A regular three year old child is seen by common law as vulnerable, and in need of parents to legally protect the child’s best interests. Parents, therefore, have the necessary legal power to make decisions on behalf of the child – the vulnerable person.
When the child reaches the age of 18 years, he or she is considered by common law to have the necessary ability to protect themselves and manage their own affairs – They are now known as an adult.
Although, so far, we have common sense, common law, it is no longer so for those who do not fit the regular mould for which common law was written – adults with limited intellectual capacity due to intellectual or multiple disability.
In total contrast to the regular 3 year old, a 33 year old with the intellectual ability of a regular 3 year old, is given legal adult status under common law. This status is the basis on which applications for guardianship in Victoria are based.
A guardianship application is considered by VCAT (Victorian Civil and Administrative Tribunal) under the Guardianship and Administration Act (“the Act”). VCAT considers the application mainly under three key factors, and within the common law adult status.
These key points are in Section 22 of the Act, being: (a) the person has a disability, (b) the person is unable by reason of their disability to make reasonable judgements in respect to all or any of the matters relating to her or his person or circumstances and, (c) is there a need for a guardian.
Most applying for guardianship can meet 22 (a) and (b) quite easily. Section 22(c) is that which provides the overwhelming ability of VCAT to protect the vulnerable to be vulnerable.
If the parents of a regular three year old were subjected to 22(c) in the way VCAT apply it, the regular three year old would, as a result, have no parents.
VCAT uses Section 22(c) as a tool in an attempt to allow a legal adult some freedom from parental control. This is fine, where realistically possible. And it is not realistically desirable when a person has such limited ability to make them extremely vulnerable
Rather than use Section 22(c) as the sole filter, VCAT needs to place the guardianship applicants under far more regular scrutiny to ensure they consistently have the right attitude, approach and actions towards the person for whom they are seeking whole of life guardianship or being whole of life guardians – plenary guardians.
The Guardianship & Administration Act