Department of Health

Application for guardianship

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Application processes and the roles of the organisations involved

Before seeking appointment of a guardian of last resort for an older person in hospital, you should explore all least restrictive options. This is in the best interests of the patient, and it is a legal requirement. The Victorian Civil and Administrative Tribunal (VCAT) will need to be satisfied that the treating team has worked with the older person and their family and carers to rule out least restrictive alternatives.

If you are satisfied that seeking guardianship is the most appropriate option, familiarise yourself with the roles of each organisation and the terminology used, to ensure you approach the formal application process in the best possible way. This page provides information about who is involved in the process when applying on behalf of an older person in hospital. You should also follow your health service’s policies and procedures, and consult the Office of the Public Advocate (OPA) website, the VCAT website and the OPA advice service for guidance on the process.

The following table outlines a list of common terms and their meanings.

TermMeaning in this context
Proposed represented personOlder person who needs a guardian.
ApplicantPerson who submits the guardianship application (you or your health service).
Registry VCAT Guardianship ListReceives and processes applications; appoints hearing time, place and person to decide it.
VCAT memberPerson who hears the case and makes the decision.
Office of the Public AdvocateOrganisation that provides guardians of last resort. Also provides advice and sometimes investigates before an application is heard by VCAT.
Advocate guardianAn employee of the OPA to whom the Public Advocate delegates their powers and duties in the guardianship order, when appointed as guardian by VCAT.

Who is involved in the application process

Proposed represented person

This term is used by VCAT to describe the older person for whom you are making the application.

Making an application has the potential to remove an older person’s rights to exercise decisions about their life and can be extremely stressful for them, their family and carers. We all play a role in providing support and empathy throughout this process.

Applicant

In many Victorian hospitals, social workers coordinate and complete the application forms for guardianship. However, they can be completed by any clinician who knows the proposed represented person. Whoever completes the application becomes known by VCAT as the applicant. The applicant must explain the process to the older person and their family or carers and keep them informed throughout the process.

The applicant can complete and lodge the application form online, or download it from the VCAT website. It can be lodged by email, in person or by post. Some hospitals in Victoria have an internal system for lodging applications. The applicant is expected to attend the hearing, or delegate the task to a colleague who can adequately speak to the person’s situation.

As the applicant, if you believe that the matter should be heard urgently, seek advice from the OPA advice service. If the risk is unmanageable you may have to apply for a temporary order; speak to the advice service about this.

By law, the applicant must provide a copy of the application to the older person and any other interested parties. Interested parties can include the person’s family and carers.

The applicant must also supply VCAT with a medical report and any other supporting documents (such as a social work report or a neuropsychological report) prior to the hearing date. The medical report must indicate what disability the proposed represented person has, how this was diagnosed, if the person is incapable of making reasonable judgement and how this has been assessed. The application may also be supported by additional clinical reports from physiotherapists, occupational therapists, and speech therapists as required. These reports should provide a context for the application and outline all least restrictive options that have been proposed and trialled. Be mindful that any individual party to the proceedings may apply to VCAT for a copy of these reports. In some circumstances, especially where a professional is feeling threatened by a person, a report may be provided under the name of the hospital rather than an individual.

Registry VCAT Guardianship List

The VCAT Guardianship List receives applications for guardianship or administration, hears the matter and makes orders appointing a guardian or administrator for a person with a disability (who is 18 years of age or over) when there is a need and it is in that person's best interests to do so.

VCAT is like a court but less formal. The Tribunal members listen to the legal cases, facilitate the proceeding and decide whether an order for guardianship is required.

Applications must be heard within 30 days of VCAT receiving the application; the applicant can assist to streamline this process by ensuring all relevant contact details are included on the application form. VCAT will inform all interested parties that are listed on the application of the date and venue of the hearing.

VCAT member

A VCAT member will manage all aspects of the hearing and make a decision which could include appointing a guardian or requesting OPA investigate the matter before an appointment of a guardian can be determined.

VCAT hearing

Who attends the hearing

The applicant or their delegate must attend the hearing and bring copies of relevant evidence. The person about whom the application has been made should be encouraged to attend, particularly if the hearing is on-site at a hospital. Other interested parties listed on the application will be formally invited by VCAT and they may choose to bring support people. Other people who may attend include service providers known to the older person, such as case managers and solicitors. VCAT will organise an appropriately trained interpreter to be present if the applicant has indicated that an interpreter is required on the application form. Hearings are open to the public; however the VCAT member may ask observers to leave if the matter is sensitive. VCAT can also order that hearings be closed to the public, and the applicant can request that VCAT consider this option. It is illegal to publicise any information of a proceeding unless VCAT orders otherwise.

Where hearings are held

Some hospitals in Victoria hold regular guardianship and administration hearings on site. In special circumstances hearings can be held at the older person’s bedside. Hearings can also take place at VCAT in Melbourne and at various local courts throughout Victoria. The applicant can nominate the preferred venue for the hearing, and should take into account the urgency of the matter and whether there might be a need for security to be on-call throughout the hearing. Hearings may also be held with some or all parties attending by phone or video-conference.

What to expect at the hearing

The formality of the hearing can vary depending on the venue and the VCAT member. The VCAT member will generally ask all present to introduce themselves and they will explain the purpose of the hearing.

Sometimes the VCAT member may decide to adjourn the hearing if a particular person is not in attendance. They may also decide to refer the matter to OPA to investigate the issues and report back to them before the matter can be determined. The VCAT member may also adjourn a hearing part heard to enable OPA to gather new information or research issues which have arisen in the course of the hearing. Before deciding to appoint a guardian, the VCAT member must be satisfied that the proposed represented person:

  • has a disability that is affecting their ability to make an informed decision
  • that a decision needs to be made
  • that all least restrictive options have been explored.
If the VCAT member considers that it is necessary to appoint a guardian then the next consideration is who to appoint as guardian. If there is no person eligible to be appointed as guardian then the Public Advocate will be appointed as guardian of last resort.

The VCAT order may be generated at the time of the hearing or sent to OPA after the hearing. It will outline what types of decisions the guardian can make. An order can be 'limited' - which means it is limited to only certain aspects of a person’s lifestyle - or in rare cases it can be 'plenary', which means that the guardian can make any decisions that involve a person’s lifestyle. It will include the length of time the order is valid before it needs to be reassessed. Guardianship orders are usually reassessed at least annually. Consistent with promoting a person’s human rights, guardianship orders are nearly always limited - confined to current relevant areas requiring decisions.

Office of the Public Advocate

After VCAT has made an order for the appointment of the Public Advocate as guardian, the order will be sent to the intake and hospital team at OPA. Victorian public hospitals now have dedicated advocate guardians (OPA staff members) and generally the case will be allocated to them.

Depending on the person’s immediate needs and best interests, the intake and hospital team may make interim decisions about a person’s care. They may be able to consent to the older person’s transfer to the Transition Care Program, particularly if this transfer may be helpful in providing additional information to the guardian about the person’s suitability for discharge to their usual accommodation or to residential care.

The proposed represented person’s case will be waitlisted to be allocated to an advocate guardian (an OPA staff member). This can take about 20 days and it is important that you and your team continue to work with the older person to maximise their participation in care and independence. The guardian may not apply the treating team’s recommendation and the team must be prepared to facilitate all possible options.

To streamline this process the applicant should ensure that all information on the original application is up to date, including the contact details of the relevant clinicians. Convey any changes of contact details to the guardian once they have been appointed.
During this time you can also contact the intake team at OPA for advice about the information the advocate guardian will require once allocated. This will assist in streamlining the decision making process once the advocate guardian is appointed.

Advocate guardian

If VCAT has made an order that appoints the Public Advocate as a person’s guardian, the Public Advocate delegates their authority to an advocate guardian. Once allocated, the guardian will generally make contact with the represented person and the applicant to explain their role and responsibilities. If the person is an inpatient in a Victorian public hospital when the application is made, they will usually be allocated a dedicated hospital advocate guardian.

Guardians must work within the framework of the Guardianship and Administration Act 2019. The guardian must act in the best interests of the represented person, and this includes taking into account, as far as possible, the wishes of the represented person and acting as an advocate for the represented person and in such a way as to:
  • encourage the represented person to participate as much as possible in the life of the community
  • encourage and assist the represented person to become capable of caring for herself or himself and of making reasonable judgements about matters relating to her or his person
  • protect the represented person from neglect, abuse or exploitation.

A guardian must also exercise their powers in a way which is least restrictive of the person’s freedom of decision and action.

The OPA website provides detailed information on the role and responsibilities of guardians.

Guardians are not case managers, and when appointed they will rely on the treating team to source and implement least restrictive opportunities. It may take some time for the guardian to come to a decision for the older person in hospital, and as clinicians it is our role to support the older person and their family and carers throughout this process.

It is also essential that we document continued attempts to trial least restrictive alternatives and work with our team to ensure the person’s ability to participate in everyday physical and cognitive tasks is encouraged and assisted.

Making an application and supplying supporting information for the appointment of a guardian of last resort

The decision to lodge an application to VCAT for the appointment of a guardian of last resort should only be made if you and the treating team are satisfied that an older person has a disability that is impacting on their ability to make an informed decision, and when:

  • a decision needs to be made
  • there is a conflict about the nature of this decision
  • you have trialled all least restrictive alternatives.

The application process

In many Victorian hospitals social workers are the 'applicant' and coordinate the application process. This includes:

  • completing the application form and an accompanying report
  • seeking advice from the OPA Advice Service
  • discussing the decision to proceed with the application with the older person and their family and carers
  • requesting reports from the treating doctor and other relevant clinicians.

The application

Application forms can be completed and lodged on the VCAT website and downloaded as an alternative if required.

As the applicant, it is essential that you provide the correct contact details for yourself and any interested parties, to ensure that the hearing is listed within the specified 30-day period and that the appointed guardian contacts the relevant parties as soon as possible.

Medical report

Use the medical report form provided on the VCAT website to describe:

  • the reason for admission, medical history and current functioning, including
    • previous admissions to hospital
    • nature of the decision-making disability
    • how this is affecting the decision that needs to be made
  • the trajectory of the admission, treatment provided, the person's ability to participate in their care routing and the level of support they require
  • your recommendation.

Examples of the information required in the medical report is provided in Mrs Brown's case study.

Social work report

Each person’s situation will be unique. As the application form has minimal space to provide the VCAT member with the relevant context, you may need to provide a separate report to support the application.

There is no universal template to guide this process; however, it would be helpful for the VCAT member if you provided as much relevant background information as possible, including the following:

  • What is the reason for admission? Outline the person's medical history and current functioning, including
    • previous admissions to hospital
    • nature of the decision making disability.
  • What is the trajectory of the admission, treatment provided, the person's ability to participate in their care routine and the level of support they require?
  • What is the reason for lodging the application?
    • What decision needs to be made?
    • If the issue is long standing, describe the history and what attempts have been made to address the issue.
  • Describe the person's usual living arrangements.
    • Do they own their own home?
    • Are there any relevant cultural, language preferences and values?
    • Do they live by themselves or with others?
    • Who is in their family/support network and what is their opinion of the reason for the application?
    • Outline if the person has been receiving services.
    • Determine if the person has an advance care plan or an advance statement.
  • If there is conflict between parties, describe what attempts have been made to negotiate and mediate these issues. What are the risks?
    • Is there a risk of harm?
    • What level of supervision does the team believe the older person requires?
    • Can these risks be minimised with formal services or informal supports?
    • What least restrictive attempts have been made to mitigate the risks?
  • What has been done to optimise the person's functioning while they are in hospital?
    • Include physical therapy/retraining, education to the older person and their family/carers, psychological and emotional support that acknowledges and assists the older person and their family and carers with the process of adjustment.
    • Has an occupational therapy home visit occurred? Have assistive devices been considered and trialled?
  • Have you spoken to the OPA Advice Service? If so, document their advice.
  • What does the treating team recommend?
    • What will the appointment of a guardian achieve?
    • Specify what decisions the team believe need to be made. This can include accommodation, access to services, access to the proposed represented person and medical, dental and other healthcare treatments.
    • Why are you recommending that OPA be appointed as guardian of last resort?

An example of a social work report is provided in Mrs Brown's case study.

  • This is a fictitious case that has been designed for educative purposes.

    Social work report

    Mrs Beryl Brown URN102030
    20 Hume Road, Melbourne, 3000
    DOB: 01/11/33

    Date of application: 20 August 2019

    Social work report: Background

    Mrs Beryl Brown (01/11/33) is an 85 year old woman who was admitted to the Hume Hospital by ambulance after being found by her youngest daughter lying in front of her toilet. Her daughter estimates that she may have been on the ground overnight. On admission, Mrs Brown was diagnosed with a right sided stroke, which has left her with moderate weakness in her left arm and leg. A diagnosis of vascular dementia was also made, which is overlaid on a pre-existing diagnosis of Alzheimer’s disease (2016). Please refer to the attached medical report for further details.

    Social work report: Social history

    I understand that Mrs Brown has been residing in her own home, a two-story terrace house in Melbourne, for almost 60 years. She has lived alone since her husband died two years ago following a cardiac arrest. She has two daughters. The youngest daughter Jean has lived with her for the past year, after she lost her job. The eldest daughter Catherine lives on the Gold Coast with her family. Mrs Brown is a retired school teacher and she and both daughters describe her as a very private woman who has never enjoyed having visitors in her home. Mrs Brown took much encouragement to accept cleaning and shopping assistance once a week after her most recent admission; however, she does not agree to increase service provision. Jean has Enduring Power of Attorney (EPOA) paperwork that indicates that Mrs Brown appointed her under an EPOA two years ago. She does not appear to have appointed a medical treatment decision maker or any other decision-supporter.

    I also understand from conversations with her daughters that Jean and Mrs Brown have always been very close and that there is a history of long-standing conflict between Catherine and Jean. This was exacerbated by the death of their father. Both daughters state they understand the impact of the stroke on their mother’s physical and cognitive functioning, but they do not agree on a discharge destination. Mrs Brown lacks insight into her care needs and says she will be fine once she gets back into her own home. Repeated attempts to discuss options with all parties in the same room have not resulted in a decision that is agreeable to all parties.

    Social work report: Current function

    Mrs Brown has a history of Alzheimer’s disease; type II diabetes – insulin dependent; hypertension; high cholesterol and osteoarthritis. She has had two recent admissions to hospital for a urinary tract infection and a fall in the context of low blood sugars. She is currently requiring one to two people to assist her into and out of bed and one person with managing tasks associated with post-toilet hygiene. She can walk slowly for short distances with a four-wheel frame with one person to supervise. She benefits from prompting to use her frame; she needs someone to cut her food and to set her up to eat and drink regularly and to manage her medication routine. She requires one person to assist her to manage her insulin twice daily.

    The team believe that Mrs Brown’s capacity for functional improvement has plateaued in the last ten days. They recommend that it is in her best interests to be discharged to a residential care setting due to her need for one to two people to provide assistance with the core tasks associated with daily living. Mrs Brown is adamant that she wants to return home to live with Jean who she states can look after her. Jean, who has a history of chronic back pain, has required several admissions to hospital over the past five years, and states she wants to be able to care for her mother at home. Jean states she is reluctant to agree to extra services as her mother would not want this. Her sister Catherine is concerned that Jean has not been coping and states that given this is the third admission to hospital in a period of few months, believes it is now time for her mother to enter residential care. Catherine states that she is very opposed to her mother being discharged home.

    Social work report: The current risks

    Mrs Brown is at high risk of experiencing falls. She has reduced awareness of the left side of her body and her ability to plan and process information has been affected by her stroke. She is now requiring one to two people to assist with all her tasks of daily living and she lacks insight into these deficits. Mrs Brown is also at risk of further significant functional decline which may exacerbate Jean’s back pain. Jean has stated she is very worried about where she will live if her mother is to enter residential care.

    Social work report: Attempts to trial least restrictive options

    We have convened two family meetings with Mrs Brown, both her daughters and several members of the multi-disciplinary team. The outcome of the first meeting saw all parties agree for the ward to provide personalised carer training to Jean with the aim of trialling a discharge home. During this training Jean reported significant pain when transferring her mother from the bed and stated she would prefer to leave her mother in bed until she was well enough to get out with less support.

    The team provided education to both Jean and Catherine about the progressive impact of their mother’s multiple conditions on her functioning. The occupational therapist completed a home visit and recommended that the downstairs shower be modified so that a commode can be placed in it safely and the existing dining room be converted into a bedroom for Mrs Brown. Mrs Brown stated she would not pay for these modifications and Jean stated she did not wish to go against her mother’s wishes. The team encouraged Mrs Brown to consider developing a back-up plan and explore residential care options close to her home so that Jean could visit often if the discharge home failed. Mrs Brown and Jean refused to consent to proceed with an Aged Care Assessment that would enable Catherine to waitlist her mother’s name at suitable aged care facilities. We proceeded with organising a trial overnight visit. Unfortunately, this visit was not successful as Jean and Catherine, who remained in Melbourne to provide assistance, found it very difficult to provide care without the use of an accessible bathroom. Mrs Brown remains adamant that she will remain at home. The team is continuing to work with the family to maximise Mrs Brown’s independence, but they believe that it is unlikely this will improve. I have spent time with Jean to explore her adjustment to the situation, and provided her with information on community support services and residential care services. I have provided her with information on the Transition Care Program which can assist families to work through all the logistics. I have provided her with more information on where she could access further counselling to explore her concerns. I have sought advice on the process and legislative requirements from the Office of the Public Advocate’s Advice Service. I discussed this process with the treating team and we decided that it was time to lodge an application for guardianship to VCAT.

    Social work report: Recommendation

    The treating team believe they have exhausted all least restrictive alternatives and that a guardianship order is required to make a decision on Mrs Brown’s discharge destination and access to services. The team recommend that the Public Advocate be appointed as Mrs Brown’s guardian of last resort. We believe that this is the most suitable arrangement as her daughters are not in agreement about what is in their mother’s best interests. We also believe that there is a potential conflict of interest as Jean has expressed significant concern that her mother’s relocation to residential care will have an impact on her own living arrangements.

    Medical report

    Mrs Beryl Brown URN102030
    20 Hume Road, Melbourne, 3000
    DOB: 01/11/33

    Medical report: Background information

    Mrs Brown’s medical history includes Alzheimer’s disease; type II diabetes; hypertension; high cholesterol and osteoarthritis. She was admitted to Hume Hospital on 3 March 2019 following a stroke that resulted in moderate left arm and leg weakness. This admission was the third hospital admission in the past year. Other admissions have been for a urinary tract infection, and a fall in the context hypoglycaemia (low blood sugars), both of which were complicated by episodes of delirium.

    She was transferred to the subacute site under my care, a week post her admission, for slow-stream rehabilitation, cognitive assessment and discharge planning.

    Mrs Brown was diagnosed with Alzheimer’s disease by Dr Joanne Winters, Geriatrician, in April 2016. At that time, Mrs Brown scored 21/30 on the Standardised Mini-Mental State Examination (SMMSE). During this admission, Mrs Brown scored 15/30. I have undertaken cognitive assessment and agree with the diagnosis; further cognitive decline has occurred in the context of the recent stroke. There are global cognitive deficits, but primarily affecting memory, attention and executive function (planning, problem solving, mental flexibility and abstract reasoning). The most recent CT-Brain scan shows generalised atrophy along with evidence of the new stroke affecting the right frontal lobe. My assessments suggest moderate to severe mixed Alzheimer’s and vascular dementia.

    While able to recall some key aspects of her financial affairs, including the general monetary value of her pension and regular expenses, Mrs Brown was unable to account for recent expenditure (for repairs to her home) or provide an estimate of its value, and had difficulty describing her investments. In addition, I consider that she would be unable to make complex financial decisions due to her level of cognitive impairment. Accordingly, I am of the view that Mrs Brown now lacks capacity to make financial decisions.

    Mrs Brown states that she previously made an Enduring Power of Attorney (EPOA) but could no longer recall aspects of the EPOA, such as when it would commence and the nature of the attorney’s powers. Moreover, she confused the EPOA with her will. Her understanding of these matters did not improve with education, and therefore I consider that she no longer has capacity to execute or revoke an EPOA.

    Medical report: General living circumstances

    Mrs Brown acknowledges that she needs some assistance but lacks insight into the type of assistance that she requires, apart from home help for cleaning and shopping. She does not appreciate her risk of falling. She is unable to get in and out of bed without at least one person assisting her. She frequently forgets to use her gait aid when mobilising and is not able to describe how she would seek help in the event of falling. She is not able to identify or describe how she would manage her blood sugar levels, and this has not improved with education. Accordingly, I consider that she lacks capacity to make decisions about accommodation arrangements and services.

    Mrs Brown does not agree with the treating team’s recommendation to move into residential care and maintains her preference to return home. This is in spite of a failed overnight trial at home with both her daughters assisting her. Unfortunately, she was unable to get out of bed to get to the toilet and required two people to assist her to do so in the morning. In light of these matters, and in the context of family disagreement regarding the matter, the team recommends that the Office of the Public Advocate be appointed as a guardian of last resort.

Reviewed 17 July 2024

Older people in hospital

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