Without an Enduring Power of Attorney, there can be a number of financial and legal implications as a result of the loss of capacity of a partner. Whether suffering personally or watching on as a family member or friend suffers, illness and incapacity can make it extremely difficult to deal with financial, business, medical and living arrangements.
Where financial and lifestyle decisions are required to be made by the person suffering the loss of capacity, the following options may be available:
1. Application to the Victorian Civil & Administrative Tribunal (“VCAT”)
Partners, family members or any other interested parties can make application to VCAT for the appointment of an Administrator and/or Guardian.
An Administrator is someone appointed by VCAT to make financial and legal decisions for an adult who, due to a disability, cannot make decisions for themselves. Administrators may need to make decisions about financial matters such as general financial management, investments, property management, managing companies and trusts and conflict avoidance measures.
A Guardian is someone appointed by VCAT to make personal and lifestyle decisions for an adult who, due to a disability, cannot make decisions for themselves. Guardians may need to make decisions about issues such as accommodation, employment, access to services, access to the person and medical treatment.
As Administrators and Guardians, those persons appointed ‘step into the shoes’ of the person suffering the loss of capacity and therefore have similar powers as if they were appointed as attorneys under an Enduring Power of Attorney.
2. Family Law Proceedings
The High Court of Australia case of Stanford v Stanford  HCA 52 determined that pursuant to the Family Law Act 1975 (“the Act”) the Family Court can make orders for the division of property of a married couple who are still in an intact marriage but want to seek a division of assets.
In this case the wife suffered a stroke and as her condition deteriorated, she was moved into a residential care facility. The High Court recognised that parties to a marriage may be physically distanced involuntarily due to unavoidable circumstances. Any application to the Court for a division of property assets therefore did not require a breakdown of a marriage however, it is up to the Court to determine whether any division is just and equitable in all the circumstances.
Whilst typically all joint assets will be required to be severed, as opposed to say one joint residential property, the Court has previously determined that joint assets of a married couple were able to remain where it was found to be just and equitable to do so in that particular matter.
Please note however, that this only applies to married couples and does not extend to de facto couples as their relationship must have broken down for the Act to be enlivened.
At Burke & Associates, we can assist both in the VCAT application process or as appointed independent administrators. Anthony Burke, Consultant to the firm and Principal, Rosy Roberts are currently appointed by VCAT as independent Administrators on a regular basis.
Generally, our involvement occurs in circumstances where there is some degree of disharmony within a family or an extended family group and there has been a pressing need for decisions to be made about financial and property matters. It may also be where a person has no suitable individual available to represent them. Our Administrators have also commenced proceedings under the Family Law Act 1975 in representing the interests of a person who has suffered a loss of capacity.
Please do not hesitate to contact our Wills & Estates and VCAT Team at Burke & Associates Lawyers for further information.
Insight written by Rosy Roberts