VCAT – Guardianship and Administration Matters

Guardianship and administration address different kinds of decisions. The authority given to an appointed person depends on the terms of VCAT’s order.

Guardianship

A guardian makes decisions about specified personal matters. These may include where a person lives or the services they receive.

The appointment does not give the guardian unrestricted authority over the person’s life. We can explain the scope of an existing order or advise whether a guardianship application may be appropriate.

Administration

An administrator makes decisions about specified financial and property matters. These may include managing accounts, paying expenses or dealing with property.

Administration in this context concerns the affairs of a living person. It is different from administering a deceased estate.

We advise on administration applications, the responsibilities of appointed administrators and concerns about how a person’s finances are being managed.

The Office of the Public Advocate explains the roles of VCAT-appointed guardians and administrators.

Decision-making capacity relates to the particular decision that needs to be made. A person may have capacity for some decisions but need assistance with others.

Having a disability or a diagnosis such as dementia does not, by itself, establish that a person needs a guardian or administrator. The available support and less restrictive alternatives must also be considered.

We can help assess the legal issues, identify relevant evidence and consider whether decisions can be supported without a substitute decision-maker.

Our approach recognises the importance of the person’s wishes, dignity and ongoing involvement in decisions affecting their life.

An application may be appropriate where an adult with disability cannot make a necessary personal or financial decision, even with appropriate support, and there is no suitable less restrictive alternative. Its guidance on applying to VCAT explains what the Tribunal considers when deciding whether an order is needed.

Concerns may also arise about decisions being made by an existing attorney, guardian or administrator.

We can review the circumstances, any existing appointments and the decision that needs to be made before advising on the appropriate application.

Applying to VCAT can feel daunting, especially where there are differing views within a family. We help you understand the purpose of the application, the information required and the issues VCAT will consider.

Our assistance can include:

• advising whether an application is appropriate;
• reviewing existing powers of attorney and VCAT orders;
• preparing applications and supporting material;
• responding to applications made by another person;
• advising on proposed appointments and their scope; and
• seeking reassessment of an existing order where appropriate.

We also advise on guardianship and administration matters in other Australian states and territories, where different laws and processes apply.

Any adult can apply to VCAT for a guardianship or administration order. Applicants may include family members, friends, carers or others concerned about the person’s circumstances.

Making an application does not mean an order will be made or that the applicant will be appointed. VCAT considers the person’s needs, wishes and circumstances, along with the suitability of any proposed appointee.

An enduring power of attorney can give someone significant authority over financial or personal matters. Concerns may arise about the document’s validity, the circumstances in which it was signed or the attorney’s conduct.

We advise on matters involving:

• concerns about capacity or undue influence when an appointment was made;
• suspected misuse of funds or unauthorised transactions;
• decisions that may fall outside the attorney’s authority;
• conflicts of interest; and
• disputes about how an appointment is operating.

Depending on the circumstances, an application to VCAT may be available to review or revoke an enduring power of attorney, address an attorney’s conduct or seek compensation for loss.

We can explain the available legal avenues and the evidence needed to pursue them. For advice on putting appropriate arrangements in place, see our Wills and estate planning services.

Medical treatment decisions operate under a separate Victorian legal framework. An enduring power of attorney for financial and personal matters does not, by itself, authorise medical treatment decisions.

Where a person lacks capacity for a particular medical treatment decision, the law identifies who has authority to act. This may be an appointed medical treatment decision maker, an appropriately authorised guardian or another person recognised by the legislation.

A guardianship order is not always needed. We can advise on existing arrangements and concerns or disputes about decision-making authority. The Powers of Attorney Act 2014 (Vic) sets out the legal framework for enduring powers of attorney.

Elder abuse involves harm or distress to an older person within a relationship of trust. It can include financial exploitation, psychological or physical abuse, and neglect. Seniors Rights Victoria provides information about recognising elder abuse.

Financial concerns may involve pressure to transfer property, unexplained withdrawals, misuse of a power of attorney or transactions made without proper authority.

Raising these concerns can be distressing, particularly where the person responsible is a relative or trusted adviser. We provide sensitive advice to affected clients and their authorised representatives, focusing on the person’s wishes and legal position.

Depending on the circumstances, we can advise on:

• recovery of misappropriated funds;
• challenging property transfers or other transactions;
• applications concerning powers of attorney;
• compensation claims;
• reassessment or replacement of guardians and administrators; and
• claims involving professionals who may have breached their duties.

The appropriate action depends on the evidence, the legal basis of the claim and the Court or tribunal with authority to determine it.

Useful information may include:

• any powers of attorney or medical treatment appointments;
• existing VCAT orders;
• relevant medical reports;
• financial records or details of concerning transactions; and
• a brief outline of the decisions or events causing concern.

You do not need to have every document before contacting us. We can help identify what further information is needed and whether any issue requires prompt action.