Guardianship and Administration Board

Full description

Establishment/Legislation

The Guardianship and Administration Board Act 1986 was passed in response to the Report of the Minister's Committee on Rights and Protective Legislation for Intellectually Handicapped Persons, commonly known as the Cock's Committee Report. The report was originally commissioned by the Minister for Health (the Hon W A Borthwick) in December 1980. Terms of reference were expanded to include other disabilities in September 1982. The final report was submitted to the Minister of Health (the Hon T Roper) in December 1982.

The Act was proclaimed in a number stages. In July 1986 the Public Advocate was appointed under Schedule 3 of the Act. In April 1987, the President of the Board was appointed and operational provisions relating to the Office of the Public Advocate were proclaimed. The operational provisions relating to the Board were proclaimed on 14 July 1987. The Board commenced hearings on the same day.

Function

The Guardianship and Administration Board was a tribunal which was established by the Guardianship and Administration Act to legally protect the personal and financial affairs of adult disabled persons including matters relating to medical and financial powers of attorney. `Disability' is defined under Section 3 of the Act as including intellectual impairment, mental illness, brain damage, physical disability and senility.

Specific functions of the Board are:

The appointment of guardians to make personal or lifestyle decisions on matters such as accommodation or health care. Guardians appointed were usually either a friend or relative of the disabled person, or in instances where no such person was available or suitable, the Public Advocate.

An exception to the above is that guardians could give approval for certain major medical procedures without Board approval. Procedures identified are sterilisation, pregnancy termination and donation of non-regenerative tissue.

This function effectively commenced with the establishment of the Board.

The appointment of administrators to oversee the management of the financial affairs of disabled persons. Administrators appointed could be friends or relatives of the disabled person, accountants, solicitors, trustee companies or the State Trustee.

In this area the Board discharged a function originally performed by VA 2624 Master in Equity, Supreme Court. The Master, as Master in Lunacy, controlled and supervised the administration of the estates of persons found to be lunatic by inquisition, (their estates being administered by individuals known as `committees' who were appointed by the Court following an inquiry by the Master) and the supervision of the estates of persons incapable of managing their own affairs.

Responsibility for the supervision of the estates of persons incapable of managing their own affairs and patients in mental hospitals passed to VA 719 Office of the Public Trustee in 1940. This agency lost its monopoly in this responsibility with the establishment of the Board and the appointment of alternative administrators.

Revoking financial enduring powers of attorney. Under Section 118 of the Instruments Act 1958 the Board could revoke these powers if it was alleged that it was not in the best interests of the disabled person for the power to continue. (A financial enduring power of attorney was a legal instrument that allowed competent adults to appoint another to manage their financial affairs in the event of incapacity).

The power was previously exercised by the Supreme Court.

Granting medical enduring powers of attorney. Under an amendment to the Medical Treatment Act 1988 (Medical Treatment (Enduring Powers of Attorney) Act 1990), competent adults could personally appoint substitute decision-makers to make decisions concerning medical treatment if they subsequently lost the capacity to make such decisions for themselves.

This function commenced with the proclamation of the Medical Treatment Act in August 1990.

The Board's jurisdiction relates to the affairs of adults (ie person 18 years and above) only. An exception relates to a number of children who had funds administered by the Courts. In these cases the Courts have used Sect. 52 of the State Trust Corporation of Victoria Act 1987 to transfer responsibilities to the State Trustee via a Board order. This had the effect of bringing these persons under the Board's jurisdiction.

The Board's jurisdiction did not extend to legal affairs of able-bodied persons or disabled children. Such affairs were controlled by either the children's parents or the Family Court of Australia, the Supreme Court, the County Court or the Children's Court.

Appeals against Board decisions could be made to the Administrative Appeals Tribunal.

Composition of the Board

The Board was constituted under Section 5 of the Act by:

a President (a qualified legal practitioner) and
other members necessary to ensure the proper functioning of the Board.

Section 6 provides for the appointment of an executive officer and other employees.

All proceedings of the Board were conducted in public hearings.

Office of the Public Advocate

The Guardianship and Administration Board Act also created the Office of the Public Advocate. Its role was to advocate, promote and support the rights and interests of disabled persons. It frequently represented persons in Board hearings.

Despite the interrelated role and a shared location with the Board, the Office of the Public Advocate was a separately constituted, administered and staffed agency.

Establishment of VCAT and the abolition of the Guardianship and Administration Board

The Victorian Civil and Administration Tribunal was established under the Victorian Civil and Administrative Tribunal Act 1998. It was created as a part of a package of reforms to improve the operation of the justice system in Victoria by amalgamating a number of tribunals.

The Guardianship and Administration Board was abolished under section 117 of the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998. VCAT subsequently assumed the jurisdiction that was exercised by the Guardianship and Administration Board.

Location of Records

See below for records of the Guardianship and Administration Board.

For records of the Master in Equity see section 3.4.10 of the List of Holdings 2nd edition 1985. For records of the Public Trustee see section 3.4.9.