Guardianship and Administration Act 2019 Victoria: When VCAT Appoints a Guardian

What the 2019 Act Changed

The Guardianship and Administration Act 2019 (Vic) replaced the older 1986 Act, modernising how Victoria handles substitute decision-making through the tribunal system. The Act governs what happens when someone loses decision-making capacity and there's no valid enduring power of attorney (EPA) in place — or when an existing EPA has broken down.

Under the 2019 Act, the Victorian Civil and Administrative Tribunal (VCAT) can:

• Appoint a guardian to make personal and lifestyle decisions (where the person lives, what services they access, daily care arrangements)
• Appoint an administrator to manage financial and legal affairs (bank accounts, property, investments, bill payments)
• Review, vary, or revoke existing powers of attorney if there's evidence of misuse

The Act emphasises the principle that VCAT orders should be the option of last resort. The tribunal must be satisfied that the person genuinely lacks capacity, that there's no less restrictive alternative (like a supportive attorney appointment), and that making the order is in the person's best interests.

When VCAT Gets Involved

VCAT typically becomes involved in three scenarios:

1. No EPA exists and capacity is lost. This is the most common trigger. A parent suffers a stroke or dementia progresses to the point where they can no longer manage their own affairs, and no one has legal authority to step in. Without an EPA, there's no mechanism for a family member to access bank accounts, sign aged care agreements, or make personal care decisions — unless VCAT appoints them.

2. An EPA exists but has failed. Joint attorneys who can't agree create a deadlock. A sole attorney has died, resigned, or lost their own capacity, and no alternative was named. The EPA was improperly executed and is legally void. In any of these cases, VCAT may need to step in to appoint a guardian or administrator.

3. An EPA is being misused. If there's evidence that an attorney is acting against the principal's interests — financial exploitation, neglect, conflict transactions — any person with a "special interest" (family members, the Public Advocate) can apply to VCAT to review and potentially revoke the EPA.

The VCAT Application Process

Applying for a guardianship or administration order involves:

Filing the application. Applications are made to VCAT's Human Rights Division, specifically the Guardianship List. The application forms are available from VCAT's website. VCAT filing fees for guardianship matters are typically modest (often waived or around $65), but the real costs come from supporting documentation and professional reports.

Medical evidence. VCAT requires a comprehensive medical report from the last three months, completed on a specific VCAT template, confirming that the person lacks decision-making capacity. This report must be from a registered medical practitioner who has examined the person recently.

The hearing. VCAT conducts a hearing (often via the GHub video platform) where the proposed guardian or administrator presents their case. The person who is the subject of the application has the right to attend, and VCAT will consider their wishes. Family members, the Public Advocate, and other interested parties can participate.

The order. If VCAT is satisfied, it makes the order — appointing the guardian, administrator, or both. The order specifies exactly what powers are granted and for how long.

How Long Orders Last

VCAT orders aren't permanent:

• Guardianship orders are reviewed every 3 years
• Administration orders are reviewed every 1 year

At each review, VCAT reassesses whether the order is still needed and whether the appointed person is fulfilling their duties. If the annual financial statements and welfare reports aren't provided, the order may be revoked, varied, or reassigned.

The Real Cost: State Trustees

Here's where the financial impact becomes significant. If VCAT can't identify a suitable family member or friend to act as administrator, it appoints State Trustees — Victoria's government-owned professional trustee corporation.

State Trustees charges:

• Hourly rates between $216 and $363 for active file management
• Capital commissions of up to 5.5% on the value of real property and other capital assets
• Ongoing administration fees calculated against the person's fortnightly income — if income exceeds approximately $930 per fortnight, annual fees apply

For an older person with a family home worth $800,000 and a modest pension, the capital commission alone could reach $44,000. Add ongoing administration fees over several years of care, and the total cost can substantially erode the estate.

The Victorian Ombudsman has also investigated State Trustees for delays in releasing client funds and managing property transactions — so the cost comes with a track record of service complaints.

How an EPA Avoids All of This

Every VCAT application described above — the hearing, the medical reports, the annual reviews, the potential State Trustees appointment — is avoidable if a valid EPA is in place before capacity is lost.

With a properly executed EPA:

• The family chooses who manages financial and personal affairs (not the tribunal)
• There are no VCAT filing fees, hearing delays, or annual reviews
• State Trustees and their fee structure are entirely bypassed
• The transition from capacity to incapacity happens smoothly, based on documents the principal prepared while they could still direct the process

The window for executing an EPA closes permanently when the principal loses decision-making capacity. After that point, the only path is VCAT.

Our Victoria Power of Attorney Kit covers the full EPA setup — financial and personal powers, MTDM appointment, witnessing protocols — designed specifically to keep families out of the VCAT guardianship system.

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