Public trustees and public guardians in Victoria

What are public trustees and public guardians?

Public trustees and public guardians are independent statutory authorities who provide services that help people – particularly vulnerable people – to manage their personal affairs. Every state and territory in Australia has a public guardian and a public trustee, although they may have different titles. They are independent statutory officers created under state government legislation, and the organisations they run are state government agencies.

What is a public trustee? It’s an organisation that protects people’s financial interests by providing services like assisting them with making wills and powers of attorney. Generally, a public trustee can be appointed to look after financial and property decision-making for someone who has lost their capacity to make those decisions themselves.
What is a public guardian? This term often refers to both the office and the official, who support people with impaired decision-making capacity and help to protect their interests. If the official is appointed as guardian for someone who has lost capacity, their team members manage the person’s personal, lifestyle and/or health decisions for them. They may also be able to investigate allegations of abuse or neglect of older people who have lost decision-making capacity.

In Victoria, the public trustee is the State Trustees, and the public guardian is the Office of the Public Advocate. They are two separate agencies (in some Australian states and territories, the public trustee and public guardian are combined into one organisation).

Different kinds of guardianship appointments

There are two types of guardianship appointments that can assist older people:

One you make yourself. You can appoint your own choice of future decision-maker(s) under a formal document like an Enduring Power of Attorney or Advance Care Plan. This can only be done while you still have decision-making capacity.
One made for you. If you lose capacity and have not formally appointed your own future decision-makers, someone can be appointed for you by an authorised and specialist organisation, such as an administrative tribunal.

This article talks about guardians who are appointed for you if you need one but haven’t appointed one yourself.

To find out more about appointing your own substitute decision-makers while you still have capacity, see our Powers of Attorney section.

What is a guardian?

A guardian is a substitute decision-maker: someone authorised to make decisions for another person who is unable to decide for themselves. Guardians are authorised by law to make some or all decisions on the person’s behalf, and they should always act in the person’s best interests.

Often, someone who knows the person well becomes their guardian – a family member, for example – but sometimes a public office, like the Office of the Public Advocate, is appointed.

More about guardians

Guardianships can cover different types of decisions and have different names.
In Victoria, a ‘guardian’ is a decision-maker appointed for personal, lifestyle, health and medical matters. A decision-maker appointed for financial decisions is called an ‘administrator’.
Victoria also has ‘supportive guardians’ and ‘supportive administrators’. Their job is to help you make any decisions that you are able to make, rather than make decisions for you. Read more about this below in How are guardians appointed in Victoria?
In this article, ‘guardian’ is sometimes used to refer to any kind of appointed decision-maker.
You can read more about guardianships in our Introduction to guardianships in Australia section.

How are guardians appointed?

If you start to have difficulty making decisions, there may be someone – like a close family member or friend – who can step in and help you manage things. When they make decisions for you without any kind of formal appointment, it’s called ‘informal decision-making’. As long as this arrangement is working well, there may be no need for a formal guardianship.

If there is no informal decision-maker, or the informal arrangement isn’t working well, someone involved in your life can ask to have a guardian formally appointed for you. They do this by applying to the state’s administrative tribunal. Two or more guardians can be appointed, and they must all agree (act ‘jointly’) when making a decision.

Another possible type of guardianship appointment in Victoria is a ‘supportive’ guardian or administrator. This is a formal role that helps you make your own decisions, instead of making them for you, which is sometimes called ‘supported decision-making’.

What does ‘supported decision-making’ mean?

Supported decision-making means that your helper empowers you to make your own decisions whenever you can by providing you with whatever you need to do so. For example, your supportive guardian could:

explain information, so you are able to make the decision
get you a translator, so you can understand information thoroughly
go with you to the doctor to write down what they say, so you can remember it later and decide what to do.

You can find out more about this in our article, Supported decision-making

The role of the Victorian Civil and Administrative Tribunal (VCAT)

An administrative tribunal is like a court that decides minor disputes and administrative matters. It operates under state legislation, and the decisions it makes are called ‘orders’. The Victorian Civil and Administrative Tribunal (often called VCAT) operates under the Victorian Civil and Administrative Act 1998 (Vic) and other legislation. One of the administrative matters it can decide is guardianships.

The role of the Victorian Civil and Administrative Tribunal in guardianships is to consider applications to have a guardian appointed for you if you can’t make decisions for yourself. Someone who is concerned about you can apply to the Human Rights Division, either to be formally appointed as your guardian themselves or to have someone else appointed. They can also apply to be appointed, or have someone else appointed, as your supportive guardian. A guardian must have legal capacity and be aged 18 or over to be appointed.

The tribunal will hold a hearing to determine whether there is a genuine need for a guardian to be appointed, consider who could be appointed, and decide how the guardianship would work best. They will also consider whether a supportive guardianship is a more appropriate option.

They will keep your best interests in mind when considering the application and try to decide an outcome that’s focused on protecting or fulfilling your needs. They will think about what’s important to you, what your family or carers think should happen, and what all the options are.

Usually, the tribunal will first try to find an individual person who knows you well and would be an appropriate guardian, such as a family member, friend or carer. A trustee company may also be considered.

Information for guardians

The Victorian Civil and Administrative Tribunal holds information sessions to help guardians and administrators understand their role. The sessions are held in Melbourne. Dates and other details are updated on the tribunal’s Events webpage.

Sometimes, it’s not possible for the Victorian Civil and Administrative Tribunal to appoint an individual person as your guardian or administrator. They may be unable to find an available, suitable and willing individual person, or there may be a dispute between your family, friends or carers over who your guardian should be.

If there’s no other way to protect your rights and look after your decision-making, the tribunal may appoint a public office such as the Office of the Public Advocate to be your ‘guardian’ (for personal, lifestyle, health or medical decisions) or ‘administrator’ (for decisions about your finances). However, the Victorian Civil and Administrative Tribunal won’t appoint the Public Advocate, State Trustees or any similar public office as a supportive guardian.

The tribunal can also receive and consider requests for reviews of guardianship orders in Victoria.

The role of the State Trustees

The State Trustees help vulnerable people with the management of their financial affairs. In a guardianship matter, they may be appointed by VCAT as your administrator. A State Trustees financial consultant will be assigned to you to help look after your financial decisions. For information about the fees that apply for their service, download the Fees and Charges Guide (PDF, 387 KB).

The role of the State Trustees is to help ensure that any financial decisions made for you promote your independence, quality of life and existing relationships. They will try to keep your best interests in mind and consider your preferences and wishes, as far as they can determine what those are.

As much as possible, your consultant will work with you in making your decisions. If it’s appropriate, they will also talk to your family, friends and carers to get their views on how your decisions should be made.

The role of the Office of the Public Advocate

In Victoria, the role of the Office of the Public Advocate is to promote and protect the rights and interests of people with disabilities, including impaired decision-making capacity. When appointed by VCAT, they will act as guardian for someone who can’t make their own decisions.

Like the State Trustees, the Office of the Public Advocate will try to make decisions that are in your best interests and that respect your preferences and wishes. They will work with you and, if appropriate, your family and carers in making your decisions.

The office also offers information and advice about being a guardian or supportive guardian.

What matters can a guardian decide?

Victoria guardianships are now covered by the Guardianship and Administration Act 2019 (Vic), which sets out the matters that guardians may manage for you.

In Victorian guardianships, financial matters are considered separately from health care, lifestyle and medical decisions. A person appointed for decisions about financial matters is called an ‘administrator’. A person appointed for health care, lifestyle and medical decisions is called a ‘guardian’.

If the State Trustees or Office of the Public Advocate is appointed to help you, they will need to get some information about you and what’s happening in your life, what decisions need to be made, and what your options are. They will talk to you and to your family and carers to gather the information and find out what everyone thinks would be best for you. The information will be kept private.

If you (or someone else) disagree with a particular decision the Office of the Public Advocate makes about your affairs, you can ask for a Statement of Reasons. This statement will show you what the Public Advocate guardian considered when they made the decision. If you still disagree after reading the statement, you can ask for the decision to be reviewed. For more information, download the relevant Guideline leaflet from the Public Advocate’s website.

Financial and property decisions

Examples of financial decisions the State Trustees, as your administrator, can make include:

protecting your assets
paying and budgeting for your bills
managing any debts you may have
ensuring you receive all the income you should be, such as Centrelink claims and lost superannuation.

For details of how the State Trustees acts as your administrator and what they can do to help you, visit their How will State Trustees help me as my administrator? webpage.

Personal and lifestyle decisions

Examples of personal and lifestyle decisions the Office of the Public Advocate, as your guardian, can make include:

where you live, and with whom
what services you need and get
who can and can’t have contact with you
whether or not you work or study.

Health and medical decisions

Examples of health and medical decisions the Office of the Public Advocate, as your guardian, can make include:

whether to consent to medical treatments, and which ones
what dental treatment you receive
when to advocate for your care, services and treatment.

You might like to download the Public Advocate’s booklet, Guardianship guide (PDF, 497 KB), for more information.

What are a guardian’s responsibilities?

Victorian law requires your guardian to act in ways that are in your best interest and to consider and respect your preferences. Both the Office of the Public Advocate and the State Trustees will do everything possible to act according to this requirement. To be able to do this, they will need to gather information about you, your preferences and options, and the decisions that need to be made. The information they gather will be kept private.

The State Trustees and Public Advocate will both keep records of the transactions and decisions they make for you. A private guardian should do the same.

Most importantly, guardians can only decide matters they are authorised to decide. Administrators can’t make decisions about your lifestyle or medical options, and guardians can’t make financial decisions. The Office of the Public Advocate can’t make financial decisions for you, and the State Trustees can’t make lifestyle or health decisions for you.

Information for guardians

Guardians can find out more about their role and responsibilities on our Being a guardian webpage.

Ending or changing a guardianship appointment

Guardianship and supportive guardianship appointments made by the Victorian Civil and Administrative Tribunal usually last for one year. Administration orders and supportive administration orders are generally made for 3 years. The tribunal will usually reassess an order that isn’t self-revoking within 3 years to see if it’s still needed.

People involved with you may also request a reassessment of a guardianship order before the review date. This may happen if your circumstances or conditions change or if there is concern that your appointed guardian isn’t acting in your best interests.

At the review hearing, the tribunal may decide to either: