Young people with a cognitive disability who may require a guardian or administrator upon leaving care - advice

Some young people with a cognitive impairment may require an appointed guardian or administrator to assist with decision making after they turn 18. This advice provides guidance about supporting young people with a cognitive disability who may require a guardian or administrator after they turn 18. 

See procedure Young people with a cognitive disability who may require a guardian or administrator upon leaving care for tasks that must be undertaken to fulfil child protection’s responsibilities under the Memorandum of Understanding (MOU) between the Secretary to the Department of Health and Human Services, the Public Advocate, VACCA and BDAC.

Document ID 2432, version 1, 17 March 2020.

Introduction

Many people with a cognitive disability can independently make decisions that promote their personal and social wellbeing. However, some young people with a cognitive disability will require support as an adult to make informed decisions.

What is a cognitive disability?

A cognitive disability can include:

  • intellectual disability
  • acquired brain injury
  • dementia
  • autism
  • severe and enduring mental illness

What is a guardian?

A guardian is a person who is appointed under a Guardianship Order to make decisions in relation to one or more specified personal matters on behalf of a person with a cognitive disability.

As part of the young person’s 15+ Care and Transition Plan, consider the following to determine whether a young person may require a guardian after they turn 18:

  • does the young person have the capacity to make reasoned decisions now and in the future that will keep them safe and protected from exploitation, including decisions such as:
    • where and how they will reside;
    • with whom they live and/or associate;  
    • services they may need to access;
    • access to medical treatment;
    • undertaking employment opportunities
  • is there sufficient evidence available to indicate that the young person lacks the capacity to make decisions that promote their personal and social wellbeing?
  • what are the views of other professionals about the young person’s capacity to make decisions?

Responsibilities of a guardian

A guardian may be a friend or relative of the person with a disability. If there is no suitable person, the Victorian Civil Administrative Tribunal (VCAT) can appoint the Public Advocate as a guardian.

A guardian must:

  • act as an advocate for the represented person
  • promote the personal and social wellbeing of the represented person
  • give all practicable and appropriate effect to the represented person’s will and preferences if known
  • encourage the represented person, as far as possible, to make decisions and act for themselves
  • protect the person from neglect, abuse or exploitation.

Guardians are not responsible for:

  • undertaking referrals to services - a guardian can provide support for referrals to services by speaking to providers on behalf of the young person or writing letters of support.
  • locating and securing disability accommodation - a guardian can help support a young person consider accommodation options put forward to them and help communicate their views to relevant case managers or support workers.

What is an administrator?

An administrator is a person appointed under an Administration Order who manages financial and legal affairs on behalf of a person with a cognitive disability.

Where a young person with a cognitive disability has the capacity to make decisions that promote their personal and social wellbeing and will not require a guardian, however, will need support managing their financial and legal affairs, they may require an administrator.

Responsibilities of an administrator

An administrator may be a suitable person, for example, a friend or relative of the young person, a solicitor, accountant or an organisation. If there is no suitable person or organisation, State Trustees Limited or a private trustee company may be appointed as an administrator.

An administrator can:

  • pay bills on the person’s behalf
  • allocate the person money to live on
  • sell property for the person
  • invest money on the person’s behalf

The Office of the Public Advocate (OPA)

The Office of the Public Advocate can provide advice on whether guardianship or administration should be considered and what supporting material may be required for a VCAT guardianship or administration application.

A memorandum of understanding (MOU) has been developed between the Secretary to the Department of Health and Human Services (DHHS) and the Office of the Public Advocate (OPA) which clarifies roles and establishes a framework for collaborative practice to support young people to make a smooth transition from the care of the Secretary to adult guardianship.

In accordance with the MOU, consultation with the Office of the Public Advocate must occur as early as possible after the young person turns 17 if child protection forms a belief that a young person will require guardianship or administration after they turn 18.

The Victorian Civil Administrative Tribunal

The Victorian Civil Administrative Tribunal (VCAT) is a tribunal that hears and decides civil and administrative legal cases in Victoria.

Child protection practitioners can make an application to VCAT seeking the appointment of a guardian or administrator. VCAT only take applications for guardianship or administration three months before the young person turns 18. It is still important to consult with the Office of the Public Advocate as early as possible after the young person turns 17 if child protection forms a belief that a young person will require guardianship or administration. This will allow sufficient time to plan for the young person’s application to VCAT.

Guardianship and administration application forms are available at the Victorian Civil and Administrative (VCAT) website.

If child protection require support completing the VCAT application form, they can contact call the register at the William Cooper Justice Centre for advice.

Upon receiving the application, VCAT will set a future hearing date. Most applications are heard within 30 days. Applications can be heard more urgently if required. Outcomes include:

  • VCAT appoint a suitable person or the Public Advocate as guardian
  • VCAT appoint a suitable person, State Trustees or other legal entity as an administrator
  • VCAT adjourn the hearing and request OPA investigate further the need of the guardian or administrator
  • VCAT conclude that after a hearing there is no need to appoint guardian or administrator.

Orders for guardianship and/or administration will take effect once the young person turns 18. If the Public Advocate is appointed as a guardian and there is a delay in allocating a guardian, OPA can be contacted to provide interim advice about decisions. Information about the young person’s guardian or the need to contact OPA for advice on decisions while a guardian is in the process of being allocated must be included in case closure records and provided to services and supports who will remain involved with young person after they turn 18.

For further information about the role and functions of VCAT see Victorian Civil and Administrative Tribunal.

Considerations for good practice

Pre-planning for a guardianship or administration application

The decision to appoint a guardian for any young person should only be considered where there is strong evidence to indicate the person concerned is not capable of making decisions that promote their personal and social wellbeing. VCAT will only make a guardianship or administration order after less restrictive measures of assuring a person’s wellbeing and safety have been explored and found to be inadequate or unsuitable.

Prior to considering making a guardianship or administration application for a young person, child protection practitioners and the child’s care team, including any NDIS funded supports need to determine if there is any additional support that could be put in place for the young person that would support and equip them to make informed decisions about their life. This includes any potential for identifying a suitable person to act as guardian from within the child’s family, extended family and/or community.

Consideration should also be given to the young person’s cultural background and unique cultural needs during this process. For an Aboriginal young person in out of home care, their cultural support plan may assist to identify an appropriate person from within their community.

Promoting the voice of the young person

Young people should be supported to contribute to all planning and decision making for their future, wherever possible. Where a guardianship application is being considered, every effort should be made to discuss this with the young person, explain how it will assist them and obtain their views. These discussions should be ongoing and recorded on CRIS and in the young person’s 15+ Care and Transition Plan.

It is also important to seek advice from family or professionals close to the young person about their communication needs, particularly if the young person uses communication aids. If the child’s disability precludes them from being able to understand or communicate their views this should also be recorded on CRIS.   

Seek advice and plan in collaboration with NDIS providers and other supports and services

Members of a care team share responsibility for supporting and preparing the young person to make a successful transition to adulthood and to live independently, where this is a safe and possible for them. This includes a shared responsibility for planning who will make decisions on behalf of a young person with a cognitive disability.  

Many members of a young person’s care team will continue their professional relationship with the young person into adulthood. The appointment of a guardian will not replace the need for the young person to continue to have access to service providers and support from family and other carers.

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