The Importance of Powers of Attorney & Wills

“Help! My mum is in hospital and has dementia. She needs urgent medical attention, what do I do? “

Why is it important to have Powers of Attorneys?

Surprisingly, this is a question we get asked far too often for our liking. Talking about estate planning is daunting and a topic no one wants to discuss, sad right? But it needs to be done!

One of the most common scenarios is when mum or dad has a fall and is admitted to the hospital. The doctors advise mum or dad does not have capacity to make decisions and there are no power of attorney documents in place. Due to there not being any nominated attorney, we then have to bring a guardianship application at VCAT to appoint you or a suitable person to be the administrator.

How to Apply to VCAT?

An application once submitted to VCAT may not be heard for up to one month.

This application involves presenting medical evidence, being an up to date and relevant medical report that establishes the disability or inability to make reasoned decisions of the person you are seeking an order for.

The Application must also reference known relatives and other interested people. VCAT must be informed that any person with an interest in the person to be represented is made aware of the application. This is a fairly broad category and includes a child, a spouse, a career, friend, lawyer etc. This list is not exhaustive.

Once the application is received VCAT will set a hearing date and you must physically attend the tribunal whereby a member will determine whether or not the person who applied is suitable. Further, someone may object to the guardianship application raising further complications and further delay.

When you make an application you must sign a declaration that the information you provided is true and correct. It is an offence under section 136 of the Victorian Civil and Administrative Tribunal Act 1998 to knowingly give false or misleading information to VCAT.

VCAT and Hearing Day of Your Application

On the day of the hearing, you must attend and the VCAT member appointed to hear the matter will determine the application. If an interested party attends and objects to the application no decision will be made on the hearing date. If the member is not convinced based on the Application before them they may ask for further documentation or further evidence or adjourn the matter to a further hearing. Simply put the VCAT application is stressful, timely and unnecessary and could be avoided if a power of attorney was in place.

It is most important to note that whilst the VCAT application for guardianship is being made, mum or dad are still in hospital, in limbo with no one who has legal authority to make decisions of their behalf. This means that no decision surrounding their medical treatment can be made.

The best way to prevent this happening is to make sure that your parents have attended to their estate planning. By this we mean three documents – Medical Power of Attorney, Enduring Power of Attorney and a Will.

Contact Argent Law today to be helped with above-mentioned documents or to discuss your concerns.

Latest Will & Estate Article