In the situation where a person suffers from a disability whether medical or mental, and that disability is such that they are unable to carry out their financial affairs and no one has been appointed their Enduring Power of Attorney then the appointment of an Administrator may have to be made to protect their financial position.
If that person has already appointed an Enduring Power of Attorney then there may be no need to have an administrator appointed. However if the person has a General Power of Attorney then that will become void on the person suffering a disability. In most cases if the person suffers a disability that requires them to have an administrator appointed then they are unlikely to have the capacity to complete an Enduring Power of Attorney.
However, if the Attorney is not acting properly or has a conflict of interest then the Guardianship Board can revoke the Enduring Power of Attorney and appoint an independent administrator.
The process for the appointment of an administrator is by application to the Victorian Civil and Administrative Tribunal (Guardianship Division). The application must be supported with sufficient evidence of the disability suffered by the person. This is usually a report from a doctor or some other medical professional that confirms the physical or mental disability. The application can be made by any person.
The matter is then set down for a hearing which normally takes place at least a month after the application is sent off and will take place in an area close to where the person resides. In Ballarat they normally are heard at the court house. The hearing is very informal and notice is forwarded to all interested parties of the hearing date and time. This normally would be the family members, any personal carer, the applicant, the proposed administrator and the Lawyers who hold wills or other deeds.
At the hearing the chairperson must be satisfied that the person suffers from a disability and that there is a need for an administrator before they will appoint an administrator. Then they must decide who is best to be appointed in that position. They must consider if a family member or members can be appointed otherwise they would consider appointing an independent person or organisation. This can be a solicitor or State Trustees.
The appointment of an administrator is usually for a period of 3 years and then it is reviewed. Every twelve months the administrator must provide reports on the financial changes to the person's assets and list the income and expenses. This is similar to a profit and loss report and balance sheet.
The obligations of an administrator is to ensure he/she acts in the best interests of the person. As administrator he/she can deal with the assets of the person as if they were his/her own.
In the situation where a person suffers from a disability whether medical or mental, and that disability is such that they are unable to make reasonable decisions about their person or circumstances then a Guardian may need to be appointed for that person. There may not be a need for a guardian to be appointed if a person has been appointed Enduring Guardian.
A person who is appointed a guardian is responsible for making personal decisions on behalf of that person such as healthcare, accommodation, access to services and access to other persons.
The process for the appointment of a guardian is the same as for an administrator as described above. A relative or friend can be appointed a guardian but otherwise if no one is in a position to be appointed then the Public Advocate will be appointed.
Guardianship orders can be for a specific purpose or for a specific time. Urgent Orders
In some circumstances an administrator or guardian may need to be appointed urgently. For example: a person is seriously injured in a car accident and is unable to make decisions about her financial affairs or about her own health. She has a family who need to get access to her bank accounts to pay for normal living expenses and the doctor needs to get consent to perform an operation that has some risks. In these circumstances an application can be made over the phone with the doctor giving proof of the disability over the phone. The order can be made appointing an administrator who has immediate access to the bank accounts and a guardian who can consent to the operation. The order would normally be made only for a few weeks and then a normal hearing would take place. At that stage the person may be able to make decisions for herself and no order may be required.
An application can be made to the Guardianship Board at any time by the Administrator or Guardian if they want assistance with any decision they have to make. For example, the administrator may be concerned about selling a house because the person may want to return home but is unlikely to return because of a medical condition. Or a guardian may want to change nursing homes because the guardian believes the person needs more medical care which is not provided in the home, but the person refuses to change.
ANDREW BYRNE WILLS AND ESTATES SPECIALIST BJT LEGAL