No Power of Attorney and Incapacitated in Victoria: What Happens Next
Marriage Doesn't Give You Automatic Authority
The single most dangerous misconception in Victorian estate planning: most people believe that if their spouse or partner becomes incapacitated, they automatically have the right to manage finances, make medical decisions, and handle legal affairs on their behalf.
They don't. Victoria grants no automatic decision-making authority to a spouse, partner, adult child, or any other family member. Without a valid enduring power of attorney (EPA) or Medical Treatment Decision Maker (MTDM) appointment in place, no family member has legal authority to access bank accounts, pay bills, sell assets, or consent to medical treatment on behalf of an incapacitated person.
This isn't an abstract legal technicality. It's the reason families discover their joint bank accounts frozen, their mortgage payments missed, and their loved one's medical care decided by a hospital hierarchy rather than the family.
What Actually Happens When There's No EPA
Bank accounts freeze. Once a bank becomes aware that an account holder has lost capacity — often through a hospital admission, a failed transaction, or a family member's own disclosure — they are legally required to restrict access. Even joint accounts can be affected: the surviving account holder may retain access to their own contributions, but transactions that draw on the incapacitated person's share can be blocked.
Families often don't expect this. A spouse who has always used a shared account to pay the mortgage and utility bills suddenly finds they can't move money. Bills go unpaid. Direct debits bounce. The household runs on whatever cash the functioning spouse has in their own name.
Medical decisions default to a statutory hierarchy. Under the Medical Treatment Planning and Decisions Act 2016 (Vic), if no MTDM has been appointed and no Advance Care Directive exists, healthcare providers follow a ranked list of decision-makers:
- A guardian appointed by VCAT with healthcare powers
- The spouse or domestic partner
- The primary carer
- The eldest adult child
- A parent
The spouse does get some standing here — but only by default, not by appointment. If there's a dispute between family members about treatment decisions, the hospital may refuse to act on anyone's instructions until VCAT resolves the matter.
Property and assets are locked. Without an EPA, no one can sell property, manage investments, file tax returns, deal with the ATO, access superannuation, or make decisions about aged care funding. These matters sit in limbo until a tribunal order is obtained.
The VCAT Path: Guardianship and Administration Orders
When someone loses capacity without an EPA, the family's only option is to apply to the Victorian Civil and Administrative Tribunal (VCAT) for formal orders:
- Guardianship order — covers personal and lifestyle decisions (living arrangements, daily care, access to services)
- Administration order — covers financial decisions (banking, property, bills, investments)
The process:
Application: File an application with the VCAT Human Rights Division. The application requires a detailed description of the person's circumstances, why an order is needed, and who you're proposing as guardian or administrator.
Medical evidence: A comprehensive medical report must accompany the application — dated within the last three months, ideally on a VCAT-specific template. The report must confirm that the person lacks decision-making capacity for the relevant matters.
Hearing: VCAT schedules a hearing. The incapacitated person has the right to attend and be heard, and VCAT may appoint a separate legal representative for them. Other family members can also be heard.
Decision: VCAT decides who to appoint. It might be the family member who applied, but VCAT can also appoint State Trustees — particularly if there's family conflict, complexity in the estate, or concerns about the proposed guardian's suitability.
Timeline: Three to six months from application to order, in typical cases. Urgent applications are possible but require evidence of immediate risk.
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The Cost of VCAT Administration
VCAT filing fees vary, but the real cost comes after the order is made:
If a family member is appointed: They must comply with ongoing reporting requirements — annual financial statements for administration orders and welfare reports for guardianship orders. Administration orders are reviewed every year; guardianship orders every three years.
If State Trustees is appointed: Their fee structure is significantly more expensive:
- Hourly rates between $216 and $363 for professional services
- Commission of up to 5.5% on real property and other assets
- Annual administration fees for estates with fortnightly income of $930 or above
For an estate with a family home worth $800,000, a 5.5% capital commission alone is $44,000. That's before ongoing management fees and hourly charges.
State Trustees has also faced criticism from the Victorian Ombudsman for delays in releasing client funds and managing property transactions — further frustrating families who are already in crisis.
What You Can Do Right Now
If someone you care about still has decision-making capacity — even with early-stage cognitive decline — an EPA can still be created. Early-stage dementia doesn't automatically disqualify someone; what matters is whether they understand what they're signing at the time they sign it.
The three documents that prevent the VCAT scenario entirely:
- Enduring Power of Attorney — financial and personal decisions, under the Powers of Attorney Act 2014
- Medical Treatment Decision Maker appointment — healthcare decisions, under the Medical Treatment Planning and Decisions Act 2016
- Advance Care Directive — the person's own healthcare preferences, documented while they can still express them
The total cost of setting up all three using guided templates is a fraction of a single VCAT filing fee — and eliminates the three-to-six-month waiting period, the frozen accounts, the tribunal hearing, and the risk of State Trustees appointment.
The Victoria Power of Attorney Kit covers all three documents with step-by-step instructions, witnessing checklists, and practical guidance for getting banks and hospitals to accept the finished documents — before a crisis makes the tribunal path the only option left.
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Download the Victoria — POA Quick-Start Checklist — a printable guide with checklists, scripts, and action plans you can start using today.