SCWK90055 Chap.10 Guardianship, Capacity and Supported Decision Making
Guardianship, Capacity and Supported Decision Making
Guardianship law protects people with disability while trying not to take their decisions away. This chapter starts from the premise that every adult has the right to decide, traces Victorian guardianship law from deinstitutionalisation to the 2019 Act, and explains the two drivers of reform: an ageing population and the disability rights convention.
It distinguishes legal capacity from decision-making capacity and sets out the four abilities the 2019 Act uses, together with the presumption of capacity. It explains the decision-making continuum, supported decision making and substitute decision makers, and the Victorian roles of guardian, administrator, supportive guardian, supportive administrator and enduring and supportive attorneys.
It closes with the general principles of the Act, the bodies involved, VCAT, the Office of the Public Advocate and State Trustees, and the social work role in applications and reports. Throughout, the chapter asks the question the law now asks: how can this person be supported to decide for themselves before anyone considers deciding for them.
What this chapter covers
- 01
Legal capacity and decision-making capacity
- 02
The presumption of capacity and four abilities
- 03
The decision-making continuum
- 04
Supported and substitute decision making
- 05
Guardians, administrators and supportive roles
- 06
VCAT, the Public Advocate and social work
Worked example · free
Choosing the least restrictive arrangement
- 1Presume capacity and assess whether, with help, she can understand, retain, weigh and communicate decisions about money.
- 1Supported decision making with her niece as supporter keeps her in control of her own money.
- 1She could also appoint an enduring power of attorney now, to act only if capacity is later lost.
- 1A VCAT administrator is the most restrictive option and should be sought only if support cannot work.
Key terms
- Legal capacity
- Legal capacity is a person's standing to enter legal agreements, such as contracts or consent to treatment.
- Decision-making capacity
- Decision-making capacity is the ability to understand, retain, weigh and communicate a particular decision.
- Administrator
- An administrator is a person VCAT appoints to decide money matters for someone who cannot manage them.
- Enduring power of attorney
- An enduring power of attorney is a decision maker a person appoints in advance to act only if their capacity is later lost.
- Public Advocate
- The Public Advocate is the Victorian office that protects the rights of people with disability and can act as guardian of last resort.
Guardianship, Capacity and Supported Decision Making FAQ
What changed with the 2019 Guardianship and Administration Act?
It took effect on 1 March 2020, made supported decision-making principles inform all decisions, added supportive guardians and supportive administrators, and shifted the focus from a person's best interests to their will and preferences.
How is decision-making capacity assessed?
It is presumed unless a medical assessment suggests otherwise, and it is judged for the specific decision. A person has capacity if they can understand the relevant information, retain it, use or weigh it, and communicate the decision in any way.
Who can apply to VCAT for a guardian or administrator?
Any person, including a social worker, who is concerned that someone with a disability cannot make decisions that need to be made. VCAT relies on medical evidence of disability and capacity, and its decisions can be appealed to the Supreme Court.
Why did the disability rights convention matter for guardianship law?
Australia signed the CRPD, the United Nations disability rights convention, in 2008. It treats people with disability as holders of rights who can make their own decisions, pushing law reform towards supported rather than substitute decision making.
What is the difference between a guardian and an administrator?
A guardian makes personal and lifestyle decisions, such as where the person lives, which services they use and medical matters. An administrator makes financial decisions, such as paying debts or selling property. VCAT can appoint either, or both, and supportive versions of each.
Assessment move
Learn the four abilities of decision-making capacity and the presumption that goes with them; they are the test for every later step. Draw the decision-making continuum and place each Victorian role on it. Build a table of guardian, administrator, the supportive roles and the attorneys, with who appoints each and what each decides, and drill the difference between personal and financial decisions.
Memorise the three general principles of the 2019 Act. Then practise scenarios by starting with support and moving towards substitution only when you can justify it, which is the reasoning the module rewards.
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