By Charlotte Black – Senior Associate
At Eales & Mackenzie, we often have clients come to us seeking legal advice as to what to do for a family member, relative or friend who can no longer make decisions for themselves but have never drawn a Power of Attorney.
The person may no longer have the ability to make decisions for themselves for a number of reasons, such as:
- Dementia;
- Alzheimer’s;
- A brain injury;
- Mental Illness; or
- A physical disability.
In those circumstances, you may feel that there is now no option than for yourself or someone else to step in and make decisions for the that person, be those financial decisions, lifestyle or medical decisions or legal decisions.
Where there is no Power of Attorney in place, your only option is to make an application to the Victorian Civil and Administrative Tribunal (more commonly known as VCAT) seeking either a Guardianship or Administration order (or oftentimes both).
What is an Administration Order
An Administration Order is an order made by VCAT which appoints someone to make decisions about a person’s financial matters – this person is called an Administrator.
Examples of decisions that someone who is an Administrator may have to make could include:
- Paying the persons expenses such as accommodation costs and other bills;
- Making money available for the person to spend;
- Recovering money on behalf of the person;
- Undertaking a real estate transaction on behalf of the person such as selling their home; or
- Withdrawing money from an account or depositing money into an account.
What is a Guardianship Order
A Guardianship Order is an order made by VCAT which appoints someone to make decisions about a person’s personal matters – this person is called a Guardian.
Examples of decisions that someone who is a Guardian may have to make could include:
- Where the person lives and with whom they live;
- Certain medical treatment decisions;
- Whether the person undertakes any education or training;
- Whether the person works and if so, where and with whom; or
- The daily living issues such as diet.
How do I apply for a Guardianship and/or Administration Order:
Making an application to VCAT seeking a Guardianship or Administration order (or both) is a serious decision and should not be taken lightly.
When making the application to VCAT, it will be necessary to show that the person has a disability which means they are unable to make their own decisions. This might come in the way of a medical report from the person’s doctor.
It is important to keep in mind that not all disabilities mean that a person is unable to make their own decisions. For example, a person who has low intellectual functioning and who makes poor financial decisions may not necessarily be considered to be disabled where there is a valid and justifiable reasons for the way the person has been acting and where the medical opinion does not support an application being made.
An application seeking a Guardianship and/or Administration Order is made by completing and submitting the required forms to VCAT and then attending a hearing.
The proposed represented person (the person who the application is about) is required to attend the hearing (unless they do not wish to attend or it is impracticable or unreasonable for them to do so) and it is not uncommon for other people close to the effected person to be invited to attend the hearing as well (such as children of the effected person if they are over 18).
At the hearing, the VCAT Member will consider a number of questions when deciding whether to make the Guardianship and/or Administration Order. These questions may include:
- What the proposed represented person wants (the Member may refer to this as their ‘will and preferences’);
- Whether any decisions that need to be made on behalf of the represented person could occur by more informal means or via some form of negotiation or mediation;
- What the wishes of any primary carer, relatives or those with a direct interest of the proposed represented persons are;
- The importance of preserving and maintaining existing relationships which are important to the represented person and how a Guardianship and/or Administration Order would impact those;
- Whether the order would promote the represented persons social and personal wellbeing; and
- Who would be the most appropriate person to be appointed as the represented person’s Guardian and/or Administrator.
After considering these (and other) questions, the Member will then make a decision whether to grant the order(s) requested or whether to refuse them.
Conclusion:
Making an application to VCAT for a Guardianship and/or Administration Order can be a complex process which comes at a time where there is already a great deal of emotional distress being faced.
If you wish to make an application, it is always prudent to first seek legal advice. Should you require advice about making an application, please contact either Ms Charlotte Black or Mr Richard Mackenzie on (03) 8621 1000 at our Melbourne office, or (03) 9331 1144 at our Essendon Office or via email at charlotte@emlawyers.com.au or dick@emlawyers.com.au.
