When someone loses capacity without an enduring power of attorney, no one automatically has authority over their money or where they will live. That authority must come from the Victorian Civil and Administrative Tribunal, VCAT, through a guardianship or administration order: a guardian for personal and lifestyle decisions, an administrator for financial and property decisions. It is too late to sign a power of attorney once capacity is gone.
In this article
- Why a power of attorney does not help once capacity is already lost
- What is the difference between a guardian and an administrator?
- Who can apply, and what does VCAT need to be satisfied of?
- How does the VCAT process work?
- What a guardian or administrator can and cannot do
- The cost of not planning ahead
- What families in this situation should do first
- How we help
- Common questions
Why a power of attorney does not help once capacity is already lost
An enduring power of attorney is a document a person signs while they still have decision-making capacity, appointing someone to act for them if capacity is later lost. It is one of the most useful documents a person can have. Our guide to enduring powers of attorney in Victoria explains how to put one in place. The problem is timing: once someone no longer has capacity to understand what they are signing, it is too late to make a valid appointment. Families who did not get to this step in time are left with no lawful decision-maker, and that gap is exactly what guardianship and administration orders are designed to fill.
What is the difference between a guardian and an administrator?
The Victorian Civil and Administrative Tribunal, known as VCAT, can appoint two distinct types of substitute decision maker under the Guardianship and Administration Act 2019. Where a person can still make their own decisions with support, VCAT can instead appoint a supportive guardian or supportive administrator, whose role is to help the person make and carry out their own decisions rather than decide for them, and VCAT must consider whether that less restrictive option would meet the person's needs before appointing a guardian or administrator. The two substitute roles are worth keeping separate in your mind:
- A guardian makes personal and lifestyle decisions: where the person lives, the health care and support services they receive, and day-to-day welfare matters.
- An administrator makes financial and property decisions: managing bank accounts and income, paying bills, and dealing with real estate or other assets.
VCAT can appoint the same person to both roles, split them between two people, or appoint a professional or independent body where family members are unavailable, unsuitable, or in conflict. For financial administration, that independent option is often a professional administrator or trustee company; for guardianship, it is the Public Advocate, a statutory office that exists specifically to act for Victorians who have no one appropriate willing or able to take on the role.
Who can apply, and what does VCAT need to be satisfied of?
Almost anyone with a genuine interest in the person's welfare can apply: a family member, a treating doctor, a hospital social worker, an aged care provider, or the person themselves. VCAT will only make an order if it is satisfied, broadly, that the person has a disability that affects their decision-making, that because of that disability they do not have decision-making capacity for the matters in question, that they are in need of a guardian or administrator because the matters cannot be dealt with by informal or less restrictive means, and that the order will promote their personal and social wellbeing. A disability for this purpose can include an intellectual disability, an acquired brain injury, dementia or another cognitive impairment. The law presumes a person has capacity, and treats them as having it if they could make the decision with practicable and appropriate support.
A guiding principle runs through every VCAT guardianship decision: orders should be no broader and no more restrictive than necessary, and should support the person to make their own decisions wherever they still can, rather than take that autonomy away wholesale. An order limited to managing a pension and paying rent looks very different from a full administration order over a complex investment portfolio, and VCAT tailors the order to what is actually needed.
How does the VCAT process work?
An application is made to VCAT with supporting evidence, typically a medical or specialist report addressing the person's decision-making capacity, along with details of the decisions that need to be made and who is proposed to make them. VCAT must give notice of the hearing to the person the application concerns and to their close family members, all of whom are entitled to attend, give their views, and if they wish, propose a different decision-maker. Hearings are deliberately less formal than a court, and the person concerned has the right to be there and to be heard, in person or through a representative, even where their capacity is in question.
Orders are not indefinite. VCAT sets a review date and can vary, renew or revoke an order as the person's circumstances change, including ending it altogether if capacity is regained, which does happen after some injuries and illnesses.
What a guardian or administrator can and cannot do
An appointment is not a blank cheque. A guardian's authority is limited to the specific matters the order covers, commonly accommodation, health care and access to services; anything outside the order remains outside the guardian's power. An administrator must keep the represented person's money and property separate from their own, keep proper records of every transaction, and make decisions that give effect, as far as practicable, to that person's own will and preferences or, where those cannot be worked out, that promote the person's personal and social wellbeing, rather than the family's convenience. Administrators must lodge annual accounts with VCAT, which are independently examined, and VCAT can reassess or revoke the appointment if the estate is being mismanaged; major steps such as selling a home usually call for specific authorisation. Both roles carry real personal responsibility, in much the same way an executor is personally answerable for how they handle an estate.
The cost of not planning ahead
The practical difference between an enduring power of attorney signed in advance and a VCAT application made after capacity is lost is significant. An EPOA is a private document, prepared and signed on your own timetable, naming the person you actually trust. A guardianship or administration application, by contrast, unfolds on the tribunal's timetable, requires medical evidence to be gathered, can involve costs for medical reports and legal advice, and gives VCAT, not the family, the final say over who is appointed. Where relatives disagree about who should take on the role, or where there is a history of family conflict, VCAT may decide that no family member is appropriate and appoint an independent administrator or the Public Advocate instead. Bills, care decisions and time-sensitive matters can sit in limbo while an application is prepared and heard, at exactly the moment a family can least afford the delay.
What families in this situation should do first
If a loved one has already lost capacity and has no enduring power of attorney, do not wait for a crisis to force the issue. Banks and service providers will eventually require formal authority, and it is far easier to prepare a considered application than to seek an urgent one. Gather evidence of the person's current medical and functional situation, identify which decisions actually need to be made, whether that is health care, accommodation, finances or all three, and discuss as a family, where possible, who is best placed to take on the role before the application is filed. If capacity has not yet been lost, for example following an early dementia diagnosis, there may still be a window to put an enduring power of attorney and other estate planning documents in place, which avoids this process altogether. Read our guide to advance care directives in Victoria.
How we help
Spencer Alexander Lawyers advises families through both sides of this issue: preparing enduring powers of attorney and estate planning documents while there is still time, and, where that window has closed, preparing and presenting VCAT applications for guardianship and administration orders, including where family members disagree about the right outcome. We set out our fees in writing before any substantive work begins. Learn more about our wills and estates practice.
Common questions
Can we still sign an enduring power of attorney after a parent has lost capacity?
No. An enduring power of attorney has to be signed while the person still has decision-making capacity, and once they no longer have capacity to understand what they are signing, it is too late to make a valid appointment. From that point, authority has to come from VCAT in the form of a guardianship or administration order.
What is the difference between a guardian and an administrator in Victoria?
A guardian makes personal and lifestyle decisions: where the person lives, the health care and support services they receive, and day-to-day welfare matters. An administrator makes financial and property decisions, such as managing bank accounts and income, paying bills and dealing with real estate or other assets. VCAT can appoint the same person to both roles, split them between two people, or appoint a professional or independent body.
Who can apply to VCAT for a guardianship or administration order?
Almost anyone with a genuine interest in the person's welfare can apply: a family member, a treating doctor, a hospital social worker, an aged care provider, or the person themselves. The application is made with supporting evidence, typically a medical or specialist report addressing the person's decision-making capacity, along with details of the decisions that need to be made and who is proposed to make them.
Does a guardianship or administration order last forever?
No, orders are not indefinite. VCAT sets a review date and can vary, renew or revoke an order as the person's circumstances change, including ending it altogether if capacity is regained.
The Victorian Civil and Administrative Tribunal publishes its guardianship and administration application forms and guidance on its website.
Facing a capacity issue in your family, with or without a power of attorney in place? We can advise on the right path forward. Call (03) 9125 8355 or send an enquiry.
This guide reflects the law applying in Victoria as at September 2026. It is general information only, not legal advice, and does not take your circumstances into account.
