Australia: New guardianship and administration legislation in Victoria

In brief - Changes impact meaning and assessment of decision-making capacity, and the appointment of a guardian or administrator

The Guardianship and Administration Act 2019 (new Act) has recently passed the Victorian state parliament. Below is an outline of the new Act and key changes.

Why new legislation?

The new Act aims to better protect the right of adults with a disability whose decision-making capacity might be impaired, to make and participate in decisions that affect their lives.

The new Act expressly states that its provisions and the powers, functions and duties that it creates are to be interpreted in a way to be least restrictive of the represented person's ability to make decisions.

A represented person is a person over whom a guardianship order or administration order has effect (represented person).

The new Act complements legislation such as the Mental Health Act 2014(Vic), the Powers of Attorney Act 2014 (Vic), and the Medical Treatment Planning and Decisions Act 2016 (Vic).

What are the important changes to the Guardianship and Administration Act?

The new Act repeals the prior legislation governing this area, being the Guardianship and Administration Act 1986 (old Act). The new Act covers issues such as:

  • the meaning of decision-making capacity and how it is to be assessed. The change can be summarised as moving from "substituted" decision-making to "supported" decision-making; and
  • the appointment by Victorian Civil and Administrative Tribunal (VCAT) of a guardian or an administrator for a person with a disability who does not have decision-making capacity, subject to appropriate limitations and safeguards, particularly in relation to decisions about the represented person's estate.

An administrator is defined in Part 3, Division 6 of the Act as the person to oversee particular financial matters in an administration order (administrator) in respect of a proposed represented person.

Powers and duties of an administrator for an adult with disability

Under section 30 of the new Act, administrators are appointed by VCAT when, because of the represented person's disability, that person does not have decision-making capacity in relation to a particular financial matter.

Financial matters include any financial or property affairs, and any legal matter. One of the primary functions of an administrator is to be responsible for the general care and management of the represented person's estate.

The emphasis on the decision-making role of the represented person means in this context that the administrator must:

  • always act in the best interests of the represented person
  • when making decisions:
    • encourage and assist the represented person to become capable of managing their estate
    • consult with the represented person, take into account the represented person's wishes and give effect to those wishes, wherever possible
  • avoid any transaction that may present a conflict, or even a perception of a conflict, between the administrator's interests and the interests of the represented person
  • ensure that the represented person's investments, if any, are reviewed periodically, at least once a year, to ensure they continue to be appropriate for the circumstances.

As it was under the old Act, an administrator can make decisions on behalf of the represented person without the approval of VCAT.

Approval is generally only needed when there is uncertainty surrounding a major decision to be made.

Transitional provisions

Orders made under the old Act will continue to remain in force unless revoked or set aside by a court or VCAT. The provisions of the old Act will continue to apply and the powers and duties of guardians or administrators will continue to be dictated by the old Act.

However, some provisions of the new Act will apply, such as the provisions regarding resolution of disagreements, enforcement orders and offences.

If an order is required to be reassessed, it will be reassessed under the new Act.

What should individuals and organisations do?

Individuals and organisations that are involved with guardianship and administration matters or represented persons should take the following steps:

  1. Review advice on the feasibility of guardianship and administration orders for individuals with decision-making impairments, particularly in light of the new provision regarding supportive guardianship and administration orders and tailored orders.
  2. Be aware of the new offences under the new Act. Officers should understand their obligations for the actions of the body corporate and their potential liability.
  3. Do not mix finances of a represented person with your own individual or an organisation's finances and carefully record financial transactions.
  4. Family members of people who are showing signs of diminished capacity should consider having an Enduring Power of Attorney put in place - noting the new definition of capacity and more flexible options to assist individuals with diminished capacity.

Elizabeth Flatley Maryanne Pollifrone Andrew Komesaroff
Wills, estates and succession planning
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions