Guardianship and Administration (Fees) Regulations 2022

The Regulations use a small set of interlocking concepts to determine whether an estate is liable for a fee and, if so, how much.

Estate. The Regulations define “estate” to mean an estate which is subject to an administration order in any financial year (regulation 4). The instrument does not further define “administration order”; that term is the subject-matter of the parent Act under which the Regulations are made (see regulation 2).

Fortnightly income assessment. The Regulations prescribe a specific arithmetic method to convert a prior financial year’s total estate income into a fortnightly rate by dividing “all income received or accrued by the estate during the previous financial year” by 26 (regulation 5). The assessment is backward-looking, tied to the previous financial year’s receipts or accruals, and expressed as a fortnightly figure.

Threshold and fee outcome. Regulation 6 creates a binary outcome based on that fortnightly figure. If the fortnightly income is less than $930, the annual fee for the estate is nil. If the fortnightly income is $930 or more, the annual fee is 9 fee units. The threshold is a fixed dollar figure in the Regulations; the fee is denominated in fee units rather than a fixed dollar amount.

Fee units and conversion. The Regulations rely on the Monetary Units Act 2004 to convert fee units to a dollar amount, as explained in the endnotes. The explanatory details state that the value of a fee unit for the financial year commencing 1 July 2021 is $15.03, that the amount of the fee is calculated by multiplying the number of fee units by the value of a fee unit, and that the calculated amount may be rounded to the nearest 10 cents. The Treasurer fixes the value of a fee unit for later financial years under section 5 of the Monetary Units Act 2004 and must publish that value in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year, as noted in the explanatory material.

Timing. The Regulations fix the payment date to on or before 31 December following the end of the financial year in which the fortnightly income was assessed (regulation 7). That creates a single deadline each year tied to prior-year income assessments.

Discretionary waiver. The Victorian Civil and Administrative Tribunal (VCAT) has a power to waive all or part of a fee, either on application by the administrator or on VCAT’s own motion, where VCAT considers the fee would cause undue hardship to the person in respect of whom the administration order was made (regulation 8). The waiver power is discretionary and fact-based as drafted.

Temporal and statutory context. The instrument is made under s 194 of the Guardianship and Administration Act 2019 (regulation 2), commenced 1 March 2022 (regulation 3), and will sunset 10 years after making under the Subordinate Legislation Act 1994 (endnotes). The Regulations are concise and rely on external statutory mechanisms (fee-unit conversion, Treasurer’s fixation and publication) for dollar-value operation.

The Regulations are targeted in scope and identify a small set of affected parties and institutions by operation.

Estates under administration orders. The primary objects of the Regulations are estates that are the subject of an administration order in any financial year, as defined in regulation 4. The instrument attaches a potential annual fee to such estates, subject to the fortnightly-income test in regulation 6. Estates with a fortnightly income below $930 are not charged; estates at $930 or above incur the fee expressed in fee units.

Administrators and the persons subject to administration orders. Administrators of those estates will be the practical actors who calculate the fortnightly income and, where applicable, arrange payment or apply for a waiver. Regulation 8 specifically contemplates an application for waiver by “the administrator,” thereby recognising administrators as the procedural actor who may seek relief on behalf of the person under the administration order. The person in respect of whom the administration order is made is the person whose “undue hardship” may ground a VCAT waiver; the Regulation frames hardship to that person as the relevant equity consideration.

VCAT. The Victorian Civil and Administrative Tribunal is the decision-maker with express statutory authority to waive fees on its own motion or on application by an administrator (regulation 8). That places VCAT at the centre of discretionary relief and suggests that contested questions about hardship and the interpretation of regulation 8 will be exercised through VCAT’s existing processes.

The Treasurer and publishers. The operation in dollar terms depends on the Monetary Units Act 2004. The Treasurer fixes the value of a fee unit for financial years after 1 July 2021 and must publish that value in the Government Gazette and a Victorian newspaper before 1 June in the preceding financial year, as explained in the explanatory endnotes. The Treasurer’s fixation and the public notice requirement are procedural gates for converting the 9 fee units into a dollar figure.

Agencies and collection authorities. The Regulations themselves do not name the agency that will administer billing or collection. The statutory instrument is silent on collection mechanics and enforcement, so a responsible government unit (for example a tribunal registry or a department) will need to operationalise administration and collection processes. Where the Regulations refer to payments “to be paid in respect of estates” (regulation 1) and to the payment deadline (regulation 7), they do not specify the payee, collection point or method; those operational matters will be resolved by the administering authority consistent with the parent Act and administrative practice.

Members of the public and representative financial actors. The Regulations will have an indirect effect on third parties who interact with the estate, such as financial institutions and accounting advisers, insofar as administrators need to compile and present the previous financial year’s income data for assessment, calculate the fortnightly figure (regulation 5), and, if necessary, apply to VCAT for a waiver (regulation 8). The instrument therefore creates a modest compliance duty on administrators and advisors in record-keeping and calculation.

The Regulations embed a short list of duties for estate assessment and payment, and they give a specific discretionary right to VCAT to grant relief.

Assessment duty. The Regulations prescribe the method by which an estate’s fortnightly income must be assessed: divide all income received or accrued by the estate during the previous financial year by 26 (regulation 5). Although the Regulations do not label this as a duty imposed on any particular person, the administrator is the practical agent responsible for an estate’s financial administration and is specifically named in regulation 8 for waiver applications. Practically, the administrator will need to perform the arithmetic set out in regulation 5 and determine whether the estate’s fortnightly income meets or exceeds $930.

Payment duty. Where the assessment produces a fortnightly income of $930 or more, regulation 6 makes the estate liable to an annual fee of 9 fee units. Regulation 7 sets the payment timing: the annual fee is payable on or before 31 December following the end of the financial year in which the fortnightly income was assessed. The Regulations do not set out the payment recipient, form of payment, invoicing process or restart schedule; they set a date and liability. Administrators therefore have a duty to ensure payment by the stipulated date once the calculation produces liability.

Record and calculation accuracy. The Regulations require, by operation, that administrators compile accurate records of “all income received or accrued by the estate during the previous financial year” to produce the dividing sum in regulation 5. The endnotes indicate that fee computation uses the fee-unit conversion methodology in the Monetary Units Act 2004 and that the monetary result may be rounded to the nearest 10 cents. Administrators must therefore be capable of applying the fee-unit value (as published) to the 9 fee-unit obligation.

VCAT’s waiver power and procedural right. Regulation 8 creates a procedural right available to administrators and a discretionary relief power vested in VCAT. Administrators may apply to VCAT to waive all or part of a fee. VCAT may also act on its own motion to waive the fee. The statutory test is whether VCAT is of the opinion that the fee would cause undue hardship to the person in respect of whom an administration order has been made. That is a fact-based, non-formulaic standard within VCAT’s discretion.

Publication duty for fee-unit values. The endnotes explain that the Treasurer must publish the fee-unit value in the Government Gazette and in a Victorian newspaper before 1 June in the preceding financial year (as required by the Monetary Units Act 2004). That creates a scheduling duty for the Treasurer which is consequential for administrators calculating fees for any given financial year.

Absence of specified enforcement provisions. The Regulations do not specify penalties, enforcement mechanisms or the party responsible for issuing notices or collecting fees. They supply the liability, the calculation method, a payment date and a waiver mechanism, but they do not set out the enforcement pathway or remedies for non-payment.

The Regulations do not contain express penalty clauses, debt recovery processes or enforcement provisions. A close reading of the instrument shows it delivers a statutory liability rule, a calculation method, a payment date and a tribunal-based waiver power, but it does not set out sanctions for non-payment, interest on late payments, enforcement steps, or distraint procedures.

What the text says. Regulation 6 establishes the circumstances in which an annual fee is payable and quantifies that fee in fee units. Regulation 7 prescribes the payment deadline. Regulation 8 grants VCAT a power to waive the fee. There is no regulation in the instrument that prescribes a penalty amount, late-payment interest, enforcement authority, recovery process, or referral mechanism for unpaid fees.

Consequences of silence. Because the Regulations are silent on enforcement mechanics, collection and recovery would be expected to be addressed either under the Guardianship and Administration Act 2019, by VCAT’s established practice, or by administrative procedures implemented by the responsible agency. The instrument itself does not identify that agency, the invoice or notice procedure, or the remedies available for non-compliance. The explanatory endnotes likewise do not supply enforcement rules; they address fee-unit conversion and administrative matters connected to fee-unit valuation and publication.

VCAT’s role limited to waiver (not explicit enforcement). The only tribunal role expressly set out in the Regulations is the discretionary power to waive fees (regulation 8). The instrument does not conflate the waiver power with a role in enforcement or recovery. It gives VCAT a remedial discretion, not an express collection mandate.

Practical implication for administrators and advisers. In practice, administrators and their legal or accounting advisers must plan for the likelihood that a government agency or tribunal registry will implement collection processes consistent with the Regulations and with the parent Act. Where an estate’s fortnightly income meets the threshold, administrators should expect to receive instruction or an invoice from the relevant authority, or proactively contact the administering authority, because the Regulations alone do not provide the administrative mechanics. Absent specification of enforcement remedies in the instrument, practitioners should look to the Guardianship and Administration Act 2019 or administrative instructions for collection and penalties.

These Regulations operate in a statutory network and incorporate or rely upon several other Acts and statutory instruments referenced in the text and endnotes.

Authorising statute. The Regulations are made under section 194 of the Guardianship and Administration Act 2019 (regulation 2). The parent Act supplies the statutory power to make subordinate instruments concerning administration orders. The meaning of “administration order” and the broader governance of guardianship and administration are set out in the parent Act; the Regulations are a narrow, fee-focused subordinate instrument under that power.

Fee-unit conversion and procedural requirements. The Regulations express the payable fee in fee units and rely explicitly on the Monetary Units Act 2004 for conversion into dollars (explanatory details in the endnotes). The endnotes state that the amount of the fee is to be calculated in accordance with section 7 of the Monetary Units Act 2004 by multiplying the number of fee units by the value of a fee unit, and that the Treasurer fixes the value of a fee unit for future financial years under section 5 of that Act. The endnotes also record the procedural obligation that the value of a fee unit must be published in the Government Gazette and a Victorian newspaper before 1 June preceding the financial year to which the fee-unit value applies.

Sunset under subordinate legislation rules. The Regulations will sunset 10 years after the day of making (22 February 2032), as explained in the endnotes referencing section 5 of the Subordinate Legislation Act 1994. That is a statutory interaction that affects the instrument’s lifespan and review cadence.

Interpretation and style rules. The endnotes include material referencing the Interpretation of Legislation Act 1984 and identify that certain style changes and provisions about headings, examples, punctuation and provision numbers apply to the statutory rule. The endnotes also record that explanatory memoranda, tables of provisions, endnotes and similar materials printed after the Endnotes do not form part of the Statutory Rule. That caveat is important: the Regulations’ operative text is regulations 1 to 8; the explanatory material assists interpretation but is not itself regulatory text.

Absences and delegation. The Regulations do not include collection, enforcement or administrative detail and therefore operate alongside the parent Act and government procedures that will give operational effect to collection. The instrument assigns a waiver function to VCAT (regulation 8) but does not otherwise specify the administrative agency that will bill or collect the fee. Therefore, the practical interoperation with collection, billing, audit and enforcement functions will be determined by the parent Act’s administrative framework and by agency policy or practice.

Temporal interplay. The Regulations tie liability to a prior financial year’s receipts and require the Treasurer to fix fee-unit values before 1 June preceding each financial year. That timing creates a nexus between fiscal-year accounting, Treasurer’s administrative timing under the Monetary Units Act 2004 and the payment deadline of 31 December specified in regulation 7. Administrators must therefore align estate accounting, fee-unit publication and payment scheduling across these statutory time gates.

The Regulations include a short, explicit amendment history in the endnotes.

No statutory amendments. The Table of Amendments in the endnotes states that there are no amendments made to the Guardianship and Administration (Fees) Regulations 2022 by statutory rules, subordinate instruments or Acts. That records that since making, the instrument has not been amended.

Version and dates. The instrument is labelled Version No. 001 and S.R. No. 15/2022. It was made on 22 February 2022 by the Governor in Council under section 194 of the Guardianship and Administration Act 2019 and came into operation on 1 March 2022 (endnotes and regulation 3). The endnotes also record the instrument’s version as at 1 March 2022.

Sunset provision. The endnotes record that the Regulations will sunset 10 years after the day of making on 22 February 2032, by operation of section 5 of the Subordinate Legislation Act 1994. That sunset date is a statutory consequence of subordinate legislation procedures rather than an amendment to the Regulations themselves.

Explanatory materials not amendments. The endnotes include explanatory details on fee units and the monetary value for the financial year commencing 1 July 2021. Those explanatory details are not amendments; they are explanatory notes that accompany the instrument. The Interpretation of Legislation Act 1984 material in the endnotes confirms that such ancillary material printed after the Endnotes does not form part of the Statutory Rule.

Implication for future change. Since the Regulations are simple and refer to fee units and fixed thresholds, legislative or subordinate amendments would be needed if the Government wanted to change the $930threshold, the number of fee units, the payment timing, the waiver test, or to add enforcement provisions. As at the instrument’s version date, none of those elements have been amended since making.

The text supplied contains no record of litigation, judicial consideration or VCAT decisions interpreting these Regulations. The instrument itself does not cite any cases and the endnotes do not report any litigation history.

What is present. The source provides the Regulations’ operative text, the endnotes, and explanatory details. It records the statutory basis, commencement, and ancillary interpretation provisions. It does not include, summarise, or reference any court or tribunal decisions that have applied or considered the Regulations.

Practical consequence. Given that VCAT is given a discretion to waive fees under regulation 8, disputes about what constitutes “undue hardship,” procedural elements of waiver applications, or questions about the correct calculation of “all income received or accrued” for the previous financial year may arise and be litigated in the future. However, the Regulations as supplied do not record any litigation or precedent. Practitioners seeking guidance on likely litigation outcomes must look to VCAT practice and to any relevant decisions construing similar waiver or fee provisions under related legislation. That material is not contained in the Regulations and therefore not summarised here.

Record-keeping. Because the instrument is recent and concise, it is possible that litigation or VCAT decisions will develop practice around calculation methodologies, timing disputes and interpretations of undue hardship. Users of these Regulations should monitor VCAT and relevant judicial listings for future decisions; the Regulations’ text alone does not provide litigation guidance.

A number of practical points emerge from the Regulations’ brevity and the way they tie liability to fee units and to the prior year’s income. These are matters to watch for operational and compliance risk.

Threshold expressed as a fortnightly dollar amount. The test in regulation 6 uses a fortnightly income threshold of $930. That is a fixed dollar figure in the instrument and is not expressed as a function of fee units, CPI, or any automatic indexation mechanism. The Regulations do not provide for periodic adjustment of the $930 figure. Consequently, unless the Regulations are amended, the threshold remains $930 regardless of inflation, fee-unit movements, or economic change. The instrument does not prescribe a mechanism to update that figure.

Backward-looking income test. Regulation 5 requires administrators to divide “all income received or accrued by the estate during the previous financial year” by 26 to derive fortnightly income. That means the test is retrospective. The estate’s liability for a given year is determined by prior-year receipts or accruals. Practically, administrators must be careful about classification of income, accruals accounting, and the periodisation of receipts to prevent miscalculation.

Fee expressed in fee units; dollar value depends on Treasurer. The annual monetary obligation is expressed as 9 fee units (regulation 6). The conversion requires the Treasurer’s published fee-unit value for the relevant financial year. The endnotes state that the fee-unit value for 1 July 2021 was $15.03 and that the Treasurer must publish fee-unit values before 1 June in the preceding financial year. Administrators must not treat “9 fee units” as a fixed dollar sum until the relevant fee-unit value is published and applied, and must account for rounding to the nearest 10 cents. A procedural risk exists if practitioners use an outdated fee-unit value.

Payment timing and administrative lag. The payment deadline is on or before 31 December following the end of the financial year in which the fortnightly income was assessed (regulation 7). Because the assessment references the “previous financial year,” there can be a substantial gap between the accounting period and the payment deadline, and between the Treasurer’s publication of fee-unit value and the payment date. Administrators should note these time gates to avoid missing the deadline.

No collection or enforcement detail. The Regulations do not identify the billing authority, the method for issuing invoices, or enforcement remedies in the event of non-payment. That silence creates operational uncertainty about how and where payments are to be made and what will happen on non-payment. Administrators should proactively seek administrative guidance from the relevant department or VCAT registry to confirm payment processes.

VCAT waiver standard is discretionary and fact-based. Regulation 8 allows VCAT to waive all or part of a fee where VCAT is of the opinion the fee would cause “undue hardship” to the person in respect of whom the administration order has been made. The instrument does not define “undue hardship” or provide procedural detail for applications. The absence of a statutory test or factors leaves scope for case-by-case assessment by VCAT.

Rounding to nearest 10 cents. The endnotes note that the calculated fee may be rounded to the nearest 10 cents. Administrators should ensure that rounding is applied correctly after multiplying 9 fee units by the fee-unit value for the applicable year, rather than rounding intermediate figures.

Reliance on external statutory schedules and publication timing. Fee-unit conversion and publication are governed by the Monetary Units Act 2004 and the Treasurer’s procedures. Administrators must monitor the Government Gazette and a Victorian newspaper for the fee-unit value, published before 1 June in the preceding financial year, as stated in the explanatory details. Failure to use the correct fee-unit value published for the relevant period could lead to underpayment or overpayment.

No accompanying guidance in the Regulations. The Regulations are terse and do not include worked examples, a list of income items to include or exclude, nor administrative forms for waiver applications. That increases the advisory burden on practitioners and may produce variability in practice until administrative guidance or tribunal decisions supply uniform approaches.

Compliance under these Regulations is procedural and calculation-focused. The steps below follow directly from the Regulations and the explanatory endnotes.

1. Identify whether the estate is an “estate which is subject to an administration order in any financial year” (regulation 4). If the estate is not subject to an administration order, these Regulations do not create a fee liability.

2. Compile comprehensive records of all income received or accrued by the estate for the previous financial year. The assessment in regulation 5 uses “all income received or accrued by the estate during the previous financial year.” Ensure accounting treatment (cash v accrual) is consistent with how “received or accrued” will be interpreted administratively or by VCAT, and retain supporting documentation for each income item.

3. Calculate fortnightly income by dividing the total income for the previous financial year by 26 (regulation 5). Carry the calculation through to a fortnightly figure with adequate precision before rounding.

4. Compare the fortnightly income to the $930 threshold (regulation 6). If the fortnightly income is less than $930, no annual fee is payable for that estate for that financial year. Document the calculation and retain records showing the basis for the nil-fee position.

5. If the fortnightly income is $930 or more, determine the monetary amount of the annual fee. The fee is 9 fee units (regulation 6). Obtain the fee-unit value announced by the Treasurer for the relevant financial year, as the endnotes explain that the Treasurer fixes the fee-unit value under the Monetary Units Act 2004 and publishes it in the Government Gazette and a Victorian newspaper before 1 June preceding the relevant financial year. Multiply 9 by the fee-unit value and round the result to the nearest 10 cents, as permitted by the explanatory details.

6. Arrange payment on or before 31 December following the end of the financial year in which the fortnightly income was assessed (regulation 7). The Regulations do not specify the payee, billing entity, or payment method. Practitioners should proactively contact the relevant administrative body (for example the tribunal registry or the department responsible for administering guardianship and administration fees) to determine invoicing and payment procedures and to confirm the exact recipient and payment channels.

7. If payment would cause undue hardship to the person in respect of whom an administration order has been made, consider whether to seek relief under regulation 8. The administrator may apply to VCAT to waive all or part of the fee, and VCAT may also act on its own motion. Prepare an application that addresses the “undue hardship” test with supporting evidence about the person’s financial circumstances, the estate’s cashflow, and the consequences of payment. Because the Regulations do not define “undue hardship,” compile objective evidence: bank statements, income and expense schedules, and any medical or social-service documentation relevant to the person’s capacity and needs.

8. Maintain documentation of the assessment, calculation, fee-unit value used, rounding, and payment or waiver application. Given the Regulations’ lack of detail on enforcement and collection mechanics, contemporaneous records will support any administrative queries or tribunal review.

9. Monitor the Treasurer’s publications. The fee-unit value must be published before 1 June preceding the financial year, according to the explanatory details. Ensure the correct fee-unit value is applied for the relevant period to avoid miscalculation.

10. Seek administrative guidance where necessary. Because the Regulations do not specify enforcement, invoicing, or payment processes, administrators should contact the relevant government agency or VCAT registry to confirm procedural steps, timelines for invoicing, and any forms required for waiver applications.

Following these steps will align administrative practice with the Regulations’ operative text: identify liability via the prior financial year’s income, apply the $930 fortnightly threshold, calculate the monetary fee using the Treasurer’s fee-unit value, meet the 31 December payment deadline, and use VCAT’s waiver process where payment would cause undue hardship.