VCAT has an extensive The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area. in relation to enduring powers of attorney (pt 8 POA A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation.). VCAT can determine:
- the scope and exercise of the Written authority given to a person to make decisions on behalf of another person. The authority remains valid even when that person is no longer mentally competent. The power can be restricted to personal or financial matters. See also power of attorney; supportive attorney. of attorney;
- the effect of any failure to execute the enduring A formal, written legal document in which one person gives another person power to make decisions or take actions for them in certain situations. See also enduring power; supportive attorney. properly;
- the validity of the enduring power of attorney;
- the validity of any transaction made under the enduring power of attorney; and
- the lodging, examination and auditing of accounts (see s 116).
The POA Act (s 119) sets out the elements VCAT must consider when determining matters such as the validity of an enduring power of attorney and its proper execution. If the enduring power of attorney is found to be Not valid; with no legal effect and not enforceable at law. For example a legal provision or document may be invalid because it is not in proper legal form., it is Having no legal effect. A void agreement has something wrong with it, so it cannot be a legally binding contract. For example, a verbal agreement to buy land would be void, because the law says those contracts have to be in writing. from the beginning.
There are limitations on who can apply to VCAT in relation to an enduring power of attorney. If a person can demonstrate a special interest in the affairs of the principal to VCAT’s satisfaction, they A document that sets out what a person wants to happen to their money and other property after they die. have The right to appear in a court action and be heard. In general, a person cannot bring a case or have their say in a court about something that does not directly affect their interests. They must be able to show that they have sufficient interest in the case because, for example, of possible effects on their property or commercial activities. Also called locus standi. to apply (see s 122). The POA Act states who must be notified of an application (s 123) and who will be parties to the application (s 124).
There is scope for a rehearing to a more senior member of VCAT. An application for a rehearing must be made within 28 days of the making of the order (see divs 4 and 5 of pt 8 of the POA Act).
Both VCAT and the Supreme An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. may order an attorney to compensate the principal for a loss caused by the attorney contravening a provision of the POA Act (ss 77–80). A claim (YDM (Guardianship)  VCAT 758) for compensation for losses Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. to be prior to the commencement of the POA Act (1 September 2015) was unsuccess-ful as the attorney could not have contravened an Act not in existence. In the DLM case, VCAT awarded compensation, but in MYJ, it did not (see ‘Attorney’s obligations’, above).
VCAT may open and read the principal’s will; although, it declined to do so in WQN (Guardianship)  VCAT 814.
In the matter of VIJ (Guardianship)  VCAT 760, VCAT considered its powers to revoke a joint enduring power of attorney (financial) made under the Instruments Act 1958 (Vic).