Self Appointed Decision Makers versus VCAT appointed Administrators

1. Self Appointed Decision Makers versusVCAT appointed Administrators

2. 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?

3. 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.

4. Keep Control – Make it easy • Direct Debits • Financial Counselors FCRC 9663 2000/1800 134 139 • Centrepay – www.centrelink.gov.au and search under “centrepay”

5. 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.

6. 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.

7. 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.

8. 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.

9. Changing Powers • Revoke and make out a new one. • Give new directions in writing to Attorney/other party.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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).

15. 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.

16. Appointed Administratormust • 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.

17. 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.

18. 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.

19. Disadvantages of Administration • Once on an order, may be difficult to displace without expert evidence.

20. 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.

21. 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.

22. 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.

23. 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

24. 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.

25. 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.

26. Legal Advice and Representation re Powers of Attorney and Administration Orders Private solicitors. Call Law Institute Referral service 9607 9550.