VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
GUARDIANSHIP LIST	
vcat reference No. G100139	
CATCHWORDS	
Guardianship List – application for the appointment of an administrator – application for the appointment of a guardian – disability and effect on decision making – whether proposed represented person has decision making capacity for the relevant financial matters – whether administrator is needed – whether guardian is needed – relevant principles under the Guardianship and Administration Act 2019 (Vic) (the ACT)– will and preferences of the person – powers and duties of an appointed administrator and guardian, Guardianship and Administration Act 2019, sections 5, 8, 9, 29, 30, 31, 38, 55.	

Represented person	WYU	
WHERE HELD	Melbourne via teleconference	
BEFORE	Member R. Page	
HEARING TYPE	Hearing	
DATE OF HEARING	14 July 2023	
DATE OF ORDER	14 July 2023	
date of written reasons	4 September 2023	
citation	WYU (Guardianship) [2023] VCAT 1026	

Order
Appointment of Guardian
VCAT orders that:
1	The Public Advocate, Office Of The Public Advocate 1/204 Lygon St, CARLTON VIC 3053 is appointed guardian for [WYU].
2	The guardian has power to make decisions about these personal matters:
-	where [WYU] lives, 
-	medical treatment 
-	whether any services are needed and if so which ones
3	Guardians must comply with the Guardianship and Administration Act 2019, which outlines their powers and duties.

Appointment of Administrator
VCAT orders that:
4	The State Trustees Limited 1 McNab Avenue , FOOTSCRAY VIC 3011 is appointed administrator for [WYU].
5	State Trustees Limited has power to make decisions about all financial matters.
6	The administrator has powers given under the Guardianship and Administration Act 2019 section: 
-	46(1), 51, 52.
7	Administrators must comply with the Guardianship and Administration Act 2019, which outlines their powers and duties.
8	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.
VCAT makes this order because it is satisfied that:
-	due to a disability [WYU] does not have capacity to make decisions about the personal and financial matters listed in this order,
-	[WYU] 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 [WYU].
Reassessment of this order
9	This order applies until VCAT makes another order.
10	Anyone can apply to VCAT to reassess this order at any time.
11	VCAT will reassess this administration order no later than 30 September 2026.
12	VCAT will reassess this guardianship order no later than 30 September 2024.
Change of contact details
13	If the guardian, administrator or [WYU] change contact details (email, phone or address), the guardian or administrator must immediately in form VCAT in writing.
Payment for acting as an administrator
14	State Trustees Limited is entitled to payment (including GST) from the funds of [WYU] as follows:
A commission on gross income received, not exceeding:
-	3.3 per cent of Centrelink or Department of Veteran’s Affairs pensions, and 
-	6.6 per cent of all other income received
AND
A commission on assets of the estate.
If an asset is sold or brought in during the administration, for the value of the asset the commission must not exceed:
-	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.

R. Page
Member			
APPEARANCES:	WYU
NWE, first sister
RJY, first sister’s son
XUB, second sister 
QFD, daughter
P. Sharon, Western Health 
T. Winmar, VCAT Koori Support Officer	

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 WYU. 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 WYU’s first sister as NWE, the son of his first sister as RJY, WYU’s second sister as XUB and his daughter as QFD, for the same reason – so that personal information remains confidential.
2	Western Health ('the applicant’) applied for a guardianship and administration order for WYU and raised the following issues: WYU has been an in-patient at Western Health since January 2023 with ongoing medical issues and prolonged hospitalisation which has resulted in deconditioning cognitive and physical abilities. The multi-disciplinary team has recommended that for best care, WYU enter residential aged care. Western Health say WYU’s daughter is agreeable with this recommendation. Medical assessment states WYU does not have insight into the severity of his deconditioning, his inability to care for himself and he lacks capacity to make decisions for himself in regard to lifestyle and discharge destination. WYU has an underlying delusional disorder impairing his ability to understand his impairment and engage in care.
3	There was a hearing on 14 July 2023 where I was the presiding member. I made orders at the end of the hearing and gave oral reasons for my decision. NWE has asked for written reasons and I set out below a written version of the reasons I gave at the hearing. 
4	VCAT appointed Office of Public Advocate (‘OPA’) as guardian, to be reassessed by 30 September 2024, to make decisions as follows:
•	Where WYU lives
•	Medical treatment
•	Whether any services are needed and if so which ones.
5	VCAT appointed State Trustees Limited (‘STL’) as administrator, to be reassessed by 30 September 2026.
THE HEARING
6	At the hearing, by telephone, I heard evidence from the following people: WYU the proposed represented person; his first sister NWE and her son RJY, his second sister XUB, his daughter QFD, the VCAT Koori support officer, the Aboriginal liaison of Western Health and the applicant Western Health.
7	When VCAT hears an application to appoint a guardian and administrator for a person, section 29 of the Guardianship and Administration Act 2019 (Vic) (‘the Act’) says the person must attend the hearing. 
8	WYU attended the hearing, by telephone, and his evidence is set out below. 
9	The applicant outlined that WYU has no capacity to make personal and financial decisions, and after WYU’s prolonged hospitalisation he was at risk if sent home and that he had to transition to residential aged care. 
10	The applicant stated the medical report of Dr Julian Daniell, dated 6 July 2023 indicates WYU does not have capacity to make personal and financial decisions. The medical report states that WYU functioned poorly at home prior to his hospitalisation and his daughter acknowledges that his care needs are well beyond what she can safely provide with the current level of care package. Therefore, she has advocated for him to be discharged to a residential aged care facility.
11	Further, allied health members involved in WYU’s care including physiotherapy, occupational therapy, clinical psychology, and social work all deem it most appropriate that WYU be discharged to a residential aged facility given that he needs the full time assistance from two carers for all aspects of self-care and he is unable to transfer from bed or ambulate safely. WYU requires a hoist to transfer from his bed to a chair and two nurses to assist with this moving of WYU to allow basic self-care. WYU has osteoarthritis in his right knee.
12	The medical report states WYU has been reviewed by the psychiatry service due to his underlying delusional disorder impairing his ability to understand his impairment and engage with care. This delusional disorder contributes to a significant lack of insight which impairs WYU’s ability to understand his care needs and therefore make a safe decision with regards to financial and legal matters.
13	The applicant stated WYU’s will and preference is to go home.
14	The applicant’s Aboriginal Liaison officer indicated WYU’s daughter is under carer’s stress and an independent decision maker is recommended.
15	NWE disagreed that independent decision makers be appointed and stated that the standard of hospitalisation was less than expected and raised issues relating to a contaminated needle being applied to WYU. She sought an adjournment the morning of the hearing, at 10.32 am, to obtain legal advice. The hearing was listed to held at 11.30 am and the adjournment request was disallowed due to insufficient notice.
16	QFD disagreed with the application for guardianship and administration order and said at the hearing WYU could return home to live with her.
17	XUB disagreed with the application for a guardian and administrator.
18	WYU stated that his will and preference is to return home and live with his daughter. His disagreed with the medical report.
PRINCIPLES
19	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. 
20	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. 
WILL AND PREFERENCES
21	When appointing a guardian and administrator, VCAT must apply the principles in section 8, including that WYU’s will and preferences should direct the decision ‘as far as practicable’.
22	WYU’s will and preferences are relevant also when VCAT decides whether a person needs a guardian and administrator (section 31) and whether a proposed guardian or administrator is a suitable person to be appointed (section 32(3)(a)).  
23	WYU attended the hearing and I spoke with him.
24	Based on WYU’s evidence, I was satisfied that WYU wants to return home. 
DISABILITY AND DECISION MAKING
25	Section 30(2) (9) 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.
26	VCAT received the medical report of Dr Julien Daniell, dated 6 July 2023, which indicates WYU does not have capacity to make personal decisions in relation to where he lives, medical treatment and services or supports he may need. Further, WYU does not have capacity to make decisions concerning his financial or property affairs.
27	Based on the medical evidence I am satisfied that WYU now lacks the capacity to make decisions about where he lives, give consent to medical treatment and arrange services he needs, as well as manage and make decisions about his financial affairs.
28	I have taken into account section 5 of the Act. Section 5, Meaning of Decision Making Capacity, presumes WYU to have decision making capacity unless there is evidence to the contrary. I have formed the view based on the medical evidence of Dr Daniell that WYU does not have decision making capacity to understand information relevant to a decision and the effect of the decision, nor be able to retain that information to the extent necessary to make a decision and use and weigh that information as part of the process of making the decision, and not be able to communicate the decision.
29	WYU, NEW and QFD all disagree with the application made and the medical report supporting the application. The views of WYU, NEW and QFD cannot change the medical practitioner’s expert opinion which was clear and I accept this professional evidence.
SUPPORTIVE GUARDIANSHIP AND ADMINISTRATION ORDER
30	Appointing a supportive guardian and administrator would be less restrictive than appointing a guardian and administrator.
31	A less restrictive order would be consistent with the principles in Section 8 of the Act.
32	VCAT has power to appoint a supportive guardian and administrator whenever an application is made, as provided by section of the Act. However, to appoint a supportive guardian and 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.
33	In this matter, this less restrictive alternative was not available because Dr Daniell’s medical evidence indicates WYU does not have decision making capacity because of his disability which is a delusional disorder and cognitive impairment.
34	Accordingly, the less restrictive alternative is not available.
NEED FOR A GUARDIAN AND ADMINISTRATOR
35	Section 30(2)(b) of the Act says VCAT may only appoint a guardian and administrator for a person if satisfied that the person needs guardian and administrator.
36	Section 31 of the Act sets out a number of matters VCAT must consider in determining whether a person needs guardian and administrator. 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 reasonable 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.
37	In this case WYU needs a guardian and administrator because the medical report of Dr Daniell’s states WYU does not have capacity to make personal decisions  and financial decisions due to his delusional disorder and cognitive impairment.
38	I have considered WYU’s will and preference to return home, and make his own decisions, but I was unable to effect those wishes because based on the information provided an independent guardian would be best to make decisions relating to where WYU is to live, medical treatment decisions and decisions concerning services and support. It was stated in the medical report that QFD, at a family meeting, told WYU that she was unable to care for him at home due to his physical disability and she has advocated for WYU to be discharged to a residential aged care facility. Other family members including NWE and XUB have made their views known at the hearing that WYU should not have decision makers appointed and that he returns home, which QFD agreed at the hearing. 
39	WYU’s disability does not allow him to make financial decisions and manage his finances and legal matters. Therefore, an administrator is required who will be independent of the family who have ongoing conflicted views and a significant influence on WYU and QFD. That is why I have appointed State Trustees Limited.
40	Based on the risk of serious harm occurring to WYU should he return home without the appropriate level of care comparable to what he is receiving in hospital, I formed the view that an independent guardian, the office of the Public Advocate, be appointed to make decisions for the next twelve months.
PERSONAL AND SOCIAL WELLBEING
41	Section 30 (2) (c) says VCAT may only appoint a guardian or administrator for a person if satisfied that the guardianship order will promote the person’s personal and social wellbeing. I am satisfied in this case that the order will do so because a guardian will be able to ensure that appropriate accommodation will be located for WYU to transition from the hospital, and where he will be safe with minimal risk.
42	Due to conflicted family views and carer stress on QFD, an independent guardian in the form of the Public Advocate fulfils the requirements of Section 32 for appointment of a guardian for WYU.
43	The appointment of the State Trustees Limited as an independent administrator in this case is required for a period of three years. WYU has a delusional disorder which affects his ability to manage his finances and make decisions about his income and expenses. The medical evidence supports an administrator being appointed, and due to the family not being in favour of such an appointment, with conflicted views, the need for an administrator was clear despite their wishes and it seems appropriate to appoint an independent administrator  
POWERS AND DUTIES OF THE GUARDIAN
44	The order says that the guardian can make decisions about where WYU is to live, medical treatment consent and decisions concerning the services WYU requires. 
45	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. 
46	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 WYU’s will and preferences ‘should only be overridden if it is necessary to do so to prevent serious harm’ to him. 
47	Section 41 sets out further requirements of the guardian. Some of the requirements most relevant in this case are the guardian must act as an advocate for the represented person, and act as a medical treatment decision maker and comply with the Medical Treatment Planning and Decisions Act (2016). That the guardian must act as an advocate for the represented person, must encourage and assist WYU to develop decision-making capacity about personal affairs and must act in such a way as to protect WYU from neglect abuse or exploitation.  
48	The Act provides the source of power for appointed guardians to make decisions on behalf of represented persons. Pursuant to section 38(1) of the Act, a guardianship order confers on the person appointed as a guardian the following broad powers:
(a) 	a power to make decisions about the personal matters in relation to the represented person that are specified in the order; and
(b) 	the power to sign and do anything that is necessary to give effect to any power or duty vested in the Guardian; and...
49	A ‘personal matter’ for the purpose of section 38(1) is defined in section 3 of the Act as follows:
personal matter, in relation to a person, means any matter relating to the person's personal or lifestyle affairs, and includes any legal matter that relates to the person's personal or lifestyle affairs;
Examples
The following are examples of personal matters—
(a) 	where and with whom the person lives;
(b) 	other persons with whom the person associates;
(c) 	whether the person works and, if so, the kind and place of work and employer;
(d) 	whether the person undertakes education or training and if so, the kind of education or training and the place where it takes place;
(e) 	daily living issues such as diet and dress;
(f) 	medical treatment decisions, excluding decisions about matters provided for in Part 6.
50	‘Medical treatment decisions’ referred to in the examples of a ‘personal matter’ for the purposes of section 38 is defined by reference to the definition in section 3 of the Medical Treatment and Planning Decisions Act 2016 (Vic) as a ‘decision to consent or refuse the commencement or continuation of medical treatment or a medical research procedure’.
How long does the order last?
51	This order will be reassessed after one year. WYU or anyone else can apply for the reassessment to be sooner if that is necessary.
POWERS AND DUTIES OF ADMINISTRATORS
52	The order made on 14 July 2023 says that the administrator can make decisions about all financial matters and exercise all the relevant powers in the Act (sections 46, 51 and 52). 
53	That includes the power set out in section 52(g) ‘to sell, exchange, partition or convert into money any property’ and other powers set out in that section which would allow the administrator to do everything necessary to sell WYU’s assets and use the proceeds for his benefit.
54	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. 
55	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 WYU’s will and preferences ‘should only be overridden if it is necessary to do so to prevent serious harm’ to him.
56	Section 55 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?
57	This order will be reassessed before the end of 3 years, as required by the Act, WYU or anyone else can apply for the reassessment to be sooner if that is necessary. 

R. Page
Member