Sue Lyttleton has been acting as a specialist VCAT Administration lawyer for over 25 years. VCAT have entrusted Sue with the management of the financial affairs and VCAT legal advice of many represented persons covering a wide range of issues.
VCAT Legal Advice
The role of Suzanne Lyttleton Lawyers when acting as Administrator is broad and covers many issues, including:
Day to day management of financial affairs;
Managing family conflict on behalf of the Represented Person;
Selling Real property and personal property
Negotiating with aged care providers;
Liaising with the Office of the Public Advocate;
Managing Self-Managed Superannuation Funds;
Selling and buying stock; and
Managing the Represented ATO obligations
VCAT Financial Administration
In circumstances where a person no longer has capacity to make decisions in relation to their personal, financial and/or legal affairs (“the Represented Person”) an alternative decision maker may be appointed to “step into the shoes” of the Represented Person to make and give effect to decisions they no longer have capacity to make.
It is often the case that a Represented Person has executed an ‘Enduring Power of Attorney’ (“EPA”) appointing an Attorney to act in relation to their personal and/or financial affairs. When the Represented Person loses capacity (or another time as specified) the Attorney can commence management of the Represented Person’s affairs on the authority of the EPA.
If the Represented Person has not executed an EPA, the Victorian Civil and Administrative Tribunal (“the Tribunal”) has the power pursuant to the Guardianship and Administration Act 2019 (Vic) (“the Act”) to appoint alternative decision makers as required. If the Represented Person has an EPA and the Attorney is no longer able to act (whether by way of conflict, unwillingness or inability) the Tribunal can suspend or revoke the EPA and appoint alternative decision makers.
Before appointing any alternative decision maker, the Tribunal must be satisfied that the Represented Person is an adult with a disability, and that by way of that disability, the Represented Person does not have decision making capacity. There needs to be an identifiable “need” for a such decision maker to be appointed. Whether there is a “need” will turn on the individual circumstances. Further to this, the Represented Person must either reside or own assets in Victoria.
If the above pre-requisites are established, the Tribunal may appoint an Administrator to make financial and property decisions (i.e. buying/selling property, banking, managing debts and attending to payment of expenses) and/or a Guardian to make personal lifestyle decisions (i.e. living arrangements, work arrangements and access to services). In some instances, Guardians may be authorised to make medical treatment decisions. Both Administrators and Guardians may be authorised by the Tribunal to commence or defend legal proceedings on behalf of the Represented Person.
The Act clearly sets out the eligibility criteria for a person to be appointed as Guardian and/or Administrator. In general terms, the eligible person must be over 18 and consent to the appointment. The Tribunal must be satisfied that the interests of the proposed Guardian and/or Administrator will not conflict with the Represented Person’s best interests and that they are suitable to act (having regard to the circumstances and needs of the Represented Person). Where an Administrator is to be appointed, the Tribunal must be satisfied the proposed Administrator has sufficient expertise to make financial decisions.
In many situations, a family member or close friend is appointed. However, there is sometimes a need for an independent, professional Guardian or Administrator to act.
The Act obliges Guardians and Administrators to act in such a way that progresses the Represented Person’s personal and social wellbeing. They are expected to work together on decisions that have guardianship and financial aspects.
The Tribunal oversees the actions of Guardians and Administrators, with both decision makers answerable to the Tribunal for decisions and actions made in relation to the Represented Person. As Administrators manage the financial affairs of Represented Person, they are required to lodge annual accounts which are audited by State Trustees Limited. Guardianship and administration orders are routinely reassessed.
In circumstances where an independent professional administrator is required, lawyers in this office accept appointments as administrator from the Tribunal. Where it is proposed that a family member or friend be appointed, our team can assist with the application to the Tribunal seeking such an appointment.
For more information on having this office appointed as Administrator, or to discuss your application, please contact our office on 03 9646 4477.