Before seeking appointment of a guardian of last resort for an older person in hospital, you should explore all least restrictive options. This is in the best interests of the patient, and it is a legal requirement. The Victorian Civil and Administrative Tribunal (VCAT) will need to be satisfied that the treating team has worked with the older person and their family and carers to rule out least restrictive alternatives.
If you are satisfied that seeking guardianship is the most appropriate option, familiarise yourself with the roles of each organisation and the terminology used, to ensure you approach the formal application process in the best possible way. This page provides information about who is involved in the process when applying on behalf of an older person in hospital. You should also follow your health service’s policies and procedures, and consult the Office of the Public Advocate (OPA) website, the VCAT website and the OPA advice service for guidance on the process.
The following table outlines a list of common terms and their meanings.
|| Meaning in this context
| Proposed represented person
|| Older person who needs a guardian.
|| Person who submits the guardianship application (you or your health service).
| Registry VCAT Guardianship List
|| Receives and processes applications; appoints hearing time, place and person to decide it.
| VCAT member
|| Person who hears the case and makes the decision.
| Office of the Public Advocate
|| Organisation that provides guardians of last resort. Also provides advice and sometimes investigates before an application is heard by VCAT.
| Advocate guardian
|| An employee of the OPA to whom the Public Advocate delegates their powers and duties in the guardianship order, when appointed as guardian by VCAT.
Who is involved in the application process
Proposed represented person
This term is used by VCAT to describe the older person for whom you are making the application.
Making an application has the potential to remove an older person’s rights to exercise decisions about their life and can be extremely stressful for them, their family and carers. We all play a role in providing support and empathy throughout this process.
In many Victorian hospitals, social workers coordinate and complete the application forms for guardianship. However, they can be completed by any clinician who knows the proposed represented person. Whoever completes the application becomes known by VCAT as the applicant. The applicant must explain the process to the older person and their family or carers and keep them informed throughout the process.
The applicant can complete and lodge the application form online, or download it from the VCAT website. It can be lodged by email, in person or by post. Some hospitals in Victoria have an internal system for lodging applications. The applicant is expected to attend the hearing, or delegate the task to a colleague who can adequately speak to the person’s situation.
As the applicant, if you believe that the matter should be heard urgently, seek advice from the OPA advice service. If the risk is unmanageable you may have to apply for a temporary order; speak to the advice service about this.
By law, the applicant must provide a copy of the application to the older person and any other interested parties. Interested parties can include the person’s family and carers.
The applicant must also supply VCAT with a medical report and any other supporting documents (such as a social work report or a neuropsychological report) prior to the hearing date. The medical report must indicate what disability the proposed represented person has, how this was diagnosed, if the person is incapable of making reasonable judgement and how this has been assessed. The application may also be supported by additional clinical reports from physiotherapists, occupational therapists, and speech therapists as required. These reports should provide a context for the application and outline all least restrictive options that have been proposed and trialled. Be mindful that any individual party to the proceedings may apply to VCAT for a copy of these reports. In some circumstances, especially where a professional is feeling threatened by a person, a report may be provided under the name of the hospital rather than an individual.
Registry VCAT Guardianship List
The VCAT Guardianship List receives applications for guardianship or administration, hears the matter and makes orders appointing a guardian or administrator for a person with a disability (who is 18 years of age or over) when there is a need and it is in that person's best interests to do so.
VCAT is like a court but less formal. The Tribunal members listen to the legal cases, facilitate the proceeding and decide whether an order for guardianship is required.
Applications must be heard within 30 days of VCAT receiving the application; the applicant can assist to streamline this process by ensuring all relevant contact details are included on the application form. VCAT will inform all interested parties that are listed on the application of the date and venue of the hearing.
A VCAT member will manage all aspects of the hearing and make a decision which could include appointing a guardian or requesting OPA investigate the matter before an appointment of a guardian can be determined.
Who attends the hearing
The applicant or their delegate must attend the hearing and bring copies of relevant evidence. The person about whom the application has been made should be encouraged to attend, particularly if the hearing is on-site at a hospital. Other interested parties listed on the application will be formally invited by VCAT and they may choose to bring support people. Other people who may attend include service providers known to the older person, such as case managers and solicitors. VCAT will organise an appropriately trained interpreter to be present if the applicant has indicated that an interpreter is required on the application form. Hearings are open to the public; however the VCAT member may ask observers to leave if the matter is sensitive. VCAT can also order that hearings be closed to the public, and the applicant can request that VCAT consider this option. It is illegal to publicise any information of a proceeding unless VCAT orders otherwise.
Where hearings are held
Some hospitals in Victoria hold regular guardianship and administration hearings on site. In special circumstances hearings can be held at the older person’s bedside. Hearings can also take place at VCAT in Melbourne and at various local courts throughout Victoria. The applicant can nominate the preferred venue for the hearing, and should take into account the urgency of the matter and whether there might be a need for security to be on-call throughout the hearing.
What to expect at the hearing
The formality of the hearing can vary depending on the venue and the VCAT member. The VCAT member will generally ask all present to introduce themselves and they will explain the purpose of the hearing.
Sometimes the VCAT member may decide to adjourn the hearing if a particular person is not in attendance. They may also decide to refer the matter to OPA to investigate the issues and report back to them before the matter can be determined. The VCAT member may also adjourn a hearing part heard to enable OPA to gather new information or research issues which have arisen in the course of the hearing. Before deciding to appoint a guardian, the VCAT member must be satisfied that the proposed represented person:
- has a disability that is affecting their ability to make an informed decision
- that a decision needs to be made
- that all least restrictive options have been explored.
If the VCAT member considers that it is necessary to appoint a guardian then the next consideration is who to appoint as guardian. If there is no person eligible to be appointed as guardian then the Public Advocate will be appointed as guardian of last resort.
The VCAT order may be generated at the time of the hearing or sent to OPA after the hearing. It will outline what types of decisions the guardian can make. An order can be 'limited' - which means it is limited to only certain aspects of a person’s lifestyle - or in rare cases it can be 'plenary', which means that the guardian can make any decisions that involve a person’s lifestyle. It will include the length of time the order is valid before it needs to be reassessed. Consistent with promoting a person’s human rights, guardianship orders are nearly always limited - confined to current relevant areas requiring decisions.
Office of the Public Advocate
After VCAT has made an order for the appointment of the Public Advocate as guardian, the order will be sent to the intake and hospital team at OPA.
Depending on the person’s immediate needs and best interests, the intake and hospital team may make interim decisions about a person’s care. They may be able to consent to the older person’s transfer to the Transition Care Program, particularly if this transfer may be helpful in providing additional information to the guardian about the person’s suitability for discharge to their usual accommodation or to residential care.
The proposed represented person’s case will be waitlisted to be allocated to either an advocate guardian (an OPA staff member), or a trained volunteer known as a community guardian. This can take about 20 days and it is important that you and your team continue to work with the older person to maximise their participation in care and independence. The guardian may not apply the treating team’s recommendation and the team must be prepared to facilitate all possible options.
To streamline this process the applicant should ensure that all information on the original application is up to date, including the contact details of the relevant clinicians. Convey any changes of contact details to the guardian once they have been appointed.
If VCAT has made an order that appoints the Public Advocate as a person’s guardian, the Public Advocate delegates their authority to an advocate guardian or community guardian. Once allocated, the guardian will generally make contact with the proposed represented person and the applicant to explain their role and responsibilities.
Guardians must work within the framework of the Guardianship and Administration Act 1986. The guardian must act in the best interests of the represented person, and this includes taking into account, as far as possible, the wishes of the represented person and acting as an advocate for the represented person and in such a way as to:
- encourage the represented person to participate as much as possible in the life of the community
- encourage and assist the represented person to become capable of caring for herself or himself and of making reasonable judgements about matters relating to her or his person
- protect the represented person from neglect, abuse or exploitation.
A guardian must also exercise their powers in a way which is least restrictive of the person’s freedom of decision and action.
The OPA website provides detailed information on the role and responsibilities of guardians.
Guardians are not case managers, and when appointed they will rely on the treating team to source and implement least restrictive opportunities. It may take some time for the guardian to come to a decision for the older person in hospital, and as clinicians it is our role to support the older person and their family and carers throughout this process.
It is also essential that we document continued attempts to trial least restrictive alternatives and work with our team to ensure the person’s ability to participate in everyday physical and cognitive tasks is encouraged and assisted.