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Published: 15 April 2019
Author: Rosalba Martino
Every adult person has the right to make decisions regarding their personal and financial affairs. But what happens when that person is unable to make such a decision because they suffer from a disability?
In Victoria, those who are concerned regarding a loved one’s ability to make a decision for themselves regarding their personal circumstances or their financial affairs can make an application to the VCAT for a Guardianship or Administration order.
Let me illustrate the point with an example.
I was recently instructed in a matter where a close friend of my client had a stroke. My client’s friend was in hospital with no family in Australia. I was assisting my client to find a nursing home into which his friend could be moved. The question that had to be resolved was: “how would the nursing home fees be paid?”
My client’s friend understood that he could not return home and therefore would need ongoing care. However, he was not able to recall the net worth of his assets and was unable to understand financial documents. His ability to make an informed decision regarding his legal and financial affairs was substantially impaired due to a stroke
The hospital, therefore, made an application to the Victorian Civil and Administrative Tribunal (VCAT) for the appointment of an Administrator.
An adult needs to be suffering from a disability in order for VACT to exercise its jurisdiction and to make a guardianship or an administration order. A disability is defined as an intellectual impairment, mental disorder, brain injury, physical disability or dementia.
VCAT’s role is to determine whether a person has a disability and to what extent the person is incapable of caring for themselves or is incapable of managing their own affairs.
The difference between a Guardianship order and an Administration is significant. They each serve a different purpose.
An Administration Order is used to administer the financial and legal affairs of a person.
In an application to VCAT, the person to whom the application relates is referred to as a “Person to be Represented”
VCAT can only make an order if the Person to be Represented is found to have a disability and because of that disability, is unable to make reasonable judgments about their financial, legal or personal affairs.
In determining whether or not a person is in need of an administrator, VCAT must consider whether the needs of the person to be represented could be met by other means less restrictive of the person’s freedom of decision and action. Put simply, an Administration Order is a last resort.
VCAT also needs to consider the wishes of the person to be represented. Of course, VCAT can only do so if the person to be represented is able to express his or her wishes.
While an administration order relates to a person’s financial and legal affairs, a Guardianship Order relates to a person’s personal affairs. The ordinary definition of the term Guardian is: “keeper, defender, protector, one having custody of person or property”.
The role of a guardian is to make lifestyle decisions relating to health, access to services, where a person lives and with whom they will live.
VCAT has a duty to make sure that its decisions are in the best interest of the person to be represented. Unless VCAT is satisfied that an Administration Order or Guardianship Order is in the best interest of the person to be represented, an order will not be made.
VCAT requires that the person making the application provide medical reports and assessments from other health providers, such as aged care services or occupational therapists, setting out the extent of the disability of the person to be represented.
Likewise, any person objecting to the application, including the person to be represented, can provide reports showing their ability to make decisions relating to their financial, legal and personal affairs.
Professional organisations cannot provide information without a person’s consent as privacy needs to be maintained. If you are an applicant and need a report or assessment from a health professional, you can request that a report is provided directly to VCAT. A pro-forma document can be found on VCAT’s website (https://www.vcat.vic.gov.au/get-started/guardianship-and-powers-of-attorney) which can be sent to the health professional to complete.
Where VCAT receives contradictory evidence, it will take an active role in investigating whether making an order is in the best interest of the person to be represented by referring the application to the Office of the Public Advocate for investigation and preparing a report to VCAT.
Any person over the age of 18, provided they agree to act, can be appointed as Administrator or Guardian.
VCAT also considers whether the proposed Administrator or Guardian has sufficient expertise to administer a person’s legal and financial affairs. VCAT needs to consider whether a special relationship exists between the person being appointed and the represented person. The relationship can be that between family, domestic partners or close friends.
Before VCAT can make an order, it must be satisfied that the person appointed will:
(a) act in the best interest of the person to be represented;
(b) be suitable to be appointed; and
(c) that there is no actual or potential conflict of interest between the person appointed and the represented person.
Where clients have not had the opportunity to put their affairs in order by way of a Power of Attorney, and can no longer make reasonable decisions regarding their legal, financial and personal matters, VCAT offers loved ones an avenue to take the reigns through a relatively time and cost-effective process.
Although VCAT is available to offer assistance, VCAT should only ever be a last resort measure. By putting Powers of Attorneys in place you make sure that you have control over whom will be in charge of making decisions on your behalf
Your wills and estates lawyer will be best placed to advise whether or not VCAT is the most appropriate avenue in your circumstances.
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