VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
GUARDIANSHIP LIST	
vcat reference No. G100000	
CATCHWORDS	
Guardianship List – application for appointment of a guardian – application for appointment of an administrator – application for orders about enduring power of attorney – will and preference of the represented person – powers and duties of an appointed guardian – suspension of powers under enduring power of attorney. 	

Represented person	XEX	
WHERE HELD	Melbourne	
BEFORE	Member V. Bombas	
HEARING TYPE	Hearing	
DATE OF HEARING	11 July 2023	
DATE OF ORDER	11 July 2023	
date of written reasons	15 August 2023	
citation	XEX (Guardianship) [2023] VCAT 951	

Order
It is noted that the applicant withdrew his application of 4 July 2023 seeking an injunction.
The operation of the enduring power of attorney dated 5 September 2001 made by [XEX] is suspended.
It is noted that [RUD] has provided evidence that he will move [XEX] to Murrenda Residential Aged Care, which is connected to Eastern Health, unless there is medical advice to the contrary.
VCAT ORDERS THAT:
1	[RUD], [address redacted], is appointed guardian for [XEX].
2	The guardian has power to make decisions about these personal matters:
-	Where [XEX] lives
3	Guardians must comply with the Guardianship and Administration Act 2019 (Vic), which outlines their powers and duties.
Appointment of administrator
VCAT orders that:
4	State Trustees Limited, 1 McNab Avenue, FOOTSCRAY VIC 3011, is appointed administrator for [XEX].
5	The administrator has powers given under the Guardianship and Administration Act 2019 section:
-	46(1)
-	52
6	Administrators must comply with the Guardianship and Administration Act 2019, which outlines their powers and duties.
7	The administrator must complete and send a Financial Statement to VCAT for approval at the time the order is due for reassessment, or when VCAT requests it.
8	The administrator must not sell (dispose of) the represented person’s property at [address redacted] without VCAT’s permission.
VCAT makes this order because it is satisfied that:
-	Due to a disability, [XEX] does not have capacity to make decisions about the personal and financial matters listed in this order,
-	[XEX] needs a guardian and administrator, considering the factors set out in section 31 of the Act, including their will and preferences (what’s important to them), and
-	This order will promote the personal and social wellbeing of [XEX].
Reassessment of this order
9	This order applies until VCAT makes another order.
10	Anyone can apply for VCAT to reassess this order at any time.
11	VCAT will reassess this administrator order no later than 30 September 2024.
12	VCAT will reassess this guardianship order no later than 30 September 2024.
Change of contact details
13	If the guardian, administrator or [XEX] change contact details (email, phone or address), the guardian or administrator must immediately inform VCAT in writing.
Payment for acting as an administrator
14	State Trustees Limited is entitled to payment (including GST) from the funds of [XEX] as follows:
A commission on gross income received, not exceeding:
-	3.3 per cent of any amount up to $500,000, and
-	1.5 per cent of the amount (if any) between $500,000 and $1 million, and 
-	0.55 per cent of the amount (if any) between $1 million and $3 million, and 
-	0.44 per cent of the amount (if any) in excess of $3 million.
For any other asset, the commission must not exceed 2.2 per cent of the asset’s value immediately before the end of the administration. This commission only applies if the administrator has not otherwise received reasonable payment for its work, and if VCAT approves it by order. No order is needed if the administration ends at the death of the represented person.
For all commissions on income and assets:
-	The value of an asset is its gross value, and 
-	The method of calculating value and the definition of gross value are as set out in the scale of charges published in the Victoria Government Gazette.
AND
A fee not exceeding 0.88 per cent per year on the capital sum invested in any State Trustees Limited common fund.
If State Trustees Limited provides any other estate-related services to the estate, it is entitled to payment. The payment rate must not exceed the amount in the scale of charges published in the Victoria Government Gazette.

V. Bombas 
Member			

APPEARANCES:	XEX
RUD
KBO
Ms C. Sunderland, solicitor for KBO	

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 XEX. 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. I refer to his applicant son as RUD, his other son as KBO, and his now deceased wife as IKX for the same reason – so that personal information remains confidential.
2	RUD applied for orders revoking, varying or suspending a power of attorney and to be appointed as guardian and administrator for XEX. 
3	The applicant RUD and KBO had been appointed as attorneys pursuant to an enduring power of attorney made by XEX on 5 September 2001. The attorneys are brothers and the only adult children of XEX. At the time of the hearing XEX, aged 83, was an inpatient at Maroondah Hospital, and it was accepted by all parties that his decision making capacity was impaired due to dementia. He was described as being in a palliative state.
4	In general terms, the application was made as there was a conflict regarding the appropriate nursing home for XEX following his discharge from hospital. There were also allegations made by RUD that KBO had not acted appropriately in his role as attorney, including the misappropriation of funds. It appeared from the material submitted to the Tribunal by RUD that there was a dispute regarding RUD’s access to a property owned by XEX, which was the home that XEX shared with his now deceased wife IKX prior to their move into residential aged care. There were allegations that KBO was preventing RUD’s access to that home. 
5	There was a hearing on 11 July 2023 where I was the presiding member. I made orders at the end of the hearing and gave oral reasons for my decision. Ms Claire Sunderland, acting for KBO, has asked for written reasons and I set out below a written version of the reasons I gave at the hearing. 
6	I appointed RUD as guardian for XEX with power to make decisions regarding where he lives.
7	I appointed State Trustees as administrator for all financial matters, except the sale of XEX’s property which was his home prior to his move to aged care. 
8	In accordance with section 83 of the Powers of Attorney Act 2014 (Vic) (‘POA Act’), the attorneys must not exercise powers in relation to personal or financial matters. As the operation of enduring power of attorney dated 5 September 2001 is effectively suspended by operation of section 83 of the POA Act, there is no need to make orders under section 116(1). 
PRELIMINARY ISSUES
9	On 3 July 2023, RUD made an application for an injunction to stop KBO from using or transferring funds from the account of his deceased mother IKX, and to allow RUD full access to the tax records of IKX and XEX. This application appeared to relate to the roles of RUD and KBO as executors of IKX’s estate. 
10	As the Tribunal has no jurisdiction relating to a dispute between executor, RUD withdrew his application prior to the hearing taking place. 
Written MATERIAL 
11	RUD submitted written material, including an affidavit to support his application, an interim family violence intervention order dated 24 May 2023 made against KBO protecting RUD as the applicant, a series of text messages between RUD, KBO and people involved in the care of XEX, and bank statements and utility bills relating to the financial affairs of XEX. 
12	Additional documents were attached to an email dated 9 July 2023.
13	In these documents, RUD details that on 29 June 2023 XEX was taken to hospital due to his deteriorating health and heart failure by sepsis. It is noted that no medical evidence was provided, however RUD alleges, among other allegations, that XEX’s health deteriorated due to KBO’s failure to collect a script of antibiotic medication and provide it to the care facility within a reasonable timeframe. 
14	RUD also states that KBO is attempting to force XEX to return to Ferndale Gardens nursing home against his wishes. He states that there have been four instances of neglect since October 2022, and that there is more suitable accommodation at a facility annexed to Eastern Health, which is supported by XEX’s treating team. 
15	RUD provides information regarding a report made to the RSPCA, and a compliance order which was issued regarding neglect of a companion dog living at XEX’s property. RUD removed the dog on 20 June 2023.
16	RUD also states that KBO has refused attempts to engage in mediation, and he raises concerns that KBO is using funds from XEX’s estate to fund legal representation. 
17	RUD has attached numerous emails between himself and staff at what appears to be Ferndale Gardens nursing home, detailing the care of XEX, his recent deterioration and a medical incident. 
18	The materials submitted by RUD included a copy of an enduring power of attorney dated 5 September 2001 appointing IKX as attorney, and alternative attorneys being RUD and KBO. It is noted that IKX is XEX’s deceased wife. 
The hearing
19	At the hearing, I heard evidence from RUD, KBO and XEX. KBO’s solicitor also made submissions.
20	The applicant, RUD, gave oral evidence as to why he had made his application, and the orders he was seeking. RUD stated that his mother had passed away in April 2023, and that he was concerned that KBO was acting coercively towards his father. RUD had resigned from his employment earlier in the year, and taken on the role of carer for XEX. He alleged that KBO had taken funds of $3.1 million from a joint bank account of his father and deceased mother. 
21	RUD provided background information, stating that XEX had entered Maroondah Hospital on 29 June 2023 due to poor health. His treating team proposed that he move to a palliative care unit at Murrenda Residential Aged Care, which is connected to Eastern Health. RUD stated that he approved this move, and he had been informed by staff at Maroondah Hospital that the move had been rejected by KBO and was unable to proceed. 
22	RUD gave evidence that XEX frequently requested that he be moved to another nursing home. RUD gave evidence regarding what he stated was inappropriate care at Ferndale Nursing Home. He raised concerns that antibiotics were not given to XEX appropriately, leading to the recent deterioration in his health, and he had raised these concerns with the Safety Commissioner. He made allegations that KBO had not appropriately provided the medication, by not collecting a script for antibiotics and providing it to the care facility in a timely manner. He stated that a move back to Ferndale Nursing Home was inappropriate.
23	RUD stated that he sought the appointment of State Trustees as administrators. An administrator was required to make decisions relating to the transfer of the Refundable Accommodation Deposit (‘RAD’), to pay nursing home fees and to deal with XEX’s property. It is noted that in the written application made by RUD, he sought the appointment of himself as administrator, but during the hearing he stated that he believed State Trustees were an appropriate administrator. 
24	RUD raised concerns regarding the payment of the RAD. The RAD had been paid when IKX was acting as attorney, and there was a suggestion by RUD that the RAD had been paid by KBO.
25	KBO’s solicitor made submissions on behalf of her client. She stated that the current arrangements were satisfactory, and that there were no reasons why XEX could not be returned to Ferndale Nursing Home where he had been living until the time of his hospital admission. She stated that there were no pressing financial decisions which need to be made. She accepted that the current situation of RUD and KBO acting as joint attorneys was not workable, and she did not make any submissions as to how that situation may be resolved. The position of KBO was that the ‘status quo’ should be maintained, and that there was no reason for XEX to be moved to a different facility where he would be in unfamiliar surroundings. 
26	KBO gave evidence relating to the appropriate nursing home for XEX. He stated that Murrenda Residential Aged Care had only been proposed by the treating team due to RUD’s opposition to a return to Ferndale Gardens Nursing Home. He gave evidence as to why he opposed the move to a new care facility. He stated that when he was first seeking nursing home care for his parents, he visited multiple facilities with them, and he experienced difficulties with Murrenda Residential Aged Care regarding the provision of a contract. As a result he became ‘belligerent’ and settled on Ferndale Gardens Nursing Home, which had available beds and which his mother preferred. 
27	Ms Sunderland discussed the provision of antibiotics to XEX after he recently experienced a bacterial infection. She stated that he had obtained the script for antibiotics and was going to deliver them later in the day which was his normal process. XEX had deteriorated quicker than expected, hence the delay in the provision of antibiotics. 
28	XEX was present during the hearing and was able to participate when he was directly asked questions. A summary of his evidence is below, with reference to his will and preference. 
Principles
29	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 Guardianship and Administration Act 2019 (Vic) (‘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. 
30	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. 
The will and preferences of XEX
31	When appointing a guardian or an administrator, VCAT must apply the principles in section 8, including that XEX’s will and preferences should direct the decision ‘as far as practicable’.
32	XEX’s will and preferences are relevant also when VCAT decides whether a person needs a guardian or an administrator (section 31) and whether a proposed guardian or administrator is a suitable person to be appointed (section 32(3)(a)).  
33	As part of his submissions, RUD submitted a copy of the Tribunal’s ‘Will and Preference’ worksheet, which had been completed by XEX with the assistance of RUD. Accompanying the printed worksheet was a USB memory device with a recording of the conversation between RUD and XEX. In the interests of time, I made the preliminary decision not to listen to the recording as I was satisfied with the information contained in the worksheet, and with XEX’s participation in the hearing. 
34	In the worksheet XEX expressed a preference to return home, and that he did not like where he was living as it was a pigsty. He referred to friends and family that he would like to see. 
35	It was clear during the hearing that XEX’s ability to participate was limited. He was an elderly man lying in a hospital bed propped up by pillows, and at times appeared as though he may have been sleeping. Despite this, he was able to participate when asked direct questions, although he appeared to speak with difficulty. He was able to state clearly that he did not want to return to Ferndale Gardens Nursing Home, where he had been living prior to his hospital admission. He spoke of a preference for another nursing home where he had previously visited a friend, although the parties were unable to clarify which nursing home that was. 
36	It is also clear that when XEX had capacity, he made the decision to appoint both his children as alternative attorneys, indicating a will and preference to have his two children involved in decision making. There was a clear affection from both KBO and RUD towards their father, and there was no indication or evidence that this affection was not reciprocated by XEX. 
37	Based on this evidence, I was satisfied that XEX wants his children involved in decision making and that he accepts the need to return to nursing home care. It was also very clear that he did not want to return to Ferndale Gardens Nursing Home, which was consistent with the evidence provided by RUD that he had previously requested a move to another care facility. 
Disability and decision-making
38	Section 30(2)(a) of the Act says VCAT may only appoint a guardian and 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 personal matters and financial matters which are the subject of the application. 
39	I received a medical report completed by Dr Samuel Schlegel on 7 June 2023. He is the regular general practitioner for XEX and has known him for seven months. In his report, he stated that XEX experienced vascular dementia, and that this diagnosis was made by a neuropsychiatry team when XEX was admitted to hospital in June 2022. He provided the opinion that XEX has no decision-making capacity regarding medical treatment, his general living circumstances and his financial and property affairs. In his report he states that XEX ‘demonstrates impaired information retention and weighing up of options’. The medical evidence was not disputed by either party. There was no dispute relating to the decision-making capacity of XEX. 
40	Based on the medical report, I am satisfied that XEX now lacks the capacity to make decisions about where he lives and his financial and property affairs. 
Is a supportive guardianship order and a supportive adminstration order appropriate?
41	Appointing a supportive guardian would be less restrictive than appointing a guardian. The appointment of a supportive administrator would also be less restrictive than appointing an administrator. A less restrictive order would be consistent with the principles in section 8 of the Act. 
42	VCAT has power to appoint a supportive guardian or a supportive administrator whenever an application is made for appointment of a guardian or an administrator, as provided by section 87 of the Act. 
43	However, to appoint a supportive guardian or 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. 
44	In the present case, this less restrictive alternative is not available because XEX’s decision-making capacity was impaired due to dementia. Although he was able to express his will and preferences in simple terms, the medical evidence is clear that he is unable to retain the relevant information and weigh up information to be able to make a decision. Given the nature of his illness, there was no likelihood XEX would have decision-making capacity and the ability to consent even when supported. 
45	Accordingly, that less restrictive alternative is not available in this case. 
Need for a guardian 
46	Section 30(2)(b) of the Act says VCAT may only appoint a guardian for a person if satisfied that the person needs a guardian.
47	Section 31 of the Act sets out a number of matters VCAT must consider in determining whether a person needs a guardian. VCAT must consider the person’s will and preferences (as far as they can be ascertained) and whether decisions about the relevant personal 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. 
48	In this case, one of the reasons that XEX needs a guardian is that the enduring power of attorney dated 5 September 2001 does not authorise his attorneys to make personal decisions, and there is no attorney appointed to make personal decisions. 
49	The personal decision which needs to be made is where XEX lives after his discharge from hospital. Due to his disability, XEX is unable to make this decision. A guardian is needed to make an appropriate decision regarding accommodation, taking into account XEX’s care, needs and his will and preferences. 
50	I have considered XEX’s will and preferences, and it is clear that he agrees that he needs to live in an aged care facility, but he does not want to return to live at Ferndale Gardens Nursing Home. 
51	I have also considered possible informal means of making decisions about personal matters for him and the wishes of his children RUD and KBO. In this case, less formal decision-making is not practicable. That is because of the conflict and disagreement between RUD and KBO, and their inability to make joint decisions. 
52	Appointing a guardian will not interfere with the relationships that are important to XEX because the decision is limited to accommodation decisions, and there is no limitation on who visits or communicates with XEX. 
53	Taking all this into account, I am satisfied that XEX needs a guardian to make decisions about where he lives.
need for an administrator 
54	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.
55	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. 
56	In this case XEX appointed his adult children to act as his alternative joint attorneys. There is clear evidence that the joint attorneys are unable to work together to manage XEX’s financial affairs. RUD has accused KBO of inappropriately transferring funds from a joint account of XEX and his deceased wife. Additionally, there is an interim intervention order in place preventing KBO from contacting or communicating with RUD.
57	It is clear that the attorneys are unable to work together.
58	I have considered XEX’s will and preferences to the extent that he appointed his children as alternative attorneys when he had capacity to do so. I was unable to give effect to the preference that his children make decisions for him due to the inability of the attorneys to work together. 
59	I have also considered possible informal means of managing XEX’s finances, and less formal decision making is not practicable due to the conflict between the attorneys and the allegations of inappropriate financial transactions. 
60	Appointing an administrator will not interfere with the relationships that are important to XEX because his children are able to communicate with State Trustees, and work with an independent administrator who can make appropriate decisions. 
61	Taking all this into account, I am satisfied that XEX needs an administrator. 
Personal and social wellbeing
62	Section 30(2)(c) says VCAT may only appoint a guardian and administrator for a person if satisfied that the guardianship order or administration order will promote the person’s personal and social wellbeing. 
63	I am satisfied in this case that a guardianship order will promote the personal and social wellbeing of XEX as a guardian will be able to make an immediate decision regarding accommodation. There is a need for XEX to be moved into a palliative care nursing facility, and for him to be discharged from hospital. The guardian will be able to promote XEX’s personal and social wellbeing by making an accommodation decision which is aligned with XEX’s will and preferences, and the recommendation of his treating team.
64	I am satisfied that an administration order will promote the personal and social wellbeing of XEX, as an administrator will be able to make the necessary decisions to enable the move to a new care facility. 
65	An administrator will also be able to appropriately investigate the allegations of inappropriate financial transactions made by KBO. An administrator will also be able to make decisions regarding access to XEX’s property and take into account XEX’s will and preferences to the extent that they can be ascertained. 
Who should be the guardian?
66	In this case, RUD was willing to make an accommodation decision which reflected the will and preference of XEX, and which was aligned with the recommendations of the treating team. 
67	RUD raised concerns about the appropriateness of KBO being involved in decision making, due to the alleged delay in KBO providing antibiotics for XEX’s treatment of sepsis. I have not made any findings regarding the provision of medical treatment to XEX, and KBO’s role in that treatment. In deciding who should be the guardian, I have considered who is able to make a decision about where XEX lives, and who can make that decision by taking into consideration XEX’s will and preference and the recommendations of his treating team. I have not placed weight on evidence relating to provision of medical treatment by KBO as it is not relevant to the decision that needs to be made. 
68	It was appropriate to appoint RUD to be the guardian to make decisions regarding accommodation. The evidence provided indicated that this would be a limited decision for XEX to live at Murrenda Residential Aged Care. 
69	RUD provided an undertaking that XEX would be moved to Murrenda Residential Aged Care (connected to Eastern Health in Wantirna) unless there was medical advice to the contrary.
who should be the administrator?
70	In this case, when XEX had capacity, he appointed his children to be decision makers. They were unable to continue in their role as attorneys. 
71	It was open to me to appoint either RUD or KBO to be administrator. 
72	Given the conflict between RUD and KBO I decided it was appropriate to appoint an independent administrator. Accordingly, I appointed State Trustees to be administrator.
73	I restricted the powers of the administrator regarding the sale of the property which XEX lived in prior to his move to aged care. There was conflict regarding access to this home by KBO and RUD. I decided it was appropriate that if a sale of the property was necessary, that it should be postponed pending an investigation by the administrator, and for the administrator to be able to work with XEX to determine his will and preferences regarding his home. It appeared that care fees could be paid without the sale of the home.
74	I have not made any findings regarding the allegations made against KBO in relation to his role of attorney. It is outside the scope of the hearing to interrogate the allegations and to give adequate opportunity for KBO to respond. Any concerns regarding the actions of the attorneys are able to be investigated by the administrator.
Powers and duties of the guardian
75	The order says that the guardian can make decisions about accommodation. 
76	The Act gives guidance for the guardian about how to exercise their decision-making power. The principles in section 8 and section 9 of the Act apply to those decisions. 
77	Section 9 of the Act sets out the principles applying when a decision is made for a represented person. It says the guardian ‘should give all practicable and appropriate effect to the represented person’s will and preferences’. It also says that XEX’s will and preferences ‘should only be overridden if it is necessary to do so to prevent serious harm’ to him.
78	Section 41 sets out further requirements of the guardian. Some of the requirements most relevant in this case are that the guardian must act as an advocate for the represented person, and must act honestly, diligently and in good faith.  
powers and duties of the administrator 
79	The order says that the administrator can make decisions about all financial matters and exercise all the relevant powers in the Act. In this case it is not prudent to omit decision-making power about any sort of financial matter as it may make the order ineffective or require a reassessment to add the necessary powers. 
80	However, the order restricts the administrator’s powers by requiring that the administrator cannot sell XEX’s home without getting specific permission from VCAT. 
81	If the administrator wants to engage lawyers or undertake legal proceedings on behalf of XEX, the administrator must obtain permission from VCAT.
82	When VCAT considers whether to grant permission for these actions by the administrator, it must treat XEX’s will and preferences as very important and only to be overridden to avoid serious harm.  
83	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. 
84	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 XEX’s will and preferences ‘should only be overridden if it is necessary to do so to prevent serious harm’ to him. 
85	Section 55 of the Act sets out further requirements of the administrator. Some of the requirements most relevant in this case are that the administrator must act as an advocate for the represented person, must act in such a way as to protect him from neglect, abuse or exploitation and must avoid any conflict of interest. 
How long does the order last?
86	This order will be reassessed after one year, no later than 30 September 2024. 
87	XEX or anyone else can apply for the reassessment to be sooner if that is necessary. 
V. Bombas
Member