Victorian Civil and Administrative Tribunal Amendment (Remuneration Scale under Guardianship and Administration Act 2019) Rules 2024 (Vic)

Victorian Civil and Administrative Tribunal Amendment (Remuneration Scale under Guardianship and Administration Act 2019) Rules 2024

S.R. No. 13/2024

TABLE OF PROVISIONS

Rule  Page

1Object

2Authorising provisions

3Commencement

4Principal Rules

5New Rules 7.05 to 7.07 inserted

6New Schedule 4 inserted

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Endnotes

STATUTORY RULES 2024

S.R. No. 13/2024

Victorian Civil and Administrative Tribunal Act 1998
Guardianship and Administration Act 2019

Victorian Civil and Administrative Tribunal Amendment (Remuneration Scale under Guardianship and Administration Act 2019) Rules 2024

The Rules Committee established by section 150 of the Victorian Civil and Administrative Tribunal Act 1998 makes the following Rules:

1Object

The object of these Rules is to amend the Victorian Civil and Administrative Tribunal Rules 2018 to provide for a remuneration scale for administrators under the Guardianship and Administration Act 2019.

2Authorising provisions

These Rules are made under section 157 of the Victorian Civil and Administrative Tribunal Act 1998, section 175(2)(a) of the Guardianship and Administration Act 2019 and all other enabling powers.

3Commencement

These Rules come into operation on 1 July 2024.

4Principal Rules

In these Rules, the Victorian Civil and Administrative Tribunal Rules 2018[1] are called the Principal Rules.

5New Rules 7.05 to 7.07 inserted

After Rule 7.04 of the Principal Rules insert—

"7.05 Remuneration scale for administrators under the Guardianship and Administration Act 2019

(1)For the purposes of section 175(2)(a) of the Guardianship and Administration Act 2019, the remuneration scale set out in Schedule 4 applies.

(2)The remuneration scale applies to all administration orders under the Guardianship and Administration Act 2019 where the administrator (whether an individual or a body corporate) carries on a business of, or including, the administration of estates, except the scale does not apply to the following—

(a)State Trustees Limited;

(b)a trustee company within the meaning of section 601RAA of the Corporations Act;

(c)an administration order that the Tribunal determines is not subject to the remuneration scale.

7.06Different or no remuneration cap

(1)On application by an administrator, where the administrator demonstrates a higher cap is necessary in the particular circumstances, the Tribunal may—

(a)agree to a different remuneration cap; or

(b)agree to no remuneration cap.

(2)An application under subrule (1) may be made at the time of appointment as administrator or during the appointment as administrator.

(3)During any administration, an administrator may apply to the Tribunal for amendment of a remuneration cap or no remuneration cap agreed by the Tribunal under subrule (1).

Note

Under section 175(2) of the Guardianship and Administration Act 2019, the Tribunal may review the terms of the remuneration scale at any time.

7.07Tribunal may direct administrator to provide invoices

(1)The Tribunal may direct that the administrator provide copies of invoices for work done to the represented person or other nominated person.

(2)The administrator is required to provide invoices in the annual Account by Administrator.".

6New Schedule 4 inserted

After Schedule 3 to the Principal Rules insert—

'Schedule 4—Remuneration scale for administrators under the Guardianship and Administration Act 2019

1Application

This remuneration scale applies to all administration orders where the administrator (being an individual or a body corporate) carries on a business of, or including, the administration of estates, except the scale does not apply to the following—

(a)State Trustees Limited;

(b)a trustee company within the meaning of section 601RAA of the Corporations Act;

(c)an administration order that the Tribunal determines is not subject to this scale.

2Payment for acting as administrator

The amount the administrator is entitled to payment (including GST) from the funds of the represented person is shown below.

2.1$350 per hour (inclusive of GST) for the planning, decision making and negotiation to secure the represented person's financial position, including any of the following tasks—

(a)attending a Tribunal hearing for appointment of an administrator;

(b)establishing and reviewing an understanding about the represented person's income, expenses, assets and liabilities;

(c)establishing an understanding about the represented person's will and preferences for spending, gifting, managing assets and liabilities;

(d)establishing an understanding about whether the represented person has or needs an NDIS plan;

(e)meeting with a represented person's guardian or other formal or informal decision maker or supporter, determining decisions to be made by the guardian or other formal or informal decision maker and likely impact on finances;

(f)if necessary, replacing the represented person as director of a company, where Corporations Law permits, or other role (such as appointor of discretionary trust, where this is permitted under the terms of the trust) unless other provisions have been made for those roles (include seeking legal advice on performance of role);

(g)deciding whether the represented person is able to have access to any funds or manage any of the tasks themselves;

(h)deciding whether any restructure of bank accounts is required, establishing if the represented person has any joint ownership arrangements and how these will be managed;

(i)reviewing, approving and lodging a Financial Statement and Plan;

(j)negotiating and making arrangements with debtors;

(k)carrying on a business of the represented person and reviewing, settling and signing contracts and agreements;

(l)purchasing or selling real estate;

(m)attending reassessment hearings at the Tribunal;

(n)communicating with the Tribunal about any major decision for which an administrator requires approval or advice prior to undertaking the transaction (for example, change of ownership of assets from joint to sole and, in some cases, sale of property).

2.2$120 per hour (inclusive of GST) for administrative tasks relating to transactions, record keeping, correspondence and other administrative aspects of planning, decision making and negotiation, including any of the following tasks—

(a)securing, taking possession, or collecting assets;

(b)locating the represented person's Will;

(c)collecting income (for example, dealing with Centrelink concerning payment failures and errors);

(d)paying accounts;

(e)maintaining records of all income and expenditure;

(f)managing assets and liabilities;

(g)managing and maintaining real estate;

(h)renting out real estate, dealing with agents;

(i)surrendering life assurance policies;

(j)insuring property and other assets;

(k)paying debts;

(l)recovering debts owed to the represented person;

(m)discharging mortgages;

(n)ensuring that the represented person receives their entitlements to any deceased estates to which they are a beneficiary;

(o)preparing and lodging tax returns;

(p)recording transactions and filing and safe custody of documentation;

(q)communicating with relevant authorities, Centrelink, banks, financial advisors and other like entities (online or in person) to notify them that the administrator has been appointed by the Tribunal;

(r)communicating with the Tribunal about any decision, other than a major decision, for which an administrator requires approval or advice prior to undertaking the transaction;

(s)preparing and lodging an annual Account by Administrator.

2.3Where a task referred to in clause 2.1 or 2.2 exceeds one hour, the rate is to be charged for any subsequent time after the first hour in 15 minute increments of—

(a)in the case of a task referred to in clause 2.1, $87.50 per 15 minute increment; and

(b)in the case of a task referred to in clause 2.2, $30.00 per 15 minute increment.

2.4For clarity:

The above rates also apply to travel time associated with each of the above tasks if necessary to complete or perform the tasks (such as meeting with a represented person in their home).

2.5No payment is to be charged for the following—

(a)making appointments;

(b)attendances (including by telephone) with the represented person or any interested person that are not about their will and preferences, or are not necessary to perform or complete any of the above tasks;

(c)sending and receiving documents by email or fax, where a fee can already be charged for the preparation, review or obtaining of the document.

2.6However, total payment shall not exceed, unless the Tribunal otherwise approves—

(a)$12 000 (inclusive of GST) per year of administration for all of the above tasks other than acting as director where permitted, carrying on a business or other tasks specifically agreed by the Tribunal if the represented person has assets of more than $20 000 (excluding principal place of residence);

(b)$2 000 (inclusive of GST) per year of administration if the represented person has assets of less than $20 000 (excluding principal place of residence) and income of less than $930 per fortnight.

2.7Under Rule 7.06, the Tribunal can agree to a different remuneration cap, or no remuneration cap, on application, where the administrator demonstrates a higher cap is necessary in the particular circumstances. This application can be made at the time of appointment or during the appointment as administrator, and may be amended during the administration.

2.8Under Rule 7.07, the Tribunal may direct that the administrator provide copies of invoices for work done to the represented person or other nominated person. The administrator will be required to provide invoices in the annual Account by Administrator.

2.9Under section 175(2) of the Guardianship and Administration Act 2019, the Tribunal may review the terms of the remuneration scale at any time.

3This scale applies only to those administrators carrying on a business that includes administration of estates

3.1While this remuneration scale does not apply to State Trustees Limited or licensed trustee companies, it applies to any other administrator that, according to the Guardianship and Administration Act 2019, carries on a business of, or including, the administration of estates, such as an accountant or financial adviser.

Note

The Tribunal may still allow remuneration to be paid to administrators that are not in the business of administration of estates, however this is a decision

under section 175(1) of the Guardianship and Administration Act 2019 and would not fall within the scope of this remuneration scale.

3.2There must be a reasonable connection between the administration of estates and the other business undertaken by the administrator (as opposed to running 2 separate "businesses" in parallel). This is likely to be satisfied for any professional services business, although it remains a relevant factor that the administration of estates should be part of the business of the administrator, not in substance a separate and distinct activity.

4Remuneration not covered by this scale

4.1The above scale does not apply to—

(a)reimbursements for disbursements reasonably and necessarily incurred (including postage costs, out‑of‑pocket travel costs and fees paid to third parties); or

(b)tasks or services provided by the administrator or their staff that are genuine speciality legal services or advice—these are services that a competent professional administrator who is not a lawyer would not usually perform themselves, but would normally engage a third party legal practitioner to do, for example—

(i)drafting legal documents such as contracts or complex or non‑routine wills; or

(ii)reviewing contracts where it would be usual to seek independent legal advice before signing; or

(iii)interpreting legal requirements.

4.2For the tasks referred to in clause 4.1(b), the administrator is entitled to remuneration calculated according to the Practitioner Remuneration Order made under the Legal Profession Uniform Law Application Act 2014.

Note

For legal services that require section 51 approval (bringing or defending actions or other legal proceedings) under the Guardianship and Administration Act 2019 or for any other activities for which the administration order states that Tribunal approval is required, remuneration would be determined under those separate arrangements.

4.3For accounting or financial management firms, and if the scale is adopted, used or applied by State Trustees Limited or a licensed trustee company, the scale does not apply to fees that may be charged for providing financial advice of a type that requires an Australian Financial Services (AFS) licence.

4.4For fees charged for genuine legal services or financial advisory services performed by the administrator that are to be charged outside the administrator scale, the administrator must inform the represented person, or other nominated person, and the Tribunal, in writing, prior to performing those services of—

(a)the nature of these services; and

(b)why these are services that an administrator who is not a legal professional or financial adviser (as the case may be) is unable to reasonably perform themselves; and

(c)how the fee for the services will be calculated; and

(d)an estimate of the total cost of those services.

4.5The administrator must seek the leave of the Tribunal to undertake any legal proceedings on behalf of the represented person.

Note

See section 51 of the Guardianship and Administration Act 2019.

5Transitional matters

5.1This remuneration scale applies to new administrator appointments made on or after 1 July 2024.

5.2This remuneration scale does not apply to administration orders in place prior to the date referred to in clause 5.1 that already set out the remuneration arrangements.'.

Dated:   6 March 2024

EDWARD WOODWARD, President

SUZANNE KIRTON, Vice President

TERESA BISUCCI, Deputy President

RACHEL NAYLOR, Senior Member

BILL SIBONIS, Senior Member

CRAIG LYNCH, Attorney-General's Nominee

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ENDNOTES

[1] Rule 4:  S.R. No. 77/2018 as amended by 187/2018, 18/2019, 58/2019, 145/2019, 28/2020, 125/2020, 54/2021, 114/2021, 12/2023 and 30/2023.