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Risks for Loved Ones with Disabilities – Putting appropriate back-ups in place

So many families of people with disabilities live with the ongoing and overwhelming worry of what will happen to their loved ones when they are no longer able to provide care and advocacy.

"What will happen to them when I die?" is a common catch-cry, and unfortunately we hear all too often of people who have been left without adequate supports.

A recent South Australian case highlights the potential for things to go wrong when there is no-one responsible for overseeing the quality of care given to a person with a disability.   In this case, a care worker was charged with manslaughter after the disability care recipient died from severe septic shock, organ failure, severe pressure sores, malnutrition and issues connected with her cerebral palsy.

Investigations into the care that the recipient was being provided following her parent's passing in 2009 also found that:

  • Jewellery worth approximately $35,000.00 was missing;
  • Two refrigerators were missing from the home;
  • The recipient’s car was being used by an unknown person;
  • Two separate loans totalling $70,000.00 were taken in the recipient’s name; and
  • Large cash withdrawals, disproportionate to her lifestyle had been withdrawn from her account.

The role that care and support workers provide to persons with disabilities and their families in our community is so important. Although most support workers are wonderful, caring people, it can be a matter of concern for family members  when they are no longer in a position to oversee the quality of care and wellbeing of their loved ones with disabilities.

VCAT Appointed Administrator / Guardian

One potential option is to make application to the Victorian & Civil Administrative Tribunal (VCAT) for an Administrator and/or Guardian.

An Administrator manages the financial and legal affairs of a person who is unable to make these decisions because of their disability and a Guardian makes decisions with respect to lifestyle, accommodation and access to services.

In both of these roles, there is the option to appoint a Supportive Administrator and/or Guardian who is appointed in circumstances where an adult is able to make their own decisions but requires assistance to act on those decisions. Both types of appointments are particularly useful when the person has disability impacting their decision-capacity and preventing them from nominating a Power of Attorney, and also where they no longer have caregiving parents who are able to fulfil this role informally.

Having a trusted Administrator appointed can add a level of oversight to the financial affairs of a persons with a disability, enabling this person to touch base with the caregiver/s and support worker/s for the person with a disability, raise concerns, change providers, and advocate for change where appropriate.

An Administrator is able to be appointed even when there are limited assets involved.  They may support a person with disability as follows:

  • Acquiring relevant information to assist the care recipient;
  • Communicating information about them to others;
  • Conveying the person’s decisions or helping them to communicate their decisions to others; and
  • Acting upon the decisions of the person.

It is expected that an Administrator will do everything possible to find out the preferences of the care recipient and act in accordance with what is important to the recipient, as far as practicable.

Creation of Trust

Another option available to family members includes, if you pass assets to a person with a disability (either during your lifetime, or after your death by Will), you may choose to do so using a trust structure.

One advantage of establishing a trust is that it allows you to nominate a trusted person or company as the Trustee, and to dictate how the funds are to be managed.

A trust may be specific to your loved one – for example, we have been involved in the establishment of a trust that went so far as to require the Trustee to ensure the disabled beneficiary had access to cigarettes, and regular pedicures, as these two things were extremely important to the family.  Depending on the circumstances, these can also be effective in maintaining access to the disability support pension where it may otherwise be lost due to excess assets.

Regardless of their financial situation, it is important that all people with disabilities receive appropriate care and advocacy.  Discussing your options with a trusted legal team may assist with identifying the best protection available for your loved one.

Please do not hesitate to contact our VCAT Administration Team at Burke & Associates Lawyers. Please contact Rohani Bixler, Special Counsel, Rosy Roberts, Principal and Shabitha Sumanathasa, Lawyer.

Contacts

Rosy Roberts

Principal

Rosy Roberts

Principal
LL.B (Hons) B.A GAICD
Rosy has extensive experience in Litigation & Alternative Dispute Resolution having represented clients in all Victorian State Courts and the High Court of Australia. She is also a VCAT appointed Administrator.

Rohani Bixler

Special Counsel

Rohani Bixler

Special Counsel
LL.B (Hons) BA (PSYCH)
Rohani holds a Bachelor of Arts (Psychology) and a Bachelor of Laws (Honours) from Monash University, and has practiced exclusively in the areas of estate planning, deceased estate administration and estate litigation and disputes since...

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