ADMINISTRATION ORDERS MADE IN THE GUARDIANSHIP LIST AT VCAT
The relevant sections of the Guardianship and Administration Act 1986 which apply to the making of administration orders for persons with disabilities are found in Part 5 Section 43 to Section 60.
Any person may apply to appointed an Administrator (s43(1))
The person to whom the application relates must be over 18 years (s43(1))
The proposed represented person (RP) must have assets in Victoria but does not have to live in Victoria. (s43(2))
Notice of any application should be given to the nearest relative of and the primary carer of the proposed represented person, the Public Advocate, any guardian of the proposed represented person, and anyone who has advised the Tribunal that they are an interested party (s44)
The Tribunal must be satisfied that the proposed represented person has a disability and by reason of the disability cannot make reasonable judgements about their finances and is in need of an administrator.(s46)
The Tribunal will require medical evidence to support a finding that the proposed represented person suffers with a disability and the extent of that disability.
The Tribunal requires the consent of the proposed administrator save where State Trustees Limited (STL) is appointed. STL is obliged to accept any appointment). Before making an administration order, the Tribunal must be satisfied that the proposed administrator will act in the best interests of the RP, that there is no conflict of interest, that the proposed administrator has sufficient expertise or the proposed administrator has a special relationship or there is some other special reason for the appointment.
Further the Tribunal must take account of the wishes of the proposed RP and the administrator’s compatibility with the proposed RP and any guardian. (s47)
A professional administrator may only charge if there is an order to that effect. (s47A)
The Order will specify the powers granted to the administrator under Division 3 and Division 3A of Part 5 of the Act. The Tribunal can make limited administration orders – limiting the powers of the administrator to specified aspects of the proposed represented person’s financial affairs. The administration order can be limited to the management of specific property or entitlements, to bringing a Part IV claim, to conducting a TAC or damages claim or other litigation. (s48) Note that an administrator can bring or defend a claim as an administrator and does need to be appointed by the Court as a Litigation Guardian.
Any administration order lapses on the death of an RP. (48(4))
Administrators must act in the best interests of an RP, assist the RP to become capable (if possible) of administering the RP’s own financial affairs and consult the RP as to the RP’s wishes. (s49)
An administrator can do all things necessary to give effect to the powers and duties vested in the administrator. However an administrator cannot make a will for an RP. An RP may have capacity to make a will, otherwise a statutory will would be necessary. (s50)
An administrator can make gifts on behalf of a RP – they should be seasonal or for a special event, reasonable and restricted to charities with which the RP has been connected in the past or relatives or close friends, Gifts should be consistent with RP’s past practice and if $100.00 or more is given to the Administrator or a charity connected with the administrator it must be reported to the Tribunal. (s50A)
An administrator may in the administrator’s discretion, invest the RP’s assets in bank deposits, in investments authorised by the Trustee Act or maintain the investments they are at the time of appointment.(s51)
An RP is incapable of dealing with finances or entering into a contract without an order from the Tribunal or written consent of the administrator. Any such dealing is void and recoverable by the administrator.
However no dealing is invalid when made for adequate consideration in favour of a person who proves that he or she acted in good faith and could not have reasonably known that he was dealing with an RP.
Any sale or other disposition of RP’s assets does not affect RP’s interest or the interest of any beneficiary of RP whether or not RP had testamentary capacity. (s53 & s53A)
The Tribunal may open and read a will of RP (s54)
The administrator may ask the Tribunal for advice. If the administrator undertakes any course with the approval of the Tribunal then no action will lie against the administrator in the absence of fraud, wilful concealment or misrepresentation. (s55).
Any creditor, beneficiary, next of kin, guardian, nearest relative, primary carer or the Public Advocate may apply to the Tribunal on any matter arising out of the administration. (s56)
The Tribunal may order an audit of the administrator’s accounts and can disallow any item in the accounts. However the Tribunal cannot make an order disallowing an item if the Tribunal is satisfied that the administrator acted in good faith and with reasonable care. (s58)
Annual accounts by administrators are standard practice – ABA’s are required of administrators except in special circumstances such as limited orders relating to particular litigation where the administrator does not manage any day to day funds. It is then usual for the administrator to report to the Tribunal at the conclusion of the litigation.
Administrators generally manage the affairs of RP and exercise all of the rights which the RP could exercise if RP had legal capacity. (s58B)
On ceasing to be an administrator, or on the death of RP all funds and assets must be transferred or delivered to RP or the personal representative, subject to satisfaction of any amount due to the administrator for costs expenses and liabilities.(58D)
On the ceasing to be under administration or dying, the RP or his personal representative is entitled to examine accounts, take copies and be provided with any information reasonably required.