Should I obtain Guardianship/Administration Orders when my child with a disability turns 18 years?

When a person attains 18 years, the law presumes they have capacity to make decisions for themselves. Parents and carers are often worried how they can continue to legally manage the affairs of a child with limited or no decision-making capacity once that child becomes an adult.

At Duncan.Legal, we are often asked by clients whether they should lodge an application to the Victorian Civil and Administrative Tribunal (“VCAT”) for Guardianship and/or Administration Orders in anticipation of their family member with a disability transitioning into adulthood.

Our response is always the same – don’t make application to VCAT unless you absolutely have to!

A Guardianship Order appoints a Guardian for another person (“the represented person”) who lacks sufficient decision making capacity to make decisions for themselves. Specifically, a Guardian may make decisions on the represented person’s behalf about their personal and lifestyle matters, such as where that person lives, their health care, and their access to services, etc.

An Administration Order appoints a person to manage the financial affairs of a represented person.

If you are able to set up the affairs of the person with a disability and manage them independently once they become an adult without these Orders in place, then we recommend that you do so.

It is often easier to put infrastructure in place to manage the financial affairs of a person with a disability before they turn 18 years of age. Have the necessary bank accounts established and banking access protocols in place. Move any assets that may become problematic to manage later on. Make sure that you are the appointed Centrelink Nominee for the person, with the ability to receive all correspondence, and transact on behalf of the person.

However, it may be that you do need Guardianship and/or Administration Orders to be able to do certain important things for the represented person that cannot be achieved any other way. Often you will need to put some medical evidence of the person’s lack of decision making capacity before VCAT.

VCAT will only make Orders if you can show that they are needed, and even then will only make the least restrictive orders possible to achieve the purpose for which they are made. However, if VCAT is satisfied that the represented person will never have capacity for certain types of decision making, it can mean that Guardianship and/or Administration Orders may need to be in place for the represented person’s lifetime.

Duncan.Legal frequently hears from many clients who express regret at ever having applied to VCAT, particularly in relation to Administration Orders. The annual reporting requirements to VCAT are onerous, and every cent expended must be accounted for. Additionally, VCAT can sometimes require certain assets to be managed on behalf of the represented person in a way that does not align with your way of doing things, or it may require certain assets to be transferred into the name of the represented person. Some Administrators do not welcome this level of scrutiny or control.

If your family member has a disability affecting capacity that is permanent and VCAT has determined that it is appropriate to appoint an Administrator, then for the rest of the represented person’s life, they will require an Administrator. Once you have an Administrator appointed you can never cancel the appointment – there must always be someone who fulfils the role.

All this being said, there are many circumstances in which VCAT Orders for Guardianship and Administration are appropriate and proper.

At Duncan.Legal we recommend that you consider carefully whether you need VCAT Orders to continue to care for your person with a disability into their adulthood before making any applications. If Duncan.Legal can be of assistance in relation to this question, please do not hesitate to make contact.