In our article Powers of Attorney for “Regular” People (link to the other article Luke wrote) Luke Palmer & Rohani Bixler identify what a Power of Attorney is and why you need one. The purpose of this document is all about having a plan in place if an injury or disability occurred during your lifetime. The World Health Organisation has said that ‘almost everyone is likely to experience some form of disability – temporary or permanent – at some point in life’.
If you were no longer able to make your own decisions with respect to financial and personal matters, who would then do this?
Depending on your personal circumstances, these decisions could be relatively simple or more complex and could include those such as:
- Transacting on a bank account in your sole name;
- Selling or purchasing property;
- Investment decisions of cash or shares;
- Entering into a contract;
- Deciding a change in accommodation;
- Paying bills;
- Making a gift or donation;
- Commencing Court proceedings.
As such, ensuring that the right person or people are appointed as your attorneys is extremely important.
How is the Victorian Civil & Administrative Tribunal involved?
The Victorian Civil & Administrative Tribunal (“VCAT”) has a dedicated Guardianship List which hears issues relating to a person’s financial and personal matters.
In circumstances where a person no longer has capacity to make financial and personal decisions, VCAT has two main roles:
- Deciding disputes between joint attorneys, or investigating if someone believes that an attorney is not acting appropriately; and
- Appointing an Administrator or Guardian.
Disputes between Attorneys/Inappropriate Actions
For example, VCAT can assist in circumstances where two or more joint attorneys cannot agree on whether a property should be sold or, if someone is suspicious that an attorney has used the appointor’s funds for themselves.
VCAT can require an attorney to:
- produce accurate details of all transactions and dealings made under the power of attorney
- give evidence in relation to the exercise of powers
- arrange for an audit of receipts and expenditure or more detailed accounts provided by the attorney
VCAT has the power to remove or replace the attorney and further, impose penalty on the attorney for any inappropriate actions.
Appointing an Administrator or Guardian
An Administrator is a person appointed by VCAT to make all financial and legal decisions for a person who no longer has capacity to make those decisions and a Guardian is a person appointed by VCAT to make personal and lifestyle decisions such as decisions on accommodation, employment and access to services.
Where these types of decisions are required to be made and a person does not have a Power of Attorney, an application must be made to VCAT for the appointment of these roles.
However, an Administrator and Guardian can also be appointed if VCAT determines that:
- An attorney has acted inappropriately and should be removed; or
- An attorney no longer wishes to act as attorney
An Administrator or Guardian can be a family member or friend. However, it can often be difficult for a trusted friend or family member to make the financial and legal decisions required of an Administrator. This is where the appointment of an independent person such as an accountant or lawyer can be more appropriate.
This is particularly so as an Administrator and Guardian are required to regularly report to and appear at VCAT and an Administrator for example, must provide a full accounting of the person’s estate and all income and expenditure each year.
The lawyers in our Wills & Estates and VCAT Administration Division at Burke & Associates Lawyers have a long history of being appointed as both Attorneys and Administrators to make decisions for those who no longer have the requisite decision-making capacity. We come to this role independently with the resources available to handle the complexities of a person’s financial estate.
Our legal team can also provide advice on what to do when a person loses capacity, when no Power of Attorney is in place or if concerns have been raised that an Attorney is not acting in the best interests of the Represented Person. If you would like to discuss appointing Burke & Associates Lawyers as an Administrator or require any advice at all, please reach out to our VCAT Administration Lawyers via phone on +61 3 9822 8588 or online via email@example.com
Insight written by Rosy Roberts