliamentary Counsel (b) the interests of the administrator, or of a relative, business associate or close friend of the administrator. (2) Subsection (1) does not apply to— (a) a gift made in accordance with section 47; or (b) a transaction providing for the maintenance of a dependant of the represented person made in accordance with section 52(n); or (c) a transaction merely because in the transaction, the administrator (in the administrator's own right and on behalf of the represented person)— (i) deals with an interest in property held jointly by the administrator and the represented person (whether as joint tenants or tenants in common); or (ii) obtains a loan or gives a guarantee or indemnity in respect of a transaction referred to in subparagraph (i). 58 Permitted conflict transactions (1) An administrator may enter into a transaction prohibited by section 57(1) if VCAT authorises the administrator at or before the time of the transaction to enter into— (a) the transaction; or (b) a transaction of a similar nature; or (c) any transaction prohibited by section 57(1). (2) VCAT may validate a transaction prohibited under section 57(1). (3) A transaction validated under subsection (2) is taken to be valid from the time it was entered into. -- 65 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 58 Authorised by the Chief Parliamentary Counsel 59 Keeping records An administrator must keep accurate records and accounts of all dealings and transactions made by the administrator in relation to the financial matters specified in the administration order. 60 Separation of administrator's property and the represented person's property (1) An administrator must keep the administrator's property separate from the represented person's property. (2) Subsection (1) does not apply to property owned jointly by the administrator and the represented person. (3) Subsection (1) does not affect any other obligation imposed by law. 61 Accounts (1) VCAT may, at the time it appoints an administrator, or at any later time, appoint a person to examine or audit the accounts of all dealings and transactions relating to the financial matters specified in the administration order for a fee approved by VCAT and paid from the represented person's estate. (2) Unless VCAT otherwise directs, on, or as soon as practicable after, the anniversary in each year of the appointment of the administrator, the administrator must lodge with VCAT an account of the dealings and transactions relating to the financial matters specified in the administration order during the previous 12 months. (3) Despite subsection (2), VCAT may require an administrator to lodge accounts at a time other than the time specified in that subsection. -- 66 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 59 Authorised by the Chief Parliamentary Counsel (4) An account lodged under subsection (2) or (3) must— (a) provide a full and true account of— (i) the assets and liabilities of the represented person in relation to the financial matters specified in the administration order; and (ii) all receipts and disbursements in relation to those financial matters made during the previous 12 months; and (b) include details of any gift made by the administrator of the represented person's property with a total value of or over the prescribed amount (or, if an amount is not prescribed, of or over $100) to— (i) the administrator; or (ii) a relative or close friend of the administrator; or (iii) an organisation with which the administrator has a connection. (5) A person appointed under subsection (1) to examine or audit the accounts— (a) must lodge with VCAT a report in relation to the accounts examined or audited; and (b) 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 makes an order disallowing an item referred to in subsection (5), the administrator is liable for the amount of the item disallowed. -- 67 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 60 Authorised by the Chief Parliamentary Counsel 62 Payments to person examining or auditing accounts (1) An administrator must pay to a person appointed under section 61(1) an amount certified by that person as being the reasonable cost of examining or auditing the accounts referred to in that section. (2) On the application by the administrator, and with the consent of the person appointed under section 61(1) to examine or audit the accounts, VCAT may waive payment of the whole or part of the amount required to be paid under subsection (1). 63 Administrator to report death of represented person If an administrator is advised of the death of a represented person for whom the administrator is appointed, the administrator must report the death in writing to VCAT as soon as practicable. Division 8—Other matters pertaining to administration orders 64 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 order or the exercise of any power under the 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 a proceeding 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) After considering an application for advice, or on its own initiative, VCAT may— (a) approve or disapprove of any act proposed to be done by the administrator; and -- 68 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 61 Authorised by the Chief Parliamentary Counsel (b) give advice as it considers appropriate; and (c) make any order it considers necessary. (4) An action does not lie against an administrator on account of an act or thing done or omitted to be done by the administrator under any order or on the advice of VCAT made or given under this section unless, in representing the facts to VCAT, the administrator is guilty of fraud, wilful concealment or misrepresentation. 65 Administrator may seek advice from professional adviser (1) An administrator may seek advice from a professional adviser about the financial matters specified in the administration order. (2) An administrator is entitled to be reimbursed from the represented person's estate for any costs paid by the administrator in the course of obtaining professional advice. (3) In this section— professional adviser means a person who provides professional advice to administrators and includes a financial adviser, a legal practitioner and an accountant. 66 VCAT may open will VCAT may open and read any paper or writing that is a will, a revoked will, a purported will or a copy of a will of— (a) a represented person who does not have testamentary capacity; or (b) a deceased person who, immediately before the person died, was a represented person. -- 69 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 62 Authorised by the Chief Parliamentary Counsel 67 VCAT may compel production of will VCAT may make an order compelling a person who has possession or control of a will, a revoked will or a purported will of a represented person who does not have testamentary capacity to produce that document to VCAT— (a) for the purposes of section 66 or 68; or (b) on the application of an administrator. 68 VCAT may make copy of will available to administrator VCAT may make available to an administrator a full or redacted copy of a will, a revoked will or a purported will of the represented person if VCAT is satisfied that the represented person does not have testamentary capacity. 69 VCAT to notify administrator if person ceases to be a represented person (1) If VCAT knows that a person has ceased to be a represented person or has died, VCAT must give notice of that fact to the administrator as soon as practicable. (2) An administrator may exercise all or any of the powers given to the administrator by the administration order until the administrator knows that the represented person has ceased to be a represented person or has died. 70 Actions of administrator taken to be actions of former represented person On and after VCAT gives notice to an administrator under section 69(1), the former represented person or that person's personal representative (as the case requires) is bound by, and may take advantage of, any act done on behalf of the represented person by the -- 70 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 63 Authorised by the Chief Parliamentary Counsel administrator within the powers conferred on the administrator by VCAT as if— (a) the act had been done by the represented person; and (b) the represented person had decision-making capacity to do the act. 71 Administrator to pay to former represented person any money outstanding (1) If an administrator receives a notice under section 69 or is otherwise advised that a person has ceased to be a represented person or has died, the administrator must— (a) pay or cause to be paid to the person or to the person's personal representative (as the case requires) all money standing to the person's credit with the administrator; and (b) deliver to the person or to the person's personal representative (as the case requires) all property of the person that is in the custody of the administrator and, subject to an order under section 73, 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 administrator and all costs, expenses and liabilities incurred by the administrator in relation to the dealings and transactions made for the financial matters specified in the administration order. (3) The receipt by a person who has ceased to be a represented person or by that person's personal representative is an absolute discharge to an administrator despite any informality in the discharge or certification. -- 71 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 64 Authorised by the Chief Parliamentary Counsel 72 Former represented person entitled to inspection of accounts Subject to an order under section 73, a person who has ceased to be a represented person (or the personal representative of such a person), before or after obtaining the restoration of all or any part of the person's money or other property from the administrator— (a) may examine and inspect, or cause a legal practitioner or other authorised agent to examine and inspect, all books, accounts, notices and other documents in the custody of the administrator relating to the dealings and transactions made for the financial matters specified in the administration order and make or cause to be made copies of, or extracts from, these items; and (b) must be provided with— (i) copies of or extracts from any book, account, notice or document relating to the dealings and transactions made for the financial matters specified in the administration order by the administrator; and (ii) information relating to the dealings and transactions made for the financial matters specified in the administration order by the administrator that is reasonable to request and that can be given by the administrator. 73 VCAT order that delivery of, or access to, documents be withheld (1) An administrator may apply to VCAT for an order that a book, account, notice or other document (or any part of such book, account, notice or other document) in the custody of the -- 72 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 65 Authorised by the Chief Parliamentary Counsel administrator relating to the property or financial affairs of a former represented person be withheld from the person specified in the order or a person belonging to a class of person specified in the order. (2) VCAT may make an order referred to in subsection (1) if VCAT is satisfied that— (a) it is in the interests of the former represented person that the information, or part of the information, contained in the book, account, notice or other document remain confidential; or (b) the book, account, notice or other document contains confidential information about another person. 74 Sale of personal effects if unclaimed within 2 years after person ceases to be represented person (1) After public notice, an administrator may sell any personal effect of a former represented person that— (a) is in the administrator's possession; and (b) is not claimed within 2 years after the date on which the person ceased to be a represented person. (2) The proceeds of a sale referred to in subsection (1) are to be paid into the Consolidated Fund. 75 Restriction on powers of represented person in relation to financial matters (1) Without an order of VCAT or the written consent of the administrator, to the extent that a financial matter in relation to a represented person is subject to an administration order, the represented person is taken not to have decision-making capacity in relation to— -- 73 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 66 Authorised by the Chief Parliamentary Counsel (a) dealing with, transferring, alienating or charging the represented person's money or other property, in whole or in part; or (b) becoming liable under a contract. (2) Any dealing, transfer, alienation or charge by a represented person in relation to a financial matter that is subject to an administration order is void and of no effect, and the money or other property that is the subject of the dealing, transfer, alienation or charge is recoverable by the administrator in any court of competent jurisdiction. (3) This section does not render invalid any dealing, transfer, alienation or charge by a represented person if— (a) the dealing, transfer, alienation or charge was made for adequate consideration with or to or in favour of another person; and (b) the other person 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. (4) For the purpose of this section, the acceptance of payment of the whole or a part of a debt is taken to be a dealing with property. 76 Interest of represented person in property not to be altered by sale or other disposition of property (1) A represented person (irrespective of whether the represented person has testamentary capacity) and a beneficiary of a represented person have the same interest in any money or other property arising from or received in respect of any sale, mortgage, exchange, partition or other disposition under the powers conferred on an administrator by an administration order which have not been applied under those powers that the represented -- 74 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 67 Authorised by the Chief Parliamentary Counsel person or beneficiary would have had in the property the subject of the sale, mortgage, exchange, partition or disposition if no sale, mortgage, exchange, partition or disposition had been made. (2) For the purposes of this section, money arising from the compulsory acquisition or purchase under any Act of property of a represented person is taken to be money arising from the sale of that property under the powers conferred on an administrator under an administration order. (3) An administrator is not required to keep the proceeds of the sale or other disposition of property under this section separate from the represented person's other assets. (4) Money received by an administrator under this section may be invested in any manner in which trust funds may be invested under the Trustee Act 1958. (5) In this section, beneficiary of a represented person means— (a) a beneficiary under the will of a represented person; or (b) a represented person's executor; or (c) a represented person's administrator under the Administration and Probate Act 1958. 77 Guardianship and Administration Fund (1) The account known as "The Guardianship and Administration Fund" that was established in the Public Account under section 58AA of the Guardianship and Administration Act 1986 continues in existence. -- 75 of 192 -- Part 3—Guardianship orders and administration orders Guardianship and Administration Act 2019 No. 13 of 2019 68 Authorised by the Chief Parliamentary Counsel (2) The following must be paid into the Guardianship and Administration Fund— (a) any annual fee prescribed under section 194(1)(b) that is paid in relation to an estate of a represented person; (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. 78 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 a financial matter specified in the administration order may apply to VCAT on any matter arising out of any dealing or transaction in relation to that financial matter. (2) VCAT may make any order in relation to the application which VCAT considers appropriate. (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. -- 76 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 69 Authorised by the Chief Parliamentary Counsel Part 4—Supportive guardianship orders and supportive administration orders Division 1—Application for supportive guardianship orders and supportive administration orders 79 Application for supportive guardianship order A person may apply to VCAT for a supportive guardianship order that appoints a supportive guardian for a person with a disability who is— (a) of or over 18 years of age; or (b) under 18 years of age but the order takes effect on that person attaining 18 years of age. 80 Application for supportive administration order (1) A person may apply to VCAT for a supportive administration order that appoints a supportive administrator for a person with a disability who is— (a) of or over 18 years of age; or (b) under 18 years of age but the order takes effect on that person attaining 18 years of age. (2) Subject to subsection (1), if the person in relation to whom a supportive administration order is sought does not reside in Victoria but the person's property is partly or wholly in Victoria, an application may be made for an order appointing a supportive administrator for the person in relation to that part of the property that is in Victoria. -- 77 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 70 Authorised by the Chief Parliamentary Counsel 81 Matters to be included in application to VCAT A person applying to VCAT for a supportive guardianship order or supportive administration order must include the following in the application— (a) the name and contact details of the proposed supported person; (b) the type of order applied for, including details of the personal matters or financial matters in relation to which the order is sought; (c) details of the reasons for making the application; (d) the name and contact details of the person proposed as supportive guardian or supportive administrator; (e) the name and contact details of the applicant and of any person who has a direct interest in the application (if known to the applicant); Note Persons having a direct interest includes, amongst others, the proposed supported person's relatives, any primary carer, close friends, any attorney appointed under an enduring power of attorney and any supportive attorney appointed under the Powers of Attorney Act 2014. (f) any support needs of the proposed supported person including support provided to the proposed supported person by any companion animal of the proposed supported person. Note Section 67 of the VCAT Act sets out additional requirements in relation to making an application. -- 78 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 71 Authorised by the Chief Parliamentary Counsel 82 Who are the parties to a proceeding on an application? The following persons are parties to a proceeding on an application under this Division— (a) the applicant; (b) the proposed supported person; (c) the person proposed as supportive guardian or supportive administrator, as the case requires; (d) any other person VCAT orders to be joined as a party to the proceeding. Note Section 60 of the VCAT Act provides that VCAT may in certain circumstances order that a person be joined as a party to a proceeding. 83 Who is entitled to notice of an application, the hearing and any order made in the proceeding? For the purposes of sections 72(1), 99(1) and 116(2) of the VCAT Act, the following persons are entitled to a notice referred to in each of those provisions— (a) any party to a proceeding on an application under this Part; (b) the spouse or domestic partner of the proposed supported person, if any; (c) the primary carer of the proposed supported person, if any; (d) any person referred to in the application as having a direct interest in the application; (e) any other person VCAT directs be given notice. -- 79 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 72 Authorised by the Chief Parliamentary Counsel Note Section 72(1) of the VCAT Act provides that an applicant for a VCAT order must serve a copy of the application on each party, each other person entitled to notice of the application under the enabling enactment (which is this Act) and each other person that VCAT so directs. Section 99(1)(b) of the VCAT Act provides that the principal registrar of VCAT must give notice of the time and place for the hearing of a proceeding to a person entitled to notice of the proceeding or hearing under the enabling enactment. Section 116(2)(a) of the VCAT Act provides that VCAT must give a copy of any order it makes in a proceeding to each party and each other person entitled to notice of the proceeding or of the order under the enabling enactment. 84 Contents of notice of application (1) A notice of an application given to a party to the application must include the following— (a) a copy of the application and any information filed in support of the application, subject to clause 37A of Part 9 of Schedule 1 to the VCAT Act; Note Clause 37A of Part 9 of Schedule 1 to the VCAT Act provides that a person may make an application to the principal registrar of VCAT that any documents lodged in relation to a proceeding under this Act not be disclosed to a specified person or class of persons. (b) the names of— (i) the parties to the proceeding; and (ii) the other persons entitled to the notice under section 83; (c) information about the rights of the party in relation to the application. -- 80 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 73 Authorised by the Chief Parliamentary Counsel (2) A notice of an application given to a person referred to in section 83 who is not a party to the application must include the following— (a) a copy of the application; (b) the names of— (i) the parties to the proceeding; and (ii) the other persons entitled to the notice under section 83; (c) information about the rights of the person to seek information about the application; (d) information about how to apply to VCAT to be made a party to the proceeding. 85 Date for hearing of application for supportive guardianship order or supportive administration order VCAT must commence to hear an application made under this Division within 30 days after the day on which the application is received by VCAT unless VCAT or the principal registrar under Division 5 of Part 4 of the VCAT Act— (a) requires the parties to attend a compulsory conference in relation to the application; or (b) refers the proceeding in relation to the application, or any part of it, for mediation. 86 Participation of proposed supported person at hearing The proposed supported person must attend in person a hearing conducted by VCAT in relation to an application made under this Division unless VCAT is satisfied that— (a) the proposed supported person does not wish to attend the hearing in person; or -- 81 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 74 Authorised by the Chief Parliamentary Counsel (b) the personal attendance of the proposed 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. Division 2—Making supportive guardianship orders and supportive administration orders and eligibility of persons appointed 87 VCAT may make a supportive guardianship order or supportive administration order (1) Subject to this Division, VCAT may make a supportive guardianship order or supportive administration order after considering— (a) an application under Division 1; or (b) an application for a guardianship order or an administration order for a proposed represented person. (2) VCAT may only make an order appointing a supportive guardian or a supportive administrator for a proposed supported person if VCAT is satisfied that— (a) the person consents to VCAT making the order; and (b) if the person is given practicable and appropriate support, the person will have decision-making capacity in relation to the personal matter or financial matter in relation to which the supportive guardianship order or supportive administration order may be made; and -- 82 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 75 Authorised by the Chief Parliamentary Counsel (c) the supportive guardianship order or supportive administration order, as the case requires, will promote the person's personal and social wellbeing. 88 Persons eligible as supportive guardians or supportive administrators (1) VCAT may appoint as a supportive guardian or supportive administrator, as the case requires, any individual who is of or over 18 years of age and who consents to act as supportive guardian or supportive administrator if VCAT is satisfied that the individual— (a) will act in accordance with the duties and obligations set out in section 94; and (b) is a suitable person to act as the supportive guardian or supportive administrator for the proposed supported person. (2) In determining whether a person is a suitable person to act as a supportive guardian or supportive administrator for a proposed supported person, VCAT must take into account the following— (a) the will and preferences of the proposed supported 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; (c) the nature of the relationship between the person and the proposed supported person, in particular whether the relationship is characterised by trust; -- 83 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 76 Authorised by the Chief Parliamentary Counsel (d) whether the person will be available to the proposed supported person and able to meet and communicate with the proposed supported person; (e) the capacity of the person to recognise and give due regard to the importance of the relationship the proposed supported person has with any companion animal of the proposed supported person. 89 Matters to be specified in supportive guardianship orders and supportive administration orders A supportive guardianship order or supportive administration order must specify the following— (a) the name of the supported person; (b) the name of the supportive guardian or supportive administrator, as the case requires; (c) in the case of a supportive guardianship order, the personal matters in relation to which the supportive guardian has powers; (d) in the case of a supportive administration order, the financial matters in relation to which the supportive administrator has powers; (e) any power referred to in Division 3 that VCAT confers on the supportive guardian or supportive administrator; Note Sections 91, 92 and 93 provide for powers which may be specified in a supportive guardianship order or supportive administration order. (f) any restrictions on the supportive guardian's or supportive administrator's exercise of powers. -- 84 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 77 Authorised by the Chief Parliamentary Counsel Division 3—Powers and duties of supportive guardians and supportive administrators 90 Powers of supportive guardians or supportive administrators (1) A supportive guardianship order or supportive administration order confers on the person appointed as supportive guardian or supportive administrator, as the case requires, one or more of the following powers listed in this subsection and specified in the order— (a) a power to access, collect or obtain information, or to assist the supported person to access, collect or obtain information, in accordance with section 91; (b) a power to communicate certain information about the supported person with others, in accordance with section 92(a); (c) a power to communicate decisions made by the supported person, or to assist the supported person in communicating these decisions in accordance with section 92(b); (d) a power to take any reasonable action or do anything that is reasonably necessary to give effect to certain decisions in accordance with section 93(1). (2) For the purposes of subsection (1), VCAT may only specify a power if VCAT is satisfied that the power will ensure that the supportive guardian or supportive administrator can give practicable and appropriate support to the supported person to enable that person to have decision-making capacity in relation to the relevant personal matters or financial matters. -- 85 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 78 Authorised by the Chief Parliamentary Counsel 91 Information power (1) VCAT may specify in a supportive guardianship order or in a supportive administration order that the supportive guardian or supportive administrator, as the case requires, has power to 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 or supportive administrator, as the case requires. Note See also the Disability Act 2006, the Health Records Act 2001 and the Privacy and Data Protection Act 2014 for provisions as to disclosure of personal information to supportive guardians and supportive administrators and access to personal information by supportive guardians and supportive administrators. (3) A supportive guardian or supportive administrator, as the case requires, may disclose any information given under subsection (1) for the purpose of— (a) anything that is relevant and necessary to the supportive guardian or supportive administrator carrying out that role; or -- 86 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 79 Authorised by the Chief Parliamentary Counsel (b) any legal proceeding under this Act, or any report of a legal proceeding under this Act; or (c) any other lawful reason. 92 Communication power VCAT may specify in a supportive guardianship order or in a supportive administration order that the supportive guardian or supportive administrator, as the case requires, has power— (a) to 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) to communicate or assist the supported person to communicate a supported decision of the supported person. 93 Power to give effect to decisions (1) VCAT may specify in a supportive guardianship order or supportive administration order that the supportive guardian or supportive administrator, as the case requires, has power to 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 -- 87 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 80 Authorised by the Chief Parliamentary Counsel (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 (d) undertaking a transaction for the supported person involving the use of the supported person's property as security for an obligation; or (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 ADI. 94 Duties and obligations of supportive guardians and supportive administrators A supportive guardian under a supportive guardianship order or a supportive administrator under a supportive administration order— (a) must act in accordance with the general principles set out in section 8; and (b) must act honestly, diligently and in good faith; and (c) must exercise reasonable skill and care; and -- 88 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 81 Authorised by the Chief Parliamentary Counsel (d) must not use the position for profit; and (e) must avoid acting when there is or may be a conflict of interest and, if acting when there is a conflict of interest, must ensure that the interests of the supported person are the primary consideration; and (f) must 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; and (g) must not assist the supported person, in the role of supportive guardian or supportive administrator (as the case requires), to conduct any illegal activity; and (h) must not coerce, intimidate or in any way unduly influence the supported person into a particular course of action. Division 4—General 95 No entitlement to remuneration A supportive guardian or supportive administrator is not entitled to receive any remuneration for acting in that role. 96 When does a supportive guardianship order or supportive administration order cease to have effect? (1) A supportive guardianship order or supportive administration order ceases to have effect to the extent that it is inconsistent with any subsequent guardianship order or administration order. -- 89 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 82 Authorised by the Chief Parliamentary Counsel (2) VCAT may modify a supportive guardianship order or supportive administration order— (a) if a subsequent guardianship order or administration order is made for the supported person; or (b) under Part 7. 97 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) A supportive administrator may apply to VCAT for advice on any matter relating to the scope of the supportive administration order or the exercise of any power by the supportive administrator under the supportive administration order. (3) After considering an application for advice, or on its own initiative, VCAT may— (a) approve or disapprove of any act proposed to be done by the supportive guardian or supportive administrator; and (b) give such advice as it considers appropriate; and (c) make any order it considers necessary. (4) An action does not lie against a supportive guardian or supportive administrator on account of an act or thing done or omitted by the supportive guardian or supportive administrator 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 or supportive administrator has been guilty of fraud, wilful concealment or misrepresentation. -- 90 of 192 -- Part 4—Supportive guardianship orders and supportive administration orders Guardianship and Administration Act 2019 No. 13 of 2019 83 Authorised by the Chief Parliamentary Counsel 98 Supportive guardian or supportive administrator to report death of supported person If a supportive guardian or supportive administrator is advised of the death of a supported person for whom the supportive guardian or supportive administrator is appointed, the supportive guardian or supportive administrator must report the death in writing to VCAT as soon as practicable. -- 91 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 84 Authorised by the Chief Parliamentary Counsel Part 5—Administration (missing person) orders Division 1—Application for administration (missing person) orders 99 Application for administration (missing person) orders A person may apply to VCAT for an administration (missing person) order that appoints an administrator in relation to a financial matter for a missing person who is of or over 18 years of age. 100 Matters to be included in application to VCAT A person applying to VCAT for an administration (missing person) order must include the following in the application— (a) the name of the missing person; (b) details of the reasons for making the application; (c) the name and contact details of any person proposed as administrator; (d) the name and contact details of the applicant and of any person who has a direct interest in the application (if known to the applicant). Note Persons having a direct interest includes, amongst others, the missing person's relatives, any primary carer, close friends, any attorney appointed under an enduring power of attorney and any supportive attorney appointed under the Powers of Attorney Act 2014. Note Section 67 of the VCAT Act sets out additional requirements in relation to making an application. -- 92 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 85 Authorised by the Chief Parliamentary Counsel 101 Who are the parties to a proceeding on an application? The following persons are parties to a proceeding on an application for an administration (missing person) order— (a) the applicant; (b) the missing person; (c) the person proposed as administrator; (d) any other person VCAT orders to be joined as a party to the proceeding. Note Section 60 of the VCAT Act provides that VCAT may in certain circumstances order that a person be joined as a party to a proceeding. 102 Who is entitled to notice of an application, the hearing and any order made in the proceeding? For the purposes of sections 72(1), 99(1) and 116(2) of the VCAT Act, the following persons are entitled to a notice referred to in each of those sections— (a) any party to a proceeding on an application under this Part; (b) the spouse or domestic partner of the missing person, if any; (c) the primary carer of the missing person, if any; (d) any person referred to in the application as having a direct interest in the application; (e) any other person VCAT directs be given notice. -- 93 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 86 Authorised by the Chief Parliamentary Counsel Note Section 72(1) of the VCAT Act provides that an applicant for a VCAT order must serve a copy of the application on each party, each other person entitled to notice of the application under the enabling enactment (which is this Act) and each other person that VCAT so directs. Section 99(1)(b) of the VCAT Act provides that the principal registrar of VCAT must give notice of the time and place for the hearing of a proceeding to a person entitled to notice of the proceeding or hearing under the enabling enactment. Section 116(2)(a) of the VCAT Act provides that VCAT must give a copy of any order it makes in a proceeding to each party and each other person entitled to notice of the proceeding or of the order under the enabling enactment. 103 Contents of notice of application (1) A notice of an application given to a party to the application must include the following— (a) a copy of the application and any information filed in support of the application, subject to clause 37A of Part 9 of Schedule 1 to the VCAT Act; Note Clause 37A of Part 9 of Schedule 1 to the VCAT Act provides that a person may make an application to the principal registrar of VCAT that any documents lodged in relation to a proceeding under this Act not be disclosed to a specified person or class of persons. (b) the names of— (i) the parties to the proceeding on an application under section 101; and (ii) the other persons entitled to the notice under section 102; (c) information about the rights of the party in relation to the application. (2) A notice of an application given to a person referred to in section 102 who is not a party to the application must include the following— -- 94 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 87 Authorised by the Chief Parliamentary Counsel (a) a copy of the application; (b) the names of— (i) the parties to the proceeding; and (ii) the other persons entitled to the notice under section 102; (c) information about the rights of the person to seek information about the application; (d) information about how to apply to VCAT to be made a party to the proceeding on the application. 104 Date for hearing of application for administration (missing person) order VCAT must commence to hear an application for an administration (missing person) order within 30 days after the day on which the application is received by VCAT unless VCAT or the principal registrar under Division 5 of Part 4 of the VCAT Act— (a) requires the parties to attend a compulsory conference in relation to the application; or (b) refers the proceeding in relation to the application, or any part of it, for mediation. Division 2—Making administration (missing person) orders and eligibility of persons appointed 105 VCAT may make administration (missing person) order (1) After considering an application for an administration (missing person) order, VCAT may— -- 95 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 88 Authorised by the Chief Parliamentary Counsel (a) subject to subsection (2), make an administration (missing person) order; or Note See sections 106 and 109 in relation to administration (missing person) orders that are urgent orders. (b) make no order under this Act. (2) VCAT may only make an administration (missing person) order if VCAT— (a) has determined under subsection (3) that the person is a missing person who usually resides in Victoria; and (b) is satisfied that— (i) while the person is missing there is, or is likely to be, a need for a decision to be made in relation to the person's financial matters including the ongoing care of any companion animal of the person; and (ii) the order would promote the missing person's personal and social wellbeing while that person is missing. (3) 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 -- 96 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 89 Authorised by the Chief Parliamentary Counsel (ii) any relative or friend of the person with whom the person is likely to communicate. (4) VCAT must not make an order under subsection (1)(a) in relation to the property of a missing person if the property 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 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. 106 Duration of order (1) An administration (missing person) order that is not an urgent order is in force for the period specified in the order, being a period not exceeding 2 years. (2) An administration (missing person) order that is an urgent order is in force for the period specified in the order, being a period not exceeding 21 days. Note Section 109 provides that a hearing must be held after an urgent administration (missing person) order is made. (3) If VCAT is satisfied that the matters referred to in section 105(2) continue to apply, on the application of the administrator, VCAT may renew— -- 97 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 90 Authorised by the Chief Parliamentary Counsel (a) an administration (missing person) order that is not an urgent order once for a further period not exceeding 2 years specified in the order; and (b) an administration (missing person) order that is an urgent order once for a further period not exceeding 21 days specified in the order. (4) Nothing in this section prevents a person applying for a new administration (missing person) order if the previous order has expired. Note A person may apply at any time for a reassessment of an order under Part 7. 107 Persons eligible as administrators for missing persons (1) VCAT may appoint as an administrator for a missing person a person (being an individual or a body corporate) which, in the case of an individual, is of or over the age of 18 years who consents to act as administrator if VCAT is satisfied that the person— (a) will act in accordance with the duties set out in Division 4; and (b) is not in a position where the person's interests conflict, or may conflict, with the interests of the missing person; and (c) is a suitable person to act as the administrator for the missing person; and (d) has sufficient expertise to make decisions about any financial matter to be specified in the administration (missing person) order. (2) In determining whether a person is suitable to act as the administrator for a missing person, VCAT must take into account the following— -- 98 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 91 Authorised by the Chief Parliamentary Counsel (a) the will and preferences of the missing person (so far as they can be ascertained); (b) the desirability of preserving existing relationships that are important to the missing person; (c) the desirability of appointing a person who is a relative of the missing person, or who has a personal relationship with the missing person, rather than appointing a person with no such relationship; (d) whether the person proposed as administrator is or was a member of VCAT as constituted for a proceeding under this Act. (3) VCAT may appoint as an administrator a person who was at any time a member of VCAT as constituted for a proceeding under this Act if VCAT considers that in the circumstances it is appropriate for the person to act as an administrator. (4) VCAT must not assume without any evidence that a missing person's relative who is proposed as administrator— (a) has interests that conflict, or may conflict, with those of the missing person merely because the proposed administrator is a relative of the missing person; or (b) is not suitable to be appointed as the administrator merely because that relative disagrees with another relative of the missing person about a matter pertaining to the missing person. -- 99 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 92 Authorised by the Chief Parliamentary Counsel 108 Matters to be specified in administration (missing person) orders An administration (missing person) order must specify the following— (a) the name of the missing person; (b) the name of the administrator; (c) the financial matters in relation to which the administrator has powers; (d) any other power referred to in Division 3 that VCAT specifically confers on the administrator; (e) any restrictions on the administrator's exercise of powers referred to in paragraph (c) or (d); (f) whether the order is an urgent order. 109 Urgent administration (missing person) orders (1) VCAT may waive any of the requirements set out in section 100, 102 or 103 and make an urgent administration (missing person) order under section 105 if VCAT is satisfied on reasonable grounds that there is an immediate risk of harm to the property of a missing person if the order were not made. (2) As soon as practicable after making an administration (missing person) order that is an urgent order (but within 42 days after making such an order) VCAT must hold a hearing to determine whether an administration (missing person) order that is not an urgent order should be made. -- 100 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 93 Authorised by the Chief Parliamentary Counsel Division 3—Powers of administrators for missing persons 110 Powers of administrators for missing persons (1) An administration (missing person) order confers on the person appointed as administrator— (a) a power to make decisions about the financial matters in relation to the missing person specified in the order; and (b) a power of investment in accordance with section 111; and (c) a power to open the will of the missing person in accordance with section 112; and (d) any other power that is specified in the order; and Note Sections 113 and 114 provide for powers which may be specified in an administration (missing person) order. (e) a power to sign and do any thing that is necessary to give effect to any power or duty vested in the administrator; and (f) a power to do all matters necessary or incidental to the performance of any power conferred on the administrator. (2) For the purposes of subsection (1)(d), VCAT may only specify a power if VCAT is satisfied that the power is necessary or desirable for the purposes of promoting the personal and social wellbeing of the missing person. (3) Subject to, and in accordance with, this Act and the administration (missing person) order, an administrator may do all acts and exercise all powers in relation to the financial matters specified in the order in the name, and on behalf, -- 101 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 94 Authorised by the Chief Parliamentary Counsel of the missing person as effectually and in the same manner as the missing person may have done if the missing person were not missing and had the relevant decision-making capacity. (4) A decision made, action taken, consent given or thing done by an administrator under a administration (missing person) order has effect as if it were made, taken, given or done by the missing person and the missing person were not missing and had the decision-making capacity for the matter in relation to which the order was made. 111 Powers of investment Except as provided in section 136 or in any order of VCAT, an administrator— (a) in the case of investments of the missing person, may continue those investments in the manner in which they were invested by the missing person for such period as the administrator thinks fit, including taking up rights to issues of new shares and options; and (b) in the case of money deposited in an ADI, may re-deposit it after it becomes payable; and (c) in the case of property, has, and may, exercise the same powers as the administrator would have if the administrator were a trustee in relation to that property under the Trustee Act 1958. 112 Power to open will An administrator may open and read without an order of VCAT any paper or writing deposited with the administrator that is a will, a revoked will, a purported will or a copy of a will of the missing person. -- 102 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 95 Authorised by the Chief Parliamentary Counsel 113 Power to undertake legal proceedings (1) VCAT may specify in an administration (missing person) order that the administrator has power to bring and defend an action or other legal proceeding in the name, and on behalf, of the missing person if the action or other legal proceeding is in relation to a financial matter specified in the order. (2) An administrator on whom the power to bring and defend actions and other legal proceedings is conferred is not required to be appointed a litigation guardian in accordance with rules of the relevant court or tribunal. (3) If an administrator undertakes a legal proceeding in accordance with subsection (1), the costs of the proceeding are to be paid out of the missing person's estate. (4) Despite subsection (3), a court or tribunal may order that an administrator is personally liable to pay for any costs of the legal proceeding if the administrator was negligent or engaged in misconduct. (5) A court or tribunal may order that a person who is or was an administrator be reimbursed from the missing person's estate for any costs incurred by the person as an administrator in bringing or defending an action or other legal proceeding in accordance with subsection (1). 114 Other powers that may be specified in administration (missing person) order VCAT may specify in an administration (missing person) order that the administrator has any or all of the following powers in relation to a financial matter specified in the order— -- 103 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 96 Authorised by the Chief Parliamentary Counsel (a) the power to 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; (b) the power to invest any money in any security in which a trustee may by law invest; (c) the power to 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; (d) the power to exercise, to the extent and in the manner the administrator thinks fit, any power of leasing vested in the missing person; (e) the power to surrender any lease, accept any lease, accept the surrender of any lease or renew any lease; (f) the power to bring land under the Transfer of Land Act 1958; (g) the power, with the approval of VCAT, to sell, exchange, partition or convert into money any property; (h) the power to mortgage or charge any property; (i) the power to pay any debts and settle, adjust or compromise any demand made by or against the missing person's estate and discharge any encumbrance on the missing person's estate; -- 104 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 97 Authorised by the Chief Parliamentary Counsel (j) the power to carry on, to the extent the administrator thinks appropriate, any trade, profession or business which the missing person carried on; (k) the power to agree to any alteration of a condition of any partnership into which the missing person has entered or to a dissolution and distribution of the assets of the partnership; (l) the power to execute and sign deeds, instruments and other documents; (m) the power to complete any contract for the performance of which the missing person was liable, or enter into any agreement terminating liability; (n) the power to pay a sum 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; and (ii) the education of any child of the missing person; (o) any other relevant power in relation to a specified financial matter. 115 Matters for which power cannot be given under an administration (missing person) order Despite anything to the contrary in this Part, an administration (missing person) order does not confer on the person appointed as administrator the power— (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 -- 105 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 98 Authorised by the Chief Parliamentary Counsel (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 in a local election or a referendum; or (d) to consent to the entering into, or the dissolving of, a marriage of the missing person; or (e) to make or give effect to a decision about— (i) the care and wellbeing of a child of the missing person; or (ii) the adoption of a child under the age of 18 years 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 (h) to manage the estate of the missing person on the death of the missing person; or (i) to consent to an unlawful act. Division 4—Duties of administrators under administration (missing person) orders 116 Exercise of power by administrator An administrator must— (a) take actions that the administrator considers necessary or desirable for— (i) the payment of the debts and engagements of, and otherwise for the benefit of, the missing person; and -- 106 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 99 Authorised by the Chief Parliamentary Counsel (ii) the maintenance and benefit of dependants of the missing person; and (iii) the care and management of the property of the missing person; and (b) act in accordance with the decision-making principles set out in section 9; and (c) act as an advocate for the missing person; and (d) act honestly, diligently and in good faith; and (e) exercise reasonable skill and care; and (f) not use the position for profit unless permitted under section 175 or otherwise authorised by law; and (g) avoid acting if there is or may be a conflict of interest unless so authorised under this Act, by order of VCAT or otherwise by law; and (h) not disclose confidential information gained as an administrator unless authorised to do so under the administration (missing person) order or by law. 117 Property of missing person Subject to, and in accordance, with this Act and the administration (missing person) order, the administrator must— (a) take possession and care of, recover, collect, preserve and administer the property and estate of the missing person; and (b) generally manage the property and financial affairs of the missing person. -- 107 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 100 Authorised by the Chief Parliamentary Counsel 118 Conflict transactions (1) Subject to section 119, an administrator must not enter into a transaction in the capacity of administrator if the transaction is one in which there is, or may be, a conflict between— (a) the duty of the administrator to the missing person; and (b) the interests of the administrator, or of a relative, business associate or close friend of the administrator. (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 114(n); 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 in respect of a transaction referred to in subparagraph (i). 119 Permitted conflict transactions (1) An administrator may enter into a transaction prohibited by section 118(1) if VCAT authorises the administrator at or before the time of the transaction to enter into— (a) the transaction; or (b) a transaction of a similar nature; or -- 108 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 101 Authorised by the Chief Parliamentary Counsel (c) any transaction prohibited by section 118(1). (2) Despite section 118(1), VCAT may validate a transaction prohibited under that section. (3) A transaction validated under subsection (2) is taken to be valid from the time it was entered into. 120 Keeping records An administrator must keep accurate records and accounts of all dealings and transactions made by the administrator in relation to the financial matters specified in the administration (missing person) order. 121 Separation of administrator's property and missing person's property (1) An administrator 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. 122 Accounts (1) VCAT may, at the time it appoints an administrator or at any later time, appoint a person to examine or audit the accounts of all dealings and transactions relating to the financial matters specified in the administration (missing person) order for a fee approved by VCAT and paid from the missing person's estate. (2) Unless VCAT otherwise directs, on, or as soon as practicable after, the anniversary in each year of the appointment of the administrator, the administrator must lodge with VCAT an account -- 109 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 102 Authorised by the Chief Parliamentary Counsel of the dealings and transactions relating to the financial matters specified in the administration (missing person) order during the previous 12 months. (3) Despite subsection (2), VCAT may require an administrator to lodge accounts at a time other than the time specified in that subsection. (4) An account lodged under subsection (2) or (3) must provide a full and true account of the assets and liabilities of the missing person in relation to the financial matters specified in the administration (missing person) order and of all receipts and disbursements in relation to those financial matters made during the previous 12 months. (5) A person appointed under subsection (1) to examine or audit the accounts— (a) must lodge with VCAT a report in relation to the accounts examined or audited; and (b) 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 makes an order disallowing an item referred to in subsection (5), the administrator is liable for the amount of the item disallowed. 123 Payments to person examining or auditing accounts (1) An administrator must pay to a person appointed under section 122(1) an amount certified by that person as being the reasonable cost of examining or auditing the accounts referred to in that section. -- 110 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 103 Authorised by the Chief Parliamentary Counsel (2) On the application by the administrator, and with the consent of the person appointed under section 122(1) to examine or audit the accounts, VCAT may waive payment of the whole or part of the amount required to be paid under subsection (1). 124 Administrator to notify VCAT about status of missing person An administrator must notify VCAT in writing as soon as practicable after the administrator becomes aware that— (a) the missing person is alive (either in Victoria or elsewhere); or (b) the missing person has died. Division 5—Other matters pertaining to administration (missing person) orders 125 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 under the 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 a proceeding 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 represented person or missing person. (3) After considering an application for advice or on its own initiative, VCAT may— (a) approve or disapprove of any act proposed to be done by the administrator; and -- 111 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 104 Authorised by the Chief Parliamentary Counsel (b) give advice as it considers appropriate; and (c) make any order it considers necessary. (4) An action does not lie against an administrator on account of an act or thing done or omitted to be done by the administrator under any order or on the advice of VCAT made or given under this section unless, in representing the facts to VCAT, the administrator is guilty of fraud, wilful concealment or misrepresentation. 126 Administrator may seek advice from professional adviser (1) An administrator may seek advice from a professional adviser about the financial matters specified in the administration (missing person) order. (2) An administrator is entitled to be reimbursed from the missing person's estate for any costs paid by the administrator in the course of obtaining professional advice. (3) In this section— professional adviser means a person who provides professional advice to administrators and includes a financial adviser, a legal practitioner and an accountant. 127 VCAT may open will VCAT may open and read any paper or writing that is a will, a revoked will, a purported will or a copy of a will of a missing person. 128 VCAT may compel production of will VCAT may make an order compelling a person who has possession or control of a will, a revoked will or a purported will of a missing person to produce that document to VCAT— -- 112 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 105 Authorised by the Chief Parliamentary Counsel (a) for the purposes of section 127 or 129; or (b) on the application of an administrator. 129 VCAT may make copy of will available to administrator VCAT may make available to an administrator a full or redacted copy of a will, a revoked will or a purported will of the missing person if VCAT is satisfied that it is reasonable to make the full or redacted copy available in the circumstances, taking into account whether— (a) the copy will assist the administrator to make decisions about the financial matters specified in the administration (missing person) order; and (b) the administrator is also a beneficiary under the will. 130 VCAT to notify administrator if person ceases to be a missing person (1) If VCAT knows that a person has ceased to be a missing person or that a missing person has died, VCAT must give notice of that fact to the administrator as soon as practicable. (2) An administrator may exercise all or any of the powers given to the administrator by the administration (missing person) order until the administrator knows that the missing person has ceased to be a missing person or has died. 131 Actions of administrator taken to be actions of former missing person On and after VCAT gives notice to an administrator under section 130(1), the former missing person or that person's personal representative (as the case requires) is bound by, and may take advantage of, any act done on behalf of the missing person by -- 113 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 106 Authorised by the Chief Parliamentary Counsel the administrator within the powers conferred on the administrator by VCAT as if— (a) the act had been done by the missing person; and (b) the missing person had decision-making capacity to do the act. 132 Administrator to pay to former missing person any money outstanding (1) If an administrator receives a notice under section 130 or is otherwise informed that a person has ceased to be a missing person or a missing person has died, the administrator must— (a) pay or cause to be paid to the person or to the person's personal representative (as the case requires) all money standing to the person's credit with the administrator; and (b) deliver to the person or to the person's personal representative (as the case requires) all property of the person that is in the custody of the administrator and, subject to an order under section 134, 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 administrator and all costs, expenses and liabilities incurred by the administrator in relation to the dealings and transactions made for the financial matters specified in the administration (missing person) order. (3) The receipt by a person who has ceased to be a missing person or by that person's personal representative is an absolute discharge to an administrator despite any informality in the discharge or certification. -- 114 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 107 Authorised by the Chief Parliamentary Counsel 133 Former missing person entitled to inspection of accounts Subject to an order under section 134, a person who has ceased to be a missing person (or the personal representative of such a person), before or after obtaining the restoration of all or any part of the person's money or other property from the administrator— (a) may examine and inspect, or cause a legal practitioner or other authorised agent to examine and inspect, all books, accounts, notices and other documents in the custody of the administrator relating to the dealings and transactions made for the financial matters specified in the administration (missing person) order and make or cause to be made copies of, or extracts from, these items; and (b) must be provided with— (i) copies of or extracts from any book, account, notice or document relating to the dealings and transactions made for the financial matters specified in the administration (missing person) order by the administrator; and (ii) information relating to the dealings and transactions made for the financial matters specified in the administration (missing person) order by the administrator that is reasonable to request and that can be given by the administrator. -- 115 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 108 Authorised by the Chief Parliamentary Counsel 134 VCAT order that delivery of, or access to, documents be withheld (1) An administrator may apply to VCAT for an order that a book, account, notice or other document (or any part of such book, account, notice or other document) in the custody of the administrator relating to the property or financial affairs of a former missing person be withheld from the person specified in the order or a person belonging to a class of person specified in the order. (2) VCAT may make an order referred to in subsection (1) if VCAT is satisfied that— (a) it is in the interests of the former missing person that the information, or part of the information, contained in the book, account, notice or other document remain confidential; or (b) the book, account, notice or other document contains confidential information about another person. 135 Sale of personal effects if unclaimed within 2 years after person ceases to be missing person (1) After public notice, an administrator may sell any personal effect of a former missing person that— (a) is in the administrator's possession; and (b) is not claimed within 2 years after the date on which the person ceased to be a missing person. (2) The proceeds of a sale referred to in subsection (1) are to be paid into the Consolidated Fund. -- 116 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 109 Authorised by the Chief Parliamentary Counsel 136 Interest of missing person in property not to be altered by sale or other disposition of property (1) A missing person and a beneficiary of a missing person have the same interest in any money or other property arising from or received in respect of any sale, mortgage, exchange, partition or other disposition under the powers conferred on an administrator by an administration (missing person) order which have not been applied under those powers that the missing person or beneficiary would have had in the property the subject of the sale, mortgage, exchange, partition or disposition if no sale, mortgage, exchange, partition or disposition had been made. (2) For the purposes of this section, money arising from the compulsory acquisition or purchase under any Act of property of a missing person is taken to be money arising from the sale of that property under the powers conferred on an administrator under an administration (missing person) order. (3) An administrator is not required to keep the proceeds of the sale or other disposition of property under this section separate from the missing person's other assets. (4) Money received by an administrator under this section may be invested in any manner in which trust funds may be invested under the Trustee Act 1958. (5) In this section, beneficiary of a missing person means— (a) a beneficiary under the will of a missing person; or -- 117 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 110 Authorised by the Chief Parliamentary Counsel (b) a missing person's executor; or (c) a missing person's administrator under the Administration and Probate Act 1958. 137 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 a financial matter specified in the administration (missing person) order may apply to VCAT on any matter arising out of any dealing or transaction in relation to that financial matter. (2) VCAT may make any order in relation to the application which VCAT considers appropriate. (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. 138 Order to revoke administration (missing person) order (1) VCAT may, by order, revoke an administration (missing person) order— (a) on application by the person who was the missing person; or (b) on application by the administrator or any other person, if satisfied 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. -- 118 of 192 -- Part 5—Administration (missing person) orders Guardianship and Administration Act 2019 No. 13 of 2019 111 Authorised by the Chief Parliamentary Counsel (2) VCAT must, by order, revoke an administration (missing person) order— (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 (c) if the presumption of death is 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 property or affairs of the missing person becomes subject to an order under section 24A of the Administration and Probate Act 1958. 139 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. -- 119 of 192 -- Part 6—Special medical procedures Guardianship and Administration Act 2019 No. 13 of 2019 112 Authorised by the Chief Parliamentary Counsel Part 6—Special medical procedures 140 Definitions In this Part— medical treatment decision maker has the same meaning as in the Medical Treatment Planning and Decisions Act 2016; patient means a person with a disability (irrespective of whether the person is or is not a represented person) who— (a) is of or over the age of 18 years; and (b) does not have decision-making capacity in relation to giving consent to the carrying out of a special medical procedure; special medical procedure means— (a) any procedure that is intended, or is reasonably likely, to have the effect of rendering permanently infertile the person on whom it is carried out; or (b) a termination of pregnancy; or (c) any removal of tissue for the purposes of transplantation to another person; or (d) any other medical treatment within the meaning of the Medical Treatment Planning and Decisions Act 2016 that is prescribed under this Act to be a special medical procedure for the purposes of this Part. 141 VCAT may consent to special medical procedure Subject to section 145, VCAT may give consent to the carrying out of a special medical procedure on a patient. -- 120 of 192 -- Part 6—Special medical procedures Guardianship and Administration Act 2019 No. 13 of 2019 113 Authorised by the Chief Parliamentary Counsel 142 Effect of consent A consent given in accordance with this Part has effect as if— (a) the patient had decision-making capacity in relation to giving consent to the carrying out of the special medical procedure; and (b) the special medical procedure was carried out with the consent of the patient. 143 Application for VCAT's consent to special medical procedure (1) An application to VCAT for VCAT's consent to the carrying out of a special medical procedure on a patient may be made by— (a) the patient's medical treatment decision maker; or (b) any person VCAT determines to have a special interest in the affairs of the patient. (2) A patient in relation to whom an application for VCAT's consent is made under this Part is a party to the proceeding. (3) VCAT must give the Public Advocate and any other person VCAT determines to have a special interest in the affairs of the patient— (a) notice of the application for VCAT's consent to the carrying out of the special medical procedure on the patient; and (b) notice of the hearing of the application and of any order in relation to the application; and (c) notice of any direction or advisory opinion in relation to the application. -- 121 of 192 -- Part 6—Special medical procedures Guardianship and Administration Act 2019 No. 13 of 2019 114 Authorised by the Chief Parliamentary Counsel 144 Date for hearing VCAT must commence to hear an application under this Part within 30 days after the day on which the application is received by VCAT. 145 Consent of VCAT to special medical procedure (1) On hearing an application under this Part, VCAT may consent to the carrying out of a special medical procedure if VCAT is satisfied that— (a) the patient has not given an instructional directive (within the meaning of the Medical Treatment Planning and Decisions Act 2016) in relation to the special medical procedure; and (b) the patient does not have decision-making capacity in relation to giving consent; and (c) the patient is not likely to have decision-making capacity in relation to giving consent within a reasonable time; and (d) the patient would consent to the carrying out of the special medical procedure if the patient had decision-making capacity in relation to giving consent. (2) For the purposes of determining whether VCAT is satisfied as to the matter set out in subsection (1)(d)— (a) first, if the patient has given a valid and relevant values directive (within the meaning of the Medical Treatment Planning and Decisions Act 2016), VCAT must consider the values directive; and (b) second, VCAT must take into account any other relevant preferences that the patient has expressed and the circumstances in which those preferences were expressed; and -- 122 of 192 -- Part 6—Special medical procedures Guardianship and Administration Act 2019 No. 13 of 2019 115 Authorised by the Chief Parliamentary Counsel (c) if VCAT is unable to identify any relevant preferences under paragraphs (a) and (b), VCAT must give consideration to the patient's values whether— (i) expressed other than by way of a values directive; or (ii) inferred from the patient's life; and (d) VCAT must also consider— (i) the likely effects and consequences of the special medical procedure, including the likely effectiveness of the procedure and whether these are consistent with the patient's preferences or values; and (ii) whether there are any alternatives, including refusing the special medical procedure, that would be more consistent with the patient's preferences or values. (3) If VCAT is unable to apply the process required by subsection (2) because it is not possible to ascertain or apply the patient's preferences or values, VCAT may consent to the carrying out of the special medical procedure if— (a) VCAT is satisfied that the special medical procedure will promote the personal and social wellbeing of the patient, having regard to the need to respect the patient's individuality; and (b) VCAT has considered— (i) the likely effects and consequences of the special medical procedure, including the likely effectiveness of the procedure; and -- 123 of 192 -- Part 6—Special medical procedures Guardianship and Administration Act 2019 No. 13 of 2019 116 Authorised by the Chief Parliamentary Counsel (ii) whether there are any alternatives, including refusing the special medical procedure, that would better promote the patient's personal and social wellbeing. (4) In the case of either subsection (2) or (3), VCAT must also consult any other person who VCAT reasonably believes the patient would want to be consulted in the circumstances. 146 VCAT may confer authority to consent to continuing or further special medical procedure (1) If VCAT consents to the carrying out of a special medical procedure on a patient, subject to subsection (2), VCAT may confer authority on the patient's medical treatment decision maker to consent to— (a) the continuation of the special medical procedure; or (b) the carrying out of any further special medical procedure of a similar nature. (2) VCAT may confer an authority under this section only at the request, or with the consent, of the patient's medical treatment decision maker. (3) If a person on whom VCAT has conferred authority under this section ceases to be the patient's medical treatment decision maker, on the application of the patient's new medical treatment decision maker, VCAT may confer authority under this section on the new medical treatment decision maker. (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. -- 124 of 192 -- Part 6—Special medical procedures Guardianship and Administration Act 2019 No. 13 of 2019 117 Authorised by the Chief Parliamentary Counsel (5) If VCAT confers an authority under this section, a person may request the consent of the patient's medical treatment decision maker to the continuation of the special medical procedure or any further special medical procedure of a similar nature. 147 Special medical procedure without consent of VCAT an offence (1) Subject to section 53 of the Medical Treatment Planning and Decisions Act 2016, a registered medical practitioner must not carry out, or supervise the carrying out of, any special medical procedure on a patient unless— (a) VCAT has consented to the carrying out of that procedure; or (b) the patient's medical treatment decision maker (with authority to consent to the continuation of the special medical procedure or a further special medical procedure under section 146) has consented to the carrying out of that procedure. Penalty: Imprisonment for 2 years or 240 penalty units or both. (2) A registered medical practitioner who, in good faith and without negligence, carries out, or supervises the carrying out of, a special medical procedure on a patient in the belief on reasonable grounds that the requirements of this Part have been complied with— (a) is not guilty of an offence; and (b) is not liable for unprofessional conduct or professional misconduct; and (c) is not liable in any civil proceeding; and (d) is not liable for a contravention of any code of conduct. -- 125 of 192 -- Part 6—Special medical procedures Guardianship and Administration Act 2019 No. 13 of 2019 118 Authorised by the Chief Parliamentary Counsel (3) Nothing in this Part affects any duty of care owed by a registered medical practitioner to a patient. 148 Refusal of consent to special medical procedure under an instructional directive A registered medical practitioner must not carry out a special medical procedure under this Part if the patient has refused consent to the procedure under an instructional directive within the meaning of the Medical Treatment Planning and Decisions Act 2016. 149 Unlawful consent to special medical procedure an offence A person must not purport to give consent on behalf of a patient to the continuation of a special medical procedure or a further special medical procedure unless— (a) the person knows that the person is authorised under section 146 to give such consent; or (b) the person believes on reasonable grounds that the person is authorised under section 146 to give such consent. Penalty: 20 penalty units. -- 126 of 192 -- Part 7—Rehearings and reassessment of orders Guardianship and Administration Act 2019 No. 13 of 2019 119 Authorised by the Chief Parliamentary Counsel Part 7—Rehearings and reassessment of orders Division 1—Rehearings 150 Application for rehearing of application for order (1) The Public Advocate and any person who was a party to an application in relation to which VCAT made an order under this Act (other than an urgent order appointing a guardian or an administrator) 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 urgent order appointing a guardian or an administrator) 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. 151 Application for rehearing of reassessment of order If VCAT makes an order on a reassessment under section 167 conducted on VCAT's own initiative, a party to the reassessment or a person entitled to notice of the reassessment may, if VCAT gives leave, apply to VCAT for a rehearing of the reassessment. 152 When may application for rehearing of application or for leave to apply for rehearing of application or rehearing of reassessment be made? (1) An application under this Division for— (a) a rehearing of an application; or (b) leave to apply for a rehearing of an application; or -- 127 of 192 -- Part 7—Rehearings and reassessment of orders Guardianship and Administration Act 2019 No. 13 of 2019 120 Authorised by the Chief Parliamentary Counsel (c) leave to apply for a rehearing of a reassessment— must be made within 28 days after the day on which VCAT makes the order on the rehearing or the reassessment. (2) For the purposes of subsection (1), 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 on which the order is made. 153 Matters for which application for rehearing cannot be made A person cannot apply for a rehearing of— (a) an application in relation to which an order was made by VCAT constituted by the President (whether with or without others); or (b) an application for a rehearing; or (c) an application for leave to apply for a rehearing of an application; or (d) an application for leave to apply for a rehearing of a reassessment. 154 Who are the parties to a rehearing? The following persons are parties to a rehearing— (a) in the case of the rehearing of an application referred to in section 150— (i) the applicant for the rehearing; and (ii) any person who was a party to the proceeding on the application at first instance; -- 128 of 192 -- Part 7—Rehearings and reassessment of orders Guardianship and Administration Act 2019 No. 13 of 2019 121 Authorised by the Chief Parliamentary Counsel (b) in the case of the rehearing of a reassessment referred to in section 151— (i) the applicant for the rehearing; and (ii) any person who was a party to that reassessment; (c) any other person VCAT orders to be joined as a party. Note Section 60 of the VCAT Act provides that VCAT may in certain circumstances order that a person be joined as a party to a proceeding. 155 Who is entitled to notice of an application for a rehearing? 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 150, a person who was entitled to notice of that application; (b) in the case of the rehearing of a reassessment referred to in section 151, a person who was entitled to notice of the reassessment; (c) any other person VCAT directs be given notice. 156 Participation of proposed represented person or represented person at hearing The proposed represented person, represented person, proposed supported person or supported person (as the case requires) must attend in person a hearing conducted by VCAT in relation to an application made under this Division unless VCAT is satisfied that— (a) the person does not wish to attend the hearing in person; or -- 129 of 192 -- Part 7—Rehearings and reassessment of orders Guardianship and Administration Act 2019 No. 13 of 2019 122 Authorised by the Chief Parliamentary Counsel (b) the personal attendance of the 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. 157 Rehearing (1) On an application made under section 150 or 151, 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. 158 Effect of first instance order pending rehearing (1) Subject to subsection (2), the making of an application for a rehearing— (a) does not affect the operation of any order to which the application relates; and (b) does not prevent the taking of action to enforce any order to which the application relates. (2) VCAT may make an order staying the operation of an order pending the determination of the application for a rehearing to which the order relates. -- 130 of 192 -- Part 7—Rehearings and reassessment of orders Guardianship and Administration Act 2019 No. 13 of 2019 123 Authorised by the Chief Parliamentary Counsel Division 2—Reassessment of orders 159 Reassessment (1) This section applies in relation to the following orders— (a) a guardianship order; (b) a supportive guardianship order; (c) an administration order; (d) a supportive administration order; (e) an administration (missing person) order. (2) VCAT must conduct a reassessment of an order— (a) within 12 months after making the order, unless VCAT orders otherwise; and (b) in any case, at least once within each 3 year period after making the order, unless VCAT orders otherwise. (3) VCAT, on its own initiative or on the application of any other person, may conduct at any time a reassessment of any order to which this section applies. 160 Matters to be included in application to VCAT A person applying to VCAT for a reassessment must include the following in the application— (a) the name and contact details of the represented person, supported person or missing person, as the case requires; (b) the type of order referred to in section 159 to which the application relates; (c) details of the reasons for making the application; -- 131 of 192 -- Part 7—Rehearings and reassessment of orders Guardianship and Administration Act 2019 No. 13 of 2019 124 Authorised by the Chief Parliamentary Counsel (d) the name and contact details of the guardian, administrator, supportive guardian or supportive administrator, as the case requires; (e) the name and contact details of the applicant and of any person who has a direct interest in the application (if known to the applicant); Note Persons having a direct interest includes, amongst others, the relatives of the represented person, supported person or missing person, any primary carer, close friends, any attorney appointed under an enduring power of attorney and any supportive attorney appointed under the Powers of Attorney Act 2014. (f) any support needs of the represented person or supported person, as the case requires. Note Section 67 of the VCAT Act sets out additional requirements in relation to making an application. 161 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 requires; (c) the guardian, administrator, supportive guardian or supportive administrator, as the case requires; (d) any other person VCAT orders to be joined as a party to the reassessment. Note Section 60 of the VCAT Act provides that VCAT may in certain circumstances order that a person be joined as a party to a proceeding. -- 132 of 192 -- Part 7—Rehearings and reassessment of orders Guardianship and Administration Act 2019 No. 13 of 2019 125 Authorised by the Chief Parliamentary Counsel 162 Who is entitled to notice of a reassessment, the hearing and any order made in the proceeding? For the purposes of sections 72(1), 99(1) and 116(2) of the VCAT Act, the following persons are entitled to a notice referred to in each of those sections— (a) any party to a reassessment under this Division; (b) the spouse or domestic partner of the represented person, supported person or missing person, if any; (c) the primary carer of the represented person or supported person, if any; (d) any person referred to in the application as having a direct interest in the application; (e) any other person VCAT directs be given notice. Note Section 72(1) of the VCAT Act provides that an applicant for a VCAT order must serve a copy of the application on each party, each other person entitled to notice of the application under the enabling enactment (which is this Act) and each other person that VCAT so directs. Section 99(1)(b) of the VCAT Act provides that the principal registrar of VCAT must give notice of the time and place for the hearing of a proceeding to a person entitled to notice of the proceeding or hearing under the enabling enactment. Section 116(2)(a) of the VCAT Act provides that VCAT must give a copy of any order it makes in a proceeding to each party and each other person entitled to notice of the proceeding or of the order under the enabling enactment. 163 Contents of notice of application for a reassessment (1) A notice of an application for a reassessment given to a party to the application must include the following— -- 133 of 192 -- Part 7—Rehearings and reassessment of orders Guardianship and Administration Act 2019 No. 13 of 2019 126 Authorised by the Chief Parliamentary Counsel (a) a copy of the application for the reassessment and any information filed in support of the application subject to clause 37A of Part 9 of Schedule 1 to the VCAT Act; Note Clause 37A of Part 9 of Schedule 1 to the VCAT Act provides that a person may make an application to the principal registrar of VCAT that any documents lodged in relation to a proceeding under this Act not be disclosed to a specified person or class of persons. (b) the names of— (i) the parties to the proceeding; and (ii) the other persons entitled to the notice under section 162; (c) information about the rights of the party in relation to the application. (2) A notice of an application for a reassessment given to a person referred to in section 162 who is not a party to the application must include the following— (a) a copy of the application; (b) the names of— (i) the parties to the reassessment; and (ii) the other persons entitled to the notice under section 162; (c) information about the rights of the person to seek information about the application; (d) information about how to apply to VCAT to be made a party to the proceeding. -- 134 of 192 -- Part 7—Rehearings and reassessment of orders Guardianship and Administration Act 2019 No. 13 of 2019 127 Authorised by the Chief Parliamentary Counsel 164 Conduct of reassessment on VCAT's initiative (1) Before conducting a reassessment on its own initiative, VCAT must determine whether— (a) to conduct a hearing in relation to the reassessment; or (b) to reassess the relevant order on the papers. (2) In making a determination under subsection (1), VCAT must take reasonable steps to contact the represented person or supported person (as the case requires) to ascertain whether the person wishes VCAT to conduct a hearing or to reassess the relevant order on the papers. (3) If VCAT determines to conduct a hearing in relation to a reassessment on its own initiative, VCAT must give notice of the reassessment, at least 7 days before the proposed day of the hearing, to the parties and to the following persons— (a) the spouse or domestic partner of the represented person, supported person or missing person, if any; (b) the primary carer of the represented person or supported person, if any; (c) the nearest relative available (other than the spouse or domestic partner) of the represented person, supported person or missing person, if any; (d) any person VCAT determines to have an interest in the reassessment. (4) If VCAT does not propose to amend, vary or replace the relevant order and intends to conduct the reassessment on the papers, VCAT may give notice to the parties and each person specified in subsection (3) that the party or person has 14 days -- 135 of 192 -- Part 7—Rehearings and reassessment of orders Guardianship and Administration Act 2019 No. 13 of 2019 128 Authorised by the Chief Parliamentary Counsel after the date of the notice to request, in writing, a hearing of the reassessment. (5) If any of the parties or persons to whom a notice is given under subsection (4) requests a hearing within 14 days after the date of the notice, VCAT must give at least 7 days' notice of the hearing to each of the parties and persons. (6) If none of the parties or persons to whom a notice is given under subsection (4) requests a hearing within 14 days after the date of the notice, VCAT is not required to hold a hearing of the reassessment. (7) VCAT may, in a notice under subsection (4) or (5), advise that a person to whom the notice is given (other than a party) is not required to attend the hearing if that person does not have any matters to raise with VCAT in relation to the reassessment. 165 Participation of represented person or supported person at hearing The represented person or supported person must attend in person a hearing conducted by VCAT in relation to a reassessment under this Division unless VCAT is satisfied that— (a) the represented person or supported person does not wish to attend the hearing in person; or (b) the personal attendance 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. -- 136 of 192 -- Part 7—Rehearings and reassessment of orders Guardianship and Administration Act 2019 No. 13 of 2019 129 Authorised by the Chief Parliamentary Counsel 166 VCAT to consider role of appointed person In the course of conducting a reassessment of an order referred to in section 159(1), VCAT must consider whether, as the case requires— (a) the guardian appointed at first instance has performed duties in compliance with section 41; or (b) the administrator appointed at first instance in an administration order has performed duties in compliance with section 55; or (c) the supportive guardian or supportive administrator appointed at first instance has performed duties in compliance with section 94; or (d) the administrator appointed at first instance in an administration (missing person) order has performed duties in compliance with section 116. 167 Order after reassessment (1) On completing a reassessment of an order referred to in section 159(1), VCAT may by order— (a) amend, vary, continue or replace the relevant order subject to any conditions or requirements it considers necessary; or (b) revoke the relevant order. (2) If the Public Advocate is appointed as guardian for a represented person in 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. -- 137 of 192 -- Part 8—Interstate orders Guardianship and Administration Act 2019 No. 13 of 2019 130 Authorised by the Chief Parliamentary Counsel Part 8—Interstate orders 168 Application of Part This Part applies to— (a) a guardianship order, a supportive guardianship order, an administration order or a supportive administration 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 in Victoria; and (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 in Victoria. 169 Definitions In this Part— corresponding law means a law that is declared to be a corresponding law by an Order in Council made under section 170; 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, a supportive guardianship order, an administration order, a supportive administration order or an administration (missing person) order; interstate order means an order made under a corresponding law of a participating State or Territory; -- 138 of 192 -- Part 8—Interstate orders Guardianship and Administration Act 2019 No. 13 of 2019 131 Authorised by the Chief Parliamentary Counsel participating State or Territory means a State or Territory of the Commonwealth in which a corresponding law is in force. 170 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 another State or of a Territory of the Commonwealth 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 a Territory may include a declaration that an order under that law is substantially similar to a guardianship order, a supportive guardianship order, an administration order, a supportive administration order or an administration (missing person) order for the purposes of this Part. 171 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. 172 Registration of interstate orders (1) VCAT may register an interstate order on the application of— (a) a guardian, a supportive guardian, an administrator or a supportive administrator in a participating State or Territory; or (b) the Public Advocate. -- 139 of 192 -- Part 8—Interstate orders Guardianship and Administration Act 2019 No. 13 of 2019 132 Authorised by the Chief Parliamentary Counsel (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 for the represented person if no other person fulfils the requirements of section 32 for appointment as guardian for 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 that is registered under this Part has the same force and effect according to its terms as a guardianship order, a supportive guardianship order, an administration order, a supportive administration order or an administration order (missing person) order (as the case requires) that is made under this Act. (5) A guardianship order, a supportive guardianship order, an administration order, a supportive administration order or an administration (missing person) order made under this Act is not revoked in Victoria if that order is registered in a participating State or Territory. 173 Reassessment of interstate orders (1) An interstate order (other than an administration (missing person) order) that is registered under this Part may be reassessed by VCAT in accordance with Division 2 of Part 7. (2) VCAT may make any order that it is authorised to make under Division 2 of Part 7 in relation to an interstate order that is registered under this Part, including an order appointing a new guardian, supportive guardian, administrator or supportive administrator. -- 140 of 192 -- Part 8—Interstate orders Guardianship and Administration Act 2019 No. 13 of 2019 133 Authorised by the Chief Parliamentary Counsel (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. (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. 174 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. -- 141 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 134 Authorised by the Chief Parliamentary Counsel Part 9—General provisions 175 Remuneration of administrators (1) An administrator (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 or missing person for acting as administrator unless VCAT otherwise specifies in the administration order or administration (missing person) order, as the case requires. (2) Remuneration to which an administrator who carries on a business of, or including, the administration of estates is entitled must be— (a) in accordance with a scale in relation to remuneration for administrators that is fixed by rules made under the VCAT Act; or (b) as determined by VCAT. (3) Despite subsection (2), remuneration determined by VCAT in relation to a licensed trustee company (within the meaning of section 601RAA of the Corporations Act) 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 an administrator to provide VCAT with any account in the administrator's custody in relation to dealings and transactions relating to the financial matters specified in the administration order or administration (missing person) order (as the case requires) for the purpose of examining those accounts and determining whether the administrator has complied with the requirements of this Act, any order made by VCAT or any approval or specification made by VCAT in relation to remuneration under this section. -- 142 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 135 Authorised by the Chief Parliamentary Counsel (5) VCAT may require by order an administrator to pay to the estate of the represented person or missing person any remuneration or other reward paid or deducted from the estate which VCAT specifies. 176 Costs incurred by administrator (1) A court or tribunal may order that the costs incurred by an administrator arising from the administrator's dealings and transactions relating to the financial matters specified in the administration order or administration (missing person) order may be paid out of, or reimbursed from, the estate of the represented person or missing person, whether or not the appointment as administrator is no longer in force or is revoked or set aside. (2) An order referred to in subsection (1) may be made on an application under section 64 or 125 or otherwise, and for that purpose, a reference in section 64 or 125 to an administrator is taken to include a reference to a person whose appointment as an administrator has been revoked or set aside. 177 Resolution of disagreements between persons appointed as guardians or administrators (1) This section applies if— (a) VCAT appoints for the same represented person— (i) more than one guardian; or (ii) more than one administrator; or (iii) both a guardian and an administrator; or (b) VCAT appoints for the same missing person more than one administrator. -- 143 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 136 Authorised by the Chief Parliamentary Counsel (2) A guardian or administrator must consult any other guardian or administrator appointed for the same represented person or missing person (as the case requires) in relation to any overlap in the exercise, in accordance with the relevant orders made under this Act, of the guardian's or administrator's powers. (3) If there is a disagreement between persons appointed as a guardian or an administrator for the same represented person or missing person (as the case requires) about the exercise of their respective powers under each relevant order, the appointed persons must— (a) first, seek to resolve the disagreement by informal means or by mediation; and (b) second, if the disagreement continues, seek advice from VCAT about how to resolve the disagreement. (4) Unless otherwise agreed by each person appointed as a guardian or an administrator for the same represented person or unless otherwise directed by VCAT— (a) a decision of a guardian prevails over a decision of an administrator, to the extent of any inconsistency; and (b) subject to subsection (5), an administrator must take any necessary steps to ensure that a guardian's decision may be implemented. (5) If an administrator reasonably believes that taking steps to comply with the requirement of subsection (4)(b) is likely to deplete seriously the represented person's estate, the administrator— -- 144 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 137 Authorised by the Chief Parliamentary Counsel (a) is not required to comply with the requirement of subsection (4)(b); and (b) must seek advice from VCAT about how to resolve the disagreement. 178 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 this Act; and (b) is not recognised as an exercise of the guardian's or administrator's powers under this Act, 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. Note See section 72 of the VCAT Act. (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 is an exercise of the guardian's or administrator's powers under this Act if VCAT is satisfied that— (a) the relevant decision or act is an exercise of the guardian's or administrator's powers under this Act; and (b) 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 this Act; and -- 145 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 138 Authorised by the Chief Parliamentary Counsel (c) the order will promote the personal and social wellbeing of the represented person or missing person for whom the guardian or administrator is appointed. Note Section 133 of the VCAT Act provides that it is an offence not to comply with an order of VCAT. 179 Matters before a Court (1) If in any civil proceeding before a Court the Court considers that a party may be in need of a guardian, a supportive guardian, an administrator or a supportive administrator, the Court may refer the issue to VCAT for determination. (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 the relevant order under this Act; 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 proceeding 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) for that person or State Trustees. -- 146 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 139 Authorised by the Chief Parliamentary Counsel (4) If any money— (a) is paid into court before or after the commencement of this section; and (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) for that person or State Trustees. (5) 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) for 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. (6) If an order under subsection (5) 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. (7) A copy of any order made under this section must be given by the administrator or State Trustees (as the case requires) to VCAT and the Public Advocate. (8) An order of the Court under this section that money be paid out to an administrator (if any) for a person or State Trustees has effect as if it were an administration order. -- 147 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 140 Authorised by the Chief Parliamentary Counsel (9) In this section, Court means— (a) the Supreme Court; or (b) the County Court; or (c) the Magistrates' Court. 180 Effect of setting aside administration order or administration (missing person) order on previous actions of administrator (1) An order of a court or VCAT (the setting aside order) that sets aside, or has the effect of setting aside, an administration order or administration (missing person) order does not affect the validity of anything done in accordance with the administration order or administration (missing person) order before the setting aside order takes effect. (2) Subsection (1) is subject to any order to the contrary by the court or VCAT making the setting aside order. 181 Compensation for acts of guardian or administrator (1) The Supreme Court or VCAT may order a guardian or administrator to compensate the represented person or missing person for whom the guardian or administrator is appointed for a loss caused by the guardian or administrator contravening this Act when acting as guardian or administrator. (2) Subsection (1) applies even if— (a) the guardian or administrator is convicted of an offence in relation to the guardian's or administrator's contravention; or (b) the represented person or missing person has died, in which case compensation is payable to the estate of the represented person or missing person; or -- 148 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 141 Authorised by the Chief Parliamentary Counsel (c) the order appointing the guardian or administrator is no longer in force or is revoked or set aside. 182 Relief from personal liability If the Supreme Court or VCAT considers that a guardian or administrator— (a) is or may be personally liable for a contravention of a provision of this Act; and (b) acted honestly and reasonably and ought fairly to be excused for the contravention— the Supreme Court or VCAT may relieve the guardian or administrator from all or part of that personal liability. 183 Who can apply for an order for compensation? The following persons may apply for an order for compensation under section 181— (a) the represented person or a person who has ceased to be a represented person; (b) a former missing person; (c) the personal representative of a person referred to in paragraph (a) or (b); (d) an executor or administrator (within the meaning of the Administration and Probate Act 1958) of the represented person's or missing person's estate; (e) the Public Advocate; (f) the nearest relative of the represented person or missing person; (g) any other person the Supreme Court or VCAT determines to have a special interest in the affairs of the represented person or missing person. -- 149 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 142 Authorised by the Chief Parliamentary Counsel 184 Time limit for application for order for compensation (1) An application for an order for compensation under section 181 must be made— (a) if the represented person or missing person has died, within 6 months after that death; or (b) if the guardian or administrator has died, within 6 months after that death; or (c) if both the represented person (or missing person) and the guardian (or administrator) have died, within 6 months after the first death. (2) The Supreme Court or VCAT may extend the time specified under subsection (1). 185 VCAT may refer matter to Supreme Court VCAT may refer to the Supreme Court an application made to VCAT for an order for compensation under section 181. 186 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. 187 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 requires). -- 150 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 143 Authorised by the Chief Parliamentary Counsel 188 Offence for guardian to use guardianship order dishonestly (1) A guardian must not dishonestly use the guardianship order to obtain financial advantage for the guardian or another person. Penalty: Level 6 imprisonment (5 years maximum) or 600 penalty units or both. (2) A guardian must not dishonestly use the guardianship order to cause loss to the represented person or another person. Penalty: Level 6 imprisonment (5 years maximum) or 600 penalty units or both. 189 Offence for administrator to use administration order dishonestly (1) An administrator must not dishonestly use the administration order to obtain financial advantage for the administrator or another person. Penalty: In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both; In the case of a body corporate, 2300 penalty units. (2) An administrator must not dishonestly use the administration order to cause loss to the represented person or another person. Penalty: In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both; In the case of a body corporate, 2300 penalty units. Note Section 193 applies to an offence against subsection (1) or (2). -- 151 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 144 Authorised by the Chief Parliamentary Counsel 190 Offence for administrator to use administration (missing person) order dishonestly (1) An administrator must not dishonestly use the administration (missing person) order to obtain financial advantage for the administrator or another person. Penalty: In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both; In the case of a body corporate, 2300 penalty units. (2) An administrator must not dishonestly use the administration (missing person) order to cause loss to the missing person or another person. Penalty: In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both; In the case of a body corporate, 2300 penalty units. Note Section 193 applies to an offence against subsection (1) or (2). 191 Offence for supportive guardian to use supportive guardianship order dishonestly (1) A supportive guardian must not dishonestly use the supportive guardianship order to obtain financial advantage for the supportive guardian or another person. Penalty: Level 6 imprisonment (5 years maximum) or 600 penalty units or both. -- 152 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 145 Authorised by the Chief Parliamentary Counsel (2) A supportive guardian must not dishonestly use the supportive guardianship order to cause loss to the supported person or another person. Penalty: Level 6 imprisonment (5 years maximum) or 600 penalty units or both. 192 Offence for supportive administrator to use supportive administration order dishonestly (1) A supportive administrator must not dishonestly use the supportive administration order to obtain financial advantage for the supportive administrator or another person. Penalty: In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both; (2) A supportive administrator must not dishonestly use the supportive administration order to cause loss to the supported person or another person. Penalty: In the case of a natural person, level 6 imprisonment (5 years maximum) or 600 penalty units or both; 193 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 43(5); (b) section 189(1); (c) section 189(2); -- 153 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 146 Authorised by the Chief Parliamentary Counsel (d) section 190(1); (e) section 190(2). (3) In determining whether an officer of a body corporate failed to exercise due diligence, a court may have regard to— (a) what the officer knew, or ought reasonably to have known, about the commission of the offence by the body corporate; and (b) whether or not the officer was in a position to influence the body corporate in relation to the commission of the offence by the body corporate; and (c) what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and (d) any other relevant matter. (4) Without limiting any other defence available to the officer, an officer of a body corporate may rely on a defence that would be available to the body corporate if it were charged with the offence with which officer is charged and, in doing so, the officer bears the same burden of proof that the body corporate would bear. (5) An officer of a body corporate may commit an offence against a provision specified in subsection (2) whether or not the body corporate has been prosecuted for, or found guilty of, an offence against that provision. (6) In this section— body corporate has the same meaning as corporation has in section 57A of the Corporations Act; -- 154 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 147 Authorised by the Chief Parliamentary Counsel 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. 194 Regulations (1) The Governor in Council may make regulations for or with respect to— (a) prescribing any treatment to be a special medical procedure for the purposes of Part 6; and (b) prescribing annual fees to be paid in relation to estates which are the subject of an administration order; and (c) any matter or thing authorised or required to be prescribed or necessary to be prescribed for carrying this Act into effect. (2) Regulations under this Act— (a) may be of general or of specially limited application; and (b) may differ according to differences in time, place or circumstance; and (c) may impose a penalty not exceeding 10 penalty units for any contravention of the regulations. (3) Regulations made under subsection (1)(b)— (a) may prescribe fees in relation to a particular class or classes of estates only; and -- 155 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 148 Authorised by the Chief Parliamentary Counsel (b) may prescribe different fees in relation to different classes of estates; and (c) may authorise VCAT to waive fees in particular cases or classes of cases. (4) Before the Governor in Council may make regulations under subsection (1)(b), the Minister must advise the Governor in Council that the Minister— (a) has consulted the President of VCAT; and (b) is of the opinion that the fees to be charged in the proposed regulations will not result in an amount of fees being collected in any year that will exceed the amount required to meet the costs and expenses of VCAT in relation to proceedings under this Act in that year. 195 Transitional regulations (1) The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of this Act, including any repeals and amendments made by or as a result of the enactment of this Act. (2) Regulations made under this section may— (a) have a retrospective effect to a day on or after a date not earlier than the day on which this section comes into operation; and (b) be of limited or general application; and (c) differ according to time, place or circumstance; and (d) leave any matter or thing to be decided by a specified person or class of person. -- 156 of 192 -- Part 9—General provisions Guardianship and Administration Act 2019 No. 13 of 2019 149 Authorised by the Chief Parliamentary Counsel (3) Regulations 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) Sections 6 and 7 of the Subordinate Legislation Act 1994 do not apply to any regulations made under this section. (5) This section expires on the second anniversary of the day on which this section comes into operation. -- 157 of 192 -- Part 10—Repeal of Guardianship and Administration Act 1986 and savings and transitional provisions Guardianship and Administration Act 2019 No. 13 of 2019 150 Authorised by the Chief Parliamentary Counsel Part 10—Repeal of Guardianship and Administration Act 1986 and savings and transitional provisions 196 Definitions (1) In this Part— commencement day means the day on which section 197 comes into operation; new Act means the Guardianship and Administration Act 2019; old Act means the Guardianship and Administration Act 1986. (2) A word or expression that is defined in the old Act and is used in this Part in relation to the old Act has the same meaning as is given in the old Act. 197 Guardianship and Administration Act 1986 repealed (1) The Guardianship and Administration Act 1986 is repealed. (2) Except as is expressly or by necessary implication provided in the new Act, all persons, things and circumstances appointed or created by or under the old Act or existing or continuing under the old Act immediately before commencement day continue under and subject to the new Act to have the same status, operation and effect as they would have had if the old Act had not been repealed. (3) On and after commencement day, any reference in any Act (other than the new Act or regulations under that Act), regulation, subordinate instrument or other document whatsoever to the old Act is to be construed as a reference to the new Act unless the contrary intention appears. -- 158 of 192 -- Part 10—Repeal of Guardianship and Administration Act 1986 and savings and transitional provisions Guardianship and Administration Act 2019 No. 13 of 2019 151 Authorised by the Chief Parliamentary Counsel (4) Nothing in this Part limits or otherwise affects the operation of the Interpretation of Legislation Act 1984. 198 Guardianship orders made under the old Act (1) Despite the repeal of the old Act, a guardianship order made under section 22 or 33 of the old Act and in force immediately before commencement day remains in force for the period specified in the order unless sooner revoked or set aside by an order of a court or VCAT and— (a) subject to anything to the contrary in this Part, the provisions of the old Act continue to apply, and the provisions of the new Act do not apply, to the guardian appointed under that guardianship order and to the represented person; and (b) without limiting the generality of paragraph (a), the powers and duties of the guardian appointed by the guardianship order are the powers and duties conferred on the guardian under the old Act; and (c) if, before the revocation or setting aside of the guardianship order, the alternative guardian takes over the office of the guardian in accordance with section 35 of the old Act, the alternative guardian has the same powers and duties with respect to the represented person as the guardian had immediately before the guardian's death, absence or incapacity. (2) On and after commencement day, the following provisions of the new Act apply to the guardian and to the represented person referred to in subsection (1)— (a) section 177 of the new Act (resolution of disagreements); -- 159 of 192 -- Part 10—Repeal of Guardianship and Administration Act 1986 and savings and transitional provisions Guardianship and Administration Act 2019 No. 13 of 2019 152 Authorised by the Chief Parliamentary Counsel (b) section 178 of the new Act (enforcement orders); (c) sections 181 to 186 of the new Act (compensation), as if the contravention relevant to those provisions were a contravention of a provision under the old Act occurring after commencement day; (d) section 188 of the new Act (offences to use guardianship order dishonestly). (3) On and after commencement day, a temporary guardianship order made under section 33 of the old Act may be renewed once in accordance with section 33(2) of that Act and VCAT must hold a hearing to determine whether a guardianship order should be made under the new Act as soon as practicable after the making of the temporary order under the old Act but within 42 days after making that order. 199 Administration orders made under the old Act (1) Despite the repeal of the old Act, an administration order made under section 46 or 60 of the old Act and in force immediately before commencement day remains in force for the period specified in the order unless sooner revoked or set aside by an order of a court or VCAT and— (a) subject to anything to the contrary in this Part, the provisions of the old Act continue to apply in relation to the administrator appointed under that administration order and to the represented person; and (b) without limiting the generality of paragraph (a), the powers and duties of the administrator appointed by the administration order are the powers -- 160 of 192 -- Part 10—Repeal of Guardianship and Administration Act 1986 and savings and transitional provisions Guardianship and Administration Act 2019 No. 13 of 2019 153 Authorised by the Chief Parliamentary Counsel and duties conferred on the administrator under the old Act. (2) On and after commencement day, the following provisions of the new Act apply to the administrator and to the represented person referred to in subsection (1)— (a) section 51(3), (4) and (5) of the new Act, if the administration order made under the old Act conferred on the administrator the power to bring and defend actions and other legal proceedings in the name of the represented person under section 58B of the old Act; (b) Division 8 of Part 3 of the new Act; (c) section 177 of the new Act (resolution of disagreements); (d) section 178 of the new Act (enforcement orders); (e) sections 181 to 186 of the new Act (compensation), as if the contravention relevant to those provisions were a contravention of a provision under the old Act occurring after commencement day; (f) section 189 of the new Act (offences to use administration order dishonestly). (3) On and after commencement day, a temporary administration order made under section 60 of the old Act may be renewed once in accordance with section 60(2) of that Act and VCAT must hold a hearing to determine whether an administration order should be made under the new Act as soon as practicable after the making of the temporary order under the old Act but within 42 days after making that order. -- 161 of 192 -- Part 10—Repeal of Guardianship and Administration Act 1986 and savings and transitional provisions Guardianship and Administration Act 2019 No. 13 of 2019 154 Authorised by the Chief Parliamentary Counsel 200 Administration orders made under the old Act in respect of the estate of a missing person (1) Despite the repeal of the old Act, an administration order made under section 60AB or 60AG of the old Act and in force immediately before commencement day remains in force for the period specified in the order unless sooner revoked or set aside by an order of a court or VCAT and— (a) subject to anything to the contrary in this Part, the provisions of the old Act continue to apply in relation to the administrator appointed under that administration order and to the missing person; and (b) without limiting the generality of paragraph (a), the powers and duties of the administrator appointed by the administration order are the powers and duties conferred on the administrator under the old Act. (2) On and after commencement day, the following provisions of the new Act apply to the administrator and to the missing person referred to subsection (1)— (a) section 113(3), (4) and (5) of the new Act, if the administration order made under the old Act conferred on the administrator the power to bring and defend actions and other legal proceedings in the name of the missing person under section 58B of the old Act (as modified by section 60AI of the old Act); (b) Division 5 of Part 5 of the new Act; (c) section 177 of the new Act (resolution of disagreements); (d) section 178 of the new Act (enforcement orders); -- 162 of 192 -- Part 10—Repeal of Guardianship and Administration Act 1986 and savings and transitional provisions Guardianship and Administration Act 2019 No. 13 of 2019 155 Authorised by the Chief Parliamentary Counsel (e) sections 181 to 186 of the new Act (compensation), as if the contravention relevant to those provisions were a contravention of a provision under the old Act occurring after commencement day; (f) section 190 of the new Act (offences to use administration (missing person) order dishonestly). (3) On and after commencement day, a temporary administration order appointing an administrator in respect of the estate of a missing person made under section 60AG of the old Act may be renewed once in accordance with section 60AG(2) of that Act and VCAT must hold a hearing to determine whether an administration (missing person) order should be made under the new Act as soon as practicable after the making of the temporary order under the old Act but within 42 days after making that order. 201 Applications made under the old Act for guardianship orders and administration orders (1) On and after commencement day, an application made under section 19 of the old Act for a guardianship order that is not determined before commencement day— (a) is taken to be an application made under section 22 of the new Act for a guardianship order; and (b) must be determined by VCAT in accordance with the new Act. (2) On and after commencement day, an application made under section 43 of the old Act for an administration order that is not determined before commencement day— -- 163 of 192 -- Part 10—Repeal of Guardianship and Administration Act 1986 and savings and transitional provisions Guardianship and Administration Act 2019 No. 13 of 2019 156 Authorised by the Chief Parliamentary Counsel (a) is taken to be an application made under section 23 of the new Act for an administration order; and (b) must be determined by VCAT in accordance with the new Act. (3) On and after commencement day, an application made under section 60AA of the old Act for an administration order in respect of the estate of a missing person that is not determined before commencement day— (a) is taken to be an application made under section 99 of the new Act for an administration (missing person) order; and (b) must be determined by VCAT in accordance with the new Act. 202 Special medical procedures (1) On and after commencement day, an application for the Tribunal's consent to the carrying out of any special medical procedure made under section 42B of the old Act that is not determined before commencement day must be determined in accordance with Part 6 of the new Act. (2) On and after commencement day, a consent given by the Tribunal under section 42E of the old Act is taken to be a consent given by VCAT under section 145 of the new Act. (3) On and after commencement day, an authority conferred by the Tribunal under section 42F of the old Act is taken to be an authority conferred by VCAT under section 146 of the new Act. -- 164 of 192 -- Part 10—Repeal of Guardianship and Administration Act 1986 and savings and transitional provisions Guardianship and Administration Act 2019 No. 13 of 2019 157 Authorised by the Chief Parliamentary Counsel 203 Rehearings of orders made under the old Act Despite the repeal of the old Act, on and after commencement day— (a) a person may apply under section 60A of the old Act, within 28 days after an order under that Act was made, for a rehearing (or for leave to apply for a rehearing) in relation to that order; and (b) any application for a rehearing (or for leave to apply for a rehearing) in relation to an order made under the old Act that is not determined before commencement day must be determined by VCAT in accordance with the old Act; and (c) in conducting a rehearing in relation to an order made under the old Act, VCAT is taken to have the same powers and functions as it had with respect to the matter at first instance under the old Act; and (d) any order made by VCAT in determining the application for the rehearing is taken to be an order under the old Act and, accordingly, sections 198, 199 and 200 of the new Act apply to that order. 204 Reassessments of orders made under the old Act (1) A reassessment of an order made under the old Act (irrespective of whether the application for the reassessment is made before or after commencement day or on VCAT's initiative before or after commencement day) that is not determined before commencement day must be conducted in accordance with the new Act. -- 165 of 192 -- Part 10—Repeal of Guardianship and Administration Act 1986 and savings and transitional provisions Guardianship and Administration Act 2019 No. 13 of 2019 158 Authorised by the Chief Parliamentary Counsel (2) Despite anything to the contrary in subsection (1)— (a) in the course of conducting the reassessment, VCAT is not to consider whether, as the case requires— (i) the guardian appointed at first instance has performed duties in compliance with section 41 of the new Act; or (ii) the administrator appointed at first instance in an administration order has performed duties in compliance with section 55 of the new Act; and (b) on completing the reassessment, VCAT— (i) must revoke the order; and (ii) may make an order under the new Act. 205 Interstate orders (1) On and after commencement day, an agreement referred to in section 63D of the old Act is taken to be an agreement referred to in section 171 of the new Act. (2) On and after commencement day, an interstate order that is registered under section 63E of the old Act is taken to be an interstate order registered under section 172 of the new Act. 206 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. -- 166 of 192 -- Part 11—Amendment of Victorian Civil and Administrative Tribunal Act 1998 and other Acts Guardianship and Administration Act 2019 No. 13 of 2019 159 Authorised by the Chief Parliamentary Counsel Part 11—Amendment of Victorian Civil and Administrative Tribunal Act 1998 and other Acts Division 1—Victorian Civil and Administrative Tribunal Act 1998 207 Definitions In section 3 of the Victorian Civil and Administrative Tribunal Act 1998, for paragraph (d) of the definition of proceeding substitute— "(d) a rehearing or reassessment under Part 7 of the Guardianship and Administration Act 2019;". 208 What is review jurisdiction? In section 42(2) of the Victorian Civil and Administrative Tribunal Act 1998, for "Part 6 of the Guardianship and Administration Act 1986" substitute "Part 7 of the Guardianship and Administration Act 2019". 209 Proceeding files After section 146(4)(c) of the Victorian Civil and Administrative Tribunal Act 1998 insert— "(ca) any determination by the principal registrar under clause 37A of Part 9 of Schedule 1;". 210 Heading to Part 9 of Schedule 1 substituted 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 2019". -- 167 of 192 -- Part 11—Amendment of Victorian Civil and Administrative Tribunal Act 1998 and other Acts Guardianship and Administration Act 2019 No. 13 of 2019 160 Authorised by the Chief Parliamentary Counsel 211 Constitution of Tribunal for proceedings (1) For clause 31(1) and (2) 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 2019, other than a proceeding for— (a) an urgent guardianship order or urgent administration order referred to in section 36 of that Act; (b) an administration (missing person) order or an urgent administration (missing person) order under Part 5 of that Act. (2) The Tribunal is to be constituted for the purposes of a proceeding for an urgent guardianship order or urgent administration order referred to in section 36 of the Guardianship and Administration Act 2019 by— (a) a presidential member sitting alone; or (b) a member who is an Australian lawyer sitting alone.". (2) 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 7 of the Guardianship and Administration Act 2019". -- 168 of 192 -- Part 11—Amendment of Victorian Civil and Administrative Tribunal Act 1998 and other Acts Guardianship and Administration Act 2019 No. 13 of 2019 161 Authorised by the Chief Parliamentary Counsel 212 Notification of commencement (1) In clause 32(1) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". (2) In clause 32(2) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998— (a) for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019"; (b) for "a temporary order" substitute "an urgent order". (3) For clause 32(3) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 substitute— "(3) Subclause (2) does not apply to an application for an administration (missing person) order under Part 5 of the Guardianship and Administration Act 2019.". 213 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 2019". 214 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 2019". -- 169 of 192 -- Part 11—Amendment of Victorian Civil and Administrative Tribunal Act 1998 and other Acts Guardianship and Administration Act 2019 No. 13 of 2019 162 Authorised by the Chief Parliamentary Counsel 215 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 2019". 216 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 2019". 217 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 2019". (2) For clause 37(4) of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 substitute— "(4) This clause does not apply to an application for an administration (missing person) order under Part 5 of the Guardianship and Administration Act 2019.". 218 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 -- 170 of 192 -- Part 11—Amendment of Victorian Civil and Administrative Tribunal Act 1998 and other Acts Guardianship and Administration Act 2019 No. 13 of 2019 163 Authorised by the Chief Parliamentary Counsel Act 2019 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.". 219 Settlement offers In clause 38 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 220 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 2019.". Division 2—Amendments to other Acts 221 Consequential amendments On the coming into operation of an item in Schedule 1, the Act specified in the heading to that item is amended as set out in the item. 222 Repeal of Part 11 and Schedule 1 Part 11 and Schedule 1 are repealed on 1 March 2021. Note The repeal of Part 11 and Schedule 1 does not affect the continuing operation of the amendments made by that Part or the Schedule (see section 15(1) of the Interpretation of Legislation Act 1984). -- 171 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 164 Authorised by the Chief Parliamentary Counsel Schedule 1—Consequential amendments 1 Administration and Probate Act 1958 1.1 In sections 50(1)(a) and 51, for "section 53 of the Guardianship and Administration Act 1986" substitute "section 76 or 136 of the Guardianship and Administration Act 2019". 2 Appeal Costs Act 1998 2.1 In section 3(2)(a) and (b), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 3 Associations Incorporation Reform Act 2012 3.1 In section 78(2)(c)(iii), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 4 Australian Consumer Law and Fair Trading Act 2012 4.1 In sections 47(1)(a)(ii), 48(6)(b) and 92(1)(g), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 5 Building Act 1993 5.1 In sections 25AE(1)(c)(iii), 80D(3)(b)(iii), 83B(1)(e) and 171F(1)(g), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 5.2 In section 90(3), for "administrator of the estate of the adjoining owner under the Guardianship and Administration Act 1986" substitute "administrator for the adjoining owner under the Guardianship and Administration Act 2019". -- 172 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 165 Authorised by the Chief Parliamentary Counsel 6 Business Licensing Authority Act 1998 6.1 In the Schedule, in clause 3(1)(c), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 7 Child Wellbeing and Safety Act 2005 7.1 In section 41H(1)(j), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 8 Conveyancers Act 2006 8.1 In section 5(h), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 9 Coptic Orthodox Church (Victoria) Property Trust Act 2006 9.1 In section 8(d), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 10 County Court Act 1958 10.1 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 2019". 10.2 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 2019 and, subject -- 173 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 166 Authorised by the Chief Parliamentary Counsel to the order of the Court, the administrator has all the powers and duties set out in Divisions 6, 7 and 8 of Part 3 of that Act.". 10.3 In section 39C(6), for "section 66 of the Guardianship and Administration Act 1986" substitute "section 179 of the Guardianship and Administration Act 2019". 11 Crimes Act 1958 11.1 In section 175(1), in the definition of trustee, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 12 Disability Act 2006 12.1 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 2019;"; (b) in the definition of resident's guardian, in paragraph (a)(i), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 12.2 After section 39(4)(cc) insert— "(cd) to a supportive administrator acting under a supportive administration order within the meaning of the Guardianship and Administration Act 2019; (ce) to a supportive guardian acting under a supportive guardianship order within the meaning of the Guardianship and Administration Act 2019;". -- 174 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 167 Authorised by the Chief Parliamentary Counsel 12.3 In section 144(2), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 12.4 In section 200, for "in respect of whom a guardianship order in force under the Guardianship and Administration Act 1986" substitute "in relation to whom a guardianship order under the Guardianship and Administration Act 2019 has effect". 13 Duties Act 2000 13.1 In section 57G(1), in the definition of guardian, for paragraph (b) substitute— "(b) an administrator for the person within the meaning of the Guardianship and Administration Act 2019;". 14 Estate Agents Act 1980 14.1 In sections 14(5)(da) and 16(1)(da), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 14.2 In sections 22(1)(c) and 31E(1)(c), for "Guardianship and Administration Board Act 1986" substitute "Guardianship and Administration Act 2019". 15 Family Violence Protection Act 2008 15.1 In section 4, in the definition of guardian, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". -- 175 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 168 Authorised by the Chief Parliamentary Counsel 15.2 For the note at the foot of sections 64(1) and 112 substitute— "Note In relation to resolving an issue between the guardian appointed under the Guardianship and Administration Act 2019 and the affected family member, see sections 44 and 159 of that Act. Section 44 provides that the guardian may seek advice from VCAT and section 159 provides for the reassessment of a guardianship order by VCAT.". 15.3 In section 144ND(3), in the definition of authorised representative, for paragraph (c) substitute— "(c) an administrator appointed for the primary person or linked person in an administration order made under the Guardianship and Administration Act 2019; or". 16 First Home Owner Grant Act 2000 16.1 In section 3(1), in the definition of guardian, for paragraph (b) substitute— "(b) an administrator for the person appointed in an administration order made under the Guardianship and Administration Act 2019;". 17 Fundraising Act 1998 17.1 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 2019". 18 Gambling Regulation Act 2003 18.1 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 2019". -- 176 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 169 Authorised by the Chief Parliamentary Counsel 19 Health Records Act 2001 19.1 In section 85(2)(a)(iii), for "and" substitute "or". 19.2 After section 85(2)(a)(iii) insert— "(iv) a supportive administrator acting under a supportive administration order within the meaning of the Guardianship and Administration Act 2019; or (v) a supportive guardian acting under a supportive guardianship order within the meaning of the Guardianship and Administration Act 2019; and". 19.3 In section 85(4) and (6)(d), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 20 Health Services Act 1988 20.1 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 2019;"; (b) for the definition of resident's guardian substitute— "resident's guardian means the resident's guardian appointed under the Guardianship and Administration Act 2019 or appointed by a court;". 21 Housing Act 1983 21.1 In section 142C(2), in the definition of personal details, in paragraph (c), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". -- 177 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 170 Authorised by the Chief Parliamentary Counsel 22 Human Services (Complex Needs) Act 2009 22.1 In section 3, in the definition of Public Advocate, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 22.2 In section 21(b)(i), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 23 Independent Broad-based Anti-corruption Commission Act 2011 23.1 In sections 25(1)(f) and 27(1)(f), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 24 Juries Act 2000 24.1 In Schedule 2, in clause 3(d), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 25 Land Act 1958 25.1 In section 110(3), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 25.2 In section 110(4), for "under the Guardianship and Administration Act 1986" substitute "appointed in an administration order made under the Guardianship and Administration Act 2019". 25.3 In section 353(5), for "under the Guardianship and Administration Act 1986" substitute "in a guardianship order or an administration order made under the Guardianship and Administration Act 2019". -- 178 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 171 Authorised by the Chief Parliamentary Counsel 26 Land Tax Act 2005 26.1 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 2019". 27 Limitation of Actions Act 1958 27.1 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 2019.". 27.2 In section 27J(4)— (a) for the definition of guardian substitute— "guardian, in relation to a represented person, means the guardian or administrator for that person under the Guardianship and Administration Act 2019;"; (b) for the definition of represented person substitute— "represented person means a represented person within the meaning of the Guardianship and Administration Act 2019.". 28 Liquor Control Reform Act 1998 28.1 In sections 66(c) and 85(a)(ii), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". -- 179 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 172 Authorised by the Chief Parliamentary Counsel 28.2 In section 80(1)(b), for "under the Guardianship and Administration Act 1986" substitute "in a guardianship order or an administration order made under the Guardianship and Administration Act 2019". 29 Magistrates' Court Act 1989 29.1 For section 101A(5) and (6) substitute— "(5) A copy of any order made under this section must be given by the administrator to VCAT and to the Public Advocate within the meaning of the Guardianship and Administration Act 2019. (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 2019 and, subject to the order of the Court, the administrator has all the powers and duties set out in Divisions 6, 7 and 8 of Part 3 of that Act.". 29.2 In section 101B(6), for "section 66 of the Guardianship and Administration Act 1986" substitute "section 179 of the Guardianship and Administration Act 2019". 30 Marine Safety Act 2010 30.1 In section 298A, in the definition of authorised representative, in paragraph (d), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". -- 180 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 173 Authorised by the Chief Parliamentary Counsel 31 Medical Treatment Planning and Decisions Act 2016 31.1 In section 3(1)— (a) in the definition of Public Advocate, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019"; (b) in the definition of special medical procedure, for "the Guardianship and Administration Act 1986" substitute "section 140 of the Guardianship and Administration Act 2019". 31.2 For the note at the foot of sections 12(3)(c)(i), 57(2) and 64 substitute— "Note See Part 6 of the Guardianship and Administration Act 2019.". 31.3 In section 55(2), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 32 Mental Health Act 2014 32.1 In section 3(1)— (a) in the definition of guardian, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019"; (b) for the definition of Public Advocate substitute— "Public Advocate has the same meaning as in the Guardianship and Administration Act 2019;". -- 181 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 174 Authorised by the Chief Parliamentary Counsel 32.2 In section 75(1)(c), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 33 Motor Car Traders Act 1986 33.1 In sections 13(4)(k) and (6)(l)(i), 28(1)(c) and 33(1)(c), for "Guardianship and Administration Board Act 1986" substitute "Guardianship and Administration Act 2019". 34 Owners Corporations Act 2006 34.1 In sections 179(b), 186(a) and 187(1)(c), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 35 Parliamentary Budget Officer Act 2017 35.1 In section 11(e), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 36 Partnership Act 1958 36.1 In section 39(a), for "under the Guardianship and Administration Act 1986" substitute "in a guardianship order or an administration order made under the Guardianship and Administration Act 2019". 37 Personal Safety Intervention Orders Act 2010 37.1 In section 4, in the definition of guardian, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". -- 182 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 175 Authorised by the Chief Parliamentary Counsel 37.2 For the note at the foot of sections 46(1) and 89(1) substitute— "Note In relation to resolving an issue between the guardian appointed under the Guardianship and Administration Act 2019 and the affected person, see sections 44 and 159 of that Act. Section 44 provides that the guardian may seek advice from VCAT and section 159 provides for the reassessment of a guardianship order by VCAT.". 38 Powers of Attorney Act 2014 38.1 In section 3(1), in the definitions of administration order and guardianship order, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 38.2 In section 3(1), for the definition of Public Advocate substitute— "Public Advocate has the same meaning as in the Guardianship and Administration Act 2019;". 38.3 For section 123(4)(e)(i) substitute— "(i) any guardian for the principal, within the meaning of the Guardianship and Administration Act 2019;". 38.4 Section 123(4)(e)(ii) is repealed. 38.5 For section 123(4)(e)(iii) and (iv) substitute— "(iii) any administrator for the principal appointed in an administration order made under the Guardianship and Administration Act 2019; (iv) the primary carer of the principal, within the meaning of the Medical Treatment Planning and Decisions Act 2016;". -- 183 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 176 Authorised by the Chief Parliamentary Counsel 39 Privacy and Data Protection Act 2014 39.1 In section 28(2)(a)(ii), for "and" substitute "or". 39.2 After section 28(2)(a)(ii) insert— "(iii) a supportive administrator acting under a supportive administration order within the meaning of the Guardianship and Administration Act 2019; or (iv) a supportive guardian acting under a supportive guardianship order within the meaning of the Guardianship and Administration Act 2019; and". 39.3 In section 28(6), in the definition of authorised representative, in paragraph (a)(iv), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 40 Professional Standards Act 2003 40.1 In Schedule 2, in clause 5(1)(e), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 41 Property Law Act 1958 41.1 In section 30(1), for "in respect of whose estate an administrator is appointed under the Guardianship and Administration Act 1986" substitute "for whom an administrator is appointed in an administration order made under the Guardianship and Administration Act 2019". 41.2 In section 30(2), for "in respect of whom a guardian is appointed under the Guardianship and Administration Act 1986" substitute "for whom a guardian is appointed under the Guardianship and Administration Act 2019". -- 184 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 177 Authorised by the Chief Parliamentary Counsel 41.3 In section 171(9), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 42 Public Health and Wellbeing Act 2008 42.1 In section 138(3)(b), for "any person responsible under the Guardianship and Administration Act 1986" substitute "the medical treatment decision maker (within the meaning of the Medical Treatment Planning and Decision Act 2016)". 43 Road Safety Act 1986 43.1 In section 90I, in the definition of authorised representative, in paragraph (d), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 44 Rooming House Operators Act 2016 44.1 In sections 17(1)(d), 18(1)(b)(iii), 41(1)(c) and 82(3)(c), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 45 Second-Hand Dealers and Pawnbrokers Act 1989 45.1 In sections 6(1)(a), 10(1)(a) and 18(1)(c), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 46 Sentencing Act 1991 46.1 In section 105(1), in the definition of applicant, in paragraph (b), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". -- 185 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 178 Authorised by the Chief Parliamentary Counsel 47 Severe Substance Dependence Treatment Act 2010 47.1 In section 4— (a) for the definition of guardian substitute— "guardian has the same meaning as in the Guardianship and Administration Act 2019;"; (b) in the definition of Public Advocate, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 47.2 In section 6(2), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 48 Sex Offenders Registration Act 2004 48.1 In section 3(1), in the definition of guardianship order, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 49 Sex Work Act 1994 49.1 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 2019". 50 State Trustees (State Owned Company) Act 1994 50.1 In section 3— (a) the definition of protected person is repealed; (b) for the definition of represented person substitute— "represented person means a represented person within the meaning of the Guardianship and Administration -- 186 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 179 Authorised by the Chief Parliamentary Counsel Act 2019 for whom State Trustees is appointed as administrator under that Act;". 50.2 In section 12(5)— (a) for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019"; (b) in paragraph (d), for "Divisions 3 and 3A of Part 5" substitute "Divisions 6, 7 and 8 of Part 3". 50.3 In sections 13(1)(d) and 14(2)(c)(i), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 50.4 Section 14(2)(c)(ii) is repealed. 50.5 In section 17(1) and (2) omit "or a protected person". 50.6 For section 19(a)(i) substitute— "(i) an administration order made under the Guardianship and Administration Act 2019 appointing State Trustees as administrator for a person is in force; or". 50.7 Section 19(a)(ii) and (b)(ii) is repealed. 51 Supported Residential Services (Private Proprietors) Act 2010 51.1 In section 3(1)— (a) in the definition of Public Advocate, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019"; (b) in the definition of resident's administrator, in paragraph (b), after "property;" insert "or"; -- 187 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 180 Authorised by the Chief Parliamentary Counsel (c) in the definition of resident's administrator, after paragraph (b) insert— "(c) a person appointed as administrator for the resident under the Guardianship and Administration Act 2019;"; (d) in the definition of resident's guardian, for paragraph (a)(i) substitute— "(i) under the Guardianship and Administration Act 2019; or". 51.2 In section 35(1)(a)(ii), (b)(ii) and (2)(b), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 51.3 In the note at the foot of section 45(1), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 52 Supreme Court Act 1986 52.1 For section 51A(5) and (6) substitute— "(5) A copy of any order made under this section must be given by the administrator to VCAT and the Public Advocate within the meaning of the Guardianship and Administration Act 2019. (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 2019 and, subject to the order of the Court, the administrator has all the powers and duties set out in Divisions 6, 7 and 8 of Part 3 of that Act.". -- 188 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 181 Authorised by the Chief Parliamentary Counsel 52.2 In section 113(1), for "section 66 of the Guardianship and Administration Act 1986" substitute "section 179 of the Guardianship and Administration Act 2019". 52.3 In section 113B(1)— (a) for paragraph (a) substitute— "(a) an administrator has not been appointed under the Guardianship and Administration Act 2019 for a person; and"; (b) for "section 58B(2)" substitute "section 52". 52.4 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 2019 as administrator for the person.". 53 The Uniting Church in Australia Act 1977 53.1 In section 15(1)(d), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 54 Transport Accident Act 1986 54.1 In section 3(1), in the definition of administration order and administrator, for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 55 Trustee Act 1958 55.1 In section 41(9)(a), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". -- 189 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 182 Authorised by the Chief Parliamentary Counsel 56 Trustee Companies Act 1984 56.1 In section 14(2), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 56.2 In section 17(1)(c), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 57 Unclaimed Money Act 2008 57.1 In section 87(2)(c) and (3)(a)(iii), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 58 Victims of Crime Assistance Act 1996 58.1 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 2019 or any other government agency;". 58.2 In section 25(4), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 58.3 In section 70A(4), for "section 66 of the Guardianship and Administration Act 1986" substitute "section 179 of the Guardianship and Administration Act 2019". 59 Victoria Police Act 2013 59.1 In section 246, in the definition of personal representative, in paragraph (b), for "Guardianship and Administration -- 190 of 192 -- Schedule 1—Consequential amendments Guardianship and Administration Act 2019 No. 13 of 2019 183 Authorised by the Chief Parliamentary Counsel Act 1986" substitute "Guardianship and Administration Act 2019". 59.2 In Schedule 1, in clauses 2(b) and 7(b), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 60 Victorian Inspectorate Act 2011 60.1 In section 22(1)(g), for "Guardianship and Administration Act 1986" substitute "Guardianship and Administration Act 2019". 61 Wills Act 1997 61.1 For section 21C(d) substitute— "(d) any guardian or administrator for the person appointed under the Guardianship and Administration Act 2019;". 62 Workplace Injury Rehabilitation and Compensation Act 2013 62.1 In section 310(3)(a), for "in respect of the worker under the Guardianship and Administration Act 1986" substitute "for the worker under the Guardianship and Administration Act 2019". ═════════════ -- 191 of 192 -- Endnotes Guardianship and Administration Act 2019 No. 13 of 2019 184 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 19 December 2018 Legislative Council: 2 May 2019 The long title for the Bill for this Act was "A Bill for an Act to re-enact with amendments the law relating to guardianship and administration, to repeal the Guardianship and Administration Act 1986 and to amend consequentially various other Acts and for other purposes." -- 192 of 192 --