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Protecting your best interests

When you appoint an attorney or guardian you are giving a great deal of power to another person. They will have the authority to make important decisions about your life without being formally monitored.

Your attorney or guardian does not have to submit any reports about their decisions or show how they have acted in your best interests, unless they are asked to by the Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT) (See 'Who else can help?', below).

Even so, your attorney or guardian has a legal obligation to act in your best interests. There are ways to make sure your attorney or guardian does this.

This is relatively straightforward with a general power of attorney or an enduring power of attorney (financial). While you still have legal capacity, you can check what they are doing.

This does not work if you have lost capacity. When you are making your powers, think about having another person, such as a friend or professional, check on your situation. It is best to tell all parties, including your attorney or guardian, that you have made this arrangement, so everyone knows what you want. These sorts of arrangements will always be informal.

There are also legal options to deal with an attorney or guardian if they are not acting responsibly or in your best interests. You can ask the Guardianship List to revoke or suspend the power. You can also take legal action if there is negligence or go to the police if there is any dishonesty.

The role of the Guardianship List

Anyone who has a genuine interest in your welfare can ask the Guardianship List of VCAT to consider the actions of the attorney or guardian.

If the Guardianship List is satisfied that the attorney or guardian is not acting in your best interests, it can revoke or suspend the appointment. This can only happen when you do not have legal capacity to make your own decisions. The Guardianship List can then appoint an administrator or guardian for you, or they can decide that you do not need to have anyone to make decisions for you.

If the matter is urgent the Guardianship List has a 24-hour emergency service. Contact the Office of the Public Advocate for advice and further information.

In addition, in the case of an enduring power of attorney (financial) the Guardianship List can:

  • declare the power to be invalid
  • give directions or make recommendations to the attorney
  • vary the effect of the power
  • suspend the power
  • give advisory opinions
  • require the attorney to lodge accounts or have accounts examined or audited.

Taking legal action

If an attorney or guardian has acted irresponsibly and you have suffered some harm or loss as a result, you might be able to take legal action. This would involve suing the attorney or guardian for negligence. You should get legal advice to do this.

If you have lost capacity, the situation is more complicated but legal action is still possible.

You need to take the matter to the Guardianship List of VCAT to revoke the appointment because the person has not acted in your best interests. The Guardianship List can appoint an administrator who can take legal action on your behalf. See ‘Changing or cancelling your powers' (link below).

If you are not able to take the matter to the Guardianship List yourself (which is likely), another person, such as a friend or family member, can make an application on your behalf.

Contact the Guardianship List, the Office of the Public Advocate or Victoria Legal Aid for more information. See ‘How we can help’ below for more information.

More information

Changing or cancelling your powers

Enduring power of attorney (financial)

Powers of attorney and guardianship forms

Related publications

Securing their future

Take control

How we can help

Call Victoria Legal Aid’s (VLA) Legal Information Service for free information over the phone about the law and how we can help you with your legal problem. You can speak to a legal information officer in English or ask for an interpreter.

Phone (03) 9269 0120 or 1800 677 402 (country callers), Monday to Friday from 8.45 am to 5.15 pm.

VLA’s other free legal services include:

  • advice at VLA offices and other locations across Victoria
  • lawyers who are on ‘duty’ to help at many courts and tribunals.

For some matters, we can provide you with a lawyer to help you run your case.

To find out more about any of our legal services see What we do.

Who else can help?

The Office of the Public Advocate (OPA) is an independent statutory office, working to promote the interests, rights and dignity of Victorians with a disability. It provides advice about advocacy, guardianship, powers of attorney (including enduring guardianship) and consent to medical and dental treatment.

The OPA advice service provides information, advice and assistance about enduring powers of attorney and guardianship. The service is available during business hours and also accepts emergency enquiries at any time.

For more information see the Office of the Public Advocate website or call the advice service on 1300 309 337.

The role of the Guardianship List of the Victorian Civil and Administrative Tribunal (VCAT) is to protect people with a disability aged over 18 who are not able to make reasonable decisions about themselves, their circumstances, or financial and legal affairs.

Applications to the Guardianship List may include applications for orders:

  • appointing guardians to make decisions for a person, including the person's accommodation
  • appointing administrators to manage a person's financial and legal affairs
  • revoking, varying or suspending an attorney's appointment
  • making another order in relation to a enduring power of attorney (financial).

See the VCAT website for more details.

The Guardianship List has a 24-hour emergency service for urgent matters; contact the Office of the Public Advocate for advice and further information.