VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
GUARDIANSHIP LIST	
vcat reference No. G98465	
CATCHWORDS	
Guardianship List – need for current medical evidence – reassessment of appointment of an administrator – disability and effect on decision-making – whether proposed represented person has decision-making capacity for the relevant financial matters – whether administrator needed – relevant principles under the Act – will and preferences of the person – powers and duties of an appointed administrator – appointment of a family member – Guardianship and Administration Act 2019 (Vic) sections 5, 8, 9, 29, 30, 31, 55, 159.	

Represented person	KCH	
WHERE HELD	Melbourne via videoconference	
BEFORE	Senior Member S. M. Burdon-Smith	
HEARING TYPE	Hearing	
DATE OF HEARING	23 June 2023	
DATE OF ORDER and written reasons	30 June 2023	
citation	KCH (Guardianship) [2023] VCAT 742	

Order
Guardianship
[KCH’s parents] have requested an adjournment of this hearing in order to assess the medical report by Dr Perica and to obtain further medical evidence in relation to the capacity of [KCH] to make decisions about her personal affairs.
[KCH’s parents] have requested access to the medical report provided by Dr Perica dated 9 January 2023. The Tribunal wishes to give Dr Perica an opportunity to be heard as to whether he has any objection to release of all or any part of the report.
VCAT orders that:
1	The application for guardianship is adjourned to be heard to a date and time to be fixed.
2	The principal registrar shall provide a copy of this order together with information on the requirement of the Tribunal to apply the principles of the Open Courts Act 2013, the rules of natural justice and the provisions relating to the confidentiality of hearings and documents in VCAT proceedings to Dr Perica.
3	Dr Perica is requested to reply to the Tribunal by 11 July 2023 with his consent or any objection to the disclosure of all or any part of his report.
4	The principal registrar is requested to refer the file to me or the duty member for consideration on 12 July 2023 and directions in relation to the disclosure of the document.
REASSESSMENT OF ADMINISTRATION ORDER
About the application
[ACK] made an application to resign as administrator.
VCAT orders that:
1	The administration order dated 17 January 2023 is revoked (ended).
2	[MER], [address redacted], is appointed administrator for [KCH].
3	[MER] has power to make decisions about all financial matters except those involving monies, property or investments which may form part of the joint property of [KCH] and [ACK].
4	The administrator has powers given under the Guardianship and Administration Act 2019 (Vic) sections:
-	46(1)
-	52
5	Administrators must comply with the Guardianship and Administration Act 2019, which outlines their powers and duties.
6	VCAT has updated directions in the administration order dated 17 January 2023.
The changes affect how the administrator submits Accounts by Administrator (ABAs) to VCAT.
The administrator [ACK] must submit the first ABA:
-	for the accounting period: 17 January 2023 to 30 June 2023,
-	as soon as possible after 30 June and no later than 31 July 2023
-	to be examined by State Trustees limited, who may charge the estate an approved examination fee.
7	The administrator [MER] must complete and send a Financial Statement to VCAT for approval by 10 August 2023.
VCAT makes this order because it is satisfied that:
-	due to a disability, [KCH] does not have capacity to make decisions about the financial matters listed in this order,
-	[KCH] needs an administrator, considering the factors set out in section 31 of the Act, including their will and preferences (what's important to them), and
-	this administration order will promote the personal and social wellbeing of [KCH].

and for the reasons provided separately.
Reassessment of this order
8	This order applies until VCAT makes another order. The order will be reassessed when the application for guardianship is listed.
9	Anyone can apply for VCAT to reassess this order at any time.
10	VCAT will reassess this administration order no later than 31 December 2023.
Change of contact details
11	If [MER] or [KCH] changes contact details (email, phone or address), [MER] must immediately inform VCAT in writing.

S. M. Burdon-Smith
Senior Member			

APPEARANCES:	KCH
MER
Mr M. Weston
Ms C. Symons of Counsel for KCH’s parents
Ms A. Antonopoulos, Office of the Public Advocate	

Reasons
The Victorian Civil and Administrative Tribunal (VCAT) is providing these reasons on a confidential basis. Clause 37(1) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 provides that unless VCAT orders otherwise, a person must not publish or broadcast any report of a proceeding under the Guardianship and Administration Act 2019 that identifies or could lead to the identification of a party to the proceeding.
Introduction
1	In these written reasons for decision, I refer to the person who is the subject of the application as KCH. The Victorian Civil and Administrative Tribunal (VCAT) has given the person that anonymised name to protect their identity and the confidentiality of their personal information. 
2	On 17 January 2023, ACK was appointed as administrator for KCH. ACK does not wish to continue in the position. The application was listed for reassessment of the administration order.
3	The issue for the Tribunal in this application is who should be appointed as administrator.
4	There was a hearing on 26 June 2023 where I was the presiding member. I reserved my decision, which is now set out in the attached orders. The reasons for my decision are set out below. 
5	I appointed MER as administrator for KCH with power to make decisions about financial matters for KCH. I ordered that the administrator could exercise all the powers of an administrator in the Guardianship and Administration Act 2019 (Vic) (the Act). 
6	The appointment is limited, and will be reassessed together with the application for guardianship within three months of this order. It does not include the power to commence legal proceedings for the represented person or any dealings relating to what may be considered to be marital property.
The hearing
7	At the hearing, I heard evidence and submissions from the following people: KCH, Eleni Antonopoulos, Investigator for the Public Advocate, and Carolyn Symons as Counsel for KCH’s parents.
8	When VCAT hears an application to appoint an administrator for a person, section 165 of the Act says the person must attend the hearing. KCH attended the hearing and her evidence is set out below. KCH attended by videoconference. She was with her parents, brother and Counsel for the parents, Ms Symons.
Principles
9	A person (including VCAT) exercising powers functions and duties under the Act must have regard to the principles set out in section 8 of the Act. In summary, they are:
a	a person with a disability should be given practicable and appropriate support to make and participate in decisions, express their will and preferences and develop their decision-making capacity;
b	the will and preferences of a person with a disability should direct decisions made for the person, as far as practicable; and
c	powers, functions and duties must be used in the way which is the least restrictive of the ability of the person with a disability to decide and act as is possible in the circumstances. 
10	Section 9 of the Act sets out further principles which apply to a person making a decision ‘for’ a represented person. These apply to a guardian, administrator, supportive guardian or supportive administrator who is making a decision for a represented person. They would also apply to VCAT when it is advising an appointed decision-maker about their powers and duties. 
The will and preferences of KCH
11	When reassessing an administration order, the Tribunal must consider whether the administrator appointed at first instance in an administration order has performed duties in compliance with section 55. In this case, the administrator has indicated that he is unable to perform the duties.
12	When appointing an administrator, VCAT must apply the principles in section 8, including that KCH’s will and preferences should direct the decision ‘as far as practicable’.
13	KCH’s will and preferences are relevant also when VCAT decides whether a person needs an administrator (section 31) and whether a proposed administrator is a suitable person to be appointed (section 32(3)(a)).  
14	KCH attended the hearing and she spoke to me in the company of the people noted above. She said that her family are doing everything for her and that they are paying for everything. She expressed her sadness about her husband’s statement to her that he could not look after her. She said that it was reasonably simple and that her parents could look after her finances. She would like to know what her budget is.
15	Based on this evidence, I was satisfied that KCH does not want her husband to be her administrator and considers it reasonable to appoint her parents.
16	On 28 June 2023 the parents’ legal representative forwarded some documentation to the Tribunal. Included was an authority purportedly signed by KCH consenting to her brother MER being her administrator, and a statutory declaration by MER indicating his willingness to be appointed as administrator.
Disability and decision-making
17	Section 30(2)(a) of the Act says VCAT may only appoint an administrator for a person if satisfied that because of the person’s disability, the person does not have decision-making capacity in relation to the financial matters which are the subject of the application. 
18	The medical reports previously supplied and relied upon demonstrate that in this area of her life, KCH requires an administrator.  There was no more recent or contradictory report presented and Counsel for the parents concurred with my suggestion that an administrator is needed. 
19	Based on the medical reports, I am satisfied that KCH now lacks the capacity to make decisions about her insurance entitlements, her employment benefits and superannuation, her personal injury claims, alleged misuse of her funds from donations after her accident, and her marital property. 
Is a supportive administration order appropriate?
20	Appointing a supportive administrator would be less restrictive than appointing an administrator. A less restrictive order would be consistent with the principles in section 8 of the Act. 
21	VCAT has power to appoint a supportive administrator whenever an application is made for appointment of an administrator, as provided by section 87 of the Act. 
22	However, to appoint a supportive administrator for a person, the person must consent and must have decision-making capacity when practicable and appropriate support is provided, as set out in section 87(2) of the Act. 
23	In the present case, this less restrictive alternative was not available because Dr Wendy Castle opined that KCH has severe cognitive deficits, is easily overwhelmed with unreliable recall of information – with severe frontal executive dysfunction, unreliable memory, severe behaviours of concern and no insight – so there was no likelihood KCH would have decision-making capacity even when supported. 
24	Accordingly, that less restrictive alternative is not available in this case. 
Need for an administrator
25	Section 30(2)(b) of the Act says VCAT may only appoint an administrator for a person if satisfied that the person needs an administrator.
26	Section 31 of the Act sets out a number of matters VCAT must consider in determining whether a person needs an administrator. VCAT must consider the person’s will and preferences (as far as they can be ascertained) and whether decisions about the relevant financial matters could be more suitably made informally or could reasonably be made by mediation, negotiation or some similar method. VCAT must also consider the wishes of any primary carer, relative or other person with a direct interest in the application and must also consider the desirability of preserving existing relationships important to the person with a disability. 
27	In this case KCH needs an administrator because according to the medical report, her memory and executive function are affected by her disability. The effect is such that she is unable to make decisions about what to do with her income or how to arrange her expenditure and pay her accounts, or how to manage her income from very diverse sources. Should she decide to terminate her marriage, there will be consequential and complex decisions to be made.
28	I have considered KCH’s will and preferences – firstly as expressed at the hearing, that she wants her parents to look after her finances. The medical report by Dr Castles says that she is easily influenced by others and she is prone to agreeing with whoever is likely to support her wishes. Reports of her relationships with her husband and her parents, particularly her father, before the accident and her current attitude are distinctly different, and until KCH’s memory and cognition reaches a more stable base, her will and preferences are unreliable. KCH’s father has indicated that he believes that KCH’s husband and the current administrator has used KCH’s funds for his own purposes. Given the complexity of the financial affairs of KCH and the delicacy of the relationships, my view is that an administrator who will support KCH’s independence, and will both preserve existing relationships and restore them should she choose to, is most desirable.  KCH has been independent of her family for many years. Any investigation into her financial affairs will disclose matters which she may prefer to be confidential. 
29	I have also considered possible informal means of managing her income and expenditure and the wishes of her parents, and in this case, less formal decision-making is not practicable. That is because of the complexity of financial decisions required; the allegations made in relation to the use of joint funds; and the need to establish and preserve the estate for KCH’s future benefit.
30	KCH’s parents were represented. They are not in favour of appointing an administrator other than themselves. They were invited to make submissions in relation to an alternative but chose not to.
31	On 28 June 2023, Michael Weston, on behalf of KCH’s parents, forwarded a statutory declaration from MER, KCH’s brother. In that declaration, MER wrote of his relationship with his sister, and his qualifications and personal circumstances. He is the only sibling to KCH and lives independent of the parents. He has qualifications which would infer a degree of financial literacy and an ability to perform the functions of an administrator. MER indicated his willingness to be appointed both guardian and administrator on an interim basis or final basis if that is deemed appropriate.
32	The Tribunal has not had the opportunity to investigate the offer by MER, or hear directly from KCH as to her wishes. While he appears to be qualified and have the skills to be an administrator, his ability to avoid conflicts is uncertain. Preference will be given to the appointment of a family member where possible. In light of the urgency to appoint a person to administer KCH’s estate together with the knowledge that this matter will be returned before me in a matter of weeks, I consider that the appointment of MER as administrator until the matter is before the Tribunal again is appropriate.
33	Appointing an administrator will not interfere with the relationships that are important to KCH because KCH will continue to reside with her parents and have their support and encouragement in her recovery. She enjoys that and having access to her horse and parrots. MER is KCH’s only sibling. KCH wishes to have a family member administer her affairs.
34	Taking all this into account, I am satisfied that KCH needs an administrator. 
Personal and social wellbeing
35	Section 30(2)(c) of the Act says VCAT may only appoint an administrator for a person if satisfied that the administration order will promote the person’s personal and social wellbeing. I am satisfied in this case that the order will do so because an administrator will ensure her bills are paid and make important decisions about investments and other income arising as a consequence of her injury until the matter is reassessed.
Who should be the administrator?
36	KCH wanted her parents to be appointed as administrators, but for the reasons stated above, I have decided that she needs an administrator who will support and encourage her independence. Prior to receiving the declaration by MER I was of the view that an independent administrator should be appointed. In the knowledge that ACK is no longer able to act as administrator and that KCH s finances require attention at this time; MER’s offer to be appointed as an interim administrator; and the knowledge that this matter will be coming before me for a hearing of the application for guardianship, I consider that it is appropriate to appoint MER as administrator until this matter is returned before me.
37	I recognise that this reflects the represented person’s wishes more completely, and that MER is willing to take on a role which may require him to be under some pressure act in a way that is contrary to his duties under the Act – most particularly not to disclose confidential information gained in his role unless authorised to do so by VCAT or the law. 
Powers and duties of the administrator
38	The order says that the administrator can make decisions about all financial matters with some exceptions. The power to commence legal proceedings is excluded and the administrator is required to seek the approval of VCAT should he wish to deal with any monies, property or interests which may be marital property.
39	The Act gives guidance for the administrator about how to exercise their financial decision-making power. The principles in section 8 and section 9 of the Act apply to those decisions. 
40	Section 9 of the Act sets out the principles applying when a decision is made for a represented person. It says the administrator ‘should give all practicable and appropriate effect to the represented person’s will and preferences’. It also says that KCH’s will and preferences ‘should only be overridden if it is necessary to do so to prevent serious harm’ to her 
41	Section 55 sets out further requirements of the administrator. Some of the requirements most relevant in this case are that the administrator must act in such a way as to avoid any conflict of interest. 
How long does the order last?
42	This order will be reassessed together with the application for guardianship no later than 31 December 2023. KCH or anyone else can apply for the reassessment to be sooner if that is necessary.  

Susan M. Burdon-Smith
Senior Member