What Happens if a Person Does Not Have Capacity and Does Not Have a Will?

Firstly, if you are unsure if someone has capacity, the person in question can be seen by their treating doctor to determine if they in fact have capacity or not.

If they do not have capacity an application to the Victorian Civil and Administrative Tribunal (VCAT) will have to be made for someone to be appointed ass administrator of represented person.  The role of an administrator is similar to that of an attorney, and they will be required to make financial decision on that person’s behalf.  The administrator, as is an attorney, is to act in the best interest of that person at all times when making financial decisions.

VCAT will require the administrator to submit an account by administrator each year and a financial plan for the represented person for the coming financial year.  Generally an administration order is ordered by VCAT for  2 or 3 years or so and the administrator and interested parties will need to return to VCAT at those times to seek a further order in relation to who is to be administrator.

If you require any assistance in relation to an Enduring Power of Attorney, contact Wollerman Shacklock on 03 9707 1155 or admin@wslegal.com.au.