We often act for clients who care for a loved one with a disability. Sometimes, these clients need to obtain a guardianship or administration order so that they can make personal or financial decisions on their loved one’s behalf. This process may be completely new to a relative or carer. In this blog post, we break down the basics of these orders and how you can apply for one if needed.
What is a guardianship order?
A guardianship order is an order made by VCAT that appoints a person (the guardian) who can make decisions for a person with a disability in relation to personal matters. Personal matters include:
- where the person lives;
- whether the person works and, if so, where they work;
- whether the person undertakes education or training;
- daily living issues, such as diet and dress; and
- certain medical treatment decisions.
What is an administration order?
An administration order is similar, but the person appointed (the administrator) can make decisions for a person with a disability in relation to financial and legal matters. Financial matters include:
- making money available for the person’s personal spending;
- paying expenses for the person;
- repaying any debts that the person may have;
- looking after the person’s property, including paying rates, taking out insurance and paying off the mortgage;
- seeking legal advice for the person;
- seeking accounting and financial advice for the person; and
- making investments for the person.
What is considered a disability for the purposes of orders?
Under the Guardianship and Administration Act 2019 (Vic.), a disability can be:
- a neurological impairment;
- intellectual impairment;
- mental disorder;
- brain injury
- physical disability; or
The person with a disability must have lost, or have never had, decision-making capacity in relation to personal or financial matters for VCAT to make a guardianship or administration order.
If the person can make a decision on these matters with support, VCAT can make a supportive guardianship or supportive administration order. This blog post does not cover these orders in detail, but please contact us if you think such an order may be appropriate in your circumstances and want to discuss further.
Why do I need a guardianship or administration order?
Often, care arrangements are made informally within families, without the need for a VCAT order. In some circumstances, however, you may need a formal order to carry out decisions that you make for a person.
Banks, for example, require evidence of an administration order before they will grant third-party access to a bank account.
Another common scenario is where a relative with a disability has lost decision-making capacity, but no one in the family feels that they can effectively take over. This is particularly relevant where that relative has never appointed an attorney under an Enduring Power of Attorney. An elderly parent with dementia, for example, may have lost decision-making capacity in relation to their financial affairs, but none of their children has the time or expertise to manage their parent’s finances.
In these situations, VCAT can appoint a professional administrator, such as the State Trustee, to manage the person’s affairs.
What can a guardian do?
A guardian has the power to make decisions about personal matters, as indicated above.
Importantly, these may not include all personal matters in that list; rather, the order will specify the matters over which the guardian has power.
The guardian can also sign documents to give effect to these powers (for example, enrolment forms for a vocational course). The guardian also has the power to decide where that person lives; for example, they can decide whether that person lives at home or should live at a care facility such as a nursing home.
In some circumstances, the guardian may also undertake legal proceedings on behalf of the represented person. This is called a litigation guardian.
What can an administrator do?
An administrator has the power to make decisions about specific financial and legal matters and to give effect to these powers.
An administrator can also continue any investments that the represented person has, such as renewing a term deposit. An administrator may also be able to make gifts on the represented person’s behalf for special occasions, such as a birthday gift to a grandchild.
Restrictions on guardians and administrators
Importantly, there are restrictions on the powers of guardians and administrators to prevent mismanagement and abuse.
Guardians and administrators must act in the best interest of the represented person, directed as far as practicable by their will and preferences. They must act in such a way to protect the represented person from neglect, abuse or exploitation, and act in good faith. They must not use their position for profit (with the exception of professional administrators authorised to do so by VCAT).
Administrators must also provide VCAT with annual accounts of transactions made on the represented person’s behalf.
I think I need to apply for a guardianship and/or administration order. How do I do it?
You can make an application for guardianship and administration orders via VCAT’s website.
You will need to submit certain documents, such as a medical report and letter of consent from a professional administrator if you are seeking to appoint them. VCAT will then contact you to give you a date for the hearing and to talk to the person to be represented.
You do not need a lawyer to make an application for guardianship or administration orders, but we recommend engaging one to assist with your case. At the hearing, you will need to present facts and answer questions about your application for an order.
You can ask permission to have a lawyer represent you in the hearing, but even if this is denied, it is useful to have a solicitor who can help you to organise your case and to prepare to represent yourself.
Get help from a guardianship lawyer
David Davis regularly acts in VCAT guardianship and administration matters. Contact us today to discuss your upcoming VCAT case.
Contact David Davis Lawyers
Phone: 03 9014 1299
Email: admin@ddavis.com.au