VCAT has power in some circumstances to make an order that a person be represented by another person.
It can make either an administration order or a guardianship order, or both.
Administration orders are akin to financial powers of attorney.
Guardianship orders are akin to guardianship powers of attorney.
Just like powers of attorney, VCAT can impose restrictions and limitations on the powers it gives to administrators and guardians. The principal consideration of VCAT is that it will make the least restrictive orders possible, recognising that the represented person should be able to make as many decisions about him or herself as possible.
The threshold issue for VCAT is whether the person has a “disability”. This is defined as “intellectual impairment, mental disorder, brain injury, physical disability or dementia”.
Without a finding that a disability exists, VCAT cannot make orders.
Very often relatives of persons with a disability must go to VCAT for such orders because there is no existing power of attorney, and the person no longer has the capacity to make one.
Going to VCAT is a fairly cumbersome process and can involve cost if lawyers are involved, so best practice is to have both a financial and a guardianship power of attorney in place – both can be expressed, if desired, to only take effect when incapacity arises.
Peter J. R. Gauld LL.B
Gauld & Co. Elder Law Solicitors
Suite 5, 1st Floor,
838 Glenferrie Road,
Hawthorn, Melbourne, Australia, 3122.
03 9024 3868
0401 230 711
June, 2013, Melbourne, Victoria.