This article is a continuation of our Incapacity Series where we have recently discussed the Enduring Power of Attorney (“EPA”) and Appointment of Medical Treatment Decision Maker (“AMTDM”) documents and how they can be used to plan for the possibility that you or someone you know may lose capacity. We now consider what can be done if a person does not have capacity and has not made these arrangements.
1. If I do not have capacity, is there anyone who can automatically step in and make medical treatment decisions for me? What about financial or personal decisions?
As explained in our article on AMTDMs, the law provides a list of people who may be able to make medical treatment decisions for you if you do not have capacity. These may include your spouse, children, or parents. While this arrangement may provide a reasonable outcome in some circumstances, it can break down if there is nobody available to make a decision or if the decision-maker falls out with the rest of the family.
On the other hand, there is no equivalent provision for anyone to make financial or personal decisions for you. Financial decisions include all dealings with your assets, such as paying your bills, signing a contract to buy or sell land, or entering into an agreement with a residential care provider. Personal decisions include decisions about where you live, who can visit you, and what activities you carry. If a person lacks capacity and has not made arrangements for anyone to make these decisions, then matters can swiftly come to a halt.
2. What is VCAT's role?
The Guardianship and Administration Act 2019 (Vic) (“the Act“) gives the Victorian Civil and Administrative Tribunal (“VCAT”) the ability to (amongst other things) make orders appointing two classes of decision-makers:
- Administration Orders can appoint an Administrator with authority over financial decisions, including paying bills, managing investments, and signing contracts. Certain matters such as legal proceedings may be excluded unless VCAT grants permission.
- Guardianship Orders can appoint a Guardian with authority to make decisions about matters including health care, accommodation, employment, access to services, and time spent with others.
3. For whom and by whom can such an application be made, and who should be informed?
An application can be made to VCAT for a Guardianship or Administration Order about a person who:
- is 18 or will be so when the Order takes effect;
- has a disability, which is defined as neurological impairment, intellectual impairment, mental disorder, brain injury, physical disability or dementia; and
- resides in Victoria or, if the application is for an Administration Order, has assets in Victoria.
The application will typically be made by a family member, friend, or health care professional. However, any adult can make such an application if they are concerned that a person with a disability is unable to make decisions that need to be made. This application can also be made because one is concerned about the decisions that other people are making for the person with a disability.
The Act requires that particular persons be informed of such an application. These include the spouse, domestic partner, or primary carer of the person about whom the application is being made; any person referred to in the application as having a direct interest; and any other person VCAT directs to be given notice. Typically, this means that immediate family members will be informed, along with other people who are particularly closely involved in the person’s life.
4. What factors does VCAT consider?
When deciding whether to make a Guardianship or Administration Order, VCAT considers a range of factors including:
- the will (being their wishes, not their Will document) and preferences of the person with a disability (so far as they can be ascertained);
- whether decisions in relation to the personal or financial matter for which the order is sought—
- may more suitably be made by informal means; or
- may reasonably be made through negotiation, mediation or similar means;
- the wishes of any primary carer or relative of the person with a disability or other person with a direct interest in the application;
- the desirability of preserving existing relationships that are important to the person with a disability;
VCAT can only make a Guardianship or Administration Order if satisfied that:
- because of the person’s disability, the person does not have decision‑making capacity in relation to:
- if a Guardianship Order is being applied for, the personal matter in relation to which the order is sought; or
- if an Administration Order is being applied for, the financial matter in relation to which the order is sought; and
- the person is in need of a Guardian or Administrator; and
- the Guardianship or Administration Order will promote the proposed represented person‘s personal and social wellbeing.
5. Who can VCAT appoint as Guardian or Administrator?
When an application is made to VCAT for a Guardianship or Administration Order, the applicant can suggest who should be appointed. This may be one person, or it may be several people together. VCAT will consider such a suggestion but is not bound by it, and may decide to appoint someone else entirely.
If VCAT decides to appoint a Guardian, it will often appoint a relative or friend of the person with a disability. The appointed person must be an adult who is willing to accept the role. VCAT must be satisfied that the appointed person will act in accordance with their duties, is a suitable person, and is not in a position where their interests do not conflict with the interests of the person with a disability. In some circumstances, such as where VCAT cannot identify a suitable person, the Public Advocate may be appointed as Guardian. The Public Advocate will then delegate this role to an Advocate Guardian.
If VCAT decides to appoint an Administrator, it may again appoint a relative or friend of the person with a disability. It may also be a lawyer or accountant, or a trustee company such as State Trustees. Where it is a person, they must be an adult. In every case, the appointee must be willing to accept the role. VCAT must be satisfied that the Administrator will act in accordance with their duties, is not in a position where their interests conflict with those of the person with a disability, and has sufficient expertise to make any necessary financial decisions.
Critically, the wishes of the person with a disability are not binding in this decision.
6. What happens after a Guardian or Administrator is appointed?
After someone is appointed as Guardian or Administrator, VCAT continues to take an interest. Guardianship Orders are reviewed at least once a year, while Administration Orders are reviewed at least every three years. It is also open to the person with a disability or some other interested person to apply to VCAT for review, removal or replacement of a Guardian or Administrator. This might be appropriate where an appointee is no longer able to carry out their duties or has acted improperly, or where the person with a disability has recovered so that they are able to make their own decisions.
7. How long does this process take? Can it be avoided?
As at the date of this article, VCAT estimates that for standard applications it takes 4-8 weeks from when an application is submitted for it to progress to a hearing. This does not include time that may be spent beforehand in gathering medical evidence and discussing things such as who should apply and who could be appointed.
Practically, this means that from the date when someone realises that you are unable to make a decision that needs to be made, at least 1-2 months is likely to pass before anyone is appointed to assist. This delay can cause significant inconvenience, particularly where healthcare or accommodation decisions are required.
The simplest way to reduce the chance of needing a Guardian or Administrator is to make your Enduring Power of Attorney and Appointment of Medical Treatment Decision Maker and keep them updated them if your circumstances change. This can spare your family from having to go through the application process and allows you to choose who will be making these decisions for you.
Other articles in the Incapacity Series
- The Incapacity Series: The Importance of Planning Ahead
- Enduring Powers of Attorney: What if I can’t make decisions for myself?
- Appointments of Medical Treatment Decision Maker: What if I can’t make medical decisions for myself?
- Guardians and Administrators: What if I lose capacity and haven’t appointed anyone to make decisions for me?
- Statutory Wills: What if I lose capacity to make a Will?
How can Novum Law Group assist you?
If you need advice, require assistance in a VCAT application or have any questions about the Guardianship and Administration process, our Wills & Estate Planning team would be glad to assist you. Please call us on 9063 0300 or send us an email to discuss with one of our lawyers, or click here to make an appointment.
Authors
Stephen Fries
