If someone you know does not have Powers of Attorney in place and no longer possesses decision making capacity, an Application will need to be made to the Victorian Civil and Administrative Tribunal (VCAT) for Administration and/or Guardianship Orders, to enable someone to make decisions on their behalf.

An Administration Order appoints a person to make financial and legal decisions on behalf of another.  A Guardianship Order appoints a person to make lifestyle and accommodation decisions on behalf of another, such decisions with respect to where someone lives, who they live with, the type of accommodation they live in, 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.

Administrators and Guardians can be appointed to act in a temporary or permanent manner, depending on the individual’s needs, but ordinarily, VCAT will make orders that allow the individual to retain as much freedom as possible.

As life expectancy increases, people are increasingly exposed to illnesses which are no longer life-threatening but which can have a lasting impact their decision-making capacity (for example; dementia or stroke).  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 Powers of Attorney.

Appointing someone you trust to be your Attorney prior to 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.

Ensuring Powers of Attorney are in place also enables you to have control over who makes decisions on your behalf if you do become incapacitated.  Without Powers of Attorney, VCAT has broad discretion to appoint someone to make your decisions which may be contrary to your wishes or expensive, 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 or Attorneys and prepare your Powers of Attorney so that you can rest easy knowing you will be taken care of should anything unexpected happen.

Alternatively, if you need to make an Application to VCAT to be appointed as someone’s Administrator or Guardian, our 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 you are looking out for.

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If your require any further information please contact our Wills & Succession Planning team.

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