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Moores’ Michael Labiris, Senior Lawyer; Jessica Latimer, Special Counsel; and Law Graduate Rena Ou Yang discuss the Guardianship and Administration Bill 2018 (Vic.) which creates new offences for guardians or administrators who dishonestly use their powers to obtain a financial advantage. The Bill aims to bring guardianship and administration matters into line with changing legislation and more contemporary views on disability, they write.
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Jessica will present on the topic, Financial Elder Abuse: Legal Liability and the Recovery of Assets, at the Elder Abuse Legal Symposium on Wednesday, 13 March. Moores lawyers will also present on a range of related topics at these conferences: Wills and Estates Colloquium on Tuesday, 19 March; and Family Law: Evidence and Advocacy Fundamentals on Thursday, 28 March.
New Guardianship and Administration Legislation
The Guardianship and Administration Bill 2018 (“the Bill”) was introduced on 19 December 2018 and is currently before the Legislative Assembly for debate. It is expected to be passed in its current form in due course, and come into effect on 1 March 2020, unless proclaimed earlier.
This is the first in a series of articles that will provide an explanation of the new legislation. Here, we provide an outline of the Bill and key changes.
Why new legislation?
The Bill was introduced to bring guardianship and administration matters in line with changing legislation and more contemporary views on disability having regard to the United Nations Convention on the Rights of Persons with Disabilities among other things.
The Bill now expressly acknowledges the gradations of impairment and disability, as opposed to a binary view on capacity. This brings it in to line with other recent legislation such as the Mental Health Act 2014 (Vic), the Powers of Attorney Act 2014 (Vic) (POA Act), and the Medical Treatment Planning and Decisions Act 2016 (Vic) (MT Act).
What are the key changes?
Criminal offences:
The Bill creates new offences for guardians or administrators who dishonestly use their powers to obtain a financial advantage, with penalties of up to 5 years imprisonment or 600 penalty units. The same offence exists for officers of body corporates.
While a represented person is and remains entitled at common law to claim compensation for an administrator’s dishonest use of powers (or oversight), incorporating new criminal offences is welcome. The next article in this series will address this in more detail.
The offence provisions are in response to the Victorian Law Reform Commission’s concerns of rising rates of elder financial abuse. These concerns have also led to the creation of a new Elder Financial Abuse and Elder Law practice at Moores, led by Jessica Latimer.
Changes to VCAT’s powers and procedures:
While VCAT has retained its powers in relation to making guardianship and administration orders, there will be significant changes under the new legislation.
This includes the ability for VCAT to make more flexible and tailored orders, in order to promote the person’s personal and social wellbeing. The Act provides that a person’s personal and social wellbeing is promoted by:
- recognising the inherent dignity of the person; and
- respecting the person’s individuality; and
- having regard to the person’s existing supportive relationships, religion, values and cultural and linguistic environment; and
- respecting the confidentiality of confidential information relating to the person.
The act also includes a new definition of decision making capacity consistent with the POA Act and MT Act, where capacity is presumed unless there is evidence to the contrary.
The third article in this series will address VCAT’s powers and procedures in greater detail.
Supported decision-making:
Supported decision-making is an emerging concept that is also in the POA Act and MT Act. It recognises that individuals may have decision making capacity if they are given additional support. The Bill allows VCAT to appoint a supportive guardian or administrator (with consent of the represented person), who will be authorised to do things such as collecting information, communicating information and giving effect to decisions.
The fourth article in this series will look at supported decision making.
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 Bill, if passed, 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 next?
Individuals and organisations that are involved with guardianship and administration matters or represented persons should take the following steps.
1. Organisations should review their advice on the feasibility of guardianship and administration orders for individuals with decision making impairments, particularly in light of new provision regarding supportive guardianship and administration orders and tailored orders.
2. Organisations should be aware of the new offences under the Bill and officers should understand their obligations for the actions of the body corporate and their potential liability.
3. Individuals currently appointed under guardianship and administration orders should be aware of the new offences and ensure that they are carefully recording financial transactions and not mixing finances with their own.
4. Individual family members of people who are showing signs of diminished capacity, and don’t have existing powers of attorney, should consider the new definition of capacity and more flexible options now available to assist them.
Please contact the authors of this article if you have any queries about this article or area of law.
Senior Lawyer Michael Labiris is an Accredited Specialist in Wills & Estates and Senior Lawyer at Moores. He is passionate about helping clients resolve disputes quickly and cost-effectively, working across a wide range of contested estate and family trust matters. He also practices extensively in estate planning, structuring and probate. Michael’s knack of finding creative solutions, his ability to deal with complexity and his sensitive yet pragmatic approach endear Michael to his clients. Michael is outcome focused and quietly celebrates the advancement of his client’s interests with a tap of his golf cap…or a dance move on the Karaoke stage when he scores a big win in a litigious matter. Contact Michael at mlabiris@moores.com.au or connect via LinkedIn
Special Counsel Jessica Latimer Jessica has significant litigation experience across a range of complex commercial and general disputes. No matter the type of matter her clients are involved with, Jessica is valued for her direct and pragmatic style. Her depth of experience and strategic approach ensures her clients understand the litigation process and achieve positive outcomes. Jessica now leads the elder abuse practice at Moores and focuses on recovering financial losses suffered by older clients. Jessica advises broadly on elder law matters including aged care and retirement village contracts. She also acts in professional negligence claims against financial advisors, lawyers, stockbrokers and other professionals. Jessica regularly presents to professional advisors and at conferences. She is also a member of the Law Institute of Victoria Elder Law Committee. Contact Jessica at jlatimer@moores.com.au or connect via LinkedIn
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Legal Graduate Rena Ou Yang is gaining experience across a range of practice areas including commercial, workplace, property and estates. Beyond the law, she is continuing in her role as co-founder and executive member at Empowered Together, a non-profit that runs workshops in secondary schools on consent. Contact Rena at ROuYang@moores.com.au or connect via LinkedIn
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