Guardianship and Administration Bill 2014

Introduction Print

EXPLANATORY MEMORANDUM

General

The Guardianship and Administration Bill 2014 re-enacts the Guardianship and Administration Act 1986 with significant changes to provide the Victorian Civil and Administrative Tribunal (VCAT) with more flexible powers to customise its orders to the needs of people with impaired decision making capacity and their families; improve VCAT processes when dealing with guardianship and administration applications; introduce a streamlined process at VCAT to make it easier for parents of people with profound decision making incapacity to obtain a guardianship order or administration order; assist the operation of the Office of the Public Advocate; and to ensure consistency with the Powers of Attorney Act 2014.

Clause Notes

PART 1—PRELIMINARY

Clause 1 sets out the purposes of the Bill, which are—

to re-enact with amendments the law relating to guardianship and administration;

to repeal the Guardianship and Administration Act 1986; and

to make consequential amendments to various other Acts.

Clause 2 provides that the Bill comes into operation immediately after Part 10 of the Powers of Attorney Act 2014 comes into operation.

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The Powers of Attorney Act 2014 comes into operation on a day or days to be proclaimed, but has a default date of 1 September 2015 if not proclaimed earlier.

Clause 3 sets out definitions that apply throughout the Bill. Key definitions are set out below.

administration order means an order of VCAT appointing a person as an administrator or temporary administrator of the estate of a person under clause 28 or Part 5 of the Bill. Clause 28 sets out the conditions for making a guardianship or administration order. Part 5 of the Bill introduces a new streamlined process to enable a parent of an adult child with a disability (the proposed represented person) to apply to VCAT for a guardianship order or an administration order appointing the parent as the guardian or administrator.

administration (missing person) order means an order of VCAT appointing a person as an administrator of the estate of a missing person under clause 111 or appointing a temporary administrator of the estate of a missing person under clause 140. Clause 111 sets out the conditions for the making of an administration (missing person) order. This includes: the person is a missing person who usually resides in Victoria; and while the person is missing there is (or is likely to be) a need for a decision in relation to the person's financial matters or property; and it is in the best interests of the missing person for an administrator to be appointed; and the order would promote the missing person’s personal and social wellbeing while the person is missing. Clause 140 provides that VCAT may make a temporary administration (missing person) order if it is satisfied that: the person is a missing person who usually resides in Victoria; and while the person is missing there is (or is likely to be) a need for a decision in relation to the person's financial matters; and the order would promote the missing person's personal and social wellbeing while the person is missing. A missing person is a person determined to be a missing person by VCAT under clause 111(2).

disability, in relation to a person, means a neurological impairment, intellectual impairment, mental illness, brain injury, physical disability or dementia. This definition replaces the definition of disability in the Guardianship and Administration Act 1986, but differs from that definition in

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that it includes neurological impairment. This is consistent with the definition of disability in the Disability Act 2006 and is intended to include a person with autism spectrum disorder.

financial matter, in relation to a person, means any matter relating to a represented person's financial or property affairs. A financial matter includes any legal matter that relates to the financial or property affairs of the represented person. The definition provides a non-exhaustive list of examples of financial matters. For instance, making investments for the represented person is an example of a financial matter.

guardianship order means an order of VCAT appointing a person under clause 28 or Part 5 as a guardian. Clause 28 sets out the conditions for making a guardianship or administration order. Part 5 contains of the Bill introduces a new streamlined process to enable a parent of an adult child with a disability (the proposed represented person) to apply to VCAT for a guardianship order or an administration order appointing the parent as the guardian or administrator. A guardianship order may appoint a person as a guardian with powers for personal matters and financial matters. Financial and personal matters are defined in clause 3.

legal matter, in relation to a person, means use of legal services for a represented person's benefit; or bringing or defending a legal proceeding or hearing in a court or tribunal or other body on behalf of the represented person, including settling a claim before or after a legal proceeding or hearing starts. The term legal matter is used in reference to both financial and personal matters as defined in clause 3. The definition provides a non-exhaustive list of examples of legal matters. For instance, the use of legal services to make a transaction is an example of a legal matter.

medical or dental treatment means medical or dental treatment normally carried out by, or under, the supervision of a registered practitioner. The definition includes examples of medical and dental treatment. The definition includes any other treatment prescribed by the regulations to be medical or dental treatment for the purposes of this Act, and contains a list of excluded treatments.

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personal matter, in relation to a person, means any matter relating to a represented person's personal or lifestyle affairs, including any legal matter that relates to the represented person's personal or lifestyle affairs. The definition provides a non-exhaustive list of examples of personal matters. For instance, where and with whom the represented person lives is an example of a personal matter.

supportive guardianship order means an order of VCAT appointing a person as supportive guardian under clause 95. Clause 95 sets out the conditions for making a supportive guardianship order, including: the person is a person with a disability; the person does not oppose VCAT making the order; if the person is given practicable and appropriate support, the person will have decision making capacity (within the meaning of clause 4) to make a decision in relation to the personal matter or financial matter in relation to which the supportive guardianship order or the guardianship or administration order is sought.

Subclause (2) expands the definition of domestic partner.

Subclause (3) makes clear that a reference in the definition of relative to a person's sibling includes a reference to an individual who was adopted by one or both of the person's parents.

Subclause (4) provides guidance on ways in which a person may promote the personal and social wellbeing of another person for the purposes of the Bill (without limiting the ways in which this may be promoted) including by—

recognising the inherent dignity of the other person;

having regard to the other person's existing supportive relationships, religion, values and cultural and linguistic environment; and

respecting the confidentiality of confidential information.

Clause 4 outlines the meaning of when a person has decision making capacity for the purposes of the Bill and provides guidance on determining whether a person has decision making capacity.

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Subclause (1) provides that person has capacity to make a decision as to a matter (decision making capacity) if they are able to—

understand the information relevant to the decision and the effect of the decision. Under subclause (2), a person is taken to understand information relevant to a decision if they understand an explanation given in a way that is appropriate to their circumstances, whether by using modified language, visual aids or any other means; and

retain that information to the extent necessary to make the decision; and

use or weigh that information as part of the process of making the decision; and

communicate the decision, and the person's views and needs as to the decision, in some way, including by speech, gestures or other means.

Subclause (3) provides that a person is presumed to have decision making capacity unless there is evidence to the contrary.

Subclause (4) lists a number of factors to be considered in determining whether or not a person has decision making capacity, as follows—

a person may have decision making capacity for some matters and not others;

if a person does not have decision making capacity for a matter, it may be temporary and not permanent;

it should not be assumed that a person does not have decision making capacity for a matter on the basis of their appearance;

it should not be assumed that a person does not have decision making capacity merely because the person makes a decision that is, in the opinion of others, unwise. This is subject to subclause (5), which provides that the fact that a person has made or proposes to make a decision that has a high risk of being seriously injurious to the person's health or wellbeing may, in

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conjunction with other factors, be evidence that the person is unable to understand, use or weigh information relevant to the decision or the effect of the decision;

a person has decision making capacity for a matter if it is possible for the person to make a decision with practicable and appropriate support.

A non-exhaustive list of examples of practicable and appropriate support is set out at the end of subclause (4)(e), including—

using information or formats tailored to the particular needs of the person;

communicating or assisting a person to communicate his or her decision;

giving a person additional time and discussing the matter with the person;

using technology that alleviates the effects of the person's disability.

Clause 5 provides that, when assessing whether a person has decision making capacity, the person making the assessment must take reasonable steps to conduct the assessment at a time and in an environment in which the person's decision making capacity can be assessed most accurately.

Clause 6 sets out the objectives of the Bill, including: continuing the office of the Public Advocate and providing for the appointment of a Public Advocate; enabling certain persons with a disability to have a supportive guardian, guardian or administrator appointed; enabling administration of missing persons' estates; providing consent to special procedures, medical research procedures and medical and dental treatment on behalf of persons incapable of giving consent; and providing for the registration of interstate guardianship order and administration orders.

Clause 7 establishes guardianship and administration principles.

Paragraph (a) provides that every function, power, authority, discretion, jurisdiction or duty conferred or imposed by the Bill is to be exercised or performed—

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in a way that is as least restrictive of a person's ability to decide and act as is possible in the circumstances; and

so that a person is given practicable and appropriate support to enable them to participate in decisions affecting the person as much as possible in the circumstances.

Paragraph (b) requires a guardian or administrator who makes a decision in relation to a matter for a represented person (other than a missing person) who does not have decision making capacity in relation to that matter to—

give all practicable and appropriate effect to the represented person's wishes;

take any steps that are reasonably available to encourage the represented person to participate in decision making, even though the represented person does not have decision making capacity in relation to that matter;

act in a way that promotes the personal and social wellbeing of the represented person.

Subclause (1)(c) requires an administrator who makes a decision for a missing person to—

give all practicable and appropriate effect to the missing person's wishes, so far as they can be ascertained; and

act in a way that promotes the personal and social wellbeing of the missing person.

PART 2—THE PUBLIC ADVOCATE

Clause 8 Subclause (1) makes clear that the office of Public Advocate established under section 14 of the Guardianship and Administration Act 1986 (to be repealed by this Bill) as in force immediately before the commencement of this section continues in existence.

Subclause (2) provides that the Governor in Council, on the recommendation of the Minister, may appoint a person as Public Advocate.

Clause 9 sets out the terms and conditions of appointment of the Public Advocate.

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Subclause (1) provides that the Public Advocate holds office for a period of 7 years and is entitled to be paid the remuneration and allowances as are fixed by the Governor in Council from time to time.

Subclause (2) makes clear that the Public Advocate, in relation to the office of Public Advocate, is not subject to the Public Administration Act 2004 (other than Part 5 of that Act, which relates to the operation of public entities).

Clause 10 sets out the circumstances when the Public Advocate ceases to hold office.

Subclause (1) provides that the Public Advocate ceases to hold office if the Public Advocate:

resigns by notice in writing delivered to the Governor in Council; or

becomes insolvent under administration; or

is convicted of an indictable offence or of an offence which, if committed in Victoria, would be an indictable offence; or

is removed from office under subclause (5).

Subclause (2) provides that the Governor in Council, on the recommendation of the Minister (that is, the Attorney-General), may suspend or remove the Public Advocate from office on particular grounds, including that the Public Advocate has become incapable of performing or has neglected the duties of the office of Public Advocate.

Following suspension of the Public Advocate by the Minister, subclause (3) requires the Minister to lay before each House of Parliament a full statement of the grounds of suspension, within 7 sitting days after the suspension if that House is then sitting, or if that House is not then sitting, within 7 sitting days after the next meeting of that House.

Subclause (4) sets out the process for the removal of a Public Advocate who has been suspended from office. The Public Advocate may be removed from office by the Governor in Council if each House of Parliament, within 7 sitting days after the day when the statement is laid before it, declares by resolution that the Public Advocate ought to be removed from

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office. Unless each House within that period makes such a declaration, the Governor in Council must remove the suspension and restore the Public Advocate to office.

Clause 11 sets out the process for appointing an Acting Public Advocate.

Subclause (1) provides that 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.

Subclause (2) allows the Minister to appoint a person as Acting Public Advocate during the temporary absence or suspension of the Public Advocate if the person has—

(a) previously been appointed as Acting Public Advocate under subclause (1); and

(b) taken an oath or made an affirmation under clause 12.

Subclause (3) provides that a person appointed as Acting Public Advocate under subclause (2) is not required to take another oath or make another affirmation under clause 12.

Subclause (4) provides that the Minister may at any time revoke an appointment under subclause (2).

Subclause (5) sets out the powers, duties and conditions of appointment of an Acting Public Advocate. An Acting Public Advocate has all the powers and duties of the Public Advocate and may exercise any of the functions of the Public Advocate. The Acting Public Advocate is entitled to be paid remuneration and allowances fixed by the Governor in Council from time to time and is not subject to the Public Administration Act 2004 (other than Part 5 of that Act, which relates to the operation of public entities).

Clause 12 provides that, before taking office, the Public Advocate and any Acting Public Advocate (who has not previously taken the oath) must take an oath or make an affirmation to be administered by the Speaker of the Legislative Assembly. The oath is that the Public Advocate or Acting Public Advocate will faithfully and impartially perform the duties of office and, except in accordance with the Bill, not divulge information received or obtained under the Bill.

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Clause 13 sets out the functions of the Public Advocate. The functions include—

promoting, facilitating and encouraging the provision, development and co-ordination of services and facilities provided by government, community and voluntary organisations for persons with a disability;

arranging, coordinating and promoting informed public awareness and understanding by the dissemination of information with respect to particular matters, including: provisions of this Bill and any other legislation affecting persons with a disability; the role of VCAT and the Public Advocate; the duties, powers and functions of supportive guardians, guardians and administrators under this Act; and the protection of persons with a disability from abuse and exploitation and the protection of their rights;

investigating, reporting and making recommendations to the Minister on any aspect of the operation of this Act referred to the Public Advocate by the Minister.

Clause 14 Subclause (1) sets out the powers and duties of the Public Advocate. These are to—

(a) if appointed by VCAT, be a guardian with powers in relation to a personal matter; and

(b) make an application to VCAT for the appointment of a supportive guardian, guardian or administrator or the rehearing or reassessment of a supportive guardianship order, guardianship order or an administration order; and

(c) submit a report to VCAT on any matter referred to the Public Advocate for a report by VCAT; and

(d) seek assistance in promoting the personal and social wellbeing of a person with a disability from a government department, institution, welfare organisation or service provider; and

(e) make representations on behalf of, or act for, a person with a disability; and

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(f) give advice to any person as to the provisions of the Bill and in relation to applications for supportive guardianship orders, guardianship orders or administration orders; and

(g) investigate any complaint or allegation that a person is under inappropriate guardianship or is being exploited or abused or is in need of guardianship; and

(h) subject to subclause (2), require a person, government department, public authority, service provider, institution or welfare organisation to provide information for the purposes of—

(i) an investigation under paragraph (g); or

(ii) the provision of a report under clause 35 or 48 of Schedule 1 to the VCAT Act; and

(i) provide information for persons who are or propose to be supportive guardians, guardians or administrators; and

(j) report and make recommendations to VCAT on behalf of any person with a disability in any proceeding under the Equal Opportunity Act 2010; and

(k) make recommendations to VCAT with respect to guidelines proposed to be issued by VCAT about consent to a special procedure or medical research procedure and any other medical or dental treatment under Part 9; and

(l) perform any other function and exercise and any other power conferred on the Public Advocate by this Bill or any other Act.

Subclause (2) provides that it is a reasonable excuse for a person to refuse or fail to provide information that the person would otherwise be required under subsection (1)(h) to provide if providing the information would tend to incriminate the person.

Subclause (3) provides that if the Public Advocate is appointed as the guardian of a represented person, the person for the time being holding the office or performing the functions of the Public Advocate is the guardian of that represented person; and the Public Advocate must use the Public Advocate's best

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endeavours to find an appropriate person to be appointed as the guardian.

Clause 15 provides for the Public Advocate to employ any employees who are necessary to enable the Public Advocate to perform his or her functions under Part 3 of the Public Administration Act 2004.

Clause 16 sets out the Public Advocate's powers of delegation.

Subclause (1) provides that the Public Advocate may, by an instrument of delegation, delegate to a Public Advocate employee any one or more of the following, including: a power, duty or function of the Public Advocate under the Bill (other than this power of delegation); any or all of the Public Advocate's powers and duties in the Public Advocate's capacity as guardian; or any or all of the Public Advocate's powers and duties in the Public Advocate's capacity as an attorney under an enduring power of attorney within the meaning of the Powers of Attorney Act 2014.

Subclause (2) provides that the Public Advocate may, with VCAT's approval, by instrument of delegation, delegate any or all of the Public Advocate's powers and duties in the Public Advocate's capacity as guardian to an individual (other than a Public Advocate employee) or organisation specified in the instrument of delegation.

Clause 17 sets out the Public Advocate's powers of inspection in relation to an institution. Subclause (5) defines institution for the purposes of clause 17. It includes particular disability service providers; designated public hospitals; residential services, institutions and treatment facilities; mental health service providers; and supported residential services.

Subclause (1) empowers the Public Advocate to enter any premises on which an institution is situated and—

(a) inspect the premises; and

(b) see any person who is a resident of the 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

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(d) inspect any document relating to any such person or any record required to be kept under this Act, the Health Services Act 1988, the Supported Residential Services (Private Proprietors) Act 2010, the Disability Act 2006 or the Mental Health Act 2014.

Subclause (2) provides that subclause (1)(d), relating to inspection of documents or records, does not authorise the Public Advocate to inspect a person's medical records or personnel records unless the person to whom they relate consents.

Subclause (3) requires the person in charge and the members of staff or management of the institution to provide the Public Advocate with any reasonable assistance that the Public Advocate requires to perform or exercise any power, duty or function under clause 17 effectively.

Subclause (4) prohibits a person in charge or a member of the staff or management of an institution from doing specified actions, including unreasonably refusing or neglecting to give assistance to the Public Advocate ; refusing or failing to give full or true answers to questions asked by the Public Advocate or assaulting, obstructing or threatening the Public Advocate in the performance or exercise of any power, duty of function under this section. A breach of subclause (4) attracts a penalty of 25 penalty units.

Clause 18 Subclause (1) sets out the confidentiality requirements applying to a person who is or has been the Public Advocate, an Acting Public Advocate or a Public Advocate employee.

Subclause (2) prohibits a person from directly or indirectly making a record of, disclosing or communicating to any other person, any information relating to the affairs of a natural person acquired in the performance of functions or duties or the exercise of powers under the Bill which may identify the natural person. This prohibition is subject to certain exceptions listed in paragraphs (a)–(f), including where it is necessary to do so for the purposes of a function, duty or power under the Bill, for criminal proceedings or proceedings under the Bill, or where the person to whom the information relates consents. A breach of subclause (2) attracts a penalty of 60 penalty units.

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Clause 19 Subclause (1) requires the Public Advocate, as soon as practicable in each year but not later than 30 September, to submit to the Minister a report containing a review of the operation of the Public Advocate during the 12 months ending on the preceding 30 June.

Subclause (2) requires the Minister to lay each annual report of the Public Advocate before each House of the Parliament within 14 sitting days of that House after it is received by the Minister.

PART 3—APPLICATION FOR GUARDIAN AND ADMINISTRATION ORDERS

Clause 20 Subclause (1) provides that a person may apply to VCAT for a guardianship order that appoints a guardian or temporary guardian in relation to another person with a disability who is of or over 18 years of age, or under 18 years of age but the order takes effect on the person with a disability attaining 18 years of age.

Subclause (2) enables a person to make an application under subclause (1) for a guardianship order appointing a temporary guardian irrespective of whether an application for a guardianship order that appoints a guardian has been made.

Subclause (3) provides that a person may apply to VCAT for an administration order appointing an administrator or temporary administrator in relation to the estate of another person with a disability who is of or over 18 years of age, or under 18 years of age but the order takes effect on the person with a disability attaining 18 years of age.

Subclause (4) enables a person to make an application under subclause (3) for an administration order appointing a temporary administrator irrespective of whether an application for an administration order that appoints an administrator has been made.

Subclause (5) provides that, if a person with a disability who is of or over 18 years of age does not reside in Victoria, but has an estate the whole or part of which is in Victoria, another person may apply to VCAT for an order appointing an administrator in relation to so much of the estate as is in Victoria.

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Clause 21 requires a person applying to VCAT for an order under Part 3 to notify VCAT as to the names and contact details (if known to the applicant) of any person who has a direct interest in the application and the type of order being applied for, including details of the personal or financial matters in relation to which the order is sought.

Clause 22 sets out the list of people who are the parties to a proceeding for an application for a guardianship or administration order under clause 20. The parties include the applicant, the proposed represented person and the person proposed as guardian or administrator. VCAT may also determine that the proposed represented person's supportive guardian or supportive attorney (within the meaning of the Powers of Attorney Act 2014), or any other person, is a party to the proceeding.

Clause 23 Subclause (1) sets out the list of people who are entitled to notice of particular matters related to the application. The people listed in subclause (1) include the spouse or domestic partner of the proposed represented person, the primary carer of the proposed represented person, the nearest relative available (other than spouse or domestic partner) of proposed represented person; the proposed represented person’s supportive attorney (if not a party under clause 22), the Public Advocate (if the Public Advocate is proposed as guardian or no other person is proposed as guardian), and any current administrator of the estate of the proposed represented person or current guardian of the proposed represented person; or any other person whom VCAT determines to have an interest in the application.

Subclause (2) provides that, as soon as practicable after making any determination under clause 22(d) or (e) or subclause (1)(g), VCAT must notify the applicant of who are the parties to the proceeding and who is entitled to notice of the making of the application. This will allow the applicant to serve a notice of the application on the relevant persons as required by the VCAT Act.

Clause 24 Subclause (1) sets out what is required to be included in a notice of the making of an application for a guardianship or administration order that is given to a party to the application. The following information must be included—

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(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 (clause 37A to be inserted by this Bill provides that a person may make an application to the principal registrar that any documents lodged in relation to a proceeding under the Guardianship and Administration Act 2014 not be disclosed to a specified person or class of persons);

(b) the names, as stated in the notification given by VCAT under clause 23(2), of the parties to the proceeding on an application under clause 20 and the other persons entitled to the notice under clause 23(1);

(c) information about the rights of the party in relation to the application.

Subclause (2) requires similar information to be included in a notice given to a person referred to in clause 23(1) who is not a party, with the exception of any information filed in support of the application. Notice under subclause (2) also requires the provision of information about the procedure for applying to VCAT to be made a party to the proceeding on the application.

Clause 25 requires VCAT to commence to hear an application made under clause 20 within 30 days after the day on which the application is received by VCAT, unless VCAT or the principal registrar under Division 5 of Part 4 of the VCAT Act (which deals with compulsory conferences) requires the parties to the application to attend a compulsory conference in relation to the application or refers the proceeding in relation to the application, or any part of it, for mediation.

Clause 26 provides that VCAT may only conduct a hearing in relation to an application made under clause 20 if—

(a) the proposed represented person is present at the hearing; or

(b) VCAT is satisfied that—

(i) the proposed represented person does not wish to attend the hearing; or

(ii) the presence of the proposed represented person at the hearing is impracticable or unreasonable, despite any arrangement that VCAT may make.

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The note at the foot of clause 26(b)(ii) refers to section 100 of the VCAT Act which provides that if VCAT thinks it appropriate, it may conduct proceeding by conference conducted using telephones, video links or other system of telecommunication.

Clause 27 Subclause (1) provides that clause 27 applies in relation to a proposed represented person in relation to whom—

(a) an application for a guardianship order has been made under clause 20; and

(b) VCAT has received information on oath that the proposed represented person is being lawfully detained against the person's will or is likely to suffer serious damage to the person's physical, emotional or mental health or wellbeing unless immediate action is taken.

Subclause (2) enables VCAT by order to empower the Public Advocate, or some other person specified in an order, to visit the proposed represented person in the company of a police officer for the purpose of preparing a report for VCAT.

Subclause (3) enables VCAT to 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 clause 20 is determined if, after receiving a report referred to in subclause (2), VCAT is satisfied that the person is likely to suffer serious damage to the person's physical, emotional or mental wellbeing unless immediate action is taken.

Subclause (4) provides that a police officer acting under an order made under subclause (2) may, with such assistance as is necessary, use such force as is reasonably necessary to enter the premises where the person with a disability is.

Subclause (5) prohibits a person from delaying or obstructing a person who is acting under an order under clause 27. A breach of this prohibition attracts a penalty of 20 penalty units. The note at the foot of clause 27(5) clarifies that clause 209 relating to criminal liability of officers of bodies corporate, applies to an offence against this subclause.

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PART 4—CONDITIONS FOR MAKING GUARDIANSHIP AND ADMINISTRATION ORDERS AND ELIGIBILITY OF

PERSON APPOINTED

Clause 28 Subclause (1) provides that VCAT may, after considering an application made under clause 20—

(a) make a guardianship order or administration order (subject to subclause (4)); or

(b) make no order under the Bill; or

(c) make a supportive guardianship order (subject to clause 95).

Subclause (2) makes clear that a guardianship order made under clause 28 in relation to a proposed represented person may appoint a guardian or a temporary guardian.

Subclause (3) makes clear that an administration order made under clause 28 in relation to a proposed represented person may appoint an administrator or a temporary administrator.

Subclause (4) sets out the circumstances under which VCAT can make a guardianship order or administration order. VCAT may only make such an order if satisfied that—

(a) because of the proposed represented person's disability, the person does not have decision making capacity in relation to—

(i) in the case of a guardianship order, the personal matter in relation to which the order is sought to be made or the personal and financial matters in relation to which the order is to be made; or

(ii) in the case of an administration order, the financial matter in relation to which the order is to be made; and

(b) the proposed represented person is in need of a guardian or administrator; and

(c) the guardianship order or administration order would promote the proposed represented person's personal and social wellbeing; and

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(d) in the case of an application for an administration order in relation to person who does not reside in Victoria, State Trustees has not been authorised under section 12 of the State Trustees (State Owned Company) Act 1994 to collect, manage, sell or otherwise dispose of or administer any property in Victoria which forms part of the estate of the person in relation to whom the application is made.

Clause 29 sets out the factors that VCAT must consider in determining whether or not a person is in need of a guardian or administrator under clause 28(4)(b). These factors are—

(a) the wishes of the proposed represented person (so far as they can be ascertained); and

(b) the wishes of the nearest relative of the proposed represented person or, if that is not possible, the wishes of any other family members of the proposed represented person; and

(c) the desirability of preserving existing family relationships and other relationships that are important to the proposed represented person; and

(d) whether it is more suitable that the decision in relation to the personal or financial matter in relation to which the order is sought is made—

(i) by the proposed represented person with appropriate assistance from a supportive guardian; or

(ii) through negotiation, mediation or other similar means; or

(iii) by informal means.

Clause 30 sets out the details of persons eligible to be appointed as guardians and administrators.

Subclause (1) provides that if VCAT is satisfied as to the matters set out in subclause (2), VCAT may appoint—

(a) as a guardian, any individual who is of or over the age of 18 years and who consents to act as guardian; or

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(b) as an administrator, any individual who is of or over the age of 18 years and who consents to act as administrator or any body corporate that consents to the act as administrator.

Subclause (2) sets out factors of which VCAT must be satisfied when deciding to appoint a guardian or administrator under subclause (1). These factors are that the person to be appointed—

(a) will promote the proposed represented person's personal and social wellbeing;

(b) is not in a position where the person's interests conflict or may conflict with the interests of the proposed represented person;

(c) is a suitable person to act as the guardian of the proposed represented person or as administrator of the proposed represented person's estate. The factors to be considered in determining suitability are set out in clause 31;

(d) has sufficient expertise to administer the estate or there is a special relationship between the person appointed and the proposed represented person or other special reason why that person should be appointed as administrator (in the case of an administration order) or as guardian (in the case of a guardianship order specifying powers in relation to a financial matter).

Clause 33 permits statements of wishes for future appointments to be lodged by particular persons. Subclause (3) of clause 30 provides that, if a statement was lodged under clause 33 by the proposed represented person's guardian or administrator, VCAT must appoint the person nominated as guardian or administrator if satisfied that the person—

(a) is of or over the age of 18 years and consents to act as guardian or administrator; and

(b) meets the criteria set out in subclause (2).

Clause 31 Subclause (1) sets out factors that VCAT must consider in determining whether a person is suitable to act as the guardian of a proposed represented person or as administrator of the

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estate of a proposed represented person under clause 30(2)(c). These factors include—

(a) the wishes of the proposed represented person (so far as they can be ascertained);

(b) any statement lodged under clause 33 in relation to the proposed represented person (statements under clause 33 are statements of wishes for future appointments);

(c) the desirability of preserving existing family relationships and other relationships that are important to the proposed represented person;

(d) the desirability of appointing a person as a guardian or administrator who has an existing personal relationship with the proposed represented person rather than a person with no such relationship;

(e) the compatibility of the person proposed as guardian of the proposed represented person and the (existing) administrator (if any) of the proposed represented person's estate, in the case of guardianship order; and

(f) the compatibility of the person proposed as administrator of the proposed represented person's estate and the (existing) guardian (if any) of the proposed represented person, in the case of an administration order; and

(g) whether the person proposed as guardian or administrator will be available and able to meet, and communicate with, the proposed represented person so as to make decisions that best promote the personal and social wellbeing of the proposed represented person;

(h) whether the person proposed as administrator or guardian (in the case of a guardianship order specifying powers in relation to a financial matter) was a member of VCAT as constituted for a proceeding under the Bill.

Subclause (2) provides that VCAT must not assume without any evidence that a proposed represented person's relative who is proposed as a guardian or administrator for the person is—

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(a) in a position where the relative's interests conflict, or may conflict, with those of the proposed represented person; or

(b) not suitable to be appointed as the guardian or administrator merely because that relative disagrees with another relative of the proposed represented person in relation to a matter pertaining to the proposed represented person.

Clause 32 Subclause (1) enables VCAT to appoint the Public Advocate as guardian with powers in relation to a personal matter of a proposed person if it is satisfied that no other person fulfils the requirements of clause 30 for appointment as the guardian of that person. Subclause (1) is subject to clause 28, which sets out the circumstances in which VCAT may make a guardianship or administration order.

Subclause (2) provides that subclause (1) does not prevent VCAT from appointing persons (including the Public Advocate and any other person) as joint guardians for a proposed represented person. VCAT may do this if each person fulfils the relevant requirements in clause 30 and VCAT considers it appropriate to do so.

Subclause (3) enables VCAT to appoint a person as administrator or guardian with powers in relation to financial matters who was at any time a member of VCAT as constituted for a proceeding under the Guardianship and Administration Act 2014 only if VCAT considers that in the circumstances it is appropriate for the person to act as an administrator or guardian.

Clause 33 provides for the lodgement of wishes for future appointments with VCAT.

Subclause (1) lists the people who may lodge a statement of wishes with VCAT, including any guardian or administrator, any supportive guardian, the primary carer or any relative.

Subclause (2) provides that a statement of wishes must set out the wishes of the person lodging the statement as to any future appointment of a guardian or administrator in relation to the represented person and the reasons for those wishes.

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PART 5—GUARDIANSHIP AND ADMINISTRATION ORDERS APPOINTING A PARENT AS GUARDIAN OR

ADMINISTRATOR

Background

Part 5 of the Bill introduces a new streamlined process to enable a parent of an adult child, the proposed represented person, (with impaired decision making capacity because of a disability) to apply to VCAT for an order appointing the parent as the guardian or administrator.

Clause 34 provides that the following Parts of the Bill do not apply to application under Part 5—

Part 3, which otherwise provides for applications for guardianship and administration orders;

Part 4 (other than clause 33), which otherwise provides for the conditions for making guardianship and administration orders and the eligibility requirements for the person appointed;

Part 10, which otherwise provides for the rehearing and reassessment of supportive guardianship, guardianship and administration orders.

Clause 35 Subclause (1) enables a parent to apply to VCAT for a guardianship order to appoint the parent as guardian for a person with a disability if the person is a child of the parent and is of or over 18 years of age or under 18 years of age but the order takes effect on the person attaining 18 years of age.

Subclause (2) enables a parent to apply to VCAT for an administration order to appoint the parent as administrator in relation to the estate of a person with a disability if the person is a child of the parent and is of or over 18 years of age or under 18 years of age but the order takes effect on that person attaining 18 years of age.

Subclause (3) provides for a parent of a person with a disability who is of or over 18 years of age and does not reside in Victoria but has an estate the whole or part of which is in Victoria , to apply to VCAT for an order under Part 5 appointing the parent as administrator or as guardian with powers for a financial matter for so much of the estate as is in Victoria.

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Subclause (4) prevents a parent from making an application for an order under Part 5 in relation to a child of the parent if, immediately before the making of the application, guardianship, custody, daily care or parental responsibility in relation to the child was removed by law from the parent in one or more of the following circumstances—

(a) the child was the subject of an order in a Family Court proceeding;

(b) the child was the subject of an order by an interstate authority;

(c) the child was the subject of an order that granted guardianship, custody, daily care or parental responsibility to the Secretary to the Department of Human Services or an equivalent interstate officeholder.

There is a note to clause 35 that nothing in Part 5 prevents a parent from making an application under clause 20 in relation to a child of the parent. Clause 20 relates to applications for guardianship and administration orders using the ordinary process—that is, not using the streamlined process in Part 5.

Clause 36 Subclause (1)(a) lists the matters that must be included in an application for an order under Part 5. These matters are—

(i) the names and contact details (if known to the parent) of specified people, including: the primary carer of the proposed represented person; the accommodation provider in relation to the represented person; any care worker who provides care on a regular and ongoing basis to the proposed represented person; any health provider who provides substantial health care on a regular and ongoing basis to the proposed represented person; the proposed represented person's nearest relative available (other than the person's parent making the application); and

(ii) the type of order being applied for, including which specified decision making powers are sought.

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Subclause (1)(b) sets out the evidence that must be filed in support of an application for an order under Part 5, including—

(i) evidence provided by a registered medical practitioner that—

(A) because of the proposed represented person's disability, the person does not have decision making capacity to make a supportive attorney appointment or an enduring power of attorney appointment under the Powers of Attorney Act 2014; and

(B) the disability arose before the proposed represented person attained 18 years of age; and

(C) it is unlikely that, during the term of the order, the proposed represented person's decision making capacity will improve to the extent that they could make a supportive attorney appointment or an enduring power of attorney appointment; and

(D) the views of the proposed represented person can or cannot be ascertained, and if they cannot be ascertained, the reasons why they cannot be ascertained;

(ii) the history of the care arrangements for the proposed represented person, including—

(A) any significant events and changes and whether there is a history of parental care for the person; and

(B) evidence that the applicant has been making decisions for the proposed represented person on a regular basis before the proposed represented person attained 18 years of age, and is currently doing so;

(iii) evidence provided by a registered medical practitioner, registered psychologist or person who is a member of a prescribed class of persons, of the views of the proposed represented person (so far as they can be ascertained) in relation to the proposed order or any other issues arising from the application;

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(iv) a statement that clause 35(4) does not apply—that is, a statement that guardianship, custody, daily care or parental responsibility had not been removed by law from the parent in one or more of the listed circumstances;

(v) a statement listing any conviction of the applicant for—

(A) an offence involving violence; or

(B) a prescribed offence; or

(C) any offence which has a maximum penalty of 5 years or more.

Subclause (2) provides that a person who provides evidence under subsection (1)(b) in relation to an application must not be a relative of the proposed represented person and must give that evidence independently of the views of the applicant or any other person. They must also obtain the relevant evidence in the prescribed form.

Subclause (3) defines enduring power of attorney, registered psychologist and supportive attorney appointment for the purposes of the clause.

Clause 37 provides that the applicant and the proposed represented person are parties to a proceeding on an application under section 35.

Clause 38 provides that, in addition to any party to a proceeding on an application under section 35, for the purposes of section 72(1) of the VCAT Act, the following persons of whom the applicant could be reasonably expected to be aware and be able to notify are also entitled to a notice of the making of the application—

(a) the primary carer of the proposed represented person;

(b) the accommodation provider in relation to the proposed represented person;

(c) any care worker who provides care on a regular and ongoing basis to the proposed represented person that is necessary because of the person's disability;

(d) any health provider who provides substantial health care on a regular and ongoing basis to the proposed represented person;

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(e) the nearest relative available of the proposed represented person (other than the person's parent making the application).

Section 72 of the VCAT Act provides for service of a notice of an application.

Clause 39 Subclause (1) sets out the information that must be included in the notice of the making of an application that is given to the proposed represented person. The notice must include—

(a) a copy of the application;

(b) a statement that the proposed represented person may make a submission to VCAT in relation to the application within 60 days after the notice was given to the proposed represented person and may provide their views about the application.

Subclause (2) sets out the information that must be included in the notice of the making of an application that is given to a person who is not the proposed represented person. This notice must include a copy of the application but not the information filed in support of the application. The notice must also include a statement that the person may make a submission to VCAT in relation to the application.

Clause 40 provides that a person who is entitled to receive a notice under clause 38 or a person who has an interest in the application may make a submission to VCAT in relation to the application within 60 days after the notice was given under that clause.

Clause 41 Subclause (1) sets out when VCAT must make a guardianship order or administration order as sought on the papers appointing the applicant as guardian or administrator. VCAT must make the order on the papers if VCAT—

(a) did not receive any submission in relation to the application in accordance with clause 40 and is satisfied about the matters referred to in clauses 36(1)(b)(i) and (ii)—that is, the evidence provided by a registered medical practitioner and/or a registered psychologist or member of a prescribed class of person as to various matters; or

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(b) received a submission in relation to the application in accordance with clause 40 and is satisfied as to the matters referred to in clauses 36(1)(b)(i) and (ii), taking into account the contents of the submission.

Subclause (2) prohibits VCAT from making a guardianship or administration order on the papers under subclause (1) if VCAT is satisfied that—

(a) the proposed represented person either does not want the order to be made or has other concerns that VCAT wishes to consider at a hearing; or

(b) based on the evidence in the application and any submissions received by VCAT, there is a significant risk that the order sought would be harmful to the personal and social wellbeing of the proposed represented person.

Clause 42 provides that if clause 41(2)(a) or (b) applies (that is, if VCAT does not make a decision "on the papers"), VCAT must commence to hear an application under Part 5 within 30 days after the expiry of the 60 day period for receiving a submission under clause 40.

Clause 43 requires VCAT to ensure that the proposed represented person is present at the hearing referred to clause 42 unless VCAT is satisfied that—

(a) the proposed represented person does not wish to attend the hearing; or

(b) the presence of the proposed represented person at the hearing is impracticable or unreasonable, despite any arrangement that VCAT may make.

Clause 44 Subclause (1) provides that VCAT must make a guardianship or administration order following a hearing in relation to an application under Part 5 that appoints the applicant parent as a guardian or administrator if VCAT is satisfied as to the matters referred to in section 36(1)(b)(i) and (ii).

Subclause (2) provides that VCAT must refuse to make a guardianship or administration order as sought following a hearing in relation to an application under Part 5 that appoints

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the applicant parent as guardian or administrator if VCAT is satisfied that the order sought—

(a) would be harmful to the personal and social wellbeing of the proposed represented person; or

(b) would not be appropriate on the basis of the views of the proposed represented person (so far as they can be ascertained).

Subclause (3) enables VCAT to make a guardianship or administration order that confers more limited powers on the appointed guardian or administrator than those sought in the application if VCAT is satisfied that—

(c) the order sought by the applicant parent would be harmful to the personal and social wellbeing of the proposed represented person; or

(d) the order made by VCAT more closely reflects the views of the proposed represented person (so far as they can be ascertained).

Clause 45 Subclause (1) requires VCAT to conduct a reassessment of a guardianship or administration order that is made under Part 5 within the 6 month period immediately before the fifth anniversary of the order.

Subclause (2) makes clear that VCAT may, at any time, conduct a reassessment of a guardianship or administration order made under Part 5 if VCAT is satisfied that there is a significant risk that the order is harmful to the represented person or the order is no longer appropriate, on the basis of the views of the represented person.

Subclause (3) provides that before conducting a reassessment under subclause (2), VCAT must—

consider whether it is appropriate to give the guardian or administrator an opportunity to make a submission to VCAT as to whether or not a reassessment should be conducted; and

if it considers that it is appropriate, provide the guardian or administrator the opportunity to do so.

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Subclause (4) provides that a reassessment under subclause (2) can be conducted on VCAT's own initiative or on the application of any person.

Clause 46 allows VCAT, for the purposes of a reassessment in accordance with clause 45(1), to request the guardian or administrator to provide VCAT with some or all of the information and documents referred to in clause 36(1).

Clause 47 provides that once a guardian or administrator is notified that VCAT intends to reassess the guardianship order or administration order made under this Part, the following persons of whom the applicant could be reasonably expected to be aware and be able to notify are entitled to notice of the intention to conduct a reassessment—

(a) the represented person;

(b) the primary carer of the represented person;

(c) the accommodation provider in relation to the represented person;

(d) any care worker for the represented person who provides care on a regular and ongoing basis to the represented person that is necessary because of the person's disability;

(e) any health provider who provides substantial health care on a regular and ongoing basis to the represented person;

(f) the nearest relative available of the represented person (other than the applicant);

(g) a person not referred to in paragraphs (a) to (f) who made a submission to VCAT in the original application.

Subclause (2) provides that section 72 of the Victorian Civil and Administrative Tribunal Act 1998 applies to a notice under clause 47(1) as if the notice were in relation to an application

Subclause (3) provides that a person who is notified under subclause (1) may make a submission to VCAT in relation to the reassessment within 60 days after the notification is made under that subclause.

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Clause 48 provides that, subject to subclause (2), a reassessment of an order made under Part 5 must be conducted on the papers.

Subclause (2) provides that a reassessment of an order made under Part 5 must be conducted at a hearing if—

(a) VCAT is satisfied that that the represented person does not want the order as made to continue to be in force or has other concerns that should be considered at a hearing; or

(b) VCAT considers that based on the evidence provided by the guardian or administrator or on any submission received by VCAT, there is a significant risk that continuing the order would be harmful to the personal and social wellbeing of the represented person.

Clause 49 Subclause (1) provides that, on completing a reassessment of an order under Part 5 on the papers, VCAT may by order—

(a) amend, vary, continue or replace the order subject to any conditions or requirements it considers necessary, if satisfied as to the matters referred to in clause 36(1)(b)(i) and (ii); or

(b) revoke the order if clause 41(2)(a) or (b) applies—that is, if VCAT is satisfied that the proposed represented person does not want the order to be made or has other concerns that VCAT wishes to consider at a hearing or, based on the evidence in the application, and any submissions received by VCAT, there is a significant risk that the order sought would be harmful to the personal and social wellbeing of the proposed represented person.

Subclause (2) provides that on completing a reassessment of an order made under Part 5 at a hearing, VCAT may by order—

(a) amend, vary, continue or replace the order to alleviate the represented person's concerns, if satisfied as to the matters referred to in clause 36(1)(b)(i) and (ii); or

(b) revoke the order.

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PART 6—POWERS AND DUTIES OF GUARDIANS AND ADMINISTRATORS

Division 1—Guardians

The provisions in Part 6 dealing with the powers and duties of guardians and administrators re-enacts many of the provisions from the Guardianship and Administration Act 1986 which is being repealed by this Bill.

Clause 50 sets out the authority of a guardian. Subclause (1) provides that a guardianship order appointing a guardian in relation to the represented person confers on the guardian—

in relation to a personal matter, the powers and duties set out in Division 3 and any powers that VCAT specifies in the order in accordance with subclause (2);

in relation to a financial matter, and in addition to the powers and duties conferred in relation to a personal matter, the powers set out in Division 4, the duties set out in Division 6 and any powers set out in Division 5 that VCAT specifies in the order, in accordance with subclause (3).

Subclause (2) provides that in relation to conferring powers on a guardian in relation to a personal matter under subclause (1)(a), VCAT may specify one or more of the powers that a principal may confer on an enduring attorney under the Powers of Attorney Act 2014 in relation to a personal matter if VCAT is satisfied that the power is necessary or desirable to promote the personal and social wellbeing of the represented person.

Subclause (3) provides that for the purposes of subclause (1)(b)(iii), VCAT may specify one or more of the powers set out in Division 5 if VCAT is satisfied that the power is necessary or desirable for the purpose of promoting the personal and social wellbeing of the represented person.

Clause 51 sets out the circumstances for appointing an alternative guardian and the authority of an alternative guardian. Subclause (1) enables VCAT, when making or reassessing a guardianship order which only confers powers in relation to a personal

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matter, or at any time when a guardianship order is in force, to make an order appointing an alternative guardian with powers in relation to a personal matter if—

the proposed alternative guardian has consented to act as guardian in the event of the death or absence of the original guardian or the original guardian becoming a person who does not have decision making capacity in relation to the personal matters in respect of which the guardianship order was made; and

VCAT is satisfied that the persons to whom notice of the hearing of a guardianship order is given under clause 23 have had sufficient notice of the willingness of the proposed alternative guardian to act as such.

Subclause (2) provides that clauses 31 and 32 (other than clause 32(2)) apply to and in relation to the proposed alternative guardian as if that person were the proposed guardian. Clauses 31 and 32 set out factors that VCAT must consider in determining whether a person is suitable to act as the guardian of a proposed represented person.

Subclause (3) makes clear that if an alternative guardian is appointed, the person immediately takes over as guardian without further proceedings on one of the following events—

the death or absence of the original guardian; or

the original guardian becoming a person who does not have decision making capacity in relation to the matters in respect of which the guardianship order was made.

Subclause (4) requires an alternative guardian to notify VCAT in writing of an event referred to in subclause (3) and provide evidence of the event.

Subclause (5) makes clear that an alternative guardian who takes over as guardian has the same powers and duties in relation to the represented person as the original guardian had immediately before that guardian's death, absence or loss of decision making capacity.

Clause 52 Subclause (1) provides that a temporary guardianship order remains in effect for such period not exceeding 21 days as is specified in the order and may be renewed once for a further period not exceeding 21 days.

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Subclause (2) requires VCAT to hold a hearing to determine whether a guardianship order should be made under clause 28 as soon as practicable after a temporary order but within 42 days of making that order.

Clause 53 makes clear that a decision made, action taken, consent given or thing done by a guardian under a guardianship order has effect as if it had been made, taken, given or done by the represented person and the person had the decision making capacity for the matter in relation to which the order was made.

Clause 54 Subclause (1) enables VCAT to make an order specifying that a guardian or another specified person is empowered to take specified measures or actions to ensure that the represented person complies with the guardian's decisions in the exercise of the powers and duties conferred by the guardianship order.

Subclause (2) requires VCAT to hold a hearing to reassess an order made under subclause (1) as soon as practicable after making the order but within 42 days of making the order.

Subclause (3) makes clear that a guardian or another person specified in an order made under subclause (1) is not liable to any action for false imprisonment or assault or any other action, liability, claim or demand arising out of the taking of a measure or action under the order if the guardian or other person took the measure or action in the belief that—

the measure or action would promote the personal and social wellbeing of the represented person; and

it was reasonable to take that measure or action in the circumstances.

Subclause (4) makes clear that subclause (1) does not limit subclauses 50, 51 or 53, which set out the scope of the authority of a guardian and alternative guardian.

Division 2—Administrators

Clause 55 Subclause (1) sets out the authority of an administrator. Subclause (1) provides that an administration order appointing an administrator confers on the administrator—

the powers and duties set out in Division 3; and

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the powers set out on Division 4; and

the duties set out in Division 6; and

such of the powers referred to in Division 5 that VCAT specifies in the order in accordance with subclause (2).

Subclause (2) provides that for the purposes of subclause (1)(d), VCAT can specify one or more of the powers set out in Division 5 if VCAT is satisfied that the powers is necessary or desirable for the purpose of promoting the personal and social wellbeing of the represented person.

Subclause (3) makes clear that a decision made, action taken, consent given or thing done by an administrator under an administration order has effect as if it had been made, taken, given or done by the represented person and the person had the decision making capacity for the matter in relation to which the order was made.

Clause 56 Subclause (1) provides that a temporary administration order remains in effect for such period not exceeding 21 days as specified in the order and may be renewed once for a further period not exceeding 21 days.

Subclause (2) requires VCAT to hold a hearing to determine whether an administration order should be made under subclause 28 as soon as practicable after making a temporary order but within 42 days of making the order.

Division 3—Powers and duties of all guardians and all administrators

Clause 57 makes clear matters for which power cannot be given under a guardianship or administration order to a guardian or administrator. These matters include the making or revoking of a will for the represented person; voting on behalf of the represented person at a Commonwealth or State or Territory election; managing the estate of the represented person on the death of the represented person or consenting to an unlawful act.

Clause 58 clarifies the manner in which a guardian or administrator is required to exercise power under a guardianship or administration order. A guardian is required to act as an advocate for the represented person and act in such a way as to

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protect the represented person from neglect, abuse or exploitation.

In addition, the guardian or an administrator is required to—

act honestly, diligently and in good faith; and

exercise reasonable skill and care; and

not use the position for profit unless permitted under subclause 194; and

avoid acting if there is or may be a conflict of interest unless authorised by the order; and

not disclose confidential information gained as guardian or administrator unless authorised by the order or by law.

These duties do not limit the principles that guardians and administrators must adhere to under clause 7.

Clause 59 makes clear that a guardian or administrator can behalf of a represented person sign and do all such things as are necessary to give effect to any power or duty vested in the guardian or administrator.

Clause 60 Subclause (1) enables a guardian or administrator to apply to VCAT for any advice on the scope of the guardianship or administration order or the exercise of any power under the relevant order.

Subclause (2) makes clear that the jurisdiction of VCAT includes jurisdiction in the case of an administration by State Trustees to approve, order or advise the commencement of proceedings by State Trustees acting in one capacity or on behalf of one represented person against State Trustees acting in another capacity or on behalf of another represented person.

Subclause (3) sets out the powers of VCAT in relation to a guardian or administrator, including the power to approve or disapprove of any act proposed to be done by the guardian or administrator and give such advice as VCAT considers appropriate.

Subclause (4) enables VCAT, of its own initiative, to direct or give an advisory opinion to the guardian or administrator concerning any matter.

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Subclause (5) provides that action does not lie against a guardian or administrator for an act or thing done or omitted to be done by the guardian or administrator under an order or on the advice of VCAT made or given by VCAT under section 60 unless in representing the facts to VCAT, the guardian or administrator has been guilty of fraud, wilful concealment or misrepresentation.

Clause 61 requires a guardian or administrator appointed for a represented person to report the death of the represented person to VCAT without delay.

Division 4—Powers for all guardians with powers in relation to financial matters and all administrators

Clause 62 makes clear that a guardian with financial powers or an administrator may, in the name and on behalf of the represented person, generally do all acts and exercise all powers and rights in relation to the estate of the represented person as effectually and in the same manner as the represented person could have done if the person had decision making capacity to do so for the matters in relation to which the guardianship or administration order was made.

Clause 63 sets out the powers of investment of a guardian with financial powers or an administrator which includes re-depositing money in an authorised deposit-taking institution after the money becomes payable.

Clause 64 Subclause (1) sets out the power of a guardian with financial powers or an administrator to make a gift of the represented person's property. Such a gift can only be made if—

the gift is reasonable, having regard to all the circumstances and, in particular, the represented person's financial circumstances; and

the gift is to a relative or a close friend of the represented person and is of a seasonal nature or for a special event (for example, a birth or a marriage) or is a type of donation that the represented person made when the person had decision making capacity or that the represented person might reasonably be expected to make.

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Subclause (2) makes clear that a gift may be made by the guardian with financial powers or an administrator under subclause (1) even if the gift is made to the guardian or administrator or a relative or close friend of the guardian or administrator or an organisation with whom the guardian or administrator has a connection.

Clause 65 Subclause (1) sets out the circumstances for the operation of subclause (2). Subclause (1) provides that subclause (2) applies if—

a power is vested in a represented person for that person's own benefit or the consent of a represented person is necessary to the exercise of a power; and

the power or consent is in the nature of a beneficial interest in the represented person; and

it appears to the guardian with financial powers or the administrator to be for the benefit of the represented person that the power should be exercised or the consent given.

Subclause (2) allows a guardian with financial powers or an administrator to, on behalf and in the name of a represented person, in any manner that the guardian or administrator thinks fit exercise a power referred to in subclause (1) or give consent referred to in subclause (1).

Subclause (3) provides that subclause (4) applies if—

a power is vested in a represented person in the character of a trustee or guardian, or the consent of a represented person to the exercise of a power is necessary in the character of a trustee or guardian or as a check on the undue exercise of the power; and

it appears to the guardian with financial powers or the administrator that the power should be exercised or the consent given.

Subclause (4) provides that a guardian with financial powers or an administrator may in any manner that the guardian or administrator thinks fit, on behalf and in the name of a represented person, exercise a power referred to in subclause (3) or give a consent referred to in subclause (3).

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Subclause (5) provides that the exercise under this clause by a guardian with financial powers or an administrator of a power vested in a represented person to appoint a new trustee is to be taken to be the appointment of a new trustee within the meaning of section 45 of the Trustee Act 1958.

Clause 66 enables a guardian with financial powers or an administrator, either before or after the death of a represented person, to open and read without order any paper or writing deposited with the guardian or administrator that is purported or alleged to be the will of the represented person.

Clause 67 Subclause (1) allows a guardian with financial powers or an administrator to seek advice from a professional adviser on the administration of the represented person's estate.

Subclause (2) makes clear that a guardian with financial powers or an administrator is entitled to be reimbursed from the estate administered by the guardian or administrator for any costs paid by the person for professional advice.

Subclause (3) defines a professional adviser as someone who provides advice in relation to financial matters and includes a financial adviser, legal practitioner and accountant.

Division 5—Powers that may be conferred on guardians with power in relation to a financial matter and administrators

Clause 68 is an interpretive provision and clarifies how Division 5 applies to guardians with financial powers and administrators.

Clause 69 Subclause (1) sets out the powers of a guardian with financial powers or an administrator in relation to a represented person. Subject to this Act and the order of appointment, a guardian with financial powers or an administrator has the general care and management of the represented person's estate.

Subclause (2) provides more detail of the specific powers that a guardian with financial powers or an administrator may exercise in relation to a represented person. Without limiting subclause (1), these powers include—

collecting, receiving and recovering: income of the represented person; money due or which becomes due to the represented person and any compensation or

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damages for injury to the estate or person of the represented person; and

carrying on so far as appears desirable any trade, profession or business which the represented person carried on; and

bringing and defending actions and other legal proceedings in the name of the represented person; and

completing any contract for the performance of which the represented person was liable, or entering into any agreement terminating liability.

Subclause (3) makes clear that a guardian with financial powers or an administrator can—

pay or cause to be paid to the represented person for the personal use of that person any amount of money standing to the credit of that person with the guardian or administrator; and

give or cause to be given to the represented person for the person’s personal use any personal property belonging to the person and which is under the control of the guardian or administrator.

Division 6—Additional duties of all guardians with power in relation to a financial matter and all administrators

Clause 70 makes clear that subject to and in accordance with this Act and the order appointing a guardian with financial powers or an administrator, it is the duty of the guardian or administrator to take possession and care of, recover, collect preserve and administer the property and estate of the represented person and generally to manage the property and financial affairs of the represented person.

Clause 71 subclause (1) prohibits a guardian with financial powers or an administrator from entering into a transaction in that capacity if the transaction is one in which there is, or may be, a conflict between a duty of the guardian or administrator to the represented person and the interests of the guardian or administrator, or a relative, business associate or close friend of the guardian or administrator.

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Subclause (2) sets out transactions that are not covered by the prohibited conflict transactions in subclause (1). These transactions are—

a gift made in accordance with clause 64;

a transaction providing for the maintenance of a dependant of the represented person made in accordance with clause 69(2)(o); or

a transaction in which the guardian or administrator in their own right and on behalf of the represented person deals with an interest in property held jointly by the guardian or administrator and the represented person or obtains a loan or gives a guarantee or indemnity in respect to a transaction.

Clause 72 Subclause (1) sets out details of permitted conflict transactions. A guardian with financial powers or an administrator can enter into a conflict transaction prohibited under clause 71(1) if VCAT authorises the guardian or administrator at or before the time of the transaction to enter into the transaction, that kind of transaction or any transaction prohibited by clause 71(1).

Subclause (2) provides that despite clause 71(1), VCAT may validate a transaction prohibited under clause 71(1).

Subclause (3) makes clear that a transaction validated under subclause (2) is taken to be valid from its commencement.

Clause 73 requires a guardian with financial powers or an administrator to keep accurate records and accounts of all dealings and transactions made for financial matters.

Clause 74 Subclause (1) requires a guardian with financial powers or anadministrator appointed in relation to the estate of a represented person to keep the guardian's or administrator's property separate from the represented person's property.

Subclause (2) provides that subclause (1) does not apply to property owned jointly by the guardian or administrator and the represented person.

Subclause (3) makes clear that subclause (1) does not affect any other obligation imposed by law.

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Clause 75 Subclause (1) enables VCAT, at the time it appoints a guardian with financial powers or an administrator under clause 28 or at any later time, to appoint a person to examine or audit the accounts of the estate of a represented person for a fee approved by VCAT and paid from the estate.

Subclause (2) requires a guardian with financial powers or an administrator, on or as soon as practicable after the anniversary of the appointment of the guardian or administrator to lodge an account of the administration of the estate of a represented person. The accounts must be lodged with the person appointed under subclause (1) to examine or audit accounts or VCAT, if no person is appointed under subclause (1).

Subclause (3) provides that despite subclause (2), VCAT may require a guardian with financial powers or an administrator to lodge accounts at a time other than a time specified in subclause (2).

Subclause (4) sets out the details to be provided in an account lodged under subclauses (2) or (3) including a full and true account of the assets and liabilities of the estate of the represented person and details of any gifts made by the guardian or administrator of the represented person's property with a total value of or over the prescribed amount or, if an amount is not prescribed, $100, that is made to people listed in subclause (4)(b).

Subclause (5) requires a person appointed to examine or audit accounts to lodge with VCAT a report in relation to the accounts examined or audited and may recommend in the report the disallowance of any items in the accounts.

Subclause (6) provides that VCAT must not make an order disallowing an item referred to in subclause (5) if VCAT is satisfied that the guardian with financial powers or administrator acted in good faith and with reasonable care in the exercise of their powers.

Subclause (7) provides that if VCAT disallows an item referred to in subclause (5), the guardian with financial powers or administrator is liable for the amount of the item disallowed.

Subclause (8) requires a guardian with financial powers or an administrator, in relation to each estate administered by the guardian or administrator, to pay the person appointed under

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subclause (1) to examine or audit accounts, an amount certified by that person as being the reasonable cost of examining or auditing the accounts.

Subclause (9) enables VCAT, on application by the guardian with financial powers or the administrator and with the consent of the person appointed under subclause (1) to examine or audit accounts, to waive payment of the whole or part of the amount required to be paid under subclause (8).

Clause 76 sets out the accounting requirements for small estates. Subclause (1) provides that if VCAT determines that the estate of a represented person is a small estate and that it is appropriate that clause 75(4) not apply, then a guardian with financial powers or an administrator must comply with the requirements of clause 76. A small estate is defined in subclause (3).

Subclause (2) sets out the information required to be included in an account lodged under clause 75(2) for a small estate (subject to subclause (1)). The information includes—

a declaration made by the guardian with financial powers or the administrator that all expenditure in relation to the estate during the accounting period was solely for the benefit of the represented person;

details of any gift made by the guardian or the administrator of the represented person’s property in specified situations and to specified people;

details of any expenditure on a single occasion that is greater than $1000 or the prescribed amount (whichever is greater);

details of any major change in the represented person’s income or expenditure;

details of any major change in the represented person’s assets or liabilities.

Subclause (3) defines a small estate which is an estate of a represented person that consists of assets with a value of less than $10 000 or the prescribed amount (whichever is greater) and an income that is not more than $25 000 or the prescribed amount (whichever is greater).

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Division 7—Other matters pertaining to the administration of estates of represented persons

Clause 77 Subclause (1) requires VCAT, if it knows that a person has ceased to be a represented person, to without delay, give notice of this fact to the guardian with financial powers or to the administrator.

Subclause (2) provides that until the guardian with financial powers or the administrator learns that a person has ceased to be a represented person or has died, the guardian or administrator may exercise all or any of the powers given by order of VCAT in relation to the estate of the represented person.

Subclause (3) provides that on notice being given under subclause (1), the represented person or the represented person’s legal representative is bound by, and may take advantage of, any act done on behalf of the represented person by the guardian with financial powers or by the administrator within the powers conferred on the guardian or administrator by VCAT as if it had been done by the represented person and the represented person had decision making capacity to do so for the matter in relation to which the guardianship or administration order was made.

Clause 78 Subclause (1) requires a guardian with financial powers or an administrator who receives notice from any person that a represented person has died or notice from VCAT that a represented person has died or ceased to be a represented person to—

pay or cause to be paid to that person or that person's personal representative all money standing to the person's credit with the guardian or administrator; and

deliver to that person or to that person's personal representative all property forming part of the person's estate that is in the custody of the guardian or administrator and any documents relating to that property.

Subclause (2) makes clear that any payment made or property delivered under subclause (1) is subject to the payment of any amount due to the guardian with financial powers or the administrator and all costs, expenses and liabilities incurred by

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the guardian or administrator in relation to the administration of the person's estate.

Subclause (3) provides that the receipt by a person who has ceased to be a represented person or of that person's personal representative is an absolute discharge to a guardian or administrator despite any informality in the discharge or certification.

Clause 79 provides that a person who has ceased to be a represented person or the personal representative of such a person is entitled, before or after obtaining the restoration of all or any part of the estate from the guardian with financial powers or an administrator:

to examine and inspect or cause to be examined and inspected by a legal practitioner or other authorised agent all books, accounts, notices and other documents in the custody of the guardian or administrator relating to the estate and to make or cause to be made copies or extracts; and

to be provided with copies of or extracts from any book, account, notice or document in relation to the administration of the estate and information in relation to the administration of the estate that is reasonable to request and that can be given by the guardian or administrator.

Clause 80 subclause (1) makes clear that all personal effects of a person who was a represented person that are in the possession of a guardian with financial powers or an administrator and are not claimed within 2 years after the date on which the person ceased to be a represented person, may, after public notice, be sold by order of the guardian or administrator.

Subclause (2) provides that proceeds are to be paid into the Consolidated Fund.

Clause 81 makes clear that on the death of a represented person, an order appointing an administrator of that represented person's estate under this Act lapses and the law relating to the administration of deceased person's estate applies accordingly.

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Clause 82 subclause (1) provides that a represented person (to the extent that the person's estate is under the control of a guardian with financial powers or an administrator) is incapable of dealing with, transferring, alienating or charging the represented person's money or property or becoming liable under any contract without the order of VCAT or the written consent of the guardian or administrator.

Subclause (2) provides that any dealing, transfer, alienation or charge by any represented person in relation to any part of the estate under the control of the guardian with financial powers or the administrator is void and of no effect, and the money or property that is the subject of the dealing, transfer, alienation or charge is recoverable by the guardian or administrator in any court.

Subclause (3) makes clear that clause 82 does not make invalid any dealing, transfer, alienation or charge by a represented person made for adequate consideration with or to or in favour of any other person who proves that the other person acted in good faith and did not know or could not reasonably have known that the represented person was a represented person.

Subclause (4) provides that for the purpose of clause 82, the acceptance of payment of the whole or any part of a debt is taken to be a dealing with property.

Clause 83 Subclause (1) provides that a represented person and the person's heirs, executors, administrators and other listed persons have the same interest in any money or other property arising from or received in respect of any sale, mortgage or other listed disposition under the powers conferred by VCAT on a guardian with financial powers or an administrator which have not been applied under those powers as the represented person or those other persons would have had in the property the subject of the sale or other listed disposition if no sale, mortgage, exchange, partition or disposition had been made.

Subclause (2) provides that for the purposes of clause 83, money arising from the compulsory acquisition or purchase under any Act of property of a represented person is taken to be money arising from the sale of that property under the powers given to a guardian with financial powers or an administrator by an order of VCAT.

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Subclause (3) requires a guardian with financial powers or an administrator who receives money or other property under clause 83 to keep a separate account and record of the money or other property.

Subclause (4) provides that money received by guardian with financial powers or an administrator under clause 83 may be invested in any manner in which trust funds may be invested under the Trustee Act 1958.

Subclause (5) defines next of kin for the purposes of clause 83.

Clause 84 makes clear that VCAT can either before or after the death of a represented person open and read any paper or writing which is purported or alleged to be the will of the represented person.

Clause 85 Subclause (1) makes clear that the account that is known as "The Guardianship and Administration Fund" and that was established in the Public Account under section 58AA of the Guardianship and Administration Act 1986 continues in existence.

Subclause (2) provides that all annual fees prescribed under clause 210 that are paid in relation to estates that are the subject of an administration order or guardianship order (which appoints a guardian with powers in relation to a financial matter) and interest received from the investment of money in the Fund are to be paid into the Guardianship and Administration Fund.

Subclause (3) provides that 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.

Subclause (4) provides that the Guardianship and Administration Fund is to be used to meet the costs and expenses of VCAT in relation to proceedings under this Act.

Clause 86 Subclause (1) provides that a represented person or a person interested as a creditor, beneficiary, next of kin, guardian, nearest relative, primary carer or the Public Advocate or otherwise in the estate of the represented person that is administered by a guardian with financial powers or an administrator may apply to VCAT on any matter arising out of the administration of the estate by the guardian or administrator.

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Subclause (2) provides that VCAT can make any order in relation to the application as the circumstances of the case may require.

Subclause (3) defines next of kin for the purposes of clause 86.

PART 7—SUPPORTIVE GUARDIANSHIP ORDERS

Part 7 of the Bill contains provisions relating to supportive guardians and supportive guardianship orders. A supportive guardian is a person appointed under a supportive guardianship order to support a person with a disability to make decisions.

Division 1—Application for supportive guardianship orders

Clause 87 provides that a person may apply to VCAT for a supportive guardianship order in relation to another person with a disability to support that person in making and giving effect to decisions in relation to any personal, financial or other matters specified in the order. The application for a supportive guardianship order may be made if the person with a disability is of or over 18 years of age or under 18 years of age but the order takes effect on that person attaining 18 years of age.

Clause 88 requires a person applying to VCAT for a supportive guardianship order to include in their application the names and contact details (if known to the applicant) of any person who has a direct interest in the application and the matters in relation to which the order is sought.

Clause 89 provides that the parties to an application for a supportive guardianship order under clause 87 are the applicant, the proposed supported person, the person proposed as supportive guardian, and any other person whom VCAT determines to be a party to the proceeding.

Clause 90 subclause (1) provides that, for the purposes of particular sections of the VCAT Act, certain persons are entitled to notice of the making of the application for a supportive guardianship order, the hearing of the application, and the making of any order in relation to the application for the supportive guardianship order. These persons are the proposed supported person's spouse or domestic partner, their primary carer and their nearest relative available (other than their spouse or domestic partner).

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Subclause (2) requires VCAT to, as soon as practicable after making any determination under clause 89(d) or subclause (1)(d), notify the applicant as to who—

the parties are to the proceeding on the application; and

is entitled under subclause (1) to a notice of the making of the application.

The relevant sections of the VCAT Act provide that an applicant for a VCAT order must serve an application on a person entitled to notice of the application (section 72(1)(b)), that the principal registrar of VCAT must give notice of the time and place of a hearing of a proceeding to a person entitled to notice of the proceeding (section 99(1)(b)) and that VCAT must give a copy of any order it makes to a person entitled to notice of the proceeding or of the order (section 116(1)(a)).

Clause 91 subclause (1) requires a notice of the making of the application for a supportive guardianship order that is given to a party to include the following:

a copy of the application and any information filed in support of the application;

the names as stated in the notification given under clause 90(2) of the parties to the proceeding on an application under clause 87 and the other persons entitled to notice under clause 90(1);

information about the rights of the party in relation to the application.

Subclause (2) requires a notice of the making of an application that is given to a person referred to in clause 90(1) who is not a party to include the following:

a copy of the application (but not the information filed in support of the application);

the names, as stated in the notification given under clause 90(2) of the parties to the proceeding on an application under clause 87 and the other persons entitled to the notice under clause 90(1);

information about the rights of the person in relation to seeking information about the application;

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information about the procedure for applying to VCAT to be made a party to the proceeding on the application.

Clause 92 provides that VCAT must commence to hear an application made under clause 87 within 30 days after the day on which the application is received by VCAT, unless VCAT or the principal registrar under Division 5 of Part 4 of the VCAT Act requires the parties to the application to attend a compulsory conference or refers the proceeding in relation to the application or any part of it for mediation.

Clause 93 provides that VCAT may only conduct a hearing in relation to an application for a supportive guardianship order if the proposed supported person is present at the hearing, unless VCAT is satisfied that the proposed supported person does not wish to attend or the presence of the proposed supported person is impracticable or unreasonable despite any arrangement that VCAT may make.

Division 2—Conditions for making supportive guardianship orders and eligibility of person appointed

Clause 94 provides that, subject to Division 2, VCAT may make a supportive guardianship order after considering an application for a supportive guardianship order in relation to a proposed supported person, or after considering an application for an administration or guardianship order in relation to a proposed represented person if the criteria set out in clause 28(4) do not apply. Clause 28(4) contains the criteria for the making of a guardianship or administration order.

Clause 95 empowers VCAT to make an order appointing a supportive guardian for a proposed supported person or proposed represented person if VCAT is satisfied that:

the person is a person with a disability; and

the person does not oppose VCAT making the order; and

if the person is given practicable and appropriate support, the person will have the decision making capacity in relation to the personal, financial or other matter in relation to which the supportive guardianship

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order or the guardianship or administration order is sought; and

it is more appropriate that a supportive guardianship order is made than a guardianship or administration order; and

the supportive guardianship order would promote the person’s personal and social wellbeing.

Clause 96 sets out the matters that VCAT must consider for the purposes of clause 95(d) when determining whether or not a supportive guardianship order in relation to a proposed supported person or proposed represented person is appropriate. These are—

the wishes of the person, so far as they can be ascertained; and

the wishes of the nearest relative of the person or any other family members; and

the desirability of preserving existing family relationships and other relationships that are important to the person; and

whether it is more suitable that the decision in relation to the personal, financial or other matter in relation to which the order is sought is made through negotiation, mediation, or similar means, or by informal means.

Clause 97 provides that VCAT may appoint as a supportive guardian any individual of or over 18 years of age who consents to act as a supportive guardian, if VCAT is satisfied that the person will promote the personal and social wellbeing of the proposed supported person or proposed represented person and is a suitable person to act as the supportive guardian.

Clause 98 sets out the matters that VCAT must consider in determining whether a person is suitable to act as the supportive guardian for the purposes of clause 97(b). These are—

(a) the wishes of the proposed supported person or proposed represented person, so far as they can be ascertained;

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(b) the desirability of preserving existing family relationships and other relationships that are important to the proposed supported person or proposed represented person;

(c) the nature of the relationship between the proposed supportive guardian and the proposed supported person or proposed represented person, in particular whether the relationship is characterised by trust;

(d) whether the person proposed as supportive guardian will be available and able to meet and communicate with the proposed supported person or proposed represented person.

Division 3—Powers of a supportive guardian

Clause 99 Subclause (1) empowers VCAT, subject to Division 2, to appoint a supportive guardian under a supportive guardianship order to support the supported person in making and giving effect to decisions by exercising any of the powers referred to in clauses 100, 101 and 102 that VCAT specifies in the order in relation to the personal, financial or other matters in respect of which the order was made. Nothing in the Bill or a supportive guardianship order provides for the making of a supported decision that is not a decision of the supported person. The powers referred to in clauses 100, 101 and 102 relate to accessing and collecting information, communicating information and decisions, and giving effect to decisions.

Subclause (2) makes clear that nothing in the Bill or in a supportive guardianship order should be taken as providing for the making of a supported decision that is not a decision of the supported person.

Clause 100 permits a supportive guardian to access, collect or obtain from any person any personal information about the supported person that is relevant to a supported decision and may lawfully be collected or obtained by the supported person. This section also permits the supportive guardian to assist the supported person to access, collect or obtain such information.

Subclause (2) permits a holder of that information to disclose personal information about the supported person to the

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supportive guardian who is acting under the supportive guardianship order.

Subclause (3) permits the supportive guardian to disclose any information given to the supportive guardian under subclause (1) for the purpose of anything that is relevant and necessary to the supportive guardian carrying out the role of supportive guardian, or any legal proceeding under this Act or any report of a legal proceeding under this Act, or any other lawful reason.

Clause 101 permits a supportive guardian to communicate any information about the supported person that is relevant to or necessary for the making or giving effect to a supported decision, or to communicate or assist the supported person to communicate a supported decision of the supported person.

Clause 102 Subclause (1) allows a supportive guardian 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.

Subclause (2) defines significant financial transaction as including—

(a) making or continuing an investment of the supported person, including taking up rights to issues of new shares or options;

(b) undertaking any real estate transaction for the supported person, other than entering a residential tenancy for premises for the supported person to live in;

(c) dealing with land on behalf of the supported person, including taking out a loan or giving a guarantee;

(d) undertaking a transaction for the supported person involving the use of the supported person's property as security for an obligation;

(e) buying and selling substantial personal property on behalf of the supported person.

Subclause (3) provides that for the purpose of the definition of significant financial transaction in subclause (2), paragraph (a) does not include making or continuing an investment of an amount of $10 000 or less in total in one or more interest bearing accounts of an authorised deposit-taking institution.

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Clause 103 Subclause (1) sets out the duties and obligations of a supportive guardian. The supportive guardian must—

(a) act honestly, diligently, and in good faith; and

(b) exercise reasonable skill and care; and

(c) not use the position for profit; and

(d) avoid acting where there is or may be a conflict and, if acting where there is a conflict of interest, ensure that the interests of the supported person are the primary consideration; and

(e) discuss anything as 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.

Subclause (2) provides that a supportive guardian is not entitled to receive any remuneration for acting as a supportive guardian.

Subclause (3) makes clear that a supportive guardian must not assist the supported person to conduct any illegal activity or coerce, intimidate or in any way unduly influence the supported person into a particular course of action.

Division 4—General

Clause 104 Subclause (1) provides that a supportive guardianship order ceases to have effect to the extent that it is inconsistent with any subsequent guardianship or administration order.

Subclause (2) permits VCAT to modify a supportive guardianship order if an application is made for a subsequent guardianship or administration order in relation to the supported person under Part 10 of the Act, which relates to rehearings and reassessment of orders.

Clause 105 Subclause (1) permits a supportive guardian to 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 that order.

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Subclause (2) makes clear that VCAT may approve or disapprove of any act proposed to be done, give such advice as it considers appropriate, and make any order it considers necessary.

Subclause (3) provides that VCAT may, of its own initiative, direct or give an advisory opinion to a supportive guardian concerning any matter.

Subclause (4) protects a supportive guardian from legal action for an act or thing done or omitted by the supportive guardian under any order or on the advice of VCAT made or given under this clause. This protection applies unless, in representing the facts to VCAT, the supportive guardian has been guilty of fraud, wilful concealment or misrepresentation.

Clause 106 requires the supportive guardian to report the death of the supported person to VCAT in writing without delay.

PART 8—ADMINISTRATION (MISSING PERSON) ORDERS

Division 1 —Application for administration (missing person) orders

Clause 107 Subclause (1) allows any person to apply to VCAT for an order appointing an administrator in respect of the estate of a missing person. In particular, this allows a member of the missing person's family to apply for the appointment of an administrator.

Subclause (2) provides that the applicant, the person proposed as the administrator and any other person determined by VCAT to be a party is a party to a proceeding under subclause (1).

Clause 108 outlines persons who are entitled to notice of an application for administration in relation to the estate of a missing person under clause 107, as well as notice of a hearing of a proceeding in relation to the application and notice of any VCAT order in relation to the application.

Subclause (1) provides that the following persons are entitled to a notice—

the spouse or domestic partner of the missing person;

the primary carer of the missing person;

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the nearest relative available (other than the spouse or domestic partner) of the missing person;

any other person whom VCAT determines to have a special interest in the application.

Subclause (2) requires VCAT to, as soon as practicable after making any determination under clause 107(2)(c) or subclause (1)(d), notify the applicant as to who—

the parties are to the proceeding on the application; and

is entitled under subclause (1) to notice of the making of the application.

Clause 109 outlines the contents of the notice of an application for an administration (missing person) order.

Subclause (1) provides that a notice of the making of an application that is given to a party to the application must include: a copy of the application and any information filed in support of the application; the names of the parties to the proceeding on an application under clause 107 and the other persons entitled to the notice under clause 108, as notified by VCAT under clause 108(2).

Subclause (2) provides that a notice of the making of an application that is given to a person referred to in clause 108(1) who is not a party must include the following:

a copy of the application (but not the information filed in support of the application);

the names, as stated in the notification given under clause 108(2) of the parties to the proceeding and the other persons entitled to the notice under clause clause 108;

information about the rights of the person in relation to seeking information about the application;

information about the procedure for applying to VCAT to be made a party to the proceeding on the application.

Clause 110 requires VCAT to commence to hear an application under clause 107 within 30 days after the day on which the application

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is received by VCAT unless VCAT or the principal registrar of VCAT—

requires the parties to the application to attend a compulsory conference in relation to the application; or

refers the proceeding in relation to the application, or any part of it, for mediation.

Division 2—Conditions for making administration (missing person) orders and eligibility of person appointed

Clause 111 provides for the appointment of an administrator in relation to the estate of a missing person by VCAT.

Subclause (1) provides that VCAT may make an order in relation to the estate of a missing person if VCAT is satisfied that—

the person is a missing person who usually resides in Victoria; and

while the person is missing there is, or is likely to be, a need for a decision in relation to the person's financial matters; and

the order would promote the missing person's personal and social wellbeing while that person is missing.

The appointment of an administrator in these circumstances is not intended to permit distribution of an estate in the same way as in the case of probate. Instead, the intention is to permit a limited use of property where there is a demonstrated need for decisions to be made in relation to the missing person's estate and the appointment of an administrator would promote the missing person’s personal and social wellbeing while that person is missing.

Subclause (2) provides that VCAT may determine that a person is a missing person for the purposes of this Act if VCAT is satisfied of a number of listed matters including that it is not known whether the person is alive and reasonable efforts have been made to find the person.

Subclause (3) provides that an order may be made under this clause in relation to a person who becomes a missing person whether before or after the commencement of this Act.

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Subclause (4) provides that an administrator appointed under this Part may be appointed to administer all or a specified part of the estate of the missing person. This is subject to whether the estate of the missing person is subject to an order or application in relation to uncared for property as outlined in subclause (5).

Subclause (5) makes clear that VCAT cannot make an order under subclause (1) in relation to the estate of a missing person if the estate or any part of the estate is subject to an order under section 24A or an application for an order in relation to uncared for property under section 24A of the Administration and Probate Act 1958.

Section 24A of the Administration and Probate Act 1958 enables a trustee company to apply to the Supreme Court of Victoria for an order authorising the trustee company to do any act, matter or thing in relation to the property or affairs of the owner of property in Victoria in circumstances where among other things the owner cannot be found or it is not known whether the owner is alive or dead.

Clause 112 sets out who is eligible to be appointed as an administrator of a missing person's estate.

Subclause (1) provides that VCAT may appoint as an administrator in relation to the estate of a missing person a person who is of or over the age of 18 years and who consents to act as administrator or a body corporate that consents to act as administrator if VCAT is satisfied that the person appointed— is not in a position where the person's interests conflict

or may conflict with the interests of the proposed represented person; and

is a suitable person to act as the administrator of the proposed represented person's estate; and

has sufficient expertise to administer the estate or there is a special relationship between the missing person and the person appointed or other special reason why that person should be appointed as administrator.

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Clause 113 outlines factors to be considered in relation to the suitability of a person appointed as administrator of a missing person's estate.Subclause (1) provides that in determining whether a person is suitable to act as the administrator of the estate of a proposed represented person, VCAT must consider the following—

the wishes of the missing person, so far as they can be ascertained;

the desirability of preserving existing family relationships and other relationships that are important to the missing person;

the desirability of appointing a person as administrator who has an existing personal relationship with the missing person rather than a person with no such relationship;

whether the person proposed as administrator was a member of VCAT as constituted for a proceeding under this Act.

Subclause (2) provides that VCAT must not assume without any evidence that a missing person's relative who is proposed as administrator is in a position where the relative's interests conflict, or may conflict, with those of the missing person or is not suitable to be appointed as the administrator merely because that relative disagrees with another relative of the missing person in relation to a matter pertaining to the missing person.

Clause 114 provides that subject to clause 112, VCAT may appoint a person as administrator who was at any time a member of VCAT as constituted for a proceeding under this Act only if VCAT considers that in the circumstances it is appropriate for the person to act as an administrator.

Division 3—Powers of administrator (missing person)

Clause 115 outlines the powers and duties of an administrator of a missing person's estate.

Subclause (1) provides that an administrator appointed under Part 8 has—

the powers and duties set out in Division 3; and

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such of the powers and duties set out in Division 4 that VCAT may specify in the order if VCAT is satisfied that the power of duty is necessary or desirable to promote the personal and social wellbeing of the missing person while that person is missing.

Subclause (2) provides that in the order appointing the administrator under this Part, VCAT must specify the kinds of decision that the administrator may make and the parts of the estate in relation to which the power may be exercised.

Subclause (3) makes clear matters for which power cannot be given under an administration (missing person) order. These matters include: the making or revoking of a will for the missing person; voting on behalf of the missing person at a Commonwealth or State or Territory election; managing the estate of the missing person on the death of the missing person or consenting to an unlawful act.

Subclause (4) provides that a decision made, action taken, consent given or thing done by an administrator under an administration (missing person) order has effect as if it had been made, taken, given or done by the missing person and the missing person had decision making capacity to do so for the matters in relation to which the administration (missing person) order was made.

Clause 116 provides guidance on the exercise of power by an administrator of a missing person's estate. The clause provides that such an administrator must only take actions that the administrator considers are necessary or desirable for—

the payment of the debts and engagements of, and otherwise for the benefit of, the missing person; or

the maintenance and benefit of dependants of the missing person; or

the care and management of the estate of the missing person.

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Clause 117 Subclause (1) provides that an administrator of a missing person’s estate must not enter into a transaction, if there is or may be a conflict between—

a duty of the administrator in relation to the missing person; and

the interests of the administrator, or a relative, business associate or close friend of the administrator.

Subclause (2) provides for a number of exceptions to the obligation to avoid conflict transactions, including a transaction providing for the maintenance of a dependant of the missing person made in accordance with clause 127(2)(o).

Clause 118 provides for permitted conflict transactions for an administrator of a missing person's estate, despite the prohibition on conflict transactions outlined in clause 117(1).

Subclause (1) provides that an administrator may enter into a transaction prohibited by clause 117(1) if VCAT authorises the administrator at or before the time of the transaction to enter into the transaction, that kind of transaction or any transaction prohibited by clause 117 or after the transaction, to enter into the transaction.

Subclause (2) provides that if a transaction is validated by VCAT then the transaction is taken to be valid from its commencement.

Clause 119 requires an administrator of a missing person’s estate to keep accurate records and accounts of all dealings and transactions for financial matters.

Clause 120 Subclause (1) requires that an administrator of a missing person’s estate to keep the administrator’s property separate from the missing person’s property.

Subclause (2) makes clear that the requirement for the separation of property does not apply if the property is jointly owned by the missing person and the administrator.

Subclause (3) makes clear that subclause (1) does not affect any other obligation imposed by law.

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Clause 121 makes clear that an administrator of a missing person’s estate may, on behalf of a missing person, sign and do all such things as are necessary to give effect to any power or duty vested in the administrator.

Clause 122 allows an administrator of a missing person’s estate, in relation to any part of the estate to which the administrator is appointed, to invest on behalf of the missing person, except as provided in clause 129 or any order of VCAT. An administrator—

may, allow any part of the estate to remain invested in the manner in which it has been invested by the missing person; and

may, in the case of money deposited in an authorised deposit-taking institution within the meaning of the Commonwealth Banking Act 1959 may re-deposit it after it becomes payable; and

has, the same powers and may exercise those powers as the administrator would have if the administrator were a trustee of that part of the estate under the Trustee Act 1958.

Clause 123 enables an administrator of a missing person's estate to seek advice from VCAT on the exercise of power of administrator under that order.

Subclause (1) provides that an administrator may apply to VCAT for advice on any matter relating to the scope of the administration (missing person) order or the exercise of any power by the administrator under that order.

Subclause (2) provides that without limiting subclause (1), the jurisdiction of VCAT includes jurisdiction in the case of an administration by State Trustees to approve, order or advise the commencement of proceedings by State Trustees acting in one capacity or on behalf of one represented person or missing person against State Trustees acting in another capacity or on behalf of another missing person.

Subclause (3) allows VCAT to: approve or disapprove of any act proposed to be done by the administrator; and give such advice as it considers appropriate; and make any order it considers necessary.

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Subclause (4) provides that VCAT may on its own initiative direct, or give an advisory opinion to, an administrator concerning any matter.

Subclause (5) provides that an action does not lie against an administrator on account of an act or thing done or omitted by the administrator under the administration (missing person) order or on the advice of VCAT made or given under this clause unless, in representing the facts to VCAT, the administrator has been guilty of fraud, wilful concealment or misrepresentation.

Clause 124 allows an administrator of a missing person’s estate to seek advice from a professional adviser and to be reimbursed from the estate for any costs paid to obtain the advice.

In this clause professional adviser means a person who provides professional advice to administrators in relation to financial matters and includes a financial adviser, legal practitioner and accountant.

Clause 125 Subclause (1) enables VCAT, at the time it appoints an administrator for a missing person’s estate or at any later time, to appoint a person to examine or audit the accounts of the estate of a missing person for a fee approved by VCAT and paid from the estate.

Subclause (2) requires an administrator of a missing person’s estate, on or as soon as practicable after the anniversary of their appointment in each year, to lodge an account of the administration of the estate of the missing person. The accounts must be lodged with the person appointed under subclause (1) to examine or audit accounts or VCAT, if no person is appointed under subclause (1).

Subclause (3) provides that despite subclause (2), VCAT may require an administrator to lodge accounts at a time other than a time specified in subclause (2).

Subclause (4) sets out the details to be provided in an account lodged under subclauses (2) or (3) including: a full and true account of the assets and liabilities of the estate of the missing person; all receipts and disbursements in relation to that estate; details of any gifts made by the administrator with a total value of or over the prescribed amount or, if an amount is not prescribed, $100 that is made to listed people.

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This requirement is subject to the alternative accounting requirements under clause 126.

Subclause (5) requires a person appointed to examine or audit accounts to lodge with VCAT a report in relation to the accounts examined or audited and may recommend in the report the disallowance of any items in the accounts.

Subclause (6) provides that VCAT must not disallow an item referred to in subclause (5) if VCAT is satisfied that the guardian or administrator acted in good faith and with reasonable care in the exercise of powers.

Subclause (7) provides that if VCAT disallows an item referred to in subclause (5), the administrator is liable for the amount of the item disallowed.

Subclause (8) requires an administrator, in relation to each estate administered by the administrator, to pay the person appointed under subclause (1) to examine or audit accounts, an amount certified by the person as being the reasonable cost of examining or auditing the accounts.

Subclause (9) enables VCAT, on application by the administrator and with the consent of the person appointed under subclause (1) to examine or audit accounts, to waive payment of the whole or part of the amount required to be paid under subclause (8).

Clause 126 sets out alternative accounting requirements for small missing person estates. Subclause (1) provides that if VCAT determines that the estate of a missing person is a small estate and that it is appropriate that clause 125(4) not apply, then the administrator of the estate must comply with the requirements of this clause. A small estate is defined in subclause (3).

An account lodged under this clause does not require the same amount of information as under clause 125(4). Instead, the account must include—

a declaration made by the administrator that all expenditure in relation to the estate were solely for the benefit of the missing person;

details of any gift made by the administrator of the missing person's property in specified situations and to specified people;

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details of any expenditure on a single occasion that is greater than $1000 or the prescribed amount (whichever is greater);

details of any major change in the missing person's income or expenditure;

details of any major change in the missing person's assets or liabilities.

Subclause (3) defines a small estate which is an estate of a represented person that consists of assets with a value of less than $10 000 or the prescribed amount (whichever is greater) and an income that is not more than $25 000 or the prescribed amount (whichever is greater).

Clause 127 provides that an administrator of a missing person’s estate may open and read without order any paper or writing deposited with the administrator that is purported or alleged to be the will of the missing person.

Division 4—Powers and duties that may be conferred on administrators in relation to missing persons

Clause 128 outlines powers and duties of an administrator in relation to missing person's estate.

Subclause (1) provides that the administrator in relation to a missing person's estate—

has the general care and management of the estate of the missing person; and

the administrator, in the name and on behalf of the missing person, may generally do all acts and exercise all powers with respect to the estate as effectually and in the same manner as the missing person could have done if the missing person were not a missing person.

Subclause (2) outlines the powers that may be conferred on an administrator of a missing person’s estate. The powers include: dealing with property including both money and land, carrying on a business for the missing person, bringing or defending legal proceedings for the missing person; executing deeds or instruments; completing contracts; paying maintenance and any necessary or incidental matters.

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Division 5—General

Clause 129 Subclause (1) provides that a missing person and the person's heirs, executors, administrators and other listed persons have the same interest in any money or other property arising from or received in respect of any sale, mortgage or other listed disposition under the powers conferred by VCAT on an administrator which have not been applied under those powers as the missing person or those other persons would have had in the property the subject of the sale or other listed disposition if no sale, mortgage, exchange, partition or disposition had been made.

Subclause (2) provides that for the purposes of this clause, money arising from the compulsory acquisition or purchase under any Act of property of a represented person is taken to be money arising from the sale of that property under the powers given to a guardian with financial powers or an administrator by an order of VCAT.

Subclause (3) requires an administrator who receives money or other property under this section to keep a separate account and record of the money or other property.

Subclause (4) provides that money received by an administrator under this section may be invested under the Trustee Act 1958.

Subclause (5) defines next of kin for the purposes of clause 129.

Clause 130 provides that VCAT may open and read any paper or writing which is purported or alleged to be the will of the missing person.

Clause 131 allows a creditor or other interested person listed in subclause (1) to apply to VCAT on any matter arising out of the administration of a missing person's estate.Subclause (2) provides that VCAT may make such order in relation to the application as the circumstances of the case may require.

Subclause (3) defines “next of kin” for the purposes of clause 131.

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Clause 132 Subclause (1) provides that if VCAT knows that a person has ceased to be a missing person, VCAT must without delay give notice of that fact to the administrator of the missing person’s estate.

Subclause (2) provides that until the administrator learns that a person has ceased to be a missing person, an administrator may exercise all or any of the powers given to the administrator by order of VCAT with respect to the estate of the missing person.

Subclause (3) provides that on notice being given under subclause (1), the person who was a missing person or that person's legal personal representative (as the case may be) is bound by, and may take advantage of, any act done on behalf of the missing person by the administrator within the powers conferred on the administrator by VCAT as if it had been done by the missing person and that person had decision making capacity.

Clause 133 outlines what action should be taken where an administrator of a missing person’s estate receives notice from any person of from VCAT that the missing person has ceased to be a missing person.

Subclause (1) provides that if an administrator receives notice from any person or from VCAT that a missing person has ceased to be a missing person, the administrator must pay or cause to be paid to that person (or their personal representative) all money standing to the person's credit with the administrator and all property forming part of the person's estate that is in the custody of the administrator and any documents relating to that property.

Subclause (2) provides that any payment made under subclause (1) is subject to the satisfaction of any amount due to the administrator and all costs, expenses and liabilities incurred by the administrator in relation to the administration of that person's estate.

Subclause (3) provides that the receipt by a person who has ceased to be a missing person or of that person's personal representative is an absolute discharge to an administrator despite any informality in the discharge or certification.

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Clause 134 provides that a person who has ceased to be a missing person (or their personal representative) is entitled, before or after obtaining the restoration of all or any part of the estate from an administrator, to inspect accounts and related documents in the custody of the administrator, be provided with copies of document in relation to the administration of the estate and relevant information that is reasonable to request and can be given by the administrator.

Clause 135 Subclause (1) provides that all personal effects of a person who was a missing person that are in the possession of the administrator of the missing person’s estate and are not claimed within 2 years after the date on which the person ceased to be a missing person, may, after public notice, be sold by order of the administrator.

Subclause (2) provides that the proceeds from the sale are to be paid into the Consolidated Fund.

Clause 136 requires an administrator for a missing person's estate to notify VCAT in writing without delay when the administrator becomes aware that the missing person is alive (either in Victoria or elsewhere) or has died. This is because the administration order is made on the basis that it is not known whether the missing person was alive, which also involves proof that it is not known that the represented person is dead.

Clause 137 allows VCAT to order the removal of an administrator of a missing person's estate on application by the person who was the missing person. VCAT may also order the removal of an administrator on application by the administrator or another person if satisfied that the missing person is alive, or dead or may be presumed to be dead.Subclause (2) requires VCAT to order the removal of an administrator of a missing person's estate if— the Supreme Court, on being satisfied of the death of the

missing person, whether by direct evidence or on presumption of death, makes a grant of probate of the missing person's will or administration of the missing

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person's estate under section 7 of the Administration and Probate Act 1958; or

the registrar of probates, on being satisfied of the death of the missing person, whether by direct evidence or on presumption of death, makes a grant of probate of the missing person's will or administration of the missing person's estate under section 12 of the Administration and Probate Act 1958; or

if the presumption of death has been successfully invoked in relation to the missing person for the purpose of any other proceeding before a court in Victoria or elsewhere in Australia; or

if any part of the estate of the missing person becomes subject to an order under section 24A of the Administration and Probate Act 1958.

Clause 138 Subclause (1) provides that the appointment of an administrator for a missing person's estate must not last longer than two years as specified in the VCAT order. This ensures that decision making by an administrator is kept under close supervision by VCAT. Subclause (2) provides that an administration (missing person) order can be renewed once for a further period not exceeding 2 years.Subclause (3) provides that nothing in clause 138 prevents a person applying for a new administration (missing person) order in accordance with clause 107 if the previous order has expired.

Clause 139 Subclause (1) provides that any person may apply to VCAT for a temporary order appointing an administrator in relation to the estate of a missing person.Subclause (2) makes clear that an application may be made under subclause (1) whether or not an

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application has been made to VCAT under clause 107.Subclause (3) sets out notice provisions in relation to an application for a temporary order.

Clause 140 Subclause (1) provides that VCAT can make a temporary administration (missing person) order in relation to the estate of a missing person if VCAT is satisfied that— the person is a missing person who usually resides in

Victoria; and

while the person is missing there is, or is likely to be, a need for a decision in relation to the person's financial matters; and

the order would promote the missing person's personal and social wellbeing while that person is missing.

Subclause (2) makes clear that an administrator may be appointed under subclause (1) to administer all or a specified part of the estate of the missing person. Subclause (3) provides that VCAT cannot make a temporary order under subclause (1) if the estate or any part of the estate of the missing person is subject to— an order under section 24A of the Administration and

Probate Act 1958; or

an application for an order under section 24A of the Administration and Probate Act 1958.

Subclause (4) provides that a temporary order remains in effect for such period not exceeding 21 days as is specified in the order and may be renewed once for a further period not exceeding 21 days.Subclause (5) requires VCAT to hold a hearing to determine whether an administrator should be appointed under clause 111 as soon as practicable after the making of a temporary order but within 42 days of making that order.

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Clause 141 makes clear that Part 8 is not intended to exclude or limit the operation of the Administration and Probate Act 1958.

PART 9—MEDICAL AND OTHER TREATMENT

Division 1—Preliminary

Clause 142 defines patient for the purposes of Part 9 as a person with a disability who is of or over the age of 18 years and is incapable of giving consent, within the meaning of subclause (2), to the carrying out of a special procedure, a medical research procedure or medical or dental treatment. The person is included within the definition of patient whether or not the person is a subject to a guardianship or administration order. This definition does not include a person who is a patient within the meaning of the Mental Health Act 2014.

Subclause (2) provides that a person is incapable of giving consent to the relevant procedures or treatments if they are incapable of understanding the general nature and effect of the proposed procedure or treatment or are incapable of indicating whether or not they consent or do not consent to the proposed procedure or treatment.

This clause replaces section 36 of the Guardianship and Administration Act 1986, but differs from section 36 in that it clarifies that Part 9 does not apply to patients within the meaning of the Mental Health Act 2014.

Clause 143 defines a health decision maker as the first person in the list of persons set out in the clause who is responsible for the patient, in the circumstances is reasonably available and is willing and able to make a decision in relation to the carrying out of medical or dental treatment or special procedure. The list of persons includes— a person appointed under section 5A of the Medical Treatment Act 1988; a person appointed by VCAT to make decisions in relation to the proposed procedure or treatment; a person appointed under an enduring power of attorney under the Powers of Attorney Act 2014 and others.

This clause replaces section 36 of the Guardianship and Administration Act 1986, but differs from section 36 in that it

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uses the term health decision maker instead of "person responsible".

Clause 144 sets out matters which must be taken into account for the purpose of determining whether a special procedure or medical or dental treatment would be in the best interests of a patient.

This clause replaces section 36 of the Guardianship and Administration Act 1986.

Division 2—Consent

Clause 145 provides that VCAT may consent to the carrying out of a special procedure and any medical or dental treatment on a patient and the health decision maker may consent to the carrying out of any medical or dental treatment, subject to Divisions 4 and 5.

This clause replaces section 39 of the Guardianship and Administration Act 1986.

Clause 146 provides that consent to medical or dental treatment has effect as if the patient were capable of giving consent and the treatment had been carried out with that consent.

This clause replaces section 40 of the Guardianship and Administration Act 1986.

Clause 147 provides that a registered practitioner must not carry out any treatment under Part 9 if there is in force a valid refusal of treatment certificate under the Medical Treatment Act 1988.

This clause replaces section 41 of the Guardianship and Administration Act 1986.

Clause 148 makes it an offence for a person who is not authorised to give consent to medical or dental treatment to purport to give such consent or to represent to a medical or dental practitioner that they have the authority to so consent if the person knows that they are not authorised to give consent. This offence attracts 20 penalty units.

Clause 148 replaces section 42 of the Guardianship and Administration Act 1986.

Division 3—Emergency medical or dental treatment

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Clause 149 provides that a registered practitioner may carry out a special procedure, medical research procedure or medical or dental treatment on a patient without consent under Part 9, and without an authorisation under clause 169, if the practitioner believes on reasonable grounds that the treatment is necessary, as a matter of urgency, to save the patient's life, to prevent serious damage to the patient's health or, in the case of a medical research procedure or medical or dental treatment, to prevent the patient from suffering, or continuing to suffer, significant pain and distress.

A registered practitioner who carries out a special procedure, medical research procedure or medical or dental treatment in the belief on reasonable grounds that the requirements of clause 149 and, in the case of a medical research procedure, clause 166, have been complied with is not guilty of assault or battery or professional misconduct, and is not guilty of an offence against clause 155(1) or 174(1), and is not liable in any civil proceedings for assault or battery.

This clause replaces section 42A of the Guardianship and Administration Act 1986.

Division 4—Special procedures

Clause 150 provides that a health decision maker for the patient, or any person whom VCAT determines to have a special interest in the affairs of the patient, may make an application for the consent of VCAT to the carrying out of any special procedure on a patient. The patient in relation to such an application is a party and VCAT must give notice of the application, hearing, any order and directions or advisory opinions in relation to the application to the Public Advocate and others whom it considers to have a special interest in the affairs of the patient.

Clause 151 provides that VCAT may issue guidelines specifying situations in which applications for consent to special procedures may be made to VCAT.

This clause replaces section 42C of the Guardianship and Administration Act 1986.

Clause 152 requires VCAT to begin to hear an application for consent to a special procedure within 30 days after receiving the application.

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This clause replaces section 42D of the Guardianship and Administration Act 1986.

Clause 153 provides that VCAT may consent to a special procedure if it is satisfied that the patient is incapable of giving consent, is not likely to be capable of giving consent within a reasonable time, and the procedure would be in the patient's best interests.

This clause replaces section 42E of the Guardianship and Administration Act 1986.

Clause 154 enables VCAT to authorise the health decision maker to consent to the continuation of a special procedure or to the carrying out of any further special procedure of a similar nature. This authority may only be conferred on the health decision maker if that person so requests or consents. VCAT may impose conditions on this authority, give directions as to its use or revoke the authority at any time.

This clause replaces section 42F of the Guardianship and Administration Act 1986, but differs from section 42F in that it uses the term health decision-maker instead of "person responsible".

Clause 155 provides that a registered practitioner must not carry out any special procedure on a patient unless VCAT or the health decision maker with authority to consent under clause 154 has consented to that procedure. It is an offence to contravene this clause and attracts a penalty of imprisonment for 2 years or 240 penalty units or both.

This clause replaces section 42G of the Guardianship and Administration Act 1986, but differs from section 42G in that it uses the term health decision-maker instead of "person responsible".

Division 5—Other medical or dental treatment

Clause 156 permits a health decision maker to consent to the carrying out of any medical or dental treatment in respect of a patient if the health decision maker is satisfied that the treatment is in the best interests of the patient.

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This clause replaces section 42H of the Guardianship and Administration Act 1986, but differs from section 42H in that it uses the term health decision maker instead of "person responsible".

Clause 157 allows the health decision maker to consent to the carrying out of any medical or dental treatment where a patient is likely to recover capacity to consent within a reasonable time.

Subclause (1) clarifies that this clause applies despite anything else in Part 9 but does not apply to emergency treatment under clause 149.

Subclause (2) provides that if a patient is likely to be capable, within a reasonable time, of giving consent to the carrying out of medical or dental treatment, the health decision maker for the patient can only consent to the carrying out of the treatment, and a registered practitioner can only carry out that treatment, if—

the registered practitioner reasonably believes, and states in writing in the patient's clinical records, that a further delay in carrying out the treatment would result in a significant deterioration of the patient's condition; and

neither the registered practitioner nor the health decision maker has any reason to believe that the carrying out of the treatment would be against the patient's wishes.

Subclause (3) outlines that if the registered practitioner or health decision maker has reason to believe that the carrying out of the treatment would be against the patient's wishes, the practitioner or health decision maker may apply to VCAT for its consent to the carrying out of the treatment.

Subclause (4)(a) outlines to whom VCAT must give notice of any application, order, directions or advisory opinion made or given concerning the application under this clause. VCAT must give notice to—

the Public Advocate; and

any other person whom VCAT considers to have a special interest in the patient's affairs, including the

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registered practitioner and health decision maker for the patient.

Subclause (4)(b) specifies that VCAT must start hearing the application within 14 days after the day on which VCAT received it.

Subclause (5) clarifies that the patient is a party to the proceeding on the application.

Subclause (6) provides that on hearing the application, VCAT may consent to the carrying out of the medical or dental treatment, and a registered practitioner may carry out that treatment, if VCAT is satisfied that—

the patient is incapable of giving consent; and

a further delay in carrying out the treatment would result in a significant deterioration of the patient's condition; and

the treatment would be in the patient's best interests, having regard to the evidence (if any) of the patient's views about such treatment.

This clause replaces section 42HA of the Guardianship and Administration Act 1986, but differs from section 42HA in that it uses the term health decision-maker instead of "person responsible".

Clause 158 allows the health decision maker to apply to VCAT for an advisory opinion or directions in relation to any matter concerning his or her authority to consent to medical or dental treatment on behalf of a patient.

This clause replaces section 42I of the Guardianship and Administration Act 1986, but differs from section 42I in that it uses the term health decision-maker instead of "person responsible".

Clause 159 provides that VCAT may issue guidelines, specifying situations in which a health decision maker may consent to medical or dental treatment in respect of a patient.

This clause replaces section 42I of the Guardianship and Administration Act 1986, but differs from section 42I in that it uses the term health decision-maker instead of "person responsible".

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Clause 160 allows a registered practitioner to carry out medical or dental treatment on a patient without the consent of the health decision maker if, having made reasonable efforts, the registered practitioner has been unable to ascertain whether there is a health decision maker for the patient or who that person is and considers that the treatment is in the best interests of the patient. The practitioner must notify the Public Advocate that he or she proposes carrying out treatment on the patient. This is subject to clause 147, which relates to a refusal of treatment certificate under the Medical Treatment Act 1988.

This clause replaces section 42K of the Guardianship and Administration Act 1986, but differs from section 42K in that it uses the term health decision-maker instead of "person responsible".

Clause 161 sets out the circumstances in which a registered practitioner may carry out medical or dental treatment on a patient if the practitioner has consulted with the health decision maker and that person does not consent to that treatment. The practitioner may carry out the treatment in the time specified only if the practitioner considers that the treatment is in the best interests of the patient and the practitioner gives to the health decision maker and the Public Advocate a statement under clause 162. This is subject to clause 147, which relates to a refusal of treatment certificate under the Medical Treatment Act 1988.

A practitioner must not carry out the treatment before the time specified or if VCAT orders that the treatment is not in the patient's best interests.

This clause replaces section 42L of the Guardianship and Administration Act 1986, but differs from section 42L in that it uses the term health decision-maker instead of "person responsible".

Clause 162 sets out the matters to be included in a statement given by a registered practitioner to a person responsible under clause 161.

This clause replaces section 42M of the Guardianship and Administration Act 1986, but differs from section 42M in that it uses the term health decision-maker instead of "person responsible".

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Clause 163 permits an application to be made to VCAT in relation to any question or dispute relating to medical or dental treatment for a patient or relating to what is in the best interests of a patient. The application may be made by a health decision maker or any person VCAT considers to have a special interest in the affairs of the patient. The clause sets out the parties, notice provisions and orders that VCAT may make in respect of an application under the clause.

This clause replaces section 42N of the Guardianship and Administration Act 1986, but differs from section 42N in that it uses the term health decision-maker instead of "person responsible".

Clause 164 sets out the circumstances in which a registered practitioner who carries out medical or dental treatment under Division 5 of Part 9 of the Bill is not guilty of assault or battery or professional misconduct or is not liable in civil proceedings for assault or battery.

This clause replaces section 42O of the Guardianship and Administration Act 1986, but differs from section 42O in that it uses the term health decision-maker instead of "person responsible".

Division 6—Medical research procedures

Clause 165 introduces and outlines the purpose of Division 6.

Subclause (1) explains that Division 6 contains provisions for the carrying out of a medical research procedure on a patient, and notes that patient is defined in clause 142.

Subclause (2) explains that Division 6 of Part 9 of the Bill provides a 4-step process for authorising the carrying out of a medical research procedure on a patient and sets out the ways in which consent may be sought or the procedure authorised.

Subclause (3) provides that the requirements to seek consent or authorisation (as set out in clauses 167, 168 and 169) do not apply to the carrying out of a medical research procedure under clause 149.

Subclause (4) lists other features of Division 6 of Part 9 of the Bill including the jurisdiction of the VCAT, offences for failure

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to comply with Division 6 and protections for registered practitioners who comply with the Division.

Subclause (5) provides that Division 6 is subject to clause 147, which prohibits the carrying out of medical treatment if a refusal of that treatment is in force under the Medical Treatment Act 1988.

This clause replaces section 42P of the Guardianship and Administration Act 1986, but has similar effect.

Clause 166 sets out the requirement to obtain ethics committee approval for a relevant research project.

Subclause (1) clarifies that the first step is to determine whether the project has been approved by the relevant human research ethics committee.

Subclause (2) prohibits the carrying out of a medical research procedure on a patient if the project has not been approved by the relevant human research ethics committee. Contravention is an offence under clause 174(3).

Subclause (3) provides that a medical research procedure must be carried out in accordance with the relevant human research ethics committee approval including any conditions of approval that relate to the medical research procedure.

This clause replaces section 42Q of the Guardianship and Administration Act 1986, but has similar effect.

Clause 167 ensures that the patient's autonomy is protected wherever possible in the context of medical research procedures.

Subclause (1) explains that after determining whether the research project has approval from the relevant ethics committee, the practitioner must determine whether the patient is likely to be capable within a reasonable time, of giving consent to the carrying out of a medical research procedure.

Subclause (2) explains what a reasonable time is, by reference to circumstances specific to the patient.

Subclause (3) prohibits a registered practitioner from carrying out or supervising the carrying out of a medical research procedure relying upon consent provided by a person

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responsible or procedural authorisation, if the patient is likely to be capable, within a reasonable time, of giving consent to the carrying out of a medical research procedure. Contravention of this section is an offence under clause 174(1). If the patient is likely to be capable, within a reasonable time, of consenting to a medical research procedure, the patient's own consent must be sought unless it is a medical emergency and clause 149 applies.

Subclause (4) provides authority to a registered practitioner to carry out, or supervise the carrying out of, a medical research procedure on a patient relying upon consent provided by a person responsible or procedural authorisation, if the patient is not likely to be capable, within a reasonable time, of giving consent to the carrying out of a medical research procedure.

Subclause (5) requires the registered practitioner to state in the patient's clinical records his or her belief that at the time of the procedure, the patient is or was not likely to be capable of giving consent within a reasonable time and the reason for that belief before (or as soon as practicable after) carrying out or supervising a medical research procedure on the patient.

This clause replaces section 42Q of the Guardianship and Administration Act 1986, but has similar effect.

Clause 168 relates to seeking consent from the health decision maker for the patient to the carrying out of a medical research procedure, in cases where the patient is unlikely to be capable of consenting within a reasonable time.

Subclause (1) provides that, after ensuring the research project has the approval of the relevant ethics committee and ensuring compliance with clause 167, the next step is to seek the consent of the health decision maker for the patient to the carrying out of the medical research procedure on the patient.

Clause 167(3) provides that, if a patient is likely to be capable, within a reasonable time, of giving consent to the carrying out of a medical research procedure, the procedure cannot be performed under the authority of clause 168.

The procedure must wait until the patient's own consent can be sought (unless it is a medical emergency and clause 149 applies).

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Subclause (2) authorises a health decision maker to consent to the carrying out of a medical research procedure on the patient.

Subclause (3) provides that a health decision maker may only consent to the carrying out of the medical research procedure if he or she believes that the carrying out of the procedure would not be contrary to the best interests of the patient.

Subclause (4) provides that any consent by a health decision maker must be in accordance with the consent requirements, if any, specified in the ethics committee approval for the project or conditions of that approval. This is to ensure that all the information that the ethics committee considers necessary to ensure voluntary and informed consent is provided to the health decision maker.

This clause replaces section 42S of the Guardianship and Administration Act 1986, but differs from section 42S in that it uses the term health decision-maker instead of "person responsible".

Clause 169 provides a scheme under which procedural authorisation to perform a medical research procedure on a patient may be provided in certain circumstances.

Subclause (1) provides that procedural authorisation only applies if the health decision maker for the patient cannot be ascertained or contacted. In addition, clause 167(3) provides that, if a patient is likely to be capable, within a reasonable time, of giving consent to the carrying out of a medical research procedure, the procedure cannot be performed under the authority of this section.

Subclause (2) sets out the circumstances in which a medical research procedure may be performed on a patient without the consent of the health decision maker (and if permitted under clause 167(3)). Procedural authorisation may only occur if all the criteria set out in paragraphs (a) to (g) are satisfied.

In addition to the two criteria referred to in subclause (1), other criteria include requiring the practitioner concerned to certify his or her belief that carrying out the procedure would not be contrary to the best interests of the patient, and that there is no reason to believe the procedure would be against the patient's wishes. The other criteria relate to the nature of the research and ethical research.

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Subclause (3) requires the supervising practitioner or the practitioner carrying out the medical research procedure to sign a certificate as to each of the matters in subclause (2) and that the health decision maker or patient will be informed as required in subclause (4), before, or as soon as practicable after, the medical research procedure is carried out.

Subclause (4) requires a registered practitioner involved in the research project to inform the health decision maker or patient (as soon as reasonably practicable) of the patient's inclusion in the research project and the option to refuse consent for the continuation of the medical research procedure and withdraw the patient from future participation in the project without compromising the patient's ability to receive available alternative treatment or care.

Subclause (5) requires the supervising registered practitioner or the registered practitioner to forward a copy of the certificate referred to in subclause (3) to the Public Advocate and the relevant human research ethics committee as soon as practicable and no later than 2 working days after supervising or carrying out the procedure. This certificate must be kept in the patient's clinical records.

Subclause (6) requires the same certification process to be followed as in subclauses (3) and (5) at intervals of not more than 1 month for as long as the medical research procedure continues if the procedure extends over a month and consent is not able to be obtained from the health decision maker, or from the patient if he or she regains capacity.

Subclause (7) requires the supervising registered practitioner or practitioner to ensure the certificate under subclause (6) is kept in the patient's clinical records.

Subclause (8) provides that, if procedural authorisation is relied upon as authority to perform a medical research procedure on a patient, steps that are reasonable in the circumstances must continue to be taken to locate and contact a health decision maker to seek consent to the procedure.

This clause replaces section 42T of the Guardianship and Administration Act 1986, but differs from section 42T in that it uses the term health decision-maker instead of "person responsible".

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Clause 170 establishes the test that is applied to determine whether a medical research procedure would be contrary to the best interests of a patient.

Subclause (1) lists the matters that must be taken into account for the purposes of Division 6 to determine whether a medical research procedure would or would not be contrary to the best interests of the patient. It is relevant to whether a health decision maker may give consent under clause 168 and to procedural authorisation under clause 169. Note that clause 144 continues to apply to decisions about special procedures and any medical or dental treatment.

Subclause (2) provides that, if a patient is likely to be capable of giving consent to the carrying out of a medical research procedure, but not within a reasonable time, and objects to a relative or a family member (other than a spouse or domestic partner) being involved in that decision making, then the wishes of that relative or family member are not to be taken into account when deciding whether the medical research procedure would or would not be contrary to the best interests of the patient. Note that if a patient is likely to be capable of giving consent within a reasonable time then the procedure cannot be authorised under Division 6, so the question of whether to take into account the wishes of relatives or family members does not arise. The patient's objection under this subclause only bears upon application of the best interests test for the purpose of Division 6.

This clause replaces section 42U of the Guardianship and Administration Act 1986, but differs from section 42U in that it uses the term health decision-maker instead of "person responsible".

Clause 171 sets out the circumstances in which an application may be made to VCT in relation to Division 6.

Subclause (1) provides that an application may be made to VCAT in relation to any matter, question or dispute under Division 6 relating to the best interests of a patient.

Subclause (2) sets out who may make an application.

Subclause (3) prohibits a registered practitioner who is involved in the relevant research project from applying to VCAT in relation to a refusal of the health decision maker to consent

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under clause 169 to the carrying out of a medical research procedure on a patient.

Subclause (4) provides that a patient is a party to the proceeding on an application.

Subclause (5) requires VCAT to give notice of an application, hearing and order made in respect of the application, to the Public Advocate and any other person VCAT considers has a special interest.

Subclause (6) sets out the powers of VCAT on an application. These powers are consistent with VCAT's powers in clause 163 in relation to medical and dental treatment and reflect the best interests test that applies to medical research procedures as set out in clause 170.

This clause replaces section 42V of the Guardianship and Administration Act 1986, but differs from section 42V in that it uses the term health decision-maker instead of "person responsible".

Clause 172 provides that a health decision maker may seek advice from VCAT in relation to medical research procedures, consistent with clause 158 in relation to medical and dental treatment.

Subclause (1) provides that a health decision maker for a patient may apply for directions or an advisory opinion relating to the scope or exercise of his or her authority to consent to a medical research procedure on behalf of a patient.

Subclause (2) sets out the parties to whom VCAT must give notice of an application, its hearing and orders, directions or opinions by VCAT.

Subclause (3) sets out VCAT's powers in relation to an application.

Subclause (4) provides that VCAT may, of its own motion, direct or give an advisory opinion to the health decision maker for a patient in respect of any matter.

Subclause (5) provides protection for the health decision maker acting in accordance with any order, directions or advisory opinion of VCAT (in the absence of fraud, wilful concealment or misrepresentation).

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This clause replaces section 42W of the Guardianship and Administration Act 1986, but differs from section 42W in that it uses the term health decision-maker instead of "person responsible".

Clause 173 provides that VCAT may issue guidelines to assist the person responsible for a patient to determine whether or not to consent to medical research procedures in respect of a patient. These guidelines are to be made in consultation with the Public Advocate and the Secretary to the Department of Justice and require the approval of the Governor in Council, consistent with the requirements under clause 159 in relation to medical and dental treatment.

This clause replaces section 42X of the Guardianship and Administration Act 1986, but has similar effect.

Clause 174 contains offences and penalties.

Subclause (1) creates an offence for carrying out a medical research procedure on a patient (other than in a clause 149 emergency situation) unless the procedure is authorised by law or is allowed by clause 167 and the required consent has been obtained under clause 168 or the procedure is authorised under clause 169. The maximum penalty for this offence is imprisonment for 2 years or 240 penalty units or both.

Subclause (2) creates an offence of signing a certificate under clause 169(3) or (6) that the practitioner knows to be false. The maximum penalty for this offence is 120 penalty units.

Subclause (3) creates an offence of carrying out or supervising the carrying out of a medical research procedure on a patient without the project having received prior approval from the relevant human research ethics committee. The maximum penalty for this offence is 240 penalty units.

This clause replaces section 42Y of the Guardianship and Administration Act 1986, but has similar effect.

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Clause 175 sets out the defences for a registered practitioner who supervises or performs a medical research procedure on a patient. The defences apply to assault, battery, professional misconduct, liability in any civil proceedings for assault or battery or an offence under clause 174(1) (performing a medical research procedure without the required consent or authorisation).

Subclause (1) provides a defence if the registered practitioner has acted in good faith and in the belief on reasonable grounds in reliance upon consent or purported consent.

Subclause (2) provides a defence if the registered practitioner has acted in good faith and in the belief upon reasonable grounds that the requirements of Division 6 were complied with.

Subclause (3) provides that nothing in clause 175 affects any duty of care owed by a registered practitioner to a patient.

This clause replaces section 42Z of the Guardianship and Administration Act 1986, but has similar effect.

PART 10—REHEARINGS AND REASSESSMENT OF ORDERS

Division 1—Rehearings

Clause 176 provides for rehearings in the guardianship and administration jurisdiction of VCAT.

Subclause (1) deals with an application for rehearing. It provides that, where the VCAT has made an order under the Act (other than an interim order or a temporary order), an application may be brought for a rehearing of the application to which the order relates. This is subject to restrictions set out in clause 176(2) and (6). Generally, a party or person entitled to notice of the original application may apply for a rehearing.

Subclause (2) provides that a person entitled to notice (other than an interim order or a temporary order) but who was not a

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party to the original application may bring an application for a rehearing only with leave of the VCAT.

Subclause (3) provides that the Public Advocate may always bring an application for a rehearing whether or not the Public Advocate was a party to the original application.

Subclause (4) provides that if VCAT makes an order on a reassessment of a guardianship order or an administration order under clause 180, where the reassessment was initiated by VCAT, a party or person entitled to notice of the reassessment may apply for a rehearing of the reassessment, if VCAT gives leave for that rehearing.

Subclause (5) provides that an application for rehearing or for leave must be brought within 28 days after the day of the order.

Subclause (6) provides that, if written reasons are requested following the making of an order, the day on which the written reasons are given to the party is taken to be the day that the order is made and the 28 day time limit in subclause (5) begins to run from the date the written reasons are provided.

Subclause (7) provides that there is no right of rehearing available under the Act—

if the President of VCAT has made the order. This restriction has been made because there is no member of VCAT more senior than the President to conduct the rehearing. However, if the President makes an order, a party may still appeal to the Court of Appeal on a question of law under section 148 of the VCAT ACT; or

in relation to an application under clause 171 in relation to any matter, question or dispute under this Division relating to the best interests of a patient. However, the restriction does not apply to an application in relation to which an order is made under section 171(6)(b) appointing a guardian generally; or

in relation to an application under clause 158 or 163 for medical or dental treatment. However, the restriction does not apply where a general guardian is appointed under clause 163(7)(b); or

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if a rehearing of the original application has already been conducted (or leave has been refused).

This clause replaces section 60A of the Guardianship and Administration Act 1986, but has similar effect.

Clause 177 deals with the parties to the rehearing and notice.

Subclause (1) provides that the following persons are parties to a rehearing—

in the case of rehearing referred to in clause 176(1), a party to the original application;

in the case of the rehearing of a reassessment referred to clause 176(4), a party to the reassessment;

any other person whom VCAT determines to be a party.

Subclause (2) provides that the following persons are entitled to notice of a rehearing—

in the case of rehearing referred to in clause 176(1), a person who was entitled to notice of the original application;

in the case of the rehearing of a reassessment referred to in clause 176(4), a person who was entitled to notice of the reassessment;

any person whom VCAT determines to have an interest in, or personal involvement with the affairs of, the represented person, supported person or missing person, as the case may be.

This clause replaces section 60B of the Guardianship and Administration Act 1986, but differs from section 60B in that it provides that—

any other person whom VCAT determines to be a party, can be a party to a rehearing;

any person whom VCAT determines to have an interest in, or personal involvement with the affairs of, the represented person, supported person or missing person is also entitled to notice of a rehearing.

Clause 178 sets out the functions and powers of VCAT in determining an application for rehearing.

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Subclause (1) provides that on application under clause 176, VCAT must rehear the matter and has all the functions and powers that VCAT had with respect to the matter at first instance.

Subclause (2) provides that in determining a rehearing VCAT may affirm or vary the order at first instance, or set aside the order at first instance and make another order in substitution.

This clause replaces section 60C of the Guardianship and Administration Act 1986, but has similar effect.

Clause 179 provides that the making of an application for a rehearing does not affect the operation of the original order or prevent the taking of action to implement the order. However, VCAT may stay the operation of the order or part of the order pending the determination of the application for rehearing.

This clause replaces section 60D of the Guardianship and Administration Act 1986, but has similar effect.

Division 2—Reassessment of orders

Clause 180 outlines when VCAT is required to conduct a reassessment.

Subclause (1) states that VCAT must conduct a reassessment of a guardianship order, an administration order, a supportive guardianship order or an administration (missing person) order, within 12 months after making the order or in any case, at least once within each 3 year period after making the order. This does not apply if unless VCAT orders otherwise.

Subclause (2) VCAT may at any time conduct a reassessment of any order made by it under this Act.

Subclause (3) provides that a reassessment under this clause may be conducted on VCAT's own initiative or on the application of any person.

This clause replaces section 61(1) to (3) of the Guardianship and Administration Act 1986, but differs from those provisions in that the parties to a reassessment are now contained in clause 181.

Clause 181 creates a new clause outlining the parties to a reassessment.

The following persons are parties to a reassessment—

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the applicant (if any);

the represented person (including missing person whose estate is subject to an administration (missing person) order) or supported person (as the case may be);

the guardian, administrator or supportive guardian (as the case may be);

any other person whom VCAT determines to be a party to the reassessment.

This clause replaces section 61(4) of the Guardianship and Administration Act 1986, but differs in that under section 61(4) the parties to a reassessment were limited to the represented person (including missing person whose estate is subject to an administration (missing person) order) and the guardian or administrator.

Clause 182 creates a new clause outlining persons who, in addition to parties under clause 181, for the purposes of sections 72(1), 99(1) and 116(2) of the VCAT Act, are entitled to a notice referred to in each of those provision of the VCAT Act. These persons are—

the spouse or domestic partner of the represented person (including missing person whose estate is subject to an administration (missing person) order) or supported person;

the primary carer of the represented person (including missing person whose estate is subject to an administration (missing person) order) or supported person;

the nearest relative available (other than the spouse or domestic partner) of the represented person (including missing person whose estate is subject to an administration (missing person) order) or supported person;

the Public Advocate;

any current administrator of the estate of the represented person (including missing person whose estate is subject

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to an administration (missing person) order), in the case of a reassessment of a guardianship order;

any current guardian of the represented person, in the case of a reassessment of an administration order;

any person whom VCAT determines to have an interest in or personal involvement with the affairs of the represented person (including missing person whose estate is subject to an administration (missing person) order) or supported person.

Subclause (2) provides that as soon as practicable after making any determination under clause 181(d) or subclause (1)(g), VCAT must notify the applicant as to—

the parties to the proceedings on the application; and

who is entitled under subclause (1) to a notice of the making of the application.

The note at the foot of clause 182(2), provides a summary of sections 72(1)(b), 99(1)(b) and 116(1)(a) of the VCAT Act.

Clause 183 creates a new provision which specifies the contents of notice of application for reassessment.

Subclause (1) provides that a notice of the making of an application that is given to a party to a reassessment must include—

a copy of the application for the reassessment and any information filed in support of the application. This is subject to clause 37A in Part 9 of Schedule 1 to the VCAT Act. The note at the foot of outlines the operation clause 37A of Part 9 which 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;

the names, as stated in the notification given under clause 182(2), of the parties to proceeding on the reassessment under clause 180 and other persons entitled to notice of reassessment under clause 182;

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information about the rights of the party in relation to the reassessment.

Subclause (2) provides that a notice of the making of an application that is given a person referred to in clause 182(1) who is not a party must include the same information as is given to a party to a reassessment under subclause (1), and in addition must include—

information about the procedure for applying to VCAT to be made a party to the proceeding on the reassessment;

a statement that the person is not required to attend the hearing if the person does not have any matter to raise with VCAT in relation to the reassessment.

Clause 184 creates a new clause outlining the conduct of reassessment if VCAT conducts reassessment on own initiative.

Subclause (1) provides that if VCAT determines to conduct a reassessment on its own initiative under this Division, VCAT must—

take reasonable steps to contact the represented person (including missing person whose estate is subject to an administration (missing person) order) or supported person to ascertain whether that person wishes VCAT to reassess the relevant order at hearing; and

give notice to each person referred to in clause 182(1), including the represented person (including missing person whose estate is subject to an administration (missing person) order) or the supported person, that they have 14 days after the date of the notice to request in writing a hearing of the reassessment.

Subclause (2) provides that VCAT is not required to hold a hearing of the reassessment and may conduct the reassessment on the paper if—

none of persons referred to in section 182(1), including the represented person (including missing person whose estate is subject to an administration (missing person)

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order) or the supported person, requests a hearing within 14 days after the date of the notice; and

VCAT is satisfied that a hearing is not necessary and it is appropriate to reassess the relevant order on the papers.

Subclause (3) provides that VCAT must conduct a hearing at which the relevant order is assessed and give at least 7 days' notice of the hearing to each person referred to in clause 182(1), (including the represented person which includes a missing person whose estate is subject to an administration (missing person) order or the supported person) if—

any of the persons referred to in clause 182(1) (including the represented person, including missing person whose estate is subject to an administration (missing person) order or supported person) requests a hearing within 14 days after the date of the notice; and

VCAT is satisfied that a hearing is necessary.

Clause 185 provides for participation of the proposed represented person (including missing person whose estate is subject to an administration (missing person) order) at a hearing for reassessment. VCAT may only conduct a hearing in relation to a reassessment if—

the represented person (including missing person whose estate is subject to an administration (missing person) order) or supported person is present at the hearing; or

VCAT is satisfied that the represented person (including missing person whose estate is subject to an administration (missing person) order) or supported person does not wish to attend the hearing; or the presence of the represented person or supported person at the hearing is impracticable or unreasonable (despite any arrangement that VCAT may make).

The note at the foot of clause 185 refers to section 100 of the VCAT Act which deals with methods of conducting hearing by VCAT including a conference conducted using telephones, video links or any other system of telecommunication.

Clause 186 provides for the orders that VCAT may make on completing a reassessment.

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Subclause (1) provides that VCAT may by order: amend, vary, continue or replace the order subject to any conditions or requirements VCAT considers necessary; or revoke the order.

Subclause (2) provides that if the Public Advocate is appointed as guardian at first instance, then the appointment may only be retained on reassessment if VCAT is satisfied that no other person fulfils the requirements for appointment as guardian.

PART 11—INTERSTATE ORDERS

Clause 187 outlines the application of this Part.

This Part applies to the following—

a guardianship order, supportive guardianship order, administration order or administration (missing person) order made under a corresponding law of a participating State in relation to a person who resides in the participating State and proposes entering Victoria or has property situated in Victoria; or

an administration (missing person) order made under a corresponding law of a participating State in relation to a person who has property situated in Victoria.

This clause replaces section 63A of the Guardianship and Administration Act 1986, but includes reference to supportive guardianship and administration (missing person) orders.

Clause 188 outlines definitions used for the purposes of Part 11.

This clause replaces section 63B of the Guardianship and Administration Act 1986, but has similar effect.

Clause 189 provides for the process for declaring laws of a State or Territory to be corresponding laws for the purposes of Part 11.

Subclause (1) provides that the Governor in Council, on the recommendation of the Minister may declare that a law of a State (other than this State) or of a Territory is a corresponding law for the purposes of this Part, by publishing an Order in the Government Gazette.

Subclause (2) provides that an Order under subclause (1) may include a declaration that an order under that law is

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substantially similar to a guardianship order, supportive guardianship order, administration order or administration (missing person) order for the purposes of this Part.

This clause replaces section 63C of the Guardianship and Administration Act 1986, but includes reference to supportive guardianship and administration (missing person) orders.

Clause 190 states that the Minister may make an agreement with a Minister responsible for administering a corresponding law about any matter in connection with the administration of Part 11 or a corresponding law.

This clause replaces section 63D of the Guardianship and Administration Act 1986, but has similar effect.

Clause 191 outlines the process for registration of interstate orders in Victoria.

Subclause (1) allows for VCAT to register an interstate order. VCAT may register the order on the application of a guardian, supportive guardian or administrator in a participating State or Territory or the Public Advocate.

Subclause (2) provides that if the guardian in a participating State or Territory is a person who holds an equivalent position to the Public Advocate, VCAT may appoint the Public Advocate as the guardian of the represented person (including missing person whose estate is subject to an administration (missing person) order) in this State if no other person fulfils the requirements of clause 30 for appointment as the guardian of that person. Clause 30 outlines the circumstances in which VCAT may make a guardianship or administration order.

Subclause (3) provides that on registration of an interstate order, VCAT must notify the determining body that made the order that the order has been registered.

Subclause (4) states that an interstate order registered under Part 11 has the same force and effect according to its terms as a guardianship order, supportive guardianship order, administration order administration (missing person) order (as the case may be) made under this Act.

Subclause (5) states that an order made under this Act is not revoked in Victoria if that order is registered in a participating State or Territory.

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This clause replaces section 63E of the Guardianship and Administration Act 1986, but includes references to supportive guardianship and administration (missing person) orders.

Clause 192 outlines the process for reassessment of interstate orders in Victoria.

Subclause (1) allows for a registered interstate order to be reassessed by VCAT in accordance with Division 2 of Part 10. This does not apply to an administration (missing person order).

Subclause (2) provides that VCAT may make any order that it is authorised to make under Division 2 of Part 10 in relation to an interstate order that has been registered, including an order appointing a new guardian, supportive guardian or administrator.

Subclause (3) requires VCAT to notify the determining body that made the interstate order as soon as practicable after VCAT makes an order under subclause (2).

Subclause (4) provides that an order made by VCAT under subclause (2) has no effect in the participating State or Territory in which the interstate order was made.

Subclause (5) states that the revocation, amendment or variation of an interstate order by a determining body after the order is registered has no effect in Victoria.

This clause replaces section 63F of the Guardianship and Administration Act 1986, but includes reference to supportive guardianship and administration (missing person) orders.

Clause 193 states that nothing in Part 11 affects the operation of section 12 of the State Trustees (State Owned Company) Act 1994. Section 12 of the State Trustees (State Owned Company) Act 1994 provides for State Trustees Limited to enter into reciprocal arrangements with proper officers in other States to facilitate the administration of estates of represented persons where assets are outside the State, with incidental amendments.

This clause replaces section 63G of the Guardianship and Administration Act 1986, but has similar effect.

PART 12—GENERAL PROVISIONS

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Clause 194 generally prohibits remuneration of an administrator or guardian with powers in relation to financial matters, but outlines circumstances under which remuneration of administrators and such guardians is permitted.

Subclause (1) prohibits a guardian with powers in relation to a financial matter or an administrator from receiving any fee, remuneration or other reward from the estate of a represented person for acting as guardian with powers in relation to a financial matter or as administrator, unless—

they are a person who carries on a business of, or including, the administration of estates; or

VCAT otherwise specifies in the administration order or guardianship order.

Subclause (2) states that VCAT must approve the remuneration to which a person who carries on a business of, or including, the administration of estates is entitled. This remuneration is to be calculated in accordance with a scale in relation to remuneration for administrators fixed by rules made under the VCAT Act.

Subclause (3) provides that despite subclause (2), the remuneration approved by VCAT in relation to a licensed trustee company must not exceed the limit on fees that may be charged by a licensed trustee company under Chapter 5D of the Corporations Act. A licensed trustee company is defined in clause 3 and has the same meaning as in section 601RAA of the Corporations Act. Licensed trustee company in section 601RAA means a trustee company that holds an Australian financial services licence covering the provision of one or more traditional trustee company services.

Subclause (4) provides that VCAT may request a guardian with powers in relation to a financial matter or an administrator to provide VCAT with any account in the guardian's or administrator's custody in relation to the represented person's estate for the purpose of VCAT examining those accounts and determining whether the guardian or administrator has complied with the requirements of the Bill, orders made by VCAT or any approvals or specifications made by VCAT in relation to remuneration under this clause.

Subclause (5) VCAT may by order require a guardian with powers in relation to a financial matter or an administrator to

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pay to the estate of the represented person any remuneration or other reward paid or deducted from the estate specified by VCAT.

This clause replaces section 47A of the Guardianship and Administration Act 1986, but includes reference to guardians with powers in relation to a financial matter.

Clause 195 relates to payment of costs and expenses to administrators.

Subclause (1) provides that if in any proceeding, a court or VCAT orders that an administrator or a guardian pay any costs of the proceeding, the court or VCAT may order that the administrator or guardian pay, or be reimbursed for, all or part of those costs from the estate of the represented person.

Subclause (2) states that in any proceeding, a court or VCAT may order that an administrator or a guardian be reimbursed for all or part of the administrator's or guardian's costs of the proceeding from the estate of the represented person.

Subclause (3) provides that a court or VCAT may order that the costs incurred in administering an estate by a person appointed as an administrator or a guardian (including the costs of any proceeding) may be paid out of, or reimbursed from, the estate of the represented person, whether or not the appointment has been revoked or quashed.

Subclause (4) states that an order referred to in subclause (3) may be made on an application under clause 60 or otherwise, and for that purpose, a reference in clause 60 to an administrator or a guardian is taken to include a reference to a person whose appointment as an administrator or guardian has been revoked or quashed.

This clause replaces section 47B of the Guardianship and Administration Act 1986, but includes reference to guardians as guardians may now have power in relation to financial matters.

Clause 196 sets out the process for resolution of disputes between guardians and administrators.

Subclause (1) requires VCAT to specify whether the views of the guardian or the administrator are to prevail in relation to a

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matter within the power and duty of both the guardian and the administrator (in the event of a disagreement), when appointing a guardian in relation to a person whose estate is administered by an administrator.

Subclause (2) requires VCAT to specify whether the views of the guardian or the administrator are to prevail in relation to a matter that is within the power and duty of both the guardian and the administrator (in the event of a disagreement), when appointing an administrator in relation to a person for whom a guardian has been appointed.

Subclause (3) provides that when appointing a guardian for a person in relation to a personal matter and another guardian for that person in relation to a different personal matter has been appointed, VCAT must specify which guardian's views are to prevail in relation to a matter that is within the power and duty of both the guardians (in the event of a disagreement).

Subclause (4) provides that an administrator or a guardian (or both guardians as the case may be) may apply to VCAT for an order as to how the matter should be resolved if—

there is in any disagreement between an administrator and a guardian;

there is in any disagreement between two guardians, appointed in relation to the same person and in relation to a matter where each has authority to act.

A purpose of the Bill is to ensure consistency with the new Powers of Attorney Act 2014. This provision is similar to section 71 of the Powers of Attorney Act 2014.

Clause 197 provides that a guardian or administrator may apply to VCAT for an enforcement order.

Subclause (1) provides that 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—

is an exercise of the guardian's or administrator's powers under the Act; and

is so not recognised, or given effect to, by another specified person.

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Subclause (2) provides that the specified person referred to in subclause (1)(b) is entitled to notice of the application.

Subclause (3) allows VCAT to make an order that the specified person referred to in subclause (1)(b) recognise or give effect to the decision or act that the guardian or administrator claims to be an exercise of the guardian's or administrator's powers under the Act if VCAT is satisfied that:

the order will promote the personal and social wellbeing of the represented person (including missing person whose estate is subject to an administration (missing person) order) in relation to whom or to whose estate the guardian or administrator has been appointed; and

the relevant decision or act is an exercise of the guardian's or administrator's powers under the Act; and

the specified person has failed or refused to recognise or give effect to the decision or act as an exercise of the guardian's or administrator's powers under the Act.

The note at the foot of clause 197 specifies that section 133 of the VCAT Act provides that it is an offence not to comply with an order of VCAT.

Clause 198 allows a Court (the Magistrates Court, County Court or Supreme Court) in any civil proceeding before it to consider whether a party may need to have a guardian, administrator (or both) or supportive guardian appointed, and allows VCAT to refer the issue to VCAT for its determination.

Subclause (2) provides that if a Court refers an issue to VCAT under subclause (1), then the referral is to be treated as if it were an application to VCAT for the making of a guardianship order, an administration order or a supportive guardianship order (as the case requires). 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.

Subclause (3) provides that if in any civil proceedings before a Court it is adjudged or ordered that money be paid to a person with a disability the money is to be paid into court; and unless the Court otherwise orders, is to be paid out to the administrator (if any) of the estate of that person or State Trustees.

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Subclause (4) provides that in making an order under subclause(3)(b), there is no presumption that money should be administered in accordance with Division 2AA of Part 7 of the Supreme Court Act 1986 in preference to administration by an administrator.

Subclause (5) provides that subclause (4) does not limit any other factors the Court may consider in making an order under subclause (3)(b).

Subclause (6) provides that if any money is paid into Court before or after the commencement of this clause; and the money is being held in court on behalf of a person with a disability the Court may by order direct that the money be paid out to the administrator (if any) of the estate of that person or State Trustees.

Subclause (7) provides that if the Court adjudges or orders that property (whether real or personal) be delivered up or transferred to a person with a disability—

the Court may order that the property be delivered up or transferred to the administrator (if any) of the estate of that person or State Trustees; and

the Court may give any directions for the service of the order on that administrator or State Trustees as it thinks fit.

Subclause (8) provides that if an order under subclause (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.

Subclause (9) requires a copy of any order made be given by the administrator or State Trustees (as the case may be) to VCAT and the Public Advocate.

Subclause (10) provides that an order of the Court that money be paid out to an administrator (if any) of the estate of a person or State Trustees has effect as if it were an administration order.

This clause replaces section 67 of the Guardianship and Administration Act 1986, but includes reference of supportive guardian.

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Clause 199 states that the setting aside of an administration order does not affect the validity of previous actions of an administrator.

An order of a court or VCAT (the setting aside order) that sets aside, or has the effect of setting aside, an administration order does not affect the validity of anything done in accordance with the administration order before the setting aside order takes effect. This is subject to any order to the contrary by the court or VCAT making the setting aside order.

This clause replaces section 67 of the Guardianship and Administration Act 1986, but has similar effect.

Clause 200 allows the Supreme Court or VCAT to order a guardian or administrator compensate the represented person for loss caused by the guardian or administrator contravening this Bill when acting as guardian or administrator.

Subclause (2) provides that subclause (1) applies even—

if the guardian or administrator is convicted of an offence in relation to the guardian's or administrator's contravention; or

the represented person has died, in which case compensation is payable to the estate of the represented person.

A purpose of the Bill is to ensure consistency with the new Powers of Attorney Act 2014. This provision is similar to clause 77 of the Powers of Attorney Act 2014.

Clause 201 allows the Supreme Court or VCAT to relieve an administrator or guardian who is or may be personally liable for a contravention of this Act from all or part of the administrator or guardian's personal liability for a contravention.

An administrator or guardian may be relieved from liability if the Supreme Court or VCAT considers that—

an administrator or guardian is or may be personally liable for a contravention of the provisions of this Act; and

the administrator or guardian has acted honestly and reasonably and ought fairly to be excused for the contravention.

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A purpose of the Bill is to ensure consistency with the new Powers of Attorney Act 2014. This provision is similar to clause 74 of the Powers of Attorney Act 2014.

Clause 202 outlines the persons who may apply for an order for compensation under clause 200. These persons are: the represented person; or an executor or administrator (within the Administration and Probate Act 1958) of the represented person's estate; or the Public Advocate; or the nearest relative of the represented person; or any other person whom VCAT is satisfied has a special interest in the affairs of the represented person.

A purpose of the Bill is to ensure consistency with the new Powers of Attorney Act 2014. This provision is similar to clause 78 of the Powers of Attorney Act 2014.

Clause 203 outlines the time limits for an application for compensation under clause 200 where the represented person, or guardian or administrator has died.

Subclause (1) provides that if a represented person or a guardian or administrator has died, then an application for an order for compensation must be made within 6 months after that death. If both the represented person and the guardian or administrator have died, then an application for an order for compensation must be made within 6 months after the first death.

Subclause (2) provides that the Supreme Court or VCAT may extend the time specified under subclause (1).

A purpose of the Bill is to ensure consistency with the new Powers of Attorney Act 2014. This provision is similar to clause 79 of the Powers of Attorney Act 2014.

Clause 204 provides that VCAT may refer to the Supreme Court an application made to it for an order for compensation under clause 200.

A purpose of the Bill is to ensure consistency with the new Powers of Attorney Act 2014. This provision is similar to clause 80 of the Powers of Attorney Act 2014.

Clause 205 provides that no compensation is payable by the State in relation to any damage, loss or injury sustained by a person by

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reason of an act or omission of a guardian or an administrator under this Act.

Clause 206 states that 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.

This clause replaces section 73 of the Guardianship and Administration Act 1986, but has similar effect.

Clause 207 VCAT or the Public Advocate may engage a registered company auditor to carry out an inspection or an audit that VCAT or the Public Advocate considers to be necessary.

This clause replaces section 79 of the Guardianship and Administration Act 1986, but has similar effect.

Clause 208 sets out offences in relation to a guardian, supportive guardian or administrator.

Subclause (1) prohibits a guardian under a guardianship order from dishonestly using the guardianship order to obtain financial advantage for the guardian or another person or causing loss to the represented person or another person. The penalty for this offence is level 6 imprisonment (5 years maximum) or 600 penalty units or both.

Subclause (2) prohibits a supportive guardian under a supportive guardianship order from dishonestly using the supportive guardianship order to obtain financial advantage for the supportive guardian or another person or causing loss to the supported person or another person. The penalty for this offence is level 6 imprisonment (5 years maximum) or 600 penalty units or both.

Subclause (3) prohibits an administrator under an administration order from dishonestly using the administration order to obtain financial advantage for the administrator or another person or causing loss to the represented person or another person. The penalty for this offence in the case of a natural person is level 6 imprisonment (5 years maximum) or 600 penalty units or both, or in the case of a body corporate 2400 penalty units.

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Subclause (4) prohibits an administrator under an administration (missing person) order from dishonestly using the administration (missing person) order to obtain financial advantage for the administrator or another person or causing loss to the represented person or another person. The penalty for this offence in the case of a natural person is level 6 imprisonment (5 years maximum) or 600 penalty units or both, or in the case of a body corporate 2400 penalty units.

The note at the foot of this clause clarifies that offences under this clause are indictable offences that may be heard summarily. Further, the note specifies that clause 209 relating to criminal liability of officers of bodies corporate applies to offences under subclause 208 (3) and (4).

This clause replaces the general penalty for contravention of the Act contained in section 80 of the Guardianship and Administration Act 1986 with more specific offences relating to dishonestly obtaining a financial advantage or causing loss. A purpose of the Bill is to ensure consistency with the new Powers of Attorney Act 2014. These offences are similar to offences in clause 135 of the Powers of Attorney Act 2014.

Clause 209 states that if a body corporate commits an offence against a provision of subclause (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.

Subclause (2) specifies that this provision applies to clauses 27(5), 208(3), 208(4) which relates to offences of administrators. Clause 27(5) that makes it an offence to delay or obstruct a person who is acting under a VCAT order empowering the Public Advocate, or some other person specified in an order, to visit the proposed represented person or take the proposed represented person to a place specified in the order.

A court in determining whether an officer of a body corporate failed to exercise due diligence, may have regard to—

what the officer knew or ought reasonably to have known, about the commission of the offence by the body corporate; and

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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

what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the body corporate; and

any other relevant matter.

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 the officer is charged. If the officer does rely on such a defence then the officer bears the same burden of proof that the body corporate would bear. This provision is not intended to limit any other defence available to the officer.

An officer of a body corporate may commit an offence against a provision of subclause (2) whether or not the body corporate has been prosecuted or found guilty of an offence against that provision.

Subclause (6) contains definitions of body corporate and officer for the purposes of the clause.

This clause replaces the offences by bodies corporate contained in section 81 of the Guardianship and Administration Act 1986 with more detailed provision relating to criminal liability of officers of bodies corporate and failure to exercise due diligence. A purpose of the Bill is to ensure consistency with the new Powers of Attorney Act 2014. This clause is similar to clause 137 of the Powers of Attorney Act 2014.

Clause 210 provides that the Governor in Council may make regulations for or with respect to—

forms for the purposes of the Bill;

medical or dental treatment for the purposes of the Bill;

special procedures of the purposes of Part 9;

medical research procedures;

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matters to be taken into account in determining whether a medical research procedure would be in the best interests of the person to whom Part 9 applies;

matters to be taken into account in determining whether a special procedure, or medical or dental treatment would be in the best interests of the person to whom Part 9 applies;

annual fees to be paid in relation to estate which are the subject of an administration order. Subclause (3) provides that regulations made under subclause 1(f) may prescribe fees in relation to a particular class or classes of estates; in relation to different class or classes of estates; and may authorise VCAT to waive fees in particular cases or classes of cases;

any other matter or thing that is authorised or required to be prescribed or necessary to be prescribed for the purposes of the Bill.

Subclause (2) provides that regulations may be general or specifically limited application; may differ according to differences in time, place or circumstances; and may impose a penalty not exceeding 10 penalty units for contravention of the regulations.

Subclause (4) requires that prior to the Governor in Council making the regulations the Minister must—

consult with the President of VCAT and the Public Advocate and be of the opinion that the fees to be charged in the proposed regulations will not result in an amount of fees being collected in any year that will exceed the amount required by VCAT and the Public Advocate to fulfil their estate administration functions under this Act in that year;

advise the Governor in Council that the Minister has conducted such consultation.

Clause 211 allows for the making of regulations containing saving or transitional provision consequent to enactment of the Bill, to be made until 1 September 2017.

Regulations made under this clause may be retrospective in operation to 1 September 2015 and have effect despite anything

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to the contrary in any Act (or subordinate instrument), other than this Act or the Charter of Human Rights and Responsibilities Act 2006.

PART 13—REPEAL OF GUARDIANSHIP AND ADMINISTRATION ACT 1986, SAVINGS AND

TRANSITIONAL PROVISIONS

Clause 212 provides for definitions used in this Part.

The 1986 Act means the Guardianship and Administration Act 1986.

The 2014 Act means the Guardianship and Administration Act 2014.

Commencement day means the day on which the 2014 Act comes into operation.

Subclause (2) clarifies that a word or expression that is defined in the 1986 Act and is used in this Part in relation to the 1986 Act has the same meaning as is given in the 1986 Act.

Clause 213 provides for repeal of the Guardianship and Administration Act 1986.

Subclause (2) allows for all persons, things and circumstances appointed or created by or under the 1986 Act or existing or continuing under the 1986 Act immediately before commencement day to continue and have the same status, operation and effect as they would have had if the 1986 Act had not been repealed, except as is expressly (or by necessary implication) provided in the 2014 Act.

Subclause (3) provides for interpretation of Acts and other documents on and after commencement day. It provides that a reference in Acts, regulations, subordinate instruments or other documents to the 1986 Act is to be construed as a reference to the 2014 Act, unless the contrary intention appears.

Subclause (4) clarifies that nothing in Part 13 limits or otherwise affects the operation of the Interpretation of Legislation Act 1984.

Clause 214 makes provision for transitioning and continuation of guardianship orders and guardianship appointments from the 1986 Act, on or after commencement day.

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This clause provides that on or after commencement day—

a guardianship order made under section 22 or 33 of the 1986 Act in force immediately before the commencement day, is taken to be a guardianship order made under the 2014 Act. For an order made under section 33 of the 1986 Act it is taken to remain in force for the period specified in the 1986 Act order or renewal of order;

a person appointed as a guardian a person under section 22 or 33 of the 1986 Act in force immediately before commencement day is taken to be appointed as a guardian under the 2014 Act, on or after commencement;

a person appointed as alternative guardian under section 34 of the 1986 Act immediately before commencement day is taken to be appointed as an alternative guardian under an order made under the 2014 Act. This applies only if the person is not a guardian under section 35 of the 1986 Act;

a person who immediately before that day is a guardian under section 35 of the 1986 Act is taken to be a guardian under the 2014 Act.

Clause 215 makes provision for transitioning and continuation of authority of guardians under the 1986 Act, on or after commencement day.

This clause provides that on or after commencement day—

a plenary guardian appointed under a guardianship order made under the 1986 Act in force immediately before commencement day is taken to be conferred with all the powers and duties that were conferred on the plenary guardian under the 1986 Act; and the powers and duties referred to in clauses 57, 58(b) and 60 of the 2014 Act;

a limited guardian appointed under a guardianship order made under the 1986 Act that is in force immediately before commencement day is taken to be conferred with all the powers and duties that were specified in the guardianship order made under the 1986 Act; and the

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powers and duties referred to in sections 57, 58(b) and 60 of the 2014 Act.

Clause 57 provides for matters for which power cannot be given under clause 28, for instance to make or revoke a will for the represented person. Clause 58(b) outlines the duties of a guardian or administrator in relation to a represented person under a clause 28 order. Clause 60 provides that a guardian or administrator may apply to VCAT for advice on any matter relating to the scope of the guardianship order or administration order.

Clause 216 makes provision for transitioning and continuation of administration orders and appointments of administrators under the 1986 Act, on or after commencement day.

This clause provides that on or after commencement day—

an administration order made under section 46 or 60 of the 1986 Act that is in force immediately before commencement day is taken to be an administration order made under the 2014 Act. For an order made under section 60 of the 1986 Act it is taken to remain in force for such period as is specified in the 1986 Act order or renewal of the order;

a person appointed as administrator or temporary administrator in an administration order made under section 46 or 60 of the 1986 Act is taken to be appointed under an administration order made under the 2014 Act. The person will be appointed as an administrator as described in the definition of administrator in section 3(1) of the 1986 Act.

Clause 217 makes provision for transitioning and continuation of authority of administrators under the 1986 Act, on or after commencement day.

This clause provides that on or after commencement day—

an administrator appointed under an administration order made under the 1986 Act in force immediately before the commencement day is taken to be conferred with all the powers and duties conferred the administrator under Division 3 of Part 5 of the 1986 Act, and the powers and duties referred to in

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Division 3A of Part 5 of that Act specified in the order; and

an administrator appointed under an administration order made under the 1986 Act in force immediately before commencement day is taken to be conferred with the powers and duties in the following clauses of the 2014 Act—

clause 57 which provides for matters for which power cannot be given under clause 28, for instance to make or revoke a will for the represented person;

clause 58(b) which outlines the duties of a guardian or administrator in relation to a represented person under a clause 28 order;

clause 63 which provides for power of investment of a guardian with powers in relation to a financial matter or an administrator;

clause 65 which provides for exercise of certain powers of a guardian with powers in relation to a financial matter or an administrator;

clause 67 which permits a guardian with powers in relation to a financial matter or an administrator to seek advice from a professional advisor;

clause 72 which outlines when a guardian with powers in relation to a financial matter or an administrator may enter into a conflict transaction.

Clause 218 makes provision for transitioning and continuation of administration order in respect of an estate of a missing person under the 1986 Act, on or after commencement day.

This clause provides that on or after commencement day—

an administration order made under Part 5A of the 1986 Act that is in force immediately before the commencement day is taken to be an administration (missing person) order made under the 2014 Act;

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a person appointed as administrator made under Part 5A of the 1986 Act is taken to be appointed as an administrator under an administration (missing person) order made under the 2014 Act.

Clause 219 makes provision for transitioning and continuation of authority of administrators in respect of a missing person's estate under the 1986 Act, on or after commencement day.

This clause provides that on or after commencement day, an administrator appointed under an administration order made under Part 5A of the 1986 Act that is in force immediately before commencement day is taken to be conferred with all the powers and duties that were conferred on the administrator under Part 5A of the 1986 Act.

Clause 220 makes provision for transitioning and continuation of applications for guardianship orders under the 1986 Act, on or after commencement day.

This clause provides that on or after commencement day, irrespective of whether an application appointing a plenary guardian or a limited guardian under section 19 or 33 of the 1986 Act is or is not part-heard immediately before commencement day, an application referred to in this clause must be determined in accordance with the relevant provisions of the 2014 Act (other than clauses 23 and 24).

Clauses 23 and 24 deal with who is entitled to notice of an application for guardianship or administration order and the contents of the application for such an order.

Clause 221 makes provision for transitioning and continuation of applications for administration orders under the 1986 Act, on or after commencement day.

This clause provides that on or after commencement day, irrespective of whether an application for an order appointing an administrator under section 43 of the 1986 Act is or is not part-heard immediately before commencement day, an application referred to in this clause must be determined in

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accordance with the relevant provisions of the 2014 Act (other than clauses 23 and 24).

Clauses 23 and 24 deal with who is entitled to notice of an application for guardianship or administration order and the contents of the application for such an order.

Clause 222 makes provision for transitioning and continuation of applications for administration (missing person) orders under the 1986 Act, on or after commencement day.

This clause provides that on or after commencement day, irrespective of whether an application for an order appointing an administrator under section 60AA or 60AF of the 1986 Act is or is not part-heard immediately before commencement day, an application referred to in this clause must be determined in accordance with the relevant provisions of the 2014 Act (other than clauses 108 and 109).

Clauses 108 and 109 deal with who is entitled to notice of an application administration (missing person) order and the contents of the application for such an order.

Clause 223 makes provision for transitioning and continuation of provisions in relation to rehearings or reassessment under the 1986 Act.

This clause provides that if, immediately before commencement day—

an application is made under Part 6 of the 1986 Act for a rehearing or reassessment of an order, the application is taken to be made under Part 10 of the 2014 Act;

a rehearing or reassessment under Part 6 of the 1986 Act is part heard, adjourned or not completed, the rehearing or reassessment is to be heard or completed in accordance with the relevant provisions of Part 10 of the 2014 Act in relation to the order that is taken to be an order made under the 2014 Act by virtue of Part 13.

Subclause (3) provides that on and after commencement day, an order made under Part 6 of the 1986 Act that is in force immediately before commencement day is taken to be an order made under Part 10 of the 2014 Act.

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Clause 224 makes provision for transitioning and continuation of provisions in relation to medical and other treatment under the 1986 Act, on or after commencement day.

This clause provides that on and after commencement day:

a person who is a person responsible under Part 4A of the 1986 Act is taken to be a health decision maker under Part 9 of the 2014 Act;

a consent given by a person responsible under the Part 4A of the 1986 Act is taken to be a consent given by a health decision maker under Part 9 of the 2014 Act;

an order, directions or an advisory opinion given by VCAT under section 42I of the 1986 Act is taken to be an order, directions or an advisory opinion given by VCAT under clause 158 of the 2014 Act;

a registered practitioner may carry out, or supervise the carrying out of, medical or dental treatment under clause 161 of the 2014 Act if, immediately before the commencement day, the registered practitioner was permitted to carry out, or supervise the carrying out of, such treatment under section 42L of the 1986 Act. This is subject to clause 147 of the 2014 Act, which deals with refusal of treatment under the Medical Treatment Act 1988;

an application made under section 42N of the 1986 Act and not determined immediately before commencement day, is taken to be an application under clause 163 of the 2014 Act;

an application made under section 42V of the 1986 Act and not determined immediately before commencement day, is taken to be an application under clause 171 of the 2014 Act;

an order, directions or an advisory opinion given by VCAT under section 42W of the 1986 Act is taken to be an order, directions or an advisory opinion given by VCAT under clause 172 of the 2014 Act.

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Clause 225 makes provision for transitioning and continuation of provisions in relation to interstate orders under the 1986 Act, on and after commencement day.

This clause provides that on and from commencement day:

an agreement referred to in section 63D of the 1986 Act is taken to be an agreement referred to in clause 190 of the 2014 Act;

an interstate order that is registered under section 63E of the 1986 Act is taken to be an interstate order registered under clause 191 of the 2014 Act.

Clause 226 provides that VCAT may make orders of a transitional nature.

Subclause (1) permits VCAT to make any order of a transitional nature it considers appropriate to resolve the difficulty, if any difficulty arises in a proceeding because of the operation of Part 13.

Subclause (2) allows VCAT to make such an order on the application of any party to the proceeding or on its own initiative.

PART 14—AMENDMENTS TO THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 AND OTHER ACTS

Division 1—Victorian Civil and Administrative Tribunal Act 1998

Clause 227 amends the definition of proceeding in section 3 of the Victorian Civil and Administrative Tribunal Act 1998 by substituting paragraph (d) of the definition with "(d) a rehearing or reassessment under Part 10 of the Guardianship and Administration Act 2014" to reflect new Part numbering used in the Bill and new Bill title.

Clause 228 amends section 42(2) of the Victorian Civil and Administrative Tribunal Act 1998, which deals with review jurisdiction, by substituting "Part 6 of the Guardianship and Administration Act 1986" with "Part 10 of the Guardianship and Administration Act 2014" to reflect new Part numbering used in the Bill and new Bill title.

Clause 229 amends 146(4)(c) of the Victorian Civil and Administration Tribunal Act 1998, which deals with proceeding files, by

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inserting "(ca) any determination by the principal registrar under clause 37A of Part 9 to Schedule 1".

Clause 230 inserts a heading for Part 9 into Schedule 1 of the Victorian Civil and Administration Tribunal Act 1998 with "PART 9—GUARDIANSHIP AND ADMINISTRATION ACT 2014" to reflect new Act title.

Clause 231 amends clause 31 of Schedule 1 of the Victorian Civil and Administration Tribunal Act 1998.

Subclause (1) amends clause 31(1) of Schedule 1 by replacing clause 31(1) with "(1) Section 64(2)(a) does not apply to a proceeding under the Guardianship and Administration Act 2014, other than a proceeding for a temporary order under section 20 of that Act" to reflect new Bill clause numbering and Bill title.

Subclause (2) amends clause 31(2) of Schedule 1 by substituting "Division 4 of Part 4 or Division 4 of Part 5 of the Guardianship and Administration Act 1986" with "Parts 3 and 4" to reflect new Part number in the Bill.

Subclause (3) amends clause 31(3) of Schedule 1 by substituting "Division 1 of Part 6 of the Guardianship and Administration Act 1986" with "Division 1 of Part 10 of the Guardianship and Administration Act 2014" to reflect new Part numbering and new Bill title.

Clause 232 amends clause 32 of Schedule 1 of the Victorian Civil and Administration Tribunal Act 1998, which deals with notification of commencement.

Subclause (1) amends clause 32(1) and (2) of Schedule 1 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect new Bill title.

Subclause (2) amends clause 32(3) of Schedule 1 by substituting "Part 5A of the Guardianship and Administration Act 1986" with "Part 8 of the Guardianship and Administration Act 2014" to reflect new Part number and Bill title.

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Clause 233 amends clause 33 of Schedule 1 of the Victorian Civil and Administration Tribunal Act 1998, which provides that the Public Advocate may intervene or be joined.

This clause amends clause 33 of Schedule 1 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect new Bill title.

Clause 234 amends clause 34 of Schedule 1 of the Victorian Civil and Administration Tribunal Act 1998, which provides that withdrawal of application does not preclude future applications.

This clause amends clause 34 of Schedule 1 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect new Bill title.

Clause 235 amends clause 35 of Schedule 1 of the Victorian Civil and Administration Tribunal Act 1998, which allows for referral to administrators for reports.

This clause amends clause 35(1) of Schedule 1 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect new Bill title.

Clause 236 amends clause 36 of Schedule 1 of the Victorian Civil and Administration Tribunal Act 1998 which provides that proceedings are not invalidating by a failure to give notice.

This clause amends clause 36 of Schedule 1 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect new Bill title.

Clause 237 amends clause 37 of Schedule 1 of the Victorian Civil and Administration Tribunal Act 1998, which provides for confidentiality of proceedings.

Subclause (1) amends clause 37(1) of Schedule 1 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect new Bill title.

Subclause (2) amends clause 37(4) of Schedule 1 by substituting "Part 5A of the Guardianship and

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Administration Act 1986" with "Part 8 of the Guardianship and Administration Act 2014" to reflect new Part numbering and Bill title.

Clause 238 inserts a new clause into Part 9 of Schedule 1 of the Victorian Civil and Administration Tribunal Act 1998, which relates to access to documents.

This clause inserts the following clause after clause 37 in Part 9 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998—

"37A Access to documents

(1) A person may make an application to the principal registrar that any documents lodged in relation to a proceeding under the Guardianship and Administration Act 2014 not be disclosed to a specified person or class of persons.

(2) The principal registrar must determine an application under subclause (1) fairly and according to the merits of the application."

Clause 239 amends Schedule 2 by inserting at the end of Schedule 2 of the Victorian Civil and Administrative Tribunal Act 1998 "A scale of remuneration to which persons who carry on a business of, or including, the administration of estates may be entitled to under the Guardianship and Administration Act 2014, subject to VCAT's approval.".

Division 2—Amendment to other Acts

Clause 240 provides that on the coming into operation of an item in the Schedule, the Act specified in the heading to that item is amended as set out in the item.

Clause 241 provides that Part 14 and the Schedule are repealed on 1 September 2016. The note at the foot of clause 241 clarifies that the repeal of Part 14 and the Schedule 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.).

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SCHEDULE

CONSEQUENTIAL AMENDMENTS

1 Appeal Costs Act 1998

Clause 1.1 amends section 3(2)(a) and (b) of the Appeals Costs Act 1998 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

2 Associations Incorporation Reform Act 2012

Clause 2.1 amends section 78(2)(c)(iii)of the Associations Incorporation Reform Act 2012 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

3 Australian Consumer Law and Fair Trading Act 2012

Clause 3.1 amends section 47(1)(a)(ii), 48(6)(b) and 92(1)(g) of the Australian Consumer Law and Fair Trading Act 2012 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

4 Building Act 1993

Clause 4.1 amends 83(1)(b)(iii), 83B(1)(e) and 148F(1)(g) of the Building Act 1993 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Clause 4.2 amends section 90(3) of the Building Act 1993 by substituting "under the Guardianship and Administration Act 1986" with "or as guardian with powers in relation to a financial matter of the adjoining owner under the Guardianship and Administration Act 2014" to reflect new terminology used in the Bill and new Bill title.

5 Business Licensing Authority Act 1998

Clause 5.1 amends clause 3(1)(c) of the Schedule by substituting "Guardianship and Administration Act 1986" with

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"Guardianship and Administration Act 2014" to reflect the new Bill title.

6 Conveyancers Act 2006

Clause 6.1 amends section 5(h) of the Conveyancers Act 2006 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

7 Coptic Orthodox Church (Victoria) Property Trust Act 2006

Clause 7.1 amends section 8(d) of the Coptic Orthodox Church (Victoria) Property Trust Act 2006 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

8 County Court Act 1958

Clause 8.1 amends section 39B(5) of the County Court Act 1958 by substituting "VCAT within the meaning of the Guardianship and Administration Act 1986 and the Public Advocate appointed under that Act" with "VCAT and the Public Advocate appointed under the Guardianship and Administration Act 2014" to update terminology and reflect new Bill title.

Clause 8.2 amends section 39B(6) of the County Court Act 1958 by substituting this subsection with the following—

"(6) An order of the Court under this section that money be paid out to an administrator has effect as if it were an administration order under the Guardianship and Administration Act 2014 and, subject to the order of the Court the administrator has all the powers and duties set out in Divisions 3, 4, 5 and 6 of Part 6 of that Act.".

Clause 8.3 amends section 39C(6) of the County Court Act 1958 by substituting for "section 66 of the Guardianship and Administration Act 1986" with "section 198 of the Guardianship and Administration Act 2014" to reflect updated numbering of the Bill and new Bill title.

9 Crimes Act 1958

Clause 9.1 amends the section 175(1) definition of trustee in the Crimes Act 1958 by substituting "Guardianship and Administration

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Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

10 Disability Act 2006

Clause 10.1 amends section 3(1) of the Disability Act 2006.

Paragraph (a) amends the definition of Public Advocate in section 3(1) of the Disability Act 2006 by replacing this definition with "Public Advocate has the same meaning as in the Guardianship and Administration Act 2014" to reflect the new Bill title.

Paragraph (b) amends the definition of resident’s administrator in section 3(1) of the Disability Act 2006 by inserting after "resident's" the following "guardian with powers relation to a financial matter appointed under the Guardianship and Administration Act 2014 or the resident's". This amendment reflects new terminology and new Bill title.

Paragraph (c) amends the definition in paragraph (a)(i) of resident’s guardian in section 3(1) of the Disability Act 2006 by substituting this paragraph with "(i) appointed under the Guardianship and Administration Act 2014 with powers in relation to a personal matter; or". This amendment reflects new terminology and new Bill title.

Clause 10.2 amends section 39(4) of the Disability Act 2006 by inserting a new paragraph following section 39(4)(ca) as follows "(cb) to a supportive guardian within the meaning of the Guardianship and Administration Act 2014;". Section 39(4) allows for information sharing for specified purposes to the extent that is reasonably required in connection with the performance of a duty or the exercise of a power or function under the Disability Act 2006 or any other Act. This insertion will allow information to be shared with a supportive guardian as permitted in section 39 of the Disability Act 2006. This amendment is consistent with a similar amendment made in relation to a supportive attorney as part of the Powers of Attorney Act 2014.

Clause 10.3 amends section 144(2) of the Disability Act 2006 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

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Clause 10.4 amends section 200 of the Disability Act 2006 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

11 Duties Act 2000

Clause 11.1 amends the definition of guardian in section 57G(1) in the Duties Act 2000 by substituting paragraph (b) of that definition with "(b) an administrator of the person's estate appointed under the Guardianship and Administration Act 2014 or a person appointed under that Act for the person under a legal disability as guardian with powers in relation to a financial matter;" to reflect new terminology used in the Bill and new Bill title.

12 Estate Agents Act 1980

Clause 12.1 amends sections 14(5)(da), 16(1)(da), 22(1)(c) of the Estate Agents Act 1980 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

13 Family Violence Protection Act 2008

Clause 13.1 amends section 4 definition of guardian by substituting "under the Guardianship and Administration Act 1986" with "with powers in relation to a personal matter under the Guardianship and Administration Act 2014" to reflect new terminology used in the Bill and new Bill title.

Clause 13.2 amends the notes at the foot of sections 64(1) and 112 by substituting for "sections 30 and 61 of the Guardianship and Administration Act 1986. Section 30" with "section 60 and Division 2 of Part 10 of the Guardianship and Administration Act 2014. Section 60"; and by substituting "section 61" with "Division 2 of Part 10" to reflect new Bill numbering and new Bill title.

14 Fire Services Levy Monitor Act 2012

Clause 14.1 amends section 10(c) of the Fire Services Levy Monitor Act 2012 by substituting "Guardianship and Administration Act

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1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

15 First Home Owners Grant Act 2000

Clause 15.1 amends section 3(1) definition of guardian paragraph (b) by substituting with "(b) an administrator of the person's estate appointed under the Guardianship and Administration Act 2014 or a person appointed under that Act for the person under a legal disability as guardian with powers in relation to a financial matter." This amendment reflects new terminology used in the Bill and new Bill title.

16 Fundraising Act 1998

Clause 16.1 amends sections 19A(1)(c), 24B(1)(a)(iii) and 34(1)(f)(i)(C) of the Fundraising Act 1998 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

17 Gambling Regulation Act 2003

Clause 17.1 amends sections 3.4.24(3)(a)(iv), 7.3.15(1)(b) and 7.3.17(c) Gambling Regulation Act 2003 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

18 Health Records Act 2001

Clause 18.1 amends section 85 of the Health Records Act 2001.

Paragraph (a) amends section 85(4) of the Health Records Act 2001 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Paragraph (b) amends section 85(6)(d) of the Health Records Act 2001 by substituting this subsection with "(d) an administrator, a guardian, supportive guardian or a health decision maker (all within the meaning of the Guardianship and Administration Act 2014); or" to reflect new terminology used in the Bill and new Bill title.

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Clause 18.2 amends section 30(2) definition of written authority in the of the Health Records Act 2001.by substituting this definition with the following:

"written authority includes—

(a) a supportive attorney appointment within the meaning of the Powers of Attorney Act 2014;

(b) a supportive guardianship order within the meaning of the Guardianship and Administration Act 2014."

Section 30 provides that an individual may authorise a person to be given access to health information. This amendment will permit information to be shared with a supportive guardian as permitted in section 30 of the Health Records Act 2001. This amendment is consistent with a similar amendment made in relation to a supportive attorney as part of the Powers of Attorney Act 2014.

Clause 18.3 amends section 85(2)(a)(ii) of the Health Records Act 2001 by substituting "and" with "or". This is

Clause 18.4 amends section 85(2)(a)(ii) of the Health Records Act 2001 by inserting the following paragraph after paragraph (ii) "(iii) a supportive guardian acting under a supportive guardianship order, within the meaning of the Guardianship and Administration Act 2014; and". Section 85 relates to the capacity of a person to give consent, make a request or exercise a right of access to health information. This amendment will permit a supportive guardian to request access to health information as permitted in section 85 of the Health Records Act 2001. This amendment is consistent with a similar amendment made in relation to a supportive attorney as part of the Powers of Attorney Act 2014.

19 Health Services Act 1988

Clause 19.1 amends section 3(1) definition of Public Advocate in the Health Services Act 1988 by substituting the definition with "Public Advocate has the same meaning as in the Guardianship and Administration Act 2014;" to reflect the new Bill title.

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20 Human Services (Complex Needs) Act 2009

Clause 20.1 amends section 3 definition of Public Advocate in the Human Services (Complex Needs) Act 2009 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Clause 20.2 amends section 21(b)(i) of the Human Services (Complex Needs) Act 2009 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

21 Independent Broad-based Anti-corruption Commission Act 2011

Clause 21.1 amends sections 25(1)(f) and 27(1)(f) of the Independent Broad-based Anti-corruption Commission Act 2011 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

22 Juries Act 2000

Clause 22.1 amends clause 3(d) in Schedule 2 of the Juries Act 2000 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

23 Land Act 1958

Clause 23.1 amends section 110 of the Land Act 1958.

Paragraph (a) amends section 110(3) by substituting "as administrator under the Guardianship and Administration Act 1986" with "under the Guardianship and Administration Act 2014 as an administrator or as a guardian with powers in relation to a financial matter" to reflect new terminology used in the Bill and new Bill title.

Paragraph (b) amends section 110(4) by substituting "administrator under the Guardianship and Administration Act 1986" with "administrator or guardian with powers in relation to a financial matter appointed under the Guardianship

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and Administration Act 2014" to reflect new terminology used in the Bill and new Bill title.

Clause 23.2 amends section 353(5) of the Land Act 1958 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

24 Land Tax Act 2005

Clause 24.1 amends section 3(1) definition of concessional trust, paragraph (a)(i) of the Land Tax Act 2005 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

25 Limitation of Actions Act 1958

Clause 25.1 amends section 3(3) of the Limitation of Actions Act 1958 by substituting this subsection with "(3) Without limiting the meaning of unsound mind a person is conclusively presumed to be of unsound mind if the person is a represented person within the meaning of the Guardianship and Administration Act 2014" to reflect new Bill title.

Clause 25.2 amends section 27J(4) of the Limitation of Actions Act 1958.

Paragraph (a) amends section 27J(4) definition of guardian by substituting that definition with "guardian, in relation to a represented person means the guardian or administrator of that person under the Guardianship and Administration Act 2014" to reflect new Bill title.

Paragraph (b) amends section 27J(4) definition of represented person by substituting that definition with "represented person, means represented person within the meaning of the Guardianship and Administration Act 2014" to reflect new Bill title.

26 Liquor Control Reform Act 1998

Clause 26.1 amends sections 66(c), 80(1)(b) and 85(a)(ii) of the Liquor Control Reform Act 1998 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

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27 Magistrates Court Act 1989

Clause 27.1 amends section 101A(5) of the Magistrates Court Act 1989 by substituting "VCAT within the meaning of the Guardianship and Administration Act 1986 and the Public Advocate appointed under that Act" with "VCAT and the Public Advocate appointed under the Guardianship and Administration Act 2014" to reflect new terminology used in the Bill and new Bill title.

Clause 27.2 amends section 101A(6) of the Magistrates Court Act 1989 by substituting this subsection with the following:

"(6) An order of the Court under this section that money be paid out to an administrator has effect as if it were an administration order under the Guardianship and Administration Act 2014 and, subject to the order of the Court the administrator has all the powers and duties set out in Divisions 3, 4, 5 and 6 of Part 6 of that Act.".

This amendment reflects new Part and Division references in the Bill and new Bill title.

Clause 27.3 amends section 101B(6) of the Magistrates Court Act 1989 by substituting "section 66 of the Guardianship and Administration Act 1986" with "section 198 of the Guardianship and Administration Act 2014" to reflect new numbering of the Bill and new Bill title.

28 Medical Treatment Act 1988

Clause 28.1 amends sections 5A(1)(b) and (4)(b)(ii) of the Medical Treatment Act 1988.

Paragraph (a) amends section 5A(1)(b) by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Paragraph (b) amends section (4)(b)(ii) by substituting this subsection with "(b) on the donor of the power becoming a represented person within the meaning of the Guardianship and Administration Act 2014" to reflect the new Bill title.

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Clause 28.2 amends section 5D(1)(b) of the Medical Treatment Act 1988 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Clause 28.3 amends Schedule 3 of the Medical Treatment Act 1988 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

29 Mental Health Act 2014

Clause 29.1 amends section 3(1) of the Mental Health Act 2014.

Paragraph (a) amends section 3(1) definition of guardian by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Paragraph (b) amends section 3(1) definition of Public Advocate by substituting the definition with "Public Advocate has the same meaning as in the Guardianship and Administration Act 2014;" to reflect the new Bill title.

Clause 29.2 amends section 7 of the Mental Health Act 2014.

Paragraph (a) amends section 7 paragraph (e) by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Paragraph (b) amends the note at the foot of section 7 paragraph (e) by substituting "Part 4A of the Guardianship and Administration Act 1986" with "Part 9 of the Guardianship and Administration Act 2014" to reflect updated Part numbering and the new Bill title.

Clause 29.3 amends section 75(1)(c) of the Mental Health Act 2014 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

30 Motor Car Traders Act 1986

Clause 30.1 amends 13(4)(k) and (6)(1)(i), 28(1)(c) and 33(1)(c) of the Motor Car Traders Act 1986 by substituting "Guardianship and Administration Board Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

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31 Owners Corporation Act 2006

Clause 31.1 amends sections 179(b), 186(a) and 187(1)(c) of the Owners Corporation Act 2006 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

32 Partnership Act 1958

Clause 32.1 amends section 39(a) of the Partnership Act 1958 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

33 Personal Safety Intervention Orders Act 2010

Clause 33.1 amends section 4, in the definition of guardian by substituting "under the Guardianship and Administration Act 1986" with "with powers in relation to a personal matter under the Guardianship and Administration Act 2014".

Clause 33.2 amends the notes at the foot of sections 46(1)(b) and 89(1)(b) of the Personal Safety Intervention Orders Act 2010 by substituting for "sections 30 and 61 of the Guardianship and Administration Act 1986. Section 30" with "section 60 and Division 2 of Part 10 of the Guardianship and Administration Act 2014. Section 60"; and by substituting "section 61" with "Division 2 of Part 10" to reflect new Bill numbering and new Bill title.

34 Powers of Attorney Act 2014

Clause 34.1 amends section 3(1) definitions of administration order, guardianship order and Public Advocate in the Powers of Attorney Act 2014 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Clause 34.2 amends section 3(1) definition of personal matter, in paragraph (f) of the Examples in the Powers of Attorney Act 2014 by substituting "Part 4A of the Guardianship and Administration Act 1986" with "Part 9 of the Guardianship

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and Administration Act 2014". This amendment reflects new Part numbering and new Bill title.

Clause 34.3 amends section 3(1) definition of relative in the Powers of Attorney Act 2014 by substituting for paragraphs (c) and (d) with the following:

"(c) parent;

(ca) step-parent;

(d) sibling;

(da) step-sibling;".

This amendment allows for consistency in the definition of relative in the Bill and the Powers of Attorney Act 2014.

Clause 34.4 amends section 83(1) of the Powers of Attorney Act 2014 by inserting after "makes" the following "a guardianship order appointing a guardian with powers in relation to a financial matter or". This amendment reflect new terminology used in the Bill.

Clause 34.5 amends section 123(4)(e) of the Powers of Attorney Act 2014.

Paragraph (a) amends paragraphs (i), (iii) and (iv) of section 123(4)(e) of the Powers of Attorney Act 2014 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Paragraph (b) amends paragraph (ii) of section 123(4)(e) of the Powers of Attorney Act 2014 by substituting "section 35 of the Guardianship and Administration Act 1986" with "section 51 of the Guardianship and Administration Act 2014". This amendment reflect Bill numbering and the new Bill title.

35 Privacy and Data Protection Act 2014

Clause 35.1 amends section 28(6), in the definition of authorised representative paragraph (a)(iv) of the Privacy and Data Protection Act 2014 by substituting this sub-paragraph with "(iv) an administrator, guardian or a health decision maker (all within the meaning of the Guardianship and Administration Act 2014); or" to reflect new terminology used in the Bill and new Bill title.

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36 Professional Standards Act 2003

Clause 36.1 amends Schedule 2, in clause 5(1)(e) of the Professional Standards Act 2003 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

37 Property Law Act 1958

Clause 37.1 amends section 30(1) of the Property Law Act 1958 by substituting "Guardianship and Administration Act 1986"with "Guardianship and Administration Act 2014 or a guardian with powers in relation to a financial matter is appointed under that Act" to reflect new terminology used in the Bill and new Bill title.

Clause 37.2 amends section 30(1) Property Law Act 1958 by inserting "or guardian" after "the administrator".

Clause 37.3 amends sections 30(2) and 171(9) of the Property Law Act 1958 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

38 Public Health and Wellbeing Act 2008

Clause 38.1 amends section 138(3)(b) of the Public Health and Wellbeing Act 2008 by substituting "person responsible under the Guardianship and Administration Act 1986" with "health decision maker under the Guardianship and Administration Act 2014" to reflect new terminology used in the Bill and new Bill title.

39 Road Safety Act 1986

Clause 39.1 amends section 90I definition of authorised representative in the Road Safety Act 1986 by substituting paragraph (d) with the following "(d) an administrator, a guardian or a health decision maker (all within the meaning of the Guardianship and Administration Act 2014); or". This amendment reflects new terminology used in the Bill and new Bill title.

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40 Second-Hand Dealers and Pawnbrokers Act 1989

Clause 40.1 amends section 6(1)(a), 10(1)(a) and 18(1)(c) in the Second-Hand Dealers and Pawnbrokers Act 1989 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

41 Severe Substance Dependence Treatment Act 2010

Clause 41.1 amends section 4 of the Severe Substance Dependence Treatment Act 2010.

Paragraph (a) amends section 4 definition of guardian by substituting the definition with "guardian has the same meaning as in the Guardianship and Administration Act 2014" to reflect the new Bill title.

Paragraph (b) amends section 4 definition of Public Advocate by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Clause 41.2 amends section 6(2) of the Severe Substance Dependence Treatment Act 2010 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

42 Sex Work Act 1994

Clause 42.1 amends 37(1)(g), 47(1)(g), 47A(1)(c), 51(1)(g) and 53(1)(f) of the Sex Work Act 1994 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

43 State Trustees (State Owned Company) Act 1994

Clause 43.1 amends section 3 of the State Trustees (State Owned Company) Act 1994.

Paragraph (a) repeals the section 3 definition of protected person, as this terminology is not used in the Bill.

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Paragraph (b) amends the definition of represented person in section 3 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Clause 43.2 amends section 12(5) of the State Trustees (State Owned Company) Act 1994.

Paragraph (a) amends section 12(5) by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Paragraph (b) amends paragraph (d) of section 12(5) by substituting "Divisions 3 and 3A of Part 5" with "Divisions 3, 4, 5 and 6 of Part 6" to reflect new Division and Part numbering in the Bill.

Clause 43.3 amends section 13(1)(d) of the State Trustees (State Owned Company) Act 1994 by substituting "administrators' accounts under the Guardianship and Administration Act 1986" with "accounts of administrators or of guardians with powers in relation to a financial matter under the Guardianship and Administration Act 2014". This amendment reflects new terminology used in the Bill and the new Bill title.

Clause 43.4 amends section 14(2)(c)(i) of the State Trustees (State Owned Company) Act 1994 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Clause 43.5 repeals section 14(2)(c)(ii) of the State Trustees (State Owned Company) Act 1994, as the term protected person is not used in the Bill.

Clause 43.6 amends section 17 (1) and (2) of the State Trustees (State Owned Company) Act 1994 by omitting the words 'protected person' as this terminology is not used in the Bill.

Clause 43.7 amends section 19 of the State Trustees (State Owned Company) Act 1994.

Paragraph (a) amends section 19(a)(i) of the State Trustees (State Owned Company) Act 1994 by substituting this paragraph (i) with "(i) an order under the Guardianship and Administration Act 2014 appointing State Trustees as

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administrator of the estate of any person or as guardian with powers in relation to a financial matter is in force; or". This amendment reflects new terminology used in the Bill and the new Bill title. Section 19(a)(ii) is repealed, as the term protected person is not used in the Bill.

Paragraph (b) repeals section 19(b)(ii), as the term protected person is not used in the Bill.

44 Supported Residential Services (Private Proprietors) Act 2010

Clause 44.1 amends section 3(1) of the Supported Residential Services (Private Proprietors) Act 2010.

Paragraph (a) amends section 3(1) definition of definition of Public Advocate by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Paragraph (b) amends the definition of resident's administrator in section 3(1) of the Supported Residential Services (Private Proprietors) Act 2010 by inserting after "resident's" the following "guardian with powers relation to a financial matter appointed under the Guardianship and Administration Act 2014 or the resident's". This amendment reflects new terminology and new Bill title. .

Paragraph (c) amends the definition in paragraph (a)(i) of resident's guardian in section 3(1) of the Supported Residential Services (Private Proprietors) Act 2010 by substituting this paragraph with "(i) under the Guardianship and Administration Act 2014 with powers in relation to a personal matter; or". This amendment reflects new terminology and new Bill title.

Clause 44.2 amends section 35(1)(a)(ii), (b)(ii) and (2)(b) of the Supported Residential Services (Private Proprietors) Act 2010 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Clause 44.3 amends the note at the foot of section 45(1) of the Supported Residential Services (Private Proprietors) Act 2010 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

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45 Supreme Court Act 1986

Clause 45.1 amends section 51A(5) of the Supreme Court Act 1986 by substituting "VCAT within the meaning of the Guardianship and Administration Act 1986 and the Public Advocate appointed under that Act" with "VCAT and the Public Advocate appointed under the Guardianship and Administration Act 2014". This amendment reflects new terminology used in the Bill and the new Bill title.

Clause 45.2 amends section 51A(6) of the Supreme Court Act 1986 by substituting this subsection with the following:

"(6) An order of the Court under this section that money be paid out to an administrator has effect as if it were an administration order under the Guardianship and Administration Act 2014 and, subject to the order of the Court the administrator has all the powers and duties set out in Divisions 3, 4, 5 and 6 of Part 6 of that Act.".

This amendment reflects new Part and Division references in the Bill and new Bill title.

Clause 45.3 amends section 113(1) of the Supreme Court Act 1986 by substituting "section 66 of the Guardianship and Administration Act 1986"with "section 198 of the Guardianship and Administration Act 2014". This amendment reflects new section references in the Bill and new Bill title.

Clause 45.4 amends section 113B(1)(a) of the Supreme Court Act 1986 by substituting "under the Guardianship and Administration Act 1986" with "or a guardian with powers in relation to a financial matter under the Guardianship and Administration Act 2014". This amendment reflects new terminology used in the Bill and the new Bill title.

Clause 45.5 amends section 113B(2) of the Supreme Court Act 1986 by substituting this subsection with "(2) The Senior Master ceases to have the powers conferred by subsection (1) if another person is appointed under the Guardianship and Administration Act

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2014 as administrator of the estate of the person under disability or as guardian with powers in relation to a financial matter for that person." This amendment reflects new terminology used in the Bill and the new Bill title.

46 The Uniting Church in Australia Act 1977

Clause 46.1 amends section 15(1)(d) of The Uniting Church in Australia Act 1977 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

47 Trustee Act 1958

Clause 47.1 amends section 41(9)(a) of the Trustee Act 1958 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

48 Trustee Companies Act 1984

Clause 48.1 amends section 14(2) of the Trustee Companies Act 1984.

Paragraph (a) amends section 14(2) by substituting "as an administrator under the Guardianship and Administration Act 1986" with "under the Guardianship and Administration Act 2014 as an administrator or as a guardian with powers in relation to a financial matter". This amendment reflects new terminology used in the Bill and the new Bill title.

Paragraph (b) amends section 14(2) by substituting "administrator," with "administrator or guardian with powers in relation to a financial matter". This amendment reflects new terminology used in the Bill.

Clause 48.2 amends section 17(1)(c) of the Trustee Companies Act 1984 by substituting "an administrator appointed under the Guardianship and Administration Act 1986" with "an administrator or a guardian with powers in relation to a financial matter appointed under the Guardianship and Administration Act 2014". This amendment reflects new terminology used in the Bill and the new Bill title.

489 Unclaimed Money Act 2008

Clause 49.1 amends section 87(2)(c) and (3)(a)(iii) of the Unclaimed Money Act 2008 by substituting "Guardianship and

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Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

50 Victims of Crime Assistance Act 1996

Clause 50.1 amends section 3(1) definition of guardian by substituting the definition with "guardian, in relation to a victim or applicant (except in section 25(3) and (4)) does not include the Secretary within the meaning of the Children, Youth and Families Act 2005 or a guardian appointed under the Guardianship and Administration Act 2014". This amendment reflects the new Bill title.

Clause 50.2 amends section 25(4) of the Victims of Crime Assistance Act 1996 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Clause 50.3 amends section 70A(4) of the Victims of Crime Assistance Act 1996 by substituting "section 66 of the Guardianship and Administration Act 1986" with "section 198 of the Guardianship and Administration Act 2014" to reflect the Bill numbering and the new Bill title.

51 Victoria Police Act 2013

Clause 51.1 amends section 246 definition of personal representative paragraph (b) in the Victoria Police Act 2013 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

Clause 51.2 amends Schedule 1, in clauses 2(b) and 7(b) in the Victoria Police Act 2013 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

52 Victorian Inspectorate Act 2011

Clause 52.1 amends section 22(1)(g) of the Victorian Inspectorate Act 2011 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

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53 Wills Act 1997

Clause 53.1 amends section 29(d) of the Wills Act 1997 by substituting "Guardianship and Administration Act 1986" with "Guardianship and Administration Act 2014" to reflect the new Bill title.

54 Workplace Injury Rehabilitation and Compensation Act 2013

Clause 54.1 amends section 310(3)(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 by substituting this paragraph with the following:

"(a) if proceedings have not been commenced in respect of the worker's claim—

(i) an administrator appointed in respect of the worker under the Guardianship and Administration Act 2014; or (ii) a guardian with powers in relation to a financial matter appointed in respect of the worker under the Guardianship and Administration Act 2014; or".

This amendment reflects new terminology used in the Bill and the new Bill title.

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