Downs With Ups

I’m on my soapbox now and am not a little frustrated.  Sorry, dear Reader ‘cause I think this will be a long-ish post, but I hope at the end, you’ll agree with me and find it mind snapping too.  In fact, I think I’ll have to post this in three stages so that you’re not overwhelmed with all the in’s and out’s of will and estate planning for people with an intellectual disability.  So, here is the first instalment…

…I recently attended an information seminar, entitled ‘Wills and Estate Planning and Children with a Disability’.  It was an excellent session conducted by Lawyer, Allan Swan from the firm Swan and Yii.

Allan is a rare individual because not only does he have extensive experience in asset and wealth management, but he also has personal experience with intellectual disability; both his sister and sister-in-law have an intellectual disability so he not only has an incredible empathy with people like me, but also has first-hand experience in dealing with estate planning in this area.

There were people in the room who, like me had young children; some had older children who are now adults.  There were around 60 people and as I looked at each person, I knew they had their own share of pain, challenges and bittersweet joys.  We were all there hoping to learn as much as possible, so that we could assure our children would be well looked after in the future.

What follows is a list of points I learned, with my rant following each.  This I hope, will give you my opinion about this whole circus of bureaucracy regarding estates and people with an intellectual disability.  Here goes.

• The instruments, Financial Power of Attorney and Medical Power of Attorney can only be made if the person has the capacity to satisfactorily make reasonable decisions.   

Fair enough, I guess.  I’m sure this will not be our case as I don’t see Poppet having this capacity. I’ve got to say though, that the term ‘reasonable’ decision-making capabilities is extremely subjective.  One doctor, (because it has to be a doctor who assesses ‘reasonable’, not a teacher, parent or employer who may know the individual well), may have a completely different view of the individual concerned, especially if the individual is known to that expert.  Poppet would behave very differently with a stranger than her own GP, so assessment would be affected.

• Poppet will need care for the rest of her life.  To what extent we don’t know, but for us to continue our care for her when she becomes an adult, my partner and I will need to apply for guardianship, as well as apply to become Poppet’s administrators.

Imagine having to explain why you wish to continue to look after your child and how you propose to do it.  I’m not sure I could think of the words right now.  Luckily, I’ve got seven years to do so.

• The Victorian Civil and Administrative Tribunal (VCAT), manages a ‘Guardianship List’, which exists to protect individual adults who are unable to make reasonable financial and legal decisions for themselves, or decisions regarding their lifestyle.

VCAT, according to its website homepage, “offers a ‘one-stop-shop’ dealing with a range of disputes…which is accessible and delivers a fair and efficient dispute resolution service.”  This is the place where you go if you have a problem with your landlord or your neighbour or your local council.

This is the place that’s also responsible for the ongoing care and safety of my child as she ages.  Why is it that guardianship matters are seen as ‘disputes’?  Why is it that an organisation that’s mostly focussed on adversarial matters, has the power to determine who is best suited to look after my daughter?  Why is it that these issues are not administered at a national level, when all other matters regarding Poppet’s legal standing, such as pension and health care card are governed  by the Federal Government?

• There will be a hearing for our applications and if we are successful, VCAT will issue orders appointing us as her guardians and administrators for up to three years.

Guardians are different to caregivers.  Guardians may only make decisions about most medical, personal and lifestyle issues.  Guardians cannot make decisions about ‘special procedures’ for these need to be referred to the Office of the Public Advocate.  Additionally, administrators may only make legal and financial decisions on behalf of Poppet.  VCAT could appoint a different person for each role.

Assuming it will be my partner and I, then we will be subject to at least three different sets of laws and associated conditions to which we need to adhere.

It’s clearly assumed I don’t have a life and live for this sort of complex and confusing red tape.  Oh, and we need to pay an annual fee to VCAT for the privilege.

• VCAT can at any time, revoke these orders if it’s determined that we are no longer capable or suitable to continue in our role and will regularly conduct checks to determine our success in managing Poppet’s affairs.

I agree that it’s a good thing that checks are conducted.  Without knowing how these assessments are carried out though, I’m a bit bemused as to the criteria that would be applied.  Does VCAT have financial planning experts that are able to make assessments on share portfolios and risk?  Will their assessment involve Poppet, for if it does, they will be relying on an individual who they have determined does not have the capacity to manage herself.  Again, the assessment would be skewed.

Well now, that’s enough, I think.  My brain is full and I’m sure yours is too.  My second instalment will be ready in a week or so.  Thank you for sticking with me.