What happens if your loved one can no longer make their own decisions?
We are living longer which is fantastic, however for some of us it means we are living with Dementia, Alzheimer’s or some other disease which impacts our ability to make our own decisions and care for ourselves.
Don’t leave it too late
We are often contacted by family members whose parents or loved ones would like to put in place Power of Attorney documents and we are noticing the emergence of being unable to assist them in his regard as their parents or loved ones no longer have the legal capacity to put these documents in place. Invariably this leads to frustration for all involved, particularly those involved in the care of loved ones, who are confronted with issues of having a nursing home unwilling to admit their loved one without a Power of Attorney in place, or dealing with banks who do not allow them to access funds of their loved ones as they do not have the legal authority to do so.
What happens if no Power of Attorney is in place?
If your loved one no longer has decision making capacity and does not have an Enduring Power of Attorney in place, an application needs to be made to VCAT to appoint someone to act as their Administrator and Guardian. Usually, the person appointed as Administrator and Guardian is a relative or close friend of the person who no longer has capacity, however it can also be a trustee company if there is no suitable person or if VCAT deems that a trustee company would be the best option, particularly if there is strong conflict between family members who wish to be appointed Administrators or Guardians. One aspect of the application process of appointing an Administrator or Guardian is that sufficient medical evidence needs to be provided to VCAT by those making the application supporting that your loved one does not have decision making capacity.
The Role of an Administrator
The VCAT order pertaining to your loved one will stipulate precisely what powers their Administrator has, together with any restrictive powers, so it is important that this is carefully read and adhered to by the Administrator. Generally, the Administrator may make financial and legal decisions for your loved one, including buying everyday items that they require, paying bills, selling property, signing contracts on their behalf, managing their investments and paying financial support to dependants, including children. If your loved one needed to go into nursing home care your Administrator may sell their residence or other investments and use the sale proceeds to pay for a refundable accommodation bond in a nursing home facility and ensure that they receive the best possible care. The Administrator must account for all assets, liabilities, income and expenditure of your loved one and must lodge an Account by Administrator annually with VCAT and pay an annual administration fee. There are strict guidelines regarding the Administrator providing gifts and loans on behalf of your loved ones.
Gifts can be made from a loved one’s funds if it was normal practice that they previously did so for occasions such as birthdays and Christmas, however approval is required from VCAT for gifts that exceed $100. If the Administrator wished to lend any of your loved one’s funds to another party, approval must be sought from VCAT.
The Role of Guardian
A guardianship order is a legal document that allows the person appointed as the guardian to make personal lifestyle decisions for your loved one if they no longer have capacity. Such decisions may include where they live, the medical treatment that they receive and arranging access to services that they require. In some instances, the guardianship order may specify where your loved one is to live, or this decision may be left to the guardian to decide in the best interests of your loved one. A Guardian and Administrator must always act honestly, diligently and in good faith. They should always advocate for your loved one and make decisions in their best interests. It is highly recommended that everyone who has the ability to put a Power of Attorney in place does so whilst they have decision making capacity to do so. This allows them to appoint the person who they would like to make decisions for them in the event that they no longer have decision making capacity.
Ultimately, the person who is appointed by VCAT to act as your Administrator or Guardian may not be the person that you would have chosen to undertake these roles, but it provides an option of appointing someone to take care of you.