Meet Carol, Carol is an elderly woman who lives alone and is being increasingly affected by dementia. Whilst she has always been very independent and capable, Carol’s long-term friend and neighbour Penny has noticed that Carol isn’t managing the way that she used to. Penny has noticed the mail piling up, Carol hasn’t been going out to the shops very often, and her electricity was even turned off recently because Carol had not been paying her bills.
If Carol appointed a Power of Attorney, the attorneys listed in that document could assist her, however unfortunately, Carol never made any Power of Attorney or Medical Treatment documents. Penny wants to know what she can now put in place to help Carol, because Carol can no longer manage her own personal, financial or legal affairs.
Penny could consider applying to the Victorian Civil and Administrative Tribunal (‘VCAT’) for Administration or Guardianship Orders.
What are Administration and Guardianship Orders?
Administration Order – Administrators may be empowered to make all decisions in relation to a person’s financial, legal and property affairs, including:
- Accessing, accepting and using cash and/or bank accounts;
- Paying bills, rates, taxes, insurance or other outgoings;
- Fulfilling contracts entered into by the person;
- Selling or buying property (including real estate);
- Opening and reading the last Will of the person; and
- Engaging legal services or bringing/defending proceedings.
Guardianship Order – A Guardian makes decisions in relation to the persons lifestyle and personal affairs. VCAT will only appoint a Guardian if a change needs to be made in relation to the person’s living arrangements or care. Unlike an Administration order where the Administrator then has power to make all decisions, a Guardian can only make a decision in relation to the specific matter specified in the order. Examples include:
- A decision in relation to where and with whom the person will live;
- The day-to-day lifestyle decisions such as diet, dress and people with whom they associate;
- Any working arrangements such as hours, type of work and employer; and
- Medical treatment decisions (except for some treatments for which special orders are required).
When can an Administration or Guardianship Order be made?
VCAT has jurisdiction to make an order appointing someone as an Administrator or Guardian if:
- The person is suffering from a disability;
- As a result of the disability that person is unable to make decisions in relation to their financial or personal affairs; and
- The appointment of an administrator is required to assist or promote the person’s wellbeing.
So, what happens next for Carol?
Carol would likely meet the above test; therefore, Penny could apply online via VCAT’s website for a VCAT hearing seeking the appointment of an Administrator. If Penny was also seeking to suggest that Carol be put into aged care, then she would need to seek a Guardianship Order authorising her to make this decision also. The application would require information about Carol and:
- Her disability (in this case a medical report detailing Carol’s dementia);
- Details of immediate family and others directly interested in her wellbeing; and
- Penny must also stipulate her reasons for making the application.
It typically takes 8-12 weeks from the date of application submission to hearing, however there are avenues for urgent orders if there is an immediate risk to the persons welfare. The Office of the Public Advocate is able to provide advice as to obtaining urgent orders via VCAT.
VCAT hearings are informal, and all interest parties; particularly the proposed represented person and proposed administrator, together with any other persons interested, are invited to attend. Often attendance happens via a phone or video conference and will be led by a VCAT member who seeks information from each party present and wanting to provide information. The VCAT member will then make the ultimate decision on the day of the hearing based on the information provided. At Carol’s hearing, the VCAT member will be seeking to ascertain if appointing Penny is not only in Carol’s best interests, but also likely to be in line with Carol’s wishes. The VCAT member would also explore the possibility of family members acting or if an independent administrator (such as State Trustees) should be appointed instead.
Appointing Powers of Attorney & Medical Treatment Decision Makers
Whilst VCAT offers a great avenue to assist those in need, it should only be used as a last resort. Appointing an Attorney and Medical Treatment Decision Maker now, whilst you have capacity to do so, is the best, most efficient and cost-effective way to ensure your affairs can be handled by the person that you would most want to handle them. Carol had no control of the time taken to make an application, so she could have been waiting months for the help she needed. Importantly, Carol had no control over who made an application on her behalf. Appointing someone to take over these kinds of decisions is incredibly personal and important. Penny may be a great friend to Carol, but is she really who Carol would have appointed to make financial, personal and medical decisions on her behalf?
We can assist with all matters related to Powers of Attorney and Medical Treatment Decision Makers whilst you and your loved ones have capacity, and we can also guide you through the appointment of an Administrator or Guardian at VCAT if required. We are here to help, so please call your local Wightons Lawyer’s office to see how we can help you.
This article is general information only and is not legal advice or a substitution for such advice. Always seek professional advice suited to your own circumstances.
Article prepared and written by:
Courtney Gow (Lawyer) – available by appointment at Geelong & Corio
Justine Finlay (Managing Director) – available by appointment at Geelong & Ocean Grove
