Administration

All adults over the age of 18 years, regardless of disability, are entitled to make their own decisions. This is the case unless, when they were competent, they appointed a person to manage their legal and financial affairs under the enduring power of attorney (financial) and have now lost capacity.

An administrator can be someone appointed by the Victorian Civil and Administrative Tribunal (VCAT) to make financial and legal decisions for an adult who cannot make their own decisions. Administration is an important way to protect the finances and assets of people who cannot make reasonable decisions for themselves. When there is no family member, friend or legal professional, who is suitable to act as administrator, VCAT can appoint State Trustees as an independent administrator.

In emergency situations, VCAT can make a temporary administration order for up to 21 days. The temporary order can be made at very short notice. If necessary it can be extended for a further 21 days. Temporary orders allow VCAT to act swiftly to protect individuals who are at risk. VCAT can only make a temporary order when the person in question is at immediate risk and there are no less restrictive options for addressing the situation. Before the end of the temporary order VCAT must hold a hearing to decide whether an administration order is needed

Best interests and mediation

An administrator must always take into account the best wishes of the represented person (the person they are acting on behalf of).

In some cases, a person with a disability may be involved in conflict with people around them, including family members. In these cases, mediation may be used as an alternate way to resolve these issues, in an effort to avoid appointing an administrator unnecessarily.

Occasionally, separate or unrelated disputes between family, friends and carers can prevent them coming together to solve problems for the person with a disability.

If an application is made to VCAT, the Guardianship List may, in suitable cases, direct that there be mediation by a VCAT member.

However, if disputes can be resolved informally, there may be no need to apply to VCAT.

Alternately, there are some instances where there continues to be ongoing conflict even after VCAT appoints an administrator, or makes any other particular order to protect the person with a disability. VCAT does not always have the power to resolve these conflicts.

In these situations, the Dispute Settlement Centre of Victoria (DSCV) may be able to assist the parties to resolve their disputes. The process is confidential and free of charge.
DSCV may decline to take on the case if the person with a disability is unable to participate in mediation or has inadequate support. However, the Public Advocate (who generally protects and promotes the best interests of persons with a disability) may be able to support the person. DSCV may decide to refer the person to the Office of the Public Advocate (OPA) or, with the consent of the parties, may notify OPA and request that the Public Advocate become involved in the process.

For more information, visit the Dispute Settlement of Victoria website (www.justice.vic.gov.au/disputes) and the Victorian Civil and Administrative Tribunal website (www.vcat.vic.gov.au).

OPA and administration

There are several requirements of the Public Advocate outlined in the Guardianship and Administration Act 1986. The Office of the Public Advocate (OPA) assists in ensuring that these requirements are met.

Providing information to administrators, and investigating applications for the appointment of administrators when referred to us by VCAT, are just some of the tasks undertaken by OPA.

Section 15C of the Act specifies that the Public Advocate is to improve public awareness and understanding of the duties, powers and functions of guardianship and administration under the Act.

When the Public Advocate is appointed guardian for a represented person, the guardian often works cooperatively with the administrator for the represented person, in order to ensure that the person’s best interests are met. As State Trustees are often appointed administrator, OPA liases with State Trustees regularly through a liason committee.

Administration - missing persons

The Victorian Civil and Administrative Tribunal (VCAT) can appoint an administrator to manage the property and financial matters of a missing person.

VCAT can make an order appointing an administrator for the estate of a missing person if it is satisfied that:

• the person in respect of whom the application is made is a missing person
• the missing person usually resides in Victoria
• while the person is missing, there is, or is likely to be, a need for a decision in relation to their financial matters or property and the order is in the best interests of the person while missing
• an application is not on foot or an order made under section 24A of the Administration and Probate Act 1958.

When will a person be a missing person for the purposes of an application?

VCAT may be satisfied that a person is a missing person if satisfied that:

• it is not known whether the missing person is alive
• reasonable efforts have been made to find the missing person
• for at least 90 days, the missing person has not contacted anyone who lives at their last–known address, or any relative or friend with whom the person is likely to communicate.

How do you establish that it is not known whether the missing person is alive?

Knowledge of whether a person is alive refers to knowledge of those who would ordinarily be expected to have seen, or heard from or of, the missing person. It also refers to knowledge that the missing person is not dead, which may involve evidence of the results of any police enquiries or any physical search carried out in the area where the missing person disappeared. It may also involve there being no evidence of a deliberate disappearance.

What is meant by making reasonable efforts to find the missing person?

Reasonable efforts to find the missing person will depend on the particular circumstances of the case. However, they could include:

• informing the police
• the results of any police investigation
• carrying out a physical search and/or an internet search
• seeking media publicity
• listing the missing person on www.missingpersons.gov.au
• the involvement and enquiries by organisations such as the Salvation Army or Red Cross.

Who may be appointed as an administrator of a missing person's estate?

Any person can apply to VCAT for an order appointing an administrator in respect of the estate of a missing person.

Certain people are entitled to notice of an application. These people are: the missing person’s nearest relative available, the missing person’s primary carer or guardian, the Public Advocate and any person who has advised VCAT of an interest in the missing person or his or her estate.

 

 

 

Guides

Administration Guide (PDF 1.2 MB)