Self Appointed Decision
Makers versus
VCAT appointed
Administrators
Scenario
• Christine is diagnosed with bi polar
disorder. Her doctors believe that when she
has highs (mania) she becomes incapable of
managing her finances. When she is not
experiencing those symptoms, she is quite
capable of managing her own affairs.
• What are Christine’s options?
Options:
• Set up systems to facilitate managing herself.
• An enduring power of attorney would allow Christine
to appoint an agent to act on her behalf in relation to
her financial and legal affairs when she is not capable.
• Under an EPA Christine would still be able to make
decisions and handle her affairs when she has capacity.
• Appointment of an administrator by VCAT most
restrictive option.
Keep Control – Make it easy
• Direct Debits
• Financial Counselors
FCRC 9663 2000/1800 134 139
• Centrepay – www.centrelink.gov.au and
search under “centrepay”
Centrepay
• Can pay rental, bills, child care, fines etc – as long
as owe organisation which is registered with
Centrelink.
• No cost – fee for organisation can’t be passed to
you.
• General minimum is $10 fortnight.
• By calling a Centrelink call centre can start
deductions without need to sign a form.
Appoint your own Alternative
Decision Maker
• General Power of Attorney - only effective while
you have capacity
• Enduring Power of Attorney – Continues to have
effect when deemed to have lost capacity.
• See “Take Control – a guide to powers of
attorney and guardianship” available from
Victoria Legal Aid or Office of Public Advocate.
Powers
• Can be given to one or more people
• If joint – must both/all agree
• If joint and several – attorneys can act together
or separately.
Powers
• Can be limited
• Must be exercised as you direct while you have
capacity – provide written directions to Attorney
and other party.
• Can be revoked while you have capacity – tell
attorney (if not actions still binding) and other
parties, fill out revocation form, destroy original.
Changing Powers
• Revoke and make out a new one.
• Give new directions in writing to
Attorney/other party.
Capacity to make informed
decision – cf quality of judgment
• Understand general nature of:
– Sorts of powers they will have – same as yours
– How/when they can use their power and how you
might be affected
– How you can limit, change or cancel power
– In case of Enduring P of A - continues if lose
capacity and Att. then not bound by directions.
Enduring P of A - if deemed to
have lost capacity
• Attorney not obliged to follow directions given
after lose capacity.
• Attorney must act with reasonable diligence
and in best interests and avoid acting in
conflict of interest.
Challenging Abuse of Powers
• Prevention best approach – directions,
limitations, agreement with third party to
monitor/direct if deemed to lose capacity.
• For General P of A – As soon as abuse is
suspected – revoke and notify.
• Enduring P of A – VCAT Guardianship List
can revoke, vary, make directions or give
advisory opinions about how being used.
Litigation
• Once power has been abused, if can’t achieve settlement
only avenue to recover damages for loss is civil action
in courts – VCAT won’t order compensation even re
Enduring P of A.
• Litigation difficult - access to legal
representation/capacity of attorney to compensate/can’t
recover from third party unless knew an abuse or order
revoked BUT fiduciary duty of attorney treated
seriously by courts.
Administrators appointed by
VCAT
Only if unable to make reasonable decisions
(as opposed to some objective assessment of
"best" judgments) by reason of disability (as
opposed to the range of reasons we all make
questionable decisions when unaffected by
disability).
Administrators
• Are appointed in relation to legal or financial
matters.
• Cf : Guardianship – relates to your “person or
circumstances” – decisions about how you live
your life such as where you live, physical health
treatment, employment, who you visit or are
visited by, whether you travel overseas.
Appointed Administrator
must
 Act in best interests
 Take into account as far as possible wishes of
represented person and
 Encourage and assist person to become capable
of taking control of estate.
Administration Orders
• Orders only to be made in cases where and in
relation to areas of life where there is no less
restrictive way of meeting needs, and after
person's wishes taken into account.
• Default administrator – State Trustees, though
Act requires wishes as to administrator to be
considered and says can’t assume family
member has conflict of interest.
Disadvantages of Administration
• Decision maker not appointed by you.
• Fees (up to statutory maximum) can be charged.
• VCAT or State Trustees can waive fees. State Trustees
waiver policy - if only get DSP, less than $3000
savings, limited savings capacity - will waive. If over
$3000 – discretionary to waive, though indication
from STs – if no more than $10,000, sole income
DSP/no capacity to save worth arguing for.
Disadvantages of
Administration
• Once on an order, may be
difficult to displace without
expert evidence.
Advantages of Administration
• More accountability than with Powers of Attorney?
– As well as taking concerns to VCAT, can complain to
Ombudsman (9613 6222) re State Trustees (and ST’s own
Client Relations Officers - 9667 6200 ).
– VCAT may order administrator to provide annual accounts /
G and A Act creates right to inspect / copy accounts.
– May get assistance in developing skills through State Trustees
Financial Independence Program.
Advantages of Administration
• May have more scope to avoid debts or
contracts which arise when unwell – Act
says transactions entered when under
administration are void, though if other
party can prove acted in good faith and did
not know of administration, not void.
State Trustees v Private
Administrators
• Many people report poor service from STs eg:
inaccessibility, poor communication, late payment of
bills, maladministration.
• Better accountability with STs.
• Beyond VCAT, no avenue for complaints about
conduct of private administrators – eg solicitor
complaints bodies won’t investigate complaints
about solicitors acting as administrators.
• Fee waiver.
Removing/Varying
Administration Order
• Can apply to VCAT for rehearing (within 28 days of
final order being made).
• Can seek reassessment of order at any time, and VCAT
must review orders at least every 3 years.
• At hearing, can ask for order to be discharged, for
change of administrator or to require administrator to do
something eg release funds/not sell an asset/only control
limited aspect of estate
What’s missing from this
“hierarchy” of options?
• The impact of psychiatric disability is often periodic
and capacity may be deemed lost for limited periods
only.
• Living Wills or Advance Directives would allow people
to make their own decisions in advance. Would be like
Enduring Powers of Attorney but directions given in
advance would have to be followed after deemed loss of
capacity. Anyone interested in this law reform issue
contact Merinda Epstein at Mental Health Legal Centre.
Legal Advice and Representation
re Powers of Attorney and
Administration Orders
• Consumers can contact Mental Health Legal
Centre 9629 1050/1800 555 887 or Victoria
Legal Aid Human Rights and Civil Law
section 9269 0416.
• Consumers and others can contact local
community legal centre – 9654 2204 for
referral, and may be able to get assistance from
Office of Public Advocate 96039500.
Legal Advice and Representation
re Powers of Attorney and
Administration Orders
Private solicitors. Call Law Institute
Referral service
9607 9550.