If someone you know has not made a Power of Attorney and no longer possesses decision making capacity (due, for example, to a decline in cognitive function), an application will need to be made to a Tribunal for Administration and/or Guardianship Orders, to enable another person to be appointed to make decisions on behalf of the person who does not have decision-making capacity.
In Victoria, Administration and Guardianship Orders are made by the Victorian Civil and Administrative Tribunal (“VCAT”).
An Administration Order appoints a person (known as an administrator) to make financial and legal decisions on someone’s behalf. A Guardianship Order appoints a person (a guardian) to make lifestyle and accommodation decisions, such as where someone lives, who they live with, the type of accommodation, who is allowed to visit and what activities they partake in. Whether both Administration and Guardianship Orders are required will depend on the individual’s circumstances, as a person can have the capacity to make some decisions for themselves, whilst lacking the capacity to decide on other matters.
VCAT will only make an Administration and/or Guardianship appointment for a person where the Tribunal is satisfied that the person:
(a) Does not have a valid Power of Attorney already in place, and
(b) Does not have the requisite capacity to make reasonable decisions on their own, which must be supported by expert medical evidence.
Where there is more than one person who wishes to be appointed as the decision maker for a person, this can significantly increase the time and expense of obtaining an order from VCAT (as the application becomes contested), in addition to often causing rifts or issues between close family members.
VCAT aims to make orders that allow the individual to retain as much freedom as possible. In fact, under Victorian legislation that commenced on 1 March 2020, VCAT is required to presume that a person has the capacity to make decisions unless evidence is provided otherwise.
This legislation, known as the Guardianship and Administration Act 2019, also provides a framework for supported decision making, so that a person with a disability can be supported to make decisions for themselves.
As our population now lives longer, we increasingly suffer from conditions which are not life-threatening but which can have a lasting impact on their decision-making capacity (for example, dementia, stroke or simply diminished cognitive function).
As a result, it is preferable to consider who you wish to make your financial, personal and medical treatment decisions well in advance of any potential decline in your decision making capacity and formalise these appointments in a Power of Attorney document.
Appointing someone you trust to be your Attorney prior to the loss of decision making capacity allows you to discuss your preferences with your Attorney. As such, should your Attorney need to act on your behalf, they will feel confident that they are making decisions for you that you would be content with, and align with your wishes and values.
Ensuring Powers of Attorney are in place also enables you to have control over who makes decisions on your behalf if you do lose capacity to make such decisions. Without Powers of Attorney, VCAT has broad discretion to appoint someone to make your decisions which may be contrary to your wishes, particularly if an independent Administrator or Guardian is appointed.
Our team of expert lawyers can assist you to identify people in your life who are well suited to the role of your Attorney/s and advise you on the powers or restrictions that may be placed on them.
Any person can apply to VCAT where they believe a person requires support or assistance in their decision making, and it is not apparent that valid Powers of Attorney have been implemented by that person. However, determining whether an application is required, and commencement of the application and Tribunal process can be complicated. Most people will benefit from legal advice and assistance.
If you believe a family member or friend needs assistance as they appear no longer able to make reasonable decisions for themselves, it may be necessary to seek legal advice, and to make an Application to VCAT. Our team of lawyers can guide you through the Application process and, if necessary, represent you at the VCAT Hearing to ensure that the best outcome is achieved for the individual who requires decision making support, in the most and timely manner.