If you have been appointed as an administrator or guardian for another person by VCAT you may be aware that the person’s “will and preference” should guide all decisions the administrator or guardian makes for them. But what does that mean? And how do you determine what a person’s will and preference is?
Why is an administrator or guardian appointed?
VCAT’s Guardianship List appoints an administrator and/or guardian for people whose disability means they don’t have decision-making capacity to manage their own affairs (sometimes described as a ‘represented person’). An administrator makes financial decision, while a guardian makes personal decisions, such as where a person lives and what services they receive.
The appointment is usually required because the represented person doesn’t have a valid power of attorney, or because their attorney can no longer act in the role or has been removed from it following a dispute within their family that makes the VCAT appointment desirable.
‘Best interests’ Vs ‘will and preference’
Previously, administrators and guardians were required to make decisions in the represented person’s “best interests”, but with the introduction of the Guardianship and Administration Act 2019 (Vic), when making decisions for a represented person, administrators and guardians must now “give all practicable and appropriate effect to the represented person’s will and preferences, if known.”
This change occurred following Australia becoming a signatory to the United Nations Convention on the Rights of Persons with Disabilities (‘UNCRPD’) in 2008. The best interest’s approach to an administrators or guardians decision making would often result in decisions being made based off professional judgment without considering the represented person’s views and wishes and deprived them of the opportunity to participate in decisions that effected their life.
What does ‘will and preference’ mean?
There is no definition of will and preferences in the Guardianship and Administration Act 2019 (Vic), or in the UNCRPD. It appears that the view within the Guardianship List at VCAT is that a person’s “will and preference” is what is important to a represented person.
During proceedings in VCAT, the Guardianship List will ask a represented person to complete a will and preference checklist, which asks them about what is important to them in respect of their relationships, daily living, their finances and medical treatment. This indicates that VCAT views the represented person’s “will” to extend beyond what they say their preferences are currently, and delves into what they truly value in their lives, their beliefs and the underlying direction they want to pursue in life.
The Supreme Court of Victoria has considered the meaning of the term(1) and said that:
- an administrator or guardian must assist a represented person to express their will and preferences, that so as far as practicable, it is a represented person’s wishes that direct decisions made for them;
- if it is not possible to determine a represented person’s will and preferences, the administrator or guardian must give effect to, as far as practicable, what they believe a represented person’s will and preferences would be, which may include consulting with the represented person’s friends, family and carers;
- If it is not possible to determine the represented person’s will and preference at all, the administrator or guardian should act in a way that promotes the represented person’s “personal and social wellbeing”.
Good in theory, difficult in practice
The change from the “best interest” outcome-based approach to a subjective approach, which focuses on a represented person’s autonomy sounds good in theory but can be difficult in practice. Making decisions based on a represented person’s will and preferences is less straightforward for several reasons:
- A represented person’s “will” may not align with their current preferences;
- There may be an inability for a administrators or guardian to understand a represented person’s will and preferences where they have lost decision making capacity, or it may be difficult for the represented person to express it;
- A represented person may have different will and preferences now to what they did before they lost decision-making capacity (as this New York Times story aptly demonstrates); or their stated wishes may change from day to day.
- In cases of family conflict, different people are likely to have different views (sometimes diametrically opposed) about what the represented person’s wishes are and decision making might be highly contested;
- It can be difficult to strike the right balance between a represented person’s will and preferences directing decision making as far as possible, and protecting a person from the risk of serious harm. At what point does a detrimental wish become one that risks serious harm?
- A represented person’s stated will and preference may not be an informed wish because they cannot retain information sufficiently to be able to evaluate it and make a reasoned choice.
In practice, this is a matter of assessment and judgement, placing the administrator or guardian in the position of needing to be able to defend the process by which they arrived at a decision and the decision itself, sometimes to family members who are in dispute, or to the VCAT.
Seeking advice from VCAT
Fortunately, administrators and guardians are able to seek advice from VCAT about any matter within the scope of their appointment, including where they are unsure of what decision to make. The application to VCAT is often heard confidentially between the administrator or guardian and Tribunal and can result in VCAT approving/disapproving a decision and giving advice as it considers appropriate.
There are also resources available that can help administrators and guardians navigate the will and preference minefield such as:
• This LaTrobe University’s online learning resource helps guide people through the process of supporting people with cognitive disability make decisions after evaluating their options and wishes; and
• The Office of the Public Advocate and State Trustees offer guides for Administrators and Guardians that outlines the steps they should follow to support a represented person make a decision or make one for them when this is not possible.
How we can help
Moores’ Elder Financial Abuse team specialises in advising administrator’s and attorneys on their responsibilities and appear regularly before VCAT’s Guardianship list.
If you have been appointed as an administrator or guardian we can help you navigate the underlying principles to making decisions on behalf of your represented person and other issues that arise in your role.
Contact us
Please contact us for more detailed and tailored help.
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(1) Andrews & Anor v Andrews & Anor [2020] VSC 31 (11 February 2020)