Everything You Ever Wanted to Know About Guardianship & Capacity Planning

Have you ever wondered who would make important decisions for you if you suddenly couldn’t? In this post, I’ll walk you through everything you need to know about Power of Attorney, guardianship, and incapacity planning — so you can protect your future, your wishes, and your loved ones with confidence.

Understanding Guardianship and Capacity Planning

                  No one likes to think about losing the ability to make their own decisions. But life is unpredictable. Illness, injury, or ageing can sometimes affect a person’s capacity to manage their affairs or make important choices about their health, lifestyle, or finances.

                  That’s where guardianship and capacity planning come in. It’s all about making sure someone you trust can legally step in and make those decisions if you ever can’t.

                  As a lawyer who’s helped many families through this process, I can tell you this — planning ahead can make all the difference. It’s not just about legal documents; it’s about peace of mind.

What Is a Power of Attorney?

                  A Power of Attorney (POA) is a legal document that lets you appoint someone to act on your behalf when it comes to financial or personal matters.

                  There are a few types of Powers of Attorney in Victoria:

• General Power of Attorney – effective only while you still have capacity, usually for business or short-term situations.

• Enduring Power of Attorney – continues even after you lose capacity, covering financial and personal decisions.

• Medical Treatment Decision Maker – someone you appoint to make medical decisions for you if you’re unable to do so yourself.

                  Think of it as a safety net — you stay in control now by deciding who can make decisions for you later.

When Guardianship Comes Into Play

                  If someone doesn’t have an Enduring Power of Attorney and loses capacity, the Victorian Civil and Administrative Tribunal (VCAT), or Tribunal in your State may need to appoint a guardian or administrator.

                  A guardian looks after personal and lifestyle matters, for example where the person lives or what services they receive.

An administrator handles financial affairs, such as paying bills and managing property.

                  The problem is, guardianship appointments can take time and can cause stress for families, especially when there’s disagreement about what’s best. That’s why it’s so important to plan ahead — to save your loved ones from uncertainty and conflict. Further you will not have any control who is appointed if you do not make a nomination while you still can. Your administrator can charge you for this service and it can be substantial.

How Do You Know If Someone Has Capacity?

                  Capacity is about whether a person can understand the decisions they’re making and the consequences that come with them.

                  Capacity can change over time or vary depending on the decision. For example, a person might be able to decide what to eat for lunch but not understand a complex financial agreement.

                  In legal terms, we look at whether a person can:

• Understand information relevant to the decision.

• Weigh up the pros and cons.

• Communicate their choice clearly.

                  If there’s any doubt, it’s best to get a professional medical assessment and legal advice before taking any further steps.

Why Incapacity Planning Matters

                  Planning for incapacity isn’t just for the elderly — it’s for anyone who wants to make sure their life continues smoothly even if something unexpected happens. If you have assets that you want to protect then you need to make the decision for yourself and appoint an power of attorney rather than leave it to chance that a stranger will step in and take over.

                  Without proper planning:

• Your loved ones may need to go through VCAT for authority.

• Your wishes may not be followed.

• Family disagreements can arise over care or finances.

• State administrators can be appointed who are completely unknown to you. You are then just a file reference.

                  By putting a plan in place now, you’re not just protecting yourself — you’re protecting the people you care about from added stress and heartache.

How I Can Help

                  I’ve seen firsthand how guardianship and incapacity planning can prevent long, emotional, and costly disputes. My goal is to make the process simple and approachable, so you can have a clear plan that reflects your values and wishes.

                  Whether you’re preparing a Power of Attorney, reviewing an existing plan, or helping a loved one who’s lost capacity, I can guide you through every step — in plain English, without the legal jargon.

The best time to plan for incapacity is before you need to. Let’s make sure your future and your loved ones are protected. Reach out to us at HazeLegal for straightforward advice tailored to your situation.