In Victoria, if a person aged 18 or more is no longer able to make reasonable decisions for themselves (and the relevant powers of attorney have not been obtained) an application to VCAT (the Victorian Civil and Administrative Tribunal) may be made to have a guardian or administrator appointed to make decisions for them.
The person who is the subject of a guardianship or administration order is described as a ‘represented person’. A guardian makes decisions about a represented person’s personal and lifestyle matters. Examples of such decisions might be where a represented person will live. The relevant legislation is the Guardianship and Administration Act.
Types of Guardianship Orders
There are two different types of possible guardianship orders. The first is known as a limited order. This will specify the type of decisions a guardian can make. It might include such things as accommodation decisions, decisions about medical and dental treatment, decisions about any employment the represented person is to undertake and with whom the represented person is to have contact.
The second kind of guardianship order is a plenary or absolute one which effectively allows the guardian to make all medical, personal and lifestyle decisions for the represented person. A guardian may be a friend or relative.
An administrator is different to a guardian. Administration may be necessary where a person becomes unable to effectively manage their own financial matters. An administrator is only able to make legal and financial decisions regarding a represented person’s financial affairs. Examples would include paying bills, conducting banking for the represented person and selling property.
An administrator may be a relative, friend, lawyer or accountant. A trustee company may also be appointed as an administrator.
Obligations of Guardians & Administrators
Guardians and administrators must act in the best interests of the represented person. They must also take into account the wishes of the represented person and give effect to these wherever possible. Conflicts of interest between the appointed person and the represented person must also be avoided.
Substitute for Power of Attorney
An application to VCAT for a guardianship or administration order may only arise where a person has been having problems for a significant period. Bills may not be paid and other elements of that person’s life may have been continuing for some time. It is also the case that applications to VCAT are often made in difficult circumstances of great stress and emotion.
Far better to have planned in advance of the problem and for the appropriate powers of attorney to have been granted to the right people.